By SHLOMO BRODYdna 88(photo credit: )Does Halacha recognize paternity tests? - Jeremy S., Jerusalem
A On a recent trip to America, I was greeted outside the airport with the following advertisement: "Who's the Father? Call 1-800-DNA-Test." Leaving aside the moral and societal problems that the ad might signify, the propriety of employing blood or DNA tests to determine paternity raises complex legal issues. Scholars must maintain the legal system's integrity by balancing traditional sources, scientific advances and ethical imperatives to help prevent mamzerim (illegitimate children whose marriage pool is severely limited) and agunot (abandoned spouses unable to marry because they cannot locate their missing partner).
When paternal blood testing originated in the early 20th century, courts deemed ABO tests as sufficiently accurate in proving that person x was not the father of person y (negative identification), but not reliable enough to positively prove paternity (that x was the father of y). In trying to resolve custody, inheritance and other disputes, jurists debated whether courts could order paternity tests, and whether failure to cooperate authorized them to infer appropriate conclusions.
The scientific premise of this test, that blood type is determined by a combination of parental blood, might conflict with a Talmudic statement that one's mother provides her child with blood. "There are three partners in humans: God, the father and the mother... The mother supplies the red substance out of which is formed his skin, flesh, hair, blood and the pupil of his eye..." (Nidda 31a). While this passage appears, as Rabbi Shlomo Auerbach noted, to be a metaphysical statement, it was employed in medieval judicial literature regarding medical matters (YD 263). On the other hand, medieval literature also cites a story in which Rabbi Sa'adia Gaon (10th century) extracted a man's corpse and tested it with various claimants' blood to determine who was his rightful heir (Sefer Hassidim 232).
In the earliest halachic decision, Sephardi chief rabbi Ben-Zion Uziel (d. 1953) rejected the use of these blood tests since their scientific assumptions conflicted with the talmudic assertion. This position was supported by Rabbis Yehoshua Ehrenberg (Dvar Yehoshua 3 EH 5) and Eliezer Waldenburg (Tzitz Eliezer 13:104), who cited this as a case where halachic principles should be upheld despite contrary (and sometimes transient) scientific claims.
This position, however, was rejected by Rabbi Chaim Regensburg (Mishmeret Hahayim 37) and Rabbi Ovadia Hedaya (Yaskil Avdi 5 EH 13), who cited a significant strain of classic Jewish thought which dismissed talmudic medicine as antiquated science, thereby mitigating any conflict with contemporary medicine. As Prof. Dov Frimer has documented, Ashkenazi chief rabbi Isaac Herzog (d. 1959) was particularly adamant on this matter, accusing fellow scholars of "burying their head in sand" while scientific knowledge advances.
Rabbi Chaim Jachter, however, has noted that many decisors reacted negatively to paternity tests because they can open up a Pandora's box of legal problems. For example, when a divorcing husband, trying to avoid child support, proves that his wife's child stemmed from her adulterous relationship, he also turns the child into a mamzer, causing a tragic legal situation which the sages attempted to avoid. Jewish law recognizes a strong legal assumption that married women maintain exclusive sexual relations with their husband, even to the point where a child born 12 months after a woman's husband leaves for overseas is presumed to be his child (EH 4:14). Some have further cited this factor as a reason why jurists never adopted Sa'adia Gaon's bone/blood test (Rashash BB 58a).
On the other hand, particularly when paternity tests have improved through DNA testing, this assumption might be overridden by medically proven "facts." One attempt to resolve this conundrum was offered by Dayan Shlomo Dichovsky, who argued that DNA testing cannot provide absolute accuracy to deem a child a mamzer, but is sufficient to create enough doubt to prevent inheritance or child support (Assia 5). Other colleagues, including Rabbi Avraham Shapira, rejected any distinctions and all DNA evidence.
Rabbi Shmuel Vosner has also distinguished the admissibility of DNA evidence in different areas of law, stating that it remains insufficient to convict criminals or create mamzerim, but can be used in inheritance cases when there are no competing claims, and in certain cases of agunot (Tehumin 21). Rabbi Shlomo Auerbach allowed DNA evidence to identify babies mistakenly confused in a hospital, and further asserted that it could be used for paternity testing if its science becomes universally accepted (Nishmat Avraham EH 4:35).
Following this assertion, Rabbi Zalman Goldberg and the Rabbinical Council of America's judicial court employed DNA (and other) evidence to prevent spouses of 9/11 victims from becoming agunot. While some continue to contend that we can still ignore DNA evidence to prevent mamzerim, others believe that when confronted with incontrovertible scientific evidence, Jewish law must recognize the truth, no matter which way it cuts.
The writer, on-line editor of Tradition, teaches at Yeshivat Hakotel and is pursuing a doctorate in Jewish philosophy at the Hebrew University.JpostRabbi@yahoo.com
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