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The bastard clause November 19, 2010

Posted by Ezra Resnick in Equality, Ethics, Religion.

Two happy parents gave birth to a child in June, and yet the State of Israel will not allow the father to be listed on his daughter’s birth certificate. Why is that?

The Population Registry Law of 1965 states that no man can be listed as the father of a child unless he was married to the child’s mother or, in the case of unmarried parents, if the mother had not been married to another man 300 days prior to the child’s birth.

The law stems from the Jewish religious law forbidding a woman to remarry for 90 days after a husband’s death or a divorce. The law is meant to prevent uncertainty over the father’s identity and to lift the suspicion of mamzer (bastard) status from any child subsequently conceived.

So because the child was born less than 300 days after the mother’s divorce was finalized, the biological father (the mother’s new partner) cannot be recognized as such, cannot take his daughter to her medical check-ups, cannot register her for school, cannot take her abroad.

Notice, by the way, that this law doesn’t even make sense on its own terms. If we were really worried about the child’s paternity, merely omitting to document the problem wouldn’t solve it. And we could simply do a DNA test and settle the issue. But none of this matters, because the premise upon which the law is based is utterly immoral: penalizing a child for the circumstances of its birth. The Bible says explicitly that a “bastard” (and his or her offspring) can never be married to a legitimate Jew, but what could be more unfair than punishing a person for something done by his parents before he was born? And the parents didn’t even do anything wrong.

Yet another instance of religion insisting that everyone follow its stupid, irrational rules with no concern for the injury caused to innocent people.



1. Benjamin Resnick - November 19, 2010

1. Don’t group the Bible into this rule – it’s Rabbinic.
2. Don’t group the Rabbis into this 300 days rule – you’ve pointed out that they only said 90 days.
3. Although the Rabbis said don’t marry a widow, if one did that still doesn’t automatically make the kid a bastard – and doesn’t automatically mean we don’t know who the father.
4. You say “what could be more unfair than punishing a person for something done by his parents before he was born?” – but that’s true only if this is a punishment. There are MANY actions of the parents that AFFECT and have consequences or other repercussions on the life on a child.

Ezra Resnick - November 20, 2010

1, 2 & 3: Shift it around any way you like, the fact remains that this unjust law exists solely because of Jewish religious rules, and the purpose of those rules is to avoid “bastards” (whose dire fate is prescribed in the Bible and upheld by the Rabbis).

4: The point is that in this case the parents did nothing wrong, and there need be no negative consequences for the child. The law is creating a problem where none existed.

2. Benjamin Resnick - November 19, 2010

by your argument, no (potential) parent should ever be thrown in jail becuase that’s “punishing the child”

Ezra Resnick - November 20, 2010

You are talking about the indirect consequences that punishing a parent has on a young child. If a parent commits a crime, then we must indeed take into account the effects on his small children when deciding his sentence, and find some balance. But in our case, the parents did nothing wrong, so there’s no need to punish anyone, and even if they had, it would certainly be unjust to officially brand their child as “damaged goods” and place lifelong restrictions on him/her.

Benjamin Resnick - November 22, 2010

If you’re talking about after divorce, then I agree – they technically did nothing wrong, and of course the father should be listed as such.
If it was before the divorce I’d have to say they did something wrong, but would still want to see the father’s name on the birth certificate. I see no halachic reason to leave it off. It’s just a way of making the parents’ life more difficult – but there’s no religious reason to deny the parentage. In fact, I’d think there should be a halachic preference to record the correct father.

Ezra Resnick - November 22, 2010

So we agree that the current Israeli law is bad. But you still haven’t acknowledged the most important point: that the very concept of a “bastard” is unconscionable. No matter what the parents did, it would be wrong to impose an official, lifelong, second-class status (with marriage restrictions) on their child.

3. Benjamin Resnick - November 20, 2010

But I do agree with you on one point: I don’t like the version as it stands in Isareli law according to the Population Registry Law.

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