By Rabbi Yair Hoffman for the Five Towns Jewish Times

It is a quandary that many non-observant Jewish families face: For one reason or another, the couple cannot have a child of their very own. As a consequence, they would like to adopt. They may have frum relatives, and they are very proud of being Jewish.

Can they adopt a gentile child and convert him or her through a kosher Orthodox Beis Din?

THE TALMUDIC STATEMENT

There is a well-known expression found in the Talmud (Kesuvos 11a): Ger kattan, matbilin oso al da‘as beis din—a non-Jewish minor may be immersed for conversion on the authority of beis din. The Gemara asks what this particular ruling comes to teach us. The answer is that being Jewish is considered a positive thing, and, according to Jewish law, one may accept a positive thing for another person when he or she is not present. The principle is termed, “zachin le’adam shelo befanav.”

As an illustration, if Ed McMahon from the American Family Publishing sweepstakes were to knock on your door while you were not home, the halachah would allow your neighbor to accept the $250,000 check on your behalf and then give it to you when you get home. Why? It is because the entire affair is a very positive development on your behalf.

Conversely, if a NYPD officer followed you home after you had committed a traffic infraction, knocked on your door, and tried giving your mother a ticket for what you did, she cannot accept it for you—the Talmud tells us, “ein chavin le’adam shelo befanav” – one cannot incur something negative for another on his behalf when he is not present.

So what do Ed McMahon and the NYPD police officer have to do with the conversion of an adopted child? Everything. The issue is whether beis din may accept Judaism on behalf of a child, who, when raised in a non-observant environment will (by all odds) not be observant himself, and will consequently incur all sorts of violations for not keeping Shabbos, kosher, putting on tefillin, et cetera?

A number of years ago, Rabbi Reuven Bulka from Canada wrote a book entitled, “The Coming Cataclysm” where he mentions Rav Moshe Feinstein’s position that when beis din went ahead and did perform such a conversion, it is possibly valid ex post facto. How so? Rav Feinstein’s explanation is that it still might be a z’chus (merit) to be considered for one to be part of the Jewish People, notwithstanding that he is in violation of various laws and codes.

To further understand this position, consider the following analogy: Imagine that, unbeknownst to you, a friend of yours had surreptitiously enrolled you in Harvard University. A year later, the friend informs you that you were enrolled—and that you have failed all of your courses. Your Harvard GPA is a perfect 0.0. Are you happy that your friend did it? Well, at least you can say, “Sure, I went to Harvard!”

Not everyone, of course, is in agreement with this position. Dayan Fisher, zt”l, of the Eida HaChareidis in Jerusalem, flatly disagreed with this position (Even Yisrael, Vol. 8 Siman 1) and ruled that the child would be clearly considered non-Jewish, notwithstanding his certificate from a beis din.

There are numerous other responsa which concur with this position (Mateh Levi, Vol. II, No. 55; Zecher Yitzchak, siman 2, Minchas Yitzchak Vol. III No. 99 and Vol. X No. 105).

AGREE TO ENROLL IN A YESHIVA

But what about a case where the parents pledge to enroll the child in a yeshiva? Here is where the issues can become a bit sticky. Some people are of the opinion that this pledge increases the odds of the child’s becoming observant, and the conversion may no longer be considered a chov (detriment).

It is important to present each case to a renowned halachic authority and to fully document everything. When such a conversion is performed, everything must be done under the auspices of a prominent and reliable beis din and authority.

IS IT BIBLICAL OR RABBINIC?

One might ask where the entire concept of immersing a non-Jewish child for conversion comes from: Is it a Biblical law or a rabbinic law? It seems that Tosefos (Kesuvos 11a, s.v. “Matbilin”) believes that it is entirely of rabbinic origin, since a child cannot be zocheh (accrue anything of value) according to Biblical law. The fact that according to halachah a child can marry a Jewish woman is on account of the authority that the Torah granted the rabbis to actively uproot a Torah concept under certain circumstances. However, Tosefos in Sanhedrin (68b) seems to indicate that the concept is in accordance with strict Biblical law and is not considered a rabbinic invention.

THE CHILD CAN DECIDE

Another well-known concept (see S.A. Y.D. 363:7) in regard to the conversion of children is the notion that when the child becomes of age, he or she can decide against the conversion, and the conversion is retroactively no longer valid. However, if upon learning the halachah the young man or woman still observes Judaism after having attained the age of bar/bas mitzvah—even if only for an hour—he or she is then considered completely Jewish, and the conversion can no longer become retroactively invalid. But if as an adult the child convert learns this halachah and immediately decides not to remain Jewish, the entire conversion process must be repeated if at some later point he wishes to return to Judaism.

If the ger kattan did not find out about the “opting out” option until much later, then the option is extended indefinitely. In light of this halachah, the question arises as to how a rabbi can ever perform a marriage ceremony where the groom or the bride may have been an adopted child and is unaware of the “opting out” option. There is a possibility that the wedding berachah would be a berachah levatala. This issue is addressed in the responsa, and the conclusion is that there is a halachically safe assumption that an adult married person will not be opting out so quickly.

At this point, however, there is no rabbinic infrastructure for a formal procedure to ensure that the ger kattan is informed of the “opting out” option and his or her decision is documented.
As an aside, Rav Ovadiah Yosef, zt”l once stated in his shiur (given in the Yazdi Shul in Jerusalem) that there is a mitzvah to love geirim more than a regular member of K’lal Yisrael. He bases this on the fact that there is a mitzvah to love a ger in addition to the mitzvah to love your fellow Jew. Prior to Chacham Ovadiah’s statement, most people understood this additional mitzvah as an extra merit and commandment to love a ger, but not that the measure of love we show toward a ger is any greater than that of other Jews. (This seems to be the Rambam’s position in Sefer HaMitzvos.)

One last thought. A number of years ago, Rabbi Berish Ganze, the former dean of the Hebrew Academy of Suffolk County informed this author of a ruling he had received from Rav Yaakov Kamenetzky zt”l. He stated that in a case where the father of a young lady was Jewish but the mother was not, it is an inyan to try to arrange for a giur and accept the child in a Yeshiva on account of the strong possibility that the child will marry Jewish in the future without the giur. As in all cases of halacha, one should seek guidance from a Rav and Moreh Horaah.

The author can be reached at [email protected]