Baby play is serious stuff / Parshat Ekev

As the world giddily awaits the birth of the youngest heir to the British throne, a child that will enter the world and grow up in storybook fashion, so too do we watch the torturous and heartbreaking case of Baby Veronica. There are so many complex and perplexing issues that surround fertility, childbirth, and parenthood. Here is NPR’s synopsis of the case:

Before Veronica was born, [biological father Dusten] Brown had given up his parental rights, but he began seeking full custody of his daughter after finding out that she had been put up for adoption. In 2011, the South Carolina court ruled that under the ICWA — which was enacted in 1978 to prevent the separation of Native American children from their biological families and tribes — the Capobiancos [Veronica’s adoptive parents since birth] had to turn Veronica over to her biological father. But in June, the U.S. Supreme Court ruled that Brown could not claim parental rights under ICWA because he "abandoned the [American] Indian child before birth and never had custody of the child."[1]

Thus Veronica returns to the parents who had raised her since birth, from the beginning, and will continue to have a relationship with her biological mother, Christy Maldonado, under the terms of the open adoption. This case was complicated by the fact that although Dusten Brown, the child’s biological father, is registered with the Cherokee Nation as a Native American, he has been described as being 2% Cherokee — yet any degree is sufficient to register. In 1978, the Indian Child Welfare Act (ICWA) was passed to "promote the stability and security of Indian tribes and Indian families by the establishment of minimum federal standards to prevent the arbitrary removal of Indian children from their families and tribes and to ensure that measures which prevent the breakup of Indian families are followed in child custody proceedings."

Torah, in this week’s parashah, Ekev, acknowledges fertility as a blessing that results from Israel’s loyalty to God and faithfulness to her covenant with God. In other words, it’s conditional. In this case, I provide the Hebrew as well as a translation because a peculiarity in the Hebrew leads to a most interesting story in the Talmud.

And if you do obey these rules and observe them carefully, the Lord your God will maintain faithfully for you the covenant that He made on oath with your fathers: he will favor you and bless you and multiply you; He will bless the issue of your [masculine singular] belly (p’ri bitnkha) and the produce of your soil, your new grain and wine and oil, the calving of your herd and the lambing of your flock, in the land that He swore to your fathers to assign to you. (Deuteronomy 7:12-13)

The peculiarity occurs in verse 13 where “your womb… your soil… your new grain and wine and oil… your herd… your flock” are all couched in the masculine singular possessive form. This means that, “He will bless the issue of your womb,” is couched in the masculine singular possessive. How can that be? Only women have wombs. It is clear from context that Moses speaks to the people as one; his words are addressed to the entire nation as an aggregate. This anomaly leads to a story in the Bavli (Babylonian Talmud) in which someone named Ulla (itself a marvelous gender joke: Ulla is a man) travels from the Land of Israel to Babylonian and finds himself a guest in the home of R. Nachman, where it is customary to pass a cup of wine called the Cup of Blessing around the table after the final blessings after eating so each person present can call upon the blessing he or she wants. In one swift and nasty move, Ulla redefines fertility as a divine blessing given only to men (based on the masculine singular possessive in our verse above) and then reduces the scope of the Cup of Blessing to fertility alone. Hence, women can be entirely excluded from the Cup of Blessing. Yalta, the wife of R. Nachman, is not pleased, nor is she passive. The consequences are not pretty. Here’s the story:

Ulla once happened to be a guest at R. Nachman’s house. He ate a meal, led the grace after meals, and passed the Cup of Blessing to R. Nachman. R. Nachman said to him: Please pass the Cup of Blessing (kasa d’virkhata דברכתא כסא) to Yalta. He [Ulla] replied: This is what R. Yochanan [ben Nappacha] said: “The issue of a woman’s belly (bitna בטנה) is blessed only through the issue of a man’s belly (bitno בטנו) as Scripture says: He will bless the issue of your [masculine singular] belly (p’ri bitnkha) (Deuteronomy 7:13). It does not say “her belly” but rather “your belly.” So too a baraita teaches: R. Natan said: Where is the prooftext in Scripture that the issue of a woman’s belly is blessed only through the issue of a man’s belly? As Scripture says, He will bless the issue of your [masculine singular] belly (p’ri biknkha). It does not say “her belly” but rather “your belly.” When Yalta heard this, she got up furiously angry, went to the wine storeroom, and smashed 400 jars of wine. R. Nachman said to Ulla: Please send her another cup. He [Ulla] sent it [with this message]: All of this is a goblet of blessing (navga d’virkhata).” She sent [this reply]: From travelers come tall tales and from rag pickers lice.” (Berakhot 51b)

Ulla refuses to pass the Cup of Blessing to Yalta because he claims that her ability to bear children derives not from her fertility; it is all about her husband, and only he need receive the Cup of Blessing. Yalta’s point is clear and dramatic: if blessings come from the cup of wine, how many can she deny the men by smashing 400 jars of wine?

Ulla’s attempt to define Yalta out of the process of blessing and fertility and childbirth came to mind when I learned that Baby Veronica was torn away from her adoptive parents — the only parents she had ever known — because of a law that defines her as Native American and despite her father having signed away all rights to her. I have the utmost respect for the aim of the Indian Child Welfare Act, supported by a sensitivity born of the controversial baptisms of Jewish children during the Holocaust, which continues to be a controversial concern. But I know too that the ICWA was designed to benefit and protect children, not wrench them from loving parents after a proper legal process has been followed.

There is a conflict of interest in many court cases: Parents come to court to seek what they understand to be their rights. The courts are tasked with protecting the welfare of children. An article published in Pediatrics, the journal of the American Academy of Pediatrics, explains it this way:

Child protection cases are under the jurisdiction of juvenile or family court under the parens patriae role of the court, the state’s interest in and responsibility for the well-being of all children in the state. The state, recognizing that the parens patriae role conflicts with common law reflecting children as chattel (personal property) of their parents, will exercise its authority with caution. Although no state now recognizes parental ownership and unrestricted control of children, each state is committed to protecting a family’s autonomy and privacy and the parents’ right to decide how to raise their children. (Pediatrics Vol. 104 No. 5 November 1, 1999
pp. 1145 -1148)

Children are a blessing (the greatest blessing most of us will ever know) but they are not chattel, to be transferred and traded by adults. A society’s decency and justice can be measured by how it treats its most vulnerable members. Our children are the most vulnerable members of our society. The welfare of children must be made paramount. South Carolina's Supreme Court is to be applauded for doing just that.

© Rabbi Amy Scheinerman

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[1] http://www.npr.org/blogs/codeswitch/2013/07/18/203288653/s-c-high-court-moves-to-end-saga-of-baby-veronica