Talmud pages

Ketubot 44

Jewish fetuses.

Here’s a weird question: Can a fetus convert to Judaism? More than a simple thought experiment, this question actually has important legal implications for the rabbis. Let’s work backwards and first think about what those implications are. 

Deuteronomy 22 describes a case where a newlywed woman is accused by her husband of not having been a virgin on their wedding night. If the woman is found innocent by the court, then her husband is flogged, fined 100 shekels of silver, and forced to stay married to her forever, “for [that householder] has defamed a virgin in Israel.” (Deuteronomy 22:19) But if the woman is found guilty, then she is brought to the entrance of her father’s house and stoned to death. 

There’s a lot we could say about these biblical laws. A lot. But what the rabbis on today’s daf are most interested in is who exactly is considered “a virgin in Israel.” One assumes a virgin in Israel must be both a virgin and a Jew. Is that all? 

The mishnah on today’s daf insists that isn’t all. Indeed, the mishnah reads the text as restricting these laws only to women who have been born Jewish, excluding converts from their purview.

The mishnah offers three scenarios to think through this restriction. Here’s the first:

A female convert whose daughter converted with her and engaged in licentious sexual relations, she is executed by strangulation. She has neither (the halakha of being executed) at the entrance to her father’s house, nor one hundred sela. 

In the first scenario, a woman converts with her minor daughter, and when the daughter grows up, the court finds her guilty of having sex with someone while betrothed to someone else. In that case, she is not stoned to death as the Torah states, but rather executed by strangulation, and not necessarily at her father’s doorstep. If she is exonerated, her husband is not required to pay the fine. In short, someone who converted as a child is not considered to have been born Jewish. OK, fair. 

The next scenario is a woman converts to Judaism while pregnant and gives birth after she has completed her conversion, so the child is born Jewish. If she later cheats while betrothed, she is punished by stoning, but she is not executed at the entrance to her father’s house and does not get paid a fine. In this case, because she was conceived by a non-Jew, even though she was born Jewish, she is not fully subject to the laws of Deuteronomy. Huh. We’ll come back to this case. 

In the final scenario, a woman converts to Judaism and then conceives and gives birth. If her daughter later has sex with someone when betrothed, in terms of punishment and protection, the mishnah’s ruling is: 

She is like a Jewish woman in all matters.

The first and third scenarios are pretty straightforward. But the second scenario — the woman who converted while pregnant — is a bit strange. According to this mishnah, there is only one way for a baby to be born Jewish: to have been conceived by a Jewish woman. But if a woman conceives and then converts while pregnant, her fetus converts with her, which means that, once born, the baby at least partially has the status of a convert. 

We actually already saw this scenario on Yevamot 78a, which discussed the status of the child of an Egyptian who converted while pregnant. There, the Gemara insists that the child has the status of the child of a convert — not a first-generation convert. Their status is based only on the mother’s status at the moment of birth. But here we see the mishnah taking a different approach. When it comes to questions of infidelity, what matters is not the moment of birth, but the moment of conception. 

But why? To be honest, I don’t know. We might expect the commentators to jump in with helpful explanations here, but they are surprisingly silent. On the one hand, this disjunction is frustratingly inconsistent. On the other hand, it is a useful reminder that expectations of complete consistency are modern ones. The editors of the Talmud assumed that each named rabbi was himself consistent, but they did not expect that the Talmud as a whole would be consistent. A diversity of approaches to the religious identity of the fetus of a convert? That’s fine by them.

Read all of Ketubot 44 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on August 19th, 2022. If you are interested in receiving the newsletter, sign up here.

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