‘Father unknown’: A dread biblical status leads to modern problems

Amir has his daughter’s name tattooed down his forearm, spelled out in giant black and fluorescent blue bubble letters. His profile picture on the WhatsApp messaging program is not of himself, but of his daughter, Gili, grinning as she holds a massive sword.

And yet to the State of Israel, he is not considered her father. He may have raised her, and he may have provided half of the genetic material that led to her creation, but to the government, she officially has no father. The space on her identification card where her father’s name is meant to be listed reads instead “father unknown.”

So why does Gili not have a father, as far as the State of Israel is concerned? Because she was born within 300 days of her mother’s divorce from another man.

A contentious, arguably anachronistic Israeli law requires that any child born within 300 days of their parents’ divorce be officially listed as the offspring of their mother’s ex-husband unless a court orders otherwise — a relative rarity in Israel.

“It’s not something I have to think about every day, but it’s always in the background. It’s always been something that bothers me because she’s the most successful thing I’ve ever done. I like to say Gili is my ‘lifetime achievement.’ And it’s always bothered her that it says on her identification card ‘father unknown,’” Amir said.

“But these things are more emotional, rather than practical,” he said.

(Amir and Gili are not their real names. Amir asked that pseudonyms be used due to ongoing legal proceedings involving their case.)

For Amir and Gili, the situation had few practical ramifications, but not everyone is so lucky. These designations can prevent women from receiving child support payments from the fathers of their children or prevent a child from receiving an inheritance from their father. They can also prevent the biological fathers from being able to have relationships with their children, as they are not legally recognized as parents.

Three hundred days is also longer than the average pregnancy, meaning a woman can get divorced and conceive a child with a different man a month later and still have the baby be listed as her ex-husband’s.

Similar laws exist in other countries, almost exclusively for the purposes of inheritance, but in Israel, the goal of this policy is different and deals more with a somewhat esoteric notion in Jewish law: that of the mamzer, a Hebrew term with no real direct translation into English, but whose closest, albeit inaccurate, approximation is “illegitimate child.”

Last week, the Israel Democracy Institute think tank, the Center for Women’s Justice and an organization that represents mamzers, the Dim’at Ha’ashukim Forum (in English the “tear of the oppressed”), organized a first-of-its-kind conference to discuss the mamzer issue in general and the 300-day rule in particular, bringing together experts in Jewish and secular law, activists, and researchers in the field of religion and state.

At the conference, the participants presented a proposed amendment to the 300-day rule, which is laid out in section 22 of the Population Registry Act, that would allow for a different father to be listed if he, the child’s mother and the mother’s ex-husband all agreed to it.

Amir and Gili are certainly not alone, though it is difficult to say how many people exactly are in their same situation.

“There aren’t figures [about mamzers] out in the market. This is due to a belief that if we know the number, we also identify that there is a problem,” Shlomit Ravitzky Tur-Paz, the head of the Israel Democracy Institute’s Center for Religion, Nation, and State, said at the conference.

According to Ravitzky Tur-Paz, who obtained statistics from the government, there have been 1,815 babies born to women within 300 days of their divorce in the past 20 years, roughly 90 each year.

“This just gives a sense [of the problem],” she said.

Of these 1,815, nearly half — 850 — are listed as the child of the ex-husband. “We don’t know if they’re listed that way because he is their father or because that is just the norm,” she said.

Another 533 are listed without a father’s name, and 432 are identified as having a father other than their mother’s ex-husband.

Ravitzky Tur-Paz estimated that at least some 50 children are born each year who are given the designation of mamzer.

What is a mamzer?

Though “bastard” is used in some translations of the Bible, a mamzer in Jewish law is substantively different from a bastard in the Western sense. A mamzer is not the child of any sexual relationship out of wedlock. The precise definition can get highly technical, but for all intents and purposes, it is the product of certain, though not all, proscribed sexual couplings, notably those in which the parents could not be married under Jewish law. This includes cases of incest.

Most significantly in Israel today, this includes a child conceived by a married woman and a man who is not her husband, as Judaism does not allow women to have multiple husbands. However, it does not include a child born to a married man and a woman who is not his wife, as men can theoretically be permitted to have multiple wives under Jewish law (although this is extremely rare in practice).

Though someone with the status of mamzer is not meant to be discriminated against in other ways, the Talmud prohibits them from marrying another Jew, except for another mamzer or someone who converted to Judaism. In Israel, which does not have civil marriage and, for Jews, only allows marriage through the rabbinate, someone who is known to be a mamzer is effectively barred from marriage save for those two exceptions. Their names appear on an actual blacklist, which is checked before the rabbinate can sign off on the marriage. Moreover, the status of mamzer is hereditary, extending for 10 generations, according to Jewish law.

Those suspected of possibly being a mamzer are in an even more difficult situation than those who are known to be one, getting the worst of both worlds: As they may be a mamzer, they are barred from marrying someone who isn’t, and as they may not be a mamzer, they are also barred from marrying someone who is.

This 300-day rule, which refuses to let a man be listed as a child’s father if the child was born in 300-day proximity to the mother’s divorce from another man, is meant to avoid having a child be designated a mamzer, which would be the case if conceived while the mother was still married to her now-ex-husband. The rabbinate and the state consider avoiding the appearance of a child being a mamzer as taking precedence over nearly any other consideration as it has a perpetual impact not only on the child but on any of their offspring.

At the conference, law professor Zvi Triger noted that unlike in any other issue in family law where judges are required to consider the individual needs of the specific child involved, here there is a blanket assumption that for all children it is of the utmost importance to prevent being designated a mamzer, regardless of any other circumstances.

At the conference last week, for instance, a woman anonymously presented her own run-in with the 300-day rule, in which her son was listed as being the child of her ex-husband, an abusive man with a long history of mental health issues who had for years refused to give her a divorce. Knowing he is not her son’s father, she cannot sue him for child support, but the biological father of the child was also never required to pay child support as he was not recognized as the boy’s parent. When the biological father died, her son, who was his only offspring, was also initially denied an inheritance, though she was able to sue the man’s family and did receive a small portion of his estate. The woman added: “I am constantly afraid that my ex-husband will take advantage of that fact [that he is listed as the father] for nefarious purposes.”

Advocates argue that this 300-day rule is therefore a solution that causes more problems than it solves, particularly as it does not necessarily prevent the child from being slapped with the mamzer designation anyway.

Amir’s daughter Gili, for instance, is likely a mamzer and will almost certainly come under extreme scrutiny if she ever attempts to marry through the rabbinate. She was conceived while her mother was still technically married to her then-husband despite having been separated from him for two years. Despite this ostensibly being clear-cut, she is only “likely a mamzer,” as there are all manner of legal loopholes and creative interpretations of Jewish law that could result in her not technically being considered one.

Amir and Gili

Immediately after she was born in 2003, Gili was listed on Amir’s identification document as his daughter.

“I met my partner — we never married — when she’d been separated from her ex-husband, with whom she’d had two sons, for two years. We got together as a family and Gili was born in late 2003,” Amir said.

Things were “on easy street” for two years, according to Amir, until his partner’s ex-husband apparently contacted the Population Authority in 2005 and informed them that Gili had been born within 300 days of the divorce.

Amir believes that this was an act of spite by the ex-husband, whom Gili’s mother had sued for failing to pay child support for their sons.

“The Population Authority contacted me, and the manager of the local branch in Kfar Saba said she was sorry but I needed to come and return my identity card that said I was Gili’s father and that this listing would be erased,” he said.

“Of course, I never returned it. I still have it now,” Amir added.

Though he kept the physical document, the official registration was nevertheless changed: Gili was erased from his ID file, and he was taken off of hers. They did, however, successfully fight an attempt by the ex-husband to get paternity over Gili. As a result, she was listed as being born to “father unknown,” though curiously she was nevertheless given the ex-husband’s surname.

Initially, Amir and his partner refrained from addressing the situation. It was frustrating and disappointing but had relatively little impact on their lives. “We had lives to live. I had to earn a living, to raise a family. I didn’t have the free time or the monetary resources to deal with it,” he said. Though technically only a parent or guardian can do things like enroll or pick a child up from school or take them to a doctor’s appointment, this was not an issue for them as their pediatrician knew Amir well, as did their local school.

We are very, very, very, very close. Between us, there was never even a shadow of a shadow of a shadow of a doubt about our relationship

There were occasional issues along the way — Amir, for instance, couldn’t help Gili open a bank account when she turned 16 — but largely it was an symbolic and ethical issue rather than a practical one.

Amir stressed that this situation had no effect whatsoever on his relationship with his daughter.

“We are very, very, very, very close. Between us, there was never even a shadow of a shadow of a shadow of a doubt about our relationship,” he said.

And yet the issue was always there, an irksome itch that popped up from time to time. So after ignoring the problem for some 15 years, two years ago Amir, who works in insurance, decided to finally address it. Now having the time and the money to hire a lawyer and go to court, and with the help of the Center for Women’s Justice, they petitioned the government to recognize him as Gili’s father — and won.

“Our petition was accepted, despite the vigorous opposition of the attorney general, of the state, of everyone and their wives,” Amir said.

Court order in hand, they went to the Population Authority to update the record. But they were blocked. The government had appealed the court’s ruling, leading to an injunction preventing any change to Amir and Gili’s status.

I don’t know if we’ll ever sort this out or when. We may need to just learn to live with it because there’s nothing else we can do

After she turned 18, Gili also attempted to change her last name — something any Israeli, regardless of their parental situation — is entitled to do, but this too was blocked for reasons Amir said he does not understand.

“Anyone who’s over 18 can change their name once every seven years. You don’t need a court order or anything. But this too they barred us from doing,” he said.

After further legal fights, they were eventually able to change Gili’s last name to match Amir’s. “This was symbolic for us,” he said.

To take the case further, Amir would have to file an appeal to the High Court of Justice, requiring yet more money and time, which he said he’s not entirely sure they’re willing or able to invest.

The Center for Women’s Justice has been helping them throughout the process, seeing it as a “test case,” and has offered to continue to do so if the case goes to the High Court of Justice, Amir said.

“I don’t know if we’ll ever sort this out or when. We may need to just learn to live with it because there’s nothing else we can do,” he said.