Shemot – Adoption and identity

 

“And his wife, HaYehudiya bore Yered, the father of Gedor, and Chever, the father of Sokho, and Yekutiel, the father of Zanoch, and these are the sons of Bitya the daughter of Pharaoh, whom Mered took [as a wife].”^[1] This verse from Divrei HaYamim is the final in a list of the children of Calev ben Yefuneh, and curiously mentions his wife Bitya, daughter of Pharaoh.. The midrash relates that this is the same daughter of Pharaoh that saved Moshe from the Nile and raised him, expounding that she is called HaYehudiya because she renounced her father’s idolatrous ways. Subsequently, the listed children’s names are explained as nicknames for Moshe, based on some of his greatest acts. The midrash questions how the verse could claim she “bore” Moshe, and answers, “The text describes anyone who raises an orphan boy or girl in their home as if they gave birth to the child.”^[2]

Indeed, after Moshe is weaned, we read, “The boy grew up and she (Yocheved) brought him to Pharaoh’s daughter, and he was a son to her, and she names him Moshe, and said, ‘for I drew him (mishitihu) from the water.’”^[3] Moshe does not fit the classic definition of an orphan as both his parents are alive. Nevertheless, he is a child his parents had to give up and is raised by a woman who is not his biological mother. He becomes her son.

Consequently, his cultural identity is complicated. In the following verse Moshe grows (again) and goes out “to his brothers” and sees an Egyptian hitting a Hebrew, “one of his brothers.” The dual use of “brothers” hints at Moshe’s dual identity – are his brothers the Egyptians who raised him or the Hebrews who bore him?^[4] Yitro’s daughters describe him as “an Egyptian man.” But ultimately, Moshe is a Hebrew. The beginning of next week’s parsha breaks the Torah narrative with a genealogical list that focuses on Moshe’s family. From this point on, when his family is mentioned, it is always his biological family.

Moshe’s adoptive mother is not directly mentioned after she names him. But the midrash fills in the blanks. Instead of letting us believe that Moshe’s character was completely the product of the short time he spent with his biological parents, Yocheved and Amram, it tells us that Pharaoh’s daughter was a righteous woman who renounced her father’s idolatry, accepted the true God, and married the righteous Calev. The Oral Torah fills in some of the missing information about Moshe’s adoptive mother and gives her pride of place.

There is no halakhic mechanism to formalize an adoption and an adopted child does not have the same halakhic relationship with their adoptive parent as a biological child does with theirs. Our sages have many praiseworthy things to say about one who raises another’s biological child in their home, and yet the halakhic issues it brings up can be so difficult to maneuver they can leave some unwilling to be adoptive parents. Let’s explore a few of these issues.

The halakhic identity of an adopted child

When the biological mother is Jewish

One’s halakhic familial identity is solely based on their biological parentage. In an adoption, biological parents relinquish their legal ties to the child; but, if they are Jewish, their halakhic familial ties remain. Judaism from the mother, tribal affiliation (or status of Cohen, Levi, or Yisrael) from the father. If the child is Jewish, these parents also determine whom the child may marry. If the biological parents are Jewish and their identity is known it is usually easy enough for the grown child to make sure they do not marry someone who is arayot – prohibited union, generally because of kinship.

When the birth mother is Jewish and one or both the biological parents’ identities are unknown, there are several halakhic complicationsit . A Jewish person of unknown parentage (shtuki or asufi) is generally not allowed to marry due to concerns that their intended spouse may be arayot, or they may be a mamzer, the child of arayot, and prohibited from marrying into the Jewish community.^[5] Even before genetic testing rabbinic authorities would work to find ways to permit these people to marry, but it has and is complicated. Therefore, halakhic authorities stress that when adopting a Jewish child, it is essential to find out, record, and tell the child as much as possible about their biological parentage.^[6]

When the biological mother is not Jewish

Until recently, there was not much of an option for Jewish people to adopt non-Jewish children. When Jewish people adopt a child whose biological mother is not Jewish there is a unique conversion process.^[7] Since a minor isn’t considered capable of making an informed decision about conversion, the parents or the beit din can accept conversion on their behalf based on the halakhic concept of zakhin l’adam shelo b’fanav – one can accept a good thing on another’s behalf.^[8]

Nevertheless, since a convert must accept the yoke of mitzvot, if they reject mitzvot or object to their conversion once they are halakhically capable of making this decision (around the age of bar/bat mitzvah) the conversion is invalid. If they are aware of their conversion and do not protest once they reach this age then the conversion stands, even if they later change their mind. Therefore, several modern poskim maintain that it is vital to give the child this opportunity when they reach the age of mitzvot.^[9] This is one of several reasons prominent poskim such as Rav Moshe Feinstein strongly advise informing children of their adoption from a young age.^[10]

As converts are considered “like newborns,” and are not considered halakhically related to their biological relatives, an adopted child who converts does not have the same issues with marriage that an adopted child of a Jewish woman does. The main issue for any future marriage is that a woman convert may not marry a Cohen.

The name

Halakhic documents, such as a ketuba or get, and Jewish rituals and prayers use Jewish names – _____ the son/daughter of ____. What parents’ names should be used for a child who is adopted?

As we have seen, an adopted child born to a Jewish mother is still considered halakhically related to their Jewish relatives, and it is important that they and others know who these relatives are. While this is not the case if the child has converted, there are still halakhic reasons the child’s status as a convert should be known. Converts are traditionally referred to by their name and then the son or daughter of Avraham Avinu and/or Sarah Imeinu.

Yet the midrash above indicates that children are known by their adoptive parents’ names, and there are several cases in rabbinic literature where no differentiation is made between biological and adoptive children in this regard.^[11] Nevertheless, Rav Yitzchok Yaakov Weiss rules that this is completely prohibited due to the serious halakhic issues it raises.^[12] Yet other poskim allow for the adoptive parents’ names to be used in ritual. Chatam Sofer allows for the adoptive father’s name to be used when calling a man up to the Torah.^[13] Rav Moshe Feinstein discusses the prayer said when naming the child and rules that the child can be named as the son/daughter of the adoptive father, since his intention is to be his father.^[14]

Legal documents are more complicated. Although there are some poskim who rule that if a Get lists the name of the adoptive father the Get is valid b’dieved, halakhic documents should include the biological father’s name when known.^[15] Since the identity of a person should be clear, and a person who was adopted is generally known in the community as the child of their adoptive parents, there is a custom to include “who was raised by so and so” on such documents after the biological father’s name.^[16]

Yichud and physical affection

As we have seen, there is no halakhic change in the relationship when a parent adopts a child. This has serious repercussions for the prohibitions of yichud (seclusion with a person of the opposite gender) and negiya (affectionate touch), prohibitions which do not apply to biological children. The majority of poskim do not permit yichud or negiya between parents and their adopted children once the child reaches a certain age (although some poskim raise the age a bit above the general halakhic convention).^[17] Though there are fairly accessible ways to prevent yichud from being an issue, negiya presents a greater problem.

Tzitz Eliezer struggled to find halakhic sources to justify the many parents who are not strict to observe yichud and negiya with their adopted children; he was sympathetic, but indicates it is preferable to observe the formal prohibitions.^[18] Based on a gemara that speaks of a stepdaughter who was unaware she was not a biological daughter, Rav Moshe Feinstein says that it is possible that children who were adopted at a young age were not traditionally treated differently than biological children. He also allows parents who adopt a child from a young age to show physical affection since it is not at all sexual, referencing the Shach’s explanation that only sexual touch is prohibited.^[19] He also allows for an adoptive father to be alone with his daughter as long as he is still married to the mother, since he would not dare do anything inappropriate.^[20]

The child->parent relationship

Since an adopted child is still halakhically related to their Jewish birth parents they are obligated in kibbud horim (honoring their parents) and to mourn them when they pass. Obviously this is not always possible. Poskim point out that these obligations exist regardless of a child’s relationship with their biological parents; a child owes them their existence, and that is reason enough to honor them.

Even though the mitzvah of kibbud horim does not formally apply to adoptive parents, several poskim point out that an adopted child is obligated to honor them as much, if not more, as hakarat hatov (gratefulness) of their chessed (kindness).^[21] A child is also not halakhically obligated to mourn their adoptive parents but may choose to do so. Some say that in this case they should not refrain from learning Torah during the shiva, since they are not obligated to mourn and are obligated to learn. Others note that the only halakhic difference is that, if there is another mourner saying kaddish for their parent, the biological mourner takes precedence.^[22]

Dual identity

As we have seen, legal adoption is not halakhic adoption, and this has serious implications. Even though adopting a child is seen as an extraordinary act of chessed, the halakhic difficulties involved prevent many people from seriously pursuing it as an option. Yet, the narrative portions of the Written and Oral Torah that mention raising another’s child are overwhelmingly positive.

Based on the midrash that “the text describes anyone who raises an orphan boy or girl in their home k’ilu (as if) they gave birth to the child,” Rav Shlomo Kluger asks if someone without biological children can fulfill the mitzvah of peru u’revu – be fruitful and multiply – through adoption.^[23]  He explains that the answer depends on the resolution of a dispute between Drisha and Taz – who disagree about what our sages mean when they say “k’ilu,” “it’s as if.”^[24] According to Drisha “k’ilu” is not meant to fully equate between the two, it’s what we would call a metaphor. Therefore, adoption does not fulfill peru u’revu, but ”it’s as if ” they fulfilled it. Taz, on the other hand, rules that “k’ilu” equates the two, which indicates that adoptive children fulfill peru u’revu. Ultimately, he does not give a conclusive ruling, but his question is a strong one, which again shows the importance of the bond between parents and adopted children.

In a way, it is strange that there is no halakhic mechanism for adoption. From a secular perspective it seems abhorrent to think of adopted children as any different than biological children. The halakhic issues we explored dissuade some people from adopting and seem to be a constant reminder of the child’s adoption. Much of that is on purpose, to prevent some of the halakhic issues that can come up when the child’s halakhic identity is unclear. Similarly, poskim are concerned that the child and community should be aware of the child’s biological identity and the truth should not be distorted or hidden. Halakhah does not allow us to erase part of an identity.

Perhaps an adopted child’s halakhic identity is complicated because their actual identity is complicated. Although some perceive it to be so, halakhah does not treat adoption as a source of shame, which would perhaps be a reason to minimize reference to the child’s biological parentage. Halakhic authorities who push to identify adopted children by the names of the parents that raised them don’t do so to spare feelings, they do so because they understand that in every way other than biology, adoptive parents are the child’s parents and an integral part of their identity. Just like Moshe, a child will always be a mix of all the people that brought them into this world and raised and cared for them.

[1] Divrei HaYamim I 4:18. The following midrash may seem curious, but it is by no means unique. The beginning of Divrei HaYamim has many genealogical lists, and there are several midrashim that expound on them and bring traditions that seem, at first glance, far removed from the plain meaning of the text.

[2] TB Megilla 13a

[3] Shemot 2:10

[4] Shemot 2:11 see Ramban, Malbim, Shadal, Birkat Asher. Rabbi Avraham ben Ezra explains that the first “his brothers” refers to the Egyptians.

[5] Shulchan Aruch Even HaEzer 4:35-36 and commentaries. It is assumed that such children are more likely to be mamzerim and that is why they are not raised by the birth parents, or the mother is unwilling to divulge who the father is.

[6] Igros Moshe YD I 161-162,

[7] Ibid. Rav Moshe Feinstein addresses the halakhic considerations. A male child undergoes a Brit Mila as a convert, with unique blessings for “circumcising converts” and requires a Beit Din of 3 kosher men to accept his conversion. The conversion is still not complete until the child, boy or girl, is immersed in the mikvah (tevila) in the presence of a Beit Din, which Rav Moshe Feinstein says should wait until the child is around 2 years of age. Since converts traditionally take their Jewish name after their tevila, he advises the parents should refrain from the official prayer when naming until after the tevila.

[8] TB Kritot 9a, Tosafot Sanhedrin 68b ‘HaKatan’

[9] Rav Asher Weiss, Kovetz b’Inyanei Geirut Siman 8, Igros Moshe YD I 162. Shevet HaLevi (5:150) says this isn’t necessary and it is sufficient if the child grows up and observes mitzvot to assume they will not reject them. Part of this discussion is related to an earlier dispute as to the status of the conversion of a minor and how the mechanism works.

[10] Ibid. See Responsa Teshuvot v’Hanhagot III 316, as Rav Moshe Sternbuch does not think the child needs to know about their adoption so they have the opportunity to reject it, but rather because there are other halakhic issues that they need to be conscious of, as we will see below.

Some are wary of adopting the biological children of a non-Jewish woman due to concern the child will reject their conversion and then the parent would be faced with the issue of raising a non-Jewish child in their home. Rav Moshe Feinstein is also concerned with the idea of adoptive parents converting a child without their consent, as this is not a Jewish value. Igrot Moshe Y.D. 1:161-162; Kitvei Harav Henkin 2:86

[11] Abaye, adopted by his uncle Rabbi Nachman is called Nachmani (of Nachman) in several sources such as Shabbat 33a. Ramban Bamidbar 26:46, Rema Choshen Mishpat 42:15

[12] Responsa Minchat Yitzchak 4:49

[13] Even Ha’Ezer 76. Nishmat Avraham (Choshen Mishpat 42) brings an oral opinion of Rav Shlomo Zalman Aurebach who allows this when the biological father’s name is unknown.

[14] Ibid. He explains that this would not have been done in the past since people might mistakenly think they were related, and if the child grew up to marry one of the blood relatives of the adoptive parents, people would claim it was not a valid marriage. He says this is not a concern because such things do not happen in our times.

[15] Meaning once the Get process is completed this does not invalidate it, nevertheless, it should not be written that way. Even Meir Gittin pg. 8-10, Shut Mayim Chaim 62, Amira Ne’imah 124.

Nowadays, some couples also include the mother’s name on the ketuba. There is room to play with this.

[16] Shevet HaLevi X 292, Igrot Moshe EH I 99.

[17] Otzar HaPoskim IX pg. 30, Shevet HaLevi VI 196, V 205:8, Minchat Yitzchak XI 140, Nishmat Avraham (Choshen Mishpat 42) brings an oral opinion of Rav Shlomo Zalman Aurebach, Chazon Ish OC 16:8 – who says the child’s physical maturity is the determining factor in this case, not age.

[18] VI 40:21, VII 44, 45, brought by Yalkut Yosef, Kitzur Shulchan Aruch p. 975; Asei Lecha Rav 3:39

[19] Igrot Moshe Even HaEzer IV 64:2, based on Shach YD 157:10 and a gemara in TB Sota 43

[20] In this day and climate, would one be able to extend this even if they are not married?

[21] Responsa Chatam Sofer OC 144, Nishmat Avraham ibid

[22] Chatam Sofer, Nishmat Avraham ibid.

[23] Chochmat Shlomo Even HaEzer 1:1

[24] Yoreh De’ah 242 – Prisha and Taz