Friday, August 17, 2007

Milah: Mitzvah on the father or son?

A bitter custody case in Oregon currently engages the issue of circ'n (milah): the father converted to Judaism, and wants to have the son circ'ed, the mother apparently is not Jewish - does the son have the right to decide to be circ'ed?

I don't understand why this is an issue: the son is old enough to make a conscious choice, he should be consulted.

Further, what's going on here? It appears the mother isn't Jewish, so neither is the son. Does the father want to force the son to convert? What beis din (Jewish court) would accept a convert under such circumstances?

Also: is there a mitzvah of circ'n independent of whether the son is Jewish or not? A literal reading (not that anyone seems to accept it) of the first law in the Shulchan Aruch (code of Jewish Law) on circ'n: "The father is commanded to circ his son." - seemingly regardless of whether the son is Jewish or not. Does the father take it this way? What rabbi would agree with him? It seems rabbis are not being consulted in this case, only a Harvard professor of family law.

I'm confused.

P.S. note the abbreviations. There are anti-circ crusaders who troll the Web looking for the full word, so they can come in and drop their propaganda on all and sundry. Hence the elision.


Lion of Zion said...

"what's going on here? It appears the mother isn't Jewish, so neither is the son. Does the father want to force the son to convert?"

i have a bukharian friend in school who is a mohel. he has gotten a few calls from intermarried families (usually the grandfather actually) who want to have a non-jewish baby circ-ed. they recognize he is not jewish, but they still want it done.

thanbo said...

Oh, I know. I've been an eid (witness) at such a milah (hard to call it a bris). The father was Jewish, the mother not, the grandparents were pressuring. I was at first hesitant, so I asked who the mohel would be. When they said "Phil Sherman", I acquiesced - I've known Phil for years, since he was the Youth/Outreach Director at Lincoln Square in the early 1980s. If Phil was doing it, there would be a halachic way to do it.

Sure enough, he did the milah leshem giyur - so that if Alexander wants to convert later, he can show off his bris certificate and not need a painful operation. So, the parents are neo-pagans in practice, so what? Children often wind up in different places than their parents, religiously as well as professionally or geographically.

Still, in that case, both parents were married and went along with the milah for the sake of the grandparents.

Here, though, they're talking about actual conversion, of a 12-year-old. So the beis din would have to take motivations into account.

And does the father have the mitzva to circumcise his non-Jewish son? See YD 260: It is a mitzva on the father to circumcise his son, and this is greater than any other positive mitzvah. That's it, the whole chapter.

The B'er HaGolah cites the Gemara in Kiddushin 29, and that Avraham circumcising his son Yishmael is the paradigm. But Yishmael wasn't Jewish? The Ishmaelites certainly aren't treated as Jewish. So it seems to me that the paradigmatic case tells us that a father circumcises his son, Jewish or not.

Steg (dos iz nit der šteg) said...

Maybe Yishma‘eil himself could count as Jewish, but his descendents don't because his mother got him an Egyptian wife? that would solve that exegetical problem.