גריי מאטר ג, בית דין, בדיקות דם ודנ"א בבית דיןGray Matter III, Beit Din, Blood Tests and DNA in Beit Din
א׳
1Beginning in the twentieth century, poskim have been faced with the issue of whether new forms of evidence, such as blood tests and DNA, are admissible in beit din. These tests have enormous potential to resolve heretofore irresolvable questions in a positive direction, but they also can reveal information that could have catastrophic ramifications. We shall begin with a discussion of blood tests.
ב׳
2Blood Tests to Determine Paternal Identity – The Majority Opinion
ג׳
3Since the early twentieth century, poskim have been faced with the question of whether blood tests may be accepted in beit din to help determine paternal identity. In many countries, blood tests were commonly used as evidence that a husband was not the father of his wife’s child. Most poskim ruled that such evidence is inadmissible in beit din. It seems that Rav Ben-Zion Uzziel (Sha’arei Uzziel 2:40:1:18) was the first to address this matter. He rules that blood tests are not admissible evidence based on the celebrated Gemara (Niddah 30a) that states that there are three partners in the creation of a person: Hashem, the mother, and the father. The Gemara goes on to explain what each partner contributes to the creation of the child. The mother, states the Gemara, contributes the red material from which blood is created. This passage is even applied by some authorities in a halachic context (see Rama Y.D. 263:2). Rav Uzziel concludes from this that Chazal believe that blood type is determined exclusively by the mother. Thus, argues Rav Uzziel, the modern scientific belief that blood type is influenced by both the mother and the father contradicts Chazal. Rav Uzziel claims that Halachah is determined by Chazal’s belief and not by scientific assertion, and he accordingly rules that blood tests are not admissible evidence regarding paternal identity.
ד׳
4Most poskim agree with Rav Uzziel’s ruling. These authorities include many of the great dayanim of the twentieth century, such as Dayan Ehrenberg (Teshuvot Devar Yehoshua 3 E.H. 5), Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 13:104), and Rav Ovadia Yosef (Teshuvot Yabia Omer 10 E.H. 12 and 13).1Rav Shalom Messas (Teshuvot Shemesh Umagein 3 E.H. 17-18) also utilizes this argument in combination with other factors.
ה׳
5Rav Waldenberg adds that scientific approaches are very much subject to change, and that which is accepted today is often rejected soon after. This skeptical attitude towards scientific conclusions is commonplace in rabbinic thought throughout the ages, as Rav Waldenberg notes.2For a summary of the halachic literature regarding the admissibility of scientific evidence for halachic matters, especially the laws of niddah, see Nishmat Avraham (2:82-85). See our later chapter regarding the interface of archaeology and Halachah for more discussion of this question. Therefore, Rav Waldenberg echoes the ruling of many dayanim that we accept the divinely inspired assertions of Chazal, of which we are certain, and not scientific assertions, which are subject to revision.
ו׳
6Blood Tests to Determine Paternal Identity – The Minority Opinion
ז׳
7Not all poskim agree with this approach. Rav Yitzchak Herzog argues (in a letter published in Assia 35) that poskim who adopt this approach are “sticking their heads in the sand” by ignoring scientific facts. Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 3:30-31) notes that the Gemara need not necessarily be interpreted as teaching that blood type is determined exclusively by the mother. It could be understood as teaching that the mother merely provides the catalyst for the production of blood, leaving open the possibility of paternal influence on blood type even according to Chazal.3Dr. Dov Frimer (Shenaton Hamishpat Ha’ivri 5:230 note ב54) records that Rav Shlomo Zalman told him that the Gemara may even be describing metaphysical connections between parents and children, not natural, biological connections.
ח׳
8Rav Shlomo Dichovsky (in a teshuvah printed in Teshuvot Bikkurei Asher 6) points out that the Rambam (Moreh Nevuchim 3:14) and the Tashbeitz (1:165) write that the many medical assertions that appear in the Gemara are not derived from divine sources but rather from the medical knowledge of the time. According to this approach, the accepted scientific evidence in each generation should constitute admissible evidence in a beit din hearing. Rav Dichovsky notes, though, that the Rivash (Teshuvot Harivash 447) disagrees with the Rambam and Tashbeitz and argues that the medical assertions that appear in the Gemara are in fact divinely inspired just like the rest of the Talmud.4For a summary of the debate regarding the nature of Chazal’s medical claims, see Rav Yaakov Neuberger’s article in the Torah U-Madda Journal (3:82-89).
ט׳
9Rav Sa’adiah Gaon’s Blood Test
י׳
10It seems that another major consideration lurks beneath the ruling of the majority opinion that rejects blood tests for use in beit din. A fascinating case involving Rav Sa’adiah Gaon is recorded in the Sefer Chassidim (232). A wealthy man once traveled a long distance with his pregnant wife and his slave. The man died, whereupon the slave presented himself as the wealthy man’s son and was awarded the deceased’s fortune by the local authorities. The wife then gave birth, and when the child came of age, he went to Rav Sa’adiah Gaon to complain about what the slave had done. Rav Sa’adiah Gaon exhumed the father’s body and removed one of the bones. He took blood samples from both the son and the slave and placed the exhumed bone into each sample. The bone absorbed the son’s blood but not the slave’s blood, thereby proving, in Rav Saadiah’s opinion, the identity of the true son.
י״א
11The Eliyah Rabbah (568) cites this story but poses a question based on an incident recorded in the Gemara (Bava Batra 58a). A couple had ten children, but on his deathbed, the husband said that only one of the sons was truly his child. In order to determine who should inherit the estate, Rav Bena’ah devised an interesting plan. He instructed the boys to hit their father’s grave. All of the boys hit the grave except for one, to whom Rav Bena’ah then awarded the estate. The Rashbam (ibid. s.v. Amar Lehu) explains that this decision was an example of “shuda d’dayni” (loosely translated as a Solomonic decision),5For further explanation of this concept, see Tosafot Kiddushin 74a s.v. Shuda D’dayni. as the true son would not have the audacity to hit his father’s grave.
י״ב
12The Eliyah Rabbah wonders why Rav Bena’ah had to employ shuda d’dayni if he could have used Rav Sa’adiah Gaon’s blood test to determine the true son. The Rashash (commenting on the Rashbam ibid.) asserts that Rav Bena’ah did not want to administer this test since it would reveal that nine of the boys were mamzeirim (illegitimate). Rav Bena’ah’s test, on the other hand, revealed only that one of the boys was a more refined person than his siblings but did not necessarily prove the other siblings’ illegitimacy. The Rashash bases his explanation on the Rambam and Bartenura’s assertion (Eiduyot 8:7 s.v V’kirvah) that mamzeirut should not be publicized.
י״ג
13An explanation of the Rambam and Bartenura’s approach is that a problem of mamzeirut exists only when one has knowledge of it. At the same time, though, one has no obligation to reveal such knowledge. It seems that the Ran (Kiddushin 30a-b in the pages of the Rif s.v. Tannu Rabbanan, based on Kiddushin 71a) and the Rama (E.H. 2:5; see the comments to this Rama summarized in the Otzar Haposkim ibid.) subscribe to this explanation. Rav Elchanan Wasserman (in an essay printed in the Torah journal Degel HaTorah 5681-5682 pp. 63-64) supports and rules in accordance with this approach, and Rav Hershel Schachter6Rav Schachter cites Rav Elchanan’s ruling in B’ikvei Hatzon p. 58. once issued a ruling based on it. Rav Aharon Lichtenstein told me that the practice of many community rabbis in pre-war Europe was to leave a locale when they heard that someone they knew to be a mamzeir was about to marry. Indeed, Rav Shmuel Tokayer told me that Rav Moshe Feinstein advised him to conduct himself accordingly in a similar situation that he encountered when he served as a Rav in the 1960s. The Gemara (ad. loc.) refers to this lenient approach to mamzeirut as a tzedakah (charity) that Hashem does for Am Yisrael.
י״ד
14It appears that a motivation behind most dayanim’s refusal to admit blood tests as evidence of fatherhood in beit din is that they choose, as Rav Bena’ah did, not to administer a test that could potentially reveal that people are mamzeirim.
ט״ו
15We shall now turn our attention to the issue of whether DNA evidence is admissible in beit din. We shall first present the rulings issued before the World Trade Center terrorist attacks, and then proceed to discuss the propriety of admitting DNA evidence in order to identify the remains of a husband missing from those attacks.
ט״ז
16Rav Shlomo Dichovsky and the Ashdod Beit Din
י״ז
17In 1982, Rav Shlomo Dichovsky sat as a member of the Ashdod district Israeli Rabbinate beit din. After the beit din had presided over a couple’s divorce agreement and get, the husband opened a file challenging his heretofore presumed fatherhood of his wife’s two children. After ordering the couple to perform a blood test (in accordance with Rav Dichovsky’s opinion that such tests are admissible evidence), the beit din was informed that DNA tests (accurate up to 99.6% at that time) were now being administered to determine paternal identity. The DNA test revealed that the husband was the father of only one of his wife’s two children. When the results were read in beit din in the presence of both parties, the wife still insisted that her husband was the father of both of their children, denying ever having had an affair during the marriage. The question was whether the beit din should regard the results of the DNA test as evidence that the husband was not the father or whether it still should assume that the husband was the father of both children.
י״ח
18Rav Dichovsky writes (in a teshuvah printed in Teshuvot Bikkurei Asher 6) that this question presents a conflict between two mechanisms of resolving doubt regarding paternal identity when a wife is suspected of adultery. On one hand, the Gemara (Sotah 27a) states that in such a case we assume that the husband is the father since “Rov be’ilot achar haba’al,” (a wife will have most of her relations with her husband). On the other hand, the DNA tests are almost always accurate. Rav Dichovsky ruled that since we are faced in this case with a conflict of two presumptions, both of which are true in a majority of situations, the doubt remains unresolved. Therefore, Rav Dichovsky opined that the beit din cannot obligate the husband to pay child support for the child in question since a beit din cannot coerce someone to pay in a case of doubt (Bava Kama 46a).
י״ט
19On the other hand, Rav Dichovsky stated that the child is not a mamzeir because the level of certainty necessary to presume that the child is a mamzeir against the assumption of rov be’ilot achar haba’al is extremely high. In fact, the Gemara (Yevamot 80b, codified by the Shulchan Aruch E.H. 4:14) states that if a husband travels overseas and his wife gives birth to a child twelve months after his departure, we assume that the husband is the father and that the wife was pregnant for twelve months! Similarly, reasons Rav Dichovsky, since (in 1982) DNA tests were only 99.6% accurate, there is insufficient evidence to pronounce the child a mamzeir.
כ׳
20The other two dayanim on the court disagreed with Rav Dichovsky and ruled that the DNA evidence was not admissible in this case. They ruled that the husband must pay child support despite the DNA evidence, arguing that the DNA test cannot prove an assertion that contradicts the principle of rov be’ilot achar haba’al and the chazakah (status quo assumption) in existence from the child’s birth until after the administration of the get that the husband was the father of the child. The husband appealed the ruling to the Rabbinic Court of Appeals, which at the time included Rav Avraham Shapira, which sustained the ruling of the Ashdod beit din.
כ״א
21Rav Ovadia Yosef and the Israeli Rabbinic Court of Appeals
כ״ב
22In 1986, the Israeli Rabbinate’s Rabbinic Court of Appeals, consisting of Rav Ovadia Yosef, Rav Yosef Kafich, and Rav Yitzchak Kulitz, was presented with an appeal of a ruling by a district Israeli Rabbinate beit din regarding a fascinating case. A young man and woman lived together without the benefit of marriage. Some time after the couple separated, the woman was discovered to be pregnant, and she subsequently gave birth to a child. The young man claimed to be the father, while the young woman vigorously denied this claim. The young man demanded that a DNA test be administered to prove the validity of his claim, to which the wife refused to consent. The district beit din ruled that if the woman persisted in her refusal, it would interpret this as an admission that the young man was indeed the father. This ruling implied that DNA evidence is acceptable in beit din, since the beit din essentially accepted the man’s argument that a DNA test should be administered in order to determine paternity.
כ״ג
23The Rabbinic Court of Appeals rejected the ruling of the district beit din. Rav Ovadia (Teshuvot Yabia Omer 10 E.H. 13) explains that just as the consensus view among dayanim is to consider blood tests inadmissible evidence in beit din, so too the consensus should reject DNA tests as proof in beit din. He bases his ruling on a number of passages in the Gemara (e.g. Yevamot 99a) that speak of a child whose father is known to be one of two possible men. The Gemara treats this doubt as irresolvable. Rav Ovadia argues that the fact that the Gemara does not mention either blood tests or DNA tests as a possible means to resolve the doubt indicates that these two methods are not acceptable means of determining paternal identity.
כ״ד
24Although this argument from omission seems a bit far-fetched, the Gemara sometimes presents theoretical possibilities, such as transportation on a “flying camel” (Makkot 5a), in order to bring out certain principles. In our case, the Gemara does not present a theoretical means of resolving the doubt, leaving no precedent for resolving questions of paternal identity by means of DNA testing.
כ״ה
25Rav Yosef Shalom Eliashiv
כ״ו
26Rav Eliashiv (Kovetz Teshuvot 1:135) was asked to adjudicate a case related to DNA testing. A wife had claimed when she was pregnant that her husband was not the father of the unborn child. Years later, the father wished to know whether he should conduct genetic tests to determine if the wife was correct. Rav Eliashiv rules unequivocally, “Since many years have passed, and a chazakah has been established that he is the father of the child, one has no right to cast aspersions on the legitimacy of the child by engaging in testing.”
כ״ז
27As a precedent, Rav Eliashiv cites the Rashash (cited in the previous chapter), who explains that the Amora’im (scholars of the Gemara) did not engage in testing to determine paternal identity at the risk of revealing that someone who was heretofore presumed to be legitimate (b’chezkat kashrut) was in fact a mamzeir. Rav Mendel Senderovic (Teshuvot Atzei Besamim 16) observes that Rav Eliashiv does not rule that DNA evidence is inadmissible evidence in beit din. In fact, it seems he does deem it admissible evidence, since he wanted to avoid having such evidence presented in this particular case.
כ״ח
28Rav Shlomo Zalman Auerbach
כ״ט
29Prior to the World Trade Center attacks, the strongest ruling in support of the admissibility of DNA evidence was issued by Rav Shlomo Zalman Auerbach. His ruling (cited in Nishmat Avraham 3:37) concerned an event that occurred in an Israeli hospital in 1977. Two babies were confused after birth, and all investigations could not conclusively determine the identity of the respective parents of each baby. The hospital administration suggested undergoing DNA testing to reach a final conclusion. Dr. Abraham S. Abraham consulted Rav Shlomo Zalman Auerbach and Rav Eliezer Waldenberg, both of whom permitted utilizing the results as a consideration in the final determination of the identity of the parents of each child.
ל׳
30This is quite a significant ruling, since Rav Waldenberg (as we noted in our previous chapter) is a staunch opponent of admitting blood tests as evidence in a beit din hearing.1Ariel Herzog notes that there is a fundamental distinction between the case that Rav Dichovsky adjudicated, in which, according to the majority opinion, the DNA test contradicted the Talmudic principles of rov be’ilot achar haba’al and chazakah, and the case Rav Waldenberg dealt with regarding the hospital, in which there was no such conflict. Moreover, Chazal seem to have relaxed the rules of admissibility of evidence in the context of identifying a child, as the testimony of the midwife is accepted (Kiddushin 74a; see the Ran, Kiddushin 31a in the pages of the Rif s.v. Ne’emenet). Thus, it is not clear how Rav Waldenberg and the majority opinion in Rav Dichovsky’s case would rule in the other’s case. For a discussion of trusting contemporary hospital identification of babies, see Teshuvot Moznei Tzedek (E.H. 2:2). In addition, Dr. Abraham writes that Rav Shlomo Zalman later wrote to him, “If this [DNA] test is well-known and accepted throughout the world as reliable as a result of numerous and unambiguous tests, it is reasonable to say that the results of this test constitute admissible evidence by halachic standards.”
ל״א
31The World Trade Center
ל״ב
32Having seen the different opinions regarding DNA evidence, we will now discuss how poskim applied their rulings in the aftermath of the World Trade Center terrorist attacks. In some cases, DNA evidence was the only possible way to identify the remains of a missing husband.2The application of DNA evidence to the World Trade center agunot is discussed briefly in Gray Matter 2 pp. 121-123. We will focus on Rav Mendel Senderovic’s discussion (Teshuvot Atzei Besamim 16) of this issue, which presents excellent arguments to support the unequivocal ruling of Rav Zalman Nechemia Goldberg that DNA is admissible evidence to identify the remains of a missing husband.
ל״ג
33DNA Evidence vs. Blood Tests
ל״ד
34Rav Senderovic notes that only blood tests seem to have a passage in the Gemara that precludes their use in determining paternal identity. The same Gemara notes that the father contributes the material that produces the bones and fingernails of the child. Thus, argues Rav Senderovic, a DNA sample may be taken from bones and fingernails in order to determine paternal identity. The Haifa beit din (cited in Assia 35:47) also drew such a distinction. Although there is no precedent in the Gemara that is analogous to DNA identification, there are no clear counter-indications that preclude its use.
ל״ה
35In addition, the skepticism that Rav Waldenberg expressed in regards to scientific evidence seems to be irrelevant to DNA identification of a missing husband’s remains. DNA identification is based on the assertion that no one (save for identical twins) has the same DNA. Rav Senderovic notes that this has been empirically proven regarding more than one million individuals. Accordingly, skepticism about the accuracy of DNA testing appears misplaced in light of the overwhelming evidence supporting its accuracy.
ל״ו
36Can We Devise Simanim?
ל״ז
37Rav Senderovic notes that some have argued that the absence of a Talmudic precedent for DNA testing automatically precludes its use as a new means of identifying individuals. A proof for this might be derived from the Chatam Sofer (Teshuvot Chatam Sofer O.C. 207, cited by the Mishnah Berurah 648:65),3The Chatam Sofer, though, appears to have changed his mind about this issue; see Teshuvot Chatam Sofer O.C. 183, also cited by the Mishnah Berurah 648:65. who rules that we may not rely on the simanim (means of identification) devised by many Acharonim (cited in the Mishnah Berurah ibid.) to determine whether or not an etrog is a hybrid (murkav). The Chatam Sofer explains that the problem with these simanim (such as bumpy skin and an indented stem) is that they do not appear in the Gemara. One could claim that DNA evidence may not be relied upon since it also lacks a Talmudic source.
ל״ח
38One could respond to this argument in a number of ways. Rav Senderovic notes that the Gemara (Chullin 64a) discusses simanim (such as having the yolk on the inside and the albumin on the outside) to identify eggs as the product of a kosher bird. According to Rashi (ad. loc. s.v. Hachi Garsinan), the Gemara rejects the use of these simanim because we do not have a tradition from Sinai that such simanim constitute legitimate evidence of kashrut. Rabbeinu Tam (cited in Tosafot ad. loc. s.v. Simanin), on the other hand, explains that simanim do not constitute adequate evidence because of the counterevidence of the eggs of a raven (a non-kosher bird), which have the simanim of the eggs of a kosher bird. The Ramban (ad. loc. s.v. Hah) combines the reasons of Rashi and Rabbeinu Tam, explaining that we do not rely on simanim for eggs because of both the counterevidence of the raven’s eggs and the lack of a tradition from Sinai.
ל״ט
39Rav Senderovic argues that since after years of testing, scientists have not found two individuals (other than identical twins) with the same DNA, we may rely on DNA as a siman to identify the remains of a missing husband. Since there is no counterevidence to question its accuracy, Rabbeinu Tam and the Ramban would approve of DNA evidence. Rav Senderovic notes that Rashi seems to imply that this is a specific exclusion that applies only to eggs and is not a principle that applies to all halachic realms. Accordingly, all Rishonim would admit DNA evidence as simanim.
מ׳
40Most important, Rav Zalman Nechemia Goldberg and Rav Senderovic note, is the precedent of poskim relying on fingerprints (see Otzar Haposkim 17, Rishum Simanim 62) to identify the remains of a missing husband. DNA evidence is entirely analogous to finger prints, argue Rav Zalman Nechemia and Rav Senderovic, so DNA evidence, like fingerprints, should be reliable evidence to identify the remains of a missing husband.
מ״א
41Random Sampling
מ״ב
42Rav Senderovic also notes that some have questioned the efficacy of DNA on the grounds that not every human being alive has been tested to determine if everyone has different DNA. They argue that science has proven only that the over one million people tested do not have the same DNA. This, in their view, does not constitute adequate evidence. Rav Zalman Nechemia responds that when Chazal made determinations, such as that a majority of animals do not have a blemish that would render an animal a treifah (thus permitting us to drink the milk of animals that have not been examined for treifot), they reached their conclusions based on random sampling. Rav Zalman Nechemia finds it counterintuitive to maintain that Chazal traveled throughout the world and inspected every animal to reach this determination.
מ״ג
43Rav Senderovic suggests that one could counter that perhaps the assertions made by Chazal are derived from divine sources and therefore constitute impeccable evidence despite the fact that they did not check every animal in the world. Rav Senderovic rejects this line of thought, noting the Gemara (Chullin 47a) that records an incident in which Rav Ashi thought to classify an animal as a treifah because of what he perceived as an abnormality. However, Rav Huna Mar bar Avya told him that all of these “boryata”4Rashi (ad. loc. s.v. Boryata) explains this to mean either rural or healthy. animals have this abnormality and that the butchers are very familiar with it and even have a name for it. The Gemara gives Rav Huna Mar bar Avya the last word, indicating that Rav Ashi accepted his critique. Rav Senderovic derives from this passage that Chazal made at least some determinations based on their experience with animals from the area and did not conduct an investigation of every animal in the world in order to reach their conclusions.
מ״ד
44Combination of Inadequate Simanim
מ״ה
45Rav Senderovic notes that some have argued that DNA testing constitutes inadmissible evidence because its conclusions are based on the combination of thousands of sub-factors that individually constitute inadequate evidence. They cite the ruling of the Rama (E.H. 17:24; see Gray Matter 2 pp. 120-121) that many inadequate simanim cannot be combined to constitute one adequate siman. Rav Senderovic responds that one views the thousands of sub-factors as one whole unit, which undoubtedly constitutes adequate evidence.5A siman that is unique to fewer than one out of a thousand people constitutes an adequate siman to identify the remains of a missing husband, as noted by the Beit Shmuel (17:74). The possibility of two people having the same DNA ranges from one in ten billion to one in one quintillion.
מ״ו
46As a precedent, Rav Senderovic cites a ruling from the Terumat Hadeshen (239, the source of the aforementioned ruling of the Rama) that one may combine the fact that a missing husband’s remains show that he was blind in an eye and that he had a scar extending from that same eye to his mouth to constitute an adequate siman (also see Pitchei Teshuvah E.H. 17:107). Similarly, the Mishpatim Yesharim (1:39) rules that we accept a tooth that is cracked, protrudes, and has a black spot at its edge as an adequate siman. Just as we view the eye and the tooth as constituting one unit that has more than one feature rather than examining each identifying mark individually, so too we view DNA conclusions as constituting one siman even though they are created through a combination of many sub-factors. Moreover, it is even more compelling to view a person’s DNA as constituting one individual unit of evidence given that the sub-sections of DNA are inherently connected to each other. As support for his contention, Rav Senderovic once again cites the precedent of poskim relying on fingerprints as an adequate siman, as fingerprints prove identity by combining the strands from the entire fingerprint.
מ״ז
47In line with the rulings of Rav Shlomo Zalman Auerbach, Rav Zalman Nechemia Goldberg, and Rav Mendel Senderovic, the Beth Din of America utilized DNA evidence as an important (but not exclusive) consideration in identifying the remains of husbands who were missing as a result of the World Trade Center terrorist attacks.6Rav Shmuel Wosner and Rav Nissim Karelitz (Techumin 21:123) both consider DNA to constitute a semi-adequate siman. They also distinguish between DNA evidence taken from the person in question (e.g. his comb or brush), to which they give slightly more credence, and DNA evidence based on comparison to a relative, despite the fact that the possibility of error in the latter form still is less than one in ten billion. Rav Senderovic is astonished that Rav Wosner and Rav Karelitz do not offer a reason for not accepting DNA evidence as a full-fledged siman, as it seems to satisfy the criteria for such categorization. Rav Senderovic also finds the distinction between DNA evidence taken from the victim and DNA evidence based on a comparison to a relative to be shocking, as there seems to be no basis for such a distinction, and Rav Wosner and Rav Karelitz offer no explanation.
מ״ח
48Mamzeirut and DNA Evidence
מ״ט
49A potential problem with allowing DNA evidence is that it opens a proverbial Pandora’s box, since once batei din admit DNA as evidence in some cases, they seemingly must accept DNA as evidence of parentage (against the 1986 ruling of the Rabbinic Court of Appeals cited earlier). This potentially opens a floodgate of mamzeirut cases in which DNA evidence indicates that a husband is not the father of his wife’s child.
נ׳
50We should note that Rav Shlomo Dichovsky’s claim (cited above) that DNA testing is insufficient to determine mamzeirut since it is only 99.6% accurate is no longer valid, since the chance of error in a properly administered DNA test ranges from less than one in ten billion to less than one in one quintillion.7See, though, the rulings of Rav Ovadia Yosef and Rav Shalom Messas issued in 1996 and printed in Teshuvot Yabia Omer 10 E.H. 8.
נ״א
51Rav Mordechai Willig (Kol Zvi 4:12) grapples with this problem and at first argues that we should permit an agunah to remarry based on DNA identification despite concern that it will cause others to be declared mamzeirim. He notes the celebrated Mishnah (Ohalot 7:6) that states, “Ein dochin nefesh mipnei nefesh” (we do not sacrifice one soul in order to save another).8This is a poetic way of saying that we do not choose one person’s gain at the expense of another’s loss.
נ״ב
52Rav Willig presents another potential distinction that may solve this problem. In a wide variety of halachic areas, we do not attach any significance to that which is not visible to the naked eye. The Chochmat Adam (Binat Adam 38:49), Rav Shlomo Kluger (Teshuvot Tuv Ta’am Vada’at 2 Kuntress Acharon 53), the Aruch Hashulchan (Y.D. 84:36), and Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 6:47) rule that we need not be concerned about consuming bugs that can be seen only with the aid of a magnifying glass. Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 3:120:5) rules that we need not determine that tefillin are square using a microscope.9The Gemara (Menachot 35a) states that we have a tradition from Sinai that tefillin must be square. The Tiferet Yisrael (Avodah Zarah 2:3 in Boaz) rules that a fish whose scales are visible only when viewed with a magnifying glass is not kosher. He similarly rules that an animal with a hole in its lung that can be seen only with a magnifying glass is not a treifah. The Teshuvot Even Yekarah (2:33) rules that a Tanach whose tiny letters are visible only if viewed with a magnifying glass is not considered “written.” Rav Yosef Messas (Teshuvot Mayim Chaim 1:259) permits using an etrog whose blemishes can be detected only when examined with a magnifying glass. As such, we need not be concerned with the microscopic strands of DNA that suggest that a child is a mamzeir.
נ״ג
53Accordingly, one may ask how we can rely on DNA evidence if DNA strands are not visible to the naked eye. Rav Willig suggests that a distinction can be drawn between evidence to prove the death of a missing husband (eidut ishah) and other areas of Halachah. Classical halachic sources relax the rules of evidence in many aspects regarding agunot, such as accepting hearsay evidence and the testimony of those who are normally considered invalid witnesses (such as women).10See the sources and explanation presented in Gray Matter 2 p. 118. Contemporary authorities continue this tradition by accepting the testimony of non-observant Jews who were raised as such (see Gray Matter 2 p. 119) in the context of agunot. Similarly, we can argue that even though DNA evidence does not constitute evidence in other areas of Halachah, it does carry weight in the context of permitting an agunah to remarry.
נ״ד
54Rav Mordechai Willig also suggests that DNA evidence would merely prove another man to be the father, not necessarily that the child is a mamzeir, since it is possible that the child was conceived through artificial insemination. According to Rav Yaakov Breisch (Teshuvot Chelkat Yaakov 1:24), Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:10), and Rav Yosef Dov Soloveitchik (cited in Nefesh Harav p. 255), a child conceived via artificial insemination is not a mamzeir even if the sperm donor is not the husband.11Many poskim, however, disagree; see Teshuvot Minchat Yitzchak 4:5, Teshuvot Minchat Shlomo 3:98, and the ruling of the Satmar Rebbe that appears in Hama’or 5724. As we noted in our previous essay, if a husband was overseas and his wife gave birth to a child up to twelve months after he left, we do not consider the child to be a mamzeir. Thus, we see that Halachah will rely even on remote possibilities (in combination with the Gemara’s assertion that rov be’ilot achar haba’al) in order to avoid problems of mamzeirut.
נ״ה
55A problem with this latter approach is that it has never (to my knowledge) been suggested by any of the other great poskim of the modern period who have been forced to grapple with a large number of potential mamzeirut situations. It also was not mentioned as a viable option in the responsa regarding the admissibility of blood tests as evidence of parentage. We should clarify that it would seem that even according to Rav Willig’s suggested approach, one cannot solve every case of mamzeirut by assuming that the child was conceived by artificial insemination. It seems that this line of reasoning is appropriate only in combination with the assumption of rov be’ilot achar haba’al.
נ״ו
56Conclusion
נ״ז
57While blood tests can be ignored at no “cost,” since there is (for the most part) no halachic benefit to relying on them, DNA evidence can benefit many people. Not surprisingly, we find contemporary poskim relying either fully or partially on DNA evidence, especially to identify the remains of a missing husband. At the same time, most poskim manage to avoid allowing DNA evidence to prove mamzeirut.