Law Vs. Halachah On Child Abandonment

From a recent AP story:

Nebraska lawmakers agree on safe-haven age limit

LINCOLN, Neb. – Stung by the abandonments of children as old as 17 under Nebraska’s brand-new safe-haven law, the governor and lawmakers agreed Monday to narrow the law’s broad wording to protect only the parents of newborns from prosecution.

Forty of the Legislature’s 49 senators would amend the law so it applies only to infants up to 3 days old, legislative Speaker Mike Flood said at a news conference. The age cap would change the Nebraska law from the most lenient to one of the nation’s most restrictive.

At least 18 children, the youngest 22 months and many of them teens, have been abandoned since the law took effect in July. Nebraska’s law doesn’t define the word “child,” so it has been interpreted to let anyone leave child up to age 18 at a state-licensed hospital without fear of prosecution for the abandonment.

Most states let parents and guardians drop off children who are up to a month old at hospitals or other safe institutions. Sixteen states have a 3-day-old age cap such as the one agreed to in Nebraska.

Every state has a safe-haven law, which is meant to save the lives of unwanted infants.

Halachah has virtually the opposite position on abandonment, at least with respect to mothers; a mother can be compelled, in certain cases, to nurse an infant, but she may walk away from older children and demand that the community take responsibility for them:

האשה שנתגרשה אין כופין אותה להניק את בנה, אלא אם רצתה נותן לה שכרה ומניקתו, ואם לא רצתה נותנת לו את בנו והוא מטפל בו. במה דברים אמורים שלא הניקה אותו עד שהכירה, אבל אם הכירה (ואינו רוצה לינק מאחרת) אפילו הוא סומא אין מפרישין אותו מפני סכנת הולד, אלא כופין אותה ומניקתו עד כ”ד חודש: …

[הגה] ויש אומרים הא דגרושה אינה מחוייבת להניק אם אינה מכירה היינו כשמוצא מינקת אחרת ויש לו לשכור, אבל אם אין לו כופה אותה ומניקתו …1

אם לא רצתה האם שיהיו בניה עמה אחר שגמלתן, אחד זכרים ואחד נקבות הרשות בידה ונותנת אותם לאביהם, או משלכת אותם לקהל אם אין להם אב, והם מטפלים בהם אחד זכרים ואחד נקבות:2

The difference between law and Halachah is due to their approaching the question of abandonment from opposite perspectives. In contemporary law, child abandonment is a criminal offense under state laws, and in some cases can even be a felony. In Halachah, on the other hand, there is no basic prohibition against abandonment, and the duties of the parents are defined solely in terms of their specific, mostly financial, obligations to the child. Since the duties of child support are generally only incumbent upon the father, the mother is free to abandon her offspring.

Indeed, the exception that we have seen, that a divorcee can be compelled to nurse her infant if the father is unable to arrange for a wet nurse, is actually challenged by the Helkas MeHokek and the Beis Shmuel on the basis of the general princple that a woman is perfectly entitled to abandon her children:

לא ידעתי טעם לדין זה ובמה נתחייבה היא יותר משאר נשים, ולמה לא יתנו לה בית דין שכר הנקה כשם שעל הבית דין לפרנס הולד אחר שגמלתו:3

The Beis Meir defends the Halachah; while he concedes that there is in principle no legal obligation upon a woman to support her children, he suggests that this is a charity obligation:

לעניות דעתי מתורת צדקה אתינן עלה, כדאיתא ביורה דיעה סימן רנ”ז סעיף ח’, ומיירי בשגם קרובי האב הם עניים. ומה שמבואר סוף סימן זה שיכולה להשליך על הקהל, היינו מסתמא ענייה שאין אמודה לפרנס משלה, אבל עשירה לאו כל כמינה. ולגבי הנקה תמיד עשירה היא …4

Rav Avraham David Wahrmann explains similarly:

צריך לי עיון על תמיהתם [של החלקת מחוקק והבית שמואל] בזה, שהרי כשאין לה שם תינוק אחר להניק בשכר מדוע לא נכוף אותה בזה כיון שהוא גדר זה נהנה וזה לא חסר. ו[ה]גם אם נימא שיהיה לה מנוח יותר על ידי שלא תניק, על כל פנים היא חייבת בזה משום צדקה, דאטו נשי לא בעי חיי, מה שצדקה תציל וכו’, וצדקה היא מצות עשה שלא הזמן גרמא ויש בה גם כן סדר ההדרגה להקדים הקרוב לה, וצריך לי עוד עיון בזה. ועל כל פנים בצד מה יש בזה יישוב טוב:5

So according to both Beis Meir and Rav Wahrmann, although, as we have seen, a woman is not responsible in principle to support her offspring, she is nevertheless obligated to do so by the laws of Zedakkah, insofar as she has the requisite resources (and the paternal relatives do not).

Incidentally, I am rather mystified by Rav Wahrmann’s language6. Is he really unsure whether obligating a womon to care for an infant is לא חסר, and is freedom from such an obligation really only a question of מנוח יותר? Has he ever tried to care for an infant, who generally needs to eat every few hours, for an extended period of time, and does he really consider sleep a mere luxury?

  1. שולחן ערוך אה”ע סימן פ”ב סעיף ה []
  2. שם סעיף ח []
  3. חלקת מחוקק שם ס”ק ו, והביאו הבית שמואל ס”ק ה []
  4. בית מאיר שם סעיף ה, הובא דבריו בפתחי תשובה שם ס”ק ג []
  5. עזר מקודש שם []
  6. His language is, admittedly, notoriously awkward and choppy, so perhaps I’m making more of this than I should. []

The Aspirations of the Wise and Pious FDR

והלום ראיתי בעתונים היומיים, שהביאו בשם החכם האדון הגדול החסיד, רוזוולט, הנשיא של ארצות הברית שבאמריקה, שאמר, שאין די שיחזרו העתים הטובים שלפני המלחמה גרידא, אלא הבריות מצפות שהעתיד שלאחר המלחמה הנוראה הזו, יביא לנו דבר בעל ערך הגדול שבערכין, עכ”ד. ומה נאמר אנן בני ישראל, אחר אלו הקרבנות שהבאנו, הכי נתפייס בעתות שעברו בלבד? ודי למבין.

Which great Hungarian Rav penned the above? Click here for the answer (requires Javascript).

Honor and Anachronism In the Work of Avner Gold

We recently discussed Abravanel’s rather Iberian notion of the paramount importance of honor, even beyond that of life itself:

המות בכבוד טובה מחיי החרפה והבוז

I recently read The Long Road To Freedom, “Avner Gold’s” newly released ninth book in his “beloved series of historical novels”1, and I was pleased to see that he puts this exact sentiment, in nearly the exact words of Abravanel, into the mouths of his two Spanish grandees, the converso Sebastian Dominguez, and his faithful retainer Gonzalo Sanchez. Sanchez has just risked his life to spring his master from the clutches of the Inquisition in a brilliant, daring Scarlet Pimpernel-esque escapade:

“You know, with all your planning and execution, you really risked your life for me today. So many things could have gone wrong, and then we would both have been cooked. You more than me. Why did you do it?”

“That is a strange question for a Spanish gentleman to ask. I am forty-seven years old, and I have been a loyal cavalier to your father ever since I was seventeen years old. My father before me was a loyal cavalier to your grandfather. My life and honor are pledged to your family. Don Pedro [Dominguez, Sebastian’s father] was my lord, my liege, and I would gladly lay down my life to protect any members of his family. And I would be proud to do it. To do anything else would be dishonorable, and it is better to be dead than to live without honor.

“I understand that, Gonzalo. Believe me, I understand the code of honor. I grew up with it, and I feel it in my bones. My father died because of it. We could have fled Spain years ago. We could have been safe, secure and free today in Amsterdam or Constaninople or some other place that welcomes our people. Instead, my father is dead, and my family is uprooted. And why? Because my father’s sense of honor and loyalty to the royal family and to the motherland would not let him abandon his duties. So he paid for his loyalty with his life. But there is a difference between your readiness to die for my father and his readiness to accept death for Spain. My father honored and cherished you in equal measure. So if you would have died for him, you would have felt good about it. As good as anyone can feel about dying. But my father suffered the bitterness of knowing that those to whom he was loyal were the very ones that sent him to his death.”2

[Emphasis added.]

While the mutually understood notion of honor is certainly typical of the period, Gold continues by having Gonzalo express a rather anachronistic, thoroughly modern sensibility of religious tolerance:

“So if you understand all this, Don Sebastian,” he said, “what was your question? How could you ask me why I am doing this for you?”

“It is because we are Jews. Did you know all along that my father was a secret Jew?”

“No, I did not. He never told me.”

“You must have been shocked when you found out.”

“I was. Very.”

“But that didn’t affect your feelings of loyalty?”

“No, Don Sebastian. It did not.”

“Are you a Christian, Gonzalo?”


“Then you didn’t feel a conflict between your loyalty to my father and your loyalty to the Church?”

Gonzalo nodded. “So that was the question.”

“Yes, that was my question.”

“It is a good question.” …

“I consider myself a Christian,” Gonzalo said at last. “I consider myself a very good Christian. I try to live by its highest principles and ideals, many of which are inherited from Judaism. But I do not accept a lot of what the Church does. The Church has become like a tyrannical regime. It wants to control people and to make sure that everyone that lives in its domain is under its power. So the Church behaves like a tyrant. It frightens people into submission by claiming that anyone who does not become a Christian will never have salvation and that his immortal soul is condemned to eternal damnation. And it destroys people who refuse to accept its teaching and its authority.”

“And you don’t agree with that?”

“I believe that the Almighty cherishes good people. I believe he loves people who are kind and generous to others, people who are devoted to their families and their communities, people who are true to their convictions and obligations and to their heritage. I do not believe that their immortal souls of such people are doomed to eternal damnation.” …

Sebastian stepped forward and embraced Gonzalo. “I am honored to know you, my friend,” he said. “The world would be a better place if there were more people like you in it.”3

I cannot imagine that a seventeenth century Spaniard would ever speak like this, and moreover, this seems to be a fudge; does Gold really accept the last paragraph cited above? Does he really believe that “the Almighty cherishes good people”, even if they are profoundly wrong on fundamental articles of faith, and that “he loves people who are kind and generous to others, people who are devoted to their families and their communities, people who are true to their convictions and obligations and to their heritage” even if they, mutatis mutandis, believe in the divinity of Jesus?

In an effort to be fair to Gold, I attempted to ascertain his position on the issues of moral relativism and religious tolerance from the book One People, Two Worlds, on the assumption of the correctness of the common rumor that “Avner Gold” is a pseudonym for Rabbi Yosef Reinman, one of the two correspondents whose correspondence compose4 that volume.

Reinman writes:

Let us talk about truth. Over dinner, you [Ammiel Hirsch] quoted the philosopher Isaiah Berlin as saying that the greatest danger to the world is when people believe that there is only one truth and that they have it, and you applied this concept to Orthodoxy. Berlin made this statement with regard to the proponents of communism and fascism who believed they had discovered a single, overarching truth that justified the sacrifice of individual humans to grand abstractions. He was speaking about the outlook that “you are either with us or against us.” Do you believe that applies to the Orthodox view?

Orthodox Judaism is without question the search for absolute truth. We believe without question that there is an absolute truth, and that it is contained in our holy Torah. Does that make us dangerous? I don’t think so. We have never sought to impose our beliefs on other people. We actually discourage conversion. We believe in the election of the Jewish people to live by a higher standard, to be a “light unto the nations,”, to teach by example.5

Ammiel Hirsch challenges these assertions:

Yosef, you are deluding yourself when you write “We have never sought to impose our beliefs on other people.” I spend a considerable part of my professional life struggling against the ultra-Orthodox attempt to impose their beliefs on other people. In Israel, ultra-Orthodox parties use the force of law to impose their beliefs. The primary reason that they do not behave similarly in the United States is their inaccessibility to the legislative process.

After all, if you believe you possess truth, why should you not feel compelled to impose it on others? Why not bring other people the good news? The American Southern Baptists have used this argument recently to justify their efforts to convert Jews.6

I think that Hirsch clearly has the better of this exchange. It is indubitable that authentic Judaism endorses religious compulsion; after all, we exterminate the Ir Ha’Nidahas, to give just one rather extreme example. Perhaps Reinman was referring exclusively to “other people”, i.e. non-Jews, but even this is not correct; we are commanded to implement genocide against the indigenous peoples of Cana’an, to prevent the contagion of their abominable culture:

רק מערי העמים האלה אשר יקוק אלקיך נתן לך נחלה לא תחיה כל נשמה: כי החרם תחרימם החתי והאמרי הכנעני והפרזי החוי והיבוסי כאשר צוך יקוק אלקיך: למען אשר לא ילמדו אתכם לעשות ככל תועבתם אשר עשו לאלקיכם וחטאתם ליקוק אלקיכם:7

The Torah does not specify here what exactly is so horrific about the pagan culture of the Cana’anites, and it certainly implies that the issue is not religious dogma per se but some sort of intolerable practical behavior. Nevertheless, the Torah’s uncompromising and reiterated demands for the execution of idol worshippers is clearly not in the spirit of Gonzalo’s pluralistic belief that God loves all decent men, regardless of their particular dogmatic views.

A full assessment of the consistency and plausibility of Reinman’s views would require a more thorough reading of his work than I have yet made, so the above remarks should be considered provisional.

Update: The Jewish Press has printed an interview with Reinman, in which he discusses his work as Avner Gold, and his rather voluminous and ambitious intentions with regard to its future.

  1. From the publisher’s description, but it is objectively correct; his books are indeed beloved by many. []
  2. pp. 41 – 42 []
  3. pp. 42- 44 []
  4. I originall wrote “comprise” instead of “compose”, but then I recalled the controversy over the proper usage of the former term. []
  5. p. 5 []
  6. p. 9 []
  7. דברים פרק כ’ פסוקים ט”ז – י”ח []