The Director of the Beit Midrash: Rav Dr. Amit Kula
Associates in the drafting of the Halachic ruling: Rav Binyamin Holzman, Rav David Brofsky, Rav Daniel Wolff, Rav Isaac Eisner, Rav Meir Nehoray, Rav Amit Kula, Rabbanit Anat Novoslesky, Rav Ronen Neuwirth
We are now witnessing a social trend to integrate people with Intellectual Development Disorder (IDD) into society. This trend represents a decisive step towards social reform, while implementing core Torah values, like “walking in the steps of the Creator.” This principle is embodied in Psalms 34:19 “The Lord is near to the broken-hearted, and He saves those of crushed spirit.” It is a theme that appears in the mitzvoth and in other ordinances, such as “love your neighbor as yourself” and “you may not ignore from your flesh ,” and it is reflected in characterizations of the Torah, like “Its ways are the ways of pleasantness, and all its paths are peace,” and elsewhere. The society we’re living in needs to ensure that these people are integrated into all of aspects of our lives, and that they’re given any support they need to live a normal life that is as meaningful as possible.
Scientific research has paved the way to develop tools that help people suffering from IDD do things they had never been able to do before. The tools markedly improve their cognitive and social functions, and provide them with previously unimaginable opportunities. We believe that this is another step towards the redemption and the healing of the world. The Holy One, Blessed be He, gives us that ability in the form of scientific and medical development, as reflected in the words of Rav Abraham Yitzchak Hacohen Kook:
Man must use his cognitive essence to raise the tilling of the soil from its lowliness. This makes the light of God shine within human science … the Earth shall wrest itself of most of the curse, for wisdom shall redeem it.
One important desire for people with IDD is the ability to get married and live as an independent marital unit, though this independence can’t be absolute. However, we mustn’t ignore the complexities of the issue of marriage between these people, from either a Halachic perspective or a social, ethical or economic perspective. Besides being empathetic to them, we must also address daunting questions, such as: do those with IDD have the tools they need to build a healthy marital system? Would they be happier living together, or would marriage lead to a system rife with ongoing frustration and lacking in shalom bayit – peace of the home – if they can’t have normal marital relationship? What is our moral responsibility toward these people, and what is its extent? What kind of community support do these couples need? Can this be provided to them? What advice should be given to these couples about bearing children? Do the rights and obligation of bringing children into the world and raising them apply to them as well – as we find in the book of Jeremiah, “He did not create it to lay in waste, He formed it to be inhabited”?
The Halachic perspective of this issue is anything but simple. Questions that must be asked here include: How valid is kiddushin performed by someone suffering from IDD? Can the laws of family purity be upheld at home, with all of the responsibilities they entail? Who will provide them with the special kind of instruction they need and the heightened sensitivity this situation requires? What about the possibility of dissolving these marriages through a get, if divorce is necessary, God forbid?
Israeli law hasn’t yet provided a clear solution for these issues, due to their social and moral complexities. Nor can we address all of these questions in the framework of this article, since there are no hard-and-fast rules for these cases. Yet we believe that rabbinic leadership has a duty to deliberate a subject of such profound importance, its sensitivities and complexities notwithstanding. Our rabbinic leaders shouldn’t avoid mapping out halachic, spiritual and moral approaches and presenting appropriate courses of action for the future. This document proposes taking one small step forward. Its authors are aware that the desire of an IDD couple to start a family can only be satisfied under certain conditions, and after achieving the required special arrangements with their living environment. In so many cases, these conditions don’t exist. Therefore, this document should be seen as an introduction to the issue, aimed at raising awareness to this important issue, and not its resolution.
Most Halachic approaches conclude that if someone has IDD yet understands what marriage and marital relations are and can learn and understand the ways of the world, that person’s marriage ceremony is considered valid. Therefore, any IDD couple that fulfills these criteria may be married according to Jewish law. If they divorce, their divorce is also recognized as legally binding. Nevertheless, although Halachah allows marriage to occur, it must be carried out in accordance with the opinions of professionals, who must also accompany the process. Otherwise, these marriages will lead to anguish and ruin, instead of tikkun, vitality, and joy.
Our rabbis did not allow the marriage of a person suffering from an emotional disorder known as shoteh, or “psychotic”, since if this person marries another there is no serious chance that such a marriage will result in a peaceful household. A person who suffers from IDD isn’t deemed a shoteh, as we’ll elaborate later in the article. However, if this person doesn’t have the basic ability of running a household that will be peaceful, we should not encourage the marriage. Our moral responsibility requires us to allow people with such disabilities to marry only if they have the tools they need to build a healthy marital relationship.
According to the experts in the field, in order to create a marital relationship, you must first be able to have a conversation. The ability to interact is highly crucial for any marital relationship to succeed. Without it, the relationship is doomed to failure. Another indispensable prerequisite is the ability to understand social situations. Someone who suffers from a disorder that disconnects him or her from social relationships may suffer from marriage, and may cause emotional hardship to his or her spouse. Most importantly, you need basic independence – without independence, the potential of a marriage to succeed is slim.
In summary, someone with an intellectual deficiency that wishes to get married necessarily faces difficult and unique challenges, so we should only support such marriages if the couple has the right tools to meet these challenges, and if they are being supported by the right professionals. Any support from existing communities that can support an IDD couple can prove pivotal to the success of their relationship. Those communities and their leadership should put this issue on their community agendas. We find a precedent in a mishnah that discusses the daughter of a priest, or the wife of a priest, who is physically or mentally challenged:
In the case of a deaf, ashoteh,, a blind or an insane woman, if other women of sound senses are available, they attend to her and she may then eat terumah.
Thus, a challenged woman’s friends must help her purify herself so that she can eat the terumah fruit. If society and communities throughout Israel support IDD couples that have decided to marry and stay at their side, a breakthrough can occur, and we may be able to advance society.
In an article published by the Beit Midrash, entitled “A community bar mitzvah for a mentally handicapped child”, we expanded upon the halachic limitations associated with someone who suffers from IDD. According to most poskim, the appropriate halachic category for these people is peti (“simple-minded”), and this also appears in the writings of Maimonides:
The extremely simple-minded who do not recognize things which contradict one another and who do not comprehend the particulars of a situation as do the rest of the masses; and also those whose thought processes show confusion and disinhibition, as well as those who are extremely bewildered are included among the shotim. This matter should be determined in accordance with the dayyan’s sense of judgment, since this information can’t be written in a book [rather, it is up to the dayyan to make a judgment call].
According to some approaches, the peti category only applies to halachot concerning testimony, whereas one who suffers from IDD may be considered of sound mind (pikeach) for the purposes of property law, marriage and divorce, if that person understands the matter at hand. Furthermore, according to the Chatam Sofer, who posits that the shoteh and the peti are treated identically for all other halachic matters: “Any peti who is still of sound mind is considered pikeach”. In other words, anyone with even the slightest discernible clear thoughts is treated as a pikeach. In the article published by the Beit Midrash on celebrating the bar mitzvah of a mentally-impaired 13-year-old boy, we expanded upon the extent to which the boy is required to perform mitzvot, and whether the boy can fulfill others’ obligations. We’ll now try to assess the legal-halachic status of actions performed by an individual with IDD for the cases of marriage and divorce.
A. The marriage of a shoteh
The Gemara states that the Jewish sages allowed deaf people to marry, but did not allow shotim to do so, since “man doesn’t coexist with snakes.” Rashi explains that “no peace exists between them”, and Maimonides made his ruling accordingly:
The sages did not institute the requirement of a ketubah in the case of a female shoteh or a deaf woman. They didn’t permit the marriage of a shoteh in any case, and even though deaf women can marry, according to the sages, they did not institute a ketubah so that people wouldn’t avoid marrying them.
The Shulchan Aruch ruled in the same spirit, stating that:
A male or female shoteh can’t become betrothed, and their betrothal isn’t recognized by either the Torah or the rabbis, whether with another person like them, or a competent person (pikeach).
Based on these approaches, we conclude that the marriage of a man or woman considered shotim does not carry any halachic validity. However, we must also investigate the case of a person who suffers from an intellectual development disorder, yet is of sound mind, and is thus considered a peti, and not a shoteh.
Rabbenu Yerucham wrote, in the name of the Ramah, the following:
Whoever is of sound mind and fully understands matters, even though his mental capacity may be severely impaired, can enter into a completely valid marriage and be properly divorced. If that person’s thought processes are impaired and the individual does not fully understand anything, that person is considered a shoteh, and the person’s marriage would not be considered fully valid.
Moshe Isserles agrees with Rabbenu Yerucham’s ruling, but he added that it would seem that these kiddushin are kiddushei safek (a marriage of dubious halachic validity):
It is particularly the case of a complete shoteh that is disqualified, but if a person has clear thoughts, even though he is very simple-minded, or an shoteh at times and of sound mind at other times, and we don’t know if, at the time [that he performs kiddushin], he is of sound mind, the kiddushin is cast in doubt.
Most of the achronim agree that R. Isserles’ writings contain a typographical error, and that he intended to rule as R. Yerucham did – namely, that the kiddushin are considered valid. However, there are those poskim who contend that R. Isserles’ opinion should be understood at face value. This is what the Atzei Arazim claimed – that R. Isserles, who was wary of Maimonides’ words, i.e., that the “extremely simple-minded people” (peta’im) with severe mental impairment are treated like shotim [and this is why he wrote kiddushin]. The Divrei Malchi’el Responsa also interpreted R. Isserles’ ruling at face value, explaining that R. Yerucham’s ruling is only valid in the case of one who completely understands the matter (of marriage), whereas if this person’s mental capacity is impaired, and we can’t be sure how much he or she understands, the marriage is considered no more than kiddushei safek. In summary, based on most opinions, R. Isserles follows R. Yerucham’s ruling, i.e. that the marriage is halachically valid. This is what the Aruch Hashulchan states in the same context:
They had good reason to consider the marriage of deaf people valid, since they have some measure of knowledge, and there can be peace in their homes, but in the case of shotim, who have no knowledge whatsoever, why would they allow them to marry? … therefore, particularly for the case of complete imbeciles who have no knowledge and run amok in the markets and streets … but if a person is of sound mind, even if his mental capacity is impaired, his marriage is valid.
B. The knowledge test for marriage
We’ve seen that someone whose mental capacity is impaired, can marry and divorce. If so, how do we measure the degree to which the person’s mental capacity is impaired?
1. The IQ Testing Method
The Chatam Sofer, in his discussion of the status of a peti who gave a get, defined a peti’s measure of knowledge as the basic IQ associated with a person’s cognitive abilities:
Anyone whose mental capacity is impaired should at least have clear thoughts, even though we know that this person isn’t acting foolishly … in any case, this person doesn’t understand contrasting matters, and the Torah disqualifies him in all respects, and he is likened to a deaf man, as elaborated by our sages… in any case, the simple-minded are worse than deaf people, however, they aren’t disqualified simply for lacking knowledge, if they don’t display any insane behavior at all, and therefore, when we feel that they have some measure of knowledge, their actions are legally binding and they are treated like competent people.
The Chatam Sofer contends that in light of the above, the case of the peti – which was likened to that of a deaf person – was not mentioned in the Gemara.
Here, too, the law pertaining to the peta’im is not mentioned, since peta’im are considered deaf people in this case.
After reviewing the Chatam Sofer’s opinion, it follows that even if a person does not possess basic knowledge, yet does not suffer from psychosis, that person is treated like a deaf person, and the sages allow him or her to marry. In contrast, the Torah itself allows one with a minimal IQ that allows him to understand worldly matters to marry. R. Moshe Feinstein says the following:
Here, in the case of a woman with the intelligence of a six-year-old girl, this doesn’t disqualify her, since she isn’t a shotah, but rather a pati’ah beyoter (very simple-minded woman), and in any case, she understands the matter of marriage. She is therefore betrothed, since the very simple-minded people are treated like competent people, as stated in the Even Ha’ezer: if the person is of sound mind, even though his mind is very impaired, the woman is betrothed.
Therefore, if kiddushin had taken place, the bride is considered to have been sanctified. Similarly, the Oneg Yom Tov Responsa says the following:
Anyone who divorces his wife must understand that the get he gives her is what puts the divorce into effect, and it is the get that separates him from his wife. However, if we can’t explain this to him, or if we only explain to him that if he divorces his wife, she will not be his wife anymore, and the person knows that someone who doesn’t want his wife to be his wife anymore gives his wife a get, and that when the husband and wife are living together, he doesn’t give her a get, and that he only gives her a get after they have separated – but he doesn’t understand that the get is what releases her in the general sense, and can’t distinguish between a get given to make her permissible to anyone else, or a get that’s given as part of a tradition, i.e. a document one gives to his wife when he no longer wants to be married to her – this get has no validity… however, once we explain to him the meaning of the matter, and once he knows that after giving the get she is separated from him and will no longer be his wife, and that the get causes her not to be his wife anymore, it seems that we don’t necessarily need to investigate his condition at the moment he orders the sofer to write the get [it is sufficient that we investigated him earlier].
Accordingly, the poskim mentioned are aware of the required level of knowledge, but our investigation deals mostly with someone that, accordingly to a professional assessment, can understand the meaning of marriage and a marital relationship, despite his mental impairment. Therefore, this type of person clearly meets the knowledge requirement, and may marry.
2. Measuring the Ability to Learn
We can define the measure of knowledge as the ability to learn. Someone who is mentally impaired but capable of learning and understanding marital relations can marry with halachic recognition. This approach is supported in the Maharit’s response on defining the actions of a peti:
However, if we approach him to conduct business negotiations or to deal with marriage or divorce, and explain the matter to him, and he understands, and we can discern that he has recognized such matters, he isn’t considered a shoteh, but rather, a pikeach, in anything he does in front of us while he is of sound mind.
In other words, learning and understanding the matters of kiddushin can also give halachic validity to marriage. Likewise, R. Moshe Feinstein ruled to release a woman from her status as an agunah to a man with a mental impairment:
Since he hasn’t performed an act of foolishness, it is enough to have explained the matter to him and that he has understood to ensure that he is considered pikeach for matters of property, and the same applies to marriage, divorce, and chalitzah, even though he is very simple-minded, if, regardless of his state, the matter is explained to him, and he understands.
According to this approach, even if the man has a very low IQ, but we have the professional or pedagogical tools we need to teach him the nature of marriage, if this man learns the meaning of marital relations, his kiddushin will be considered valid mide’orayta (as a matter of Torah law). Professional institutes that care for people suffering from IDD are another tool we can use to accord halachic validity to these marriages.
To summarize – even though the Torah itself does not consider the marriage of a deaf person to be valid, our sages allowed such marriages to occur, since the deaf can maintain peace at home. The sages did not allow a shoteh to marry because shotim aren’t likely to maintain peace at home when married. One suffering from IDD is considered a peti, and not a shoteh, by halachah. According to most poskim, if someone can understand the essence of marriage and marital relations, he doesn’t even carry the status of peti, hence that person’s marriage is considered valid mide’orayta. The same rules apply to chalitzah and divorce. Even if we doubt the cognitive abilities of someone who is mentally impaired, his case won’t be treated more severely than that of a deaf person, and therefore, his kiddushin will at least have halachic validity mide’erabanan (by Rabbinic law).
In the beginning of this article, we wrote that we should only support the marriage of people with mental impairment if they have the right tools to maintain healthy marital relationships. This requirement would also satisfy the halachic condition of requiring knowledge. Both the marriage and the divorce of anyone with these tools will be recognized by halachah and will carry validity for all practical purposes.