September 27, 2022

Time to Face and Solve the Issue of the Mamzer

rivkah_smby Rivkah Lubitch

I think it’s time to deal with the issue of mamzerut. I was exposed to the subject as a result of my work as a rabbinic advocate in Israel, working with women who were denied divorces and agunot, women chained to dead marriages.
Through this work, I became familiar with a host of issues surrounding mamzerut, defined as one who is born as a result of sexual incest relations prohibited by the Torah or of relations between a married Jewish woman and a Jewish man (married or not) who is not her husband.

Many women who had been separated from their husbands and some who waited years for divorces became pregnant by other men, giving rise to these situations:
• women who had abortions rather than give birth to a child who would be labeled a mamzer
• rabbis who suggested women abort rather than give birth to a mamzer
• women who were sorry they had not aborted children now labeled as mamzers

A woman once said to me, “I waited 25 years for a divorce from a recalcitrant husband. I became pregnant by another man, but I aborted the fetus rather than give birth to a child who would be stained with the stigma of mamzerut. This child would now be 21 today, and he cries out to me, ‘How awful that you aborted me! I wanted to be born and to live!’” This woman is now aging and has no children at all.

A mamzer is forbidden to marry someone considered part of the community of Israel. He or she is permitted to marry only another mamzer or a convert, and the offspring are forever considered mamzerim according to Jewish law, even after 10 generations. While the sages gave theoretical priority to a mamzer who was learned in Torah over a high priest who was an ignoramus, the conventional attitude to mamzers is closer to what was expressed by a rabbi who asked me: “Would you let your child play with a mamzer child?! Would you let your child sit in school next to a mamzer child?!”

The Blacklist

Since 1979, the state of Israel has conducted a digitalized data bank of people who are forbidden to marry by Jewish law. Since Israel has no civil marriage, those on the list are not able to marry at all in Israel. According to the data provided by the rabbinic court to the Center for Women’s Justice, in 2009 there were 4,000 names on the list of those whose marriages were forbidden, of whom 100 were in the category of mamzerim. The numbers have been growing higher. Every Jew who registers to marry in Israel has his or her name checked to see if they are on this “black list.”

We don’t hear much about this because the subject of mamzerut is kept quiet. More than any other group, mamzers live in terrible isolation while struggling all their lives to conceal their problem and somehow to solve it. A mamzer fears that publicizing it would injure not only himself or herself but his family and offspring. But beyond this, a mamzer feels that there is no reason for him or her to contact other mamzers. He is convinced, and perhaps rightly so, that each case needs to be individually solved, and seeking others would not help him. If a problem gets solved – all the more reason to conceal it. On the contrary, a person permitted to join the community will be the last person who wishes to publicize that she was once “suspected” of mamzerut. She will do everything in his or her power to permanently “bury” the story. In fact, one who has been saved from mamzerut, the only person able to tell the story, is the last one likely to tell it.

Halachic Solutions

I would like to suggest here the lines of several general halachic solutions. The first suggestion relates to the possibility of erasing the transmission of mamzerut to the children of mamzers. According to leading halachic decisions, mamzerut is transmitted only when fertilization takes place within the body. In vitro fertilization involves both sperm and egg outside the body. Therefore mamzerut is not transmitted. I would argue that this approach could even save mamzers themselves from the stigma. Who can know whether they themselves were born through in vitro fertilization? Modern technology can certainly permit us to assert this argument today or in the near future.

The second suggestion relates only to mamzers who were born of married women who became pregnant by another man, and not to those born of incestuous unions. I suggest promoting “conditional,” marriages that could be annulled if a mamzer would be born.

The third suggestion is to rule that today no one can declare mamzerut. After all, a mamzer does not come out of the womb with the label of mamzer. The ruling is a status declared by the court, and the court itself can decide never to declare one a mamzer. This approach can be based on the ruling that one must not accept any testimony on the question of mamzerut.
The fourth suggestion is to declare in an all-inclusive way — that the entire community is in the category of mamzerut. This declaration could be made after a simple calculation: according to the halacha, if one parent is a mamzer, all the children are mamzers and it is passed to all their descendants forever. Without a doubt, throughout the generations, many mamzers have “passed” and assimilated into the general community, which was ignorant of their mamzerut. It is thus possible that the majority of the Jewish people, if not all, are mamzers.

I truly believe that the time has come to work around the issue of mamzerut – saving innocent children from being ostracized and saving the Torah from the hillul hashem (desecration of God’s name) of having such an immoral rule.


Join us on Thursday, May 29 to hear Rivkah Lubitch and others at the Project on Gender, Culture, Religion and the Law’s Workshop on Religious Law in Civil Courts. To R.S.V.P., please email hbi@brandeis.edu and visit our website for more information.

Rivkah Lubitch is an advocate in the rabbinic courts, a board member at the Center for Women’s Justice and a research associate at the Hadassah-Brandeis Institute.

As part of a collaboration between the HBI’s Project on Gender, Culture, Religion and the Law and the School of Law at the School of Oriental and African Studies, supported by the Bridging Voices Program of the British Council, we present a series of invited reflections on the intersection of Gender, Religion and Equality in Public Life from activists and scholars around the world. Contributors have been asked to reflect upon the ways in which conflicts over gender, religion and participation impact their work and inform their understanding of events in the news. They are particularly asked to consider how religious norms around gender shape civil policy making, adjudication and women’s capacity to fully participate in public political and ritual life.

Comments

  1. Helene Aylon says:

    `The obvious and most unattainable solution is for a Beit Din of three women. We now have women rabbis, and women cantors: The next step is women judges. A woman would know the pain of aborting a child for the sake of an outmoded patriarchal law and would not shrug this off as it has been shrugged off.
    As an artist and scholar, I made a courtroom installation called “All Rise” that was shown in the NY Jewish Museum and the Contemporary Jewish Museum of SF.There is a photograph of this work in my memoir, “Whatever is Contained Must Be Released: My Jewish Orthodox Girlhood, My Life as a Feminist Artist” published by The Feminist Press. I welcome feedback on the memoir and the far out ways that Jewish Feminism can move.forward.

    • Jacob Alterman says:

      Helene, you don’t do justice to the hypothetical women’s beit din. Why are you so sure that they couldn’t come up with the real solution — abolition of the state of mamzerut?

  2. Shlomo says:

    I saw that someone on Facebook commented on this article,
    “The last sentence nullifies any positive contribution she could have had to the discussion.”

    I think there is truth in that assessment (given that we are talking about reforming an Orthodox system), but to fix the problem, it is not necessary to remove the whole sentence. Just replace “such an immoral rule” with “a rule that causes so much pain to many people” or similar. Then you will be making the exact same point already made by rabbis in the Talmud – expressing sorrow at the consequences of this law while not rejecting the moral authority of the halachic system altogether.

  3. Federbergeritzstein says:

    This article is worth about as much as a Lakewood guy writing an article on their Yeshiva’s website about Shakespeare.
    Sadly, only those entrenched in learning -either Shakespeare or Talmud – would understand the paucity of value in either such article.
    What is next, Hugh Laurie and Noah Wyle going to start to perform real surgery? This person (I almost said ‘woman’ but I bet the knee-jerkers would call me a sexist) is not a scholar of anything Jewish, she plays one on TV.
    She is a walking Hillul Hashem, not, heaven forfend, the Torah.
    Good luck on your avodat perach.

  4. Reb Yid says:

    Ms. Lubitch’s commitment to reducing human suffering is laudable. However, her halachic propositions may be difficult to put into practice.

    1. Not all authorities agree that IVF precludes mamzerut. Therefore, there would be the risk of maintaining two streams of Jews, those who could marry the other stream and those who couldn’t. Further, it would be difficult to honestly claim that all births are just as likely as not to have resulted from IVF.

    2. Various types of conditional marriages have been proposed to solve this and other problems, such as agunot. In general, halacha frowns on them. In this case, the condition would be, essentially, that the marriage would be considered void if the woman committed adultery, which is an unheard of stipulation.

    3. Mamzerut doesn’t need to be declared. In fact, a mamzer does “come out of the womb” as such. The fact that, in Israel, the rabbinic courts “declare” people mamzerim often leads some to conclude that that confers a halachic reality. It does not. The reality exists regardless.

    4. Torah law only prohibits marrying a certain mamzer, not a doubtful one. Rabbinic law adds the prohibition of marrying a doubtful mamzer, so as to prevent confusion. If we permitted everyone to marry, then certain mamzerim would be marrying doubtful mamzerim, a Torah violation.

    Despite this, I think that everyone can applaud the devotion and right direction that are evident in this article.

  5. priyanka says:

    if one parent is a mamzer, all the children are mamzers and it is passed to all their descendants forever. Without a doubt, throughout the generations, many mamzers have “passed” and assimilated into the general community, which was ignorant of their mamzerut. very nice post.

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  1. […] (had Maya had a child out of wedlock it could have been blacklisted by the State as a bastard, a “mamzer”, barred from marrying into the Jewish people for several […]

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