When is a mamzer not a mamzer? - Igrot Moshe Even HaEzer 4:23.1-2

I have already written up the last section of this teshuva, where Rav Moshe Feinstein used the behavior and character traits of the suspected mamzer as a final proof that he was not, in fact, a mamzer. In this summary I will focus on the bulk of the teshuva, where Rav Moshe tackles the essential halachic issues.


The question dealt with a woman who was civilly divorced in 1956 but only received her get in 1959. Later that year she married another man, and a few months later she bore a son. Clearly this son was not conceived after the second marriage. The new husband claimed that the child was his, and that the child had been concieved before the woman received her get. If that claim would hold, the child would be the product of an affair with an eishet ish, and thus would be a mamzer. The issues at hand focus on the trustworthiness of both the husband and the mother with regard to whether or not they can proclaim that their son is a mamzer.


The weightiest issue dealt with in the teshuva is that of yakir, the idea that the Torah recognizes a father's "recognition" of his children for halachic purposes. While we normally believe a father to say that a certain child is his, Rav Moshe notes that that only applies when he has raised the child and we have no reason to think otherwise. However, in this case it is clear that the child was concieved before he married the mother, and thus he does not have the right to declare his son a mamzer under the rubric of yakir. Rav Moshe claims that he does not even qualify as an eid echad to make such a claim.


However, Rambam seems to take the opposite view on this, claiming that a person can assert that someone is his firstborn for inheritance purposes, even if that son did not grow up with that father. Rav Moshe investigates this position and ultimately concludes that Rambam has two different takes on the law - one in the laws of inheritance and one in the laws of yuchsin (lineage). For inheritance purposes, Rambam would allow someone to make a claim about a child that he did not raise, while for lineage purposes a person cannot make such a claim with any degree of accepted credibility.

Taking that into account, Rav Moshe rules that we do not believe the new husband that he and the woman conceived the child before the divorce. This ruling is based on a variety of reason. One, we have no evidence that this woman was ever involved in a licentious relationship especially since for the three years since her civil divorce there was no indication that she was ever involved in a sexual affair. Two, even if there were witnesses that they were in seclusion with one another before her get was given, the gemara in Ketubot rules that we do not proclaim that a person is forbidden based on the knowledge that they had had yichud with someone. Three, if the only testimony that they had an affair is based on what the man says, then he would be incriminating himself, and we do not accept self-incriminating testimony.

With regard to any claims by the woman, we have less of a reason to believe her, since yakir only applies by the father and not the mother. As such, there is no halachically acceptable testimony that would establish that the child was conceived before the get was given, and thus Rav Moshe rules that he is not to be considered a mamzer.

When is a mamzer not a mamzer? - Igrot Moshe Even HaEzer 4:23.3

In this third and final section of a teshuva about a child who may or may not have been a mamzer, Rav Moshe Feinstein considers the implications of the fact that the potential mamzer was someone who had spent several years learning in Yeshiva and possessed fine character traits. Can those be used as evidence to help clear up confusion over whether or not he had been conceived in sin?

While Rav Moshe is hesitant to make such a move in the case of a mamzer, he invokes a different case as a parallel. He had been asked years earlier about someone who was a talmid chacham and a God-fearing Jew whose mother was known to have not kept the laws of niddah. As such, while this young man was not technically excluded from marrying a Jewish girl, he would be considered a בן נדה, which would be at least a blemish in the world of shidduchim. However, since there is a statement from Chazal that says that a בן נדה will possess the trait of brazenness, and this young man clearly did not fit that bill, then Rav Moshe surmised that perhaps it was possible that he was conceived when his mother was not a niddah.

How can this be the case if the mother never kept the laws of niddah? Rav Moshe suggested that perhaps there was a time when she entered a body of water that would qualify as a kosher mikveh, such as by swimming in the ocean, and even though she would not have had intention to enter it as a mikveh, and even though she would not have kept some of the other practices associated with the laws of niddah, such as הפסק טהרה or שבעה נקיים, nevertheless on a basic level she would have entered a mikveh and thus perhaps this young man was born soon after that event and thus he can be considered to not be a בן נדה for lineage purposes.

With regard to the actual question in this teshuva, which concerned someone who was potentially a mamzer, who is forbidden to marry a Jew, Rav Moshe feels that given the other potential reasons given in the other sections of the teshuva (to be written up soon), the fact that he is also a Torah scholar and a God fearing Jew can be used as additional support for the fact that he is not a mamzer.