A Solomonic Determination
In light of the rare non-coincidence of Miketz and Hanukka we will read the almost always preempted Haftara for this week’s portion – which includes the well-known episode of Solomon’s judgment in the case of maternal identity. Rabbi J. David Bleich discussed this passage from I Kings in his “Survey of Recent Halakhic Literature” (Fall 2023: available to subscribers here) in the context of this episode at an Israeli hospital. We bring this excerpt from his article, “Horton Hatches the Egg, Who Raises the Chick?: Maternal Identity, Custody, and the Israeli Courts.”
“The Judgement of Solomon” by Gaspar de Crayer, c. 1620 (The Royal Museum of Fine Arts, Antwerp)
There is one solution that certainly cannot be entertained. As is recorded in I Kings 3:23-28, King Solomon was confronted by a comparable dilemma involving conflicting maternal claims presented by two women. Each woman had given birth to a child but one of the two children died shortly after birth. Each of the women claimed to be the mother of the surviving child. Solomon drew his sword and disingenuously announced that he would split the baby in two and give one half of the child to each putative mother. One of the women refused the settlement and withdrew her claim so that the child’s life would be spared. King Solomon immediately declared that woman to be the true mother because a mother will always seek the preservation of her child over pursuit of her own gratification.
The modern-day counterpart of that solution might be to award joint custody to both women with the child alternating between living with each of the two claimants. Joint custody or co-parenting of an infant, even if feasible, is hardly an optimal solution, particularly with regard to a neonate. The Solomonic solution would be to anticipate that one of the women, whatever her rights might be, would recognize that such an arrangement does not represent the best interest of the child and would renounce her claim to custody out of concern for the welfare of the child. That woman might be adjudged to be the more fitting of the two to serve in the role of custodial parent of the child.
However, a Solomonic decision – ingenious as it was – once announced, is no longer a viable solution. By its very nature, it was only a one-time remedy. A woman who has even a passing familiarity with I Kings 3:23-28 – or whose advocate possesses such familiarity – might well adopt such a posture as a ploy to prompt the bet din to draw an empirical inference from her plea. That awareness defeats any ostensive evidentiary value her plea might otherwise have.
But more significantly, King Solomon’s resolution of the dilemma rests upon the presumption that the compassion of a mother is far greater than the compassion of a stranger and would overpower any conflicting self-serving interest. That is simply reflective of the enormously intense emotional bonds that exist between a mother and her child. Those emotions do not exist between a woman and someone else’s progeny. Were it possible for two women jointly to give birth to a single child it might well be anticipated that both would experience the emotional attachment of motherhood and both would be equally self-sacrificing. If, out of concern for the welfare of the child, both women were subsequently to renounce claims of custody, the solution would turn out to be no solution at all. In surrogacy, one woman is a biological mother and the other a birth mother but, to coin a term, both women are “emotional mothers.” Both women are likely to be concerned primarily for the welfare of the child.
The fact that King Solomon’s test might not be dispositive demonstrates the heart-wrenching nature of the dilemma. Whatever decision a bet din reaches will bring joy to one of the parties but not to the bet din. The anguish of the losing mother will – and should – be a source of pain to the members of the bet din. Unfortunately, at times, a bet din must ignore its own empathetic anguish and render judgment in accordance with facts and principles.
Rabbi J. David Blech has authored TRADITION’s “Survey of Recent Halakhic Literature” for over five decades.