By the early 1990’s, the admissibility of DNA evidence in both criminal and civil matters was widely accepted throughout the United States.  In a 1990 study, for example, it was revealed that DNA evidence had been introduced in at least 185 criminal cases by 38 states, and in only one case — People v. Castro, 1989 – was “the evidence held inadmissible to link the defendant to the crime scene.”  In paternity suits, the technique achieved an even higher level of respect, “is used widely and has quickly established itself as the preferred method for linking putative father to child.”[1]

              Given Judaism’s passion for truth – as the Talmud reports, “Truth is the seal of the Holy One, blessed be He”[2] – one would assume halacha would have warmly embraced the advent of DNA testing in a similar fashion.  After all, the accuracy of this type of testing began at around 99.6% in 1982, and has only become more accurate over the years.[3]  However, nothing could be further from the truth.  Indeed, already beginning when the precursors to DNA tests — blood tests – became available to determine paternity, the majority of major poskim categorically rejected this type of scientific evidence as admissible in beit din proceedings.  It seems that Rabbi Ben Zion Chai Uzziel, the Sefardic Chief Rabbi of Israel (1936-1953) was the first to object, but the list of those in the rejectionist camp also included “many of the great dayanim of the twentieth century, including Dayan Ehrenberg, Rav Eliezer Waldenberg, Rav Ovadia Yosef and Rav Shalom Messas.”[4]  In the 1980’s when DNA testing became common, the majority of poskim transferred their rejection of accepting blood tests as evidence for paternity determination to the new DNA tests, despite the even more elevated level of accuracy.  And while each such posek may have articulated a slightly different reason for his objection, the underlying motive seems to have been fairly uniform across the board: To avoid having to declare a child a mamzer.  A typical case, for example, was when Rav Yosef Shalom Eliashiv waded into the matter.  The question he was presented with involved a case where a pregnant wife claimed that her husband was not the father of the unborn child.  Notwithstanding that claim, the child was born and for all appearances was raised as the son of this husband.  Years later, the father asked for a DNA test to remove his doubt inspired by his wife’s claim and determine definitive paternity.  “Rav Eliashiv ruled unequivocally that ‘a Chazakah has been established that he is the father of the child, and one has no right to cast aspersions on the legitimacy on the child by engaging in testing.’”[5][6]

              Interestingly, and crucially for our purposes, this concern with preventing declarations of mamzerut migrated from the world of psak halacha to the world of ‘secular’ Israeli law during this same time.  This migration is perhaps best described by a 1994 Israeli Supreme Court Case, Attorney General v. Anonymous.[7]  In this matter, a pregnant wife was divorced by her husband, after which she asked the court to require the husband to pay child support upon the child’s birth.  The husband claimed the wife had been involved with other men during their marriage and because of this fact, as well as his own lack of intimacy with the wife, he was doubtful that he in fact was the father of the unborn child.  As a result, both parties agreed upon birth to have tissue-typing test conducted to determine paternity.  In American law this would have been quite acceptable.  In Israel, though, the Attorney General intervened and prevented the test from being performed, arguing that the results from the test “are likely to impugn the infant’s personal status as the child of her parents” – i.e., the test would declare the baby a mamzer.  The parents went to court to force the Attorney General to permit the test, and indeed the District Court order exactly that.  The argument offered by the District Court included the admission that this test may indeed damage the child’s reputation, but it was nevertheless appropriate given that “uncovering the truth is a court’s first and foremost function in every legal proceeding … To be sure, uncovering the truth occasionally causes harsh consequences … Nevertheless, as a rule, we should not refrain from uncovering the truth when the truth is critical to the adjudication of the dispute.  On the contrary, the search for the truth should be seen as the most important element of justice, more important, in general, than any other fundamental principle.”

              The AG appealed this decision to the Supreme Court, which in turn overturned the lower court’s decision.  Writing for the court, Justice Menachem Elon addressed a number of fascinating issues, including: whose rights are paramount (the child – to not be declared a mamzer – or the father – to not have to pay child support); who is best situated to represent the child (the usual default choice, the parents, or – due to the fact that in this instance the  parents may have competing interests, perhaps the state); and the relationship between Rabbinical courts adjudicating the same types of cases and the general Israeli legal system. 

But it was his focus on two primary issues that was most significant.  The first one related to the mamzer question specifically, exploring how devastating such an assignment was historically – primarily because it severely limited a child’s marriage options – and how the Rabbis went to great lengths to avoid such an assignment.  “The Sages developed a series of principles, assumptions, presumptions and legal fictions to solve the problem of children who are mamzerim and to return them to the bosom of their nations.”  The Shulchan Aruch, for example, notes that where there is a tainted individual but it is not publicly known, whoever knows of the taint may not reveal it.[8]  Also, as a general principle, we hold that any child born to a married woman is legally presumed to be the child of her husband (based on the principle of rov – “follow the majority, which in this case is that most sexual relations are with the husband”).[9]  The only exception to this general rule is when it is completely impossible to suggest the child is the product of the husband, as in a case when he is overseas for a substantial amount of time and there is no chance he could have fathered the child.  But even here the Rabbis demonstrate tremendous generosity, arguing that this ‘substantial’ time is more than a year, arguing that if the period of separation was, say, only 11 months, well, then, there is a chance – perhaps infinitesimally small but a chance nevertheless – that the child is the husband’s after all.[10]  Elon continued in this vain for some time, concluding that since the clear Jewish law perspective on mamzerut is to rely on such presumptions and principles in order to “almost completely negate” the possibility of illegitimizing a child as a mamzer, it is “incumbent upon us to prevent the creation of evidence demonstrating that the child does not belong to the husband of his mother.”

The second major focus on Elon’s decision treats the obvious philosophical challenge presented by relying on such presumptions.  In the words of the District Court position: What about the truth?!  After all, is not determining the truth the role – and duty – of the court?  And does not reliance of these somewhat fantastical presumptions undercut this very obligation?  To all this Elon responds by distinguishing between two types of truth, what he calls legal truth and factual truth (or in the lingo of American jurisprudence, formal legal truth and substantial truth).[11]  Like with any judicial system, Elon argues, the court has the right to prejudice evidence in order to achieve certain goals.  In American law, for example, the courts don’t force lawyers to reveal secrets their clients shared with them, or spouses to testify against one another, not because the evidence they might provide would not be true, but rather because higher aspirations are at play and such formal rules of evidence – and the legal truth they thus provide –  while perhaps forfeiting a substantive truth on one particular matter, increase the chances the system as whole will achieve these greater goals.  In the first example cited above, for instance, we believe that justice is best served in a system where the clients feel free to share important information with their attorneys; to make a Faustian bargain of achieving some additional information in the short term but losing the integrity and efficacy of the system as a whole is not deemed worthwhile.

Elon then concludes that what is ‘true’ about truth in the American system is – or should be – doubly so for a Jewish system.  He cites a number of different Rabbinical interpretations for the Talmudic statement “a true judgment to its very truth – din emet le’amito[12] to support this assertion.  One explanation suggests that a true judgment to its very truth requires a judge to take into consideration realities of time and place in addition to the precise letter of the law;[13] another argues that a judge must not only be an expert in Torah but also worldly affairs, for if not he might render a true judgment but not one in the fullest sense of the truth;[14] and another still notes the ultimate goal of Jewish law is to “strive to reach a judgment that is both just and true.[15]   Factual truth, then, might in fact be true; but halachik truth – truth to its very truth – which is the ultimate objective of Jewish law, that must be “derived from a combination of law, lifnim mishurat hadin and an array of worldly matters and values.” 

From this conclusion to the rejection of DNA evidence is a very short trip.  The conflict is clear.  Is the value of uncovering the truth about paternity take precedence over the value of the best interests of the child?  For Elon, the answer is also clear; it does not.[16] 

[1]John C. Dougherty, Beyond People v. Castro: A New Standard of Admissibility for DNA Fingerprinting, 7 J. Contemp. Health Law & Policy 269 (1991)

[2] Babylonian Talmud Shabbat 55A

[3] Rabbi Chaim Jachter notes the widely accepted 99.6% figure in a 2007 Kol Torah article (Volume 16) Blood Tests and DNA, Part 4, and then quickly updates it by noting “it is no longer valid, since currently the chance of error in a properly administered DNA test is greater than ten billion to one.”

[4] Jachter, Blood Tests and DNA, Part 1, Kol Torah (Volume 16) 2007.

[5] Ibid

[6] It is interesting to note that this preference to reject DNA testing – due to concerns of mamzerut – was challenged by the horrific events of 9/11.  There, a competing concern entered the picture – the desire to avoid agunot.  In this case, the use of DNA evidence might have proven helpful to declare a ‘missing’ husband halachikly dead, which in turn would free the widow to remarry. 

[7] Subsequent quotes not otherwise attributed are from this case.

[8] Shulchan Aruch, Even HaEzer 2:5

[9] Babylonian Talmud Hullin 11B

[10] As the BT Yevamot 80B suggests, it is possible – or rather, it is a legal presumption – that a fetus might remain in its mother’s womb for up to 12 months.  See also Rambam Mishneh Torah issurei Bi’ah 16:19-20.

[11] For more on this topic from the American perspective, see: Summers, Robert S., “Formal Legal Truth and Substantive Truth in Judicial Fact-Finding – Their Justified Divergence” (1999). Cornell Law Faculty Publications.

[12] BT Shabbat 10A, Sanhedrin 7A

[13] Tur, Choshen Mishpat 1:2

[14] Vilna Gaon on Proverbs 6:4

[15] Rashi on BT Sanhedrin 6B

[16] Elon’s decision goes on to point out this conclusion is not just due to Jewish sources, but also based on Israeli law.  Section 68 of the Legal Capacity and Guardianship Law, for example, offers a clear directive when considering questions of medical treatments for children (and Elon, amongst others, argues that the DNA test is a form of coercive medical treatment for this child).  The directive is this: “The court should not order such treatment unless it is convinced that the requested means are necessary to protect the … mental health of the child.”

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