Establishing Paternity by Means of Blood Type Testing in Jewish Law and Israeli Legislation
Prof. Dov I. Frimer
Significant developments have occurred in the field of hemato- logy during the past generation, and research in the area continues to advance. Scientists are firmly of the opinion that proper use of ABO blood type testing enables one to establish in most cases the negative determination of a paternity, namely that X is not the father of Y. At the same time, the medical community acknow- ledges that a satisfactory method for positive, definite determin- ation that X is the father of Y, on the basis of ABO blood types, has yet to be developed. Despite all this, judges in Anglo-Saxon countries are quite reluctant fully to accept paternity blood testing with all its ramifications. It is their opinion that the law should proceed cautiously when dealing with the adoption of new tests and examinations in an area which is under going rapid change and development.
In this article I shall analyze and compare the attitudes of Jewish law and of Israeli law towards the use of blood testing in determining questions of paternity. To achieve this aim, three questions must be investigated:
1. To what extent does the legal system recognize the scientific position of ABO blood typing as a reliable tool in relation to paternity?
2. If the legal system recognizes the scientific position, to what extent is the legal system willing to give the results of blood tests legal, probative weight?
3. Is a court authorized to order blood tests against the will of the parties?
B. Israeli Law
1. Recognition of the Scientific Position
In Civil Appeal 313/68(4), it was argued that the “genetic law upon which the experts base themselves is not an absolute rule of science; rather it represents only the present state of the art or the craft”. The appellant’s attorney thereupon petitioned the court to withhold any recognition from the scientific position that a blood test is an authoritative tool for establishing paternity, and to deny any weight to a blood test which excluded the respondent from the possibility of being the father of the child.
The Supreme Court, per Justice Silberg, permanent Deputy- President, rejected this argument, saying: “It is clear to us that the theory of Landsteiner and his school is not an outdated theory; on the contrary, it is a theory which is very much alive and thriving, and we have no reason to doubt that it will continue to thrive for a long time to come.” Thus, the Supreme Court embraced the scien- tific position with regard to the establishment of paternity on the basis of an ABO blood test.
In reality, the Supreme Court had already adopted this position some eight years earlier. In that prior case the respondent had been asked by the appellant to undergo “certain physical tests” in order to prove his paternity. The respondent, however, refused to do so. Clarifying the appellant’s request, Justice H. Cohen noted: “The issue is a blood test, and everyone acknowledges that these tests can prove negatively that the respondent is not the father of the child, although they can never prove positively that the res- pondent is his father.”
These explanatory remarks of the court clearly indicate that at that time Justice Cohen had already accepted as self-understood – “everyone acknowledges” – the claim of the scientific community that blood tests were indeed reliable, at least with regard to a negative determination.
2. Probative weight
Although the court was essentially willing to accept the scientific attitude towards blood typing, this did not necessarily guarantee that it would also give the results of a blood test full legal, probative weight. Consequently, in the above-mentioned Civil Appeal 313/68 Justice Silberg took care to elucidate the Supreme Court’s opinion on this question as well. The Court ruled that in the light of the fact that this scientific theory is universally accepted as true, it constituted knowledge of which the court took “judicial notice”. As a result, a judge could not reject the medical conclusion even in the face of other, seemingly contrary, evidence.
As we have already stated, the question before the bench concerned a negative determination. That is, the blood test showed that the respondent was not the father. Under these circumstances the court was influenced by the high degree of certainty attributed to the ability of the test to exclude a person from paternity. It is reasonable to assume that were the degree of certainty equally as high when dealing with a positive determination of paternity, i.e., that the respondent was in fact the father of the child, then the law would similarly be prepared to accept a positive determination as conclusive evidence. This, however, is still in fact not possible. The scientific situation today is such, that except for certain rare cases, ABO blood tests cannot with certainty determine that a given child belongs to a given father (though it is possible to calculate the probability). As a result, the courts have in a number of cases ruled that the ABO blood test may not be utilized as positive proof of paternity.
Moreover, it is important to emphasize that even a negative determination does not provide absolute, one hundred percent, proof that the respondent in fact is not the father of the child. A statistical result above 99% is obviously considered to be significant.
The majority of decisions published on this subject deal with the problem of establishing paternity within the context of a suit for maintenance. However, there is little doubt that the conclusions reached in these cases are equally applicable to other areas of civil law, e.g., the law of inheritance (even though in that context more weighty evidence may be required, due to the absence of the father- legator).
An interesting problem arises in connection with the estab- lishment of paternity in the area of criminal law, for example, the offense of willfully causing the death of a parent. Would the court rely upon a blood test as to whether the victim was in fact the father of the accused? To date there is in Israel no case law on this question. It would appear that if the courts in a civil action are willing to entertain doubts with regard to a plaintiff’s claim in the wake of a negative blood test result, all the more that they should do so in a criminal trial where the prosecution must prove the charge beyond any reasonable doubt. A negative determination alone should be adequate grounds for acquitting the defendant of crime.
What, however, if the result of the blood test shows that there exists a reasonable chance that the deceased was indeed the father of the defendant? Should we in this event also apply the law relevant to civil matters? We must then conclude that this element of the offense, i.e. paternity, cannot be proved by means of a blood test. The result would not even qualify as circumstantial evidence. However, this conclusion appears somewhat odd in view of the fact that in order to prove the identity of the defendant and implicate him in the commission of a crime, even a positive result from a blood test is admissible circumstantial evidence. If the results of a blood test are admissible as evidence as to the identity of the felon, why should they not be admissible as evidence of the identity of the victim?
3. The Authority to Order a Blood Test
According to the traditional Common Law rule a court does not have the authority to order an adult to undergo a blood test. Such an order is viewed as an infringement upon an individual’s personal liberty. However, this slight infringement is insignificant when compared with the important public interest involved in determining a child’s proper father. As a result, statutory changes were introduced in England allowing judges to order blood tests. Should the party refuse to undergo such a test, the court is authorized to infer appropriate conclusions.
In the United States as well, many States have adopted the position that courts have the authority to order blood tests. Some States have enacted specific legislation in this regard, while others have deemed this authority to be part of the “inherent authority” of the courts.,
In Israel, though, the Common Law approach still prevails. A series of decisions has affirmed the rule that judges in the State of Israel do not have the authority to order ABO blood tests. In light of this stance, the courts have no choice but to view a refusal to undergo examination as merely a lack of willingness to volunteer, which teaches little about the objector’s possible fear from the test’s outcome.
Early in 1961, the Supreme Court called upon the legislative branch to concern itself with the entire gamut of complex questions involved with the establishment of paternity. Inter alia, they urged the Knesset to empower judges with authority to order the relevant parties to undergo any medical or laboratory tests which the court deems necessary or beneficial for the discovery of the truth, and to allow the courts to view a refusal to undergo such tests as corro- borative evidence. The Supreme Court reiterated its appeal in 1980. Despite these pleas, no significant change has yet occurred in this area.
C. Jewish Law
1. General: Jurisdiction of the Rabbinical Courts
Israeli case law maintains that questions of paternity are not included among the matters of personal status which, according to Israeli law, must be adjudicated in accordance with religious law or before a rabbinical tribunal.
Similarly, the widely accepted rule is that even when a civil court applies religious law, it applies only the substantive law; while in procedural matters – for example, rules of court and laws of evidence – it applies the provisions of the general secular law.
Nevertheless, when the question of paternity is specifically raised as part of a divorce action, the rabbinical court gains jur- isdiction to rule on the paternity issue as well. This is also the case when the question of paternity arises incidentally to any matter which clearly comes under the jurisdiction of the rabbinical court. In these situations, the rabbinical court understandably rules in accordance with Jewish law.,
Moreover, two District Court opinions entertain the poss- ibility that paternity ruling is not considered to be a matter of personal status in relation to the question of a child born out of wedlock. But determining whether the child of a given married woman is the offspring of her husband falls under the heading of “legitimacy”, which is included in the catalogue of “matters of personal status” as recorded in Section 51 of the King’s Order in Council on Palestine, 1922. Consequently, the latter case may be brought under the jurisdiction of the rabbinical courts with the consent of the parties concerned.,
What is the position of Jewish Law on establishing paternity by means of an ABO blood test?
2. Recognition of the Scientific Position
The Babylonian Talmud, Tractate Niddah, states: Our Rabbis taught: There are three partners in man, the Holy One, blessed be He, his father and his mother.
úðå øáðï: ùìåùä ùåúôéï éù áàãí – ä÷á”ä àáéå åàîå. àáéå îæøéò äìåáï ùîîðå òöîåú åâéãéí åöôøðéí åîåç ùáøàùå åìåáï ùáòéï. àîå îæøòú àåãí ùîîðå òåø åáùø åãí åùòøåú åùçåø ùáòéï. åä÷á”ä ðåúï áå øåç åðùîä å÷ìñúø ôðéí åøàééú äòéï åùîéòú äàåæï åãáåø ôä åäìåê øâìéí áéðä åäùëì.
This apparently would not be in agreement with the position of modern science which maintains that a person’s blood comes from both parents, the father and the mother, thereby enabling one to establish paternity by means of comparing blood types. If the quoted passage were to be taken literally, there could be no legal possibility of establishing paternity, positively or negatively, by means of a blood test.
However, the assertion that a child’s blood is derived exclu- sively from the mother, has its origin in the context of Aggadah. Nevertheless, one of the important early codifiers of Ashkenaz, Rabbi Alexander Zuslin HaKohen, the author of “Ha-Aguddah,” relied upon this passage in relation to a purely halachic ruling. He writes:
I was asked about a man whose two sons died as a result of circumcision and whose first wife died. He remarried, and his second wife gave birth to a son. And I said that he should be circumcised ... since blood is derived from the mother. He did so, circumcised him, and the child lived.
Should two sons born of the same mother die as a result of circumcision, halacha prohibits circumcision of a third son until he reaches maturity and presumably becomes stronger. This rule would apply even if the third son were of that of another husband. However, Rabbi Alexander Zuslin rules that in the event of the third son being born of a different mother, he is to be circumcised, “since blood is derived from the mother.”
How does halacha relate to those cases where there is a difference between the opinion of our Sages and that of modern science? This topic is worthy of treatment in a separate article; but, without going into the fine details of the subject, there are basically two schools of thought. The first school, headed by Maimonides, holds that in such a case we are not obligated to accept the scien- tific determinant of our Sages. Followers of this school consider that the greatness and the superior quality of our Sages is to be found in the realm of halacha; while in the realm of science our Sages “did not make pronouncements based upon traditions derived from the prophets, which they had in those matters, but rather because they had knowledge on these subjects in terms of the general level of knowledge of those generations, or they became aware of those opinions from those who were knowledgeable in those generations ....” It is to be concluded from this position that we are permitted to rule upon halachic subjects by relying upon the finding of the scientists of our own generation – even if this should seemingly contradict our Sages’ understanding of nature.
The second school maintains that we are duty-bound to abide by the pronouncements of our Sages, since “the counsel of the Lord is with them who fear Him” (Psalms 25:4). Therefore, we may not accept any scientific base for halacha which runs counter to statements made by the Rabbis.
In light of this general outline, how should we approach the specific topic under discussion?
To the best of our knowledge, the first authority to deal with this question was the Sephardic Chief Rabbi, the Rishon le-Zion Rabbi Ben-Zion Meir Hai Uziel, who writes:
“... we do not rely upon scientific examination of the blood of the child [which finds] a similarity with [the blood] of the father. And this is because we have a received tradition from our Sages that there are three partners [in the creation] of man: God, his father and his mother. Any contrary scientific result is nullified by the trustworthy tradition of our Sages.”
Rabbi Uziel clearly subscribed to the approach of those who argue that we must always rely upon the rulings and “scientific” statements of our Sages, even if these apparently stand in oppo- sition to the findings of modern science and scientific proof.
Others who following the wake of Rabbi Uziel are the head of the Regional Rabbinical Court of Jerusalem, Rabbi Eliezer Judah Valdenberg, the head of the Regional Rabbinical Court of Tel-Aviv/Jaffa, Rabbi Joshua Menachem Ehrenberg, Rabbi Israel Weltz, and in the United States Rabbi Menashe Klein. The Regional Rabbinical Court of Haifa (Rabbis Y.N. Rosenthal, Av Beth Din, B. Rakover and A. Hadaya) ruled in a similar vein. However, towards the end of their decision, the Court wrote:
“However, after this has been elaborated, the Court holds that it may be argued that there is no contradiction between what is asserted in the above-mentioned Tractate Niddah that the blood comes from the mother, and the scientific opinion that paternity of a child can be established by testing the blood of the father and of the child, because the test relates to the cells and their membranes as well and these are derived also from the father.”,53*
This may be viewed as the first attempt within the realm of halacha to accept the scientific conclusions concerning the estab- lishment of paternity on the basis of a blood test.
On the other hand, one can also find Posekim who are willing to accept the scientific opinion in its entirety.
Rabbi Efraim Fischel Weinberger, member of the Rabbinate of Tel-Aviv/Jaffa, acknowledged the principle set forth by Rabbi Uziel that one may not rely on blood tests where they contradict statements of our Sages. However, Rabbi Weinberger found that, according to his interpretation of the relevant passages, there was in fact a difference of opinion amongst the Tanna’im and the Posekim as to whether blood is derived from the mother only, or also from the father. In the Tractate Eduyyot, the Mishna relates in the name of Rabbi Akiva:
“The father transmits to the son comeliness and strength and wealth and wisdom and years ...”
According to Rabbi Weinberger, “and strength” means the blood because the essence of strength and of the soul is essentially in the blood. (See Tractate Shabbath 129a, Baba Batra 55b, Hullin 72b.)
Rabbi Weinberger therefore concludes that this Mishna of Rabbi Akiva which “asserts” that the source of a child’s blood is to be traced to the father is somewhat contrary to the passage cited in Tractate Niddah, according to which the source of a child’s blood is solely from the mother.
Furthermore, we noted above that there are Posekim who disagree with the ruling of the Ha-Aguddah and hold that one should not circumcise the third child of a man whose first two sons had died as a result of circumcision, even if the third child were born of a different mother. According to Rabbi Weinberger, these Posekim follow the position of the Mishna in Eduyyot, as explained by Rabbi Weinberger, that blood is derived from the father as well. Since on the one hand there is a difference of opinion in the sources concerning the views of the Sages, while on the other hand scientists are unequivocal in their position, Rabbi Weinberger, therefore, tends to accept the scientific position.
Although Rabbi Weinberger does not cite him, this method of arriving at a definitive decision is compatible with the guidelines set out by Rashbash (Rabbi Simeon ben Solomon Duran).
Rabbi Shlomo Zalman Auerbach has a somewhat different approach. In his opinion “it is possible that the words of our Sages are not to be taken literally, and have nothing to do with blood types.” The passage in Tractate Niddah, as Rabbi Auerbach understands it, concerns intellectual and metaphysical ties, and not natural or biological ones. Consequently, there is no contradiction between the Talmudic dictum and the scientific position.
Some Posekim are even willing to accept the scientific view that blood comes also from the father, without any apparent concern for the seeming contradiction to the passage in Tractate Niddah. Rabbis M. Schlesinger, Y. Willensky and Y. Sorotzkin, sitting on the Regional Court of Tel-Aviv/Jaffa, as well as Rabbi Hayyim David Regensberg, appear to have accepted the position of Maimonides and his school that it is permissible to render rulings based upon the scientific knowledge of each generation, even if such rulings seemingly contradict the “scientific” dicta of our Sages. A clear expression of this position is found in one of the letters of the late Chief Rabbi of Israel, Rabbi Isaac Halevy Herzog. This letter, published here for the first time, was sent to a distinguished Rabbi in Israel, and reads as follows:
2 Sivan 5714
I do not deny that I was almost embarrassed ... by what you wrote ... in such a deprecating manner towards blood tests, from a negative aspect. That is, with regard to the possibility that [a blood test can] clarify that X is not the son of Y. How can there be a question of the credibility of the doctors in a matter which has been clearly accepted by all the masters of medicine throughout the entire world! Our Sages nowhere say that it was a statement handed down to Moses on Sinai that creatures came into existence by spontaneous generation.... Moreover, this is impossible, since it is now as clear as the sun at high noon that no such process exists. However, they held spontaneous generation to be a fact and built on this assumption, since Aristotle had so asserted and so had been accepted by all the scholars of his time. What vast differences there are between the science of medicine in their day and in ours, and between the contacts that exist between all parts of the world today, in contrast to the state of affairs in ancient times! I remember from my reading of medical literature that there is no doubt whatsoever concerning this matter. Yet in your letter you imply that there are differences of opinion among medical experts. With all due respect, you are completely mistaken. Here is a copy of a letter from the government’s medical-legal expert who is also an observant Jew. The husband has already come to me and asked that the judgement be executed. You do not accept this. We shall give him an extension, and I am arranging the matter here and will notify the parties through you as to when they must come. It is unfortunate that while science is progressively conquering worlds and discovering all sorts of secrets, although it too errs at times, we like ostriches bury our heads in sand. It is imperative that we encourage the ablest students of the yeshivot also to be educated as men of science in each discipline, so that we should not need to turn to others in matters of physiology, chemistry, electricity, etc. concerning things that relate to our sacred Torah. ...
Isaac Halevy Herzog
Moreover, in a decision of the Rabbinical Supreme Court of Appeal, dated 9 Iyar 5714, Rabbi Ovadiah Hadaya concurred with the opinion of Chief Rabbi Isaac Halevy Herzog. As a result, the Rabbinical Supreme Court expressed willingness to rely upon a blood test in order to clarify a question of paternity.
Thus we have seen that many Posekim have accepted the factual conclusions of modern science that paternity can be established by means of blood testing, albeit for a number of different reasons. However, is Jewish law ready to endow this scientific position with legal-halachic probative standing? As we have seen, even Israeli law is reluctant so to do. What is the position of Jewish law on this legal question?
3. Probative Weight
As we mentioned above, the Rabbinical Supreme Court of Appeal declared in l954 that it gave full probative weight to the results of blood testing which negate paternity. By contrast, in a 1957 ruling the Rabbinical Court of Haifa refused to grant any legal probative weight to the results of a blood test.
The Court then wrote:
It is our opinion that there is a different reason for not relying upon scientific testing of the blood in connection with establishing the paternity of a child. Science advances from day to day. It is probable that what science may establish today is not final. Perhaps as science progresses, characteristics common to two types of blood may be discovered, and therefore the paternity of a child should not be legally established if based upon scientific principles which may vary from time to time.
Nevertheless, ten years later we find that these very Posekim were ready also to give legal weight to the results of blood tests. Rabbi H.D. Regensberg ruled:
... blood tests are not in the nature of legal presumption ... the scientific premise that the blood of a child is based on the type of the blood of its parents is a natural law to which there is no exception. Consequently these proofs are absolute, and even were there to be a testimony by witnesses to the contrary, we should rule in accordance with the results of blood testing, and hold that the witnesses were lying.
Rabbi Efraim Weinberger ruled similarly, albeit cautiously worded: From a halachic point of view, the validity of this test cannot be denied.
What are the practical implications of this position?
B. Civil Matters
After a detailed discussion of the various views on the subject, Rabbi Weinberger arrives at the conclusion that the weight of halachic authority maintains that with regard to civil matters, for example alimony, maintenance and inheritance, “unquestionable knowledge” of the court is deemed to have the same weight as the defendant’s admission – in this case an admission by the father. Rabbi Weinberger continues to argue that the results of blood testing constitute such “unquestionable knowledge” of the sort that “obligates the court to act as if it were an admission by the defendant.”
An interesting passage from Sefer Chasidim is cited by Rabbi Weinberger to demonstrate that one may render judgment in civil matters based upon “scientific” evidence. Rabbi Yehudah Ha- Chassid relates the following story:
There is a story about Rabbi Saadia ben Yosef He-Chacham regarding a man who went abroad with his servant and took along with him all his wealth while leaving behind his pregnant wife. Sometime thereafter the man died, and the servant took possession of his property claiming he was the son. When the son whom the wife bore grew up, he heard that his father had died, and he claimed the property which was held by the servant. The servant had married into one of the important families of his time, and the true son was in fear of death and afraid to speak. He stayed with Rabbi Saadia, who offered him food, but he refused to eat before having poured out his heart. Rabbi Saadia advised the son to appeal to the king, who sent for Rabbi Saadia to rule on the matter. Rabbi Saadia ordered blood to be drawn from the son to be put into a cup, and then blood to be drawn from the servant and put into another cup. He then took a bone from the father’s skeleton and dipped it into the servant’s blood, but the blood was not absorbed. He then dipped the bone into the son’s blood which was indeed absorbed. Rabbi Saadia thereupon ordered the property to be given to the man’s son ...
According to Rabbi Weinberger, this story of Rabbi Saadia might serve as a precedent for ruling on at least the inheritance aspects of a paternity case, based exclusively upon the results of “scientific” testing.
Similarly, Rabbi Regensberg, who, as we have seen, fully accepts the modern scientific position, also rules that an unequivocal judgment should be rendered in line with the results of blood testing.
It logically follows that in the event that a defendant submits results of blood testing which indicate that X is not the father of Y, these results would certainly release him from any monetary obligation. A 1954 decision of the Rabbinical Supreme Court of Appeal did in fact rule accordingly.
There remains, though, one critical flaw in the positions we have presented until now. Both Rabbi Regensberg and Rabbi Weinberger based their decisions upon the scientific, theoretical assumption that paternity can be established by means of a blood test with a 100% degree of certainty. In fact, however, this is not the case. As we have already seen, not only do the doctors today admit that it is impossible positively to prove paternity by means of an ABO blood test, but even the negation of paternity cannot be attained with 100% degree of certainty.
As early as 1965, the Regional Rabbinical Court of Tel-Aviv /Jaffa was concerned about this state of affairs, “and particularly nowadays when science and medicine are constantly advancing, and every day there are new and changing theories in the various areas of research.” After a lengthy discussion of this problem, the Court came to the following conclusion:
... we have here [a situation of] one rov (majority) standing in conflict with another rov. For if we say that the child is indeed the issue of the man who is held to be his father [based upon the legal presumption that] “the majority [of a woman’s] sexual unions are with her husband,” then we must perforce say that this child is an exception to the rov, [which would have followed from the presumption that] a “majority” of children have a blood type clearly derived from their parents. On the other hand, if we reverse [the arguments] and say that this child is not the son of the man who is held to be his father, in order to uphold the rov [which follows from the presumption that] a majority of children have blood types clearly derived from their parents, the we are forced to say that this child is an exception to the rov [which follows from the presum- ption] that “a majority of [a woman’s] sexual unions are [held to be] with her husband.”
Therefore, the question arises as to which of the two arguments is to be accepted as definitive.
Because of this doubt, the situation is one of stalemate, and led the court to rule that the respondent was not obligated to pay maintenance for the child.
We may point out that if this is the ruling when the respondent is married to the plaintiff, a fortiori must it be the accepted ruling when the man is not married to the woman plaintiff. When the woman is not married to the man, there is no applicability of the presumption that a “majority of [a woman’s] sexual unions are [held to be] with her husband.” In such a case, therefore, there is only the principle that “a majority of children have blood types clearly derived from their parents,” on the basis of which the court’s ruling should be made.
A topic not treated by the Tel-Aviv Rabbinical Court in its decision was the issue of inheritance. Yet it would seem clear that we have a situation similar to that already discussed. The child would be classified as a “doubtful heir,” with all that this term implies. On the other hand, even if from the results of the blood test it is reasonable to assume that the child is that of the husband, as long as the test is not deemed absolute verification (berur gamur), these results are not sufficient to endow the child with the status of an heir. Such a conclusion is no more valid than any other “circumstantial presumption of fact” (umdana al guf ha-ma’aseh), which, according to the accepted rule of law, cannot be relied upon to prove either the actual commission of a deed nor the identity of the man who committed it.
This would appear to be the view also of Rabbi A.A. Price of Toronto Canada. Rabbi Price queries as to why the blood test conducted by Rabbi Saadia as related in Sefer Chasidim, on the basis of which Rabbi Saadia ruled as who was the true heir, did not constitute an umdana al guf ha-ma’aseh, which, as we have noted, is inadmissible evidence in law.
“After investigating the matter,” Rabbi Price concludes, “... therefore if absolute verification (berur gamur) has been reached [although] not on the basis of [testimony of] witnesses, even in such a case we should rule on the payment of money.” The implication of this statement is evident: so long as the verification is not absolute, the test is deemed to be an umdana al guf ha-ma’aseh, on which basis no ruling can be made.
This would also appear to be the opinion of Rabbi Regensberg. As we have already seen, Rabbi Regensberg places complete reliance upon blood testing because it is “a natural law without exception.” Consequently, in a case where there is no shadow of doubt concerning what has occurred, and no one can argue that what has occurred is different from that of the presumption (umdana), then this no longer held to be a “presumption” (umdana), but is regarded as an actual fact.
Nevertheless, immediately prior to this statement, Rabbi Regensberg emphasized:
It is worth pointing out than included within the concept of a “presumption” (umdana) is any matter which is not been absolutely verified.
Quite clearly, the conclusion to be drawn from this statement is that so long as a blood test is not a “matter which has been absolutely verified,” the test is still to be considered a “presum- ption” (umdana), and therefore may not be relied upon completely.
In the light of this discussion of paternity, we may assume that the same rules would apply with regard to a suit for maintenance. Thus even if the results of a blood test were to show to a high degree of probability, but not “absolute verification,” that X is the father of Y, this would not be sufficient to obligate the putative father to pay for the support of the child. Here, too, all we have is a “presumption” (umdana al guf ha-ma’aseh), which is inadequate for the court to compel a person to pay.
C. Religious and Criminal Law
Until now we have dealt with laws pertaining to civil matters. What, however, would be the implications of negative blood test results which exclude a husband’s paternity, upon the status of the child? To what extent would the child now be considered the product of an adulterous relationship and thereby affected by certain restrictions of marriage under Jewish law? Rabbi Regens- berg writes:
However, if the blood of the child was tested and the paternity of the husband thereby excluded, the resultant legal ruling applicable to the child would not necessarily apply to the mother. With regard to the mother, the test would be sufficient to prohibit her continuing sexual relations with her husband, since it is clear that she committed adultery. But, with regard to the child, he is not held to be illegitimate so long as it is unknown who the real father is. Even if the mother committed adultery, the child is not a mamzer (illegitimate) if the father was a non-Jew (see Yebamoth 44b). If the mother says that she became pregnant by a non-Jew, this is relied upon to legitimize the child. Maimonides wrote in the Laws of Forbidden Sexual Unions, Ch.15, Section 19: “A woman whose husband went abroad, and who gave birth, saying that she became pregnant by a non-Jew or a slave, the resultant child is statutorily legitimate.” And so too in the Shulchan Aruch, Even Ha-Ezer, Sect. 4, para. 29: “If the mother remains silent and does not reveal with whom she had intercourse, the child is a shetuki.”
It is important to note that this discussion concerning blood tests and legitimacy has basis in the writings of the Ba’alei Ha-Tosafoth. They are of the opinion that when the court has absolute knowledge as to what has occurred, this “knowledge without testimony” (yediah belo re’ayah) is deemed to have validity not only in civil matters, but also in criminal law, and certainly with regards to legitimacy.
However, Rabbi Regensberg’s position has been challenged by Rabbi J. Fester. Rabbi Fester mustered Rishonim who disagree with the view expressed by the Tosafists and who argue that “knowledge without testimony” is legally effective only in civil matters. For these Rishonim, blood testing is not decisive evidence to affect the legitimacy of a child. This view may serve as an important auxiliary argument to legitimize a child.
Moreover, as we have already pointed out, the conclusions of blood testing are not absolute. Therefore, despite the fact that blood testing may indicate that a certain child is not that of the mother’s husband, there does nevertheless remain a possibility that conclusions of the test are not correct. With regard to questions of legitimacy, Jewish law always maintains that “as long as it is possible to attribute the pregnancy to her husband, even if this be far chance, we do not attribute it to an adulterous relationship (chezkath kashruth).”[99a] Thus, it would seem to us that contem- porary rabbinic authorities would be following this view if they bore in mind the possibility of error, and declared a child as legitimate despite the negative results of blood testing. In fact, such an approach was advocated by Rabbi Weinberger,[99b] and more recently endorsed by the Rabbincal Supreme Court of Appeal.[99c]
Nonetheless, in an earlier case where the mother was married and the results of a blood test excluded paternity by the husband, the Regional Rabbinical Court of Tel-Aviv/Jaffa held the child to be a questionable mamzer (illegitimate). Finally, the court refrained from reaching a definite conclusion in this matter, stating:
“However, since the matter of a blood test is something new which has not been verified, and is not to be found among the Posekim, our court will not for the time being reach a final decision concerning the legitimacy of the child and shall do so when the appropriate time comes.”
It would seem to us that this was a case where the court should have taken note of the opinions of all authorities who refuse to rely on the results of a blood test, as well as those Rishonim who reject the concept of “knowledge without testimony” in areas of criminal and religious law. These views should be used as auxiliary argu- ments (senifim) in favor of a lenient ruling because of the resultant formation of a double doubt (sefek sefekah), thereby legitimizing the child.
Let us now move on to the field of Jewish criminal law. A person who causes bodily injury to a parent is liable to the death penalty, provided that all the requirements of procedure and evidence have been fulfilled (for example: valid witnesses, prior warning, etc.), and the facts are clearly proved. The question arises whether Jewish law recognizes the results of a blood test to prove or negate the identity of the victim as the father of the accused.
From Rabbi Regensberg’s writings it appears that the parent-child relationship should be determined on the basis of the results of a blood test, which constitute “knowledge without testimony,” even within the context of criminal law.
However, we have already pointed out that Rabbi Regensberg’s position is predicated upon the assumption that a blood test constitutes absolute evidence to a degree of 100% certainty. In view of the fact that there is no 100% certainty, we presume that the rule that governs criminal law would be similar to the rule that applies in civil law, namely:
The doubt that is created by a negative result and which releases the respondent from any monetary obligation will also operate within the realm of criminal law to bring about the acquittal of the accused.
This conclusion is in consonance with the guiding principle that “in criminal law the defendant is given the benefit of the doubt.” On the other hand, even if the result of the blood test were positive and indicate that the victim may probably be the father of the accused, as long as the blood test does not constitute absolute proof as of parent-child relationship, the result would be insufficient for evidence.
We have already mentioned that there are Rishonim who hold that in criminal law one may not rely upon “knowledge without testimony” (yediah belo re’ayah) with reference to the crime itself, nevertheless this would not affect our conclusions concerning the parent-child relationship, because here we are not concerned with the use of a blood test for the purpose of proving the criminal act itself (the act of battery, or the identity of the assailant), but rather in order to verify the factor needed to establish the act as a crime. The factors are independent of and are not necessarily linked to the act (the crime) of battery itself, but define the parent-child rela- tionship and the status of the victim vis-à-vis the defendant. In criminal law, so long as the commission of the criminal act itself and the identity of the assailant have been proven, direct decisive evidence is not required, and a “majority” (rov) or a legal pre- sumption (chazakah) would suffice for other aspects.
The Amoraim bring proof for both of these two rules – that is, that in criminal law both a “majority” or a “presumption” is sufficient – from a single text which is directly relevant to our subject.
In the Babylonian Talmud we find a discussion as to the biblical source for the rule that in certain circumstances one may decide a criminal case on the basis of “majority”:
“Rav Mari said: we learn this from the case of one who smites his father or his mother (Exodus 21:15), for which offense the Torah prescribes death. Now why do we not consider it possible that the person who was struck was not his father? It is because we follow the “majority”, and a majority of a woman’s sexual unions are [held to be] with her husband.”
Similarly, the Amoraim in the Palestinian Talmud adduce scriptural proof for the rule that under certain circumstances of criminal cases it is permissible to decide on the basis of “pre- sumption”:
“Whence [do we learn] that it is permissible to put to death [on the basis of] presumptions? Rabbi Samuel, the son of Rabbi Yossi, the son of Rabbi Bon said: It is written: “He who smites his father or his mother shall be put to death” (Exodus 21:15). Is it a certainty that this is his father? Is it not a presumption that he is his father? And yet it is said: put to death.”
These two passages clearly demonstrate that not in all aspects of halacha is direct evidence required; a “majority” or a “presum- ption” is sufficient when the question is not that of the commission of a criminal act itself or the identity of the criminal.
Consequently, we would not need a 100% reliability of blood test results. Inasmuch as a “majority” is sufficient (e.g. “a majority of a woman’s sexual unions are [held to be] with her husband”), the halacha would accept reliable blood test results together with other evidence, whether positive or negative, which have a greater than 50% degree of reliability.
The same rule holds true for the prohibitive religious laws. Should a case of incestuous relations between a father and a daughter come before the court, with the possible result that the issue of such a relationship be deemed a mamzer (illigitimate), the court should be able to use, together will all other evidence, any blood test results which have a degree of reliability greater than 50%, so as to be able to accept or negate the father-daughter relationship.
As we have shown, both Jewish law and Israeli law are in agreement that the negative result of a blood test is sufficient to release a defendant (accused) from responsibility. But, despite the similarity of the conclusions by both legal systems, there exists a fundamental difference between the two with regard to their underlying rationales.
As we have seen, Justice Silberg classified blood tests as part of the knowledge of which the courts took “judicial notice,” and which the courts were not authorized to reject in favor of other evidence. In Justice Silberg’s view, although results of blood tests are not absolute from a statistical point of view, they, nevertheless, do possess the quality of “practical certainty” which compels the court to rule accordingly. For Israeli law, as expressed in Justice Silberg’s opinion, the release from paternity that results from a negative blood test finding, is based upon what is held to be virtual certainty. The defendant is, therefore, unequivocally released from all obligation. In Jewish law, by contrast, a negative result of a blood test does not create a definitive release from obligation (vaddai patur); rather, the blood test findings raise doubt as to the veracity of the plaintiff’s claim (shemma patur), a doubt which is generally sufficient to release the defendant from responsibility in line with the two principles: “the burden of proof rests with the plaintiff” and “doubt in criminal law favors leniency”.
On a practical level the different consequences of these two approaches can be seen, for example, in the laws of inheritance. In the case of a child who is presumed to be the son of a certain couple, in which a blood test negates the paternity of the legator as his father, according to Israeli law, the child is certainly not held to be the son of the legator and is therefore not an heir. In contrast, according to the Jewish law, there is held to be a legal doubt as to whether this child is the son of the legator or not, and as a result of this the child is deemed to have the status of a “doubtful heir.”
It is also possible that this distinction between Jewish and Israeli law may have an important bearing upon the question as to how far a court is authorized to overrule the negative findings of a blood test based upon presumptive evidence (umdana) and the complex of all other evidence? This question has not yet been resolved in halachic literature.
4. Authority to Order a Blood Test
We have been unable to find any source in Jewish law which deals directly with the question as to whether the court has auth- ority to order the parties to undergo a blood test against their will.
Yet, in the story of Rav Sa’adiah related in Sefer Chasidim, it says: “... Rabbi Sa’adiah ordered blood to be drawn....”
Nevertheless, proof from this is at best inconclusive. Rav Sa’adiah authority to “rule on this matter” was derived from the King. Therefore it is possible that Rav Sa’adiah’s order in no way stemmed from authority rooted in Torah law.
However, in light of the fact that the later authorities view Rav Sa’adiah’s action as completely compatible with halacha, one may perhaps argue that Rav Sa’adiah’s ruling itself may be deemed to be a halachic precedent.
By way of an analogy, we may perhaps compare this with the attitude of the Posekim toward the compulsory use of modern techniques.
Rabbi Norman Lamm, discussing the use of the polygraph in light of the halacha is opposed to granting court the authority to order a polygraph test over the protestations of a defendant. In Rabbi Lamm’s view, the use of a “lie detector” involves infringement of a person’s right to privacy.
However, these comments of Rabbi Lamm are evidently not in the nature of a definitive halachic conclusion, but rather represent a general directive. Rabbi Lamm bases his analysis on this subject upon a responsum of his grandfather, Rabbi Joshua Baumol, which deals with the use of the polygraph for evaluating witnesses. Rabbi Baumol concludes:
“... however, with respect to those laws ... where according to all the opinions it is obligatory to investigate and inquire as deeply as possible, then the court is certainly authorized to examine witnesses by means of this machine.”
From this we may conclude that when the lie detector is needed in order to uncover the truth, the court indeed has the authority to order the use of the polygraph, despite the possible resultant infringement upon the right to privacy.
We encounter a similar situation in connection with the examination of semen. Under Jewish law, a husband may sue for divorce if his wife has not become pregnant for ten years after marriage. In such a case, a court, following the suggestion of doctors, may request the husband to undergo fertility examinations, so as to ascertain whether or not he is the cause of the sterility. The question then arises whether the court is in fact authorized to order the husband to undergo the examination against his will. Rabbi E.Y. Valdenberg answers this question affirmatively. Towards the end of his responsum on this subject Rabbi Valdenberg summarizes his position:
“In the light of all that has been said, there is no reason for the husband to evade taking this test when the court has ordered it, and all the more so when his refusal is to the woman’s disadvantage.”
Thus, the court ordered scientific tests to be performed, despite the protest, and with little concern for the person’s claim to privacy.
From this precedent we must conclude that Jewish law does not view the utilization of such scientific means as an infringement of one’s right to privacy. This is particularly true if being overly protective of the right to privacy results in disadvantage to the other party.
If we accept this, we should similarly conclude that the court has the authority to order the parties to undergo blood tests, even against their will. Moreover, if the parties refuse, it would seem that the court may reach commensurate conclusions, especially with regard to civil action.
Nevertheless, even though the court may have the power according to Jewish law to order a blood test, the question still remains whether such an order is always desirable or advisable. We earlier cited a comment by the Rashash to the effect that a certain talmudic Amora would not have used Rav Sa’adiah’s test as described in Sefer Chasidim, but rather adjudicated the case on another basis:
“... because by means of the test of Sefer Chasidim it would have been discovered that they were mamzerim and Rabbi Bena’ah did not want to be the agent for the discovery of illegitimacy....”
These short remarks of the Rashash teach us an important principle of judicial policy: if a blood examination may result in the disclosure of mamzeruth (illigitimacy), it is preferable not to perform it. The court should attempt to decide on monetary disputes on other bases.
The scientific situation today is such that an ABO blood test can neither prove nor negate paternity with absolute certainty. Except for rare cases, an ABO blood typing cannot positively demonstrate a person’s paternity, even though it is possible to calculate the percentage probability. However, the results of a blood test which negate paternity are near absolute, the degree of reliability being greater than 99%.
In the light of this factual situation, we shall summarize the position of Jewish and Israeli law on the various legal problems which we have discussed:
1. Both Jewish law (according to the majority of the Posekim) and Israeli law accept the claim that it is medically possible to negate (or ascertain) paternity on the basis of a blood test.
2. (a) In both Jewish and Israeli law a husband may be released from payment of maintenance as a result of a negative blood test.
(b) In both Jewish and Israeli law a positive result of a blood test is insufficient to obligate man to pay maintenance for the child.
3. (a) In Israeli law, if an ABO blood test negates paternity, the child is thereby eliminated as an heir; while in Jewish law a negative result may under certain circumstances result in the child being classified as “doubtful heir.”
(b) In both Jewish and Israeli law a positive result of a blood test is insufficient to endow the child with the status of an heir.
4. (a) According to both Jewish and Israeli law, a negative result of a blood test would be sufficient to acquit an accused person from a criminal offense, were paternity one of its elements.
(b) According to both systems of law, a positive result of a blood test is not deemed to be evidence of paternity for purposes of criminal law.
5. No definitive decision has yet been reached in halacha con- cerning the effects of the result of a blood test upon a child’s legitimacy.
6. In Israeli law a judge may not rule contradictorily to a negative result of a blood test. This question has yet to be resolved in Jewish law.
7. (a) In Israeli law the courts have no authority to order the parties to undergo blood testing against their will.
(b) By contrast, in Jewish law the court does have the authority to order a blood test, even if the parties oppose such an order.
8. (a) In Israeli law, the courts may not draw any legal conclusions from the parties’ refusal willingly to undergo a blood test.
(b) In Jewish law, however, should a person despite a court order refuse to undergo a test, particularly with regard to civil claims, the court is authorized to draw appropriate conclusions.
E. Addendum: H.L.A. Testing
In recent years new blood procedures have been developed which are rapidly replacing the older ABO tests. While ABO typing focuses upon the red blood cells, the new procedures examine the white blood cells and their identifiable antigens at the cell surface. Known as the Human Leukocyte Antigen System (H.L.A.), these tests today provide scientists with a highly accurate tool, capable not only of excluding paternity, but also for positively determining paternity. The statistical degree of reliability of H.L.A. testing is an impressive 99.6% for negation and over 90% for positivity.132
In 1979, the Israeli Supreme Court noted:133
“Word has reached us that the new tests which are being performed at the Hadassah University Hospital of Jerusalem, are capable of ascertaining not only if the defendant is not the father of the child, but also positively if he is indeed the father.
However, in the case at bar, both parties consented to undergo the examination, and the results merely excluded paternity of the defendant. Consequently, no special legal significance was attached to the new procedure.”
Yet, as I had indicated in my article on ABO testing, which appeared in 1978:
It is reasonable to assume that were the degree of certainty equally high when dealing with a positive determination of pater- nity, i.e., that the respondent was in fact the father of the child, then the law would on this basis be prepared to accept a positive determination as conclusive evidence.
Indeed, in mid-1980, two ground breaking decisions were ren- dered by Judge Elisha Schoenbaum of the Tel-Aviv District Court. In one, Judge Schoenbaum accepted the positive determination of an H.L.A. typing, together with the mother’s testimony, as conclusive evidence of the father’s paternity. In the second case, Judge Schoenbaum utilized the refusal of a defendant to undergo H.L.A. testing as supporting the claim on behalf of the plaintiff’s child.
Shortly thereafter, the Israeli Supreme Court addressed itself to the issue. Citing extensively from the article by this author on ABO testing, Justice Menachem Elon (joined by Justices D. Bechor and H. Ben-Ito) advocated accepting H.L.A. test results as reliable evidence not only for excluding paternity, but also for positively establishing paternity. Moreover, the judges ruled that in the absence of explicit legislation the court cannot compel a defendant to undergo H.L.A. procedures. Nevertheless, in the light of the weighty statistical reliability of the tests, the court may properly draw appropriate conclusions from the refusal of a defendant to undergo such examinations.
The Israeli Supreme Court has on subsequent occasions affirmed the various aspects of this decision. In fact, in one case the Supreme Court overturned a ruling of a lower court solely on the basis of the H.L.A. results.
However, Justice Elon, once again drawing upon the work of this author, maintained that an H.L.A. test should not be per- formed if there is a possibility that the results of such a test may affect the status of the child and cast a doubt upon his legitimacy. Such a situation may arise where a husband claims that the child of his wife is not his offspring. Should the H.L.A. test substantiate this claim, the child might thereby be deemed a mamzer (illigitimate). Consequently, Justice Elon rules that under such circumstances it would be in the best interest of the child not to perform the tests at all, in preference of the pursuit of truth.
In a later decision, Judge Ya’akov Bazak of the Jerusalem District Court went one step further by refusing to allow disclosure of H.L.A. test results – despite the fact that the procedure had already been performed, lest the result would adversely affect the status of the child.
Jewish law has not fully dealt with the complete array of complex questions posed by H.L.A. typing. However, in one recently published decision the Ashdod Regional Rabbinical Court came to grips with some of the issues.
The baraita cited in Tractate Niddah which presented a difficulty for a number of rabbinical authorities with regard to ABO testing, would seem to present less of a problem with relation to H.L.A. examinations. As Rabbi S. Deichovsky, head of the Ashdod Rabbinical Court notes, the H.L.A. procedure is for identification of antigens on the surface of the white cell membranes. However, these antigens are to be found on the surface of nucleated cells throughout the body. Therefore, though the specific method utilized by scientists involves the use of blood samples, the antigens are not necessarily specifically related to blood in view of the fact that they are not present in the red cells. Thus, the statement that the red component of blood comes exclusively from the mother may have no significance with relation to antigens and H.L.A. testing.
The Ashdod Court, therefore, concluded that H.L.A, testing may in general be utilized as a valid tool for excluding paternity, thereby freeing the defendant from obligation of support. A three-way debate then ensued. Though where the (former) husband was recognized by the community at large as the father of the child, and even so admitted previously in court, an H.L.A. test excluded him from paternity. Rabbi Deichovsky argued that the H.L.A. results relieve the former husband from the obligation of support for the child. Although an H.L.A. test, like ABO typing, is not 100% reliable, the doubt created by the results of the test is sufficient to release the putative father from maintenance. However, since there is some remote possibility that the child is indeed that of the former husband, the child is not to be deemed a mamzer. This is in keeping with the halachic principle avoiding the stigma of mamzeruth (illigitimacy) if there is the remotest possibility of the child being legitimate.
Rabbi Y. Eliezrov maintained that Rabbi Deichovsky’s position was internally inconsistent. The very doubt which relieved the former husband from maintenance of the child, would, in Rabbi Eliezrov’s opinion, cast a similar doubt upon the legitimacy of the child, resulting in a status of mamzer mi-safek. Jewish law restricts marriage of a mamzer mi-safek.
Rabbi M. Elhadad took a diametrically opposite stand. He suggested that inasmuch as blood tests are not absolutely reliable, they are therefore not sufficiently weighty to negate the husband’s own admissions, both in and out of court. Any later contradictory claim, even if supported by H.L.A. test results, should be ignored. The husband remains obligated to support the child, and the status of the child is in no way affected.
It should be noted that despite this debate all the judges concurred that the putative father was responsible for the maintenance of the child, and that there was no question as to the child’s legitimacy. The H.L.A. results were of such a unique and rare character that the court ruled that they were inadequate to provide clear scientific, let alone legal, finality to the case.
While the above discussion was related to H.L.A. testing, the positions taken are, in reality, merely representations of the very lines of argument used with reference to paternity exclusion by means of ABO typing. The problems as yet unanswered are those which arise from results which would indicate that the defendant is indeed the father. To what extent will Jewish law obligate the identified father to support the child? Should the child inherit the defendant? Would the child be punished for causing bodily harm to the “father,” or for incestuous relations with the “father”?
It would appear that the principles outlined with regard to ABO typing should also resolve these above mentioned questions in connection with H.L.A. testing. Inasmuch as H.L.A. typing is not absolutely reliable, positive results would in civil cases be insufficient as evidence, in order to outweigh the defendant’s possessory advantage. On the other hand, significant H.L.A. results have a certainty of greater than 50 percent. This together with the fact that the test may be utilized only in order to establish attendant circumstances of the filial relationship, and not the actual actus rei itself, it would appear that within criminal context H.L.A. tests would be admissible and material evidence.
This conclusion, however, is rather curious. Precisely in the area where one would expect the law to be most stringent, namely criminal law, the formal principles of Jewish law lead us to accept the positive results of H.L.A. tests. On the other hand, in monetary issues, where rabbincal courts have greater latitude and wider freedom, positive H.L.A. findings would be rejected.
An even more problematic situation arises with regard to “the law of recognition” (yakkir). According to Jewish law, a putative father may, under certain very restricted circumstances, pronounce a child who is supposedly his, in fact to be a mamzer. The question has therefore been posed by some halachic authorities as to whether a father’s declaration denying paternity would be within the scope of the law of recognition, and would stand in spite of a blood test indicating paternity to the declarant. Those authorities who have dealt with this issue have firmly sustained the halachic tradition of yakkir, rejecting the implications of the blood test results. In the light of the weighty influence of the law of recognition, these scholars would not agree to any accommod- ation with the results of scientific examinations and have gone so far as to completely reject all blood testing for establishing paternity.
This author, however, with all due respect, believes that the complete denial of H.L.A. results in paternity determination is an unnecessarily extreme step. In view of the fact that H.L.A. results are not absolutely reliable, one may still append the law of yakkir in spite of positive H.L.A. results to contrary. The particular situation could be attributed to that small number of cases not reliably covered by the test.
Whatever the final solution may be to these and related issues, H.L.A. testing clearly requires further rabbinical attention and investigation.
Source: ASSIA – Jewish Medical Ethics,
Vol. I, No. 2, May 1989, pp. 20-35
1. This is not the appropriate place to elaborate upon the scientific aspects of ABO blood tests. For discussion of this subject see: Ching Ling Lee, “Current Status of Paternity”, Family Law Quarterly, Vol. 9 (1975), p. 615; Larry D. Krause, “Scientific Evidence and the Ascertainment of Paternity”, Family Law Quarterly, Vol. 5 (1971), p. 252. See also the honor”s thesis by Ora Marcus, “Establishing Paternity and its Legal Implications”, Faculty of Law, the Hebrew University of Jerusalem.
2. See Marcus, ibid., ch.2, esp. pp. 29 ff. And see text infra at notes 8-9. For H.L.A. typing see Addendum.
3. McCormic, On Evidence (St. Paul, West Publishing Co., 2nd ed., by E.W. Clearly, 1972), ch. 20, sec. 211, p. 522.
4. Civil Appeal 313/68, P., a minor represented by his mother, v. P., 22 Piskei Din shel Bet Ha-Mishpat Ha-Elyon (hereinafter: “P.D.”), (2) 1020, 1025.
5. Civil Appeal 407/60, P. v. A., 15 P.D. 212.
6. Ibid., p. 215.
7. Civil Appeal 313/68, supra (note 4), p. 1026. See also: McCormic, supra (note 3), pp. 521-522.
8. See: Civil File 834/65 cited in Family File (Haifa) 432/66, A. v. B., 78 Pesakim Mechoziim (hereinafter: “P.M.”), 216, 218.
9. See: Krause, supra (note 1), p. 260; Lee, supra (note 1), pp. 630-633.
10. Civil File (Jerusalem) 151/46, Rivka bat Reuven Shimon v. Nissim Nissim, 4 P.M. 377, 380, per Justice Witkin; Civil Appeal 407/60 P. v. A., 15 P.D. 212; Civil Appeal 215/72, P. v. A., a minor, et al., 27 P.D. (1) 792, 794. For critiques of this approach see: Krause, supra (note 1), pp. 260-262; Lee, ibid., pp. 630-631; McCormic, supra (note 3), pp. 522-523.
11. Dr. Ching Ling Lee (ibid., p. 265) wrote in 1975: “The more tests that are made the more genetic variations are found in many systems; it can be expected that eventually even more will be found. Although some of these variants are rare, they should be taken into consideration before a conclusion is reached. Some variants can be verified by additional testing, others by studying the family members. In view of these new findings, an exclusion from paternity can no longer be considered 100% certain. This is not unexpected, since practically all existing rules have exceptions, especially in biology. That is why statistics are often used. Any chance above 95% is considered to be significant. A similar philosophy may have to be applied in paternity exclusion cases, in which the chance is usually above 99%. Thus, an appropriate report should read: According to the current knowledge and our test results Mr. X is excluded from paternity of x.”
Cf. the comments of Justice Silberg in Civil Appeal 313/68, supra (note 4).
12. Civil Appeal 306/56, A.B. v. C.D. et al, 11 P.D.(1) 314, 316 ff.; Civil Appeal 313/68, supra (note 4), p. 1026.
13. Section 214(a) of the Criminal Law Ordinance, 1936; Section 300(a) (1) of the Penal Law 5737-1977, Sefer Hukkim 864, 5737, p. 266 at 271.
14. McCormick, supra (note 3), p. 517; E. Harnon, Law of Evidence (Jerusalem, The Hebrew University of Jerusalem, 1977), vol. 2, sec. 31.4, p. 327 and note 53.
15. See: Cross, On Evidence (London, Butterworths, 4th ed., 1974), p. 64; Harnon, ibid., p. 328. However, there is nothing to bar ordering a child to undergo a blood test, ibid.
16. Cross, ibid., p. 47. An analysis of the legislation in England since 1969 and the vast case law that has come in its wake can be found in Marcus, supra (note 1), pp. 29-36.
17. McCormic, supra (note 3), p. 520; Civil Appeal 407/60, supra (note 5), pp. 215-216. An see in detail: Marcus, ibid., pp. 36-41.
18. With regard to the positions of other legal systems in Europe, Scandinavia and the Eastern Block, see: Marcus, ibid., pp. 41-42.
19. Civil Appeal 407/60, supra (note 5), p. 217; Civil File (Haifa) 532/66, supra (note 8), pp. 217-218; Family File (Haifa) 223/72, Aflalo v. Asias, 5734 P.M. (1) 389, 393; Motion (Beersheba) 217/74, Assraf v. Bechar, 5735 P.M. (1) 202, 205; Civil Appeal 548/78, supra (note 2), pp. 755-756. See also Marcus, ibid., pp. 42-47.
20. Civil Appeal 407/60, ibid.; Civil Appeal 620/74, Mor v. P., 30 P.D. (1) 218, 223; Civil File (Haifa) 532/66, ibid.; Family File (Haifa) 223/72, ibid.; Motion (Beersheba) 217/74, ibid.; Harnon supra (note 13), p. 328; B. Schereschewsky, Family Law in Israel [Dinei Mishpachah] (Jerusalem, Reuven Mass, Publishers, 3rd ed. 1984, p. 489, n. 22.) An additional reason for this rule set forth by Justice H. Cohen in Civil Appeal 407/60, ibid., arises from an a fortiori argument: “If one cannot infer any evidence against him from the results of the test, a fortiori can one not do so from his refusal.” It is clear, however, that this reason depends on the factual scientific situation; see: Civil File 834/65, supra (note 8); Civil Appeal 548/78, ibid., pp. 756-757.
21. Civil Appeal 407/60, ibid., p. 217, at letter “F”. See also the comments of Justice Y. Kahan in Civil File 532/66, ibid.
22. Civil Appeal 548/78, supra (note 2), p. 758.
23. H.C.J. 283/72, Boaron v. Tel Aviv/Jaffa Regional Rabbinical Court and Krashniker, 20 P.D. (2) 727; Civil Appeal 620/74, supra (note 20), p. 220. However, see the critiques of: Dr. Schereschewsky, supra (note 20), p. 445; P. Schiffman, “Jurisdiction and Law in Matters of Paternity”, Mishpatim, Vol. 4 (1974), p. 664.
24. Article 51 of the King’s Order in Council on Palestine, 1922.
25. Civil Appeal 26/51, Kutick v. Wolfson, 5 P.D. 1341, 1345.
26. Even when the parties consent per Section 9 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law 5713/1953, Sefer Hukkim 134, 5713, p. 165. See, however, the unpublished case of H.C.J. 539/79, Bozaglo v. Beersheba Regional Rabbinical Court et al., cited in full and analyzed in Dr. Ya’akov Meron’s article: “The End of Addiction to English Law in Matters of Personal Status”, Iyyunei Mishpat, vol. 7 (1980), pp. 729-737. In that case the Israeli Supreme Court granted the rabbinical court jurisdiction in a paternity suit based, inter alia, upon the fact that the parties had consented to rabbinical adjudication under Section 9. The High Court surprisingly makes no reference to the rule in Boaron, supra (note 23). None- theless, later courts have refused to view Bozaglo as signalling any change in the case law and have steadfastly remained loyal to the Boaron approach. See: Family File (Haifa) 454/79, Moryosef v. Zarch 5741 P.M. (2) 128, 130-131; Civil Appeal 201/82, Peretz v. Asulin, 37 P.D. (2) 838. Cf., however: Ya’akov Meron, “Which Court is Competent to Decide on Paternity?”, Assia no. 38 (Sept. 1984), pp. 75-84.
27. Civil Appeal 26/51, supra (note 25), pp. 1344 ff.; Civil Appeal 164/60, P. v. A., 15 P.D. 347, 349. This was affirmed on many other occasions, see: M. Shawa, Ha-Din Ha-Ishi Be’Israel, (Ramat Gan, Massada, 2nd ed., 1982). pp. 138-139 and notes, esp. n. 45. See also: M. Elon, Hakikah Datit (Tel Aviv, Hakkibuz Ha-Dati Publishers, 1968), pp. 76-77, 79-85. For critiques on this matter see: I. Englard, “Ma’amado shel Ha-Din Ha-Dati Ba-Mishpat Ha-Yisraeli”, Part Three, Mishpatim, vol. 6 (1975), p. 5; A.H. Schaki, “Tzimtzum Hekef Chaluto shel Ha-Din Ha-Dati u-Vatei Mishpat Ezrachiim”, Gevilin, vol. 21-22, 38; Shawa, ibid., pp. 134-140.
28. Civil Appeal 620/61, Ovadiah Ve-Yehezkel v. Yehezkel, 16 P.D. 1177, 1181-1182.
29. Civil Appeal 421/52, Attiyah v. Barda et al., 9 P.D. 1205, 1209-1210; H.C.J. 168/56, Harlap v. Harav Ravitch et al., 11 P.D. 75. In this connection see H.C.J. 283/74 supra (note 23), p. 731, and the apt comments of Prof. Schiffman, supra (note 23), p. 668 and n. 27.
30. H.C.J. 71/50, Attiyah v. Chairman of the Execution Office, 5 P.D. 202, 206; Civil Appeal 238/53, Cohen and Buslick v. Attorney-General, 8 P.D. 4, 36; H.C.J. 143/62, Funk Schlesinger v. Minister of the Interior, 17 P.D. 225, 250.
31. H.C.J. 143/62, ibid.; H.C.J. 450/70, Rogosinsky v. State of Israel, 26 P.D. (1) 129, 132. Also see: H.C.J. 171/68, Hanzalis v. Ecclesiastical Court of the Greek Orthodox Church, 23 P.D. (1) 260, 278. And also see: Moshe Silberg, Ha-Ma’amad Ha-Ishi Be’Israel, (Jerusalem, Mifal Hashichpul Publishers, 4th ed., 1965), p. 6, 353.
32. Maintenance File (Haifa) 9/73, Elster v. Elster, 5734 P.M. (3) 90, 92; Family File (Tel Aviv) 3382/78, Motion (Tel Aviv) 1853/80 Pelonith et al. v. Peloni, 5781 P.M. (1) 510, 513.
33. See and compare: note 26 supra.
34. Similarly, the question should be dealt with on the basis of religious law, see note 25 supra. However, not in accordance with the rules of evidence of religious law, see note 27 supra. In Maintenance File (Haifa) 9/73 supra (note 31) the court ruled: “... when the question of paternity arises in a maintenance suit filed by a Jewish child against a Jewish man upon the claim that he is her father, this incidental question should be adjudicated on the basis of Jewish law, even if the matter of paternity is not viewed as a matter of personal status in the sense of Article 51.”
35. Babylonian Talmud, Niddah 31a.
36. This is the version found in the Munich Manuscript; in the Palestinian Talmud, Kil’ayim 8:3 (31c); and in the She’iltoth of Rav Achai Gaon, Parashat Yithro, She’ilta 56. This was also the version of the Babylonian Talmud in the possession of Rabbenu Hillel as evidenced by his commentary on the Sifra, Parashat Kedoshim, Parsheta 1:70. Similarly this version is found in Da’ath Zekenim, Ba’alei Ha-Tossafoth, Numbers 12:14; and with slight variation in Midrash Kohelet Rabbah 5:13; and before the author of Sefer Ha-Aguddah, Tractate Shabbath, chapter Rabbi Eliezer DeMilah, Section 164. See as well: Hagga’ot Ha-Gra, Niddah 31a; Be’ur Ha-Gra, Yoreh De’ah 263:2; Perushei Ha-Gra, I Chronicles 11:1; and Bayith Chadash (Bach), Yoreh De’ah, ibid. See also: Tossafoth, Baba Kamma 26a, s.v., “kal va-homer la-shechinah”; Tossa- foth, Baba Bathra 111a, s.v. “ve-kal va-homer la-shechinah”; Tossafoth, Zevachim 69b, s.v. “kal va-homer la-shechinah”.
37. This use of the term “aggadah” is based upon the “Introduction to the Talmud” by Rabbi Shemuel Ha-Naggid, who states: “Aggadah is any explanation found in the Talmud related to a matter which is not a commandment (mitzvah) ...”. In connection with the “Introduction to the Talmud” see Prof. M. Elon, Ha-Mishpat Ha-Ivri, Toldotav, Mekorotav ve-Ekronotav (Jerusalem, Magnes Press, 2nd. ed., 1978), Vol. 2, Part 3, pp. 1288-89.
38. With regard to the interdependence of halacha and aggadah, see: Elon, ibid., Vol. 1, Part 1, pp. 144-146 and notes.
39. For the full reference, see supra, note 36.
40. Babylonian Talmud, Yevamot 64b; Maimonides, Mishne Torah, Laws of Circumcision 1:18; Tur and Shulchan Aruch, Yoreh De’ah 263:2.
41. Rema (Rabbi Moses Isserles) on Shulchan Aruch, Yoreh De’ah, ibid.
42. Because of the existence of an opposing opinion and in accordance with the rule that “doubt in criminal law is judged leniently”. See Beth Yosef, Tur, Yoreh De’ah, ibid., following Rabbenu Manoach, and in the Shulchan Aruch. An explanation of the opposite opinion is cited by Beth Shemuel, Even Ha-Ezer 9:7; Responsa Chatam Sofer, Even Ha-Ezer, Vol. 1, section 13 Files 1755/5716, 1198/ 5716, B/56, Haifa Regional Rabbinical Court, Piskei Din Rabbaniim (hereinafter: “P.D.R.”), Vol. 2, p. 119, 124; Rabbi Joshua Menahem Ehrenberg, Devar Yehoshua (Tel Aviv 1976), Vol. 3, Even Ha-Ezer, Section 5:2-4, pp. 220-221. Cf. Rabbi Efraim Fischel Weinberger, Yad Efraim (Tel Aviv 1976), Section 7:4, p. 9l; and Rabbi Shlomo Zevin, Le’or Ha-Halacha (Jerusalem, Mossad Harav Kook, 1956), “Ha-Torashah”, p. 148; Rabbi Moses Feinstein, Responsa Iggerot Moshe, Yoreh De’ah, Vol. 1, Section 15.
43. Bayith Chadash (Bach), Yoreh De’ah, ibid.; Responsa Ha-Bach Ha-Chadashot, end of Section 3. See also Aruch Ha-Shulchan, Yoreh De’ah, ibid., Section 8.
44. More Nevuchim (transl. Rabbi J. Kafich, Jerusalem, Mossad Harav Kook 1972), part 3, ch. 14, pp. 404-405; see also: Responsa Tashbatz, Vol. 1, Sections 163-165.
45. Maimonides, More Nevuchim, ibid. See also the comments of Rav Sherira Gaon, Otzar Ha-Geonim, Gittin, Responsa, p. 152; Rabbi Avraham son of Maimonides, Kifaya al-Abadi, which was written in Arabic, and the Hebrew translation was published in the preface to Ein Ya’akov, by Rabbi Jacob ben Shelomoh Ibn Habib (Vilna, Ram 1891, pp. XIV, XV. Rabbi Moshe Chayyim Luzzatto, Ma’amar al Aggadath Chazal, also published in the preface to Ein Ya’akov, ibid., pp. XVII-XIX. Rabbi Joseph Solomon Delmedigo, Sefer Matzref Le-Hochmah, Basel ed., p. 29; Abraham Corman, Evolution and Judaism (Tel Aviv, Yad Ha-Chamishah 1970), pp. 47-72; Rabbi Isaac Herzog, Judaism, Law and Ethics (London, Soncino Press, 1974), pp. 152, 166.
As for the implications of this approach with regard to those rulings which were made in accordance with our Sages’ “erroneous” scientific understanding, see: Responsa Ha-Rashba, Vol. 3, Section 214, cited also in Beth Yosef, Tur, Yoreh De’ah, Section 134 (towards the end); Responsa Ha-Rivash, 447; Responsa Ha-Rivash Ha-Chadashot, 6; Rabbi Isaac Lampronti, Pachad Yitzchak, s.v. “Tzeidah”; A. Marcus, Keset Ha-Sofer (Tel Aviv, 1971), 2nd ed., Vol. 1, Genesis 1:21, pp. 60-61; Corman, ibid., pp. 73-81; Chazon Ish, Hilchot Treifoth, Section 5:3; Hilchot Ishuth, Section 27:3. According to the Chazon Ish, One should distinguish between a rule found in the Talmud based upon the scientific knowledge of our Sages and a rule established later on by the Posekim predicated upon a scientific determination of our Talmudic Sages.
As for a “law from Moses from Sinai” (halacha le-Moshe me-Sinai) see: Maimonides, Mishne Torah, ad. loc.; Responsa Rashba, Vol. 1, Section 103; Responsa Maharam Shik, Yoreh De’ah, Section 244; Responsa Iggeroth Moshe, Even Ha-Ezer, Vol. 1, Section 3, Sec. 2. See also the preface to the work of Rabbi Moshe Zev Kahn, Sefer Tif’ereth Moshe (New York, Twersky Bros. Press, 1953), p. 6. Also see: Torah le-Yisrael – Mishnato shel Rabbi H. Zimmerman, ed. by Mordechai Alexander (Jer- usalem, Machon Tenuvah Press, 1978), Part 1, “Preface”, pp.11-12.
46. Responsa Ha-Rivash, Section 447; Rabbi Yehuda Eliezer Brill, cited in Pachad Yitzchak, ibid.; Rabbi Pinchas Eliahu, Sefer Ha-Brith (Warsaw 1876), Vol. 1, Essay 14, Ch. 8, pp. 132-133; Rabbi Joseph Rozin, Mefa’ane’ach Tzefunoth (New York, Machon Tzafanat Pa’ane’ach, 1960), Ch. 7, Section 2, pp. 171-172; Harav Kook, Responsa Da’ath Kohen, 84, 140, 142; Rabbi Menahem Kasher, Torah Shelemah (New York, 1949), 3rd. ed., Vol. 1, Genesis 1:23, Par. 706, pp. 15-151. See also the comments of Rabbenu Tam cited in Shittah Mekubbetzeth, Kethubbot, 13b, s.v. “Heshavtanu al ha-me’ubbereth”; Rabbi Joseph Engel, Gilyon ha-Shass, Pesachim 94b; Responsa Avkath Rochel, Art. 210 (Leipzig ed., 1859, p. 192b). See also in this connection: Sedei Chemed, Kelalim, Ma’arecheth 9, Kelal 5; Minchath Shabbath, Section 92:32; Peri Megadim, Orach Chayyim, 328, Mishbetzoth Zahav 2; Bayith Chadash (Bach), ibid., s.v. “Ha-Choshesh Be-Shinnav”; Mishna Berurah, ibid., par. 8; Cf. Aruch Ha-Shulchan, ibid., par. 22. See also: Kereti u-Pleti, Yoreh De’ah, Section 185, Par. 5:6; Responsa Tuv Ta’am Va-Da’ath, Yoreh De’ah, Section 222; Responsa Atzei Levanon, Section 62; File 2559/5735, Tel-Aviv/Jaffa Regional Rabbinical Court, 11 P.D.R. 4, 62-63 and sources cited there; Responsa Ma’ane Lashon, Even Ha-Ezer, Art. 9, Ch. 2 and sources cited therein; Responsa Mahari Shteiff, Section 62; Responsa Mishneh Halachot, Vol. 5, Section 214; Responsa Minchath Yitzchak, Vol. 3, Section 145, no. 1 and sources cited therein and again in Vol. 8, Section 88; Responsa Tzitz Eliezer, Vol. 13, Section 81; Vol. 16, Art. 47.
47. Sha’arei Uziel (Jerusalem, Ha-Va’adah Lehotza’at Kitvei Harav, 1946, Vol. 2, Section 40, Par. 18.
48. Responsa Tzitz Eliezer (Jerusalem, 1978), Vol. 13, Section 104, p. 212.
49. Sefer Devar Yehoshua, supra (note 42), p. 219.
50. Responsa Divre Yisrael, Even Ha-Ezer, Section 8; Responsa Mishne Halachot, Vol. 4, Section 153.
51. Rabbi M. Klein, Responsa Mishne Halachot, Vol. 4, Section 164.
52. File 1755/717, supra (note 42).
53. Cf. text , supra at notes 39-43. Cf. comments of Rabbi Ehrenberg, , supra (note 42), par. 2, p. 220.
53* One can understand the remarks of the Haifa Rabbinical Court on the basis of the idea that the redness mentioned by our Sages refers to some characters of hemoglobin in the red blood cells. However, the antigens which determine the blood types are found on the membrane of these blood cells. The characteristics of the membrane and its antigens are inherited from both parents. – Editor
54. Yad Efrayim, supra (note 42), end of par. 8, p. 96.
55. Mishna, Eduyyot 2:9.
56. See note 54, supra.
57. See note 42, supra.
58. Rabbi Moshe Feinstein, supra (note 42) is also of the opinion that those Posekim who disagree with the author of the Aguddah do so because they believe that blood comes from the father as well as from the mother. However, their source is not the Mishna in Eduyyot, but rather an alternate version of the passage in Tractate Niddah, similar to the one that appears in the printed edition of the Talmud which omits the words “and blood”. See supra, note 36. See also Rabbi Ehrenberg’s explanation of these matters, supra (note 42).
59. Responsa Ha-Rashbash, Section 713 (at the end).
60. See his comments to Prof. A.S. Avaraham’s work Lev Avraham (Jerusalem, Feldheim Publishers, 1978), Part 2, p. 17. Cf. Rabbi M.H. Luzatto, supra (note 42).
61. Rabbi S.Z. Auerbach, personal communication.
62. File 1005/5720 5 P.D.R. 346, 350-352.
63. Sefer Mishmereth Ha-Chayyim (Jerusalem, Chicago Rabbinical Council, 1966), Art. 37, p. 139 at 142. This responsum was a lesson in practical halacha which Rabbi Regensberg gave before the Rabbinical Council of Chicago.
64. I received this letter from Dr. I. Wahrhaftig, who found a copy in Hechal Shelomo in Jerusalem among the papers left behind by the late Rabbi Herzog. I thank him for permission to publish the letter.
65. Emphasis in the original.
66. In my copy of the letter there are a few words missing which were probably written in by hand in English.
67. These comments are in line with Rabbi Herzog’s general approach to the subject of apparent contradictions between statements made by our Sages and the dicta of science. See: Rabbi Herzog, supra (note 43).
68. Responsa Yaskil Avdi, vol. 5, Even Ha-Ezer, Section 13, p. 149.
70. According to Jewish law, regional rabbinical courts are not obligated to follow precedents of the Rabbinical Court of Appeals. In this connection see: Zerach Wahrhaftig, “Precedent in Jewish Law”, Shenaton Ha-Mishpat Ha-Ivri, Vols. 6-7 (1979-80), pp. 105-132 and sources cited there. See also Responsa Aseh Lecha Rav, Vol. 2, Section 61, and Vol. 3, Art. 50.
71. File 1755/5716, supra (note 42). See also: Responsa Tzitz Eliezer supra (note 48), no. 4. Cf. Lee, supra (note 1), p. 626.
72. This statement in 1956 has almost prophetic quality in view of the Bombay Phynotype discovered in the last generation. See Neville J. Bryant, Disputed Paternity (Brian C. Decker, a Division of Thieme-Stratton Inc., New York, 1980), pp. 72-73. -Editor
73. Sefer Mishmereth Ha-Chayyim, supra (note 63).
74. Yad Efrayim, supra (note 54). See also: File 1005/720, supra (note 6).
75. supra (note 54).
76. Sefer Chasidim (Jerusalem, Mossad Harav Kook, 1973), Art. 232, p. 2. For a detailed examination of the various halachic ramifications of this story, see Rabbi A.A. Price, Mishnath Avraham (Toronto, 1955), Vol. 1, Section 291, pp. 144-148. See also: Sefer Mateh Moshe, Halachot Uminhagim, Art. 765; Eliahu Rabbah, Orach Chayyim, Section 568, Par. 9:15; Rashash, Baba Bathra 58a. On this story in general, see: George Alexander Kohut, “Blood Test as Proof of Kinship in Jewish Folklore”, Journal of the American Oriental Society, Vol. 24 (1903), p. 129. (My thanks to my teacher, Rabbi Dr. H. Soloveitchik for this source.)
77. Was this Rav Saadiah Gaon? See: Rabbi Price, Mishnath Avraham, supra (note 76), p. 144; Rabbi Ehrenberg, Sefer Devar Yehoshua, supra (note 42), Par. 11, p. 224; Rabbi Y. Weltz, in his responsum published in Responsa Mishneh Halachot, Vol. 4, Section 163. All of these assume that it was Rav Saadiah Gaon, but cite no proof for this. See also: Kohut, ibid., p. 134.
78. Cf. the comments of Rabbi Valdenberg, Responsa Tzitz Eliezer, supra (note 48), and of Rabbi Ehrenberg, ibid., Par. 11-12, pp. 224-25, and of Rabbi M. Klein, supra (note 51). It would seem to me that most of the arguments raised by these authorities do not negate the conclusion that this story proves that one may rely upon scientific tests in order to establish paternity, particularly when the test only negates paternity. As for Rabbi Klein’s argument (op. cit. p. 134), based upon the laws of Agunah, see Responsa Devar Yehoshua, Vol. 3, Even Ha-Ezer, Section 4. However, see Rabbi S. Fischer, “Fingerprints in the Light of Jewish Law”, Noam, Vol. 2 (1959), 211-222; Responsa Yabbia Omer, Vol. 6, Even Ha-Ezer, Section 3:20; Rabbi G. Navon, “Fingerprints as Definitive Indicator for Establishing Death in Rabbinic Case Law”, Dinei Yisrael, Vol. 7 (1976), pp. 129-141; and sources cited in the above references.
79. See the file cited supra (note 62) of the Tel Aviv/Jaffa Regional Rabbinical Court.
80. Responsa Yaskil Avdi, supra (note 68).
81. See note 11, supra.
82. File 1005/5720, supra (note 62), p. 351. This is also the opinion of Rabbi Auerbach, supra (note 61).
83. Babylonian Talmud, Yevamot 69b; Responsa Ha-Rivash, Section 40-41.
84. See Tur and Shulchan Aruch, Choshen Mishpat, Section 280 and Even Ha-Ezer, Section 163.
85. This refers to a determination of the actuality of an event by means of an assessment of known conditions and circumstances. See: Responsa Ha-Maharik, 129; s.v. “Umdana”, Encyclopedia Talmudith, Vol. 1 (1957), p. 295.
86. Maimonides, Mishne Torah, Laws of Torts 8:14; Tur and Shulchan Aruch, Choshen Mishpat, 408:2.
87. See text supra at note 76.
88. Mishnath Avraham, supra (note 76), p. 145 (the emphasis is mine, D.I.F.). See also: Responsa Mishneh Halachot, Vol. 4, Section 164, s.v. “Ve-ra’ithi” (p. 134).
89. See text supra at note 73.
90. ibid., p. 141.
91. ibid. (emphasis is mine, D.I.F.).
92. ibid., p. 142.
93. Rashash, Baba Bathra 58a. See also Rabbi Weinberger, supra (note 42), pp. 90-91.
94. See text supra at note 92.
95. Tosafoth, Babylonian Talmud, Shevu’oth 34a, s.v. “D’ei”; and see Kovetz Shiurim, Vol. 2, Section 38; Peirushei Ivra, Sections 1-2.
96. Rabbi J. Fester, “Fingerprints and Blood Tests in the Light of Halacha”, Hapardess, Vol. 43, No. 9 (1969), Section 83, pp.19-21; Vol. 44, No. 3 (1970), Section 23, pp. 16-17 rpt. in Sefer Birchath Ya’akov, Part 1, Section 14.
97. Meiri, Shevu’oth 34a, 44a; Yad Ramah, Sanhedrin 37a.
98. The rest of Rabbi Festers retort is not convincing and has been answered by Rabbi Price, supra (note 76), p. 145, s.v. “ella leachar ha-iyyun”. See further: Responsa Iggeroth Moshe, Yoreh De’ah, Vol. 1, Sections 47-48.
99. See note 11 supra.
99a. Responsa Ha-Rivash, Sections 446-477; Responsa Chatam Sofer, Ev Ha-Ezer, Vol. 1, Section 6.
99b. Yad Efrayim, supra (note 42), Section 7:5, pp. 92-93.
99c. Appeal File 77/5740, 12 P.D.R. 156, 158 (Rabbis M. Eliyahu, A. Shapira and S. Mizrachi).
100. File 1005/5720, supra (note 62), p. 352.
101. See ibid., p. 349-350, for a similar case.
102. “He who smites his father or his mother shall be put to death”(Exodus 21:15); Maimonides, Mishneh Torah, Hilchoth Mamrim 5:5.
103. Rabbi Regensberg, supra (note 63), pp. 141-142. This would seem to indicate that Rabbi Regensberg does not view the use of a person’s own blood against himself as a matter of self-incrimination. See also McCormick, supra (note 3), p. 520 and ch. 13, Section 124, pp. 264-266; Krause, supra (note 1), p. 263 and notes ad loc.; Cross, supra (note 14), p. 46; Cf. N. Lamm, Faith and Doubt (New York, K’tav Publishing House Inc., 1971), pp. 298-299.
104. See text supra at note 82.
105. Babylonian Talmud, Shabbath 129a; Sanhedrin 79a; and elsewhere. See also: Baby- lonian Talmud, Sanhedrin 69a and Rashi ad loc., s.v. “Ve-hitzilu ha-edah”; I. Allen, “Innocent Until Proven Guilty”, Comparisons between Talmudic and American Law (Tel Aviv/New York, 1960), pp. 48-53.
106. See text supra at note 97.
107. Shev Shema’teta, Shma’ata 4, ch. 8; Responsa Rabbi A. Eiger, Section 107 near the end; Sha’arei Yashar, Sha’ar 3, chs. 1-4; Kovetz Inyanim, Part 2, Section 5:3; S. Mendelsohn, The Criminal Jurisprudence of the Ancient Hebrews (New York, Hermon Press, 2nd. ed., 1968), p. 124, n. 187.
108. Babylonian Talmud, Sanhedrin 69a-b; Chullin 11a-b. See also: Ritva, Makkot 5a; Sefer Tifereth Moshe, supra (note 45), Part 1 Section 55, Para. B, and Section 57. See also Tziyyon Yerushalayim on the Palestinian Talmud, Sanhedrin 4:1; Kovetz Inyanim, ibid., Kethubbot 15b.
109. Babylonian Talmud, Kiddushin 80a; Palestinian Talmud, Kiddushin 4:8 (61a). See also s.v. “Chazakah”, Encyclopedia Talmudith, Vol. 13 (1970), pp. 714-715.
110. With regard to the fact that two rules are derived from one source, see Responsa Chatam Sofer, Even Ha-Ezer, Vol. 1, Section 41 (my thanks to Prof. N. Rakover for referring me to this source); Torah Temimah, Exodus 21:15, No. 117; Encyclopedia Talmudith, ibid. and notes ad loc.; Torah Shelemah (New York 1956), Vol. 17, Exodus 21:15, p. 85, Section 293 and notes ad loc. See also: Me’iri, Sanhedrin 69b.
111. Babylonian Talmud, Chullin 11b.
112. Palestinian Talmud, Kiddushin 4:8 (61a).
113. Cf. Responsa Tzitz Eliezer, Vol. 8 (Jerusalem, 1965), Section 15, ch. 7, no. 11, p. 94.
114. Mishna, Yevamot 4:13; Mishna, Kiddushin 3:12.
115. See: Babylonian Talmud, Kiddushin 80a; Encyclopedia Talmudith, supra (note 109), p. 715 and notes ad loc.; see also Kovetz Inyanim, supra (note 107).
116. See text supra at note 7.
117. The Israeli Law of Inheritance, 5765/1965 also recognizes the concept of a “doubtful heir” (yoresh safek). See, for example, Sec. 9 of the law.
118. See text supra at note 76.
119. See note 76 supra.
120. Lamm, supra (note 88).
121. E. Harnon, supra (note 14), par. 31.6, p. 339; cf. McCormick, supra (note 3), p. 250.
122. Rabbi J. Baumel, Emek Halacha (Jerusalem, 1976), Vol. 2, Art. 14, 275, 276. On the use of a polygraph in Jewish Law see also: File 15359, 19349/5741, Rabbinical Regional Court Tel-Aviv/Jaffa, 12 P.D.R. 258; File 309/5743, Rabbinical Supreme Court, 13 P.D.R. 224; R. S. Korach, “The Lie-detector in Halacha”, Techumin, Vol. 5 (5744), 315-331; Responsa Iggeroth Moshe, Even Ha-Ezer, Vol. 4, Section 88.
123. For example, a case of fraud or deception of the court (din merumeh). See there also with regard to criminal law and the prohibition of silencing the witnesses (chossemim et haedim).
124. See: Rema, Shulchan Aruch, Even ha-Ezer 1:10; Otzar Ha-Posekim (Jerusalem, 1970), Vol. 1, pp. 14-15, par. 68:1-10.
125. Responsa Tzitz Eliezer (Jerusalem, 1963), Vol. 7, Section 48, no. 7, pp. 189-190. See also the decision of the Rabbinical Supreme Court in a related matter, which was published in Responsa Yaskil Avdi, Vol. 6, Even Ha-Ezer, Section 112, no. 7, and in the Appendix, no. 4. With regard to imposing a psychiatric test, see Appeal 216/5733, Rabbinical Supreme Court, 9 P.D.R. 331.
126. ibid., p. 190.
127. See at length our article: Dov I. Frimer, “Medical Examinations by Order of the Court and the Right to Privacy: the Common Law and Jewish Law Experiences”, 17 Israel Law Review (1982), pp. 96-103. See also note 121, supra.
128. On this point see: Rabbi H. Palache (Palaggi), Responsa Chikrei Lev, Yoreh De’ah, Section 49; “Responsa Or Zaru’a U-Maharam Ben Baruch” (Y.Z. Cahane, ed. Mossad Harav Kook, Jerusalem, 1973), Vol. 3, Section 404, p. 69. With regard to the subject of the right to privacy in Jewish Law, see: Allen, supra (note 105), pp. 54-56; Lamm, supra (note 88), pp. 290-309; Ha-Hagannah al Tzin’at Ha-Perat (Privacy), (Jerusalem, Ministry of Justice, 1970, Studies and surveys in Jewish Law Series); N. Rakover, “The Protection of Privacy in Jewish Law”, Israel Yearbook on Human Rights, Vol. 5 (Tel-Aviv University, 1975), p. 169. See also: Rabbi B. Rakover, “Is a Doctor Permitted to Testify Concerning a Patient without his Consent?”, No’am (Jerusalem, Machon Torah Shelemah, 1959), Vol. 2, pp. 188-191; Tel-Aviv/Jaffa Regional Rabbinical Court, File 5637/5733, P.D.R., Vol. 5, p. 132; Appeal 216/ 5733, supra (note 125); Rabbi M.Y. Breisch, Responsa Chelkath Ya’akov (Bne Braq, 1966), Vo 3, Section 136; Prof. L. Wishlicki, ed., Madrich Refu’i Lefi Ha-Massoreth Ha-Yehudith (Jerusalem, Machon Lerefuah Ve-Yahadut, 1976), pp. 37-38; Responsa Tzitz Eliezer, supra (note 48) and also Section 81-20, pp. 158-159; Responsa Yechaveh Da’ath, Vol. 4, Art. 60; Sefer Lev Avraham, supra (note 60), pp. 69-70; Rabbi S. Raphael, “Medical Confidence – Halachic Aspects”, Assia (Jerusalem, The Dr. Falk Schlesinger Institute for Medical-Halkhic Research at Sha’are Zedek Medical Center, 1978), no. 21, pp. 12-15; Rabbi H.D. Halevi Aseh Lecha Rav (Tel-Aviv, 1976), Vol. 1, Art. 42.
129. See: Babylonian Talmud, Baba Bathra, 58a, re: the case of Rabbi Bena’ah Respona Ha-Rosh, Section 107:4; Pithchei Teshuvah, Shulchan Aruch, Choshen Mishpat, 15:9; Aruch Ha-Shulchan, Choshen Mishpat, 15:4 (end); Appeal 216/5733, supra (note 125). See also: Civil Appeal 524/60, Mizrachi v. Mizrachi, 20 P.D. (4) 813, 816. See further Civil Appeal 328/72, Langel v. Langel, 27 P.D. (2) 470, 475-476. Cf. our comments supra at note 19-20 concerning the position of Jewish Law with regard to a person who refuses to undergo a blood test.
130. See text supra at note 93.
131. Assuming that one may rely upon a blood test in order to establish bastardy; see the discussion on this subject supra at note 99 ff.
132. See: Mishna, Eduyyot 8:7 and the exegesis of Rabbi Ovadiah of Bartinoro ad loc.; the decision of the Israel Supreme Court in Civil Appeal 548/78, supra (note 2), pp. 748-749. For a detailed explanation of the scientific aspects of H.L.A. testing see: Paul I. Terasaki, “Resolution by H.L.A. Testing of 1000 Paternity Cases not Excluded by ABO Testing”, Journal of Family Law, Vol. 16 (1978), pp. 543-557; E. Kaplan, Ch. Brautbar and D. Nelken, “H.L.A.: Ascertaining Paternity Means of Genetics”, Iyyunei Mishpat, Vol. 7 (1979), pp. 46-74; Ch. Brautbar, M. Halperin, D. Nelken, “Paternity Determination by Mod Immunogenetic Approach – the Hala- chic Question and the Scientific Background”, Assia, no. 34 (1982), pp. 6-19.
133. Civil Appeal 104/78, P., a minor represented by his mother v. P. (unpublished).
134. Text by note 7 supra.
135. Family File (Tel-Aviv) 1561/79, Peloni v. Peloni, 5781 P.M. (2) 323.
136. Family File (Tel-Aviv) 898/79, Pelonith v. Peloni, 5781 P.M. (1) 516, 522-523.
137. Civil Appeal 548/78, Sharon et al. v. Levi, 35 P.D. (1) 736.
138. For an analysis of this case see our article cited in note 127 supra.
139. Civil Appeal 705/79, Peloni v. Peloni et al., 19 Taktzir Piskei Din 206; Civil Appeal 299/78, Peloni et al. v. Mantzur, 19 Taktzir Piskei Din 413; Civil Appeal 417/80, Peloni v. Pelonith, 37 P.D. (3) 15; Civil Appeal 335/81, Peloni v. Almoni, 38 P.D. (2) 530.
140. Civil Appeal 417/80, ibid.
141. Justice Ben-Ito left this issue open. See note 137 supra, at p. 76l.
142. See text by notes 130-132 supra.
143. See note 137 supra, at pp. 748-749.
144. Family File (Jerusalem) 128/83, In Re Pelonith, a minor (unpublished).
145. File 866/5741, 13 P.D.R. 51.
146. See text by notes 35-74 supra.
147. supra (note 145), at p. 56.
148. ibid. at pp. 59-60.
149. See text by note 99a supra.
150. Supra (note 145), at pp. 64-65.
151. Babylonian Talmud, Kiddushin 74a; Maimonides, Mishneh Torah, Laws of Prohibited Sexual Relations 15:21.
152. Supra (note 145), at pp. 67-68.
153. For an explanation and analysis of the unique medical and scientific aspects of the case see Rabbi M. Halperin’s annotation to the decision published in Assia no. 35 (1983), pp. 16-31, and his article: “Interpretation of Anomalous Findings in MHC Tests, and Practical Methods of Clarification”, ibid., pp. 32-37.
154. See text by notes 85-91 supra.
155. See text by notes 113-115 supra.
156. See text by notes 106-112 supra.
157. For detailed discussion of this intriguing law see: Schereschewsky, supra (note 20), pp. 459-464; Isaac Bar-Da, Mishpat Ve-Halacha (Ramat Gan, privately published, n.d.), pp. 47-65.
158. Rabbi Ehrenberg, supra (note 42); Rabbi Klein, supra (note 51). Rabbi J.B. Zolte also raised this issue in a personal conversation with this author.
160. See: Deuteronomy 21:17; Babylonian Talmud, Kiddushin 74a, 78b.