Israeli High Court Allows DNA Testing to Prove Judaism

Petition filed by Avigdor Lieberman, Yisrael Beitenu and several individuals asking for the DNA testing to prove Judaism to be disallowed is struck down

Aaron Rabinowitz
Aaron Rabinowitz
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Human chromosomes under the microscope
Human chromosomes under the microscopeCredit: Memorial University of Newfoundland via JTA
Aaron Rabinowitz
Aaron Rabinowitz

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.”

>> Israel's rabbis think genetic testing can 'prove' Jewishness. They're wrong | Opinion

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.”

In response to the petition, the state said that only in a few cases was an appeal made to the president of the chief rabbinical court for approval to do genetic testing. In 2013, no such inquiries were made; in 2014, only one was made; in 2015, there were no inquiries; in 2016, there were seven; in 2018, there were six, and in 2019 (through May) there was just one.

The data also show that in 2017, 3,868 people applied to have their Judaism confirmed and 96 percent of the requests were approved; in 2018, there were 3,451 applications and 97 percent were approved. “These figures speak for themselves. The vast majority of the applications were approved, only in a very few cases was a request for genetic testing made,” Sohlberg wrote.

“Based on the above factual figures and on the legal and judicial basis that was presented, I question if there is a need to formulate written rules,” Sohlberg wrote. “The harm that may come from rigidly fixing rules in writing may outweigh the benefit, and perhaps it is better to leave the rabbinical court some flexibility in applying its judgment in accordance with the law, halakha and the evidence. Setting written rules is not necessarily a solution to every possible scenario that could come before the rabbinical court. The dayanim [religious judges]must use their wisdom, common sense and sensitivity as required by the circumstances of each case that comes before them.”

Sohlberg also argued that the Judaism clarification process was done equally for immigrants from the former Soviet Union, from Hungary, Eastern Europe, India, England and the United States. “The claim of discrimination was in vain,” he said.

During the hearing, the representative of the rabbinical court agreed to bring the matter of setting the rules in writing before the Chief Rabbinical Council. Sohlberg found that sufficient and saw no reason to obligate the rabbinate to set written rules. Sohlberg also criticized the petitioners, saying they had not exhausted all the proceedings open to them and had not filed an appeal to the Chief Rabbinical Court as they should have, and therefore he felt that the petitioners should be obligated to pay the court costs and not the state, as his two colleagues decided.

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