Who is a Rabbi? Who is a Jew? Round III

For “Who is Rabbi? Who is Jew? Round III” I thought I would translate and present a short responsum of Rav Moshe Feinstein.  (For those who wish to read the previously posted Reform and Conservative responsa on conversion, see Round I and Round II .)

A bit of background. In 1956, Rav Moshe became famous for his Teshuva rejecting the halachic validity of Reform weddings. The decision was motivated by a desire to permit children of 2^nd marriages born within the Reform movement to marry other Jews (Orthodox or otherwise). The Reform movement had dispensed with the obligation of giving a traditional get at the time of divorce—this created the possibility of their being mamzerim—who would be prohibited from marrying nearly every sort of Jew. Rabbi Jonathan Sacks writes quite a bit about this in his book, “One People?”, concluding that the ends justified the means. (See pages 188-194)

Within Orthodox circles, Rav Yosef Eliyahu Henkin objected to this decision on halachic grounds. Within Reform circles, the decision was look upon (as it was) as the de-legitimization of their movement. To their credit, the Reform movement for a long time now has insisted that women married under Orthodox auspices receive a proper Orthodox get if they wish to remarry using a Reform rabbi . This decision was upheld in a heart-rending case of an agunah: See this 1946 Responsa  as well as in this more recent case involving the question of supporting a citywide religious ban against a man who refused to give his wife a get: Responsa.

In any event, the Teshuva I would like to look at continues our previous theme of boundary crossing. This time the issue surrounds the status of a converted Reform family who seem poised to embrace the Orthodox lifestyle. The Responsa is dated “The Eve of the 9^th of Av, 5720” (August 1^st, 1960). (Found in Igroth Moshe: Yoreh Deah III.105) As Rav Moshe disqualified Reform weddings, so too he disqualified Reform conversions. But observe well dear reader, for here there is an interesting twist.  

The Query: “A woman had a Reform conversion and afterward gave birth to a son. As he was assumed to be a ‘son of Israel’, they circumcised him accordingly (like any other Jewish male.) Now, they have drawn close to Hashem and his Torah. The mother has agreed to immerse her son in a mikvah, but she is unwilling to allow her son to undergo hataphat dam brit—as the boy is weak. Moreover, this boy stands to become a Bar Mitzvah in the coming days…”   [What should we do?]

Response: “In an ideal halachic situation (L’chatchila), one ought to require hataphat dam brit. Nevertheless, in a time of great need like this, one can support the forgoing of the requirement since he was originally circumcised for the sake of Judaism. The case resembles one found in the Talmud Yavamot 45b…”

As Rav Moshe Feinstein simply gives citations, I shall try to explain it in full. The Talmud presents the following case: ‘The servant of Rabbi Chiya bar Ami had a certain idolatress immerse in a mikvah so that he could marry her.’  As this immersion was done for the sake of Niddah, the question arose: Would this immersion count for conversion? The Talmud concludes that it works and both the woman and the daughter (conceived from the union) are to be considered Jewish.  It would seem then that intent to observe the ritual of immersion for Niddah speaks loud enough for the woman’s desire to become Jewish. (Rashi)

(Tangentially, the Gemora does not mention if this woman had previously accepted the mitzvoth before Beit Din. Tosafoth and Tosafoth Chad Mikamei assume as much.)

But here is the critical point. In an explanation brought down by Tosafoth, the issue of concern is not so much that the woman immersed for the sake of Niddah and not conversion—as explained above, her intent to become Jewish was clearly manifest by her actions—rather the issue is that the immersion was done without the knowledge or presence of a Beit Din. The answer offered is that since her immersion was publicly known—which is seemingly why the Beit Din must be present for immersion in the first place—the immersion counts for conversion. (Tosafoth: “Mi  Lo Tavlah L’Niduthah”)

Now back to Rav Moshe: “…if there were three kosher witnesses [=Beit Din] for the original circumcision, it would certainly be good. But if not, one can rely on the fact that the circumcision was publicly known. This accords with the view brought down in Tosafat [above] Mi  Lo Tavlah L’Niduthah…”

The end of the Teshuva is utterly prescient of the woe that has fallen upon the converts of today. Even though Rav Moshe must have been confident of his decision, he predicts that the absence of hataphat dam brit may lead another rabbi to claim that the boy’s Jewish status is in error.  Rav Moshe writes therefore that the mother ought to be made aware of this possibility down the road. Not unlike the tact later evinced by Rabbi Novak, Rav Moshe suggests that this be done quietly and one ought to be careful to use the term “incomplete” instead of “illegitimate” when describing the conversion.

For those who wish, the Teshuva is pasted in Hebrew below: 

שו"ת אגרות משה יורה דעה חלק ג סימן קה

 בדבר תינוק נכרי שנימול בחזקת שהוא יהודי אם צריך הטפת דם ברית ערב ת"ב תש"כ לכבוד הרב נחמן מאיר בערנהארד שליט"א

בדבר אשה שנתגיירה בגירות ריפורמית, ואח"כ הולידה בן, והוחזק כבן ישראל ומלו אותו כאילו הוא בן ישראל ועכשיו נעשו קרובים לשם ולתורתו, והאם מסכימה שיטבול בנה, אבל לא רוצה להניח שיטיפו דם ברית מבנה, מאחר שהוא ילד חלש, והילד עומד להיות בר מצוה בעוד כמה ימים, הנה אף שלכתחלה צריך הטפת דם ברית, מ"מ בשעת הדחק גדול כזה, יש לסמוך שלא להצריך הטפת דם ברית, באשר שמלו אותו לשם יהדות כהא דמי לא טבלה לנידותה (יבמות מ"ה ע"ב) ואם היו ג' כשרים בשעת המילה, ודאי טוב, ואם לא, הא יש לסמוך על פרסום שהולכין למול, כסברת הי"מ בתוס' ד"ה מי לא טבלה בפרט שעצם הטפת דם ברית הוא ספק

ומה שכת"ר אינו רוצה לגלות להם מה באמת הספק לא טוב כי אח"ז רב יוכל לטעון שהיה בטעות לכן צריך לומר להם שלא היתה גרות גמורה ויכול לומר להם בחשאי שלא בפרסום 

גם את האם מכיון שמחזיקים אותה לגיורת גמורה יש לדבר אליה שתטבול כדין 

ידידו, משה פיינשטיין 

How to Be a Mikveh Attendant:

What is the precise halachic role of a mikveh attendant? I have been asked this a number of times, and here I  share some general thoughts.

Truth be told, it is very limited, there is but one obligation. In the words of the Shuchan Aruch:

"When a woman immerses, there needs to stand next to her an adult Jewess, who is at least 12 years and 1 day old, who can observe if any hair of her head is floating above the water..." (Yoreh De'ah 198.40)
In other words, a mikveh attendant's role is to make sure that the woman's hair is completely submerged in the water.  Everything else, from checking for dirt under the nails to sifting through loose hairs and the like, are extraneous customs grounded in any number of the following: local tradition, piety, ignorance, or a desire to keep the mikvah clean. In the view if the Shulchan Aruch, a woman is trusted to check her own body without assistance and she is trusted to immerse the entire body completely, with the sole, exceptional, concern of the hair. In fact, were it the case that a mikvah attendant could not be found (and one's husband is not available), the Shulchan Aruch goes on to state as follows:

"If there is no one to stand next to her, or in the (darkness) of night [whereby it is difficult to see floating hair], she should wrap her head using hair-thread that does not impede, or wool thread, or (use) a strap upon her head, so long as it be loose or the coils of thread are mesh-like. Alternatively, she may put a loose cloth over her head." (YD 198.40)

The latter is echoed by the Aruch HaShulchan and Rav Obadiah Yosef. (A.H. YD 198.87; Taharat HaBayith Vol III:45 #172) Similarly, Rav Yitzchak Abadi recommends that a hairnet be used when no attendant can be found. (Or Yitzchak Vol. I #29 Page 304)

Not to put to fine a point on it, the Maharshak rules 'that if a woman is fastidious and does not fear the water, she can grasp her hair with her hand (to keep it down), immerse to a good depth, and then let go of her hair underneath the water.'  (Tifereth Shmuel -Commentary on Rosh's Hilchot Mikvaoth #28) The latter is cited approvingly by the Aruch Hashulchan among other authorities. (A.H. YD 198.87; Pischei Teshuva YD 198.43; Taharat HaBayith ibid; Otzer Meforshim YD 198:40-- in Shulchan Aruch HaBahir)

Although it is not recommended by this author or anyone else to do this without proper consultation, nevertheless, by appeal to unusual circumstance, the general point is made abundantly clear. The halachic obligation of a mikveh attendant, though quite important, it is rather limited in scope. In light of this, perhaps it is time to reframe the emphasis of the conversation. The question is not 'what are the halachic obligations of the mikvah attendant?' rather the question ought to be 'what are her human obligations?'

A few suggestions:
To be respectful and warm, to offer help when it is asked for, to shy away from criticism of any kind, not to touch unless prompted, to keep the confidences of others, to embody the Ahavat Yisrael esteemed by our matriarchs of old....