Thursday, December 31, 2009

Yosef's Shtar Kiddushin

Rashi quotes the medrash that when Ya'akov saw Ephraim and Menashe he initially refused to give them a beracha because he didn't know who their mother was. It was only after Yosef showed Ya'akov his shtar kedushin and kesuva that Ya'akov agreed to bless them.

Two questions come to mind. First of all, what was bothering Ya'akov? Was he really concerned with who Yosef married? Shimon married someone fron Cana'an according to one pshat and Yehuda eventually married Tamar who did not have a great lineage. Furthermore, if Osnas was Dina's daughter didn't Ya'akov know that? Secondly, what did Yosef hope to accomplish by showing the shatr kiddushin and kesuva and how did this appease Ya'akov.

I believe the key to the answer is to understand what Ya'akov was trying to accomplish. The berachos that Ya'akov was giving Ephraim and Menashe were not just stam berachos, the intent of the berachos were to make them into Shevatim. In order to be considered Shevatim Ya'akov had to insure that they had the appropriate lineage. However, he wasn't concerned where Osnas came from, but rather he was concerned over what type of relationship Yosef had with Osnas-was it a real marriage or was she his pilegesh.

I heard recently a shiur from Rav Belsky that I found online, where he explains that when Ya'akov moved into Bilhah's tent his intention was to change his relationship with Bilhaha and Zilpah from being his pilagshim into being his wives. In other words he was koveia that they were no longer shifachos but had the status of imahos. The purpose of this was to ensure that all 12 sons would be fit to be shevatim. If Bilhah and Zilpah would retain their status of shifachos then their children would only be considered avadim and not part of the shevatim.

Reuvain did not understand this and he thought Bilhah was still his father's pilegesh-that's why the posuk says he slept with the pilegesh of his father. The Torah is describing the mindset of Reuvain. Rav Belsky further pointed out that after this ma'aseh, the Torah constantly refers to the shevatin as "12 sons of Ya'akov" and as "achim/brothers". The Torah is stressing this point that all 12 sons were shevatim and even the children of Bilhah and Zilpah were no longer considered avadim but shevatim.

With this idea, we can understand the whole conversation between Ya'akov and Yosef. In order for Ephraim and Menashe to be Shevatim, they couldn't be sons of a pilegesh. They had to be children of a real marriage. It's possible that even though Ya'akov was able to change the status of Bilhah and Zilpah (and consequently the status of their children) retroactively, when it came to Yosef's children he couldn't do that since they were already starting at a lower level having come from Yosef and not from Ya'akov. (You can also probably take issue with Rav Belsky's hanacha that originally Bilhah and Zilpah were only shifachos, maybe they were always imahos just Reuvain did not realize this).

The Ra'avad in Hilchos Ishus 1:4 writes that a pilegesh has kiddushin with no kesuva. The Maggid Mishna says this is also the Rambam's shittah, however the Lechem Mishna writes that from the Rambam in Hil' Melachim it seems the Rambam holds a pilegesh has no kiddushin and no kesuva. Either way, (although it works better with the Lechem Mishna), we can unde3rstand why Yosef responded by showing Ya'akov his shtar kedushin and kesuva. He wa sshowing Ya'akov that Osnas was his real wife andnot just a pilegesh and therefore his sons were fit to be made into shevatim.

(Ayin Sha'arei Aharon who mentions this idea as well)

Monday, December 28, 2009

Parshas VaYigash:Motherhood-based on cconception or childbirth

OKay, I want to end this month with more than one post, so I will stop being lazy and post my latest chaburah.

Rashi on the posuk "Shaul ben HaCana'anis" brings the medrash that Shaul was the son of Dina and Shimon. The question is that even a Ben Noach is not allowed to marry his maternal sister. How then could Shimon marry Dina. One approach to answer this question is to use another medrash. The Targum Yonason Ben Uziel tells us that when Leah was pregnant with her 7th child she davened to Hashem that it should be a girl. At the same time, Rochel was also pregnant. Hashem caused the fetus in Leah to be switched with the fetus in Rochel. Rochel gave birth to Yosef and Leah gave birth to Dina. Since Dina was conceived in Rochel's womb you can argue that her mother was really Rochel. Consequently, she was muttar to marry Shimon.

In case you think that this is all derush, there is a very important halachic nafka mina. When a baby is born in-vitro or through a surrogate mother, who is considered the mother -the one who supplies the egg and conceives the child or the one who gives birth to the child. (or in the word of Rabbi Bleich is motherhood defined by parturition or by gestation).

There are a number of teshuvos/articles written on this topic. Rabbi Bleich has an extensive article in his Contemporary Halacha vol 4. Techumim vol 5 also has a discussion on this topic. Finally, there is also an article in the Jouranal of Halacha and Contemporary Society vol 38.

Just to note, we are not discussing whether it is muttar l'chatchila to do such a thing, only b'dieved if it was done who is the mother.

I will just bring 1-2 proofs for each side of the equation.

Parturition or Childbirth

1) The Tzitz Eliezer quotes the sefer Tzur Ya'akov who actually wants to bring a rayah from the Yonason ben Uziel quoted above. However, the rayah is in the opposite direction. Since the torah lists Dina as Leah's daughter and Yosef as Rochel's son, we see that motherhoood is based on teh woman who gives birth to the child.

Rav Shternbach in an article in a medical torah journal called "b'shvilei u'refuah" argues that you can't bring a rayah from derush. Furthermore, there is another pshat, that the fetus' weren't switched but rather the neshamos were switched.

2) The sefer Even Yakar (quoted by the Tzitz Eliezer) discusses a case of an ovarian transplat (which seems to have never happened) and he brings a rayah from a gemara in Sotah 43B. The gemara says that if you graft a tree less than 3 yrs old onto a tree that is older than 3 years, the new tree is patur from orlah. We see you follow the mother who gave birth.

3) Rav Zalman Nechemiah Goldberg in Techumim vol 5 brings a rayah from Yevamos 97b. The gemara discusses a case of a non Jewish lady who converts when she is pregnant and then has twins. The gemara says these twins are considered brothers and there is a chiyuv yibum since at birth the mother was Jewish. Again we see you follow childbirth.


Rabbi Bleich brings a Rabbi Akiva Eiger (also quoted in the Chavtzeles HaSharon on Vayigash) in Yorah Deia (SIman 87) as a proof that we follow conception. The halacha is that milk from a shechted animal can not create an issur basar v'chalav because we need "chaleiv imo"=milk from an animal who can be a mother. A shechted cow can not be a mother. Rabbi Akiva Eiger asks what is the din with a cow that is a treifa. Such a cow can not give birth but it can conceive. He says in such a case the cow is considered a mother. From here we see that motherhood follows conception.

Parturition and Gestation

Rabbi Bleich wants to say that both women are considered the mother. By kilayim of animals, the gemara says "choshishin l'zera ha'av" and the animal is considered to be a species from the father and the mother. Here too, the women who conceived contributed to this child and she should also be considered the mother.

According to the Jouranal of Halacha and Contemporary Society most poskim say the one giving birth to the child is the mother. But as always ask your local Orthodox poseik.

Tuesday, December 08, 2009

Parshas Vayishlach:Do you need a kli for the Menorah

The Avnei Nezer (Siman 500) discusses whether one needs to use a kli to light the menorah. The Chessed L'Avraham brings down 15 madreigos of a menorah, the best being gold then silver, copper etc. He then writes that one can not use egg shells because it is not a kli and also you can't use a kli that can't support itself. The Avnei Nezer paskens like the Chesed L'Avraham. He tries to prove that in the Beis HaMikdash, the kli used to hold the oil was considered a chelek of the ner of teh menorah and therefore, by Chanuka as well one needs a kli to hold the oil.

There are several chumros that come out of this.

1) One can not use a hollowed out potato to hold the oil since food is not m'kabeil tumah and is not considered a kli. (l'fi zeh tzarich iyun on the Holocaust stories where they were moser nefesh to put oil in a potato and light it. Acc. to the Avnei Nezer they were not yotzei).

2) If the kli can't stand by itself it is not a kli. Rav Shternbuch (Teshuvos V'hanhagos chelek 2) also paskens like the Avnei Nezer and he says that most of the glass cups we use are no good. Most of the cups we use have a nipple on the bottom and they can't stand on their own. Accordingly, they would not be considered a kli and you would not be yotzei ner chanuka.

3) If one has a gold menorah but uses glass cups, you would lose the hiddur of using a gold menorah, since you are really lighting with the glass.

4) If you just stuck candles down on the table you would not be yotzei.

Other than the Avnei Nezer and Rav Shternbuch, the other poskim I saw are all meikil for different reasons.

1) The Shevet Levi argues on the whole dimyon to the menorah in the Beis HaMikdash. Even if the Avnei Nezer is correct that in the Beis HaMikdash the kli is a chelek of the ner, who says that we would say teh same by the Chanuka menorah. The menorah in the Mikdash could not be made out of wood and only had 7 branches, while our menoros can be made out of wood and have 8 branches.

2) Rav Shlomo Zalman Aurbach zt"l in Halichos Shlomo says that the glass cup is batul to the menorah. Therefore, as long as the menorah can stand by itself, it makes no difference if teh glass cup can stand by itself. Furthermore, if the menorah is gold, you would still get the hiddur of using a gold menorah.

3) The Sdei Chemed (Mareches Chanuka Os 7) says that if the kli was originally made so that it couldn't stand it si not a chisaron in the kli and it is still considered a kli. The rayah is from a mishna in keilim. I also saw this brought down in a sefer on Hilchos Chanuka and the comparison was made to nitilas yadayim. By nitilas yadayim, we pasken if the cupo can't stand on its own but it was made liek that , it is still a kli. So hu hadin by Chanuka. Rav Shternbuch mentions this dimyon but he rejects it. I don't understand his sevara for rejecting it, but ayin sham.

4) The Az Nidbiru (chelek 13 Siman 49) points out that the Avnei Nezer brings Rishonim who are choleik on teh Chesed L'Avraham, namely the Radvaz, the Rashba and the Ran. Also, the poskim never indicate we should be machmir like the Chesed L'Avraham.

5) The Chacham Tzvi writes that one is yotzei if you stick candles on the wall. We see he didn't require a kli.

6) Finally, the Az Nidbiru (chelek 13 Siman 49) has a totally different understanding of the Chesed L'Avraham. When the Chesed L'Avraham writes that the kli must stand by itself, that is only because otherwise there won't be enough oil b'zman hadlaka to last the shiur.