by Rivkah Lubitch
It is time to face the issue of mamzerut. It is a subject that I was exposed to as a result of my work in Israel as a rabbinic advocate, working with women denied divorces (mesoravot get) and agunot. While separated from their husbands, some of these women became pregnant by other men and gave birth. I learned of women who had abortions rather than give birth to a child who would be labeled a mamzer and of rabbis who suggested that women abort rather than give birth to a mamzer. I learned of unwanted children and of mothers who were sorry that they had not aborted their children.
A woman once said to me, “I waited twenty-five 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 be twentyone 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. This case is but one of the personal tragedies created by mamzerut.
This case is but one of the personal tragedies created bymamzerut. A mamzer is defined as one who is born as a result of incestuous sexual relations specifically prohibited by the Torah or of relations between a married Jewish woman and a Jewish man (married or not) who is not her husband. 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 their offspring will be forever considered mamzerimaccording to Jewish law, even after ten generations. Even though the sages theoretically ascribed priority to a mamzer who was learned in Torah over a high priest who was unlearned, the conventional attitude to mamzerim has been closer to that expressed by a rabbi who asked me, “Would you let your child play with a mamzer? Would you let your child sit in school next to a mamzer?”
A Data Bank of Those Forbidden to Marry
From 1979, the State of Israel has been compiling a digitalized data bank of people who are forbidden to marry by Jewish law. The list includes those suspected to be mamzerim, women and men who have committed adultery, converts whose conversions have been annulled, divorcees whose gittin have been annulled, and more. Because all Jewish marriages in the state of Israel may take place only through the rabbinate, a person with a questionable family history cannot find himself or herself a more lenient rabbi who might agree to marry him or her. Also, because there is no civil marriage in Israel, those on the list are not able to marry at all in Israel.
The subject of mamzerut has been kept quiet. More than any other group, mamzerim live in terrible isolation, struggling all their lives to conceal their problem and somehow to solve it. A mamzer fears that publicizing his or her status would injure not only himself or herself, but his or her family and offspring as well. Beyond this, though, a mamzer feels that there is no reason to contact other mamzerim. The mamzer is convinced, and perhaps rightly so, that each case needs to be solved individually, and seeking out others would not help him or her. If the problem does get resolved, it is all the more reason to conceal it. On the contrary, people permitted to join the general Jewish community will be the last ones to wish to publicize that they were once “suspected” of mamzerut. They will do everything in their power to permanently “bury” their story. In fact, one who has been rescued from mamzerut—the only person able to tell the story— is the least likely one to tell it.
I would like to suggest the lines of several general halakhic solutions. The first suggestion relates to the possibility of erasing the transmission of mamzerut to the children of mamzerim. According to some leading halakhic decisors, mamzerut is transmitted only when fertilization takes place within the body. In vitro fertilization involves both sperm and egg outside the body, and therefore mamzerut is not transmitted in this way. I would argue that this approach can save mamzerim themselves from the stigma, not only working as a possible solution for coming generations. Who knows whether they themselves were born through in vitro fertilization? Modern technology can certainly permit us to assert this argument today—or might be able to in the near future.
The second suggestion relates only to mamzerim who were born of married women who became pregnant by men other than their husbands and not to those born of incestuous unions. I would advocate promoting conditional marriages that could be annulled if a mamzer were to 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 a religious court, and the court itself could decide never to declare anyone a mamzer. This approach could be based on a 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 based upon a simple calculation: According to halakhah, if one parent is a mamzer, all the children are mamzerim, and the status is passed to all their descendants forever. Without a doubt, throughout the generations many mamzerim have “passed” and assimilated into the general community, which has remained ignorant of their mamzerut. It is thus possible that the majority, if not all, of the Jewish people are mamzerim.
Rabbis have found ways to get around many other issues. I am convinced that the only reason we have not yet sorted out the issue of mamzerut is because it is so hushed up that most of us do not know that the issue exists. I truly believe that the time has come to face the topic of mamzerut courageously—saving innocent children from being ostracized and saving the Torah from the hillul Hashem of having such an immoral rule.
Rivkah Lubitch is a to’enet rabbanit (legal advocate in rabbinic courts) and a board member of the Center for Women’s Justice.