One of the Pesukim listing the children of Yaakov who descended with him to Egypt mentions the sons of Asher and adds, “their sister Serach” (46:17). Although the Pasuk does not state this explicitly, we find elsewhere (Bamidbar 26:46) that Serach was in fact Asher’s daughter.
The Ramban (Bamidbar 26:46) explains why the Pasuk in Bereishis only notes Serach as the sister of his sons: “Serach was Asher’s stepdaughter. But because he raised her, people called her ‘Asher’s daughter.’”
We learn from here that although Serach was not a biological child of Asher, she is still referred to by the Torah as Asher’s child, since he raised her. This provides us with an important introduction to the concept of adoption, which we will discuss in the present article.
Is there a mitzvah to adopt a child? What are the guidelines for converting a non-Jewish child to Judaism? Is there a Yichud issue with an adopted child? Is he or she considered family with regard to aveilus and to honor parents? These questions, among others, are discussed below.
Mitzvah of Adoption
The Gemara notes that there is great virtue in raising a Jewish orphan and bringing him or her to adulthood and independence. The Gemara writes (Megillah 13a; Sanhedrin 19b) that, “one who raises an orphan in his home, it is considered as though he gives birth to him.”
The Chazon Yechezkel (Introduction to Yevamos) explains: “Even those to whom Hashem has not granted children are not prevented from the spiritual virtues of marital life in procreation and populating the world. The effort of raising an orphaned child at home is parallel to the pain of childbirth… thus each couple can participate in building the next generation and may take a part in the eternity of the Jewish People.”
Based on several sources, Rav Yaakov Emden adds (She’elas Yaavatz 1:165), “This does not apply to an orphan alone, but is true even if the child has biological parents, yet another brings him up for the sake of a mitzvah… It is considered as though he gives birth to him, literally.”
Adopting a Jewish orphan or child whose parents are unable to care for him is thus certainly a great mitzvah. In fact, Rav Shlomo Kluger (Shut Chochmas Shlomo, Even HaEzer 1:1) writes that according to some opinions, the mitzvah of procreation (peru urvu) can be fulfilled by means of adoption. This position is not held by other halachic authorities, yet it indicates the great virtue and value that halachic authorities grant to adoption.
Jewish or Non-Jewish Child
Often there are two options available: a Jewish child or a non-Jewish child.
A Jewish child has a preference because of the great mitzvah of raising a Jewish child whose parents are unable to care for his needs, or who may otherwise not have a Jewish home (see Shut Iggros Moshe, Yoreh De’ah 162, who underscores the difference between adopting a Jewish and non-Jewish child). Moreover, there is no mitzvah at all to raise a non-Jewish child. (This is stressed by Rav Moshe at the end of the second teshuvo.)
In practice, it is not always easy to verify the lineage (yichus) of a child, in which case unforeseen problems may arise concerning his entry into a Jewish marriage. Another concern is the possibility that a child of unknown lineage might end up marrying his relative, though it is possible that halacha does not obligate checking into this matter. Either way, before adopting a Jewish child it is therefore important to verify the child’s family background and to clarify his yichus.
This problem does not exist for a non-Jewish child. As part of adoption the child undergoes conversion, and he is thus permitted to marry any person permitted to wed a convert. An adopted (originally non-Jewish) girl may marry Yisraelim and Leviim, but she will be forbidden to marry Kohanim as are all converts.
Besides the fact that there is no mitzvah to raise a non-Jewish child, there is another drawback. Upon reaching the age of Bar or Bat Mitzvah the child must be informed of his or her conversion, and given the opportunity to renounce his Jewish status (Kesubos 11a). Should the child choose to reject his conversion, he would be retroactively rendered a non-Jew. Usually, having received a Jewish upbringing and being part of a loving Jewish home and a member of Jewish society, a child will almost automatically choose to confirm the conversion and retain his status as a Jew (see Shut Iggros Moshe, Yoreh De’ah 1:161-162). It is important to note that one may not skip this step.
When parents are non-observant, the matter of adopting a non-Jewish child and converting him to Judaism becomes more complex, and involves a significant dispute among Poskim (see Shut Iggros Moshe, Even Ha’Ezer 4:26). We will please G-d discuss this issue in a separate article.
Matters of Naming
Abaye was orphaned from both of his parents at birth and was therefore raised by Rava bar Nachmeni, his uncle. Although his uncle called him by the name of Abaye (which is an acronym for the words of the Pasuk asher becha yerucham yatom), the Gemara also calls him by the name Nachmeni—(the son of) Nachmeni (see Shabbos 33a, 74a, among other sources). This teaching indicates that an adopted child is named after his adoptive father. The principle applies even in secular law: an adopted child takes on the family name of his adoptive family.
The question is whether this principle holds true even for calling a person up to the Torah, or for a get or other legal documents. The Maharam of Rotenberg (Levov edition, no. 242) addressed a case in which a couple instructed that a certain sum should be given to “their son,” where in fact the son was a biological child of the mother alone. Maharam rules that because somebody who raises an orphan is considered as his true father, it is perfectly appropriate that he should be called his son. This suggests that even for the purpose of legal documents an adopted child can be called after his adoptive father.
According to several Poskim, this is the correct approach for purposes of calling a person up to the Torah, and a similar ruling emerges from the Chasam Sofer (Even HaEzer 76), who bases his opinion on the commentary of the Ramban mentioned at the opening of this article (among other sources; see also Midrash Shemos Rabbah, end of Chap. 46).
Even for a Get, some authorities rule that if an adopted child is named as the son of his adoptive father, the Get is valid (on a bedieved level; see Amira Ne’imah 124; Even Meir on Gittin, p. 8-10; Shut Mayim Chaim no. 62).
Concerning an adopted child who was converted, Rav Moshe Feinstein (Shut Iggros Moshe, Yoreh De’ah 1:161; see also Even HaEzer 1:99) ruled that the child can be called up as the son of his adoptive father.
Although it remains lechatchila to note a person’s biological father in the Get document (this will depend on specific circumstances, and might change if the name has been completely forgotten), for calling up to the Torah, and where an element of shame for the adopted child is involved, it seems appropriate to use the adoptive father’s name (but see Shut Minchas Yitzchak 4:49; 5:46; 6:151, who prohibits this practice).
If the father or the child is a Kohen, the matter will be more complicated, and in any event a competent halachic authority should be consulted.
A Member of the Family?
One of the questions most frequently raised in the context of adopted children is the question of their halachic family status. This is of special relevance to issues of yichud (seclusion) with adoptive parents and siblings, and to hugging and kissing adopted children. Are adopted children considered actual children for these purposes (so that no prohibition of yichud will apply), or are they not considered as actual family members (so that the prohibition will apply)?
Some halachic authorities forbid close physical contact with adopted children (see Devar Halachah 7:20, citing the Chazon Ish; Shut Minchas Yitzchak 4:49; 9:140; Shut Shevet haLevi 5:205; 6:196; Nishmas Avraham Vol. 5, p. 134). According to this view, adopted children have the same halachic status as strangers, and close physical contact is therefore prohibited. Likewise, one must be wary of seclusion (yichud) with an adopted child. On account of the closeness between the parent and the adopted child, this might be even more stringent than yichud with a true stranger (a halachic principle known as libo gas bah).
However, there is a more lenient view among Poskim, according to which when a child is adopted at a young age we assume that a basic father-daughter or mother-son relationship has developed between them, and that there is therefore no concern for any illicit relations between them. Based on this premise, there is no halachic reason to restrict the parents from treating their adopted children as their own, both for purposes of hugging and kissing, and for purposes of yichud.
This lenient opinion is upheld by Shut Tzitz Eliezer (6:40-21; 7:44, 45), and noted by several additional authorities (see Yalkut Yosef, Kitzur Shulchan Aruch p. 975; Asei Lecha Rav 3:39). Even those who rely on this view do so for the adoptive parents only, since this is of concrete importance in facilitating adoption and enabling children to find good, Jewish homes. It is not relied upon for yichud and close physical contact between siblings.
Rav Moshe Feinstein (Shut Iggros Moshe, Even HaEzer 4:64-2; see also Even HaEzer 4:71) is also lenient concerning yichud with adopted children, but for a different reason and under specific circumstances. Rav Moshe reasons that an adoptive father would never commit an illicit act with his adoptive daughter, for fear of being found out by his wife upon her return home. Therefore, he permits yichud with an adoptive child (or with a stepchild) at home, provided that both adoptive parents are alive, married and living together in one home. It is important to note that since Rav Moshe does not agree with the lenient opinion of the Tzitz Eliezer, should the parents divorce or one parent pass away the remaining parent will have to find some means to avoid the problem of yichud (which may be quite difficult).
Rav Moshe also justifies the practice of a parent hugging and kissing an adopted child, since this is done as any parent does to his or her child, without raising concerning for illicit relations.
The Limitations of Adoption
Whereas a legal adoption can completely sever the ties between a child and his biological parents, the halachic concept of adoption stops short of this. In halacha an adoptive parent gains a certain status vis-à-vis his adopted child, yet he does not gain a full blood connection, and this is exclusively the biological parents. Halacha does not recognize a “change of parenthood.”
Therefore, when a biological parent passes away, his or her children must mourn for him or her as for every parent, even after they have been adopted by another family. By contrast, although it is correct for an adopted child to mourn over his adoptive parents, this is not a full obligation, and the adopted child must put on Tefillin even on the first day of mourning, when a regular mourner would not wear Tefillin (see Shut Rema no. 118).
Likewise, although an adopted son should say Kaddish for his adoptive parent, the Chasam Sofer (Orach Chaim 164) rules that Kaddish recited by another mourner over his birth parent takes precedence. Certainly (as the Chasam Sofer writes), the adopted child must honor his adoptive parents; as those who raised him they are considered parents. And yet, there remains a difference between parents by adoption, and parents by birth.
We have seen that there is a great mitzvah in adopting a Jewish child, and there is certainly virtue even in adopting a non-Jewish child who is converted to Judaism. For certain purposes, halacha even considers an adopted child as the full and true child of his adoptive parents, though his biological parents remain his mother and father for all halachic matters (unlike in secular law).
However, this principle cannot be applied across the board for all areas of halacha. Poskim debate the status of an adopted child for matters of naming (especially for writing a Get), for inheritance, for mourning, and for situations of yichud and of intimacy. For the latter, which involves a particularly common issue for adoptive parents and children, and which can be central in facilitating an adoption, we have seen that there is room to rely on lenient opinions.