Levirate Marriage and the Family[ ]no levirate bond is created between the deceased’s brother and his wife
when the latter is sterile.^8 The Tosefta offers a more nuanced ruling re-
ga rding eunuchs; someone who has been a eunuch f rom bir t h has no le-
virate obligation, but a man who was castrated should perform levirate
or release his sister-in-law through halitza. Similarly, a second mishna
suggests t hat a d ist inct ion shou ld be made bet ween men who were bor n
eunuchs and those who were castrated.^9 T he for mer have no lev i rate ob-
ligations, nor is a eunuch’s widow subject to levirate; since the deceased
could never have fulfilled the obligation to procreate, his brother is not
requ ired to do so on h is beha lf. A ma n who was cast rated is subject to le-
virate obligations that he can fulfill only through halitza; as a castrated
man he cannot legally marry and therefore cannot initiate a levirate
union. The widow and brother of a man who had been castrated are
subject to levirate; because the deceased was at one time in his life fit to
have children, his brother is obligated to provide children for him.
These sources indicate that a man’s childlessness is the catalyst that
generates the levirate bond between his widow and brother upon his
death. Furthermore, because the purpose of a levirate union is to pro-
duce a child (rather than to protect the widow or assign her to another
member of the patrilineage that paid her bride-price), levirate is not
mandated in cases where there is no possibility whatsoever of procre-
ation.^10 If procreation is theoretically possible, although unlikely, the le-
vir may choose to marry his sister-in-law. An older man or woman may
enter into a levirate union; rabbinic advice to a man to forgo such a union
is couched in terms of age disparity, not because of the improbability of
the union producing children.^11 These discussions and rulings demon-
strate that the rabbis still recognized that the possibility of producing
a child was the justification for levirate marriage. A levirate union that
definitely could not produce a child was viewed as incestuous.^12
Assignment of Paternity in Levirate
If the justification for levirate is the desire or need to provide a deceased
man with a posthumous heir, levirate is completely successful only when
it produces a child. Furthermore, the children of the levirate union, or at
least one of t hem, shou ld be recog ni zed as t he heir of t he deceased. This
would involve assigning paternity away from the social father, the levir,
to the deceased.^13 It would also bestow the property of the deceased on