Adoption and the Law of Return

By Daniel Tauber
The Jewish Press
Wednesday, February 25 2009

It may not be a "basic law," Israel's set of semi-constitutional laws, but the Law of Return is probably the most fundamental law of the state. It certainly is the most Jewish and Zionist of all Israel's laws.

The Law of Return states that "[e]very Jew has the right to come to this country as an oleh." It fulfills provisions of the 1922 Palestine Mandate approved by the League of Nations, which gave international recognition to Zionism and placed a legal obligation on the then-administering power of Palestine, Britain, to provide for close settlement of the Jews in Palestine.

It also fulfills provision of the Declaration of the Establishment of the State of Israel, which holds that "the Jewish State would open the gates of the homeland wide to every Jew" and that "[t]he State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles."

The Law of Return captures the very weltanschauung of Zionism and the Jewish state. So it's no surprise that Ben-Gurion believed the Law of Return to be one of Israel's most important laws.

It is precisely because the Law of Return captures the essence of the State of Israel and the national interest of the Jewish people in the modern era that it is subject to so much controversy and attack, in and out of Israel's courts, by several groups: Israel's Christian friends, concerned about the status of messianic Jews whose missionary activity could threaten the Jewish character of the state; Israel's Arab enemies; and Israel's post-nationalist, post-Zionist academic elite who see this law, so central to the reestablishment of Jewish sovereignty in Israel after 2,000 years of persecution culminating in the Holocaust, as evil and racist.

The Law of Return became the subject of yet another legal controversy in Israeli courts in regards to the affects of adoption on the ability of an applicant to receive the benefits of automatic citizenship under the Law of Return.

According to Jewish law - the determining factor of Jewish identity for thousands of years - a person who is Jewish cannot become non-Jewish. The halachic definition was practically incorporated into the Law of Return by virtue of a 1970 amendment that reversed an Israeli Supreme Court decision ordering that a "subjective test" - a person's statement that he or she is Jewish - be used in determining Jewish identity.

The 1970 Amendment stated that "[f]or the purposes of this Law, 'Jew' means a person who was born of a Jewish mother or has become converted to Judaism and is not a member of another religion." This objective halachic definition is the one that Jews had used for thousands of years, with an understandably added stipulation against apostates.

This definition of a Jew does address the issue of adoption: It says a person is a Jew if he or she was "born to a Jewish mother" (emphasis added), specifically including people who were born to but not necessarily raised by Jewish parents.

So the case of an adopted Jew would be a no-brainer. Otherwise, Jewish children saved by Christian parents during the Holocaust - Anti-Defamation League national director Abraham Foxman, for example, who was raised as a Catholic by his rescuers - could face serious problems if they wanted to make aliyah under the Law of Return.

The problem is that the adopted person at issue in the current case, Regina Bernik, is not a Jew, since it is her biological father, not her mother, who is Jewish.

Under the Law of Return, however, "the rights of an oleh are also vested in a child and grandchild of a Jew, the spouse of a Jew." (This provision was most likely aimed at ensuring that a Jew who married a non-Jew would not be deterred from making aliyah or to cover the Holocaust scenario in which a person is persecuted because of his or her Jewish blood.)

After the Ministry of the Interior rejected Bernik’s request to for citizenship under the Law of Return, Bernik petitioned Israel’s Supreme Court. Attorney General Menachem Mazuz argued to the court that while the effect of adoption on the Law of Return was up for interpretation, the biological relation of the petitioner to a Jew should be the determining factor.

According to Ynetnews.com, the court’s judgment is due soon.

An even more pressing problem than how adoption affects the Law of Return is that over the years the Israeli Supreme Court has been eroding the objective halachic definition of a Jew by widely interpreting the definition of "conversion" so that anyone who converts to Judaism under the auspices of just about anybody can be considered a Jew.

In the case of Pessaro (Goldstein) v. Minister for the Interior (1995), the court recognized a non-Orthodox conversion performed outside Israel as a valid conversion under the Law of Return and awarded the non-Orthodox convert automatic citizenship rights under the Law.

In Pessaro, the court cited the would-be immigrant's religious rights under the rubric of what the court termed the "freedom of the convert" (a concept which never before existed in Israeli law) as support for its ruling. The court thus awarded the benefits of citizenship (rights) - the very thing at stake in the case - to non-citizens, using circular reasoning and a fantastic tautology: it recognized the petitioner as a valid convert because of his rights due to him as a valid convert.

In reaching its decision, the court rejected the dissenting opinion of Judge Tzevi Tal, who noted that even in the United States immigration law is an area in which laws are constitutionally permitted to be discriminatory and therefore the rights of the would-be immigrant were irrelevant to the case. Tal further wrote that recognizing conversions performed by any Jewish group outside of Israel - regardless of whether the group followed halachic standards for conversion - would have the practical effect of allowing any group to issue immigration visas and citizenship to the State of Israel.

It is not clear how the court will rule on the adoption case, but one thing is clear: protecting Jewish identity does not seem be among the weightiest factors influencing the court’s judgment.

CORRECTION NOTICE: This article has been revised. It originally stated that the Attorney General had said that the effect of adoption of a person born to a Jewish mother on the person’s rights under the Law of Return was up for interpretation. As noted above, the Attorney General’s statement was addressed at the rights of a non-Jew under the Law of Return by virtue of that person’s relation to a Jew, such as a Jewish father. We apologize for the error.

http://www.jewishpress.com/pageroute.do/38316

Adoption and the Law of Return

The Law of Return was most recently the subject of what can aptly be described as a microcosm of the insanity of Israeli legal interpretation as displayed in Israeli Attorney General Menachem Mazuz's opinion that, as summarized by Ynetnews.com, because the section of the Law of Return addressing who is a Jew does not discuss the ramifications of adoption of a Jewish child by non-Jewish parents, the question of the child’s Jewish identity is open to interpretation.

In most legal systems the absence of a legal provision which would change a person's legal status would mean only that the person's legal status is what it always was. The real question is why would anyone think that adoption of a Jew by non-Jews makes the person less Jewish? If this were the case any Jews saved by Christian parents from the Holocaust – for instance Abraham Foxman, Director of the Anti-Defamation League who was raised as and by a Catholic – could face serious problems if they wanted to make aliyah under the Law of Return.

In any case, pursuant to a 1970 Amendment, the Law of Return states that “[f]or the purposes of this Law, ‘Jew’ means a person who was born of a Jewish mother . . . ." specifically including people who were born to but not necessarily raised by Jewish parents. The only real question being has the person at issue who has been adopted by non-Jewish parents become "a member of another religion" - since such persons are understandably excluded from the Law's benefits.

The Law of Return & Amendments

Law of Return 5710-1950

Right of aliyah** 1. Every Jew has the right to come to this country as an oleh**.

Oleh's visa 2. (a) Aliyah shall be by oleh's visa.

(b) An oleh's visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of Immigration is satisfied that the applicant

(1) is engaged in an activity directed against the Jewish people; or

(2) is likely to endanger public health or the security of the State.

Oleh's certificate 3. (a) A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an oleh's certificate.

(b) The restrictions specified in section 2(b) shall apply also to the grant of an oleh's certificate, but a person shall not be regarded as endangering public health on account of an illness contracted after his arrival in Israel.

Residents and persons born in this country 4. Every Jew who has immigrated into this country before the coming into force of this Law, and every Jew who was born in this country, whether before or after the coming into force of this Law, shall be deemed to be a person who has come to this country as an oleh under this Law.

Implementation and regulations 5. The Minister of Immigration is charged with the implementation of this Law and may make regulations as to any matter relating to such implementation and also as to the grant of oleh's visas and oleh's certificates to minors up to the age of 18 years.


DAVID BEN-GURION
Prime Minister

MOSHE SHAPIRA
Minister of Immigration

YOSEF SPRINZAK
Acting President of the State
Chairman of the Knesset


* Passed by the Knesset on the 20th Tammuz, 5710 (5th July, 1950) and published in Sefer Ha-Chukkim No. 51 of the 21st Tammuz, 5710 (5th July. 1950), p. 159; the Bill and an Explanatory Note were published in Hatza'ot Chok No. 48 of the 12th Tammuz, 5710 (27th June, 1950), p. 189.

** Translator's Note: Aliyah means immigration of Jews, and oleh (plural: olim) means a Jew immigrating, into Israel.



Law of Return (Amendment 5714-1954)*

Amendment of section 2(b) 1. In section 2 (b) of the Law of Return, 5710-1950** -

(1) the full stop at the end of paragraph (2) shall be replaced by a semi-colon, and the word "or" shall be inserted thereafter ;

(2) the following paragraph shall be inserted after paragraph (2):

"(3) is a person with a criminal past, likely to endanger public welfare.".

Amendment of sections 2
and 5 2. In sections 2 and 5 of the Law, the words "the Minister of Immigration" shall be replaced by the words "the Minister of the Interior".


MOSHE SHARETT
Prime Minister

YOSEF SERLIN
Minister of Health
Acting Minister of the Interior

YITZCHAK BEN-ZVI
President of the State


* Passed by the Knesset on the 24th Av, 5714 (23rd August, 1954) and published in Sefer Ha-Chukkim No. 163 of the 3rd Elul, 5714 (1st September, 1954) p. 174; the Bill and an Explanatory Note were published in Hatza'ot Chok No. 192 of 5714, p. 88.

** Sefer Ha-Chukkim No. 51 of 5710, p. 159, LSI vol. IV, 114.


Law of Return (Amendment No. 2) 5730-1970*

Addition of sections 4A
and 4B 1. In the Law of Return, 5710-1950**, the following sections shall be inserted after section 4:

"Rights of members of family

4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712-1952***, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.

(b) It shall be immaterial whether or not a Jew by whose right a right under subsection (a) is claimed is still alive and whether or not he has immigrated to Israel.

(c) The restrictions and conditions prescribed in respect of a Jew or an oleh by or under this Law or by the enactments referred to in subsection (a) shall also apply to a person who claims a right under subsection (a).

Definition

4B. For the purposes of this Law, "Jew" means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion."

Amendment of section 5 2. In section 5 of the Law of Return, 5710-1950, the following shall be added at the end: "Regulations for the purposes of sections 4A and 4B require the approval of the Constitution, Legislation and Juridical Committee of the Knesset.".

Amendment of the Population Registry Law, 5725-1965 3. In the Population Registry Law, 5725-1965****, the following section shall be inserted after section 3:

"Power of registration and definition

3A. (a) A person shall not be registered as a Jew by ethnic affiliation or religion if a notification under this Law or another entry in the Registry or a public document indicates that he is not a Jew, so long as the said notification, entry or document has not been controverted to the satisfaction of the Chief Registration Officer or so long as declaratory judgment of a competent court or tribunal has not otherwise determined.

(b) For the purposes of this Law and of any registration or document thereunder, "Jew" has the same meaning as in section 4B of the Law of Return, 5710-1950.

(c) This section shall not derogate from a registration effected before its coming into force.".


GOLDA MEIR
Prime Minister
Acting Minister of the Interior

SHNEUR ZALMAN SHAZAR
President of the State


* Passed by the Knesset on 2nd Adar Bet, 5730 (10th March, 1970) and published in Sefer Ha-Chukkim No. 586 of the 11th Adar Bet, 5730 (19th March, 1970), p. 34; the Bill and an Explanatory Note were published in Hatza'ot Chok No. 866 of 5730, p. 36.

** Sefer Ha-Chukkim of 5710 p. 159 - LSI vol. IV, p. 114; Sefer Ha-Chukkim No. 5714, p. 174 - LSI vol. VIII, p. 144.

*** Sefer Ha-Chukkim of 5712, p. 146 ; LSI vol. VI, p. 50.

**** Sefer Ha-Chukkim of 5725, p. 270 ; LSI vol. XIX, p. 288.

[Source: Israeli Ministry of Foreign Affairs.]