What happens when a law written in the 1930s collides with the medical technology and social patterns of the 21st century? That is the essential question of a case argued today before the United States Supreme Court. It is also the kind of question that Jewish tradition must grapple with all of the time. It presents a legal puzzle that is excruciatingly difficult for us to solve, but we should be delighted to have the opportunity.
The law in question is the Social Security Act, as amended by Congress in 1939. The technology in question is in vitro fertilization, the medical technique devised in the 1970s for fertilizing human egg cells with sperm in a laboratory to be implanted into a woman's uterus for normal pregnancy and birth. The case involves a woman, Karen Capato, whose doctors performed the procedure in 2003 to allow her to become pregnant with sperm from her husband, Robert Capato, who had died a year earlier. After giving birth to twins, Ms. Capato sought Social Security benefits for her children. This is a benefit, she argues, to which the twins are entitled as the surviving children of a deceased wage-earning parent.
The Social Security Administration denied Ms. Capato's claim, as it has done in roughly one hundred similar cases, because of the way that it interprets the Social Security Act. The Social Security Administration states that Ms. Capato's twins are not eligible for the benefit because they are not her husband's legal heirs according to the laws of our great state of Florida. Of course, it would have been difficult for Mr. Capato to have listed the children in his will, since he died before they even were conceived.
What a lovely, convoluted dispute. Either Ms. Capato is right, and children can be the dependents of a man who did not live long enough for them to have ever depended on him, or the Social Security Administration is right, and a man can sire children with his wife and still not be their father. What a mess. How do we find a way out of it?
This is where the U.S. Supreme Court steps in. The court must decide how to interpret a law about parents and children that was written before the discovery of DNA. They must, somehow, answer questions about the intent of the law regarding the realities of frozen sperm, in vitro fertilization, surrogate pregnancy, and a host of other new technologies and techniques that the writers of the law could not have anticipated.
And that does not even begin to explain the difficult in interpreting the law in this situation.
During oral arguments today, members of the Supreme Court raised further questions. Does the fact that Karen Capato was married to Robert Capato make any difference to the outcome of the case, or could a mother seek benefits for children from any deceased sperm donor? What definition of "child" and "parent" should be used in interpreting the law? When members of Congress used the word "child" in 1939, they were thinking about the offspring of a legally married couple. Does using that definition make any sense today considering the social realities of 2012?
The difficulty facing the Supreme Court in interpreting the Social Security Act arises not just because of changing medical technology. The problems are even more deeply rooted in the changes in the assumptions, social conventions and patterns of our entire society.
Yet, interpretation is the only choice in a case like this. How could it be otherwise? It would be foolish to insist on following the "literal meaning" of the law. In 1939, children who came into the world like these twins literally did not exist. It would be equally pointless to demand that we follow the "original intent" of the people who wrote the law. Even if we could go back in time to ask them, do you think they could answer questions about in vitro fertilization any better than we can?
Whether we like it or not, interpretation is the only way to make this law work for this situation in the present day. There is no "plain meaning" to fall back on. We are stuck having to answer unanswerable questions like, "When is a 'child' in 1939 not a 'child' in 2012?"
I am not, by any means, a scholar of U.S. law, so I may have misunderstood some of the legal subtleties in this case. (I offer my apologies to lawyers everywhere.) However, I find this case fascinating for what it teaches about the nature of law and interpretation—issues that strike the core of Judaism.
When the rabbis of antiquity and of our own day try to interpret the Torah, they are not dealing with a document that was written for the technology and social conventions of a mere seventy years ago. The Torah, if you believe historians, came into its present form around the fifth century b.c.e.—a time when most people were slaves, everyone lived in mortal terror of a bad harvest and the starvation it would bring, justice was barely distinguishable from vengeance, and knowing how to read would make you a member of the intellectual elite.
Fitting the society for which it was written, the Torah contains laws about the right way to kill the guy who murdered your cousin, laws about which grasshoppers are okay to eat, and laws about how to marry a woman you captured in battle. The Torah assumes, to say the least, a completely different world from the one in which we live. The rabbis of the Talmud, who lived some 800 years after this, were baffled by many of the laws in the Torah. Today, 2,500 years after the time of Ezra the Scribe, we are lucky just to be able to read it. Yet, for more than two thousand years, we Jews have struggled to interpret the Torah to apply it to the needs of the times.
And it's a good thing, too. If observing the Torah meant that we had to recreate the world that produced the Torah, we would be stuck in a late-iron-age reality of disease, illiteracy, famine and short, miserable lives. Interpreting the Torah is the only option we have to keep it alive.
As with the laws of our country, it is pointless to believe in an "original intention" or "literal meaning" of the Torah that will guide us to certainty. We learn what we can about the time and place in which the Torah appeared, but we still have such a poor understanding of that society that we often struggle just to understand the plain, surface meaning of the text, let alone the intentions. Even if we could know how the people who first heard the Torah understood its meaning, that would not tell us how to apply it to situations they could not have imagined.
Figuring out how to read the Torah in a world of light bulbs, internal combustion engines, climate change, presidential elections, multiculturalism, and imitation crab meat is difficult. The alternative, though, is to stick our heads in the sand and pretend that nothing in the world has changed since Judah the Prince completed the Mishnah. Interpretation means that we can change. It also means that we can discover the things within the Torah that never change—its values, its beauty, its story about the way we come to know God.
I do not know, and I am not qualified to predict, how the U.S. Supreme Court will decide on the Social Security benefits that Ms. Capato claims for her twins. I am led to believe, though, that they will weigh the meaning of the words of the law against what they can reckon about the people who created those words. Before they are done, they will think about what is right, what is fair, and what will help create the best society we can have right now. Then they will forge an answer that can be explained using the words of a great legal tradition.
That is also what we do with Torah when we undertake the joyful act of interpreting it. We consider the context, as best we can understand, in which Torah was given. We think about the moral and spiritual lessons of Torah and how they have been understood by all our great teachers since Sinai. We use the forms, symbols and words of our people to express a Torah that embodies the highest within us for the world around us.
Other Posts on This Theme:
Mishpatim: The Purpose of the Torah
Vayeshev: Dreams and Dreamers
Pinchas: Five Sisters Who Turned the Key to Unlock the Torah
The law in question is the Social Security Act, as amended by Congress in 1939. The technology in question is in vitro fertilization, the medical technique devised in the 1970s for fertilizing human egg cells with sperm in a laboratory to be implanted into a woman's uterus for normal pregnancy and birth. The case involves a woman, Karen Capato, whose doctors performed the procedure in 2003 to allow her to become pregnant with sperm from her husband, Robert Capato, who had died a year earlier. After giving birth to twins, Ms. Capato sought Social Security benefits for her children. This is a benefit, she argues, to which the twins are entitled as the surviving children of a deceased wage-earning parent.
The Social Security Administration denied Ms. Capato's claim, as it has done in roughly one hundred similar cases, because of the way that it interprets the Social Security Act. The Social Security Administration states that Ms. Capato's twins are not eligible for the benefit because they are not her husband's legal heirs according to the laws of our great state of Florida. Of course, it would have been difficult for Mr. Capato to have listed the children in his will, since he died before they even were conceived.
What a lovely, convoluted dispute. Either Ms. Capato is right, and children can be the dependents of a man who did not live long enough for them to have ever depended on him, or the Social Security Administration is right, and a man can sire children with his wife and still not be their father. What a mess. How do we find a way out of it?
This is where the U.S. Supreme Court steps in. The court must decide how to interpret a law about parents and children that was written before the discovery of DNA. They must, somehow, answer questions about the intent of the law regarding the realities of frozen sperm, in vitro fertilization, surrogate pregnancy, and a host of other new technologies and techniques that the writers of the law could not have anticipated.
And that does not even begin to explain the difficult in interpreting the law in this situation.
During oral arguments today, members of the Supreme Court raised further questions. Does the fact that Karen Capato was married to Robert Capato make any difference to the outcome of the case, or could a mother seek benefits for children from any deceased sperm donor? What definition of "child" and "parent" should be used in interpreting the law? When members of Congress used the word "child" in 1939, they were thinking about the offspring of a legally married couple. Does using that definition make any sense today considering the social realities of 2012?
The difficulty facing the Supreme Court in interpreting the Social Security Act arises not just because of changing medical technology. The problems are even more deeply rooted in the changes in the assumptions, social conventions and patterns of our entire society.
Yet, interpretation is the only choice in a case like this. How could it be otherwise? It would be foolish to insist on following the "literal meaning" of the law. In 1939, children who came into the world like these twins literally did not exist. It would be equally pointless to demand that we follow the "original intent" of the people who wrote the law. Even if we could go back in time to ask them, do you think they could answer questions about in vitro fertilization any better than we can?
Whether we like it or not, interpretation is the only way to make this law work for this situation in the present day. There is no "plain meaning" to fall back on. We are stuck having to answer unanswerable questions like, "When is a 'child' in 1939 not a 'child' in 2012?"
I am not, by any means, a scholar of U.S. law, so I may have misunderstood some of the legal subtleties in this case. (I offer my apologies to lawyers everywhere.) However, I find this case fascinating for what it teaches about the nature of law and interpretation—issues that strike the core of Judaism.
When the rabbis of antiquity and of our own day try to interpret the Torah, they are not dealing with a document that was written for the technology and social conventions of a mere seventy years ago. The Torah, if you believe historians, came into its present form around the fifth century b.c.e.—a time when most people were slaves, everyone lived in mortal terror of a bad harvest and the starvation it would bring, justice was barely distinguishable from vengeance, and knowing how to read would make you a member of the intellectual elite.
Fitting the society for which it was written, the Torah contains laws about the right way to kill the guy who murdered your cousin, laws about which grasshoppers are okay to eat, and laws about how to marry a woman you captured in battle. The Torah assumes, to say the least, a completely different world from the one in which we live. The rabbis of the Talmud, who lived some 800 years after this, were baffled by many of the laws in the Torah. Today, 2,500 years after the time of Ezra the Scribe, we are lucky just to be able to read it. Yet, for more than two thousand years, we Jews have struggled to interpret the Torah to apply it to the needs of the times.
And it's a good thing, too. If observing the Torah meant that we had to recreate the world that produced the Torah, we would be stuck in a late-iron-age reality of disease, illiteracy, famine and short, miserable lives. Interpreting the Torah is the only option we have to keep it alive.
As with the laws of our country, it is pointless to believe in an "original intention" or "literal meaning" of the Torah that will guide us to certainty. We learn what we can about the time and place in which the Torah appeared, but we still have such a poor understanding of that society that we often struggle just to understand the plain, surface meaning of the text, let alone the intentions. Even if we could know how the people who first heard the Torah understood its meaning, that would not tell us how to apply it to situations they could not have imagined.
Figuring out how to read the Torah in a world of light bulbs, internal combustion engines, climate change, presidential elections, multiculturalism, and imitation crab meat is difficult. The alternative, though, is to stick our heads in the sand and pretend that nothing in the world has changed since Judah the Prince completed the Mishnah. Interpretation means that we can change. It also means that we can discover the things within the Torah that never change—its values, its beauty, its story about the way we come to know God.
I do not know, and I am not qualified to predict, how the U.S. Supreme Court will decide on the Social Security benefits that Ms. Capato claims for her twins. I am led to believe, though, that they will weigh the meaning of the words of the law against what they can reckon about the people who created those words. Before they are done, they will think about what is right, what is fair, and what will help create the best society we can have right now. Then they will forge an answer that can be explained using the words of a great legal tradition.
That is also what we do with Torah when we undertake the joyful act of interpreting it. We consider the context, as best we can understand, in which Torah was given. We think about the moral and spiritual lessons of Torah and how they have been understood by all our great teachers since Sinai. We use the forms, symbols and words of our people to express a Torah that embodies the highest within us for the world around us.
Other Posts on This Theme:
Mishpatim: The Purpose of the Torah
Vayeshev: Dreams and Dreamers
Pinchas: Five Sisters Who Turned the Key to Unlock the Torah
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