– Author: Rav Avichai Goodman

In the first part of this essay, we discussed the role of the beit din in general as it relates to the conversion process. In this part of the essay, we will proceed to analyze the concept of ger katan, a child who converts. As we will see, the basic question addressed by the Gemara and commentaries is how a minor can be converted if by Jewish Law he has no da’at, or halachic understanding or opinion. If so, he should not be capable of accepting Torah and mitzvot upon himself, and we cannot be sure that he in fact wants to convert at all.

The basic source for this discussion is found in the first chapter of Masechet Ketubot, where Rav Huna[1] states that when one converts a gentile minor, he is immersed in a mikveh by the beit din. The Gemara explains that although the child cannot decide independently that he wishes to convert to Judaism, since it is in his best interests to convert, and “וזכין לאדם שלא בפניו – one may act in a person’s interest in his absence,” the beit din can decide on his behalf that he should be converted. The Gemara asks that the principle of zachin is obvious, as it is already taught in Mishnayot elsewhere. Rather, explains the Gemara, the novelty raised by Rav Huna is that we could have thought that when a person accepts Torah and mitzvot, it is not considered to be in his best interest, but is rather considered a liability to him, and, therefore, a person cannot be converted without his own approval, “אין חבין לאדם שלא בפניו – one may not act against a person’s interest in his absence.” However, we do not make this claim with regard to a minor, as he has not yet had a chance to be טעם טעם דאיסורא, “experience the taste of prohibitions,” and from his perspective the conversion to Judaism, with all that it entails, is in fact entirely in his best interests.

There is another method of converting small children, which can be derived from the continuation of the discussion. The Gemara attempts to bring support for Rav Huna’s opinion from the Mishna that appears at the beginning of the discussion. The Mishna refers to a female who converted to Judaism before she was three, and the Gemara initially understands that she was immersed by beit din. But the Gemara then rejects this interpretation because one can claim that the children in the Mishna converted in the manner of “ניחא להו במאי דעביד אבוהון – they are content with whatever their father does,” i.e., one of the child’s parents came to the beit din to convert himself and his children. Thus, another option for converting a child is having him do so together with a parent who is converting. In this case, the children may be converted without resorting to the idea that doing so is in their best interests, because it is accepted that a child’s actions follow those of the parent.

There is another novel point that arises from the halacha of a ger katan. Since the conversion of minors is done without their approval, it seems that at some stage they might express an objection to being Jewish. In fact, Rav Yosef says that “when they become of age” they may protest and say that they do not want to live a Jewish life. Abaye and Rava respond to Rav Yosef with another question from the Mishnayot that rule that one applies Jewish law to a minor female convert, such as receiving a ketuba, a marriage contract, if she is married as a minor (Abaye’s question), or receiving payment if she is raped (Rava’s question). They question whether it is logical that she should receive payment according to Jewish law and then be allowed to revert to gentile status and enjoy the money as a gentile. In light of their challenges, the Gemara explains that “כיון שהגדילה שעה אחת ולא מיחתה שוב אינה יכולה למחות – as soon as she became of age for even one moment and did not protest, she may not protest anymore” (and she receives her ketuba only after that point).

The Ran[2] raises the following question. It seems from the Gemara that only when the convert protests as an adult that it is considered a valid protest to allow the convert to revert to gentile status. But the Gemara claims that if s/he had become of age by even one moment and not protested, it is too late to protest. If so, for how long is a convert who has become an adult permitted to protest? It seems the window of opportunity is extremely small, perhaps only a short moment, which is difficult to accept. For this reason, the Ran suggests another possibility as to how the protest can be helpful, and that is if s/he protested while still a minor, and when s/he[3] became an adult continued to protest. Under these circumstances, we would accept the protest. The Ran then adds an additional explanation that the term “becomes of age” means that when she reaches the age of adulthood, she lives as a Jew by keeping the Torah and mitzvot. Thus, the point is that if she continues to live a Jewish life after becoming of age, even for a short time, she may not protest anymore.

The Rif[4] cites only the first part of the Gemara’s ruling concerning ger katan and does not mention the possibility of protest at all. Many commentators, including the Ran[5] and the Rosh,[6] are astounded that the Rif did not quote the entire ruling. The Rambam also surprisingly cites both parts of the ruling but in different places. In the section containing all other laws pertaining to converts,[7] he records the halacha of converting minors, while Rav Yosef’s rule concerning protest he mentions only at the end of the Mishneh Torah, in the halachot concerning Bnei Noach.[8]

The Maggid Mishneh explains initially that the Rif understood that Abaye and Rava’s difficulties with Rav Yosef’s permission to protest were serious challenges to his position, and the Rif and Rambam both held that the halacha was therefore not in accordance with Rav Yosef’s statement. At the end of his comment, though, the Maggid Mishneh acknowledges that he later found that the Rambam did, in fact, also rule in accordance with the statement of Rav Yosef in Hilchot Melachim. The Bach[9] offers another explanation that the main ramification of the protest rule is that after the convert has protested, a Jewish court cannot punish him for committing a sin (even when Jewish courts had such authority), as he no longer wishes to keep the Torah and mitzvot. Therefore, the Rambam recorded this ruling within the halachot of Bnei Noach, as that is the context that is most practical – such an individual would have the status of a ben Noach.[10] The reason that the Rif does not quote this is that he does not cite halachot that are not relevant today, and this issue of punishing such a person is indeed not relevant anymore, when the beit din does not administer punishment.

The Shulchan Aruch cites both portions of the ruling of ger katan. He first[11] quotes the two possibilities of converting minors (of their coming alone or with their parents) and the protest rule, and then[12] adds that the protest is time-limited, so that if he continues to conduct himself as a Jew after becoming of age, he can no longer protest the conversion. The poskim, such as the Siftei Kohen, the Shach,[13] write that if he does protest a while after he becomes of age, we consider him to have the status of a Jew who is a mumar, one who rejects Judaism.

Having seen the main rules concerning the conversion of minors, we can now attempt to better understand the mechanism of the process and thereby derive the underlying principles that will help us address the practical halachic conversion of minors in our times. There are several major questions that  must be discussed.

Let us begin by analyzing the rule of זכין לאדם שלא בפניו, acting in a person’s interest in his absence, which the Gemara uses to explain the basis for the beit din converting a minor despite his lack of knowledge. However, the concept of zachin is normally an economic one. Its implementation describes a situation where a person can receive/purchase an item, but for some reason he cannot complete the transaction at that time, so others take his place and perform “the business deal” in his name. The logic behind this rule is that the person most certainly would want us to complete this transaction on his behalf, as he is going to benefit from it and would agree that we serve as his messengers. The Gemara[14] does, in fact, define the zachin rule as essentially allowing another person to serve as his shaliach, or messenger.

But here we encounter a problem: The Gemara[15] determines that the rules applying to a messenger do not apply to minors, as she does not have sufficient halachic da’at to appoint a messenger. Even though we could explain that the minor can appoint a messenger on a rabbinic level, as stated in the Gemara, the problem is that in our case, the minor is a gentile, and the halacha is34 that the rules of messengers do not apply to a gentile even on a rabbinic level. If so, then how can we convert a minor based on the principle of zachin when it cannot apply to her?

Another question that we must clarify is also connected to the fact that the minor lacks da’at. We know that accepting the mitzvot is a binding requirement of conversion and its absence annuls the process, as was evident from the first part of the essay. If so, how can a minor convert if he cannot accept Torah and mitzvot of his own free will?

There are several discussions in the Rishonim about these questions. With regard to the first question, Tosafot in one place[16] cite the opinion of the Ri that every conversion of a minor (which is based on zachin) is not valid on a deoraita level, but on a derabanan level only. This can be explained in one of two ways. The first is that the minor has the power of zechiya derabanan, and the beit din can act as his messenger now based on the fact that he ultimately will be included in the category of those who can appoint a messenger. The second option is that since this zechiya renders him as a member of Am Yisrael, we can give him the status of a Jew in order to be worthy of receiving this merit as well. The Rashba offers an explanation that is similar to this second option.[17]

But even with this understanding, the picture is still not entirely clear, because if every minor is a gentile only on a derabanan level, how can this conversion annul any laws that are deoraita? For example, many Rishonim hold that according to the Torah, a Jew may not marry a gentile, so would we say that on a Torah level, a marriage between this convert and a Jew would not be considered valid? Tosafot answer this difficulty by suggesting that the opinion in Ketubot allowing this is identical to that brought in the Gemara elsewhere[18] that sometimes the Sages are permitted to uproot a biblical law even through a positive action, and not only passively (yesh koach b’yad chachamim la’akor davar min hatorah b’kum v’aseh). Therefore, they have the power to determine here that such a marriage is indeed valid, even if according to the Torah it is not.

It seems from these comments that Tosafot understand the rule of zachin in our case in its economic sense (which is why it must conform to the normal parameters of that rule). If so, then we must also understand what precisely we are giving the gentile. Is this really parallel to a normal case of causing him to acquire an object that is in his best interests? In addition, it is difficult to understand according to Tosafot why the opinion that holds that Chazal have the power to uproot a deoraita rule even via positive actions is not accepted as the halacha,[19] if in the context of conversion, the rules concerning ger katan are certainly accepted as the halacha. Moreover, instead of saying that the chiddush in this case is that the rule of zachin is operable, the Gemara should have explained Rav Huna’s chiddush as being about Chazal’s ability to actively annul a deoraita rule, which is a far greater novelty. The Ritva adds[20] to this question that when the Gemara initially debated what the chiddush was within Rav Huna’s statement, apparently it did not regard the statement as containing a major chiddush. But if we were to say that the conversion of a minor only has validity derabanan, this is such a great chiddush that the Gemara should have had nothing to consider at all.

In light of these questions, Tosafot[21] brings another explanation. It is true that the conversion of minors is valid on a deoraita level, but the Gemara’s statement20 that the beit din acts in his interest (zachin) him is not by virtue of the standard principle of zechiya. With regard to the regular zechiya, the messenger delivers an item to the person on behalf of whom he is acting, while in our case, “הוא זוכה בעצמו ובגופו שנעשה גר ונכנס תחת כנפי השכינה, he himself is meriting to become a convert and enter under the wings of the divine presence.” The rule of zachin that is mentioned in the Gemara is merely saying that if converting were not in the child’s interest, “לא היה לבית דין להתמצע להכניס גופו בדבר שיש לו חובה, the beit din would not enter the picture and involve itself with regard to a matter that is not in his interest.”

Tosafot conclude with an answer to the second question: It is true that a minor cannot accept Torah and mitzvot, but “מתוך שגדלו ולא מיחו היינו קבלה,” “once he becomes of age and does not protest, that is considered acceptance.” In other words, a minor is in an intermediary situation until he grows up, and during this time he can protest the conversion and continue to be a gentile. But if he does not protest this status when he becomes a halachic adult, we assume that he wishes to remain a member of Am Yisrael and this is equivalent to accepting the Torah and mitzvot.

This answer of Tosafot is difficult to understand, because it seems that we are converting the minor even though we know that he is not capable of accepting mitzvot at that point. How, then, does this conversion work?

Rav Asher Weiss offers an interesting explanation of this approach of Tosafot.[22] According to Rav Weiss, Tosafot in Sanhedrin agree that acceptance of mitzvot is critical for conversion, as is the accepted halacha (as was discussed in the first essay on the role of beit din). But in a situation where the conversion cannot take place with an acceptance of Torah and mitzvot, such as concerning a ger katan, we can accept conversion without acceptance of mitzvot until such time that he is capable of acceptance. At that time, we renew the need for acceptance of mitzvot to complete the conversion, but if he simply continues to conduct himself as a Jew without protest, this is sufficient to qualify as acceptance.

Rav Weiss continues that in a situation where one did not accept Torah and mitzvot, his conversion is annulled retroactively, because the conversion that was conducted when he was a minor is still pending, depending on whether it will be completed when he reaches adulthood.

The Ritva has a third approach, which is a combination of the two approaches proposed by the Baalei Tosafot. He claims[23] that the lack of acceptance of Torah and mitzvot does not invalidate the conversion at all, but if the child protests, it indicates that she felt that the conversion was not in her best interest. Although the Ritva’s explanation certainly solves the problem, the halacha is not in accordance with his opinion, as the Shulchan Aruch rules that not accepting the mitzvot properly does invalidate conversion.

Which approach of the Rishonim concerning the status of a ger katan does the halacha follow? The truth is that there is no clear ruling concerning whether the conversion of minors is valid deoraita or derabanan, and even contemporary poskim have disputed this question. Rav Yaakov Ariel told me personally that since the Shulchan Aruch ruled like Tosafot that the lack of acceptance of mitzvot invalidates conversion bedi’eved, he must hold that the conversion of a minor, which lacks a true acceptance, is of derabanan status only. On the other hand, Rav Re’em Hacohen claims[24] that the halacha is in accordance with the second opinion of Tosafot, with which the Rambam agrees, that the conversion of minors is valid deoraita.

We should note though that the question of which opinion is accepted concerning this issue does not significantly impact upon the practical halachic questions. The more important question with regard to practical halacha concerns the two opinions in the Rishonim regarding the question of zachin: With regard to the conversion of minors, are we dealing with the practical implementation of the economic expression of zachin, like the first opinion of Tosafot that zechiya stems from the principle of shelichut, appointing an agent, or is zachin simply the expression that is used, like the second opinion in Tosafot, to allude to the privilege of coming under the wings of the Shechina? We will see that this discussion is the litmus test that differentiates between the two approaches of the great rabbis of our generation.

The Conversion of Children of Secular Parents

One of the most complex halachic issues concerning geirut today involves the issue of ger katan. The situation in Israel today is that there are many gentiles who live in the country and (they or their parents) came here as part of the leniencies in the Law of Return. They wish to convert their children primarily because they feel a sense of alienation and lack of belonging to the traditional Israeli environment. Unfortunately, these parents do not intend to begin keeping Torah and mitzvot. Moreover, in many cases these parents do not want to convert themselves, but only to convert their children to make life easier for them in Israel.

What should we do in such situations? Can we convert children who are going to be raised in totally secular homes? Can we say that a person has the right to be called a Jew if he violates Shabbat and does not keep a kosher kitchen? An additional problem is that the acceptance of mitzvot is a requirement of conversion, and if it is not performed, the process is invalid, even bedi’eved. Is it possible to claim that children of secular parents accept Torah and mitzvot? The leading rabbis of today divide into two general approaches concerning this issue – those who permit the conversion and those who forbid it. We will try to understand the logic of both approaches.

The Majority Opinion: Conversion is not Allowed

The Responsa Mateh Levi quotes the opinion of Rav Yitzchak Elchanan Spektor, who claimed that it is forbidden to convert children of secular parents who do not plan to keep Torah and mitzvot based on the statement of the Gemara that it is a zechut (merit) to convert and “יהודי טוב ומחזיק ביהדות כראוי, a good Jew is one who keeps Judaism in an appropriate manner.” But when the parents are secular, such a conversion “לא מקריא זכות רק חובה – does not impart a right, but an obligation,” as we are causing these children to commit to living a life of Torah and mitzvot when we know that they are not going to do so. This concern was raised by many other poskim as well, including Rav Kook,[25] the Seridei Eish,[26] as well as the dayanim that participated in a Rabbinical court[27] ruling authored by Rav Elyashiv.[28]

As mentioned, an additional concern regarding the conversion of children of secular parents is the lack of acceptance of mitzvot, a topic about which Rav Eliyahu Bakshi-Doron has written at length,[29] explaining that the acceptance of Torah and mitzvot is the foundation of conversion, without which conversion cannot exist. Similar notions have been written by Rav Yehuda Amichai as well,[30] that the essence of conversion is a process that parallels yetziat mitzrayim (the Exodus), and just as there the people were circumcised and received the Torah and mitzvot, “כן כל יחיד ויחיד המתגייר עובר תהליך דומה – so too every individual converting must undergo a similar process.” And just as the fundamental core of yetziat mitzrayim was to serve Hashem and receive the Torah, “כן כל גיור כולל בתוכו את עבודת האלוקים שהיא קבלת תורה ומצוות – so every conversion includes serving Hashem, which involves accepting Torah and mitzvot.”

Rav Amichai discusses the problem of a minor accepting mitzvot and suggests a new approach that the beit din actually takes the place of the father: “אמנם בגר גדול צריך להודיעו תורה ומצוות לפני הגיור, אבל בגר קטן שאין אפשרות להודיעו מצוות בעת שמתגייר, על בית הדין לדאוג שילמד ויקיים מצוות התורה – it is true that an adult convert must be informed of Torah and mitzvot before his conversion, but there is no way of informing a minor convert of mitzvot during his conversion, so the beit din is obligated to teach him to keep Torah and mitzvot.” Rav Amichai continues that “קבלת המצוות של הגר הקטן נעשתה בשעה שבית הדין נכנס וקיבל את כוח האבהות – the acceptance of mitzvot by a minor convert occurs when the beit din comes and takes over the responsibility of the father.” In light of the above, Rav Amichai concludes that if the parents do not plan to teach their children Torah and mitzvot at all, the conversion does not take effect, even post facto, similar to the opinions of Rav Kook and the Seridei Eish.

I have heard another approach as to why such conversions should not be valid from my teacher Rav Avigdor Shilo, who claims that when the minor grows up and does not live a Jewish lifestyle, “there is no greater protest than that” to conversion, whose sole purpose is to live like a Jew. Therefore, if we know in advance that the minor is most certainly going to protest the conversion, how can we convert him from the outset?

The Minority Opinion: Conversion may be Performed

In contrast to the above mentioned opinions and to the many poskim who agree with them, there is a large minority group of contemporary rabbis who permit converting minors even of secular parents who are not going to educate their children to follow the ways of Torah and mitzvot. These rabbis have even set up a private body with a functioning beit din for conversion, which operates according to the policies of its heads. Heading this organization, titled Giyur Kahalacha (Conversion according to Halacha), are two of the leading rabbis in the religious-Zionist community in Israel – Rav Nachum Rabinovitch, head of the Yeshiva in Ma’ale Adumim, and Rav Re’em HaCohen, head of the Yeshiva in Otniel.

Rav Rabinovitch has raised several claims in his writings concerning this issue.[31] First, he writes that one must understand that the conversion of minors from the FSU is “a new situation that never existed before, where such a large population of immigrants, whose status as Jews is doubtful in the best case scenario… and these children are growing up among Jews, and severe problems in society have already been created as they integrate among the Jewish community.” Thus, above and beyond the understanding of the depth of the problem, we must also recognize the reality and its difficulties.

In his approach to the discussion in Ketubot, Rav Rabinovitch notes that the concept of “דין זכות הוא לו – the fact that it is in his interest to become Jewish,” is required only when converting a minor whose father is not present, but if the father is present, there is no need for the zachin rule at all, because the child follows his father. Rav Rabinovitch claims that the situation where gentile children do not have the opportunity of marrying by halacha – either because there are no other gentiles in that area, or because halacha does not enable them to marry, could bring “a great calamity upon the public, with a large group of wanton people living within it, chas vechalila.”

Rav Rabinovitch compares this situation to the rule regarding a woman who is half maidservant and half free, where the Gemara[32] is concerned that she would be treated in an inappropriate manner, and the halacha is[33] therefore that her master must release her. The Rambam explains46 that the purpose of this release is so “that she may marry and remove the obstacle, and the like,” so it seems that her release is actually a process of conversion, because the released servant becomes part of Am Yisrael, and no one asks for her consent, but just as she previously belonged to her master, she is now part of Am Yisrael.

Regarding the question of how to understand the notion of zachin, Rav Rabinovitch explains based on the second explanation of Tosafot that the Gemara20 mentions zachin only as the explanation for the involvement of the beit din in the life of a minor gentile, for whom, if the conversion had not been considered a benefit, the beit din would not have intervened. But it is still in the child’s best interest to “enter under the wings of the Shechina,” regardless of whether he will ultimately keep the Torah and mitzvot.

In conclusion, Rav Rabinovitch writes that all the concerns of the sages throughout the generations were relevant to life in the Diaspora and based on the understanding that “חייבים דייני ישראל לעמוד על המשמר לא ליתן יד לפושעים – the dayanim of the people of Israel must be extremely careful not to enable the criminals” to join Am Yisrael. Rav Rabinovitch explains that they wished to prevent Jewish men from marrying gentile women with the expectation that their children would be converted. The situation in Israel today, however, has resulted in the fact that avoiding the conversion of minors has actually led “to the terrible spreading of this plague,” meaning that those concerns are actually materializing due to our not converting the individuals in question.

Rav Rabinovitch’s responsum has been quoted in halachic articles published by Giyur Kahalacha and constitutes the halachic basis of this organization.

The purpose of this article was not to render any halachic decision. Rather, we have merely touched the tip of the iceberg concerning some of the opinions on this issue and sources upon which they are based. We have learned that there are currently two extremely diverse opinions regarding the conversion of minor children in the state of Israel whose environment will not be conducive to them learning to keep the Torah and mitzvot. To conclude, I would like to present several questions for discussion that should be dealt with in depth, but are beyond the purview of this article:

  1. What is the role of the beit din in converting minors? Does it operate like a regular beit din or in place of the role of the father?
  2. Is there a halachic obligation to notify minor children that they can protest and annul the conversion? Is there such a moral obligation?
  3. There is a modern trend among couples who cannot have children to receive egg donations from gentiles. In these situations, there is a major dispute between poskim whether the newborn takes the halachic status of the egg donor (non-Jewish) or the surrogate mother (Jewish). According to those that hold that the child has the halachic status of the egg donor, how can we convert him if his parents live a secular lifestyle, even though a child who would have been born to them biologically would definitely have been Jewish?
  4. In terms of general approach towards concerning conversions today, does Am Yisrael want or need to add more members to the family? There are conflicting sources within Chazal, and the question is what the proper approach should be on a practical level.

[1] Masechet Ketubot 11a

[2] Masechet Ketubot 4a, pagination of the Rif, s.v. גרסינן

[3] Please note that through the remainder of the article, either the male or female gender alone is often used when referring to the child. Nevertheless, this is only for simplicity, but all the rules and discussions apply equally to a female as well.

[4] Masechet Yevamot 16b

[5] Masechet Ketubot 4a, pagination of the Rif, s.v. ולענין

[6] Masechet Ketubot 1:23

[7] Hilchot Issurei Biah 13:7

[8] Hilchot Melachim 10:3

[9] Commentary on the Tur, Yoreh Deah 288, s.v. ומה שכתב במה דברים אמורים

[10] See also the response of Chatam Sofer (2:253), who presents the Rambam’s opinion in contrast to the Baal Halachot Gedolot.

[11] Yoreh Deah 268:7

[12] Yoreh Deah 268:8

[13] Yoreh Deah 268:18.

[14] Masechet Bava Metzia 12a

[15] Masechet Bava Metzia 81b

[16] Masechet Ketubot 11a, s.v. מטבילין אותו

[17] Rashba, Ketubot 11a, s.v. ואף על גב

[18] Masechet Yevamot 89b

[19] See the discussion in Yevamot ibid. and the commentaries on that sugya.

[20] Ritva, Ketubot 11a

[21] Masechet Sanhedrin 68b s.v. קטן

[22] Minchat Asher, Shabbat 34:4

[23] Ritva, Ketubot 11a

[24] https://tinyurl.com/y3u6m299

[25] Daat Kohen, Yoreh Deah 147

[26] 2:57

[27] Piskei Din Rabbaniyim, Vol.1, pp.375-381. It must be noted that in that same ruling, the dayanim stated that if a minor of secular parents has already been converted, despite the problems involved in this conversion, it must not be annulled retroactively, and the child is still considered Jewish. The entire discussion here relates to minors converted from the outset in this manner.

[28] The truth is that the vast majority of poskim in the last hundred years have taken this approach, but as the purpose of this article is primarily to review the basis for and assumptions of the different opinions, I have not cited all of them to avoid giving the reader the sense that the discussion is slanted in a specific direction just because of the greater number of opinions agreeing with this approach.

[29] Torah SheBa’al Peh, vol.13, pp.133-140

[30] https://tinyurl.com/y5gntpb4

[31] Responsa Siach Nachum, siman 68.

[32] Masechet Gittin 43b.

[33] Rambam, Hilchot Avadim 9:6.

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