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The Safed Rabbinical Court recently gave a woman a "get zikui" to permit her to receive a divorce from her husband who has been in a coma for seven years. See this article. The article describes it as "rare." What exactly is a get zikui and are there any recorded instances of it being used recently?

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1 Answer 1

NO.

Rabbi Isaac Herczog discussed the concept, and rejected it. (Rabbi Hershel Schachter has discussed this in several lectures.)

"Zikui" works as follows. I want to gift someone a nice challah knife on shabbos, but it's best to avoid gifts on shabbos as it looks like a business transaction, so on Friday afternoon I say, "I'm sure Shmerel would want to receive this lovely challah knife, so I'll have my friend here pick it up on his behalf." Receiving on someone's behalf, when we assume they would like to receive it, is zikui. Another example would be if I set aside food in my apartment building for anyone in the building to use on shabbos -- this makes an eruv and allows everyone to carry. If I can't contact Shmerel in advance, I can generally assume "he'd like to be able to carry", and thus have him receive a share in this food.

The argument used here was: "he would want his wife to be free if she was chained to a vegetable for six years." (Or a similar argument, "he disappeared off at war; if he's still alive in some Hezbullah prison three years later, he would want his wife to be free now.") Herczog correctly predicted that if we allowed it for the husband who's disappeared, some rabbi would try this stunt for the husband who is right here and refusing to give his wife a Get, arguing that he'd really rather give one. (And as Rabbi Schachter tells it, sure enough, some "rabbi" started doing such Gittin in Israel -- he's unauthorized by the Israeli rabbinate and therefore could be arrested for this, so he does them at the US Embassy.)

As Rabbi Schachter explained, the fundamental problem with zikui is that it only works (at least in all the Talmudic precedents) in a passive way, to receive something. Giving a Get requires some very deliberate action.

The story of the vegetative husband (or similarly, one stricken with a severe psychological or neurological problem to the point he can't execute a Get) is truly tragic, but the halachic logic here seems shaky at best.

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But you also have the concept that when a husband gives in to communal sanctions and gives his agunah a get, "he wasn't coerced" because we presume that deep down he wants to do the right thing. How is that better? It would appear that we can have more insight. Into the good will intent of a man in a veggetative state than a donkey who gives in to the whip. –  Bruce James May 23 at 0:52
    
@BruceJames good will is not enough. If someone says [for whatever the reason] "I want to give a Get and hereby do so", it's valid. If someone takes no action, we're not empowered to do so on his behalf. –  Shalom May 23 at 1:16
    
We do appoint a trustee for an orphan child and act on what is in the child's best interests. The written Torah doesn't tell us we can; it was instituted out of necessity. The oral an written Torah says nothing of using physical evidence that a husband died to release an agunah, yet the rabbis accepted DNA evidence to release agunot after 9/11 beause of necessity. SImilarly less reliable evidence that husbands died in the Nazi death camps was used to release agunos althugh sometimes it was wrong. –  Bruce James May 23 at 7:36
    
Let me propose another reason one might institute this as policy -- the vegetative husband in past generations would have died sooner than later, but now can be kept alive indefinitely. Do we want the wife to regret that she may have authorized medical intervention to sustain his life and cause herself to be an agunah or to want to be an adulteress? –  Bruce James May 23 at 7:52
    
@BruceJames -- we can do all sorts of things with money because of hefker beisdin hefker. (And it has Biblical support, "psach picha l'ilem.") The Torah says a marriage ends with a Get or death, and the Holocaust etc. discussion is simply at what point we can assume death. (And the rabbis have no magical power there -- if they allow her to remarry and then the first husband appears, it's called adultery.) I understand your public-policy concern for medical intervention, but the point remains -- a Get requires the husband to take a deliberate action. Zikui is passive. –  Shalom May 23 at 10:07

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