[ ]Paternity and Continuityno longer allowed to justify heroic measures, nor can they be mandated
at the expense of another man, even one’s brother.
Childlessness as the Catalyst of and
Justification for Levirate
Deuteronomy mandates levirate when “a man dies and leaves no
ben.” The Hebrew word ben can indicate either the gender-specific “son”
or the nonspecific “child.” A man’s name and property were most likely
to be preserved by a son, but the Hebrew Bible contains insufficient in-
formation to determine whether levirate was mandated when a man left
a daughter. Numbers and permit a daughter to ser ve as her father’s
heir in the absence of sons, describing the preservation of a man’s prop-
erty within his line of descent and, through the marriage of the daughter
within her father’s patrilineage, his extended clan. This suggests that le-
virate would not be mandated when a man was survived only by daugh-
ters. This is the view of both Philo and Josephus.^2
The early rabbis mandated levirate only when a man left no de-
scendants whatsoever. A surviving son or daughter, even a grandson
or granddaughter, obviated the need for levirate.^3 Any child freed the
widow from the levirate obligation, provided that the child was legally
assigned to the father; even a mamzer exempted his father’s wife from
the levirate bond.^4 A child born to a slave or Gentile fell outside this cat-
egor y, because t he fat her cou ld not lega l ly cla im pater nit y, so t he w idow
would be bound by the levirate obligation.^5 If t he deceased lef t a chi ld or
grandchild, or his widow was found to be pregnant after his death and
the child was viable at birth, not only was levirate unnecessary, it was
forbidden.^6 For the rabbis, levirate was, as Deuteronomy indicates, an
institution rooted in the need to provide an heir for the deceased; if the
deceased had issue, there was no need for levirate. In such a case, the
relationship between a widow and her brother-in-law remained incestu-
ous even after the death of her husband.
While levirate may have been intended first and foremost to provide
a child for the deceased, the rabbis permit levirate in cases where it is
unlikely that the union will produce children. One mishna states, “A
eunuch does not do halitza nor does he enter into a levirate union. So
too, a sterile woman does not do halitza nor does she enter into a levi-
rate union.”^7 The Tosefta and the Bavli affirm the Mishnah’s ruling that