MAMZER


MAMZER (Heb. מַמְזֵר), usually translated as "bastard."

Definition

"If she cannot contract a legally valid marriage to this man, but can contract a legally valid marriage to others, her offspring [from the former] is a mamzer. Such is the case when a man has sexual relations with any of the ervot ["forbidden"; see *Incest] in the Torah" (Kid. 3:12; cf. Yev. 4:13). Thus, a mamzer is the issue of a couple whose sexual relationship is forbidden according to the Torah and punishable by *karet or death. Because of this a marriage between them is void (Sh. Ar., EH 4:13), and thus, for example, the issue of a union between brother and sister or between a man and a woman validly married to another at the time is a mamzer (see *Adultery; Yev. 45b; Maim., Yad, Issurei Bi'ah 15:1; Tur and Beit Yosef, EH 4; Sh. Ar., EH 4:13). On the other hand, in Jewish law – unlike in other systems of law – the mere fact that a child is born (or conceived) out of lawful wedlock does not make him a mamzer and he is not an illegitimate child, i.e., one whose status or rights are impaired. The parents of the mamzer are indeed unmarried – either in fact or since they are so considered in law because of an absolute legal bar to a marriage between them – but unlike a man and a woman who, from the legal point of view, can marry each other but do not want to, the parents of the mamzer, owing to the said legal bar, cannot marry each other even if they want to. If one parent is non-Jewish this fact alone does not make the child a mamzer (see *Marriage; Yev. 45b; Maim., Yad, Issurei Bi'ah 15:3; Tur, EH 4; Sh. Ar., EH 4:19).

Consequences of the State of Mamzerut

These are twofold and relate to marriage and to personal status.

(1) Marriage. The Bible lays down: "A mamzer shall not enter the congregation of the Lord" (Deut. 23:3), i.e., a marriage between a mamzer (male or female) and a legitimate Jew or Jewess is prohibited. If such a marriage is nevertheless contracted, it is legally valid but must be dissolved by divorce (see *Marriage, Prohibited). A marriage between two mamzerim is permitted (Yev. 45b; Kid. 69a; 74a; Maim., Yad., Issurei Bi'ah 15:33; Sh. Ar., EH 4:24) and so also is a marriage between a mamzer and a proselyte (Yev. 79b; Kid. 67a and Rashi thereto; 72b–73a; Maim., Yad, Issurei Bi'ah 15:7; Sh. Ar., EH 4:22).

(2) Personal status. The offspring of a mamzer (whether male or female) and a legitimate Jew or Jewess are also mamzerim, since "mamzerim… are forbidden and forbidden for all time, whether they are males or females" (Yev. 8:3) and the rule is that in the case of a prohibited union the offspring follows the status of the "defective" parent (Kid. 3:12; see *Yuḥasin). On the other hand, as the offspring of a union between a Jew and a gentile takes the status of the mother, a child born of a mamzer and a gentile mother will be gentile and not a mamzer; thus after proper conversion to Judaism, he will acquire the status of a legitimate proselyte and the fact that his father was a mamzer will be wholly irrelevant (Kid. 67a, Rashi; Maim., Yad, Issurei Bi'ah 15:3; Tur and Beit Yosef, EH 4; Sh. Ar., EH 4:20).

Except with regard to marriage, as stated above, the personal status of a mamzer does not prejudice him in any way. His rights of inheritance are equal to those of any other heir (Yev. 22b; Maim., Yad, Naḥalot 1:7; Sh. Ar., ḤM 276:6). His birth releases his father's wife from the obligation of *levirate marriage and ḥaliẓah. The mamzer is eligible to hold any public office, the highest (i.e., that of a king), for he remains "thy brother" and "from among thy brethren shalt thou set a king over thee" (Deut. 17:15; Tos. to Yev. 45b). Furthermore, according to the Mishnah, "a mamzer who is a scholar [talmid ḥakham] takes precedence over a high priest who is an ignoramus [am ha-areẓ]" (Hor. 3:8).

Asufi ("a Foundling")

Sometimes a doubt may arise whether a child is legitimate or not and therefore he has the status of "doubtful" mamzer. One such case is that of a foundling, i.e., a child found abandoned in a public place when the identity of neither parent is known; in this case it is unknown whether the parents are legitimate or mamzerim (Kid. 4:12; Maim., Issurei Bi'ah 15:13; Tur, EH 4; Sh. Ar., EH 4:31). If such a child is found in or near a place inhabited by both Jews and gentiles, so that it is impossible to know even if he is of wholly Jewish parentage or not, he is considered both a "doubtful" mamzer and a "doubtful" gentile, so that if he later marries a Jewess and then afterward she wants to marry another man, she will require a divorce because of this latter doubt (Ket. 15b; Maim., ibid. 15:25; Tur, EH 4; Sh. Ar., EH 4:33). If, however, such a child is found in or near an exclusively Jewish place, he is assumed to be of wholly Jewish parentage; but as the identity and hence the status of such parents (whether mamzer or legitimate) is unknown, he is considered a "doubtful" mamzer (Kid. 74a; Maim., Issurei Bi'ah 15:21; Sh. Ar., EH 4:31–36). Thus, he cannot marry either a legitimate Jewess (because he may be a mamzer) or a female mamzer (because he may in fact be legitimate). However, the suspicion of mamzerut only attaches to him if the circumstances in which he was found were such as to cast doubt on the status of legitimacy of his parents; for instance if it was clear that they did not care for his survival. If there is any indication at all that he was abandoned out of necessity, such as hunger or in time of war, or if there are some signs of minimal concern for his welfare and future, such as his being circumcised, clothed, or abandoned in a place (like a synagogue) where he is likely to be comparatively safe from danger or any other place where people are more likely to find and take care of him, then it is assumed that his parents are of unimpeachable status and so is he. Therefore no suspicion of mamzerut will be attached to him (Kid. 73b; Maim. Yad, Issurei Bi'ah 15:31; Tur, EH 4; Sh. Ar., EH 4:31).

Shetuki (lit. "Undisclosed")

The other case where the status of "doubtful" mamzer may arise is that of a child known to be born of an unmarried Jewish mother who either refuses to disclose the identity of the father or claims not to know it (Kid. 69a; Maim., Yad, Issurei Bi'ah 15:12). Since the father's status is unknown, the child is likely to be considered a "doubtful" mamzer (Kid. 74a; Maim., ibid.; Arukh ha-Shulḥan, EH 4:47). However, if the majority of the inhabitants of the district and of those who habitually visit there are Jews of unimpeachable status, it will be presumed that the father was also of such unimpeachable status and therefore no suspicion of mamzerut will be cast on the child (Tur, Beit Yosef, Bah EH 6 (at the end); Sh. Ar., EH 6:17–18; Beit Shemu'el 6, n. 31; but cf. Maim., Issurei Bi'ah 18:13–15; Arukh ha-Shulḥan, EH 4:34). The mother can always avert the suspicion of mamzerut being cast on her child by declaring that the father was a legitimate Jew or a gentile. In the latter case the child takes its status from the mother (i.e., he is a Jew; Kid. 74a; Maim., Yad, Issurei Bi'ah 15:12, 14; Sh. Ar., EH 4:26; Arukh ha-Shulḥan, EH 4:30, 31, 56).

Karaites

Halakhic problems concerning a "doubtful" mamzer have arisen in connection with the *Karaites because, while their form of kiddushin (kiddushei-kesef or kiddushei bi'ah) may be valid according to Jewish law (see *Marriage) their method of divorce does not accord with the halakhah, as their get (bill of divorce) is not in the form prescribed by the sages. Accordingly, a Karaite woman divorced by such a get is not properly divorced and remains a married woman (eshet ish) so that any child she bears to another man whom she marries on the strength of such a get is a mamzer. Since it is impossible to determine who, throughout the generations, remarried on the strength of such invalid divorce, Jewish law casts the suspicion of "doubtful" mamzer on all members of that community (Beit Yosef, EH 4 – end; Darkhei Moshe, EH 4, n. 14; Rema, EH 4:37; Turei Zahav, EH 4, n. 24; Ba'er Heitev, EH 4, n. 49). Some posekim, however, did permit marriages between Karaites and Rabbanite Jews on varying halakhic grounds and such marriages were particularly prevalent in the 11th and 12th centuries. Especially noteworthy is the permission to contract such a marriage granted by David b. Solomon ibn Abi Zimra who based his decision on the grounds that the kiddushin of the Karaites are also invalid according to halakhah, as they are deemed to have taken place without witnesses, the witnesses of the kiddushin being disqualified according to halakhah (Resp. Radbaz, nos. 73 and 796). Thus, according to him, no stigma of mamzerut is to be attached to a child of a woman who married, was divorced, and then married another man, all in accordance with Karaite rites only, since – in Jewish law – she is regarded as never having been married at all. On the strength of this argument and for some additional reasons arising out of the specific circumstances of the case, in 1966 a rabbinical court in the State of Israel permitted the marriage of a non-Karaite Jewess to a Karaite man by whom she had become pregnant (see also Oẓar ha-Posekim, EH 4, n. 175).

[Ben-Zion (Benno) Schereschewsky]

Rabbinic Efforts to Avoid Declaring Mamzer Status

The mamzer rule is intended to deter adults from violating the severe prohibitions against proscribed sexual relationships. The result, that the offspring of such illicit behavior bear the punishment of their parents' act, seems to contradict a major principle of Jewish law which punishes only the sinner (see *Punishment). The Midrash expounds on this problem (Lev. R. 32, ed. Margolis, 32:8), in its comments on the verse, "I further observed all the oppression that goes on under the sun: lo, the tears of the oppressed, and there is none to comfort them; their oppressors have power – and there is none to comfort them" (Eccl. 4:1).

The Midrash elucidates the verse as follows: "'I further observed all the oppression' – Hanina, the tailor, relates this verse to mamzerim: 'I further observed all the oppression' – These are the mamzerim. 'Lo, the tears of the oppressed' – [of] their mothers. [Other versions: their fathers.] They transgressed, and we banish these unfortunates? This person's father engaged in illicit sexual relations, but this person – what has he done? Of what relevance is it to him? 'There is none to comfort them,' but 'their oppressors have power' – this is the Great Sanhedrin of Israel that comes upon them with the power of the Torah and banishes them in the name of [the verse], 'no mamzer shall be admitted into the congregation of the Lord' (Deut. 23:3). 'There is none to comfort them' – the Holy One, blessed be He, said: I must comfort them, for in this world there is a defect in them, but in the world to come… [they are] of pure gold."

This Divine comfort in the world to come does nothing to alleviate the mamzer's present condition. Thus, to reduce this injustice, the Sages developed a series of rules and presumptions so that even when there is only a remote possibility that a person is not a mamzer, they could legitimate him and avoid the stigma of mamzerut with its dire implications. Thus, a married woman, even if "it is rumored that she has been unfaithful to her husband, and everyone's tongue is wagging about her – her children are not suspected of being mamzerim." The explanation is the legal presumption that "most of her [the married woman's] acts of intercourse are with her husband" (Sot. 27a; Yad, Issurei Bi'ah 15:20; Sh. Ar, EH 4:15).

The Sages established an additional presumption, that a fetus could spend up to 12 months in the uterus, to enable the attribution of a child's paternity to its mother's husband. Thus, if a wife has cohabited with her husband at any time within the 12-month period prior to her child's birth, paternity is ascribed to him (Yev. 80b; Yad, ibid., 15:19; Sh. Ar., EH 4:14).

Even when the mother explicitly declares that she was impregnated by someone other than her husband, her declaration is inadmissible (Sh. Ar., EH 4:29). Admittedly, in relation to a father's declaration that he is not the father of a child, the rule according to most authorities is that his declaration is valid. This claim is called "yakir" – based on the verb in Deut. 21:17, "He shall acknowledge [yakir] the first-born, the son of the hated, by giving him a double portion," i.e., the father recognizes that son as his firstborn. However, R. Simeon Kayyara of the geonic period in his Halakhot Gedolot limits the father's authority to grant "recognition" to determination of birthright, so that in any other case, a father's testimony rendering his son a mamzer is invalid: "Even if his wife is most licentious, most acts of intercourse are ascribed to the husband" (end of section 29, Hilkhot Arayot).

In addition, the Mishnah cites a tradition that "Eliyahu will not come [in the future] to declare the pure, impure – nor to declare the impure, pure; nor to distance those who are near or to draw near those who were distanced, but only to distance those drawn near by force and to draw near those distanced by force" (Eduyyot 8:7). R. Obadiah of Bertinoro interprets the citation as meaning that Eliyahu will only distance those who are publicly known to be tainted but were forcibly intermingled among the Jewish People, "but where there is a tainted individual in a particular family, but this is not publicly known, owing to the family having intermingled [into the Jewish community], Eliyahu will let it remain so and let the family retain its presumption of legitimacy." This was the basis for the Rema's ruling (Sh. Ar., EH 2:5) that if a person learns that one of the progenitors of a particular family is tainted by mamzerut, he may not reveal this, "but rather he should allow the presumption of their legitimacy to remain intact, for all the families that have become assimilated into Israel are legitimate in the future."

TISSUE TYPING AND THE ESTABLISHMENT OF PATERNITY

The Talmud (BB 58a) records a case where a man learns that nine of his children are mamzerim and only one is his real child. Before his death, the man bequeathed his property to his real child, but he did not know who the real child was. When the case was brought before R. Bena'ah, he ordered a test to determine which son, according to his characteristics, was the legitimate heir. Sefer Ḥasidim (section 232) discusses a method, considered scientific by the standards of the time for determining paternity. Rabbi Samuel Strashun (Haggahot ha-Rashash) comments on the talmudic source that R. Bena'ah refrained from employing the "scientific" test mentioned in Sefer Ḥasidim because by doing so he would have revealed that the other sons were mamzerim.

With the development of scientific means for identifying family relations by genetic testing of tissues, these principles have become more significant. Rabbinical courts have considered the validity of a scientific test that produces results that contradict juridical presumptions of Jewish law, such as the one mentioned above, that "most acts of intercourse are attributed to the husband." Rabbi Shlomo Dikhovsky (File 866/41 PDR 13, 51) rules that one must accept tissue typing intended to establish paternity for purposes of ruling on child support payments (see *Maintenance), but for establishing mamzerut one may disqualify reliance on tissue typing because it is not infallible (p. 60). The Rabbinical Court of Appeals has ruled in a number of cases that even for determining maintenance payments, tissue typing to establish paternity may not be used as an absolute criterion, and there is also a need for supporting evidence.

This question was brought before the Israeli Supreme Court (CA 548/78, Sharon v. Levi, 35 (1) PD 736 per Justice Menahem Elon), that ruled that in Israeli courts tissue typing for establishing paternity should be admitted as evidence. The court emphasized, though, "that tissue-typing would not, in every case, establish paternity." Moreover, in certain instances the court may decide not to make use of this test, when the test is liable to label a minor as "tainted," e.g., when a married woman claims that while she was married she became pregnant by someone other than her husband, and that the person by whom she became pregnant is the father of her child. If true, this statement of the married woman would result in the minor being stigmatized as a mamzer. In this or in similar cases involving the establishment of status, "proof provided by tissue typing is insufficient to establish paternity" (p. 748 of decision). Thus, in such cases, paternity shall be established based on the juridical presumption assumption that "most acts of intercourse are ascribed to the husband." This ruling is based on Jewish law's sensitivity to a person being stigmatized and branded by mamzer status and the halakhic principles of making various legal presumptions to avoid such stigmatization. Further on its ruling, the court cites some of the Jewish law sources cited above upon which it based its ruling.

In another ruling (CA 1354/92, Attorney General v. Anon., PD 48(1) 711, per Justice Menahem Elon), based on these considerations, the court ruled that even when both parents give their consent to tissue typing for establishing the parenthood of a minor, such a test should not be conducted if there is risk involving the minor's best interests, inter alia raising doubts about his legitimacy, and these interests supersede the interest in investigating the truth.

The court added (pp. 739–40) that although the rabbinical courts have no reason to suspect that such testing would determine an individual's status as a mamzer, since only rabbinical courts have the authority to declare someone a mamzer, there are two reasons for discouraging such testing.

First, acceptance of such findings in a civil court might socially brand the minor, sufficient reason for prohibiting the testing. Secondly, there is no certainty that the rabbinical court will not change its stance and decide to recognize such results as sufficient to supersede the juridical presumptions assumptions cited above: "Since no one can assure us that if indeed the test is performed and if it indicates that the mother's husband is not the father of the minor, a rabbinic court would not consider the results and rule accordingly. As we have seen, the halakhah relies on various presumptions assumptions and fictions to preclude the tainting of a child as a mamzer, by reason of his married mother having been impregnated by someone other than her husband. But as we noted, according to halakhah as well, when it is clear that the child cannot be the offspring of the mother's husband, such as a case in which it has been proved that for 12 months there were no relations between the husband and wife, even the halakhah, for lack of alternative, declares the offspring a mamzer. Thus, several rabbinical courts have ruled against relying on tissue typing for proving paternity" (p. 740).

[Menahem Elon (2nd ed.)]

BIBLIOGRAPHY:

ET, 1 (19513), 202; 2 (1949), 71–74; Ha-Ma'or, 12 (1961), issue 9, p. 28 (English numbering of the same: 11 (1961), issue 7); S.M. Pasmaneck, in: HUCA, 37 (1966), 121–45; B. Schereschewsky, Dinei Mishpaḥah (4th ed., 1993), 352–66; M. Elon, Ḥakikah Datit… (1968), 178–81. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:297, 303, 352, 432, 463, 519, 543, 636, 670, 814; 2:873; 3:1405, 1464; idem, Jewish Law (1994), 1:352, 353, 361, 424; 2:527, 565, 631, 660, 788, 828, 997; 3:1065; 4:1674, 1739; idem, Jewish Law (Cases and Materials) (1999), 353–61, 549–55; idem, Maʿmad ha-Ishah (2005), 306, 338, 342; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), 1 (1986), 167; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1977), 108–9; D. Frimer, "Kevi'at Avhut al yedei Bedikat Dam be-Mishpat ha-Ivri u-ve-Mishpat ha-Yisra'eli," in: Shenaton ha-Mishpat ha-Ivri, 5 (1978), 219; A. Steinberg, Enẓiklopediyah Hilkhatit Refu'it, 1 (1994), 1–6; D. Helek, Hokhaḥat Abahut (1987).


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