Kiddushin 69a: Rabbi Tarfon said: Mamzerim can make their children clean of the taint of mamzerus by marrying a slave girl (shifcha).
קידושין סט ע”א: ר׳ טרפון אומר: יכולין ממזרין ליטהר, כיצד? ממזר שנשא שפחה הולד עבד, שיחררו נמצא הבן בן חוריןֹ.
In Bnei Brak in the mid 60s there were about ten bochurim who were mamzerim because their mothers had gotten married in the DP camps right after the war, thinking their husbands were dead, and then the old husbands had turned up. It was a time when thousands of survivors were remarrying with very little rabbinic guidance.
Rabbi Tzvi Elimelech Kalish was a talmid of the Minchas Elazar who had survived Auschwitz, lost his family, and then spent years after the war trying to revive Jewish life in Munkach under Soviet oppression. He was imprisoned in Siberia and denied exit from the Soviet Union, until he finally found his way to Bnei Brak in 1965. These mamzerim boys became his students and he struggled to find a solution for them to get married. Could a mamzer today make use of the heter of Rabbi Tarfon: find a non-Jewish girl interested in becoming Jewish, have her immerse in the mikvah with the intent of becoming a shifcha, then have children with her and set both her and the children free?
He sent the shailah to Dayan Yitzchok Weiss, then Rav of Manchester, known as the Minchas Yitzchok (v.5 siman 47). The Minchas Yitzchok discussed it with Rav Yaakov Breisch (Chelkas Yaakov EH 23) and they both wrote long teshuvos on the subject, Dayan Weiss forbidding it and the Chelkas Yaakov permitting it.
The dispute centered around the issue of Dina d’malchusa – civil law. Does the fact that civil law today does not recognize slavery mean that a non-Jewish girl who immerses with the intent to become a shifcha is not really a shifcha, but rather remains non-Jewish?
The rule is that civil law is Jewish law only for monetary transactions. But this doesn’t apply to other areas of halacha: for example, if the government does not allow non-Jews to convert to Judaism (as was historically the case in many Christian and Muslim countries), and a non-Jew does convert, his conversion is definitely valid. The trouble is that slavery is a mixture of both “mamon” and “issur”. It involves monetary ownership of the shifcha, which gives the owner the right to make her work for him, and it involves issurim – the mitzvos she is obligated to keep, and her marital status as a shifcha, who is permitted to a mamzer. Do we say that since the government doesn’t recognize slavery, the husband (the mamzer) has no power over his shifcha, and therefore she is not a shifcha at all?
This is the subject of a dispute quoted by the Magen Avrohom in Hilchos Shabbos, 304:11. The Marashdam and the Marival hold that the shifcha is not a shifcha, while the Knesses Hagedolah (Even Hoezer 4:34) brings poskim who disagreed. The Magen Avrohom applies this to Hilchos Shabbos: there the Shulchan Aruch discusses the halacha that slaves must keep Shabbos (because they are obligated in all the mitzvos that any Jewish woman is obligated in), and the Magen Avrohom comments that in our time, when the government does not allow Jews to own slaves, the Marashdam and the Marival would hold that our “slaves” are just gentile employees, and therefore don’t have to keep Shabbos.
The Mishnah Berurah there quotes this Magen Avrohom and then concludes that the opinion that the slave must keep Shabbos also results in a leniency: that a mamzer can marry a shifcha.
The trouble is that the lenient opinions cited by Knesses Hagedolah will not help us solve the mamzer problem today. He quotes three poskim: the Mabit, the Radvaz and Rabbi Yitzchak Ashkenazi. The Mabit’s reason is because he understood Turkish law to allow slaves. As to the Radvaz, he may mean Teshuva 598 which permits a shifcha whose owner died to marry a mamzer, but it’s clear from the Radvaz that Dina D’malchusa was not an issue – everyone owned slaves in his time and place. And Rabbi Yitzchak Ashkenazi’s reason is because in his time, in the Ottoman Empire, the prohibition on Jews owning slaves was a “new decree of the king” and not a real Dina D’malchusa. In his view, Dina D’malchusa means only those laws that are permanently on the books, not the capricious “executive order” of a king or leader. Today, the abolition of slavery is a permanent law in most countries (in the United States, for example, it is the Thirteenth Amendment to the Constitution). Therefore, even he would agree that today, a mamzer may not marry a shifcha because she would not really be a shifcha.
Rav Breisch still found other reasons to permit it, but he conditioned his heter on the approval of other poskim, which was not forthcoming. We don’t know what the ten boys in Bnei Brak did in the end.
[One solution is that the mamzer and his intended wife go to a country where slavery (such as debt bondage) is still legal. According to Wikipedia’s article on debt bondage, “In many of the countries like South Africa, Nigeria, Mauritania, and Ghana in which debt bondage is prevalent, there are not laws that either state direct prohibition or specify punishment.” They can arrange that the intended wife borrow a large amount of money from the husband, spend the money and then default on the loan and become his slave. This would seem to work according to all opinions.
The only question would be whether such a couple could come back to a first world country during the time when she is still bearing children. Would coming to such a country immediately render her status as a shifcha null and void? Rabbi Yitzchok Ashkenazi, quoted by the Knesses Hagedolah, comments that even if the abolition of slavery were a real Dina D’malchusa, it would not apply to those slaves purchased before the law was passed. Here too, moving to a first world country would not change her status. However, Rabbi Moshe Klein, in his sefer Mishnas Yuchsin, quoted on the website din.org.il, argues that this would depend on a dispute between Rashi and Tosafos in Gittin 39b. Rashi holds that if someone relinquishes ownership of a slave, the slave is now forbidden to marry a shifcha, although he still requires a document of emancipation to become a full Jew. Tosafos holds that he is still permitted to a shifcha. Here too, bringing one’s shifcha to a country that doesn’t recognize slavery is equivalent to relinquishing ownership, and according to Rashi, she would now have the marital status of a full Jew; any children they would have from then on would be mamzerim.]
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