Unpacking the Iggerot: Aiding Agunot
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Aiding Agunot: From the Holocaust to the Modern Day / Iggerot Moshe, E.H., vol. 1, #43
Summarizing the Iggerot
The year was 1947, and Jew’s around the world were still in the midst of processing the incomprehensible scale of the Holocaust. In addition to the sheer grief, they begin to realize that there were halakhic ramifications that needed to be reckoned with. One of the most critical elements of the religious fallout was the countless women whose husbands were sent off to the death camps, like Auschwitz, and were never heard from again. The halakhic stakes could not be higher: If a woman remarries and bears children, only for her husband to subsequently reappear, her second “marriage” would be deemed halakhically adulterous, and her offspring would be rendered mamzerim, and forbidden from marrying almost any other Jew. R. Feinstein opens up his landmark responsum by writing:
And behold, it seems appropriate, in my humble opinion, to adjudicate this matter in a novel way—which is compelling in my eyes. And if my colleagues will concur with this [in order] to free [these women] from the chains of iggun, just as our Sages were very concerned with [accomplishing]. Heaven forfend that we be stringent on this matter, for it will lead to a leniency of licentiousness. And see that which is written in the Or Zarua (#693) that even in their times they were concerned for this, and certainly [it applies] in our generation. And God help us that we not falter in this matter of halakha.
After establishing the necessity for leniency—both to help the Holocaust survivors and to prevent them from resorting to forbidden alternatives—R. Feinstein proceeds to make his halakhic case. A matter of this gravity requires a sophisticated and extensive analysis, both to justify it on technical grounds, as well as to allay the concerns of those who have their doubts about its legitimacy. Since this responsum is of the lengthier variety, we will suffice with distilling R. Feinstein’s key arguments.
He initially cites a comment of Rabbeinu Yeruham (Netiv 24, vol. 3, and cited by Korban Netanel) which produces a variant reading of a passage in the Jerusalem Talmud to say that an invading army is analogous to bandits—and that should they conquer a city we will assume that all of the inhabitants were slaughtered (be-hezkat meitim).
While the Talmud established that an individual who is lost at sea cannot be presumed dead without some form of independent corroboration, it should be noted that this requirement was a Rabbinical stricture; on a purely Biblical level, a man lost at sea can be presumed dead. R. Feinstein then explains that while the Sages instituted this higher standard of proof for an individual lost at sea, according to Rebbeinu Yeruham, they did not impose such a hardship upon a community that finds themselves is such dire circumstances. Therefore, inhabitants of a city conquered by marauders are presumed dead, and, likewise, those who were brought into the Nazi death camps are presumed to have perished as well, with no need for additional corroboration.
R. Feinstein anticipates that his colleagues might not be persuaded by his distinction between an individual and a community as a means to separate the scenarios of a conquered city or Nazi death camp from a person shipwrecked. He argues that even if we concede that distinction, R. Eliyahu of Verdun (cited by the Mordechai at the end of Yevamot) maintains that an individual lost at sea can be presumed dead after a sufficient amount of time without any sign of life. Even if the conquered city or Nazi death camp are analogous to a man lost at sea, they would still be subject to the same limitations, thereby enabling the women to remarry after sufficient time (albeit he does not specify a precise amount of time).
Moreover, nowadays, with the development of international mailing systems (he was writing in 1947), we can assume that if the man were still alive he would have found a way to contact his family (see Responsa Hatam Sofer, #48). Therefore, it is immaterial whether the missing person is well-known or not, as we need not rely on word of mouth. The absence of contact after significant time is sufficient to establish the husband’s demise.
With the aforementioned considerations (and much extensive analysis that we glossed over), R. Feinstein concludes that the women whose husbands were sent to the death camps may remarry: “This is correct, in my humble opinion, as a matter of practice, to not render countless daughters of Israel to be agunot, and to not prevent [the mitzva] of be fruitful and multiply, and so that they not turn toward licentious [outlets].”
Connecting the Iggerot
Similar themes appear in a responsum written the following year (E.H., vol. 1, #41; cf. E.H., vol. 4, #58), in which R. Feinstein concludes “this is what appears correct in my humble opinion regarding this extremely serious matter, as long as more gedolei hora’a concurs that there is room to permit her.” R. Feinstein was known to be an exceedingly humble person while at the same time, he was fiercely independent when it came to rendering psak. The repeated deference to his colleagues is uncharacteristic and I would conjecture it is due to a combination of three considerations.
First, both of these responsa were written in the 1940s; while not a young man, he was still not as firmly recognized as the halakhic arbiter of the generation. Second is the immense gravity of the subject matter. On the one hand, he can save countless women from a life of misery. But, should his analysis prove faulty, the consequences are adultery and mamzerut could hardly be higher. Finally, even if R. Feinstein was convinced that he was correct, such a ruling requires broader sociological buy-in. If a woman wants to marry someone else and says that she relies on R. Feinstein, but the general population does not, would result in a more limited pool of potential spouses.
After resolving the fallout from the post-Holocaust aguna crisis, much of his subsequent responsa focus on the form of iggun more common in our day in which one side, typically the husband, refuses to grant (or accept) the divorce. To solve these highly contentious issues, we find that R. Feinstein makes use of several options in his halakhic arsenal.
In 1951, he ruled that a man who is incapable of fathering a child possesses a categorical defect vis-à-vis marriage and that the couple’s union could thereby be dissolved retroactively (E.H., vol. 1, #79). This is known as a kiddushei ta’ut, which is similar to the concept of a mekah ta’ut, in which a sale under false pretenses is considered to have never occurred since it lacks a meeting of the minds.
A few years later (1955), he similarly rules that a man who concealed a serious mental illness also met the threshold of kiddushei ta’ut (E.H., vol. 1, #80; cf. E.H., vol. 3, #46). It is notable that several times throughout these responsa he reiterates that “since this is a matter of an aguna, for which our Sages sought to rectify, I am compelled to research this matter—even though, who am I to rule on such serious matters.”
Following the same methodology, R. Feinstein rules that a man who concealed his heretical convictions from his wife could constitute grounds for kiddushei ta’ut (E.H., vol. 4, #83). However, this is only if the woman, upon being informed about this, desires to end the marriage immediately. That is because kiddushei ta’ut is not about making a moral assessment of the man’s character, but whether such a woman, had she known about it at the time of the marriage, would not have declined to enter into matrimony. One of the most iconic instances that he employs kiddushei ta’ut regards a woman who discovers that her husband is attracted to men. Depending whether it is an occasional temptation or his primary preference would be key to determining whether it meets the qualifications for declaring the marriage retroactively void (E.H., vol. 4, #113).
Another form of recourse in the rabbinic tool box is the heter me’ah rabbanim, a mechanism which releases the man to remarry should his wife refuse the divorce. Biblically, a man can unilaterally divorce his wife, while the woman cannot divorce her husband (Shulhan Arukh, E.H. 119:6). If for some reason the man is unable to execute the divorce, he can simply marry another woman without legal consequence, as having more than one wife is biblically permitted to him. However, Rabbenu Gershom (c.1000 CE) declared a banned polygamy as well as prohibiting divorcing a wife against her will. The built-in loophole is the heter me’ah rabbonim, while rarely employed, enables the man to marry a second wife.
R. Feinstein rules (H.M., vol. 2, #9 and Y.D., vol. 4, #15) in cases when the wife remains intransigent, the husband can put the divorce document and required funds in escrow while using the heter me,ah rabbanim in the meantime to remarry. He emphasized that the heter me’ah rabbanim “is not a dispensation to leave the woman an aguna.” It may only be used in the event that the man, as determined by the court, has met his personal obligations (Mesorat Moshe, vol. 1, p. 442).
The glaring inadequacy of the heter me’ah rabbanim is, of course, its inability to help a woman who finds herself in a similar predicament. However, there may yet be additional forms of recourse at R. Feinstein’s disposal. While he writes, that “in general, there is no practical way to force [a divorce] nowadays” (E.H., vol. 3, #43), he does entertain whether the threat of incarceration could be used (Mesorat Moshe, vol. 1, p. 440). R. Feinstein also considers whether the children of the recalcitrant husband can threaten to cut off all ties as a means of pressuring him into submitting the divorce (Mesorat Moshe, vol. 5, p. 220). Also considered is whether methods of deceit can be utilized, such as another woman feigning interest in the man and expressing that she would only continue dating him if he was halakhically divorced. R. Feinstein remarked that such a ruse could work in principle, but he doubted the feasibility of arranging in reality (Mesorat Moshe, vol. 1, p. 429).
R. Feinstein also approved of the well-established stricture preventing a man from being called up to the Torah (Mesorat Moshe, vol. 1, p. 440), which is consonant with his responsa on using financial means for attaining the husband’s cooperation. In Iggerot Moshe (E.H., vol, 3, #44), he writes that the husband need not give the get out of a sense or moral duty, but even doing so to avoid financial penalties from the court would be sufficient. He elucidates that while a forced divorce is ineffective, in this case, he is seeking to alleviate the monetary pressure and the divorce is just the extrinsic means for achieving it.
He further explains that “this does not constitute coercion as his desire for money is greater than his desire to withhold a get. And it is a common occurrence in all parts of the Jewish people, that husbands are bribed to give a get” (E.H., vol. 4, #106). While outright seizing the man’s assets and holding it ransom for the get would constitute coercion, he is comfortable considering the option for incarceration to extract the document, as mentioned before. R. Feinstein adds a final important point at the end of the responsum:
Until she is divorced from her husband, he is legally obligated to provide for her sustenance and all of her [living] needs. And she is permitted to go to the non-Jewish court system to force him to provide her sustenance and [living] needs.
Not only would the man be required to provide the aguna with the means she needs to survive but in a short, yet consequential responsum (E.H., vol. 4, #107), he even authorizes an additional stipulation in the tenaim documents that the husband will be penalized if he unilaterally refuses to issue a get.
Reception of the Iggerot
R. Feinstein’s willingness to employ financial pressures against a recalcitrant husband served as a precursor to the The Halakhic Prenuptial Agreement by the Beth Din of America. Rabbi Yona Reiss (September 1, 2024) writes:
Along these lines, Rav Moshe Feinstein zt”l approved a pre-nuptial agreement, which he proposed be incorporated into the standard Tenaim document, which states that both the husband and the wife agree that in the event either party requests a Get, both parties agree to appear before a named Beth Din, and in the event that the Beth Din rules that a Get should be given and accepted, the parties must acquiesce to the ruling of the Beth Din [Igros Moshe EH 4:107]. Rav Moshe added that the great advantage of this agreement was that it would be respected by the secular courts as a binding arbitration agreement to appear before Beth Din, and is thus capable of enforcement. This type of compulsion does not lead to a coerced Get, because the husband is only being coerced to appear before Beth Din, which is perfectly legitimate according to Jewish law.
There are two mitigating factors worthy of consideration. First, not all concurred with R. Feinstein’s opinion on the matter (e.g., see Teshuvot ve-Hanhagot, vol. 1, #781and Petihat ha-Iggerot, p. 618). Second, R. Feinstein’s own ruling does not automatically map on to the Beth Din of America’s proposal. In the very responsum they cite, R. Feinstein cautions that such a stipulation may only be integrated if it will not be a cause of tension between the engaged couple. (To address that concern, the Organization for Resolution of Agunot in conjunction with the Beth Din of America attempts to socially normalize the signing of their prenuptial agreement.) However, there is an important line from a responsum cited earlier (H.M., vol. 2, #9) in which he writes “nowadays, while there is no power to collect from the husband, certainly the get can be withheld.” R. Feinstein acknowledges that the get can be withheld as a bargaining chip, which is something that the authors of the Halakhic Prenuptial Agreement categorically oppose. While he authorizes it vis-à-vis a woman who wishes to withhold the get, he does not qualify that it would be inappropriate if the tables were turned. From a purely descriptive level, R. Feinstein’s responsa can selectively support the Beth Din of America’s prenuptial agreement, but other aspects of his responsa raise questions as to how closely they would be aligned.
Reflecting on the Iggerot
There is a recurring question throughout our journeys in R. Feinstein’s literature about the relationship between his own written word versus his reported practice. Earlier, we noted a responsum in which he indicated that coercing a get would be both halakhically and practically unfeasible nowadays. However, in an account recorded in Darkhei Moshe, he instructed four yeshiva students to pin down a recalcitrant husband until he would acquiesce. Reportedly, his father, R. Dovid Feinstein, even had a man put in wet cement and beaten within an inch of his life (vol. 2, pp. 268–269).
The veracity of these accounts notwithstanding, an undeniable hallmark of R. Feinstein’s writings is his compassion and resolve to aid all agunot. In Iggerot Moshe (Y.D., vol. 1, #101), he vehemently insists that “it is forbidden for us to be from the ‘humble ones’ and to cause a Jewish woman to remain an aguna or to cause her to turn toward illicit deeds or even to cause the loss of a fellow Jew’s finances.” He proceeds to cite the account of R. Zekharya ben Avkulus, whose exceeding “humility” in halakhic decision making was credited with the ultimate downfall of the Temple (see Gittin 56a).
In Man Malki Rabbanan (p. 25), it is recorded that “once [R. Feinstein] was asked if it was true that he had “released” three thousand agunot. He responded with a smile: ‘Many more than that’.” R. Feinstein even remarked to his student, R. Aharon Felder, that “from all the instances that I permitted an aguna, not once was there an issue of her original husband subsequently resurfacing” (Reshumei Aharon, vol. 1, #17; see a similar report in Reb Moshe [ArtScroll], p. 181). This is not because R. Feinstein was cavalier with halakha. There were instances in which he suspected and corroborated that a man was solicited to falsely identify as a woman’s husband in order for her to attain a divorce (Darkhei Moshe, vol. 2, p. 267). The indispensable combination of erudition, caution, compassion, and willingness to take action is what made R. Feinstein’s approach to halakha stand out from the pack.
Even when R. Feinstein’s health had deteriorated, he pushed himself beyond his limits to advocate for agunot (Zkeinekha Yomru Lakh, p. 138). And this was felt by many of the families he helped build:
There was an agunah who for years received much chizuk (emotional support) from Reb Moshe. Finally, she received her get and later became engaged. She insisted that only Reb Moshe could officiate at her chuppah, and Reb Moshe accepted this honor. Then he suffered a heart attack and was hospitalized when the wedding day arrived. The chasan and kallah came to his bedside; there, in the presence of a minyan, is where their chuppah was held (Reb Moshe [ArtScroll], p. 336).
Endnote: While we covered the more high profile responsa, we should note that when the stakes were lower, such as determining a yahrzeit for someone presumed dead, he demonstrated flexibility (E.H., vol. 4, #58).
For further reading, see Iggerot Moshe (E.H., vol. 1, #45; E.H., vol. 4, #56 and #121), Mesorat Moshe (vol. 5, p. 388), and Avo Beitkha: Shealot u-Teshuvot be-Nosei Zugiyot by Rabbis David and Avraham Stav (ch. 10). R. Feinstein’s post-Holocaust rulings have helped serve as the basis for resolving the aguna issues that emerged post-9/11. See, for example, R. Chaim Jachter, “The World Trade Center Agunot.”
The topic of agunot is a heavy one and has naturally captured the imagination of the Jewish psyche. My dear friend, Mr. Aaron Chaitovsky, pointed me to Till Death Do Us by Rochelle Majer Krich, which is a case in point for how this subject has even inspired works of fiction. Regrettably, the topic is yet to become anything but that.
Moshe Kurtz is the rabbi of Cong. Sons of Israel in Allentown, PA, the author of Challenging Assumptions, and hosts the Shu”T First, Ask Questions Later podcast.