Lesson # 240 (part two) • Laws of the Firstborn Son (Primogeniture)
In the last lesson we concluded with some of the situations where the laws of primogeniture, the special portion to be received by the firstborn son, does not apply. We have a few more of these and then go on to the topic of proof that one is a first born.

A non-Jewish man has a child with a Jewish woman and after he converts has another child, a son (whether or not with the same Jewish woman). This latter son is considered his firstborn for the purposes of primogeniture. The son that the non-Jew has with a Jewish woman is not considered his son according to halacha. The son is considered Jewish because the mother is Jewish, and the father, who was not Jewish at the time the son was born, is not considered related to his son. Thus his first son after he converted born to a Jewish woman is deemed to be his first son for the purposes of primogeniture.

A Jew, Yehuda, fathered a child with a non-Jewish woman; such son is not considered his son. Yehuda thereafter has a son by a Jewish woman. Such latter son is considered a firstborn for primogeniture purposes.

If the firstborn, Reuven, is a bastard, he is considered a firstborn for the purposes of primogeniture. Similarly; if the father Yaakov is a kohen and fathers a son, Reuven, with a woman who is a divorcee; Reuven is considered a firstborn for the purposes of primogeniture. A kohen is not permitted to marry a woman who had previously been divorced. If he fathers a child with such a woman, the child is called a chalal, and is not a kohen, although his father still is (although he loses certain rights and privileges).

Proof that one is a firstborn
The question may arise as to whether Reuven is actually the firstborn. The testimony of witnesses is the highest form of proof as to whether or not Reuven is the firstborn of his father. There may be documentary evidence such as letters of the father, birth records, or writings in a family Bible. The statements of the father made to people may be introduced as evidence if Beth Din deems it proper. If Reuven died and the eulogy referred to him as the firstborn, it may be adequate to so establish him as the firstborn. Beth Din has to decide each case on the facts peculiar to that case.

Absent cogent proof, the following rules are usually followed by Beth Din.

The doctor (or the midwife) who delivered Reuven is believed to state that Reuven is the firstborn of twin boys. He is believed if his statement is made contemporaneously with the birth, that is, until he leaves the delivery room. The mother is believed to state that Reuven is the firstborn of twin boys during the first 7 days after his birth. On the eighth day is the circumcision ceremony and the father takes the son from the mother. The father is always believed if he states that Reuven is his firstborn. He is believed even if he names a person who was not known to be his son that he is his firstborn. Once the father states that Reuven is his firstborn, he may not later state that he is not his firstborn. Conversely the father may state that Reuven is not his firstborn, although everyone thinks that he is.

If the father was a mute, then statements made by him when he was alive using sign language, or writings, or even nodding with his head when asked if Reuven was his firstborn is adequate proof.

In situations where it is not established that Reuven is the firstborn, there must be proof produced that he is the firstborn. For example, one of the sons of the father demands that Reuven prove that he is the firstborn of their father. Perhaps there was a child born before Reuven?

There can be a situation where the firstborn was confused with another son to the point where it cannot be positively decided that Reuven is the firstborn; neither takes the extra portion of a firstborn. There may be a situation where the surviving sons know that Reuven is the oldest son, but it is not known whether there was another child born to the father, Yaakov, prior to the birth of Reuven. If there was, then Reuven is not the firstborn for the purposes of primogeniture. In such a situation, there is a difference in result depending upon the facts of the case. If it was ever known who the firstborn was but because of circumstances it is not now known, then the two sons, Reuven and Shimon, either of whom may be the firstborn, write a power of attorney to each other and take their primogeniture share when inheriting the estate with the other brothers, and then they divide this extra share. If it was never known who is the firstborn, they may not follow the procedure of the prior sentence, and no one receives the primogeniture extra portion of the father's estate.

One does not have to go back to antiquity to find such situations. The Holocaust that occurred just a half century ago left too many people who did not know anything about when they were born, nor who was the oldest or the next oldest within a family.

Assume a situation where a woman has just given birth to a child. She married her current husband, Yaakov; when she was divorced only two months from her prior husband, David. Or her prior husband died two months before she remarried her current husband. (The halacha is that a widow or divorcee cannot marry another man prior to the ninety-first day after the death of her prior husband or the divorce.) Seven months after her marriage to her current husband, Yaakov; she gave birth to Reuven. Reuven can be the child of the first husband and born after nine months from conception, or the son of the current husband after a seven-month gestation period. If her current husband Yaakov is the father then the new baby is the firstborn of the father. Neither Reuven nor a child born to the father after Reuven is deemed a firstborn for the purposes of primogeniture.

The subject matter of this lesson is more fully discussed in volume VIII chapters 273 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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