Parashat Lekh Lekha: Brit Mila (Circumcision) Performed by a Non-Jew

  • Rav Binyamin Tabory
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            The mitzva of Brit Mila was given to Avraham and his descendents as part of the covenant with God.  When Avraham was ninety-nine years old, God promised him that he would be the progenitor of a nation that would receive the land of Israel as an everlasting possession.  Avraham was then commanded (Bereishit 19:9) that he and his progeny should observe the covenant (brit) and circumcise all males.  The Torah emphasizes the commandment by using a compound phrase: "himol yimol," "shall surely be circumcised."  The importance of this mitzva can be demonstrated by the fact that it is one of only two positive mitzvot for which one is punished by "karet," being cut off from the Jewish people, if he fails to fulfill it.

 

            The gemara (Avoda Zara 26b) raises the issue of whether a non-Jew is allowed to circumcise a Jewish child.  Rav Meir maintains that we should not allow this to be done, as a non-Jew may maliciously harm the child.  Chakhamim maintain that a non-Jew would be allowed to circumcise the boy, provided that there were observers who would ensure that no harm would be done.  According to these opinions, there is no intrinsic reason to invalidate circumcision performed by a non-Jew.

 

            However, the gemara then cites an opinion that circumcision performed by a non-Jew is invalid. This approach employs the phrase, "You shall observe my covenant," as a proof-text that only you and your progeny may perform the brit, to the exclusion of non-Jews.  Rav Chisda cites another source to invalidate non-Jewish circumcision: the compound phrase "himol yimol" implies that only one who is involved in the covenant (i.e., all Jews) can perform the brit.  The gemara explains that even a non-Jew who was circumcised is not considered to be involved in the brit, and therefore may not perform it.  Conversely, even a Jew who was not circumcised may perform a brit. (An example of a Jewish male who does not have to be circumcised is one whose brothers died as a result of their brit.  He cannot undergo a brit because there perhaps exists some hereditary factor, such as hemophilia, that would endanger him.)

 

            The Minchat Chinukh (Mitzva II) cites the opinion of R. Yonatan Eybeschutz that in order to fulfill the mitzva of circumcision, a father should either do it himself or appoint an agent (shaliach).  Indeed, today the common practice is that the father designates the mohel to be his agent.  According to this opinion, the Minchat Chinukh asked why do you need another reason to invalidate a brit done by a non-Jew, inasmuch as there is no law of agency for non-Jews (Kiddushin 41b)?

 

            In fact, Tosafot Rid (Avoda Zara 26b) proves that mila does not require agency from the very fact that there is an opinion that a non-Jew may serve as the mohel.  He posits that the mitzva is merely to see to it that the mila is performed, but the father need not circumcise personally.  The Rid also uses this principle to explain why mila is not considered to be a mitzva caused by a specific time (zeman gerama).  While it is true that the mitzva must be performed on the eighth day, the father's mitzva (of arranging the brit) can be fulfilled at any time.

 

            One may answer the question of the Minchat Chinukh as follows.  Assuming that mila should be done by the father or his agent, what would happen if another Jew performed the brit, even without the father's permission?  Undoubtedly, the brit would be valid, although the father would not have fulfilled his mitzva.  Indeed, the mohel may be considered to have "stolen" the mitzva and may be required to indemnify the father (Shulchan Arukh C.M. 382).  If so, a non-Jew who performed the brit likewise may have fulfilled the technical requirements of mila, though it would not constitute a fulfillment of the father's mitzva.  If a non-Jew is invalidated from performing this mitzva, then, even if he did circumcise the child properly, it would not constitute a valid brit and would require an additional minor surgical procedure.

 

            The Rambam ruled (Hilkhot Mila ch. 2, cited in Shulchan Arukh Y.D. 264) that a non-Jew should not perform the brit.  However, if he did so, there is no need to "do it again." (Beit Yosef, Y.D. 264, cites a disagreement about whether this means that nothing more needs to be done, or that there should be only minor surgery in addition.)  The Kesef Mishneh (ad loc.) thinks that the Rambam was unsure if the Halakha allows a non-Jew to perform the brit, and therefore said that he should not do so.  However, since the Halakha may permit it, it is valid ex post facto. 

 

The Sha'agat Aryeh (Chapter 54) questions this approach. If the halakha is unclear, then the general rule would require us to be stringent regarding a biblical law such as circumcision, and would require another surgical procedure.  Therefore, according to the Sha'agat Aryeh, the brit done by a non-Jew is definitely invalid and cannot be repaired at all. 

 

An alternate explanation can be suggested. The brit done by a non-Jew is certainly valid according to the Rambam, but should not be done for reasons the Rambam did not care to elaborate.

 

            To summarize:  There is a controversy whether a non-Jew may circumcise a Jewish child.  While the Halakha clearly states that he should not do so, the ex post facto validity of his performance of the brit engenders a major dispute among the poskim.