[Avodah] [Areivim] jews?

[Chana Luntz]

RZS writes:

> Why?  AIUI, we (the BD or the parents) accept ol mitzvot on the minor's
> behalf. 

The adoptive parents have no halachic status vis a vis this non Jewish child
- so how do you get to what is effectively a form of shlichus in which they
act on behalf of this child?  And Beis Din - look at how complicated the
issue is for Beis Din to separate a Jewish child b'yadam from treifos and
neveilos -  and this goes way beyond that.  

> We assume that if he had daat he would have agreed to accept
> it, so we do it on his behalf, subject to his approval when he grows up.

BTW though, even this opens up a relatively simple way of dealing with the
issue faced by the State of Israel - get Beis Din to convene every year and
accept ol mitzvos for every minor born to an Israeli who came in under the
law of return (or whatever criteria you want to use to make sure you catch
whomsoever you want to catch).  If they had been doing this since the
creation of the state - we would have a *much* more limited problem today.

> Or, in the case of the father, he has total reshut over his child, and
> can accept ol mitzvot on his behalf, substituting his own daat for his
> child's.

A non Jew does not have this halachic status vis a vis his child (after all,
in many ways halachically, we don't even recognise his child as his) and
adoptive parents have even less, probably at most a dina d'malchusa dina
form of reshus.
> 
> > We don't hold like that.  We don't even *require* them at bas or bar
> > mitzvah to make a formal acceptance (although some do).  To uproot
> > the giyor, they have to make a formal protest - without that, they
> > are Jews.
> 
> They don't have to make a formal protest, they just have to not be
> keeping mitzvot. By continuing to live as if they were obligated in
> mitzvot, they signify their assent to the commitment that was made
> in their name.

Source? - the Shulchan Aruch seems to say precisely the opposite:

Yoreh Deah siman 268 si'if 7 "And whether he was a minor megayered by his
father or by beis din he is able to protest when he becomes a gadol and
[then] his din is not like a Yisroel mumar, but rather like a non Jew".

Si'if 8:  "in regards to what are we speaking, when he does not conduct
himself as a Jew [noheg minhag Yahadus] when he becomes a gadol, but if
conducts himself as a Jew when he becomes a gadol then he is no longer able
to protest."

That is, if he is keeping mitzvos (clearly the most stringent version of
what noheg minhag Yahadus means) he cannot protest and decide to be a goy.
Only if he is not noheg minhag Yahadus does the option of protest exist.

 
> Zev Sero               Something has gone seriously awry with this Court's

RIS then writes:

> If giyur is valid without kabbalat ol mitzvot, than why is giyur by a
> Conservative beit din, which includes mikveh and (for males) milah, not
> valid?

However you want to go on kabbalat ol mitzvot, there is no question that one
of the outcomes of the sugya in Yevamos 45a and following is that for a
valid conversion you need three kosher dayanim.  That, BTW seems to be the
basis for the nullifications that has sparked all of this off - if the
dayanim in question are not kosher, then all the conversions they do are not
valid, no matter whether there was in other ways the most perfect of
requirements.  A conversion beno u'bein atzmo (ie a private conversion, no
matter how sincere, involving tevila and mila) is not a conversion.  And
similarly a conversion in front of somebody not kosher to be a dayan does
not count for anything.

> - Ilana

Then RTK writes:

>But no (or few) poskim would perform a gerus on a child being adopted by
>non-observant Jews who will not raise the child to be Torah-observant.

Agreed - that is the general policy.  Remember converts who are not going to
be observant are generally considered not to be good for the Jewish people,
so if we put people off conversion, that is not a problem.

>  So SOMEBODY has to be mekabel ol hamitzvos it seems to me

This though does not follow in logic.  The fact that you might choose, on
public policy grounds, not to do something, does not mean that halachically
it cannot be done.

> -- if not the child (since he's not a bar da'as), then the parents who
>will raise and educate him.

This on the other hand postulates the idea that a parent, any parent (and
even someone with non halachic status as parent) has the power to do more
than just raise and educate - they are able to effect life changing status
decisions upon a child.  Now there are halachic cases of this: the main one
is the power of a father to marry off his minor daughter (ie substitute his
daas for hers).  This changes her from single to married, without her
consent, and she is stuck with it (to the extent that having relations with
somebody other than her husband carries the death penalty).  To a lesser
extent, the father also has the power to sell her as a slave - but this
power to change her status disappears on her majority so it is not really
comparable.  The rabbis also gave a mother and brother the power to marry
off a minor girl without her consent (rabbinically), but with her then
having the ability to protest on majority - and this would seem to be about
the closest halachic scenario to what you are suggesting.

But all of this is specifically limited to the blood relatives of the child.
The biological father (but not an adopted father) by Torah law, the mother
and brother (but not an adopted mother or brother) by rabbinic law.  It was
not even extended to Beis Din to allow them to marry off an orphan minor
girl.  So to be suddenly handing out a general power to substitute for the
daas of a child to whomsoever has some sort of secular powers in relation to
such child, seems a truly extraordinary chiddush - far more radical than
suggesting that kabbalas ol mitzvos is, ultimately, just not an instrinsic
requirement, at least in the case of a minor.

Regards

Chana