Shabbat Parashat Mishpatim| 5765
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Question: Does one who wants to adopt a child have to do so from the closest orphanage or from a Jewish orphanage before a non-Jewish one, as these preferences exist in regard to tzedaka? It seems todepend if adoption is a mitzva to help the child and, therefore, is governed by the laws of tzedaka or is something the adopting family does for its benefit. Which is it?
Answer: Adopting a child is a great mitzva of chesed toward the adopted child, whether or not it also benefits the adopting family. There is no contradiction between the two. Let us note the Talmudic source that lauds adoption. The gemara (Ketubot 50a) tries to identify the subject of the following pasuk in Tehillim (106:3): “Praiseworthy are those who … do acts of charity at all times.” Who is capable of doing charity at all times? The first opinion is that it is one who brings up and sustains his own children. The second opinion is that it is one who raises an orphan in his home and marries him or her off. One can logically connect between the possibilities. Supporting one’s own children is certainly a natural thing, which usually includes a significant degree of self-fulfillment, and is not the type of charity for only the very pious. Yet, it is considered a great act of charity anyway. So too, the praise for a family which adopts applies even to those who feel an absence of children in their house. On the contrary, if a family prefers not having more children and considers adoption out of pity, they should consider whether they will be capable of seeing the responsibility through to the end with the necessary self-sacrifice, love, and patience.
All indications are that the laws of kedimut (giving precedence to one recipient before others) apply throughout the laws of chesed. The idea that one gives precedence to those closest to him is hinted in the Torah in the laws of lending (Shemot 22:24 and/or Devarim 15:11). Yet, the Rambam brings the details specifically by the laws of tzedaka and leaves them out in the laws of lending. Commentaries explain that once it is found by one, it is assumed by the other (see Lechem Mishne, ad loc.; Minchat Chinuch #66). The Chofetz Chayim, in the introduction to his classic work on the laws of chesed, “Ahavat Chesed,” stresses that all of the different forms of chesed share the same underpinnings. Therefore, it appears that there is reason to give precedence to those closest to the adopting family. That includes Jews before non-Jews, relatives before non-relatives, and neighbors and people from the same city before others (Bava Metzia 71a). (There are practical considerations regarding the preference of adopting a Jewish child or converting a non-Jewish child that are not appropriate to discuss in this forum and should be discussed with one’s personal rabbi if the question arises.)
As far as who is considered a member of the same city, there is an important machloket among the Rishonim. R. Yitzchak b. R. Baruch rules that whoever came to the city is considered within the realm of a preferred recipient, whereas the Tur (Yoreh Deah 251) says that only those who are permanent residents of the city are included. The Rama (YD 251:3) rules like the Tur. However, if a child has moved into a local orphanage on an ongoing basis, he should be considered a local irrespective of his place of origin (see Biur Hagra, ad loc.).
The question, though, is to what extent the laws of precedence are binding. Firstly, even in regard to relatives vs. non-relatives, which is the most serious, kedimut does not contain the elements of severity that the mitzva of tzedaka has (Ma’aser Kesafim 10:(299), citing the Chatam Sofer). But beyond that, since it is rare for a specific person to have a personal obligation to adopt a child, if he volunteers, he can do so according to the factors that are important to him (based on a parallel case in Ahavat Chesed 6:9). These factors may include cost, reliability of an agency, etc. If one can incorporate the rules of precedence, that is nice, but the important thing is to succeed in carrying out the tremendous chesed to the benefit of all involved.
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