Time to Face and Solve the Issue of the Mamzer
May 23, 2014
By Rivkah Lubitch
I think it’s time to deal with the issue of mamzerut. I was exposed to the subject as a result of my work as a rabbinic advocate in Israel, working with women who were denied divorces and agunot, women chained to dead marriages.
Through this work, I became familiar with a host of issues surrounding mamzerut, defined as one who is born as a result of sexual incest relations prohibited by the Torah or of relations between a married Jewish woman and a Jewish man (married or not) who is not her husband.
Many women who had been separated from their husbands and some who waited years for divorces became pregnant by other men, giving rise to these situations:
- women who had abortions rather than give birth to a child who would be labeled a mamzer
- rabbis who suggested women abort rather than give birth to a mamzer
- women who were sorry they had not aborted children now labeled as mamzers
A woman once said to me, "I waited 25 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 now be 21 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.
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 the offspring are forever considered mamzerim according to Jewish law, even after 10 generations. While the sages gave theoretical priority to a mamzer who was learned in Torah over a high priest who was an ignoramus, the conventional attitude to mamzers is closer to what was expressed by a rabbi who asked me: "Would you let your child play with a mamzer child? Would you let your child sit in school next to a mamzer child?"
The Blacklist
Since 1979, the state of Israel has conducted a digitalized data bank of people who are forbidden to marry by Jewish law. Since Israel has no civil marriage, those on the list are not able to marry at all in Israel. According to the data provided by the rabbinic court to the Center for Women's Justice, in 2009 there were 4,000 names on the list of those whose marriages were forbidden, of whom 100 were in the category of mamzerim. The numbers have been growing higher. Every Jew who registers to marry in Israel has his or her name checked to see if they are on this "black list."
We don't hear much about this because the subject of mamzerut is kept quiet. More than any other group, mamzers live in terrible isolation while struggling all their lives to conceal their problem and somehow to solve it. A mamzer fears that publicizing it would injure not only himself or herself but his family and offspring. But beyond this, a mamzer feels that there is no reason for him or her to contact other mamzers. He is convinced, and perhaps rightly so, that each case needs to be individually solved, and seeking others would not help him. If a problem gets solved – all the more reason to conceal it. On the contrary, a person permitted to join the community will be the last person who wishes to publicize that she was once "suspected" of mamzerut. She will do everything in his or her power to permanently "bury" the story. In fact, one who has been saved from mamzerut, the only person able to tell the story, is the last one likely to tell it.
Halachic Solutions
I would like to suggest here the lines of several general halachic solutions. The first suggestion relates to the possibility of erasing the transmission of mamzerut to the children of mamzers. According to leading halachic decisions, mamzerut is transmitted only when fertilization takes place within the body. In vitro fertilization involves both sperm and egg outside the body. Therefore, mamzerut is not transmitted. I would argue that this approach could even save mamzers themselves from the stigma. Who can know whether they themselves were born through in vitro fertilization? Modern technology can certainly permit us to assert this argument today or in the near future.
The second suggestion relates only to mamzers who were born of married women who became pregnant by another man, and not to those born of incestuous unions. I suggest promoting "conditional," marriages that could be annulled if a mamzer would 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 the court, and the court itself can decide never to declare one a mamzer. This approach can be based on the 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 after a simple calculation: according to the halacha, if one parent is a mamzer, all the children are mamzers and it is passed to all their descendants forever. Without a doubt, throughout the generations, many mamzers have "passed" and assimilated into the general community, which was ignorant of their mamzerut. It is thus possible that the majority of the Jewish people, if not all, are mamzers.
I truly believe that the time has come to work around the issue of mamzerut — saving innocent children from being ostracized and saving the Torah from the hillul hashem (desecration of God's name) of having such an immoral rule.
Rivkah Lubitch is an advocate in the rabbinic courts, a board member at the Center for Women's Justice and a research associate at the Hadassah-Brandeis Institute.
As part of a collaboration between the HBI's Project on Gender, Culture, Religion and the Law and the School of Law at the School of Oriental and African Studies, supported by the Bridging Voices Program of the British Council, we present a series of invited reflections on the intersection of Gender, Religion and Equality in Public Life from activists and scholars around the world. Contributors have been asked to reflect upon the ways in which conflicts over gender, religion and participation impact their work and inform their understanding of events in the news. They are particularly asked to consider how religious norms around gender shape civil policy making, adjudication and women’s capacity to fully participate in public political and ritual life.