Paternity

Fatherhood. Doubtful paternity involves not only the right of inheritance, but also, if the father be a kohen, the claim of priesthood with all its privileges and restrictions, including those regarding incest and prohibited marriages. Biblical chronology ignores the mother in the lineal descent of generations. The father was considered the stem of the family tree. The census was conducted "after their families, by the house of their fathers" (Num. i. 2). The father's priesthood descended to his issue only by legal (with ḳedushin) and lawful (not incestuous) marriage.

Paternity can not be claimed for a child begotten out of wedlock when the alleged father disclaims it, even though the mother was his mistress and the child be born after he has married her (Ḳid. 69a; Shulḥan 'Aruk, Eben ha-'Ezer, 26, 4). The mother's own claim, when denied by the man, is not accepted. But a man may establish his paternity of a son born out of wedlock, to entitle the son to the right of inheritance and of priesthood (Asheri, Responsa, Rule 32, § 16). A man may also disclaim the paternity of a child born to his legal wife; but he may not do so after that child has had a child (Shulḥan 'Aruk, Eben ha-'Ezer, 4, 29). The apparent absence of the husband does not prove his impotence, as it is presumed he concealed his access to his wife, unless he himself admits his absence for the necessary length of time or it is otherwise absolutely proved. Acts of adultery by a wife living with her husband do not affect his paternity of her children, as the maxim is "The issue follows the majority of cohabitations by the husband" (Soṭah 27a).

In order to facilitate the establishment of paternity, a divorced woman or a widow must wait at least three months before she marries again. If she remarries within three months of her first husband's death and bears a child seven months thereafter, it makes it doubtful whether the offspring is a nine-month child by the first husband or a seven-month one by the second (Yeb. xi., end). While the ordinary period of gestation is conceded to be nine months; the husband may not disclaim the paternity of a child born to his wife within twelve lunar months, as it is possible that the embryo might "tarry" during the extra time (Yeb. 80b). On the other hand, the period of gestation may end as early as a little over five months, for example, from the last days of Siwan to the first days of Kislew, as the fractional parts of the respective months are figured full months and with the five intervening months make seven months or rather seven moons, constituting the period of ripe pregnancy. R. Judah Mintz of Padua decided favorably in a case where the period of gestation was six months from the date of marriage and the child was fully developed. In this case the virginity of the mother at the time of her marriage was proved by evidence (Responsa, ed. Fürth, 1766, No. 6, pp. 10a-12b).

One that can not claim his father is called "shetuḳi" = "silent," and belongs to those having a low grade of pedigree ("yuḥasin"). Such a one is prohibited from intermarrying with the daughters of priests, Levites, and pure Israelitic families (Ḳid. iv. 1-2). For the reason of these restrictions see Ḳid. 73a. Jewish law does not in any way attach to an adopted child the paternity of the adopter.

See also Adoption; Bastard; Foundling; Ḥalalah; Illegitimacy; Inheritance.

Bibliography:

  * Maimonides, Yad, Issure Biah, xv., xvi., and Naḥalot, iv.;
  * Shulḥan 'Aruk, Eben ha-'Ezer, 3, 4, and Ḥoshen Mishpaṭ, 289.



E. C. J. D. E.