Yevamos 121b: Agunos of the Coronavirus

Yevamos 121b: Even if one heard from women who said, “So-and-so died” – that is enough… It makes no difference if the person intended or not. Rabbi Yehuda ben Bava says: If the witness is a Jew, even if he intends. But if he is a gentile and he intends, his testimony is invalid.  

Some Amoraim explain the Mishnah’s word “intends” to mean only “intends to permit the wife.” But if the gentile intended to testify that the man died, he is believed. However, others explain that even intent to testify is no good. The only way we could permit the wife based on the gentile’s testimony is when he is speaking casually. For example, there was once a gentile who said repeatedly, “Who is in the house of Chivai? Who is in the house of Chivai? Chivai has died!” In another case, the gentile said, “Woe to Parsha Zriza of Pumbedisa, for he has died.”

יבמות קכא ע”ב: אפילו שמע מן הנשים אומרות מת איש פלוני ־ דיו. ר׳ יהודה אומר: אפי׳ שמע מן התינוקות אומרים הרי אנו הולכין לספוד ולקבור את איש פלוני. בין שהוא מתכוין, ובין שאינו מתכויןֹ. ר׳ יהודה בן בבא אומר: בישראל ־ אע״פ שהוא מתכוין, ובעובד כוכבים אם היה מתכוין ־ אין עדותו עדות.

אמר רב יהודה אמר שמואל: לא שנו אלא שנתכוין להתיר, אבל נתכוין להעיד ־ עדותו עדות. היכי ידעינן? אמר רב יוסף: בא לבית דין ואמר איש פלוני מת השיאו את אשתו ־ זהו נתכוין להתיר, מת סתם ־ זהו נתכוין לעדות. איתמר נמי, אמר ריש לקיש: לא שנו אלא שנתכוין להתיר, אבל נתכוין להעיד ־ עדותו עדות. אמר ליה ר׳ יוחנן: לא כך היה מעשה באושעיא ברבי, שהתריס עם שמנים וחמשה זקנים, אמר להם: לא שנו אלא שנתכוין להתיר, אבל נתכוין להעיד ־ עדותו עדות, ולא הודו לו חכמיםִ. אלא מתניתין, דקתני ובעובד כוכבים אם היה מתכוין אין עדותו עדות [הא אינו מתכוין עדותו עדות] היכי משכחת לה? במסיח לפי תומו. כי ההוא דהוה קאמר ואזיל: מאן איכא בי חיואי, מאן איכא בי חיואי, שכיב חיואיִ ואנסבה רב יוסף לדביתהו. ההוא דהוה קאמר ואזיל: ווי ליה לפרשא זריזא דהוה בפומבדיתא דשכיבִ ואנסבה רב יוסף, ואיתימא רבא לדביתהו.

During the height of the coronavirus pandemic in New York, the hospitals did not allow any relatives in to see the patients. When a patient died, the Chevra Kadisha came and performed the taharah and burial, but no friend or family member saw the body. The only evidence of his death was 1) the testimony of the hospital workers, 2) the death certificate 3) the Chevra Kadisha members, who did not know the man personally, but could read his hospital wristband. Rabbi Yechezkel Roth raised the question of whether the wives of men who died in this manner are permitted to remarry.

Rabbi Yitzchok Stein, the Faltishaner Rav, pointed out that the poskim of past generations have already debated these issues:

  1. Regarding the testimony of hospital staff: On the one hand, the Boruch Taam in his responsa Ateres Chachomim 8 writes on the question of a woman who was told that her husband, a soldier, died in the military hospital and was shown his name on a list of deaths, signed by the hospital chaplain in charge of compiling the list. He quotes the Teshuvos Beis Yosef 7 who writes that the requirement that the gentile be “speaking casually” means exactly that: he cannot be intending to testify that this man died. Therefore, when the doctor signs a statement and gives it to the chaplain to record in the list of the dead, he is clearly intending to testify and we cannot rely on him.

The Boruch Taam concedes that there are those (Maharik, Chasam Sofer 43) who allow the use of court documents in proving that a husband is dead. Courts have a special status in halacha in that we assume they would not lie, because they would ruin their reputation. However, here he argues that that reason would not apply, because there is a long chain of witnesses leading to the chaplain writing in the list of the dead. First the attendant who actually cared for the sick man and knows him personally goes to the doctor and says, “So-and-so died.” The doctor then writes a letter to his superior, who gives it to the head of the hospital, who gives it to the chaplain in charge of the list. Therefore, if someone were to get the name wrong, and the list were found to be false, no one would blame the chaplain or anyone along the chain, since it is known that they were only signing on what they heard from others.

The Imrei Yosher (Rabbi Meir Arik), v. 2 siman 121, upheld the position that a gentile testifying directly can be believed, as long as he is not intending to permit the wife. Thus he permits a case when the wife received a telegram from the army captain stating that her husband had been killed in battle, provided that the telegram was not in response to a question from the wife. Although poskim write that if the gentile specifically asks others to tell the wife, he is not believed because his intent is clearly to permit her, here since he has no one else to tell the news to, and besides, the army rules obligate him to inform the wife, he is believed. Besides this logic, one can use the opinion that relies on court documents.

The Faltishaner Rav argued that our case, where the nurse calls from the hospital to inform the wife that her husband has died, is similar to the Imrei Yosher’s case. The other concerns raised by the Boruch Taam don’t apply, as there is no chain of transmission – the caller from the hospital is a staff member who personally dealt with the deceased, and the doctor signing the death certificate must personally examine the deceased. They have an obligation to inform the wife, and their testimony is like that of a court – they would not risk ruining their reputation.

This is all the more so in view of the fact that they could easily be caught (if the man they declared dead turned out to be alive). This is why the Maharam Shick (42) permits agunos based on the testimony of hospital staff, and the Atzei Chaim (20) says that this is even more reliable than the testimony of army captains.   

Some raised a question, however: the Gemara says (Yevamos 114b) that when there is an epidemic in the world, a wife is not believed to testify that her husband died, because we are afraid since many people are dying, she may rationalize that he is probably dead when she in fact does not know for certain. There are poskim (Ran, Teshuva 3) who say this rule applies not only to the wife, but to any single witness.

The Faltishaner Rav replied that the Covid-19 pandemic is not similar to the Gemara’s case, because the death rate is lower. Even at the peak in April 2020, there were around 800 people dying each day in New York, a city of 8 million. That is a death rate of 1/10,000. The Gemara (Taanis 19a) defines a plague (for which we fast) as when a city of 500 men of military age (20-60) has 3 deaths in 3 days. If we assume a total population of 2000, that is a 1/2000 death rate, 5 times higher than the rate in New York. R’ Meir Arik writes in Mareh Yechezkel 12 that the definition of an epidemic for the purposes of agunos is the same as that of Taanis.

2. Regarding death certificates signed in a manner acceptable to a court, there are many poskim (Rabbi Mordechai Banet 27, the Beis Ephraim 31, the Boruch Taam, the Divrei Chaim 2:55 and 2:98) who were strict, since the testimony is anything but casual. However, most of the poskim were lenient: The Maharik 121, quoted by the Taz YD 316:4, Bigdei Kehuna 10, the Chasam Sofer 43, 44 and 94, and the Ksav Sofer 23. The Pischei Teshuva 17:53 brings down the Chasam Sofer. The reason is that when a judge or a court puts something in writing, they are careful not to lie because they could lose their jobs. Similarly, the Bais Shlomo 47 argues that Chazal believed a casual storyteller because he would not lie; here also, there is good reason to believe a judge would not lie.

The Shoel Umeishiv 1:10 and 1:188, the Zayis Raanan 1:2 and the Avnei Tzedek 25 all rely on these lenient poskim as halacha l’maaseh. The Maharam Schick also relies on his teacher, the Chasam Sofer. The Avnei Nezer 65, 67 and 75 characterizes the lenient view as the view of most poskim. The Beis Yitzchak 84 also rules this way, and so does the Netziv in Meishiv Davar 23, the Imrei Yosher 1:111 and the Maharsham 3:92. This ruling is also brought as halacha by the Aruch Hashulchan 17:80, who adds, “When Jews served in the Czar’s army and one of them died, and a letter came stamped with the government seal and signed by the commanding officer stating that so-and-so, son of so-and-so, last name, died, there were many stories in the previous generation when the Gedolei Hador permitted their wives.

3. Finally, the dead man can be identified by the Chevra Kadisha based on his hospital wristband. Although the Mishnah says (Yevamos 120a) that one can testify on a man only based on facial recognition, not by his clothing or other articles, and this is brought as halacha in Even Hoezer 17:24, that is because we are afraid he may have borrowed them (Yevamos 120b). But no one could ever give his hospital bracelet to another patient. The hospital puts it on when he enters and no one ever takes it off until he leaves the hospital. It can’t even be pulled off, only cut off with scissors, and then it can’t be put back on again.

Where do we find a similar case in the poskim of the past? First of all, many teshuvos were written to permit the wife of a man found dead with a document in his pocket, such as a passport or other ID paper: The Noda Biyehuda 2:46, brought by the Pischei Teshuva 17:118; Chasam Sofer 1:53 and 65; Mishkenos Yaakov 11, Bais Shlomo 45, Shem Aryeh 32, The poskim write that even the Beis Yosef, who is strict even regarding articles that people don’t typically lend out, would agree in the case of a passport: Yeshuos Malko 34, Ksav Sofer 29, Maharsham 6, Achiezer 12, Ein Yitzchok 28. However, the Divrei Chaim 2:47 rules strictly, due to the possibility that someone forgot his passport in his pocket and lent his clothing to someone else.

Secondly, many armies had each soldier wear a metal capsule containing his ID, and the poskim agreed that this was sufficient to permit his wife: the Chavatzeles Hasharon 34, Imrei Yosher 2:145, Imrei Dovid 59, Maharash Engel 3:99, Otzros Yosef 7a, Levushei Mordechai 2:5, Atzei Chaim 15. The Atzei Chaim stresses that even the Divrei Chaim, who was strict about the passport, would agree on the capsule that the soldier would be careful not to let others borrow it. The soldier wants the capsule on him at all times so that he can be identified. And obviously, the Divrei Chaim’s concern would not apply to a hospital wristband.

Based on the above three reasons, the Faltishaner Rav permitted the wives of these coronavirus victims to remarry. Rabbi Yechezkel Roth concurred with his reasoning.

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