창세기 46:36의 Halakhah

However, the Tur (Peirush Tur Ha’aroch on Bereishit 46:10) explains this midrash in a manner that seemingly indicates the exact opposite, that the ovum donor is the halachic mother in a case of surrogate motherhood. In analyzing the midrash (quoted by Rashi on Bereishit 46:10) that Shimon married his sister, Dinah, the Tur wonders why their union did not constitute incest. After all, Shimon and Dinah were both children of Leah, and marrying a maternal sister was prohibited even before the giving of the Torah. The Tur answers that, as quoted above from Targum Yonatan, Dinah began in Rachel’s womb. Even after she was switched to Leah’s womb, the Halachah still considered her to be Rachel’s daughter, so she and Shimon thus had different mothers. Before the Torah was given, one was allowed to marry a paternal half-sister.¹¹Even nowadays, Noachide Law (Halachah pertaining to non-Jews) permits marrying a paternal half-sister, while a Jew may not marry any half-sister; see Vayikra 18:9, Rambam (Hilchot Melachim 9:5), and Rashi (Bereishit 20:12). Therefore, Leah’s son, Shimon, did not violate the Halachah when he married Rachel’s daughter, Dinah. We thus see that according to the Tur, the Halachah defines motherhood by the woman whose egg forms the fetus, even if another woman gives birth to the baby. Of course, Aggadic passages usually cannot serve as definitive halachic proofs.¹²See Yerushalmi (Pe’ah 2:4), Encyclopedia Talmudit (1:62), Teshuvot Yabia Omer (vol. 8, Even Ha’ezer 21:2), and Nishmat Avraham (3:17). Nevertheless, the Tur’s words merit serious halachic consideration, especially because he is explaining how to understand the story from a halachic perspective.

An argument based upon an aggadic source establishing the opposite conclusion was first advanced by R. Menasheh Grossberg, Sha'arei Torah, Sha'ar Menasheh, XV (5684), no. 3. The Gemara, Berakhot 60a, declares that Dinah was born a female as a result of Leah's prayers during her pregnancy. Knowing that Jacob would become the father of a total of twelve sons and not wishing her sister Rachel to bear their husband fewer sons than the maidservants, Bilhah and Zilpah, Leah prayed that her already conceived fetus be born a female. It is clear from the parallel narrative recorded in the Palestinian Talmud, Berakhot 9:3, that the phenomenon described by the Sages involved an in utero sex change. However, Targum Yonatan, Genesis 30:21, states that what transpired was not a sex change in Leah's fetus but a physical exchange of the fetus from the womb of Leah to the womb of Rachel and vice versa, i.e., Dinah was conceived by Rachel but transferred to the womb of Leah while Joseph was conceived by Leah and transferred to the womb of Rachel.¹See also R. Chaim Yosef David Azulai, Devash le-Pi, ma‘arekhet ayin, s.v. ayin ha-ra. This view, attributed to a midrashic source, is also cited by Ba‘alei ha-Tosafot, Moshav Zekenim (London, 5719), Genesis 46:10 and in Peirush ha-Tur he-Arukh, Genesis 30:21. See also Meshekh Ḥokhmah, Parshat Va-Yeḥi, s.v. bnei Raḥel. Maharsha, Niddah 31a, asserts that this is also the correct interpretation of the narrative recorded in Berakhot 60a. The liturgical poem "Even Hug," attributed to R. Eleazar ha-Kalir, which is included in the repetition of the amidah of Shaḥarit on the first day of Rosh ha-Shanah contains a passage predicated upon the identical premise: "Zakhar lah yosher araḥot, ubar le-hamir be-veten aḥot; ḥushavah ke-ha-yom zikhrah le-he'aḥot, siluf Dinah bi-Yehosef le-hanḥot—God remembered her righteous ways and exchanged the fetus in the womb of her sister; on this day was considered her remembrance in reward for her sisterly affection²Or perhaps, “on this day was considered her remembrance to make her equal to her sister.” and the exchange of Dinah for Joseph was effected." Kotnot Or cites Targum Yonatan in resolving a question posed by R. Elijah Mizrahi in the latter's commentary on Genesis 46:10 with regard to the tradition which teaches that Simeon took Dinah as a wife. R. Elijah Mizrahi is troubled by the fact that even a Noachide is forbidden to marry his sister. Kotnot Or points out that only a maternal sister is forbidden to a Noachide; a half-sister who is a paternal sibling is permitted to a Noachide. Kotnot Or observes that, according to Targum Yonatan, Dinah was really the daughter of Rachel and hence not a maternal sister of Simeon. The implication of Kotnot Or's thesis is that the maternal relationship is established by conception rather than birth.³See also R. Yonatan ha-Levi Eibeschutz, Ha-Be’er, VIII (5693), no. 3. A position identical to that of Kotnot Or is espoused by Moshav Zekenim, Genesis 46:10 and tentatively advanced by Peirush ha-Tur he-Arukh, Genesis 46:10.

In point of fact, Rabbi Sternbuch's assertion that our ancestors did not have the status of "newly born children" at Mount Sinai is a matter of some dispute. Rabbi Sternbuch's position echoes that of Maharal of Prague, Gur Aryeh, Parashat Va-Yigash (Genesis 46:8), cited by the author of Shev Shem'atata in section 9 of his introduction to that work. Maharal of Prague is of the opinion that, unlike subsequent proselytes, the recipients of the Torah at Mount Sinai did not acquire status as "newly born children" and, accordingly, they were forbidden to marry close relatives. However, Maharal offers a rationale entirely different from that advanced by Rabbi Sternbuch in explaining why those who became Jews at Mount Sinai were not deemed to be "newly born children." Acceptance of the commandments at Sinai is described by the Gemara, Shabbat 88a, as having been coerced. Status as "newly born children," asserts Maharal, is acquired only when acceptance of commandments is voluntary. Nevertheless, R. Meir Simchah of Dvinsk, Meshekh Hokhmah, Parashat Va-Etḥanan (Deuteronomy 5:27), espouses an opposing view in declaring that previously existing consanguineous relationships were not terminated at Sinai as evidenced by the fact that all participants were directed, "Return to your tents" (Deuteronomy 5:27), i.e., they were granted permission to resume conjugal relations prohibited in the preparatory period before receiving the Torah at Mount Sinai. Indeed, Meshekh Hokhmah points to that directive as the biblical source of the talmudic dictum "A proselyte who converts is comparable to a newly born child."³⁵See R. Zalman Nehemiah Goldberg, Teḥumin, V, 255, note 5.

Dr. Esh discusses a totally different, and virtually unknown, custom with regard to the reading of Yissokhor, a practice which he finds recorded in Naḥalat Ya'akov, a work devoted to various questions pertaining to the Reading of the Torah. According to this compendium, the name should be vocalized as Yissoskhor in all occurrences prior to Numbers 26:24 and as Yissokhor thereafter. Dr. Esh explains the rationale underlying this uncommon practice. He predicates the custom upon one of the numerous reasons for not pronouncing the second sin of this name. One opinion recorded in Torah Shlemah is that this letter was removed from the name of Issachar in order that it might be added to the name of one of his children. According to this explanation, the name Yashuv, occurring in Numbers 26:24, originally lacked a shin. The person denoted by the name Yashuv is one and the same as Yov, identified in Genesis 46:13 as a son of Issachar. According to some authorities, Yov was also the name of an object of pagan worship. Therefore, Yov requested that a sin be taken from his father's name and added to his name, rendering it Yashuv. This tradition, Torah Shlemah claims, is the basis for the practice in some places of vocalizing the double consonant in Yissokhor throughout Scripture until the point where the sin is recorded as part of the name Yashuv in Numbers 26:24; from this point on, the second sin is not vocalized. Both Dr. Esh and Professor Wiesenberg quote many scholars who reject this custom as being unauthoritative.

A person is obligated to honor his father-in-law. Gloss: And some say that a person is not obligated to honor his grandfather, but this does not appear correct to me. Rather he is obligated in the honor of his father more than that of his grandfather (Maharik, Root 44). (And the proof is from the midrash regarding [Gen 46:1], "and he offered sacrifices [to the God of his father, Yitzchak]").

And this prohibition is practiced in every place and at all times by males and females. And one who transgresses it and makes himself a clairvoyant in one of the ways from all the matters we have mentioned or in another matter, and tells people things that he sees through his clairvoyance, is liable for lashes - and that is when he does some act in the thing, as we do not administer lashes without an act. But one who asks [something] from a clairvoyant is not under the liability of lashes. Nonetheless, very disgusting is anyone who fixes his thoughts or expends his time on these vanities. As it is not appropriate for one whom God has graced with knowledge and given the true religion as an inheritance to think about these vanities. Rather, he should fix his thoughts on the service of the Creator, may He be elevated, and not fear the words of the clairvoyant; since God, in His kindnesses will change the system of the stars, and nullify the power of the constellations, [so] as to do good to His pious ones. And it is known that we are the holy people, such that we are not under [the power of] a star or constellation - 'the Lord is our inheritance, as He spoke to us.' And [it is] like the matter that we found with the forefathers, that God placed their stature above the ministers above: Like that which is written about Yaakov, "but rather Yisrael will be your name" (Genesis 35:10), "for you have dominated (sarita) with powers, etc." (Genesis 32:29); meaning that God made him a minister (sar) over the [celestial] ministers. And so [too,] is Yitschak called Yisrael, as it is stated (Genesis 46:8), "these are the Children of Israel that were coming to Egypt, Yaakov and his children." And so [too,] Avraham is called Yisrael, as we wrote in the Introduction of the book. And this is [the meaning of] what is written about the matter of the disagreement of the prophet, Eliyahu, with the prophets of Baal, as it stated (I Kings 18:31), "like the number of tribes of the children of Yaakov," whose name was called Yisrael: As he was rebuking them [about] why they were leaving the service of the Master, the Lord of Hosts, who has in His hand to nullify all the actions of the powers and the constellations; and like the matter that He did with the forefathers, such that He put the constellations under their hand. And that is [the meaning] of its stating in that place (I Kings 18:31), "like the number of tribes of the children of Yaakov, to whom was the word of the Lord, saying, 'Yisrael will be your name,'" - meaning to say, that He made him a minister over the [celestial] ministers, to change their system and their power with his merit. [This is] meaning to say, Israel, who are the children of Yaakov, are also ministers over the celestial ministers; and hence it would be fitting for them to not worship anything besides God alone. And so did we find with Yehoshua, who decreed to the sun and the moon to stand - as it is written in Joshua 10:12, "Sun, be still in Giveon, moon in the Ayalon Valley" - and they stood. And so [too,] several pious ones of Israel who changed the system of the constellations [and their power] with their merit. The matter would [take too] long, to bring [the] several stories that happened in Israel about this matter.