Ben Adam LeChaveiro – Adoption and the family unit – Part 2
Bein Adam LeChaveiro – Adoption and the family unit – Part 2
Rabbanit Dr. Adina Sternberg
As we discussed previously, adoption has an inherent duality. On one hand, the Torah obligations to provide for one’s children and honor and revere one’s parents do not apply unless there is a biological parent-child relationship. Instead, the relationship and corresponding responsibilities are based on kindness (chessed) and gratitude for this kindness.
On the other hand, our tradition recognizes that raising and caring for a child creates a parent-child relationship and “scripture considers it as if they had given birth to them.” In many ways, parenthood is parenthood, and relationships between adoptive family members are indistinguishable from those of biological family.
Previously, we explored the impact of the lack of a biological parent-child relationship on the halakhic obligations parents and children have to provide one another with physical care and support. Yet the lack of a biological relationship has other halakhic implications as well, particularly when it comes to the prohibitions of yikhud (being alone with the opposite sex) and negiya (physical touch expressing affection). To understand the practical halakhic issues, we must first understand the prohibitions.
Preventing transgressions
The majority of the Torah’s list of arayot (people who are prohibited from intercourse with one another) deals with relationships between family members.[1] The basic prohibitions proscribe intercourse, but the Torah phrases it as a prohibition to “approach to uncover nakedness,” which the Sages understood to mean there is an additional obligation to distance oneself from even approaching such forbidden intercourse. Since this prohibition is derived from the Torah verse, there’s some dispute as to whether this safeguard is biblical or rabbinic.[2]
The Torah’s list includes vastly different types of relationships. The relationship between a man and his mother is not comparable to his relationship with a woman married to another man. The relationship between a man and his menstruating wife is not comparable to the relationship between a man and his wife’s sister, or between two men. While these are all forbidden sexual relationships, it doesn’t make sense to apply the same system of distancing to all of them.
The Sages discuss two types of prohibitions designed to prevent forbidden sexual relationships: limits on expressing physical affection, such as hugging and kissing, also known as negiya (lit. touching) and prohibitions against physical seclusion, also known as yikhud. If the prohibitions of yikhud and negiya apply to all arayot then mothers wouldn’t be allowed to be alone with their sons and fathers would not be permitted to hug their daughters.
Therefore, the Sages differentiated between types of arayot. Using a verse that alludes to a situation where a son is alone with his mother, the Sages teach that a mother and son are permitted to be alone together, but yikhud (seclusion) between other arayot is prohibited.[3] In other words, the Sages derived the prohibition of yikhud from a case where they understood the Torah as permitted yikhud.
Risk assessment
The Sages understood that familial relationships were not all the same. They only imposed the laws of distancing (yikhud and negiya) on relationships they deemed had a greater likelihood of becoming sexual. These prohibitions do not apply to relationships where arayot is less of a concern, specifically those relationships that are inherently close and physically affectionate. In these cases the relationship should naturally involve the closeness of yikhud, hugging, and kissing.
In addition to preventing transgressions of arayot, the Sages found it necessary to prohibit yikhud between a man and an unmarried woman, even when they are not arayot. This prohibition was enacted after King David’s son Amnon raped Tamar, in an attempt to prevent similar acts of sexual assault and abuse.[4]
These differentiations are applied to all types of arayot. Some relationships were deemed higher risk (such as adultery with a married woman), some were lower risk, and others posed a different type of risk such as sexual assault.
Thus we find in the Mishnah: “Rabbi Yehudah says: An unmarried man should not tend livestock, and two unmarried men should not sleep under the same cloak, but the Sages permit it.”[5] Rabbi Yehudah concluded that the laws of distancing applied to the prohibitions against bestiality and homosexual intercourse; the Sages disagreed, as explained in the Gemara: “They said to Rabbi Yehudah: Jews are not suspected of homosexual relations or bestiality!”[6]
The gemara also debates whether the prohibition of yikhud should apply equally to all forbidden relations, regardless of context.[7] Some opinions maintained yikhud between arayot is not automatically prohibited, raising the possibility that negiya is also permitted in these cases. These discussions suggest that there is an element of risk assessment in applying the prohibition of yikhud. Consequently, the sources distinguish between types of yikhud: one woman with two men, one man with two women, or one man and one woman when their spouse is in the city and may walk in at any moment.[8]
Biological relationships vs. familial bonds
When it comes to familial (biological) relationships, Rabbinic sources contain somewhat contradictory messages; the difficulties are compounded in the case of non-biological family members. The Sages taught: “A son may be in seclusion with his mother, but it is forbidden to be in seclusion with any of the forbidden relationships in the Torah.”[9] Later they also established: “Rav Yehudah said in the name of Rav Asi: A person may be in seclusion with his sister, and live with his mother and daughter.”[10]
The gemara also relates that the Sages imprisoned the yetzer (urge) for forbidden relationships, but then realized all intercourse and procreation would cease without it. Before they released the yetzer they successfully petitioned: “that a person’s desire should not be aroused by his relatives.”[11] This aggada explains why seclusion and affectionate hugging and kissing are permitted within the family framework.[12]
An intrinsic part of the familial bond, particularly that of the nuclear family, is sharing a home and exchanging expressions of affection, including physical affection. According to Rashi, these acts are permitted because the Sages successfully curtailed the yetzer for arayot within the family. Other Rishonim explain that these acts are permissible because they are intrinsically part of the nature of family relationships.[13]
This doesn’t erase all cause for concern; we understand the world is not immune from such evils. As we’ve seen, the laws of yikhud are also designed to prevent opportunities for sexual abuse, which exists in families as well.
The issues grow more complex when the nuclear family includes people who are not biologically related, such as adopted children. The Gemara discusses whether a brother may marry his step-sister:
“Rabbi Yitzkhak said in the name of Rabbi Yokhanan in the name of Rabbi Eliezer ben Yaakov: If a step-daughter grew up among the brothers, it is forbidden for her to marry the brothers, because it appears like she is their sister. However, this is not so, as the matter (that she is not biologically related) is public knowledge.”[14]
This source makes it seem as though the relationship between non-biological siblings that grow up together is indistinguishable from that of biological siblings, even if it’s well-known that they’re not biologically related.
Rabbi Moshe Feinstein and Rabbi Eliezer Waldenberg (Tzitz Eliezer) cite this source to illustrate how adopted children become part of the nuclear family and the siblings interact as siblings do.[15] Yet there is no explicit permission for yikhud between these family members. The aggada indicated that there is less concern for arayot among family members, but this doesn’t necessarily include non-biological nuclear family members, and it’s unclear whether yikhud and negiya between adoptive parents and children is permitted.
Indeed, other halakhic authorities argue that the aggada only applies to biological family relationships. It is the biological relationship that defines children as children and creates immunity from the evil inclination. According to this ruling, there is no dispensation for adoption, and once an adopted child reaches the age where yikhud and negiya are prohibited, these laws also apply to their adoptive parents. This makes it almost impossible to adopt a child and maintain a natural familial relationship.[16]
Those who permit such interactions note that this is normative behavior – people adopt children and they become part of the family.[17] This relationship is a tremendous act of chessed for the children and a source of comfort to some parents who wish to grow their family. As happens within biological families, the bond that develops between adoptive family members – the parent-child and sibling relationships – offers a natural protection against the yetzer.
Therefore, although there may be concerns, the value of adopting children into the family outweighs them. The concerns may also be mitigated when the nuclear adoptive family is surrounded by other supportive family members who can keep an eye out to ensure that the relationships are healthy.
There is greater cause for concern when the child is adopted at an older age and the natural bonds don’t necessarily have the time to develop, or when the family is somewhat isolated and doesn’t have a support system that will notice if there are problems. Indeed, the older the age at adoption, and the more sparse the surrounding family system, the more room there is for concern. Unfortunately, we are all too aware of cases of abuse, in biological and non-biological families.
In summary, some halakhic authorities emphasize the familial bond created by adoption, which is naturally expressed by sharing a home and physical affection. The welfare of the child and the family in general, as well as the bonds that are forged between family members, regardless of biology, provide ample reason to be lenient with the laws of yikhud and negiya. Yet another halakhic approach is that leniencies only apply to biological family members; without this connection the laws of distancing that prevent against sexual transgressions and abuses are still required.[18]
[1] Vayikra 18:20. The list also includes prohibitions against a man having intercourse with a woman married to another man, with another man, or a menstruating woman,
[2] See Mishneh Torah, Hilkhot Issurei Bi’ah 22:1 and Sefer Mitzvot Gadol, Lo Ta’aseh 126
[3] Devarim 13:7; B. Avoda Zara 36b
[4] B. Sanhedrin 21a-b.
[5] Mishnah Kiddushin 4:14
[6] B. Kiddushin 82a
[7] B. Kiddushin 81b
[8] B. Kiddushin 80b. See in detail in Shulkhan Arukh Even HaEzer 22. Following this, they permitted seclusion with adoptees when there is a family framework that monitors and checks.
[9] B. Kiddushin 80b.
[10] B. Kiddushin 81b
[11] B. Sanhedrin 64a
[12] Regarding hugging and kissing within the family framework, see Mishneh Torah, Prohibited Sexual Relations 21:6, and what Igrot Moshe, Even HaEzer, Part 4, Section 64:4 concluded from his words.
[13] See Meiri there, Levush Even HaEzer 22:1.
[14] B. Sotah 43b
[15] Responsa Tzitz Eliezer Part 6 Section 40 – Treatise on Laws of Seclusion Chapter 21, Igrot Moshe Even HaEzer, Part 4, Section 64:4. See also Responsa Aseh Lekha Rav Part 3 Section 39. From their words it appears that the problem exists, but they suggest solutions and explanations for why people act this way, certainly in light of the benefit of adoption.
[16] See for example: Minhat Yitzkhak 9:140; Zikhron Akedat Yitzkhak; Responsa Shevet HaLevi 6:196 and others.
[17] See above, note 13.
[18] For further study see: Rabbi Momi Feluakh, “Laws of Seclusion with Adopted Children, a Halakhic and Philosophical Controversy Following the Response of the Tzitz Eliezer,” Petikhta 11 (Adar 5767).
