גריי מאטר ד, גרות, פולמוס גר קטןGray Matter IV, Geirut, The Ger Katan Controversy
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1Introduction
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2Another aspect of the current geirut controversies is the intense debate concerning converting non-Jewish children whose adoptive parents do not observe Halachah. There has been much discussion about this issue in the Jewish media recently, and we shall seek as to shed more light on this emotionally charged issue. This question has emerged as particularly relevant in an age when Jewish children are rarely available for adoption and almost all adoptions involve non-Jewish children.
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3Background
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4The Gemara (Ketubot 11a) presents the rule that a minor can be converted by a beit din even though the child does not consent to the conversion. 31Even if the child expresses his or her consent, the consent is not meaningful due to the child’s immaturity; see, for example, Mishnah Machshirin 6:1. Rashi (ad. loc. s.v. Al Da’at) explains that “The Beit Din becomes like a father to the child, and the child converts by means of them.” The Gemara explains that the beit din is empowered to convert the child since it is conferring a benefit to the child. Halachah recognizes such procedures due to the principle of “zachin leadam shelo befanav”, one may bestow a benefit upon another even not in the latter’s presence (and even without receiving his explicit consent).
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5The Gemara limits beit din’s authority to convert someone in this manner to a minor. An adult cannot be converted against his will, as it is not considered a benefit (zechut) to him. The Gemara explains that it is a hardship for an adult to convert and become accustomed to a life of Torah observance once he has been accustomed to non-observance. A child is not disadvantaged in this regard, and thus conferring Jewish status upon him is considered a benefit.
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6The Gemara notes that when the child reaches majority, he has the opportunity to renounce his Jewish identity. The Gemara concludes, though, that once the child reaches the age of majority and does not immediately renounce his conversion, he no longer enjoys the right to do so.32For details on how this is implemented in practice, see the Geirut Policies and Standards (GPS) issued by the Rabbinical Council of America together with its affiliated Beth Din of America (available at the RCA’s website, www.rabbis.org). In short, the RCA document asserts that a formal acceptance of miztvot before a beit din is not required when the child reaches bar/bat mitzvah age “in accordance with time honored practice.” Rather, as long as the child knows that he was converted and that he has the right to renounce his conversion, his continued observance of Jewish law suffices. For further discussion and alternate opinions, see Encyclopedia Talmudit (6:448-449) and Rav Gedalia Felder’s Nachalat Tzvi (1:25-28).
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7Tosafot’s Question
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8Tosafot (ad. loc. s.v. Matbilin) pose a very basic question on the entire concept of converting a minor. Assuming that the principle of zachin operates based on viewing the one conferring the benefit as the presumptive sheliach (agent) of the beneficiary,33The Ran (Kiddushin 16b in the Rif’s pages) discusses at length how the principle of zachin relates to shelichut, how beit din can confer a zechut on a child if the institution of shelichut (agency) does not apply to a minor (Bava Metzia 71b)?
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9Tosafot’s final answer (also see Tosafot Sanhedrin 68b s.v. Katan for further discussion) is that the exclusion of a minor from shelichut applies only where it is somewhat questionable as to whether one is truly conferring a benefit. However, bestowing Jewish identity is a pure and unadulterated benefit (zechut gamur).
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10Adoption by Non-Observant Parents – The Strict View
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11A major debate emerged in the nineteenth and twentieth centuries as to whether Halachah authorizes a beit din to convert a child that is adopted by non-observant couple. The question is whether beit din is considered to be conferring a benefit to a child in such a situation, since the child will be raised in an environment where Jewish law is not honored. Therefore, the child most likely will emerge as an adult who will routinely violate Jewish law.
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12Rav Itzeleh Ponivizher (Teshuvot Zeicher Yitzchak 2) rules that conversion of a minor in such circumstances is invalid. He writes, “Since we know that he certainly will violate all of the Torah’s laws when he will be raised in such a home, it is not a benefit.” The Teshuvot Chavatzelet Hasharon (Y.D. 1:75) similarly rules that “Since it is clear that he will violate all of the Torah based on the way his adoptive parents will raise him, it is not a benefit.” Rav Avraham Yitzchak Kook (Teshuvot Da’at Kohen 147) adopts the strictest stand and argues that beit din is considered to be conferring a benefit “only if we know that the child will observe the Torah as an adult.”
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13Indeed, a non-Jew who observes the seven Noahide mitzvot34The list of and discussion of these mitzvot can be found in Masechet Sanhedrin 56a-59b. is rewarded with a share in the world to come, but if a non-Jew converts and fails to observe the Torah, Hashem will hold him accountable for his failing to observe the 613 mitzvot (Rambam Hilchot Issurei Biah 14:2 and Hilchot Melachim 8:11).
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14We should note that there seems to be a significant difference between Rav Kook’s approach and that of the Zeicher Yitzchak and Chavatzelet HaSharon. The latter seem to disqualify a conversion only if it seems clear that the child will most likely violate all of the Torah’s laws, whereas Rav Kook requires that it be clear that the child will most likely observe Torah law.
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15Adoption by Non-Observant Parents – the Lenient View
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16On the other hand, other poskim believe it is preferable to be even a non-observant Jew than to be a nochri. The Teshuvot Beit Yitzchak (Y.D. 2:100:11; see also E.H. 69) writes, “Nonetheless, it is preferable to join the Jewish people even though he will be punished [for violating Torah law], since all Jews have a share in the world to come and it is a great zechut for him even though he will violate a few Torah laws.” Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:28) subscribes to this view as well.
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17We should note, however, that there does not seem to be such a wide gap between the Zeicher Yitzchak and the Chavatzelet HaSharon on one hand and the Beit Yitzchak on the other, as the former disqualify a conversion in a case where it is clear that the child will violate all of the Torah’s rules and Teshuvot Beit Yitzchak seems to be lenient only when it appears that the child will violate “a few” of the Torah’s laws.
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18Rav Moshe Feinstein – A Compromise View
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19Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 4:26) adopts a compromise approach to this issue. He is inclined to the lenient view since “[Even] wicked Jews have Kedushat Yisrael, and the Mitzvot they perform are considered mitzvot and the sins they perform are for them like shogeig (done as a result of negligence).”35They are simply following in the path in which they were raised; see Rambam Hilchot Mamrim 3:3 and Ramban BeMidbar 15:22; see, however, Kovetz Teshuvot 1:103 for Rav Yosef Shalom Eliashiv’s critique of Rav Moshe’s point. Elsewhere, though, Rav Moshe clarifies that in practice this question is unresolved (Dibrot Moshe Shabbat 84 comment 11). Thus, Rav Moshe would appear to regard such a child as a questionable Jew, possibly Jewish and possibly non-Jewish. Rav Yona Reiss, former director of the Beth Din of America, reported at the 2007 convention of the RCA that the Israeli Chief Rabbinate adopts this approach as well.
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20Rav Moshe does allow a conversion in a situation where it is “matzui” (likely) that the child will emerge as an observant adult. He specifically permits converting a child if the child will receive a Torah education from fully observant teachers even if the adoptive parents are non-observant. He reasons that because in such circumstances it is likely that the child will grow up to be a Torah observant adult, “It is certainly a Zechut” to be brought into such a situation.
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21Rav Yosef Adler and Rav Haskel Lookstein (as well as many others) report that Rav Yosef Dov Soloveitchik also considered it a zechut if the non-observant parents commit to providing the child with a yeshiva education. Rav Yisrael Rozen (Techumin 20:249-250) suggests this compromise as well, but he insists that Jewish education does not suffice if the child will be raised by a non-Jewish parent. We should note that the aforementioned Zeicher Yitzchak and Chavatzelet Hasharon also would appear to accept this approach, since in such circumstances it is not clear that the child will grow up to violate all of the Torah. Rav Kook, however, seemingly would not accept this compromise, as he requires that it be clear that the child will fulfill Mitzvot when he reaches adulthood.
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22Conclusion
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23In 2007, the RCA in conjunction with the Israeli Chief Rabbinate established a set of guidelines for converting a child, set forth in the aforementioned GPS document. The standard is that the child must be raised in circumstances where it is “likely” that he will observe mitzvot when he reaches adulthood. The requirements include that the child receive twelve years of Orthodox Jewish education, that the adoptive parents fully observe kashrut, have a positive attitude to full observance of mitzvot and that, at minimum, there be “significant observance of Shabbat.” The RCA and Beth Din of America consider the wide variety of opinions that exist among the poskim and seek to insure that geirut of a child can be conducted at a standard that can be accepted by all.