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Adoption And The Law Of Return

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It may not be a “basic law,” Israel’s set of semi-constitutional laws, but the Law of Return is probably the most fundamental law of the state. It certainly is the most Jewish and Zionist of all Israel’s laws.

The Law of Return states that “[e]very Jew has the right to come to this country as an oleh.” It fulfills provisions of the 1922 Palestine Mandate approved by the League of Nations, which gave international recognition to Zionism and placed a legal obligation on the then-administering power of Palestine, Britain, to provide for close settlement of the Jews in Palestine.

It also fulfills provision of the Declaration of the Establishment of the State of Israel, which holds that “the Jewish State … would open the gates of the homeland wide to every Jew” and that “[t]he State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles.”

The Law of Return captures the very weltanschauung of Zionism and the Jewish state. So it’s no surprise that Ben-Gurion believed the Law of Return to be one of Israel’s most important laws.

It is precisely because the Law of Return captures the essence of the State of Israel and the national interest of the Jewish people in the modern era that it is subject to so much controversy and attack, in and out of Israel’s courts, by several groups: Israel’s Christian friends, concerned about the status of messianic Jews whose missionary activity could threaten the Jewish character of the state; Israel’s Arab enemies; and Israel’s post-nationalist, post-Zionist academic elite who see this law, so central to the reestablishment of Jewish sovereignty in Israel after 2,000 years of persecution culminating in the Holocaust, as evil and racist.

The Law of Return became the subject of yet another legal controversy when Israeli Attorney General Menachem Mazuz offered the opinion that because the section of the law addressing who is a Jew does not discuss the ramifications of a Jewish child being adopted by non-Jewish parents, the question of such a child’s Jewish identity is open to interpretation.

In most legal systems the absence of a legal provision that would change a person’s legal status would mean only that the person’s legal status is what it always was. The real question is why anyone would think adoption of a Jew by non-Jews makes the adoptee less Jewish. If that were the case, Jewish children saved by Christian parents during the Holocaust – Anti-Defamation League national director Abraham Foxman, for example, who was raised as a Catholic by his rescuers – could face serious problems if they wanted to make aliyah under the Law of Return.

According to Jewish law – the determining factor of Jewish identity for thousands of years – a person who is Jewish cannot become non-Jewish. The halachic definition was practically incorporated into the Law of Return by virtue of a 1970 amendment that reversed an Israeli Supreme Court decision ordering that a “subjective test” – a person’s statement that he or she is Jewish – be used in determining Jewish identity.

The 1970 Amendment stated that “[f]or the purposes of this Law, ‘Jew’ means a person who was born of a Jewish mother or has become converted to Judaism and is not a member of another religion.” This objective halachic definition is the one that Jews had used for thousands of years, with an understandably added stipulation against apostates.

In addition, the definition of a Jew as stated in the Law of Return does in fact address the issue of adoption: It says a person is a Jew if he or she was “born to a Jewish mother” (emphasis added), specifically including people who were born to but not necessarily raised by Jewish parents.

The problem is that the adopted person at issue in the case that inspired the attorney general’s remarks is not, under this definition, a Jew, since it is her biological father, not her mother, who is Jewish.

Under the Law of Return, however, “the rights of an oleh … are also vested in a child and grandchild of a Jew, the spouse of a Jew….” (This provision was most likely aimed at ensuring that a Jew who married a non-Jew would not be deterred from making aliyah or to cover the Holocaust scenario in which a person is persecuted because of his or her Jewish blood.)

About the Author: Daniel Tauber is a frequent contributor to various prominent publications, including the Jewish Press, Arutz Sheva, Americanthinker.com, the Jerusalem Post and Ha’aretz. Daniel is also an attorney admitted to practice law in Israel and New York and received his J.D. from Fordham University School of Law. You can follow him on facebook and twitter.

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