Orli got in touch with me by telephone in order to tell me her difficult story: "I am divorced and a single mother. I have a daughter from my ex-husband and a son from another man." "What's the problem?" I wondered to myself. "I became pregnant from the other man while I was married to my husband. I was separated from my husband for about two years before he gave me a get, and in the meantime I met another man and became pregnant from him," Orli told me. The red warning lights began to light up for me.
On the face of things, there's no problem, Orli's dilemma can be resolved. The halacha and the State have joined forces to preserve the child's legitimacy. The halacha adopts the presumption that "most sexual relations are with the husband" and the child is determined to be the son of the ex-husband and not the son of the biological father. The State, on its part, makes sure to register the child in this manner in its formal registries. And in this manner, everything is satisfactorily fixed. The State and the halacha pat themselves on the back. Another child has been saved from the stigma of mamzerut.
But is everything really OK? Not at all. In a long conversation with Orli, the difficult problems with which she and her son have to deal become clear.
The first problem: "Everyone knows that the child isn't my ex-husband's," Orli told me. "I didn't hide my relationship with the other man. People aren't fools." Orli understands that in the future the child might hear rumors in the street or in school that he is not the biological son of her ex-husband. Orli is thinking about moving to another city because of this, in order to cover up her past, to rescue the child from the stigma of mamzerut.
The second problem: The child does not receive child support payments. Orli doesn't dare ask for child support from her ex-husband, because the child is not his. But she also cannot ask for child support from the child's biological father because she'd be disclosing the child's status as a mamzer. "It's a pity," Orli says, "his father is loaded with money and he could have supported the child in a very respectable manner."
"Does he know that he has a child from you?" I asked.
"Yes. He supported me during the pregnancy, and didn't want me to have an abortion, even though he understood the significance," Orli answered, "but he had some problems, was arrested and served time in prison. The relationship between us was cut off."
"What do you live off of now?" I asked.
"I'm not working. I receive less than two thousand shekels in child support from my ex-husband for the older daughter that I have from him. The rest the State pays."
Orli understands that it is preferable to bring up the family in poverty and thus save the boy from the stigma of mamzerut.
The third problem: In fact, the child has no father. He has a father on paper – but who will he call 'Daddy'? No one expects the ex-husband to act as a father to a child who is not his. But on the other hand, Orli cannot nurture the relationship between the biological father (who in any event has disappeared from her life in the meantime) and the child. In attributing the child to Orli's ex-husband, the halacha and the State have caused him to lose his biological father. We agree that there are a lot of children who grow up without fathers. Orli understands that it is preferable for a child to live without a father than to deal with the stigma of mamzerut.
The fourth problem: This is the most difficult one – and with regards to it I do not have any advice: A continuing emotional injury to the child. If the secret is kept – the child grows up as a rejected child. He will ask himself why the man who is registered in his identity card as his father, and who pampers his older sister, estranges himself from him. Why is the father, who has visitation arrangements to meet his sister, is not at all interested in him? And if the secret is not kept and the truth is made known to the child (and it is reasonable that this will happen, for example by the ex-husband) he will have to learn to lie to the world and especially to the marriage registrar.
If the child decides to lie, he lives all his life with a lie and knows that he is a mamzer. If the child decides not to lie – the halacha and the State have gained nothing – and we are back to square one – i.e., the child is recognized by the public as a mamzer.
The State, the halacha and the entire public expect Orli to build an entire world of lies surrounding the unfortunate child in order to save him from the stigma of mamzerut. There are only a few people who understand the terrible price that this child will pay and the fact that in cases in which the woman does not continue to live with her husband – it is almost impossible to hide the secret from the child. The State does not follow up with these children to see if it indeed acted in their best interests.
It seems to me that the time has come to stop talking in a formulaic manner and to stop thinking that we have solved the problem through technical registrations of one kind or another. The time has come to see the reality that exists on the ground, and to try to come up with better solutions regarding this issue.
Rivka Lubitch is a rabbinic pleader who works at the Center for Women’s Justice, Tel: 02-5664390