“For He Will Turn Away Your Son from Following after Me” (7:4) The Source for Tracing the Son of an Israelite Man and a Gentile Woman to His Mother

  • Rav Elchanan Samet
 
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IN LOVING MEMORY OF
Jeffrey Paul Friedman
August 15, 1968 – July 29, 2012
לע"נ
יהודה פנחס בן הרב שרגא פייוועל
כ"ב אב תשכ"ח – י' אב תשע"ב
ת.נ.צ.ב.ה
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I. The danger that lies in the encounter with the peoples of Canaan and their material culture
 
Parashat Va'etchanan, which begins with Devarim 5:1, is the beginning of the main and largest division of orations in Moshe's oration in the book of Devarim – "the oration concerning the mitzvot." The Torah prefaces this division of orations with a short introduction (4:40-49), as it did at the beginning of the entire book of Devarim (1:1-5).[1]
 
The first oration in the division of the orations concerning the mitzvot begins in chapter 5, and it continues until 7:11.[2] Two sections of this oration deal with the tests that the people of Israel will face when they enter the land, and they open in similar fashion. It is therefore appropriate to compare the one to the other:[3]
 
Devarim 6:10-15
Devarim 7:1-4
10. And it shall be, when the Lord your God shall bring you into the land which He swore to your fathers, to Avraham, to Yitzchak, and to Yaakov, to give you – great and goodly cities, which you did not build,
11. and houses full of all good things, which you did not fill, and cisterns hewn out, which you did not hew, vineyards and olive-trees, which you did not plant, and you shall eat and be satisfied,
12. then beware lest you forget the Lord, who brought you forth out of the land of Egypt, out of the house of bondage.
13. You shall fear the Lord your God; and Him shall you serve, and by His name shall you swear. You shall not go after other gods, of the gods of the peoples that are round about you; 
15. for a jealous God, even the Lord your God, is in the midst of you; lest the anger of the Lord your God be kindled against you, and He destroy you from off the face of the earth.
1. When the Lord your God shall bring you into the land which you go to possess it, and shall cast out many nations before you, the Chitite, and the Girgashite, and the Amorite, and the Canaanite, and the Perizite and the Chivite, and the Yevusite, seven nations greater and mightier than you;
2. and when the Lord your God shall deliver them up before you, and you shall smite them; then you shall utterly destroy them; you shall make no covenant with them, nor show mercy to them;
3. neither shall you make marriages with them: your daughter you shall not give to his son, nor his daughter shall you take to your son.
4. For he will turn away your son from following Me, that they may serve other gods; so will the anger of the Lord be kindled against you, and He will destroy you quickly. 
 
 
What is the difference between these two passages? The first passage deals with Israel's encounter with the material culture of the inhabitants of the land of Canaan, which will fall into their hands following its conquest. In contrast, the second passage deals with their encounter with the human factor – the inhabitants of the land of Canaan themselves – the seven nations listed in v. 1, who will be delivered into the hands of Israel.
 
Each of these two encounters poses a danger to the people of Israel, that danger being one and the same: being drawn to the wordship of "other gods of the gods of the peoples that are round about you" (6:14).
 
Coming into possession of the rich material culture of the Canaanites is liable to bring Israel to accept the religious culture associated with it. Together with the great cities and the houses full of all good things, the people of Israel will receive also the altars and pillars to the idols of Canaan and the images of their gods. Owing to their feelings of inferiority before the high material culture through whose gates they will have entered, they will assimilate all of its components, including the pagan parts.[4]
 
Contact with the peoples of Canaan after the fighting comes to an end may lead to a social rapprochement with them, to the point of forming an alliance and intermarrying. These processes will inevitably lead also to religious rapprochement and the worship of their gods.
 
The realization of the danger inherent in each of these two encounters – being drawn to idol worship – will bring to the same result: God's anger with Israel and their destruction from off the face of the earth.
 
The second passage, which is nothing but a continuation of the first, includes demands of actions that are to be taken that will prevent Israel's being drawn to idol worship. On the one hand there are the commandments:
 
7:2:  Then you shall utterly destroy them; you shall make no covenant with them, nor show mercy to them.
3: Neither shall you make marriages with them…
 
On the other hand, it adds a command that constitutes a remedy of the concern in the previous passage:
 
5: But thus shall you deal with them: You shall break down their altars, and dash in pieces their pillars, and hew down their Asherim, and burn their graven images with fire.
6: For you are a holy people to the Lord your God; the Lord your God has chosen you to be His own treasure, out of all peoples that are upon the face of the earth.
 
We will dedicate the rest of this study to the prohibition that stands in the center of the second passage and its reason:
 
3: Neither shall you make marriages with them:
your daughter you shall not give to his son, nor his daughter shall you take to your son.
4: For he will turn away your son from following Me, that they may serve other gods…
 
II. “You shall utterly destroy them” or “You shall not make marriages with them?
 
The prohibition to intermarry with the peoples living in the land – "your daughter you shall not give to his son, nor his daughter shall you take to his son" – raises the image of good neighborly relations between Israel and the Canaanite peoples. The prohibition of intermarriage constitutes a barrier before the possible closeness between Israel and its neighbors. This, however, is difficult to understand, for in the previous verse the people of Israel are commanded:
 
2: … then you shall utterly destroy them; you shall make no covenant with them, nor show mercy to them.
 
The command to destroy the peoples of Canaan is explained in detail in chapter 20:16-18:
 
However, of the cities of these peoples that the Lord your God gives you for an inheritance, you shall save alive nothing that breathes
but you shall utterly destroy them: the Chitite, and the Amorite, the Canaanite, and the Perizite, the Chivite, and the Yevusite; as the Lord your God has commanded you;
that they teach you not to do after all their abominations, which they have done to their gods, and so you sin against the Lord your God.
 
Even the prohibitions in the verse in our parasha, "you shall make no covenant with them, nor show mercy to them," is nothing but a continuation of the command to utterly destroy the Canaanite peoples: "You shall make no covenant with them, nor show mercy to them, because of the very destruction about which you have been commanded."[5]
 
The question thus arises: Does not the ban on intermarriage contradict the previous command of destruction? Surely this prohibition assumes, as stated earlier, the comfortable coexistence of the nations of Canaan alongside the people of Israel!
 
This question was posed in succinct fashion by a Torah sage living in England prior to the expulsion of its Jewish population, in Tosafot Chakhmei Angliya (Kiddushin 68b):[6]
 
The verse states: "You shall not make marriages with them." "You shall not make marriages with them" is difficult, since they are from the seven [Canaanite] nations, about which it is written: "You shall save alive nothing that breathes." It may be suggested: That which is stated: "You shall save alive nothing” refers to when they do not wish to make peace with you, but when they wish to make peace, they are equal.[7] But nonetheless: "You shall not make marriages with them."
 
The same question and the same answer are found also in the Da'at Mikra commentary to the book of Devarim of the late Aharon Mirsky:
 
"You shall not make marriages with them" – How will they make marriage with them, when they were commanded to destroy them? Of necessity Scripture is referring to those nations who went ahead and accepted your authority over them, such as the Givonites, whom you are permitted to keep alive. It is with these that Scripture prohibits making marriage.
 
Even without this answer, it may be suggested that the Torah already announced in the book of Shemot:
 
23:27-30: … and I will make all your enemies turn their backs to you.
And I will send the hornet before you, which shall drive out the Chivite, the Canaanite, and the Chitite from before you. 
I will not drive them out from before you in one year, lest the land become desolate and the beasts of the field multiply against you.
By little and little I will drive them out from before you….[8]
 
Because this process will be gradual, the Torah commands in the continuation:
 
You shall make no covenant with them, nor with their gods.
 
Later in the book of Shemot there are prohibitions similar to those in our parasha, which are also the result of the recognition that the expulsion of the people of Canaan will be a slow process that will continue for generations:
 
34:11: … behold, I am driving out before you the Amorite, and the Canaanite, and the Chitite, and the Perizite, and the Chivite, and the Yevusite.
12: Take heed to thyself, lest you make a covenant with the inhabitants of the land…
13: But you shall break down their altars, and dash in pieces their pillars, and you shall cut down their Asherim.
 
15: lest you make a covenant with the inhabitants of the land, and they go astray after their gods, and do sacrifice to their gods, and they call you, and you eat of their sacrifice; 
16: and you take of their daughters to your sons, and their daughters go astray after their gods, and make your sons go astray after their gods.
 
According to this answer, a few words must be filled in between verse 2 and verse 3 in our parasha: "Then you shall utterly destroy them; you shall make no covenant with them, nor show mercy to them. [But since you cannot do this in a short time, I command you about those who remain in the meantime:] You shall not make marriages with them….[9]
 
III. The Talmudic passage dealing with our verses
 
The verses that preoccupy us in this study – "You shall not make marriages with them: your daughter you shall not give to his son, nor his daughter shall you take to your son. For he will turn away your son from following Me, that they may serve other gods" – serve as the basis for the Talmudic passage in tractate Kiddushin (and its parallel in Yevamot 23a), which derives from them several fundamental halakhot and along the way explains what is stated in them.
 
This passage explains the mishna at the end of the third chapter in Kiddushin (mishna 12), which opens a broad discussion of familial lineage that continues throughout most of chapter 4. The mishna includes four rules regarding lineage:
 
a. Wherever there is kiddushin and there is no transgression, the child follows the male.
 
That is to say, when the betrothal is valid, the lineage is determined by the father. For example, if the father is a priest, his son is also a priest, even if the child's mother in not the daughter of a priest.
 
b. But wherever there is kiddushin and there is transgression, the child follows the status of the inferior; this is the case when a widow is married to a high priest, or a divorced woman or a chalutza to an ordinary priest, or a mamzeret or a netina to an Israelite, and the daughter of an Israelite to a mamzer or a natin.
 
All of these marriages are subject to prohibitions, but they do not fall into the category of severe sexual prohibitions (arayot), and the marriages are therefore valid. The offspring of such a marriage is blemished. If the father was a priest who married a woman who is forbidden to him, the offspring is a chalal and disqualified from the priesthood. If one member of the couple was a mamzer or a netin, the offspring also has that status.
 
c. And whatever [woman] who cannot contract kiddushin with that particular person but can contract kiddushin with another person, the issue is a mamzer. This is the case when one has intercourse with any relation prohibited in the Torah.
 
In the case of a prohibition of arayot (because of kinship between the man and the woman, the sexual relationship between which is forbidden by the Torah, or because the woman is married to another man), the betrothal of that man and woman is not valid. That woman, however, is fit to be betrothed by another man when there is no relationship of arayot between them. In such cases of forbidden arayot, the offspring is a mamzer.
 
d. And whatever [woman] cannot contract kiddushin with that particular person or with others, the issue follows her status. This is the case with the issue of a bondmaid or a Gentile woman.
 
Betrothal with a non-Jewish maidservant or a non-Jewish woman has no validity, and the offspring of a Jewish man and such a woman has the status of his mother. The offspring of the non-Jewish maidservant is a slave, and the offspring of the non-Jewish woman is a Gentile.
 
The Talmud clarifies the sources of these halakhot in the verses: 
 
How do we know this [of a freeborn] Gentile woman [that her betrothal has no validity]? The verse states: "You shall not make marriages with them." (Kiddushin 68b)
 
Rashi explains the derivation from the verse: "You shall have no law of marriage with them." In other words, the verse not only prohibits marriage with a Gentile, but also denies it legal validity.[10] However, the prohibition is connected to that which is denied validity. In other words, only a relationship that tries to be like marriage is forbidden, as the Rambam writes in Hilkhot Issurei Bi'a 12:1-2:
 
When a Jew engages in relations with a woman from other nations, [taking her] as his wife, or a Jewess engages in relations with a non-Jew as his wife, they are punished by lashes, according to Scriptural Law. As it is stated: "You shall not make marriages with them"… The Scriptural prohibition applies only to marital relations.[11]
 
The Talmud continues to clarify the source in the Torah for what is stated in our mishna regarding a Gentile woman:
 
How do we know that her child bears her status?
R. Yochanan said in the name of R. Shimon bar Yochai: For the verse states: "For he will turn away your son from following Me" – your son by an Israelite woman is called your son, but your son by a Gentile woman is not called your son.
Ravina said: This proves that your daughter's son by a Gentile is called your son.
 
Many commentators to the Talmud and to the Torah struggled to explain what is stated in this Talmudic passage (and thus also in the verse, "For he will turn away your son from following Me," around which the Talmudic passage revolves). We will present here the main positions suggested by the Rishonim.
 
IV. “For he will turn away your son from following me” – Rashi and Rabbeinu Tam
 
            Verse 4 – "For he will turn away your son from following Me, that they may serve other gods" – constitutes the reason for the prohibition in verse 3, but the content of this reason and its connection to the prohibition that precedes it raises several questions:
 
1. Who is the subject of the reason in verse 4? Who will "turn away" your son?
 
2. Who is the object of that turning away, who is called "your son"? Is the reference to "your son" who is mentioned at the end of the previous verse, "nor his daughter shall you take to your son"? Or does it perhaps refer to "your seed," in which case it can be understood as referring to the son of your son or the son of your daughter, for "grandchildren are like children"?[12]
 
3. How will this "turning away" from God be carried out – through seduction, through education, or perhaps some other way?
 
4. Does this reason relate to both parts of the prohibition appearing in verse 3, both to "your daughter you shall not give to his son," and "nor his daughter shall you take to your son," or perhaps only to the latter prohibition, which immediately precedes the reason, or perhaps only to the former prohibition, which is set apart from it?
 
            These questions are clearly interrelated, and any answer to one of them dictates matching answers to the others.
 
            Let us begin with the explanation of Rashi, both in his commentary to the Talmud and in his commentary to the Torah. It was clear to Rashi that the subject of the clause "for he will turn away" is the "son" of the Gentile "to whom you gave your daughter." If so, the reason relates specifically to the first prohibition. The verse thus should have stated: "For he will turn away your daughter [whom you gave as a wife] from following Me," and Rashi therefore explains in his commentary to the Talmud:
 
The fact that it does not say: "for he will turn away your daughter," implies that the verse refers to the son born to your daughter from the Gentile, whom the Gentile [his father] will turn away from Me, and therefore "your son" means the son of your daughter [in modern parlance, your grandson].[13]
And we learn from this that the son of your daughter, even from a Gentile, is called your "son." "But your son who comes from a Gentile woman is not called your son" – since it does not also say: "for she will turn away your son," which would imply that the verse was also concerned about "nor his daughter shall you take to your son," that she will turn away the son born to her from your son – this implies that the son of a Gentile woman is not called "your son," but rather "her son."[14]
 
Rashi's answers to the four question raised above are as follows:
 
1. The subject of the sentence is the Gentile husband to whom you gave your daughter.
 
2. He will turn away the son born to him by your daughter, who is called "your son."
 
3. This "turning away" from God will be the result of the education that the Gentile husband will provide the son born to him, your grandson.
 
4. This reason relates only to the first prohibition: "Your daughter you shall not give to his son," for it is formulated in the masculine, "that he turn away."
 
As for the second prohibition: "His daughter you shall not take for your son" – there is no parallel reason ("for she will turn away your son-grandson from following Me"), because her son is a full-fledged Gentile like his mother, and the Torah is not concerned about how she will educate him.
 
            Thus, from the Torah's silence concerning the reason for the prohibition, "His daughter you shall not take for your son," we learn that the son born to her is a full-fledged Gentile just like her, and therefore the Torah does not explain this prohibition as stemming from the turning away of this son from following God.
 
            The Tosafot (s.v., binkha ha-ba mei-Yisraelit) raise an objection against Rashi from what Ravina concludes in the gemara after the words of R. Yochanan in the name of R. Shimon bar Yochai: "Infer from this: Your daughter's son by a Gentile man is called your son."
 
You might say: Ravina is the same as R. Yochanan. What does Ravina come to teach that was not explained by R. Yochanan, that Ravina should say: Infer from here?[15]
 
Because of this difficulty, Rabbeinu Tam suggests a new and different explanation both of the verse and of the Talmudic passage: The subject of "for he will turn away" is the Gentile father-in-law of your son, in relation to whom the verse states: "Your daughter you shall give to his son, nor his daughter shall you take for your son." This father-in-law will turn away your son, his son-in-law, from following God, by seducing him to worship idols. The explanation, then, is for the second prohibition, "nor his daughter shall you take for your son," which immediately precedes the reason. In this way, Rabbeinu Tam answers all of the four questions raised above in a manner different from the way that Rashi answered them.
 
But how does the gemara learn from this verse that the son of a Gentile woman has her status? Rabbeinu Tam answers this question as follows:
 
From the fact that Scripture is concerned about the son of the son [that he too will be turned away from following God], infer from this: Your son who is born to you by your wife is called your son, because he is from an Israelite man and an Israelite woman, but he who comes from your son and from a Gentile woman is not called "your son," but rather her son. He derived this from what is stated: "for he will turn away your son" – which implies an exclusion, and it excludes the son of your son, from the fact that it is not written: "for he will turn them away" or "for he will turn away your seed."
 
The contrast in the words of R. Yochanan is between your actual son – about whom concern is expressed about his being turned away – and the son of your son – about whom no such concern is expressed, because he is a Gentile, since his mother is a Gentile.
 
In the continuation of his words, Rabbeinu Tam discusses the additional possibility that is not discussed by R. Yochanan – namely, the turning away of the son of your daughter. In his opinion, this is what Ravina adds:
 
But we still don't know what the law is with regard to a Gentile who has intercourse with an Israelite woman, and Ravina comes and says: "Infer from this: Your daughter's son by a Gentile man is called your son." It does not say regarding: "Your daughter you shall not give to his son" [the first prohibition] – "for he [the Gentile father-in-law] will turn away your daughter from following Me," from which we would infer that the Torah was concerned [only] about her, just as we inferred from "His daughter you shall not give to your son." From that fact that it does not say this, infer from this that the son of your daughter from a Gentile is called your son. And the verse was concerned about both of them [the daughter and also about her son], and therefore it does not say: "for he will turn away your daughter from following Me" – which would imply an exclusion of the son of your daughter.
 
This explanation is exceedingly forced.
 
V. “For he will turn away” – What is this turning away? The position of the Rambam
 
Despite the many differences between the explanations of Rashi and Rabbeinu Tam, there is a common denominator between them: The gemara learns the law that the offspring of a Gentile woman is considered a Gentile from the Torah's ignoring the child born to your son and his Gentile wife. This disregard stems from the fact that the child is considered a Gentile, and so the Torah does not care that the child will be raised by his mother or his grandfather to worship idols.
 
This argument, however, is unsettling. Is not this matter in itself – that the son of the Israelite will father children who are considered Gentiles and who will grow up to be idol worshippers – sufficient explanation of the Torah's prohibition: "His daughter you shall not take to your son"?[16]
 
In two places in his magnum opus, the Mishneh Torah, the Rambam alludes to an explanation that is fundamentally different from the two previous explanations. In Hilkhot Issurei Bi'a 12:7-8, he writes:
 
Although this transgression [intercourse with a Gentile woman] is not punishable by execution by the court, it should not be regarded lightly, for it leads to a detriment that has no parallel among all the other forbidden sexual relations. For a child conceived from any other forbidden sexual union is his [the father's] son with regard to all matters and is considered a member of the Jewish people, even if he is a mamzer. A son conceived by a Gentile woman, by contrast, is not considered his son, as it is stated: "For he shall turn away your son from following Me" – he turns him away from following after God.
This matter causes one to cling to the Gentile nations from whom the Holy One, blessed be He, has separated us, and to turn away from following God and to betray Him.
 
And in Hilkhot Yibbum Ve-Chalitza 1:3-4, he writes:
 
The Torah's words (Devarim 25:5), "When one of them dies childless" [in which case there is a mitzva to perform levirate marriage or chalitza]… even if he has a descendant who is illegitimate or an idolater, he [that descendant] frees his [the deceased's] wife from the obligation of chalitza or levirate marriage.
[The above applies to children born from a Jewish woman.] If, however, he [a deceased man] has a child born from a maidservant or a Gentile woman, his wife is not free of these obligations. For the offspring of a maidservant are servants. And the offspring of a Gentile woman are Gentiles and considered as if they have no connection to him… With regard to a Gentile woman, it is stated: "for he will turn away your son from following Me" – he will turn him away from being included in the congregation.
 
How, then, does the Rambam interpret the verse, "for he will turn away your son"? The subject of the sentence seems to be "this matter," the fact that the Israelite father took the daughter of the Gentile for his son. This will turn the son away from following after God, for the offspring that will ensue from this marriage will not trace his lineage to his Israelite father, but to his Gentile mother. Thus "your son" – who fathers this seed – uproots himself from belonging to the people of God and attaches himself to the Gentiles, and in so doing he turns away from following God and betrays Him.[17]
 
The novelty in this explanation is that the turning away from following God is not related to the fact that your son will worship idols, but rather to the fact that he fathers children who are not members of Israel. His descendants – who, according to the explanations of Rashi and Rabbeinu Tam, the Torah is not at all concerned about, since they are Gentiles – are, according to the Rambam, precisely the reason for the severity of the act of taking a Gentile woman for your son.
 
The gemara's derivation from this verse, according to the Rambam, is not indirect, as it is according to Rashi and Rabbeinu Tam, but rather direct: The child of a Gentile woman is like its mother, because it is stated about your son who marries a Gentile woman that by fathering children with her, he turns away from God, for these children are Gentiles.[18]
 
VI. Natural parents and legal parents
 
What is the reasoning underlying this halakha that the child's identity, whether he is a Jew or a Gentile, depends on the child's mother, whereas his relationship to his father in such cases of mixed marriage is completely cancelled?
 
If we return to the mishna in tractate Kiddushin, presented in section 3, we find all the other alternatives that exist in matters of pedigree. It could have been established that the identity of the child of a mixed marriage is determined by the father, who ordinarily determines the lineage of the child (as in the first rule in the mishna).[19] It could have been established (as in the second rule in the mishna) that the child always receives the status of the inferior party, and therefore in every case of mixed marriage, the child would be a Gentile, whether his mother is a Gentile or his father is a Gentile. It could also have been determined in the opposite manner, that in every case of mixed marriage, the child traces his lineage to his Israelite parent, and he is a flawed Israelite (close to the third rule).[20] The Halakha, however, determined for this case of mixed marriage a separate rule, which is fundamentally different from all the other halakhic determinations!
 
What is the rationale of this halakhic ruling?
 
On the Parashot Shavu'a page of the Justice Ministry Jewish Law Department for Parashat Va'etchanan 5768, attorney Aran Shilo poses the question in a slightly different manner. First he notes the uniqueness of Jewish Law in comparison to other legal systems:
 
In general (according to Jewish Law), whatever the legal status of the child, the flaw in the relationship between the parents does not undermine the parental connection between them and their child. In other words, even if the parents violated the prohibitions of forbidden sexual unions and the child born to them falls into the category of a mamzer, they are still his parents for all intents and purposes. This is the case with respect to prohibitions, and so with respect to the totality of rights and obligation between parents and their children. The Rambam summarizes the matter as follows (Hilkhot Issurei Bi'a 12:7): "For a child conceived from any other forbidden sexual union is his [the father's] son with regard to all matters and is considered a member of the Jewish people, even if he is a mamzer." 
That is to say, there is an identity between natural parenting and legal parenting. If it is determined that a particular child is the biological son of a particular couple, then the system of rights and obligations between parents and their children applies to them.
This legal concept is not self-evident, and in classical legal systems it is even exceptional. In most legal systems, the system of parental rights and obligations does not exist (at least not fully) between an illegitimate child born out of wedlock and his father. Already in Roman law, a child born out of wedlock was defined as fillius nullius (nobody's child), and in its wake, even in modern systems… The same is true in Islamic law: "Islamic law states that a child born outside of marriage traces his lineage not to his father, but only to his mother… A child born to an unmarried Moslem woman is legally regarded as a fatherless child."[21]
One should not underestimate the importance of distinguishing between legal systems. For the Jewish legal system, nature determines the existence of parental rights and obligations, whereas according to the other legal systems, it is the law that determines the existence of these rights and obligations.
This fundamental idea of Jewish law – according to which the system of parental rights and obligations coincides with the identity of the natural parents – has one striking exception: the child of a Jewish man and a Gentile woman, or as the Rambam writes: "A son conceived by a Gentile woman, by contrast, is not considered his son."[22]
 
Later on, the author cites various opinions that were voiced in recent generations on this question, and relying on the responsum of the late Rishon Le-Tzion R. Uziel,[23] he strives to "return" this exceptional law of the son of a Gentile woman and an Israelite man to the mainstream of Jewish law's recognition of "natural parents."[24]
 
We do not agree with the way that the issue was presented by Attorney Shilo, neither with respect to the general background that he gives when he contrasts Jewish law to the other legal systems, nor with what emerges from his remarks regarding the status of the child of a Jewish man and a Gentile woman.
 
First, it should be pointed out that the exceptional case of the child of a Jewish man and a Gentile woman has a "mate" who is equally exceptional: the son of a Gentile man and a Jewish woman. There too, the "natural parenting" of the father is completely cancelled; the child is a Jew regarding all matters and may marry a Jewish woman (see note 20).
 
Now we come to the issue itself: "Natural parenting" truly exists only between a child and his mother. This is true in Jewish law and in the other legal systems. The legal recognition of a woman as the child's mother stems from the manifest and undeniable fact that she was pregnant with him, she gave birth to him, and she raises him.[25]
 
Recognition of the father's parenthood will always depend on the cultural context, and therefore it is always a "legal" and not a natural matter. This too applies to Jewish law just as it applies to the other legal systems. For when the child is born to his mother, we have no "natural" knowledge regarding the identity of the father, and we determine this only on the basis of social and legal arrangements.[26] Legal recognition of fatherhood is connected in all legal systems to the existence of the institution of the family. Were we to remove this institution from human society, there would no longer be any basis for legal recognition of paternity.[27]
 
The considerable difference between Jewish law and other legal systems does not pertain to this universal principle. The difference lies in the fact that the other legal systems require the actual existence of the family in order to recognize the paternity of the father, while Jewish law is satisfied with the potential for the existence of the family in order to recognize his paternity.[28] In some cases, the legal recognition of paternity is a "negative image" of the legitimate family: In cases in which there is a prohibition of incest, it is impossible to establish a family between the man and the woman who are forbidden to each other, but the connection that was formed between them and that led to the birth of a child is the opposite of a permitted familial connection, and the Halakha is interested in recognizing the father's paternity in order to establish that the child is a mamzer. This is the rationale of the third rule in the mishna in Kiddushin:
 
And whatever [woman] who cannot contract kiddushin with that particular person but can contract kiddushin with another person, the issue is a mamzer.
 
And from here to the fourth rule in the mishna, which is the subject of our study. Between a Jewish man and a Gentile woman or between a Gentile man and a Jewish woman there is no basis whatsoever for establishing a family. The Torah wished to rule out the possibility of establishing such a family when it stated: "You shall not make marriages with them," as Rashi explains: "You shall not have with them the law of marriage."
 
Where the establishment of a family does not stand even in the background of the coupling – not as a potential, and not even as a positive mirror image of the present coupling (as in the case of incest) – there can be no legal recognition of the father's paternity, and we are left exclusivity with the mother's natural maternity.
 
This is the meaning of the fourth rule in the mishna:
 
And whatever [woman] cannot contract kiddushin with that particular person or with others, the issue follows her status.
 
(Translated by David Strauss)
 

[1] We noted the various divisions of orations that make up the book of Devarim in our study of Parashat Devarim, second series, section I2. As we showed there, the division of orations concerning the mitzvot continues from the beginning of chapter 5 until the end of chapter 26. We noted the internal division between the first part of the oration concerning the mitzvot (until the end of chapter 11) and the second part (from the beginning of chapter 12 and on) in our study of Parashat Re'eh, second series, section I.
[2]  Most of the fifth chapter, from verse 2 to verse 27, is a parenthetical statement that includes an account of the assembly at Mount Sinai and the Ten Commandments that were given there, as an introduction to the demand for the keeping of the mitzvot that will be mentioned later in the orations concerning the mitzvot. Regarding this, see our study of Parashat Va'etchanan, second series, section II. Regarding the delineation of the first oration concerning the mitzvot until 7:11, see there, note 9.
[3] We compared the first passage 6:10-15 to a similar passage in Parashat Ekev (8:7-20) in our study of Parashat Va'etchanan, first series.
[4] We elaborated on this meaning of the first passage in the study mentioned in the previous note.
[5] As Onkelos translated the words ve-lo techanem – "have no mercy upon them." Chazal explained this prohibition in additional ways (see Rashi). But the plain meaning of the verse seems to accord with Onkelos' translation.
[6] R. Avraham Sofer edition (Jerusalem, 5730), p. 140.
[7] He seems to mean that when the seven Canaanite nations wish to make peace with the people of Israel, they are treated like the rest of the "distant" nations. For further clarification, see Ramban, Devarim 20:10; Rambam, Hilkhot Melakhim 6:1, 5.
[8] Moshe repeats this in his oration in Devarim 7:20-22.
[9]  According to the previous explanation, that the prohibition of not marrying applies to those who made peace with Israel, this also must be mentally added between verses 2 and 3.
[10] The Tosafot, s.v. amar kera lo titchaten bam, disagree with Rashi about how to understand the gemara's derivation. Many other Rishonim (Rif, Rosh, Ritva, and others) do not have this text of the gemara at all. Rather, in response to the question: "From where do we know about a Gentile woman?" comes the answer found later in the passage: "For the verse states: 'for he will turn away your son from following Me.’" That is to say, the question was: From where do we know that the child of a Gentile woman is like her? As for the question of from where we know that her betrothal has no validity, the Rishonim who had this reading answer that the fact that her child is like her proves that her betrothal has no validity.
[11] The Rambam's source is Avoda Zara 36b, which states that the Sages decreed against sexual relations with Gentile women, and the gemara asks: "Their daughters are forbidden by Torah law, as it is written: 'You shall not make marriages with them,'" and it answers: "By Torah law, in the manner of marriage; and they came and decreed against all fornication."
[12] The source of this rule is found in Yevamot 62b.
[13] The Rishonim ask: Why is Scripture concerned about the son of his daughter, and not about the son or the daughter themselves? They answer: "It may be suggested that his son and daughter who grew up in [an environment of] Torah and mitzvot have difficulty abandoning [their Judaism] and will not be seduced, and the only concern is about their children" (Ritva, in his novellae here, and similarly the Ramban).
[14] Rashi repeats this explanation in brief in his commentary to this verse in the Torah. Various Rishonim followed in Rashi's footsteps in their commentaries to the Talmud, including the Ramban and the Ritva.
[15] This question was raised by other Rishohim as well. Some of them, including the Rashba, disagree with Rashi because of this question, as do the Tosafot, Some Rishonim, however, had a text that is slightly different from that of Rashi and Tosafot:
The verse states: Your son is called your son, but your son from a Gentile woman is not called your son, but rather her son.
According to the printed editions (the text of which seems to be that of Rashi and the Tosafot), it says at the beginning: "Your son from an Israelite woman is called your son" – the reference being to your grandson who is born to your daughter. If so, the Tosafot are right when they object that Ravina says exactly what R. Yochanan said. But according to the other reading cited above, R. Yochanan contrasts your actual son to your grandson born from a Gentile woman, who is not called "your son," and does not speak at all about your grandson who is born from your daughter. Ravina comes then and completes the words of R. Yochanan, that your grandson is also called your son. Even though this follows from the words of R. Yochanan, this was not stated explicitly.
The Rishonim who had this reading in the gemara and explained like Rashi are the Ramban and the Ritva. They explain Ravina's remark in a manner that is more sophisticated than the way it has been explained in this note.
[16] According to Rashi's explanation, as mentioned, no rationale is given for this prohibition, whereas according to Rabbeinu Tam, a reason is given for it – that your son will turn away from following God – and this comes to exclude the son of your son, whose fate is of no concern to the Torah.
[17] In Hilkhot Issurei Bi'a, in the halakha before the halakha cited above, the Rambam cites the verse in Malakhi 2:11: "He has married the daughter of a strange god" – "Thus you have learned that a person who shares intimacy with a Gentile woman is considered as if he married a false deity." This is the "turning away from following God" mentioned in the Torah.
[18]  a. According to this, R. Yochanan's exposition: "Your son is called your son, but your son from a Gentile woman is not called your son, but rather her son" (this is the Rambam's reading in the gemara, as is evident from his commentary to the mishna under discussion in Kiddushin), should be understood as follows: "Your son" is still called your son, but his sons from the Gentile woman will no longer be called by that term, for it is stated about him that with his marriage to the Gentile woman he turned away from following God – that is to say, his sons are Gentiles.
b. Rabbeinu Tam, in his second explanation brought in the Tosafot, offers an explanation similar to that of the Rambam regarding the turning away from God – namely, cancellation of the attribution of his children from a Gentile woman to their Israelite father. The Tosafot object to this explanation: "This is difficult for R. Yitzchak: 'For he will turn away' implies that we are dealing with the removal of the fear of God… and we translate [in Targum Onkelos], 'for he will turn away your son from fearing Me.'" Onkelos' translation does not accord with this explanation, but this is not reason to reject it.
[19] a. It should be noted that even with respect to the nations of the world, the Halakha recognizes the attribution of a child to his father.
b. In a patriarchal society, the decision to follow the father in a mixed marriage appears to be a reasonable decision, and there seem to be societies in which this is the practice.
[20] The status of one who is born to a Jewish mother and a Gentile father is discussed later in our passage in tractate Kiddushin and in its parallel in Yevamot 23a. The gemara concludes that he is not a mamzer, but he is also not fit, but rather "he is called disqualified." As for the halakha, such a child is fit to enter the congregation and marry a Jew. According to some Rishonim, a daughter with this "disqualified" status is forbidden to a priest; others disagree and say that she is permitted to him.
[21]  This is a citation from a ruling by Judge Mishael Cheshin, the exact source of which is given in note 10 in the aforementioned Parashat Shavua sheet.
[22] Here the author briefly cites the source of the law that we have brought in our study in detail.
[23]  Mishpatei Uziel 2: Yoreh De'ah 60.
[24]  R. Uziel discusses the question of the support that a Jewish father must pay for his son from a non-Jewish woman, "for in the end he is the father's child, and he caused him to be brought into the world." He greatly restricts this novel ruling to a case in which the son undergoes conversion and receives a Jewish education, and concludes: "I say this as the halakha, but in practice, a judge must rule in accordance with what he sees before him in his time and place. This is one of the halakhot about which it is stated: This is the halakha, but we do not rule in accordance with it. For ruling on such a matter is a very delicate matter and handed over to the discretion of the judge." R. Uziel's colleague, Chief Rabbi Yitzchak Herzog, disagrees with this far-reaching ruling in his Responsa Heikhal Yitzchak 1:22
[25] The modern problems of dividing motherhood between the genetic mother and the surrogate mother are not relevant to our present discussion.
[26]  And even then, this determination is not certain ("natural"), but rather based on various legal assumptions and presumptions. And again, the present day possibility of determining paternity by way of DNA testing is irrelevant to the discussion.
[27] In such a case, the human race would be similar to certain mammalian species, regarding which the role of the males is limited to fertilizing the females, with no additional "parental" role.
[28] Thus, even in the case of an unmarried woman who had a child, the Halakha recognizes the father's paternity, but this is not by virtue of "natural parenting," but rather by virtue of various legal principles, one of which is the fundamental possibility of the existence of a family consisting of a man and a woman who claim that this is their joint child.