Posted on January 27, 2020

Israeli High Court Allows DNA Testing to Prove Judaism

Aaron Rabinowitz, Haaretz, January 24, 2020

A panel of High Court justices rejected the petition filed by Avigdor Lieberman, Yisrael Beitenu and several private petitioners against the Chief Rabbinate and the rabbinical courts, ruling that DNA testing to prove one’s Judaism should be allowed.

The High Court of Justice also ruled that the petitioners did not prove that the rabbinate acted in a discriminatory manner in this matter. At the same time, the majority decision said the rabbinate must formulate written rules on the issue within a year.

The majority decision was written by Justice Neal Hendel, who noted that two important issues were raised in the petition: reexamination by the rabbinical court of the Judaism of someone who was already recognized and registered as a Jew, and conducting genetic tests to prove one’s Judaism.

“The respondents’ arguments indicate a lack of clarity as to the rules that are applied in the rabbinical courts,” Hendel wrote. “For example, in the preliminary response, it was argued that the proposal to conduct genetic testing is only made when the rest of the material presented is not sufficient, i.e., in cases in which, without such testing, the person’s Judaism would not be recognized. According to this line of thinking, the proposal to do testing can only benefit the person being tested, whether he accepts the testing or refuses to undergo the test.

“On the other hand,” Hendel continued, “somewhere else it says that refusal to submit to testing could lend ‘additional weight’ and ‘reinforcement’ to the evidence, and during the hearing before us, the representative of the rabbinical court argued that refusal to submit to testing could be seen as ‘a certain reinforcement’ of a ruling that a person’s Judaism was not proven.”

Hendel added, “This lack of clarity regarding the genetic testing and its standing heightens the need to set clear instructions concerning the rabbinical court’s proposal to conduct genetic testing, and the relevance of the refusal of its evaluation.”

Hendel concluded, “Under these circumstances, it would be correct to allow the rabbinical court to work to clarify the rules in writing. In light of its willingness to consider this, at this stage, the petition, as submitted, has exhausted itself. However, a period of one year shall be set, and if a procedure is not produced in writing in this time – the petitioners may submit a new petition.”

Justice George Karra joined Hendel’s decision, saying, “The existence of written rules would have made the submission of this petition unnecessary, as it was submitted for claims of discrimination in the application of rules that are not clearly known and not anchored in writing. Clear written rules will make avert disagreements and a sense of discrimination in the future.”

In his minority opinion, Justice Noam Sohlberg said the rabbinate should not be instructed to formulate written rules on the issue. “The genetic testing in question is only a possibility available, at the choice of the applicant and his family, as per their judgment. In circumstances in which there is insufficient evidence presented by the applicant to firmly prove his Judaism, genetic testing could be of help to him and strengthen his evidence, the more that a family relationship is established between him and others whose Judaism has been clearly determined. Sometimes the genetic testing could be more convenient and efficient than tracking down other evidence and documents. Hence there is no problem in presenting the possibilities to the applicant, for his knowledge and his choice.”