by R. Gidon Rothstein
3 Shevat: Tzitz Eliezer on Adopting a Jewish Girl and on Saying Kiddush By Heart
When I was growing up, word on the Jewish street was that we adopted only non-Jewish babies, to avoid the halachic problems that can come with a child of unknown lineage. On 3 Shevat 5722 (1962), Tzitz Eliezer 7;40 was asked about an adoption that raises this issue and more.
The question starts by portraying the man who has adopted a girl. He was a professor of psychology in the University of Leiden, a descendant of R. Ya’akov Ettlinger [the responsum says neched, which is usually grandson, although the timing seems fishy to me, since R. Ettlinger passed away in 1871. It’s possible he had a grandson adopting a baby in 1962, but great- or great-great grandson seems more likely].
He and his wife were childless, observant Jews. On a trip to Morocco, a family friend had visited a Catholic orphanage in Casblanca, run by a French Catholic doctor. He had a Jewish girl in his care. Her single mother had conceived while having an affair with a married man who was one of the rich Jews of Casablanca.
The father was embarrassed by the situation, and had given the baby to this hospital, paid all her expenses, and made the condition that she be adopted only by a traditional Jewish family. When the adoptive mother (the professor’s wife) picked up the baby, the administrator of the orphanage showed her the notebook in which he had recorded the stipulation that this girl be adopted only by Jewish parents.
They’ve had her with them in the Netherlands for five years, but recently someone in town had commented that this girl would have problems when she got older, both as to whether she was Jewish and whether she could marry a kohen (because of suspicions about her lineage).
Expanding Our Trust of Non-Jewish Sources
Tzitz Eliezer disagrees, because he sees enough room to trust the hospital administrator’s presentation of her parentage. He first thinks that the administrator can be considered mesi’ach le-fi tumo, revealing information in the course of conversation without realizing its significance. In many halachot, that’s the standard to allow us to believe a non-Jew’s representation of events.
More significantly, this is a milta de-avida le-igluya, a matter the truth of which is bound to come to light (which halachah assumes makes it less likely that someone would lie). Helping that is that the hospital has records (which the mother saw), and Penei Moshe understood the Yerushalmi to hold that supporting evidence lets us believe even non-Jews who are not mesi’ach le-fi tumam, who are not revealing the information by the by.
In addition, we have an halachic principle that uman lo mera umnutei, a professional will not risk or destroy his reputation by mishandling his job. This orphanage administrator would not want to be caught in a lie about parents, because it would cast him in a negative professional light. According to Rabmban and Tosafot, this factor alone lets us believe him.
As a final point, Tzitz Eliezer argues that administration of an orphanage, a public body, has a status akin to non-Jewish courts of law. Courts have long been accepted as truthful by Jewish law, especially for agunot, women whose husbands have disappeared and are presumed dead.
Some responsa do not trust non-Jews’ assertions that a baby is Jewish, but Tzitz Eliezer points out that that was where the non-Jew expected a reward for “returning” a Jewish baby. In this case, the costs of this girl’s upkeep were already paid by the father, so they were getting less money by saying she was Jewish. Besides, it was a missionary hospital, making it unlikely they would give up a child who had any possibility of being Christian.
Marrying a Kohen
Tzitz Eliezer was so comfortable with the information about her parents that he held she could even marry a kohen. The father’s having paid her hospital expenses, the biological mother’s having named that man as the father at the time of the birth (Aruch haShulchan— whom Tzitz Eliezer refers to as acharon haposkim, last of the great decisors of Jewish law—held that we believe women about who impregnated them until they give birth, even if the majority of men who might have impregnated them would render the child problematic in some way) suffice to establish them as the girl’s parents for all our halachic concerns.
That’s especially true since some authorities allowed her to marry a kohen even if her father was non-Jewish (a converted girl may not marry a kohen; a child of one non-Jewish parent might have been thought of as a partial convert). This creates a sefek sefekah as to whether this girl has a problem, since the father who paid her bills might be her father and, even if he isn’t, halachah might follow those authorities who held she can marry a kohen as long as her mother was Jewish.
One more piece of support was Maharashdam’s note that kohanim today are, almost all of them, kohanei chazakah, who have that status by virtue of their family tradition and because we have no reason to doubt them (but not actual proof they are kohanim). That would mean that even if she were prohibited to marry a kohen, this particular man might not be a kohen at all.
We don’t usually rely on that reasoning (we wouldn’t, for example, allow a kohen to marry a divorcee on the basis of the fact that maybe he’s not a kohen), but it adds to our reasons to think she can marry a kohen if that’s whom she chooses.
Tzitz Eliezer closes with words of encouragement, that this professor and his wife can and should feel good about raising to observance and Jewish tradition a little Jewish girl who would otherwise have been abandoned. They do, of course, have to keep track of the biological mother and father’s identity so that, when the time comes for her to marry, she not unwittingly marry the kind of relative halachah prohibits.
Other than that, they should live well and happily, with no worries about any issues with their daughter’s Jewish status.
Saying Kiddush By Heart
That was short enough that we have room to look even more briefly at Shu”t Tzitz Eliezer 17;63, dated 3 Shevat 5747 (1987). The questioner referenced Chiddushei Halachot ve-Haggadah shel Pesach, by R. Shmuel Avigdor, which called for teaching people to recite Friday night kiddush along with the person saying it, to avoid saying verses of Scripture by heart.
[That rule is devarim she-bichtav, i atah rashai le-omran be-al peh, we may not recite by heart that which was given in writing. Part of Friday night Kiddush is the paragraph of va-yechulu, Hashem completed Heaven and Earth; halachah counts listening to someone else’s recitation as if one said it oneself, shome’a ke-oneh. If so, the listeners are “saying” va-yechulu by heart. Of course, so is the one saying Kiddush, which we’ll get to].
R. Avigdor recognized that this rule doesn’t apply to parts of Scripture that everyone knows very well, such as Shema, but argued that that exception was limited to a personal observance (such as for the person reciting Kiddush), not to help others fulfill their obligation.
Tzitz Eliezer’s correspondent offered suggestions why the common custom could be followed: some authorities allow listening to verses which are well known to the listener; perhaps the rule about reciting verses without reading from a text was only for public recitations; since the person reciting Kiddush knows the verse well enough that he is allowed to say it by heart for himself, others can piggyback on that, listen to an oral recitation without being seen as if they are wrongly reciting verses by heart themselves.
Still, he wants to know if there’s value in adopting R. Avigdor’s view as a stringency [while some reject the value of stringencies, there is a strong halachic tradition of situations where there’s enough room to allow a lenient practice, but also enough room to value adopting the stringent practice where possible).
Tzitz Eliezer’s Answer
Tzitz Eliezer applauds the suggestions, but notes (as had the questioner) that each claim is open to dispute. To accept any of those answers, we’d be ruling according to some authorities and not others. He instead suggests a different approach that he thinks more universally accepted, that the principle of not reciting Scripture by heart never applied to vayechulu.
That recitation on Friday night is meant as a sort of testimony that Hashem created the earth in six days and then rested. [The idea of Vayechulu as testimony is why people say at least that part of Friday night Kiddush standing. It’s also why some people try to say Vayechulu in shul with at least one other person; testimony requires two people]. Since testimony must be completely oral, when Vayechulu was instituted, it inherently had to be oral.
It’s not obvious that all testimony has to be oral (one may submit written testimony to a court, as long as the person accompanies it with an oral declaration that he stands by that testimony), but Tzitz Eliezer’s fundamental point is that in order to make this more like a witness’ testimony, Chazal instituted it to be oral.
Chatam Sofer had said something similar about Tehillim. Since they were instituted to be said orally, Chatam Sofer held that one may recite any or all by heart (Psalms, songs of praise, thanks, or supplication, come from an outflow of emotion to Hashem, and thus are oral). Chatam Sofer was certain that Levi’im did not have Psalters in front of them when they sang in the Temple, because they didn’t need them.
That supports Tzitz Eliezer’s view that however we understand the rule of not reciting the written by heart, Chazal had the power to institute such a recitation. For Chatam Sofer, it was all of Tehillim, for Tzitz Eliezer, it was Vayechulu on Friday night.