73a: Children of Unknown Parentage (1)

A scan of the classic printed daf can be found at: http://dafyomi.org/index.php?masechta=kiddushin&daf=73a&go=Go Key words and phrases in Hebrew and Aramaic are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  From time to time, the shiur will include instructions to stop reading and do some task on your own. This will be marked by a red pause box  It is highly recommended that you follow those instructions. I am still working on a way to have your computer melt if you don't, but as of yet, the technical details are still beyond me. Within the quoted texts, my explanations and additions are also noted in red.

Last week, we studied the Gemara's explanation of the prohibition of shetuki, one who does not know the identity of his father. The Gemara explained that despite the fact that it is conceivable that he is a mamzer, a shetuki is permitted, on a biblical level, to marry into the congregation; this is due to the fact that people of pure lineage are only prohibited from marrying definite mamzerim. At the same time, the shetuki is allowed to marry a mamzeret, as only people who are certainly of pure lineage are forbidden from marrying mamzerim. Nevertheless, the Rabbis forbade a shetuki from marrying Jews of pure lineage in order to maintain high standards of genealogical purity within the general population.

The Gemara now continues to discuss the case of an asufi, one who does not know the identity of either of his parents. The word asufi literally means 'one who has been gathered;' the most common example of a person who does not know the identity of his parents is the case of a baby who has been abandoned, and then taken in.

We begin nine lines from the end of 73a.

 

Rava said: "[According to] biblical law, an asufi is fit; What is the reason? A married woman attributes it to her husband; what [reason] is there [to forbid an asufi]? A minority of betrothed women and a minority of women whose husbands have traveled to a distant place; since there are unmarried women and those who [abandon their babies] due to starvation, it is half and half, and the Torah said: 'A mamzer shall not enter the congregation of God' - a definite mamzer should not enter, but a questionable mamzer may enter, he may not enter a definite congregation, but he may enter a questionable congregation."

אמר רבא: דבר תורה אסופי כשר; מאי טעמא? אשת איש בבעלה תולה; מאי איכא? מיעוט ארוסות ומיעוט שהלך בעליהם למד"ה (למדינת הים); כיון דאיכא פנויה ואיכא נמי דמחמת רעבון, הוה פלגא ופלגא, והתורה אמרה: לא יבא ממזר בקהל ה' - ממזר ודאי הוא דלא יבא, הא ממזר ספק יבא, בקהל ודאי הוא דלא יבא, הא בקהל ספק יבא.

Rava teaches that, on a biblical level, an asufi is also permitted to marry in the broader population. This is due to a calculation regarding the probability of an abandoned baby being a mamzer. Many cases of abandoned babies arise from cases in which it was conceived out of wedlock, and the mother abandons the baby in order to avoid social stigma or in order to avoid having a constant reminder of an embarrassing chapter in her life. Nontheless, Rava explains, it is not likely that the baby is the child of a married woman: even if a married woman has conceived an illegitimate child through an extramarital affair, she will generally not abandon the baby, because she will simply claim that it is the child of her husband. There is a certain percentage of abandoned babies that are the children of married women who cannot easily claim that their husbands are the fathers of their children, such as betrothed women or women whose husbands have embarked on extended journeys.

Betrothal refers to erusin, the first stage of halakhic marriage. Erusin is commonly accomplished nowadays when the groom gives his bride a ring and pronounces that she is hereby betrothed to him through the giving of this ring. Once erusin has been performed, the couple is considered to be legally married, though they do not start living together until after the second stage of halakhic marriage, known as nisu'in, commonly performed nowadays via the chuppah or yichud, when the bride and groom first spend time alone together. Although nowadays the two parts of the marriage process are performed one after the other, in previous times it was common to perform nisu'in up to a year after the erusin. A woman who has participated in erusin is known as an arusa; if such a woman were to conceive via extramarital affair, she would not easily be able to claim that the child was fathered by her husband, as she and her husband have not yet begun to live together. It is thus conceivable that the arusa would abandon her baby, who has the status of a mamzer. Similarly, a woman who conceives while her husband is away on an extended journey would be unable to claim that her child was legitimate, and might abandon her baby. Thus, there is a chance that any asufi is the product of such an extramarital affair, in which case he would have the status of a mamzer.

On the other hand, Rava argues, a percentage of abandoned babies are the children of unmarried women who have conceived out of wedlock. Although all sexual contact outside of the context of marriage is prohibited by halakha, only children who are the product of incestuous relationships or extramarital affairs on the part of their mothers are considered mamzerim. Thus, if an asufi is the child of an unmarried woman, he would not have the status of a mamzer. Similarly, a percentage of asufim are abandoned even though they are conceived in legitimate fashion, such as by a parent who does not have the financial means to support a child. Thus, the probability that an asufi is a mamzer is only "half and half." This does not mean that the percentage of abandoned babies who are mamzerim is exactly fifty percent, but that the reasonable circumstances regarding the background of such a baby are equally split between circumstances that would render the child a mamzer and those that would not. The main point is that we have a bona fide doubt regarding the genealogical purity of an asufi. 

That being the case, we can apply the same reasoning that we saw last week regarding the shetuki: the gemara derives from a verse that only a definite mamzer is off limits to regular Jews, and that only people who definitely are not mamzerim are forbidden from marrying mamzerim; thus, an asufi should be allowed to marry a regular Jew or a mamzer, as he sees fit.

 

Why does the Gemara find it necessary to go through a whole calculation regarding an asufi in addition to its presentation of why a shetuki should be biblically permitted to marry regular Jews - they both end up being based on the same reasoning, that only a definite mamzer is prohibited to the congregation! Did you notice the area of difference between the two cases?

There are two types of unions that create mamzerut: an incestuous relationship and an adulterous one. A shetuki knows his mother but not his father; generally, this means that his mother was not married when she conceived him, which rules out the possibility of an adulterous relationship. The only concern is that the father is a close relative of the mother, which is uncommon. In the case of the asufi, there is also the possibility that the child was conceived through an adulterous relationship; he may be the child of an arusa or a married woman whose husband is away. Thus, there is a greater reason to be strict with regard to an asufi, and the Gemara must justify why, on a biblical level, even the asufi is permitted to marry into the general Jewish community. This progression, in which the Gemara teaches us one law (that a shetuki is permitted according to biblical law) and then a second (the law of asufi) which is a greater chiddush (novelty) than the first, is common in the Talmud, and is known as lo zu af zu - "not only this, even that."

The Gemara continues by explaining the rabbinic prohibition that disqualifies an asufi from marrying someone of pure lineage. We are four lines from the end of 73a.

 

 

And what is the reason that an asufi is unfit? Lest he marry his paternal sister. If so, an asufi should not marry an asufit, lest he marry his paternal or maternal sister! Do they (mothers who abandon a child) continue to throw out all these (all their babies)?  He should not marry the daughter of an asufit, lest he marry his sister! Rather, it is not common. Here too, it is not common! Rather, they set a high standard in genealogical matters.

ומה טעם אמרו אסופי פסול? שמא ישא אחותו מאביו. אלא מעתה, אסופי אסופית לא ישא, שמא ישא אחותו בין מאביו בין מאמו! כל הני שדי ואזלי? בת אסופי לא ישא, שמא ישא אחותו! אלא לא שכיח. ה"נ (הכא נמי) לא שכיח! אלא, מעלה עשו ביוחסים.

The gemara first suggests that the reason for the rabbinic prohibition of an asufi marrying someone of pure lineage is in order to safeguard the asufi from marrying his paternal sister; since we do not know the identity of the asufi's parents, we cannot be sure that he and whomever he would choose to marry are not actually siblings. 

Why does the gemara specify that we are concerned that he will marry his paternal sister, as opposed to his maternal sister? Rashi explains that since we know the parents of the asufi's prospective wife (if we were to allow him to marry a woman of pure lineage), we would know his mother-in-law, who would likely be someone we would not suspect of the severe sin of adultery. Maharsha adds that although her father may also be someone trustworthy, it is easier to imagine that he has fathered an illegitimate child than that her mother has done so, due to the simple fact that a woman cannot fully hide her pregnancy; thus, if she still has a good reputation, it is unlikely that she has given birth to a child out of wedlock.

That being the case, the gemara questions the mishna's ruling that an asufi is permitted to marry another asufi; should we not be concerned that the two asufim are actually siblings? The gemara responds that it is highly unlikely that both asufim were abandoned by the same parents; a woman who has suffered the consequences of conceiving out of wedlock and abandoning her baby will not be likely to get herself into that kind of trouble again. The gemara presses its point: an asufi is permitted to marry another asufi who has this status due to the fact that she is the daughter of an asufi; in such a case, we should still be concerned that she is his sister! To the gemara's response that it is uncommon that the two asufim are actually siblings, the gemara points out that it is equally uncommon for a woman of pure lineage to turn out to be the sister of the asufi. The gemara thus concludes that the reason for the rabbinic injunction is ma'ala asu be-yuchesin, they Rabbis set a high standard in genealogical matters, so as to safeguard the genealogical purity of the community.

Back to the Gemara

We continue the Gemara's discussion of asufi; we are up to the last line of 73a.

 

Rabba bar Rav Huna said: If he found him circumcised, he does not have [the status of] asufi, his limbs straightened - he does not have [the status of] asufi, rubbed with oil and powdered with stibium, with knots (of herbs) tied around him, with a hanging written amulet or a hanging amulet of spices - he does not have [the status of] asufi.

אמר רבא בר רב הונא: מצאו מהולאין בו משום אסופי, משלטי הדמיה - אין בו משום אסופי; שייף משחא ומלא כוחלא, רמי חומרי, תלי פיתקא, ותלי קמיעא - אין בו משום אסופי.

The gemara now lists a slew of factors that would indicate whether a child has been abandoned because he is illegitimate or because of some other reason, such as poverty. A mother who abandons her illegitimate baby usually does so immediately, with a sense of disgust toward the child. If the baby clearly has been cared for, we can assume that the mother has abandoned it out of desperation because she is unable to care for it; in such a case, it is likely that the baby is not a mamzer. We can now look at the cases detailed by the gemara:

If the child was circumcised, it is clear that his parents took the trouble to arrange for the circumcision, and the baby is assumed to definitely not be a mamzer; he is thus not an asufi, whom we suspect of possibly being a mamzer. This is similarly the case in other instances in which it is clear that the baby has been cared for: in Talmudic times, it was common to stretch and straighten the limbs of a newborn after birth. He might also be massaged with oil, powdered around the eyes for beautification, have herbs tied around his neck for medicinal purposes, or have various types of amulets tied around his neck for protection. All of these signs would indicate that the baby has been cared for, and is not illegitimate.

It is important to note that in many areas, halakhic judicial procedures do not assign great weight to speculation, or even to circumstantial evidence. In our case, since biblical law permits even someone whose genealogical purity is dubious, the rabbis allowed the type of detective work outlined here to determine whether or not the rabbinic injunction against marrying an asufi should apply to a particular person.

Our gemara has taken two halakhic categories mentioned in the mishna, namely shetuki and asufi, and the laws that govern those genealogical classes, and has explained the source and severity of the prohibitions involved, and even some circumstances that limit the application of the law of shetuki. We will discover some more of these circumstances next week.