In this article we’ll review an interesting case managed by Decker, Pex, Levi that covered important issues like the question of being a “mamzer” in Israeli law, paternity testing in Israeli law, the complications of a siblinghood DNA test and the legal complications that might arise during an Aliyah process according to the Law of Return.
Israel’s Judicial Landscape: The Beit Din’s influence
In Israel the judicial system encompasses both secular and religious rabbinical courts. The latter – known as a Beit Din, plural Batei Din – operates in accordance with the halacha (Jewish religious law). Tracing back to the times of Moses, Beit Dins have stood, in every Jewish society, as a respected authority on religious legal issues.
Right before Israel’s creation, in 1947, David Ben Gurion, Israel’s first Prime Minister, came to an understanding with the religious parties, in order to persuade them to join the new state; this was known as the Status-Quo agreement, and amongst other guarantees, ensured that the matter of family law and personal status in Israel would fall under the jurisdiction of the rabbinical courts. Israel’s Batei Din system addresses divorce, marriage, conversion, kashrut supervision, and serves, with unanimous consent, as a court of arbitration.
What is a Mamzer in Jewish Law?
Under the Beit Din jurisdiction falls the issue of mamzer status. A mamzer is someone who is born of – or the descendant of someone who is born of – a biblically forbidden relationship: incest, adultery, etc. The term mamzer often gets translated as “bastard”, but the mamzer status is more specific in the context of Halacha.
Because Judaism is inherited matrilineally, and the mamzer status only applies to Jews, a mamzer can only be born as a result of married woman’s infidelity, not a married man’s. This nuance bears harsh circumstances for women that are denied a Get (Jewish divorce permit) by their husband, as any children from subsequent relationships would be mamzerim. Mamzerim have major disadvantages in Jewish society, as those under this status do not have the right to marriage within the borders Israel. However, mamzerim can be forgiven of this status after ten generations, rejoining Klal Yisrael.
As said limitations do a great deal of harm to the Jew in question, Israeli rabbinical Batei Din strive to the best of their ability to never declare anyone a mamzer or undertake tests that may result in someone having to be declared a mamzer.
Two Brothers Journey to Aliyah
An interesting case managed by Decker, Pex, Levi recently showed the bureaucratic underbelly of immigration to Israel according to the Law of Return and the lengths Israel’s courts go to, ensuring that individuals don’t acquire mamzer status. In this case, two half brothers, named Danny and Dima for the purpose of this summary, were both sons of the same father, Sergei. Sergei was a Jewish man from Russia, and he fathered Danny with his lawfully wedded wife. However Sergei also had an extramarital relationship, with whom he had Dima. Years later, just before Sergei’s passing, he finally disclosed his infidelity to his family, asking that they welcome Dima, as Danny’s brother. And so the family forged a connection.
Danny and his family inevitably made Aliyah, immigrating to Israel, meanwhile Dima stayed in Russia.
Just recently, following Hamas’s attack on October 7th, Dima felt a strong desire to relocate to Israel, and join Danny in making Aliyah. Now, even though Dima knew full and well that his father was Jewish, he lacked the documentation necessary to prove it.
Sergei’s name was omitted from Dima’s birth certificate- due to their relationship not being officially recognized. And even if Sergei were alive, his mere claim of Dima being his son wouldn’t be legally sufficient. Consequently, Dima had to seek a paternity test, to prove his eligibility for Aliyah.
Performing a Paternity Test in order to prove right for Aliyah
Because Sergei’s only legitimate child was Danny, the “paternity test” would instead be a test establishing the two are siblings, and require that a test of Danny’s DNA against Dima’s.
Proving paternity in Israel with a “simple” tissue test is actually fairly complex. The individual seeking to prove their parentage cannot just take a DNA test independently and submit the results to the authorities. Legally, an application must be made to the Family Court to validate the entitlement to the test. Subsequently, the court will direct the individual to an authorized lab in Israel for the test (or to an embassy overseas, where the DNA sample will be forwarded to a certified lab in Israel). At the Family Court, the necessity of the test must be shown, along with confirmation that there are no objections from the state prosecutor.
In addressing the intricacies of paternity testing to determine Jewish/Israeli heritage, you might be wondering: Why not just let the petitioner finance the test, and receive a straightforward confirmation of their father’s identity? The answer lies in a blend of bureaucratic inertia, and the obligation of compiling all necessary documentation before approving the test. This red tape significantly adds to the complexity of the procedure. Additionally, there is a distinct preference for conducting a “triangulated test” that includes the father, mother, and child. This approach, however, encounters hurdles when one of the parents is either deceased or unwilling to partake in the test.
Another complication arises if the mother is a married Jewish woman- bringing into play the delicate issue of mamzerut. Given the stringent Jewish laws regarding this status, it was crucial for Dima to establish that his mother was not Jewish. However, in Dima’s case, the challenge was compounded – as both his parents had passed away- a triangular test was unfeasible.
Consequently, an alternative approach was sought: a test to demonstrate that Dima and his brother Danny shared the same father. To support his claim, Dima provided evidence confirming his mother’s non-Jewish identity and underwent a tissue test alongside Danny.
After a waiting period filled with anticipation, the results arrived, confirming that Dima and Danny were indeed half-brothers, sharing the same father.
Navigating the Intersection of Religion and Law
This case highlighted the intricate legal and cultural considerations involved in paternity testing for Aliyah in Israel, especially when it intersects with religious laws and social status concerns. Many Israelis call the system of religious courts archaic, claiming that statuses like mazer are not only a restriction on liberties, but also that they create unnecessary obstacles, posing significant challenges for people like Danny, during the Aliyah process.
Ultimately, these proceedings reflect the ongoing evolution of law and tradition, in a country rooted in its ancient history while continuously adapting to the realities of its modern citizens.