Levirate Marriage and the Family in Ancient Judaism

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Paternity and Continuity

You Are My Son: The Dangers of Uncertainty
Regarding Paternity

The Mishnah requires that a levirate widow wait three months after the
death of her husband before marrying her brother-in-law.^24 This wa it ing
period is intended to ascertain whether the widow is pregnant. If she is
pregnant, an additional waiting period is required to determine if the
child is viable; if so, there is no need for levirate marriage or halitza. At
the beginning of the fourth chapter of Yevamot, the Mishnah consid-
ers cases in which the widow and her brother-in-law act before realizing
that she is pregnant. The final rule of Mishnah Yevamot : explores a
situation in which it is unclear whose child the woman is carrying, that
of her late husband or that of her brother-in-law:

If it is uncertain whether the child is a full-term child of the former

{the deceased} or the premature child of the latter {the levir}, he

divorces her; the child is legitimate and they are liable [to bring] a

guilt offering.

The Mishnah assumes that in such a case the levir and the widow will
separate, on the chance that their union is unnecessary — in fact illicit —
because the child is the product of her first marriage. While the union
must be dissolved and the couple is required to make a guilt offering lest
they committed unintentional incest, the child is legitimate. The child
may be the product of his mother’s marriage to the deceased or the re-
su lt of a lev i rate u n ion t hat wa s, i n fact, per m issible i f h is mot her wa s not
pregnant when her husband died. In either case, he is not illegitimate.
The Bavli imagines the situations that might arise years later, when
the child, whose paternity was never determined, claims a share of the
property belonging to his mother’s deceased husband, the levir, or their
father, his paternal grandfather. His claims put him at odds with the le-
vir and the levir’s sons, individuals who may be his father and broth-
ers or his uncle and cousins. This discussion underscores the rabbinic
assumption that a child born of a levirate union is recognized as the
child not of the deceased but of the levir. It also highlights the tensions
that could arise within a family if a child of levirate were treated as
the deceased’s heir, possibly explaining why the rabbis rejected such a
construct.