Giyur Ketanim – The Conversion of Children (3) Mecha’ah (Repealing the Conversion of a Minor)

  • Rav David Brofsky
            Last week, we continued our discussion of the conversion of children. We questioned which children, and under which circumstances, a beit din may convert. We also distinguished between conversions performed al da’at beit din (with the consent of beit din) and those that are performed because we may assume that “they are content (neicha lei) with whatever their father does.” 
            This week, we will discuss the Talmud’s assertion that if the child “protests” (mecha’ah), he may repeal his conversion.
Mecha’ah – Repealing the Conversion of a Minor
The Talmud (Ketubot 11a) cites Rav Yosef, who adds another aspect of the conversion of minors:
R. Yosef said: [In any case in which minors convert, when] they reach adulthood, they can protest [and annul their conversion]… Once she reached adulthood for even one moment and did not protest, she may no longer protest.
R. Yosef teaches that unlike the conversion of an adult, which is irreversible, if a child "protests" (mecha'ah), he may repeal his conversion. 
The Talmud does not describe the mechanism through which mecha’ah can repeal the conversion, nor does it define how, and when, mecha’ah is performed.
What is the mechanism of mecha’ah and how does it repeal the conversion? Seemingly one may suggest three approaches to mecha’ah, based upon the different understandings of giyur ketanim.
As we described in a previous shiur, Tosafot (Ketubot 11a, s.v. matbilin) maintain that, unlike the simple understand of the gemara, the conversion of a child is only mi-derabbanan. Tosafot explains that since "zekhiya" can only be effective on a rabbinic level, child converts are only considered to be Jewish mi-derabbanan. Of course, this explanation raises other difficulties; for example, how would it be possible to allow this rabbinic convert to marry a Jewish woman? Tosafot explain, based upon another Talmudic passage (Yevamot 89b), that the rabbis have the authority to uproot certain Biblical prohibitions. It appears that according to Tosafot, since the conversion is only mi-derabbanan and entails uprooting certain Biblical prohibitions, the child is affording the opportunity to repeal the conversion if he protests upon reaching adulthood. However, is she “acts in accordance with Jewish custom upon becoming an adult” (Tosafot ibid., s.v. lekhi), the conversion is final.
Elsewhere (Sanhedrin 58b s.v. katan), Tosafot suggest that children may be converted similar to the manner in which they became Jewish at the time of Matan Torah. However, Tosafot explain, upon becoming an adult, the child must perform a kabbalat ha-mitzvot. The absence of this kabbalat ha-mitzvot, Tosafot explain, is the “mecha’ah” that repeals – or in truth, does not complete – the conversion of the child.
The mila and tevila performed while he was a minor are effective, as they are done with his body, and only kabbalat mitzvot is missing. And since he reached adulthood without protesting, that is considered to be an acceptance [of the mitzvot]. (Tosafot, Sanhedrin 58b)
Tosafot believe that the conversion of a child is just like any other conversion. Therefore, in addition to circumcision and immersion, the convert must accept upon himself the mitzvot (kabbalat mitzvot). This view is consistent with the view of Tosafot elsewhere, which maintains that kabbbalat mitzvot is central to the conversion, and without kabbalat mitzvot, the conversion is invalid.
            Seemingly, one may understand this position in two ways. On the one hand, one might suggest that since a minor is unable to formally accept upon himself the mitzvot, the conversion is not complete until kabbalat mitzvot is performed. Indeed, the Rashba (ad loc., s.v. keivan) explains:
She is not considered to be a convert until she is informed of the reward and punishment associated with the mitzvot… and according to this view, they must inform her [of the mitzvot] immediately upon her reaching adulthood.
Similarly, the Ritva (ad loc.) explains that according to Tosafot, "they are not full converts until [beit din] informs them of the reward and punishment of the mitzvot when they reach adulthood.” These Rishonim understand that according to Tosafot, upon reaching adulthood the child must complete his conversion in the presence of a beit din.
Interestingly, Tosafot does not appear to maintain that the child must perform a formal kabbalat mitzvot in order to complete his conversion. Rather, as they explain, “since he reached adulthood without protesting, that is considered to be an acceptance [of the mitzvot].” It appears that according to Tosafot, as long as the child appears embrace his Jewish identity and doesn’t protest, that is considered to be a kabbalat mitzvot.
As we explained previously, other Rishonim appear to reject both approaches of Tosafot (Ketubot and Sanhedrin). Instead, they understand that zekhiya is not derived from the principle of agency, as agency does not apply to minors. Rather, zekhiya is a separate legal mechanism, which is relevant to minors. According to these Rishonim, the conversion of minors is valid and Biblically binding. However, just as we saw regarding a gift given by means of “zakhin” – “If he does not desire it, a person cannot be forced to accept a gift that is given to him” (Rambam Hilkhot Zechiya U-Matana 4:2) – so too, a child converted by beit din through the mechanism of zakhin cannot be forced to accept his conversion when he reaches adulthood.
            What is the definition of mecha’ah according to these Rishonim? The Rashba (ibid.) asks:
It seems impossible to isolate [the moment at which she may protest], as when she has reached adulthood she can protest, and before she reaches adulthood she cannot protest!
The Rashba concludes that R. Yosef refers to a case in which the convert “protests and matures from her childhood into adulthood, as she did not mature for even a moment without protest” (see also Ritva, Ketubot 11a). Similarly, the Ran (Rif, Ketubot 4a) writes: “Since she reached adulthood and did not protest, she may no longer protest, as she grew up in the Jewish religious of Moshe.” In other words, the absence of protest is sufficient to confirm the conversion.
Interestingly, the Rif does not cite the position of R. Yosef, despite quoting the law of the conversion of a minor (Yevamot 16b). The Maggid Mishna (Hilkhot Issurei Bi’ah 3:17) explains that the Rif rejects R. Yosef’s view (see also Ramban, Ketubot 11a, s.v. u-le’inyan, and Rosh 1:23).
The Ramban (Milchamot Hashem, Shabbat 55b; see also Ran, Ketubot ibid.) suggests that the Rif agrees that a child who converts with his father may protest and repeal his conversion. However, a child who comes alone and is converted al da’at beit din may not repeal his conversion, as if he were to be able to repeal his conversion, “what good would the authority of beit din be (mah ko’ach beit din yafa)?” The Ramban rejects the Rif’s interpretation (see also Bach, YD 268).
The Rambam relates to the conversion of a minor in two places. In one place (Hilkhot Issurei Bi’ah 13:7), he writes:
We immerse a minor who seeks to convert based upon the guidance of the court, for it is an advantage for a person [to convert]. When a pregnant woman converts and immerses herself, her child does not require immersion.
Although he does not cite R. Yosef in this passage, elsewhere (Hilkhot Melakhim 10:3), he writes:
If he was a minor and immersed by the court, he may repeal his conversion when he reaches adulthood and assume the status of a resident alien (ger toshav) alone. However, if he does not object as soon as he reached adulthood, he is no longer given the opportunity to object and his status is that of a righteous convert (ger tzedek).
Here, the Rambam mentions the possibility of mecha’ah and repealing the conversion. The Maggid Mishnah (Hilkhot Issurei Bi’ah, ibid.) notes the apparent contradiction.
            R. Moshe Sofer (Chatam Sofer, YD 253) explains that the first passage refers to a mother who brings her non-Jewish child to beit din to convert. In this case, he may not repeal his conversion, similar to the case of a pregnant woman who converts, whose child is indisputably Jewish. However, the second passage refers to a child who, on his own, asks the beit din to convert. The conversion is performed al da’at beit din, and therefore the child may protest and repeal the conversion upon becoming an adult. While the rationale is compelling, this interpretation does not appear to fit the language of the Rambam.
            The Shulchan Arukh (YD 268:7-8) rules:
Whether he is a minor who is converted by his father, or whether he was converted by a beit din [in the absence of a father], when he reaches adulthood he may protest, and he is not considered to be an apostate Jew, but rather a gentile. And what case is this talking about? When [the converted minor] does not act in accordance with the practices of Israel until he becomes an adult; but as soon as one becomes an adult and acts in accordance with the practices of Israel, he can no longer protest [his conversion].
The Shulchan Arukh appears to reject the view of Tosafot, instead maintaining that as long as he “acts in accordance with the practices of Israel,” a somewhat vague and non-specific description, he may no longer protest and repeal his conversion.
What if the child was unaware of his conversion when he reached adulthood? May he still protest when he becomes aware of his conversion? R. Shlomo Luria (1510–1574) writes in his Yam shel Shlomo (Ketubot 1:35):
Regarding the principle, “when they reach adulthood they may no longer protest,” it seems that this refers to a case in which they are aware that they were converted by the beit din or their father. However, if they were very young and did not recall that they were converted, and after they reach adulthood this becomes known to them, they may protest, even after observing Jewish practices for many years, as long as they were unaware of their conversion.
It should be noted, however, that R. Luria concurs with Tosafot (Ketubot 11a), who maintains that the conversion of a child is mi-derabbanan.
            R. Yitzchak Yaakov Weiss (Minchat Yitzchak 3:99:13) adopts this view and rules that when a convert becomes aware that he was converted as a child, he may still protest and revoke his conversion. R. Moshe Feinstein (Iggerot Moshe YD 1:162), in a responsum dedicated to the challenges of adoption, advises that parents must inform their child of his conversion while he is still young, so that that child will not protest when he becomes an adult. If a convert becomes aware of his conversion when he is older, we fear that he may renounce is conversion.
More recently, R. Asher Weiss (Kovetz Be-Inyanei Gerut 8) ruled that since there are different understandings of the role of mecha’ah, one should be strict and inform a child, while he is still a minor, of his conversion, as he will most likely not protest and repeal his conversion. Even among those Acharonim who accept this position, some maintain that one is not obligated to inform the convert of his right to protest his conversion (see, for example, Shevet Ha-Levi 5:150).
            While the reason behind this position may be compelling, the convert’s ability to protest and repeal his conversion even later in life is not mentioned by the Shulchan Arukh, nor does it appear in most of the Acharonim. We generally assume that a child who is raised in a Jewish home, who does not reject his Jewish identity upon reaching halakhic adulthood, is considered to be a full convert. Next week, we will see that this is implied by numerous Acharonim in their discussions regarding converting children who will be raised in non-religious homes.
            Next week, we will conclude our discussion of the conversion of minors and our series on the laws of conversion with a discussion of the conversion of children raised by non-religious parents.