Rav Sternbuch (Teshuvos v'Hanhagos 6:257): I was asked regarding a man who was apparently killed but the body was in such poor condition that it was only identifiable by a DNA test on body tissues - which involves comparisons of genetic material to his parents or his descendants. It is known that the DNA of relatives produce similar results which are distinguished from DNA results of non relatives. The odds against a mistaken identification is much greater than 1/10,000. It is accepted today that the DNA provides a certain scientific test of identity of tissue. The question then is the halachic status of this test. Can a woman remarry on the basis that this test has established that her husband has died?
I saw the psak said in the name of Rav Wosner and Rav Karelitz that validates the use of DNA testing - but only as a sign of identity (simon beinoni) - but not an absolute proof. Consequently it would be prohibited for the wife to remarry based solely on the results of the DNA test and it would not justify mourning for her husband's death as this might lead to the possibility that that fact itself would enable her to remarry.
I am in fact astonished at their conclusion - why don't they regard DNA as an reliable proof of identity? The Beis Shmuel (17:72) defines a reliable proof (simon muvhak) as one that has a chance of error that is less then one in a thousand. So surely in the case of DNA which the scientists have refined the test so that the results are not in doubt at all. In fact over a period of time the accuracy of the results has been repeatedly replicated all over the world so that the possiblity of error is less then 1 in 10,000 that the sample is not from a parent or a descendant. Consequently it is obvious that the DNA test is even greater than a simon muvhak.
Perhaps the basis for not relying on this test is because the results are not visible to the naked eye but require a complicated scientific process to evaluate the results and therefore it can not be taken as definite proof? Nevertheless it would seem that even though scientists are not to be trusted since the greatest scientists believe that man is descended from apes and therefore their opinions have no inherent validity - but in the case of DNA where there is an objective basis in the observable results there is justification for relying on their reasoning. Furthermore there is absolutely no disagreement amongst scientists that the test is accurately describing reality. Therefore it is obvious that we can rely on their testimony in this case.
In conclusion: Concerning the halacha - it would seem that it is possible to rely on the results of DNA tests to allow the wife to remarry. However it would seem that one should wait 12 months since this provides another basis for permitting her to remarry - i.e, that the memory of the husband is fading which is reasonable evidence that he has died. (The Achronim discuss how long a period is needed and it seems that in modern times that after 12 months it is considered that the memory fades). So after 12 months two major rabbis should give her permission to remarry based on the DNA test. And G-d should save us from errors.
"Perhaps the basis for not relying on this test is because the results
ReplyDeleteare not visible to the naked eye but require a complicated scientific
process to evaluate the results and therefore it can not be taken as
definite proof?"
That's an interesting הערה because the משנה in יבמות ק"כ ע"א states:
אין מעידין אלא על פרצוף פנים עם החוטם אע"פ שיש סימנין בגופו ובכליו
לכאורה, it would appear that in order for a woman to re-marry, the one and only סימן מובהק of a deceased husband is his face, nose included. Either that, or the objection of these פוסקים is simply:
אין בית דין יכול לבטל דברי בית דין חבירו אלא אם כן גדול ממנו בחכמה ובמנין
After all, today our לוח is computer generated, wherein we know the exact day of ר"ח, and there would technically be no ספיקא דיומא. Yet, אין בית דין יכול לבטל.
What's your opinion?
"The Beis Shmuel (17:72) defines a reliable proof (simon muvhak) as one
ReplyDeletethat has a chance of error that is less then one in a thousand."
In my בית שמואל edition, סימן י"ז only goes to נ"ח. Can you please supply the לשון?
"Nevertheless it would seem that even though scientists are not to be
ReplyDeletetrusted since the greatest scientists believe that man is descended from
apes and therefore their opinions have no inherent validity."
Concerning the דור הפלגה in סנהדרין ק"ט ע"א it's learned:
וזו שאומרת נעלה ונעשה מלחמה נעשו קופים ורוחות ושידים ולילין
Darwin was ALMOST right- except that he got the סדר היצירה wrong. :-)
בית שמואל סימן יז ס"ק עב
ReplyDeleteעב סימנים מובהקים - עיין תשו' מ"ב שם וכתב הכלל הוא ס"מ הוא שלא ימצא רק א' מאלף והוא דבר זר ומופלג נקב מפולש בשן הוי ס"מ וכן צואר עקום שם ובתשו' מהר"מ מלובלין סי' קכ"ח ומנין שאמר כך וכך נפשות היה הוי ס"מ ודוקא שאמר שהלכו בדרך זה כ"כ בתשוב' בן לב ובתשו' מהרא"מ סי' ע"ו ובתשו' מ"ב ולעיל סי"ז כתבתי דהרמב"ם ס"ל דלא הוי ס"מ:
Thank you. So, does that mean that the ב"ש says that dental records (נקב מפולש בשן הוי ס"מ) or a twisted neck, as long as the identification is even רק א' מאלף, are sufficient for a woman to remarry? Or, am I learning that incorrectly?
ReplyDeleteIgrot moshe has a tshuvah of american airlines flight that crashed in east river, and dentist came with his x rays and testified to bet din that x ray matches, and he recognizes his dental work, so RMF allowed wife to remarry.
ReplyDeleteDNA is collected from relatives and matched with body. So the best you can do is say the body is related. That's like saying the body face looks like the relative (brother father son.) Is that enough ID?
ReplyDeleteUnless they happen to have original blood (or other organ) to compare. Hairbrush (some people share), toothbrush (washed off), otherwise doubtful.
"Igrot moshe has a tshuvah of american airlines flight that crashed in east river, and dentist came with his x rays and testified to bet din that x ray matches the body....."
ReplyDeleteI've not seen the specific תשובה, but wouldn't the passenger manifesto have been a factor? The husband most certainly was on the flight.
But yes, it would appear that some sort of physical הכרה, and not microscopic DNA, is required להלכה.
We have rules for generating a calendar. Basically, we manipulate rosh chodesh to achieve certain holidays on certain days of the week. Nothing to do with computers.
ReplyDeleteYes, I am familiar with the סימנים of the סוד העיבור, but what I was referring to is that physical calendars (such as the you get from a funeral home)
ReplyDeletePassenger manifest doesn't mean he was on the flight ('mayim she'yesh sof') unless you have a video of the boarding gate door (and even there there is a side door in the 'tunnel'.) RMF never discusses such a document, perhaps cause there was an alternative of dental records and actual dental testimony (who would testify to the manifest?)
ReplyDeleteIn the 9-11 biegeleisen case, hatzalah brought a tape of biegeleisen talking to hatzalah, the tape went silent, followed ny the ominous words 'building down.'
ReplyDeleteWith respect to
ReplyDeleteRav Moshe Sternbuch: Use of DNA to free an Aguna whose husband is missing
It depends on whether you can believe the lab. In Israel, for a lab or a scientist, especially as related to Charedi 'lab test subjects or specimen', lo mareh umnuso is often (or usually?) not the case. In the US it applies. That's why I think, as a very well informed attorney told me a long time ago, that Batey Din in Israel don't rely on DNA evidence but in the US they do.
See ספר פתחי חושן ירושה ואישות פרק א סוף הערה צג who seems to disallow relying on DNA ("genetic testing") even to be מוציא ממון!
ReplyDelete