From the Rav’s Desk: Jewish identity of an abandoned child

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  • Question: [Wednesday, 3rd Teves 5783]

I was recently told that if a baby is found abandoned without any records of his identity, then the determination of his identity, whether Jew or Gentile is determined by the identity of the majority of the people in the area. Is this correct?

Answer:              

This is accurate. The Talmud and Shulchan Aruch rule that an abandoned baby which was found in a city has his identity determined based on the majority of the city inhabitants. If the city has a majority gentile population and minority Jewish population, then he is considered a gentile regarding most matters. [i.e. One may feed him non-Kosher food and there is no obligation to return his Aveida, and according to some opinions it is forbidden to save his life on Shabbos just like a Gentile, although regarding marriage we are stringent due to the severity of Eishes Ish to require a Jewish woman to get a Get from him if there are some Jews who live in the city. Furthermore, if there are some Jews who live in the city some Poskim rule that one may even discrete Shabbos on his behalf.] If, however, the city contains majority Jews then he is considered like a Jew, and one may desecrate Shabbos on his behalf according to all opinions, and must return his lost objects. 

Explanation: A general rule in Jewish law is that we always follow the majority, and hence whether or not an abandoned child is determined to be Jewish is dependent on the majority of the city inhabitants. Nonetheless, regarding marriage we are stringent not to follow the majority and to always give the child a status of the doubt due to the severity of Eishes Ish. Likewise, regarding the laws of Shabbos, some say that we do not follow the majority regarding the allowance to discrete Shabbos on his behalf. Also, some say that regarding marriage and Shabbos we view all Jews in the city as Kavua, and hence it is viewed as 50-50 ratio of Jews to Gentile.

Sources: See Encyclopedia Talmudit Erech Asufi; See regarding determining his Jewish identity based on majority: Michaber Even Haezer 4:33 [is safek regarding marriage]; 34 [regarding eating non-Kosher, and returning Aveida]; Rambam Issureiy Biyah 15:25-26; Mishneh Machshrin 2:7; Beir Hagoleh ibid; Pischeiy Teshuvah ibid; Taz ibid See regarding desecrating Shabbos on his behalf: Admur 329:2; Michaber O.C. 329:2; E.H. 4:34; Rama E.H. 4:34; Yuma Mishneh 83a and Gemara 84b; M”A 329:2; Even Haezer 4:34; M”B 329:6; Mishneh Machshirin 2

About The Author

Rabbi Yaakov Goldstein is a 6th generation descendent of the famous Chief Rabbi of Izhmir, Rav Yehoshua Avraham Krispin, who authored a number of Sefarim, and was a colleague of Rav Chaim Falagi, and father in-law of the Pesach Hadvir. He currently lives with his wife Shayna, and twelve children K”H, in Tzfas, Israel. Rabbi Goldstein received Semicha from Rabbi Schneur Zalman Labkowski of the Tomchei Temimim headquarters in 2005 and served as a chaplain in the Lotar/Kalatz and K9 unit of the IDF from years 2005-2008. He is also a certified Shochet, and has performed Hashgacha work in slaughterhouses. Rabbi Goldstein is the director of Shulchanaruchharav.com, the world’s leading web-based Halacha database, and is the director of the Home Study Semicha Program, a self-study web-based Semicha program. He is a prolific author of over 50 Sefarim studied by a wide range of readers throughout the world, which is used regularly in Semicha programs around the globe. He is a world renowned Posek, answering questions to a web-based market, and serves as a local Posek, Rav, and Lecturer, in the Tzemach Tzedek community Shul in Tzefas, Israel. His many classes can be heard both from his website, Vimeo and YouTube channel. Students can join live to classes given in the Tzemach Tzedek Shul, through the “בית חבד צפת Chabad Tsfat” YouTube channel.

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