Parents petition Population Registry Law ‘bastard clause’

Mother and common-law partner embroiled in legal battle over law which forbids woman to remarry for at least 90 days after being divorced.

By
November 17, 2010 01:24
4 minute read.
Cute baby

cute baby 311. (photo credit: courtesy)

It was a happy occasion when Michal (not her real name) gave birth to her first child in June.

However, just weeks later, when she arrived at the Interior Ministry to register her newborn daughter, she was told that the child’s biological father would not be recognized as such, due to the littleknown “bastard clause” in a law passed in 1965. The law is based on Halacha, which forbids a woman to remarry for at least 90 days after being divorced or widowed.

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Now, the mother and her common-law partner are embroiled in a bitter legal battle.

“We’re very angry about this situation,” Michal, who is in her late 30s, told The Jerusalem Post Tuesday. “We have lived in this country all our lives, always paid our taxes, and this is really putting us under a lot of pressure.

“We can’t register my partner as the father, and even though he continues to act as her father, he can’t even take the baby for medical check-ups,” she said.

Michal separated from her husband in January 2009, filed for divorce in June 2009 and officially received the divorce that September; she got pregnant by her new partner in October of that year.

“We moved in together, talked about getting married, and then I got pregnant very quickly,” she explained. “I gave birth to my daughter early, in the 36th week of the pregnancy, and when we went to get her birth certificate, they [the Interior Ministry] said that because she was born less than 300 days after my divorce, we could not register my partner as the father.”

Even though Michal and her partner provided the Interior Ministry with doctor’s notes showing the baby was born prematurely – she was supposed to have been born 320 days after the divorce was finalized – the biological father was not allowed to be registered as such.

The Population Registry Law of 1965 states that no man can be listed as the father of a child unless he was married to the child’s mother or, in the case of unmarried parents, if the mother had not been married to another man 300 days prior to the child’s birth.

The law stems from the Jewish religious law forbidding a woman to remarry for 90 days after a husband’s death or a divorce. The law is meant to prevent uncertainty over the father’s identity and to lift the suspicion of mamzer (bastard) status from any child subsequently conceived.

“They would only allow the name of my ex-husband on the birth certificate or that I leave the father’s name blank,” said Michal.

Michal opted to leave the birth certificate blank for now. Her only options were to ask her former husband to renounce his paternity rights and allow the child to be “adopted” by the biological father, or take legal action.

The family chose legal action, and two weeks ago, with assistance from the New Family organization, headed by advocate Irit Rosenblum, Michal and her partner petitioned the Tel Aviv Family Court to formally register the baby’s father.

“This Halacha has absolutely no relevance in the modern era, when paternity can be scientifically determined with a DNA test,” said Rosenblum.

She noted that in the current situation, the father “cannot officially be involved in his child’s life. He can’t register her for school or get information from her day care or schools. He can’t take her for medical care or get information about her health. He can’t take her abroad.

“On the other hand, since [the baby’s] mother lives with her partner, they are considered common-law spouses and she is ineligible for benefits as a single mother,” she said.

“The civil law, which is a modern incarnation of its ancient source, also imposes itself on Israel’s non-Jewish population and doesn’t consider the fact that today healthy babies can be born after less than 300 days of pregnancy,” added Rosenblum, who has decided to take the case further and is in the process of drafting legislation to cancel the bastard clause.

She estimated that there are more than 4,000 children in Israel today who do not have any father registered on their birth certificates, and for at least 1,000 of them it is likely because they were born within the 300 “forbidden days.”

“Consider the fact that even if a woman were to respect the 90 days of purity, she could still give birth to a healthy child after 251 days, in the fifth month of her pregnancy, or after 279 days, in the sixth month of her pregnancy.

In either case, the Interior Ministry will refuse to register the child’s biological father unless a judicial verdict is given by a court of law,” she said.

“We really want to get married, but we can’t because we are spending all our time and our money dealing with this,” added Michal, who still has no court date set for the petition. “I just hope the judge rules in our favor, or I don’t know what we will do.”

A spokeswoman for the Interior Ministry’s Population Registry responded that the office was not responsible for the law, which was created by the state.


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