[Avodah] Donor Kids and Adoption (Micha Berger)

[Saul Mashbaum]

 RAMiller, regarding a brother and sister marrying as a result of sperm
donation

>>>

: You're thinking in terms of "kol d'parish meruba parish". Could it
: be that this case is considered "kavua", so that it is judged to be a
: 50/50 possibility?
>>


RMBerger

>>
I don't think a set that is leisa leqaman can have members that are
qavu'a. I think of qavu'ah as a situation that would have been a ruba
de'isa leqaman were it not that we had once known and pasqened about
the state of the members in the past.

>>>

Rava in Kiddushin 73a, says a shtuki is muttar min haTorah, because
"kol d'parish miruba parush". The gmara asks on him that perhaps "kavua"
applies here. The g'mara says that even kavua cannot make the shtuki any
more than a
safek mamzer (mechtza al mechtza) , and  a safek mamzer is muttar bat
Yisrael min
haTorah. So the gmara does apply the concept of kavua to yuchasin, although
the
discussion is about the shtuki himself with any given bat Yisrael, and  we
are talking about the set of possible fathers of the shtuki in a given
geographical area, which possibly may be considered a ruba d'ita kaman.
Indeed, the gmara there then says perhaps a shtuki is assur midrabban to
prevent
a brother and sister marrying, and rejects this as being so unlikely (lo
shchicha) that it would not be a reasonable basis of a gzeira. The gmara
concluded that a shtuki is assur midrabbanan as a safek mamzer, despite
being muttar min haTorah: "maalah asu b'yuchasin".

The Aruch HaShulchan YD 110 sk 14 cites this gmara, and says that the kavua
mentioned here is a different (weaker) kavua than the classic kavua case:
"ein hasafek nolad bimkom hakvuit". Ayen sham.

The gmara similarly reject the premise that an asufi is assur  b'bat Yisrael
in order to prevent
a brother and sister from marrying,  this possibility being too unlikely  be
a reasonable basis of a gzeira, as above.

Only shtuki and assufi are forbidden to marry (midrabbanan); an "regular"
orphan who does not know his parents may marry a bat Yisrael, and we are not
choshesh for a brother and sister marrying.
The Rambam states this explicitly in Hilchot Issurei Biah 15:29.

This is regarding the actions of the doubtful offspring.
However, in Yevamot 37b, it is stated that one should avoid having offspring
in a manner that may cause the possibility of a brother and sister marrying,
since the result of such a marriage (despite the innocence of the parents)
is nevertheless a mamzer. One of the cases, that of a man marrying women in
different countries, is cited as forbidden in EH 2:11.
The unlikelihood of such an eventuality is insufficient to permit one to
create the circumstances under which it may occur.
One may reasonably forbid a Jew to act as a sperm donor based on this
concept.

http://hebrewbooks.org/pdfpager.aspx?req=14313&st=&pgnum=146&hilite=

http://hebrewbooks.org/pdfpager.aspx?req=9759&st=&pgnum=78

http://hebrewbooks.org/pdfpager.aspx?req=14242&st=&pgnum=526&hilite=

http://hebrewbooks.org/pdfpager.aspx?req=14398&st=&pgnum=15

Saul Mashbaum
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