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December 21, 2014 / 29 Kislev, 5775
 
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Legal Dilemma: A Mamzer or a Pauper

What would you decide?
Baby Name

Photo Credit: Illustration Photo

A Tel Aviv family court judge was recently forced to choose between two bad options. As a result of her decision, would the child become listed as a Mamzer, the child of an illicit relationship between a married woman and someone who wasn’t her husband, or would the child grow up financially unsupported and not know who his real father is?

Three years ago, possibly as the result of the affair between a then married woman from Petach Tikva and another man, a child was born.

According to Halacha, the confirmed offspring of such a relationship takes on the halachic status of a mamzer, a bastard in colloquial terms. That child is then forbidden to marry most other Jews. As per Jewish law, a mamzer is only allowed to marry another mamzer or a convert. In nearly all other aspects of Jewish life and law there is no halachic difference between a mamzer and an ordinary Jew.

For clarification purposes for our readers, someone born out of wedlock is not considered a mamzer and there is no halachic stigma or ramifications attached to the child. It is only when the woman is married to another man, or the result of incest, is there a problem.

Whenever possible, Judaism prefers to not expose a person as a mamzer, and tries very hard to keep his status buried, including offering benefit of the doubt to the husband, rather than expose what might be the truth and place the involuntary victim in that tragic position.

In the case that appeared before the court, the woman demanded the man take a paternity test to prove he is the father, and begin paying child support. The woman claimed, that the child deserved to know who his real father was. A paternity test would leave no room for benefit of the doubt.

While the man did not deny that he had relations with the woman while she was married and at the right time to be the father, he said that by taking the paternity test (and if it proved positive), as well as by providing financial support for the child, it would be an admission of guilt, and mark the child a mamzer for life.

The judge ruled that the man has to take the paternity test, and the excuse he gave of wanting to prevent the child from becoming a mamzer is an attempt to avoid his financial obligations, adding that a child wants to know who his real parents are, no matter what the pain.

The judge added that in the court case following the paternity test, they can argue the halachic issue of who is the father. Of course, at that point it will be a matter of public record, and too late. The man also had to pay NIS 7500 to the woman for court fees, and another NIS 1500 to the court.

All in all, a lot of very stupid people made this story possible.

If you were the judge, how would you have ruled regarding the paternity test?

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16 Responses to “Legal Dilemma: A Mamzer or a Pauper”

  1. If I were the judge, I would order the man to submit to the paternity test. However, I would not look at the results (at least initially), or have them entered as evidence. Rather, I would just allow the man (and his attorney) to see the results, without requiring them to disclose their contents. At that point, I would offer the man the option to negotiate a settlement with the woman. Only if he fails to do so, would I then view the test results. If he does negotiate a settlement, then I would keep the test results out of the court records permanently.

    If the test is positive, then the man has a motivation to reach a settlement. Even though he would be accepting the financial obligations of a father, he would not be required to disclose his reasons for doing so. The test results would remain secret, and not entered into the court records. This way, there would be no incontrovertible, conclusive evidence available that the man is indeed the father. Even though it would be pretty clear what his motivation probably was, the facts would still be sufficiently ambiguous to allow a beit din to rule that the son is not a "mamzer".

  2. David Cohen says:

    I QUESTION THIS AUTHORS ACCURACY ACCORDING TO GEMARA ON KEEPING THE MAMZER STATUS QUIET WHENEVER POSSIBLE. It is critical to know his statues so no valid man or woman should marry the mamzer. Keeping it quiet contradicts this authors own stament of the restrictions in who the mamazer is qulaified to marry. I dont appreciate decimination of erronious information to the readers.

  3. I would ask both the man and the woman's former husband to undergo paternity tests, and ask to see the test of the former husband, but not necessarily the test of the other man in the first instance. Only if the husband's test proved negative, would I suggest to the other man that he should reach some kind of a settlement with the woman without necessarily making his paternity public. However there is also the possibility that he was not the only person with whom the woman had an extra marital affair, and the two DNA tests could open an even bigger can of worms if both happen to be negative. She might have also had a one night stand with someone whose name she does not even know..
    There are many more factors to be taken into consideration than meet the eye in the story that was published..

  4. It is questionable whether a secular court and a DNA test are qualified to rule the child a mamzer. If it turns out that a man other than the woman's husband is the sire there are still halachic alternatives to disqualify her original marriage. Ergo child is not a mamzer and is still recipient of child support. We don't want to punish the child or bring mamzerim into our community.

  5. Eva Feld says:

    Halacha is punishing a child for the elicit inception. How cruel is that? Legal dilemma at work here or is humanity going to rule this issue. Both were consenting adults and they produced a human being innocent and healthy. Both take responsibility and raise a responsible person, with pride and joy.

  6. @David Cohen: You are so completely and utterly wrong. The greatest of poskim, including ones like R. Moshe Feinstein and R. Ovadia Yosef, would always use any and every possible halakhic loophole, and adopt even the most farfetched reasons for casting doubt, in order to come up with a reason to pasken leniently and remove the status of mamzerut from a Jew.

    See here for just one example:
    http://learningteshuvot.blogspot.co.il/2010/10/when-is-mamzer-not-mamzer-igrot-moshe_18.html

  7. Judith Dowla says:

    Yes, David, there must be better ways to handle such affairs whereby an innocent child becomes the issue. However, if the child becomes the issue, children can be taught how to manage the consequences of their biological parents actions with great strength and understanding. when G-D is with them.

  8. Sientje Seinen says:

    Judith Dowla what happens to the law, that forbids anyone "Thou shalt not commit adultery?" and since the woman was married, she is guilty fo breaking that law, did she tell the man that she was married? how does her husband figure in this, and did she have other children? so many question left, hard to make a judgnment

  9. Sientje Seinen says:

    Judith Dowla statistics have shown that children of divorced parents usuallly end up being divorced also. its like the energizing bunny, sin keeps on going and going and going.

  10. Basha Kline says:

    Did not these laws come after the creation of human life? – be grateful the child is well, and who knows, he might be the next Mechiach…!

  11. The judge made the right decision.

  12. Ben Frydenberg says:

    Branding an innocent child as a mamzer is one of many reasons for the appeal of Reform Judaism. On this point, the Halacha is a mamzer.

  13. Meira Yolanda Lettieri says:

    Here's a thought, let Mommy go out to work to pay for her play. What a thing to hang on the innocent kid. If that's the inevitable result of daddy's playing with a married woman, better to let him off the hook. I don't think the law was ever intended to actually brand the kid, but to make the adults THINK about the consequences, which obviously didn't happen here. Not all men are shirkers. Some actually do think about the best interests of the children they beget. At least she didn't abort.

  14. Moshe Poupko says:

    The shallowness of some of these responses is beyond belief . Reform Halacha: Hungry, eat a cheeseburger, tired, drive to Temple on Shabbat, have sex with a married woman, no problem, eat non-union lettuce CHAS V'SHALOM,absolutely forbidden! Actions of a parent can have positive and very negative effects on the child. King Solomon bemoans the fate of the mamzer, but a mamzer he/she remains.

  15. Basha Kline says:

    I thought Temple University would have broadened your mind somewhat – Anyway, the child did not choose his parentage and therefore should not be an outcast all his/her life, just hope the child will have a fulfilled and benevolent one, Mr Poup and go!

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