Religious coercion for the sake of the children

Two recent cases demonstrate religious coercion in Israel:

In one case, a rabbinical court in Netanya ordered a child to undergo a brit (circumcision) against the wishes of the child’s mother. The order was given at the request of the father during divorce proceedings between the parents.

Normally, no civil or rabbinical court can compel a person to observe a religious commandment, especially one that involves an indelible change on the body such as a brit. What’s more, rabbinical courts are only allowed to adjudicate matters tied to the resolution of disputes in a divorce. In matters pertaining to the children, both parents must act in joint consent. When parents cannot agree on matters related to their children, such as custody arrangements and educational choices, a court may decide the issue in the best interest of the child.

In this case, the rabbinical court reasoned that even at eight days of life, a brit is an indispensable part of a Jewish child’s education and identity, and can be adjudicated just like any other disagreement between parents in the course of a divorce. Coercing a child to undergo a brit, they reasoned, was no different than resolving a parental disagreement over what school the child should go to, for instance, and was within the authority of the religious court to decide. Naturally, they sided with the parent who wanted the brit.

But it is not only rabbinical courts who view children’s interests from a religious perspective. The civil courts do it too.

In another case, this one before a family court in Haifa, a judge refused to allow a married couple to undergo genetic testing that would prove that their son is the biological child of the husband. The reason – the son was born while his mother was still halachically married to her ex-husband, and the child was falsely recorded as the ex-husband’s son. Proving that the second husband is the real father would make the son a mamzer – the offspring of illicit relations who is not eligible to marry within the Jewish community according to halacha.

The mother began her relationship with her second husband and gave birth to their son during the long years in which her ex-husband refused to give her a get; the ex-husband even served a prison term for this refusal. The son lives with both biological parents and is being raised by them. The ex-husband plays no role in the boy’s life; a restraining order prevents him from having any contact with the boy. But the ex-husband, not the biological father, remains falsely registered as the boy’s father in official documents.

Under Israel’s Genetic Information Law, as amended in 2008, a court can block the performance of a genetic paternity test in circumstances that would lead the child to be considered a mamzer. The law is intended to protect possible mamzerim by preventing any conclusive determination of their parentage.

This protection comes at a cost. The child is unable to assert his family identity and bear his father’s name. He is denied inheritance rights and other family rights under the national social security system. There could even be medical implications from not being allowed to undergo certain genetic screening tests.

Although the family court recognized these possible harms, it nonetheless decided that the child’s future ability to marry in the Jewish faith outweighs all other considerations. It even outweighs the truth.

What is remarkable here is the alignment of the parties: On the one side, both biological parents argued that their child’s best interest is to be recognized as their son. On the other side, a state-appointed lawyer acting for the child and a court-appointed psychologist, siding with the non-father ex-husband against the child’s recognized parents and legal guardians, argued that it is in the best interests of the child to perpetuate a lie for the sake of a future religious marriage.

In both cases, the courts had a point. It will be hard for those kids if they grow up and cannot participate fully in the Jewish community. But the outcomes of these cases are almost besides the real issue.  The sad lesson is that in Israel, rabbinical and civil courts are willing to overrule parents’ judgments of their children’s best interest in the name of religious observance.

About the Author
Akiva Miller is a Jerusalem-born researcher and lawyer, currently residing in New York.