Navigating the Agunah Crisis: A Shiur By Rabbi Yona Reiss
In a recent shiur with the United We Stand club, Rabbi Yona Reiss, av beis din of the Chicago Rabbinical Council and rosh yeshiva at the Rabbi Isaac Elchanan Theological Seminary, discussed the agunah crisis, its implications and how the Orthodox community can navigate it.
The word “agunah” can mean “chained” or “anchored,” like a ship to the harbor. By unfortunate circumstances, an agunah is a woman who is chained to a past marriage and restricted from halakhically remarrying. This can either be due to the fact that her husband is missing, there are no witnesses to testify to her husband’s death or her husband refuses to grant his wife a get, a halakhic divorce document. The question rabbis are left to deal with is how to navigate this crisis and allow these women to continue on with their lives. As Rabbi Reiss pointed out, some explain that the reason Masechet Gittin (divorce law) follows Kiddushin (marriage law) in the order of Talmudic tractates is that when a marriage reaches its end, we want to allow the woman to get remarried as soon as possible.
Agunot whose husbands died without a witness were common after the 2001 World Trade Center terrorist attacks. It was rare for a witness to be able to testify that they saw a particular person die in the tragedy, and bodies were seldom able to be recovered. If it was known beyond a reasonable doubt that someone was on a floor above the point of impact, or if his body was recovered and identified, then he could be presumed dead. However, even in a case when it was known that someone worked above the 92nd or 76th floor of the north or south towers, respectively, it had to be proven he was at work that day. It seems somewhat pedantic and unnecessary for the halakha to say we have to prove his death with such high standards. Yet, even in modern times, we have seen deaths declared precipitously. This has been especially true after tragedies when authorities sometimes rush to declare a person to be dead when he is actually still alive.
A question arose for the Beth Din of America — a beis din that Rabbi Reiss once served as director of — regarding whether DNA collected from ground zero constituted evidence of death. Halakha calls for a siman, an identifying mark, to be on the body of the man that a person can connect to him. There are three types of simanim: a common siman has no uniqueness (such as height), an intermediate siman which is less common (such as a scar) and an iron-clad siman that has less than 1 in 1,000 commonality. An iron-clad siman is usually considered a certifiable mark, a siman muvhak. In a case such as 9/11 which had more than 3,000 people missing, we need a siman that is less common than one in 3,000 people so that we know only one of the victims had this siman. It seems obvious for DNA to fall under this category; it is unique to every person. However, DNA is not a noticeable feature as it can only be identified in a lab. Does this eliminate it as a halakhic siman?
Rabbi Reiss quoted Rabbi Zalman Nechemia Goldberg who explained that there are two types of simanim of a person: a precise, visible mark or a representation of the whole individual (t’vius ayin). Socially, we recognize people from the latter, what people look like as a whole, not by something specific like their dental records. As such, that type of siman is what is preferred by a beis din. Similarly, as long as DNA is handled properly in the laboratory, it should be accepted. DNA represents a person as a whole, not a specific characteristic.
That was the accepted ruling by the Beth Din of America. However, some poskim rule that DNA could be accepted as a siman, but it is not strong enough to stand alone in testifying to a death and one would also need at least circumstantial evidence. This evidence was commonly found for the victims of 9/11. Moreover, if the death was presumed as probable based on the evidence but not proved, the Rabbi Elazar Me’Vardun derives from the Gemara that after the passing of a significant period of time, two to four years, an agunah is free to remarry. So by the time the widow would usually be ready to remarry, she would not be considered an agunah. In the end, there were no remaining agunot as a result of the 9/11 tragedy.
Some may still think that 9/11 was an unfortunate anomaly and this case is not likely to happen again in modern times. However, it is still happening today. Due to COVID-19, men are dying in hospitals without witnesses being able to see the body before it is buried. The question is whether to trust the death certificates from the hospitals. As noted earlier, sometimes deaths are reported in error. Do death certificates provide a reliable proof of death?
Rabbi Reiss quoted a recent teshuva of Rabbi Yitzchak Stein to provide some clarity. To begin, the Chatam Sofer rules that death certificates are substantial evidence. He lived in the 1800s, when death certificates were much more likely to be in error; this would obviously hold true today when the tools used and protocols the doctors have to follow before pronouncing death have exponentially evolved. Second, the hospital ID can count as a siman muvhak as it is representative of the total person and is rarely mixed up. Third, the call from the hospital to inform the family of the death can count as a testimony (in this case, non-Jews can be accepted as witnesses). This leaves the opposition without much of a counterclaim. The only practical option they have is to dig up the body and double-check. That causes such a disgrace to the body it has to be avoided as much as possible. Moreover, as noted earlier, after two to four years, it will be dismissed anyway.
Unfortunately, there are also cases where the husband refuses to give a get. A beis din is not left with many options here. The case in the Gemara and halakha where the husband is physically coerced to give a get is not a practical option nor generally consistent with the halakha, and a beis din is made up of empathetic and responsible poskim, not mafiosos. Sometimes the best communities can do is shun him and socially persuade him to give the get (as suggested by Rabbeinu Tam).
It is a difficult case that too many rebbeim have to deal with. That is why the Ba”ch and the Maharsha say that one who solves an agunah case is considered to have rebuilt Jerusalem. The batei din of America are left to try to take proactive measures to prevent this from happening. That is why Rabbi Mordechai Willig formulated the halakhic prenup. It creates a legal basis to pressure a husband to pay a fine, and then some, if he does not grant a get. The prenup requires him to appear before the beis din and yield to their ruling. He also agrees to pay for the wife’s cost of living from when she asks for a divorce until he gives her the get, which according to the cost of living index, which most batei din in America follow, is $150 a day. This adds an incentive for the husband to give the get as soon as possible. Rabbi Reiss emphasized that it is “extremely important” for all newlyweds to sign one and encourage their friends to sign one as well.
There are skeptics who propose, why not change how halakha formulates marriage and avoid agunot all together? Rabbi Reiss answers their question by saying it is because we believe in our institution of marriage. We are committed to the kedushah of weddings and the halakhic requirements for a get, and it is with a heavy heart that we tell agunot that there is no other option. To which there is a response of the common phrase, “Where there is a rabbinic will there is a halakhic way.” To which Rabbi Reiss responds, “It is really where there is a halakhic way there is a rabbinic will. We don’t run the show.”
After the shiur, someone asked about the halakhic impetus of afkinhu. Afkinhu appears in the Gemara as a concept that allows the beis din to retroactively nullify the marriage. However, as Rabbi Reiss explained, it can only be used in limited circumstances. Only when a get was already in place or the marriage was a kiddushin b’teus, marriage in error, can afkinhu be used, which were the explicit cases in the Gemara.
So what can we do? For starters, we can sign the halachic prenup (or postnuptial option) and ask our friends to do the same. We can also ask our local rabbis and schools to promote the signing of the prenup. Through organizations like ORA — Organization for the Resolution of Agunot — we can also become advocates to bring about positive change.
Photo Caption: Rabbi Yona Reiss
Photo Credit: Yeshiva University
