Wednesday, December 30, 2009

Adoption, Part 1

Megilla 13a states: Whoever raises an orphan (boy or girl) in his home, the pasuk considers it as if he gave birth to them. A very similar statement is also found in Sanhedrin 19b. A slightly different formulation is found in Kesuvos 50a, which states: "Praiseworthy are the guardians of justice who perform righteousness (tzedaka) at all times (Tehillim 106)...Said R. Shmuel bar Nachmani, this refers to one who raises an orphan (boy or girl) in his home and marries them off."

Several Biblical personalities were adopted or were praised for adopting a child. These include:
  • Osnas bas Poti Fera, who was married to Yosef, was adopted by Potifar/Poti Fera and his wife, and she was the daughter of Dina from Sh'chem (Tosfos al Hatorah to Breishis 41:45). Because Poti Fera adopted her she was called bas Poti Fera.
  • Bilha was represented in Yosef's dream as his mother because she raised him after Rachel died (see Rashi, Breishis 37:10).
  • Serach bas Asher was Asher's wife's daughter, but he fully adopted her. See Ramban & Yonasan ben Uziel, Bamidbar 26:46. (Daas Zekanim there has a lot of difficulty with that explanation. And see Haksav Vehakabala, Breishis 46:17. Tosfos, Pesachim 54a s.v. Eileh argues on the Ramban and says that one may not call his wife's son his son.)
  • I heard that Yair ben Menashe was adopted by someone from Menashe, but he really was from shevet Yehudah (based on ibn Ezra, Bamidbar 32:41), but this is not conclusive.
  • Moshe Rabbeinu was raised by Basya bas Paroh after she found him floating in the river.
  • Esther was adopted by her uncle Mordechai after her parents died (Megilla 13a).
Sanhedrin 19b lists more examples.

Does one fulfill perya verivya (procreation) by adopting a child? Most poskim say no. However a very famous R' Shlomo Kulger in Chachmas Shlomo (See Shulchan Aruch E"H 1) states: "I have had a doubt whether one who raises an orphan, if this is considered a fulfilment of perya verivya, since Chazal said whoever raises an orphan (boy or girl) in his home, the pasuk considers it as if he gave birth to them, if so one may suggest that it is like perya verivya, or, nevertheless, it's not like actually giving birth to the child. It seems to depend on an argument between Derisha and Taz on Y"D 242, that Drisha holds wherever the gemara says "ke'ilu" (as it does by adoption), the compared situation is not exactly identical to its analogy, and Taz argues and says they are exactly identical...." He continues to say to the Taz you do fulfill perya verivya and to Drisha you do not. But if you had children who died but you also adopted and raised orphans, even according to Drisha you will have fulfilled perya verivya - even though they weren't the same children, you did give birth to children and you did raise orphans.

Even if one may not fulfill perya verivya, it still is a very meritorious and wonderful thing to adopt orphans. See, for example, Pischei Teshuva, E"H 154:27 when discussing a couple that had been infertile for 10 years, must the husband divorce his wife, even though she was such a great wife, and one of her praises was that she allowed her husband to raise an orphan and learn with him. (The answer there was that he didn't have to divorce her, but that's not our issue.)

Sunday, December 27, 2009

Surrogate Pregnancy (Shvatim as Jews, part 2)

Another explanation to Shimon's "Canaani" wife (Shimon had a son Shaul ben haCanaanis) is that she was Dina. See Rashi, 46:10 and Breishis Rabbah 11. After she was raped by Sh'chem, she refused to leave until Shimon told her that he would marry her. Only then did she leave Sh'chem with her brothers Shimon and Levi. How could Shimon have married Dinah, if they were both children of Leah, and we saw the Rambam lists incest of siblings of the same mother among the laws that bnei Noach must keep? Torah Shleima 46:10 os 68 brings several answers:
1) the only relationship forbidden to bnei Noach was adultery with a married woman, but not incest. This opinion, cited in the name of the Moshav Zekaynim, clearly argues on the Rambam.
2) According to Rabi Akiva, bnei Noach are not forbidden to their sister from the same mother. This is similar to the first answer in substance as well as in the difficulties it presents.
3) Ra"b (Rav Ovadia Bartenura?) "I have not found an answer but I heard that"... the girsa wasn't that Shimon will marry Dinah, it was that Shimon promised her he will marry her off to someone else, possibly one of his sons. (While an aunt is forbidden in Torah law, it isn't prohibited to a ben Noach, and in fact, Moshe Rabbeinu's father Amram was married to his aunt Yocheved.)
4) The main gestation of Dinah was in Rachel's womb. Therefore they were not really siblings from the same mother: Shimon gestated and was delivered from Leah's womb, but Dina was gestated in Rachel's womb and was only delivered from Leah's womb, and thus they do not have the same mother.

This last answer is fascinating. It is mentioned by Tur ha'aruch to 46:10 and 38:2, Targum Yonasan to 30:21, and Daas Zekanim ibid. The even earlier source is the gemara Brachos 60a that Leah didn't want Rachel to have less sons than Bilha and Zilpah, so she davened and Hashem switched the fetuses between Rachel and Leah.

This opinion has a huge impact on the following question: if a woman cannot conceive and uses a donated egg which is implanted, (or any situation of surragacy), is the biological mother - the woman who provided the egg - the halachik mother? There are three main possibilities: that the biological mother (the one who provides the egg) is the mother; the surrogate in whom the baby gestated is the mother even if she is not the biological mother as far as the egg is concerned; and the mother who delivered the baby even if the baby did not gestate [mostly] in her womb.

According to these opinions (that Shimon & Dina were not siblings from the same mother), the woman in whose womb the baby gestated will be the halachik mother. However, many poskim do not pasken this way. For example, Rav Shlomo Goren paskened that the biological mother (of the egg) is the mother. Rav Moshe Feinstein paskened that the mother who delivered the baby is the mother. In Dina's case, her biological mother and the mother in whose womb she developed was the same woman - Rachel. If doctors would take the egg of one woman, implant it to woman 2, then transplant it to a third woman late-term, to Rav Goren the first woman would be the mother, Rav Moshe would probably pasken the third woman was the mother, and to the Daas Zekanim et. al., probably the second woman will be the mother. (Really, maybe the reason for the Daas Zekanim is because the host mother is the same as the biological mother, but from his words, the main issue is that the host mother is the mother, not the biological mother of the egg.)

Sunday, December 20, 2009

Shvatim as Jews, part 1

We just saw that the Beis Yosef brought rishonim discussing how was Yosef batel from perya verivya if he didn't have a girl; maybe it was midas chasidus. The bottom line is that the assumption is that Yosef kept all the mitzvos. Which leads to the question: did the shevatim keep the mitzvos? I've previously mentioned the Prashas Drachim by the author of the Mishna Lamelech, who demonstrated from many midrashim that Yosef and his brothers argued about whether they had kedushas yisrael or not: Yosef felt they did, and the brothers felt they did not.

Joel Rich, the audio shiur reviewer at Hirhurim, sent me a source that Yosef kept Shabbos: Eliyahu Rabbah Parsha 7 s.v. Baruch. I can add two sources: the Drisha from the above discussion - Yosef kept the entire Torah, and the Daas Zekanim Parshas Naso (Bamidbar 7:48 - Yosef kept Shabbos).

A famous question is who did the shvatim marry? See Pesachim 50a: "'And Yehuda saw there the daughter of a Canaani man.' What is Canaani? If you say literally a Canaanite, is it possible Avraham warned Yitzchak [against marrying a Canaanite], Yitzchak also warned Yaakov, and Yehuda will go marry a Canaanite? Rather, Rabi Shimon ben Lakish said it is a merchant." Ramban quotes this on Breishis 38:2. He also mentions a midrash that all the shvatim were born with twin sisters, and they married a shevet from another mother (because to marry the daughter of your mother is an isur of arayos for Bnei Noach, see Rambam, Melachim 9:5. Note that this would be an isur for a Yisrael.) This is also brought by Tur Ha'aruch on that pasuk. Ibn Ezra says they married women from Aram, Mitzrayim, Edom and Midyan, but not Canaan, except for Shimon, and that is seen from Breishis 46:10 - Shaul Ben HaCanaanis. (But from Rashi to 50:17, it seems more than one married a Canaanis.) A question on the ibn Ezra is that putting the issue of who is Jewish aside, the Torah forbade marrying people from Mitzrayim. Even though the reason did not yet apply - because they oppressed us when we were their slaves, the fact of the avos keeping the Torah was absolute and did not depend on the reasons for the mitzvos; we see Avraham had matzos and Yitzchak ate korban pesach, and the exodus from Mitzrayim had not happened! So why should they have married mitzriyos? For whatever reason, marrying a Canaanite must be worse than marrying a mitzris, whether it was due to the fact that Avraham said "from the Canaanim among whom we live, but they didn't live with mitzriyos, or for some other reason.

Saturday, December 19, 2009

Tashmish During Famine

A bit of an unusual issue from the parsha. Rashi on Parshas Noach 7:7 & 8:16 says that tashmish was asur during the mabul. The first Rashi says because the world was in trouble. Rashi on Mikeitz 41:50 - Yosef had two sons before the famine - is the source that tashmish is asur during famine. This last Rashi is from Taanis 11a. Rambam brings it in Taanis 3:8. If someone wasn't mekayem piryah v'rivyah this halacha doesn't apply to them. Even if someone already was mekayem perya verivya, shouldn't they have to fulfill onah? Yes - see Beis Yosef O"C 574. Shulchan Aruch mentions this halacha in 2 places: O"C 240:12 regarding famine (Rama adds any other trouble like famine, and his source is the Yerushalmi) and the second place is O"C 574, also for famine.

There is an interesting B"Y in 574 about Yocheved bas Levi being born bein hachomos - as the family of Yaakov reached Egypt. Tosfos asks: But that was during a famine, so how could she have been conceived? Either she was conceived from Leil tevilah (Drisha assumes the shevatim also kept the mitzvos); or Levi didn't have daughters so he wasn't mekayem pv"r yet. The difficulty with that answer is why didn't Yosef try to have a girl even though it was during a famine? Maybe Yosef did some midas chasidus. A third answer is maybe because they knew they had food so tashmish wasn't asur. We'd ask the same question about Yosef - there was food? So Yosef did a midas chasidus. My next question is, if it was midas chasidus, the Rambam shouldn't bring this halacha at all, because he doesn't pasken midos chasidus. Yet he does pasken this halacha? So Rambam would say it's not a midas chasidus.) B"Y says at end it's only asmachta.

Now, what about during recession? Should tashmish be asur? Probably not. Interestingly, this
point seems to be a machlokes between political democrats (refrain) & conservatives (don't refrain) from January - see this editorial from Wall Street Journal. But another report suggests the increased workforce did cause the recession. Is recession a lagging indicator that the birthrate is too high? I don't know if the poskim had an economy like ours in mind when a halacha like this was said.

Thursday, December 17, 2009

First Anniversary

One year ago today I opened this blog and wrote my first post. Events of this week demonstrate the importance of issues related to kedushas yisrael. Between the UK High Court decision prohibiting a frum school from denying admission to a student who is not halachikly Jewish (in other words, the court said the school must admit this student even though he is not Jewish) and the sudden shakeup at EJF, we must continue to understand the many halachik issues that may crop up and be prepared to defend the Halacha.

Tuesday, December 15, 2009

Kiddushin 41a - Asur Lekadesh Isha ad sheyirena

The Gemara (41) says one may not be mikadeish a woman until you see her. Rambam paskens this Halacha in two places: Ishus 3:19 and Isurei Biah 21:3. Raavad there also says if you don't know what you're looking for, bring an am haaretz with, so he can tell you if she looks good. Shabbos 53b brings a story where a woman was so tzanua that she was missing an arm and her husband never realized it because she was so tzanua. R' Moshe Feinstein in Dibros Moshe there (43:10) discusses maybe it was kiddushei ta'us, and also why wasn't the man praised for being so tzanu'a that he never noticed. But it is strange that she should be praised when the Halacha mandates the husband to see her and see that there are no gross misfigurations.

Rashi, Breishis 12:11 mentions that Avraham didn't realize how beautiful Sarah was until they went down to Egypt. Rashi's source is Tanchuma Lech Lecha 5. The Gemara (Bava Basra 58a; Tosfos Megilla 15a s.v. Arba also discusses this) also says that Sarah was one of the four most beautiful women who ever lived. The question is, how could Avraham have married Sarah if he didn't see her, for if he would have see her he would have known how beautiful she was!

This is the question of Maharsha, Bava Basra 16a as pointed out by Gilyon Hashas here on Kiddushin 41. Maharsha answers that Avraham did see Sarah before they got married. However, he hadn't looked at closely since that time, until he saw her reflection in Egypt. He thought she wouldn't look so beautiful at that point, many years after their wedding. But when Rashi says he noticed how beautiful she was, it was a surprise to Avraham that she was still so beautiful so many years later.

Tuesday, December 1, 2009

E"H 55:1 / Parshas Vayetzei

The Gaon Maharil Diskin zt"l explained the pasuk in Vayeitzei "And they (seven years) were in his (Yaakov's) eyes like a few days, in his love for her (Rachel)" (29:20) based on the Haghos Mordechai at the beginning of Kesuvos and the Rama (E"H 55:1 in the name of the Kol Bo) that an engaged couple cannot live in the same house before their marriage, lest they come to dislike each other because they are always seeing each other. Therefore the Torah emphasizes here the sanctity of Yaakov, even though he lived for seven years in the same house as Rachel before their marriage, his love did not change (diminish) and they were in his eyes like only a few days, and this is because of his great sanctity, that he was fully sanctified to Hashem.
--quoted in Har Tzvi al haTorah, collected from sayings of Rav Tzvi Pesach Frank zt"l

Or it could have been that Yaakov was out of the house so often with the flocks that he didn't see Rachel so often.