Jonathan Muskat

Utilizing DNA Evidence to Prove Jewishness

Recently, the Israeli press reported that the Chief Rabbinate is utilizing DNA evidence to prove Jewishness.  There is a test of mitochondrial DNA which is only passed on a maternal line and fathers have no influence on mitochondrial DNA.  There are some DNA sequences that are known with a very high degree of certainty to be found specifically and exclusively in specific Jewish population groups, such as those of European Ashkenazi ancestry.

The Israeli Law of Return grants near-automatic Israeli citizenship to immigrants with at least one Jewish grandparent, but the Chief Rabbinate only recognizes them as Jews if they are Jewish according to halacha.  This creates a particular challenge for an immigrant from, say, the former Soviet Union, who is unable to prove that he or she is Jewish.  In a responsum from the last century, Rav Moshe Feinstein wrote that we trust someone who says that he’s Jewish because his word alone is trustworthy as nobody in America (at least at the time of the responsum) would represent himself or herself as Jewish and subject him or herself to persecution if he or she wasn’t Jewish.  This logic may not be applicable to those who come to Israel for socio-economic or other opportunities.  In America today, as has been explained to me by a member of the Beit Din of America, evidence to prove Jewishness currently includes ketubot, documentation of synagogue affiliation, burial records and photos of matzevot and census records that show Yiddish being spoken.  In Israel, the current Chief Rabbinate has their own set of protocols to follow in determining Jewish status.  The question is, with the more recent availability of mitochondrial DNA testing, will the Chief Rabbinate require or admit DNA evidence?  Is this a good policy?

Some have argued that such testing is a chilling, pseudoscientific development more suited to eugenics-crazy Nazi Germany than the Jewish state.  They worry that using DNA evidence to determine Jewish identity is a dangerous step, and risks turning Jewishness into a racial, rather than a religious or national identity.  I appreciate that concern, especially if the individual trying to prove his Jewishness has already presented enough evidence that would be acceptable to the Chief Rabbinate, rendering the DNA test halachically unnecessary.  However, if the individual trying to prove his Jewishness has been unable to present sufficient evidence due to practical constraints, then I would imagine he would welcome utilizing this test which could support his claim.  I think that there is a difference between requiring a person to undergo a DNA test and accepting the results of someone who voluntarily underwent a DNA test.  Nonetheless, I do understand the slippery-slope concern.  Once we allow someone to voluntarily provide DNA evidence, courts may require this evidence in the future, either explicitly or implicitly.

This is not the first time that the slippery-slope argument has been raised with respect to the admissibility of DNA evidence.  A child is a mamzer if he was conceived from certain illicit unions. For example, if a married woman had an affair and a child is conceived from that affair then the child is a mamzer and most people are halachically forbidden to marry this individual.  This creates an excruciatingly difficult life for the child.  As such, we leave virtually no halachic stone unturned to try to determine that the child might not be a mamzer.  In such cases, doubt about paternity helps us.  When there is any doubt as to the paternity of the child, we rule that someone who has a status of only a doubtful mamzer may marry other Jews.  But what will happen if we allow DNA evidence in a paternity case when the wife is charged with having an affair and the husband doesn’t wish to pay child support?  Could this evidence then be used to determine that the particular child is a mamzer? Can we allow DNA evidence when it suits us, and not when it doesn’t?  Or perhaps it would be better to just never admit DNA evidence in any case, out of concern that once we let the genie out of the bottle and allow it in some cases then we will allow it in all?

That argument was rejected in the aftermath of the 9/11 World Trade Center attack when a number of Jewish husbands who worked in downtown NYC were missing.  In that instance, the Beit Din of America partially relied on DNA testing to identify the remains of some missing husbands, in order to save their wives from being trapped as agunot.  However, the concern was raised then that once the Beit Din accepts DNA evidence as evidence of the husband’s demise, then Batei Din will more likely accept it in the future as evidence of parentage.  This could potentially open a floodgate of mamzerut cases in which DNA evidence indicates that the husband is not the father of the wife’s child.  In response to this concern, Rabbi Mordechai Willig argued that we should permit an agunah to remarry based on DNA identification even though it might theoretically lead to the proliferation of mamzerut cases, based on the principle of “ain dochin nefesh mipnei nefesh” – that we don’t sacrifice one soul in order to save another.

It would seem to me that we should apply the same logic here.  While I understand the concern of requiring DNA testing when unnecessary to prove Jewishness, I think that if I was in a situation where DNA evidence could provide sufficient evidence to conclude that I was Jewish from a halachic perspective when other evidence was insufficient, I would voluntarily submit such evidence to the Beit Din and ask that they allow it to prove my Jewishness. At the same time, simply because the genetic technology exists does not mean that we should utilize it when it is not necessary to do so. We should continue not to require DNA evidence either to prove Jewishness or to determine a parent’s identity, and generally remain cautious about our use of these advancements in genetic testing.

About the Author
Jonathan Muskat is the Rabbi of the Young Israel of Oceanside.
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