National Geographic article

As a continuation of my reflection regarding the impending “conversion catastrophe” predicted by Rabbi Melchior I would like to add a scientific dimension to the excellent article written by Winston Pickett in the CJN addressing the “Who is a Jew” interrogation recently raised in the UK.

I recently had a conversation with Norman Amato (Norm, for the family and friends) addressing the same issue.  Norman Amato holds a PhD in Judaic and Biblical Sciences and has been teaching Judaism and Kabala for over 40 years.

The question debated around our family table – as around many tables – was as follows: “Should Orthodox Judaism recognize children of Jewish fathers as halachically Jewish when born of a non-Jewish* mother in the same way it recognizes children of Jewish mothers as Jewish when conceived with a non-Jewish father?”

*Please note that the term “non-Jewish mother” refers to women that are either not Jewish or not “sufficiently” or “satisfactorily” Jewish in the eyes of specific individuals or communities.  Many of these women may have obtained perfectly legitimate conversions from Reformed, Liberal, Conservative or even Orthodox rabbinic courts.

First of all, it is important to highlight the fact that the gender-based discrimination utilized to define who is a Jew at birth, does not comply with internationally established Human Rights legislations and has been challenged in some countries – including very recently in England where the son of a Jewish father (and reformed-converted Jewish mother) being raised since birth in the Jewish tradition was refused access to the British Jewish day-school system.

The following are extracts of the CJN article of February 11 relating the situation of this young boy:

The debate started with the case of a Jewishly observant 12-year-old boy, identified in court papers as “M,” whose father is Jewish and whose mother is a convert to Judaism through the Reform movement.

The boy applied to the state-supported JFS school, a flagship of North London’s Jewish community founded in 1732 as the Jews’ Free School. The school, which has some 1,900 students, rejected M on the grounds that he isn’t Jewish according to Halakhah, which says only those born to a Jewish mother or a woman who converted to Orthodox Judaism is considered Jewish.
M’s family sued, saying the school discriminated against him. Ultimately the case reached Britain’s new Supreme Court, which ratified the Appeals Court decision in a 5-4 ruling, saying that basing school admission on whether one’s mother is Jewish is by definition discriminatory and in violation of the 1976 Race Relations Act.

“This case had nothing to do with denominations or conversions,” Britain’s chief rabbi, Jonathan Sacks, wrote in London’s Jewish Chronicle. “It focused on one simple fact: that Jewish identity is – conversions aside – conferred by birth, by the mother, or in the case of liberal Judaism, by the father if the mother is not Jewish.”

But a debate has erupted within the Jewish community over how to respond, exposing deep fault lines in the community and fuelling Britain’s “Who is a Jew?” debate.

In every Jewish family there are similar stories of cousins or nephews born of Jewish fathers and raised in the strict Judaic tradition who discovered at a later stage – often at the time of getting married – that their “Jewishness” was being questioned and challenged for reasons linked to the official standing of their birth mother, regardless of the Jewish status of their father.

Although reemerging, this debate is certainly not new.  I would remind everyone, that not so long ago, in many parts of Europe tens of thousands of secular, fully integrated, non-Judaically affiliated children of Jewish fathers and Christian mothers would be unquestionably considered “Jewish enough” to be burned in German crematoria.

Today, on strictly legal and ethical levels these types of gender-based discriminations have been identified as vulnerable to legal challenges, including aggressive lawsuits and potential financial penalties.

The outcome of these on-going legal challenges is that it may in fact soon become illegal for Jewish organizations to discriminate against children based on the gender of the Jewish parent that happens to be making-up half of their genetic DNA.  These legal challenges – in addition to various levels of Judaic conversions – opens the door to new disputes in terms of the recognition of the Jewish identity of many individuals who often identify themselves as Jewish.

Notwithstanding these new legal developments, the purpose of my reflection is not to discuss the legality and morality of this ancient tradition – which today appears to be rather legally unsound – but to explore its emerging contradictions and inconsistencies in light of new scientific discoveries.

Furthermore, and more importantly, I also wish to investigate if the common acceptance of the transmission of Judaism through the birthmother exclusively does not in fact contradict the spirit of the law itself – the very intent of the Halakha – in regards to new scientific discoveries.

As it currently stands, the Jewish identity acquired automatically at birth, is transmitted through maternal lineage exclusively.  It is the generally accepted tradition in Judaism, including in Orthodox and Conservative congregations.  (Please note that in some Liberal congregations, children born of Jewish fathers are considered fully Jewish, even if their birthmother was not Jewish).

The purpose of this ancestral law appears to have been based on the fact that up to very recently, positive paternal identification was always extremely elusive and uncertain.

In the course of our conversations, Dr. Norman Amato explained that in ancient middle-eastern countries, rapes were extremely common.  Invading nations (and god knows that Palestine was invaded often) would either enslave local women or would impose sexual favours upon them as war bounty.  Furthermore, infidelity and adultery were – and unfortunately remained – common practice throughout history and across all civilizations.  It was therefore often difficult or impossible to be absolutely certain of the real identity of the biological father of a child (I.e. the producer of the semen having fertilized a woman’s ovum).  On the other hand, it appeared to be undisputable that a baby being delivered by a woman would clearly be “the flesh of her flesh” and therefore could be identified with certainty as having – at the very least – half of a Jewish lineage required, providing that the mother was Jewish.

Norm, explained that there was also another reason behind opting to transmit the Jewish identity though the mother.  While in our societies, the education of children is often shared equally between men and women; in antiquity it was mostly the mission of the mother to raise the young children.  Therefore linking the Jewish identity of a child to his or her Jewish mother was a way to insure that he or she would receive the basis of Jewish education.

For the above reasons, the law of transmission of the Jewish identity through the mothers became gradually accepted, practiced and followed for centuries.  While it may have been appropriate up to very recent years, new medical progress is now challenging the legitimacy of this ancestral law.

Considering today’s medical technology, it would actually be extremely easy for a woman to carry and deliver a baby that would have absolutely no affiliation of any kind with her, her husband or any family relatives.

To illustrate this with an extreme example, it would be absolutely possible for a white-skinned, blue-eyed and red haired Ashkenazi orthodox woman to carry for 9 months and deliver a dark-skinned baby conceived in-vitro with the sperm of a Pakistani Muslim father and the ovum of a Christian Ethiopian mother.  (These nationalities are purposely chosen as an example because of their extreme ethnic and cultural remoteness from the typical makeup of an Ashkenazi woman.  It is not in any way meant to be discriminatory.)

On the other hand, (Jewish) mothers who are unable to carry their own babies are increasingly looking for surrogate mothers.  In some countries – such as India – it is becoming quite normal to advertise “wombs for rent”.  In this case the situation would be reversed.  The blond baby born of a Hindu woman could very well have Ashkenazi orthodox parents.

The undisputable point being illustrated in the above examples, is that in today’s’ world, giving birth to a child no longer guarantees in any way the maternal and genetic filiation of any naturally born child.

On the other hand, as recently proven with the identification of King Tutankhamun’s three thousand years old parents, progress in DNA testing have made it easy and inexpensive to analyze the DNA of a child at birth – or at any point later in life.  While giving birth is no longer proof of filiation, DNA comparison can establish with absolute certainty the paternal and maternal genealogical tree of any individual.  It is therefore possible to identify with certainty the father of a child being born of a Jewish or non-Jewish mother and make sure that the father is indeed the anticipated father … and indeed Jewish.

I also wish to point out that if, despite having hundreds of scholars, historian, archeologists and genealogists having scrutinized King Tutankhamun’s family background, scientists are discovering today (three thousand years later) that his mother was not Queen Nefertiti, as previously presumed.

What are the chances for any Jew today to be able to trace with absolute certainty his or her maternal lineage for hundreds of generations?  Why therefore such a fierceness at disproving the Jewish identity of some of our brothers and sisters?

At the very least, it appears clearly that in regard to these new scientific developments, the very spirit of the Halakha and the Jewish identity of any Jew can no longer be insured simply by identifying the birth mother of a child.

I am therefore urging a revision of the Jewish law establishing the Jewish identity of a child based solely on being delivered by a Jewish birthmother.  This law has clearly reached its point of obsolescence.

Since it appears that the intent of the law was to allow for – at the very least – half of the Jewish lineage of a child to be indisputably established, DNA testing would clearly ascertain such lineage either to the father, to the mother or both with greater certainty, and greater equity, than the womb that happened to have carried the fetus.

In other words, modifying the law to allow for the father – or the mother for that matter – to ascertain his or her genetic affiliation to a child through DNA would certainly respect the spirit of the law and would in fact result in greater accuracy and objectivity in enforcing that very law.

For that very reason, this is a modification of the law that should delight Jews at both ends of the religious spectrum – Orthodox because it would render the control of law more stringent and infallible, and reformed or liberal because it would open the doors of the tribe to descendants of Jewish fathers who currently do not have proper halakhic standing in the eyes of certain communities.

When it comes to the “Who is a Jew?” question, I personally would even go further and suggest that in addition to equitable bi-parental genetic transmission of Judaism, perhaps the Judaic standing of a child (or of any worthy individual) should rather be based and measured on a sincere aspiration towards living a Jewish life.

I can certainly point to many Jewish men and women of great stature who inspire continued admiration and who contributed greatly to Judaism, and yet did not inherit any Jewish genes at birth – Abraham being an example that comes to mind.