Ask the Rabbi: May a mentally incompetent person marry?

Israeli Chief Rabbinate has reportedly allowed marriage of few Down syndrome patients to each other, this topic remains debatable within legal world.

By SHLOMO BRODY

DECEMBER 2, 2011 16:50

Disabled person with wheelchair (photo credit: Ariel Jerozolimski) — Disabled person with wheelchair

(photo credit: Ariel Jerozolimski)

The right of the mentally disabled to marry is a source of passionate debate in many countries. On the one hand, the potential risks to the parties involved as well as the possibilities of caretaking for offspring make some societies wary of sanctioning such unions. On the other hand, this paternalistic approach might deny a basic right to self-fulfillment, especially in light of studies showing that marriage can frequently help the mentally disabled improve their social acclimation.

To recognize the meaningfulness of action, be it a commandment or optional behavior, the Torah requires basic cognizance. The Talmud regularly lists three categories of people who do not possess sufficient mental capacities to fulfill (or become obligated in) commandments: the deaf-mute (heresh), the mentally incompetent (shoteh), and the child (Arachin 2a).

Nonetheless, the sages declared that one should begin to train one’s children to perform commandments before they become formally obligated in their strict observance (Succa 42a). The training for various commandments begins at different ages, dependent on the development of the child and the nature of the commandment (Tosafot Succa 28b). Because the deaf-mute was assumed to never achieve the acumen or discipline to perform mitzvot, many decisors declared that their parents do not have an obligation to train them (Minhat Hinuch 5:2). Yet those who have acquired a minimal ability to speak do not fall within this category and should be taught according to their capabilities (Maharsham 2:140).

Marriage requires consent (Kiddushin 2b), and therefore all three groups were excluded from the ability to marry. One exception was the child bride, whom the Torah allows to be betrothed by her father, or upon his death, her mother or brother. Such betrothals, which were seemingly common in antiquity (Mordechai Ketubot 179), drew the ire of some sages, who forbade these engagements lest they lead to unhappy marriages once the child matured (Kiddushin 41a). While the phenomenon continued into the medieval era, in large part to help ensure the economic security of the daughter (Tosafot), it is no longer practiced today.

The sages additionally enacted the allowance of nuptials for the deaf-mute, since they feared that otherwise people in this category would fall into the trap of promiscuity or sexual abuse (Yevamot 112b). Similar dispensations, however, were not granted for the shoteh, whose irrational behavior was deemed too unstable for marriage.

Mental incompetence manifests itself in many different forms, however, with the sages diagnosing the requisite level of insanity of a shoteh based on behavior patterns (as opposed to a medical-therapeutic viewpoint). A shoteh includes one who goes out alone at night, who spends the night in a cemetery, who tears his garments and who destroys all that is given to him (Hagiga 3b-4a). While some medieval scholars understood these behaviors as an exclusive list of characteristics, Maimonides (Edut 9:9) and others deemed them as mere examples of bizarre behaviors stemming from psychological illness (Beit Yosef EH 121).

Scholars debate whether the definitions of shoteh are applied differently in various legal realms and whether one may be deemed competent for some areas of law but not others (Igrot Moshe EH 1:120). Some contend that a person may be incapable of providing court testimony on past events, but can reasonably engage in affairs (such as financial or marital) when their current state of mind is deemed completely cognizant (Shu"t Maharit EH 2:16), such as with mental illnesses in which irrational behavior is displayed periodically.

Since divorces can only be performed with the full mental cognizance of both parties, this factor becomes critical when a married person develops a mental illness and his or her spouse seeks separation. In one famous 18th-century case, known as the Divorce of Cleves, European scholars fiercely debated whether to recognize a divorce document issued by a husband who had become mentally unstable soon after his wedding (Sha’agat Aryeh, Addendum). Yet even if such a person is not fully disqualified from marriage as a shoteh, many decisors recommend avoiding such nuptials to prevent these quagmires, even as they remain permissible (Meshaneh Halachot 9:260).

A different category is the simpleton or mentally disabled individual (peti) who possesses limited cognitive abilities (Sm"a CM 35:21). As Rabbi Zalman Nechemia Goldberg has noted (Techumin 9), such individuals are legally entitled to wed as long as they comprehend (even following tutelage) the nature and obligations of marriage (Beit Shmuel EH 44:4). Rabbi Shlomo Aviner has included people with mild cases of Down syndrome in this category (Assia 57-58), even as others have demurred (Assia 67-68).

As Rabbi Shai Peron has documented, questions regarding supervision, birth control and laws of family purity have led to further reservations, even as he and others have offered concrete suggestions to alleviate these concerns. While the Israeli Chief Rabbinate has reportedly allowed the marriage of a few Down syndrome patients to each other, this topic remains a matter of debate within the legal world.

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The writer, online editor of Tradition and its blog, Text & Texture, teaches at Yeshivat Hakotel.
JPostRabbi@yahoo.com