The changing definitions of family, in both civil and Jewish law, were explored at a Continuing Legal Education class presented by the Agency for Jewish Learning (AJL) on Friday, May 2 at Adat Shalom in Cheswick, Pa.
Rona Kaufman Kitchen, a family law expert who is an assistant professor at Duquesne University Law School, and Rabbi Scott Aaron, community scholar at the AJL, examined familial rights and standing, beginning with historical perspectives and moving on to contemporary dilemmas.
Kitchen focuses her scholarship on the intersection of motherhood and law, with an emphasis on cases in which the question of who is the legal parent is not clear.
“Sometimes the question of who is the legal mother is really hard to figure out,” said Kitchen.
Because family law is primarily regulated by each individual state, there is a lack of uniformity in the law, she explained.
Families move, she said, and that can be particularly challenging for same-sex couples, because laws regarding the legality of same-sex marriage vary from state to state.
Other thorny family law situations involve determining who has the parental rights of children born through artificial reproductive technologies, such as with sperm or egg donors or with surrogate mothers.
Kitchen also examined controlling case law that has set parameters concerning such issues as presumption of paternity — the presumption is in favor of the mother’s husband — and the trumping of the parental rights of biological parents over surrogates.
Aaron took the second half of the three-hour CLE to explore family in terms of halachah, beginning with familial relationships in biblical times, moving on to post-biblical family laws and finally examining those laws in relationship to the halachah relevant to Jewish families today.
Aaron examined cases recently decided pursuant to the Reform movement, as well as the Israeli Conservative movement, to show how Jewish family law is changing.
Looking at the status of children, Aaron discussed the question of how many generations does Jewishness continue pursuant to the matrilineal line, when the Jewish women in a particular family continue to intermarry and to not practice Judaism.
Here, Aaron pointed out a discrepancy between the views of traditional rabbis and the State of Israel.
“The rabbis say if a child is the child of an apostate, the apostasy does not negate anything,” said Aaron. “If you can show an intact maternal line, you can re-enter the community. But the State of Israel does not recognize this. If you are from the family of an apostate, or if you are an apostate, you are not permitted the right of return.”
Aaron also highlighted the difference in the Reform position regarding apostates, compared with the Orthodox position.
“If the issue were raised to an Orthodox rabbi, he would say that if there were an intact [matrilineal] line, then Jewishness is still in place,” explained Aaron. “But the liberal movement says that if a family has broken the line by conscious choice, and not under duress, then the right of autonomy holds … the offspring are not Jewish and have to convert back in. We live in an age of autonomy; the individual’s autonomy is primary here. If they chose to opt out, then their children have to opt back in.”
Aaron also examined the topics of conversion and whether it is permissible for someone to convert solely for the purpose of marriage. He also discussed the rabbinic courts’ control over marriage laws in Israel.
(Toby Tabachnick can be reached at firstname.lastname@example.org.)