Responsum: On a Formerly Enslaved Woman and Her Son

Question: You asked: One who had relations with his maidservant, and she became pregnant and gave birth to a son, and they brought him to the synagogue to circumcise him, and the community said to him that they would not circumcise him until he told them whose son he was, and he admitted to some of them that the child was his son, and that she [i.e., the slave] became pregnant by him, and they circumcised him. Subsequently, he emancipated the maidservant and arranged for her immersion in a ritual bath [for conversion], and then he died without children from the wife whom he had married. This man had three brothers, and one of them hastily performed levirate marriage with his [deceased] brother’s wife and claimed that the son of the maidservant is a slave because he was born before her conversion and her immersion occurred without a marriage contract or betrothal. But his brothers argued that the wife of the deceased was not bound to him for the purposes of levirate marriage whatsoever, and that the son born to him [the deceased brother] from the maidservant exempted her [from levirate marriage].

Answer: This is our perspective on the matter: One who had relations with his maidservant and she gave birth, as a matter of strict law, the son does not exempt his brother’s wife from levirate marriage, for we learned in a mishnah: “One who has a son of any kind exempts his brother’s wife from levirate marriage, and [that son] is liable for hitting and cursing [his father]. He is his son for all purposes, except for one to whom a son was born from a maidservant or non-Jewish woman” [m. Yevamot 2:5].

However, there exists a debate among the late geonim, and the essence is: Bustanay the exilarch, the [progeny of] Haninay, had sexual relations with his maidservant, the daughter of Kensari [i.e., Khosrow II] the king of Persia, whom Umar ibn Khaṭṭāb, king of the Ishmaelites, had given him as a present, and she gave birth to a son, and [Bustanay] died. His brothers sought to sell him [i.e., the boy] as a slave. The sages of the academies debated this matter. Some said: As long as he has not been emancipated, he remains a slave and requires emancipation by his brothers. But Mar Rav Ḥaninay, the Judge of the Gates, wrote a deed of emancipation for that maidservant. And others said: Bustanay was a prince of the house of David and had the ability to emancipate her; had he not emancipated her, he would not have had sexual relations with her, since the School of Hillel holds that nobody makes his acts of sexual relations acts of harlotry [b. Gittin 81b], how much more so a prince of the house of David. And Bustanay had a number of sons from wives who were fit [i.e., not slaves], and his wife did not need to be released from levirate marriage. So the rabbis decreed on his behalf and said: [The son] should be considered emancipated and permitted to marry within the congregation [of Israel]. And they counted him in the lineage of Bustanay. There was nevertheless protest about this, though it died down. His son is still not reckoned among the other sons of Bustanay. In all such cases, the rabbis never permitted [such a child] to be sold [into slavery], and he was never deemed to be a slave, but he is granted the status of a free man. R. Eleazar, the aluf, of Spain, posed this very question to R. Paltoy and R. Natronay, geonim of blessed memory, and they equated him with a free man. The law is thus, even though he is not considered to be his son.

As for the emancipation of the mother after his birth, it is plain that she was not emancipated when this son was born, but the legal presumption is that she was his mother, and that he emancipated her on account of the fact that he had had sexual relations with her, and she gave birth to her son. All the more so, then, that he does not have the status of a slave and may not be sold. Had this brother not acted hastily and performed levirate marriage, it would have been better to have acted stringently by requiring him to release her [from the bond of levirate marriage] by way of ḥalitsah. However, now that he has performed levirate marriage, he has acquired her, and we do not remove her from his jurisdiction. And even though this son may not be sold and is emancipated with his mother, he cannot inherit from the deceased, for we learned in a mishnah: “He is his son for all purposes,” and it is stated: “For what purpose? For inheriting him and [if he is a priest] coming into contact with the impurity of a corpse on his account”—and in regard to that the Mishnah teaches: “Except for one born from a maidservant or a non-Jewish woman” [m. Yevamot 2:5].