Question: If the father of the baby is returning from a business trip overseas on the eighth day, can others perform the bris milah without the father, or must they wait for him to arrive?
Short Answer: Some poskim suggest that the family perform the bris milah immediately, without the father, and others rule that the family should wait until the father returns, even if that means delaying the bris milah until after the eighth day. However, the consensus of many of the poskim is to delay the bris milah, either until chatzos or even until close to sh’kiah before performing the milah without the father.
Explanation:
I. Judicial Responsibility
The Gemara in Kiddushin (29a) cites the pasuk in Parshas VaYeira that “Avraham circumcised his son Yitzchak” to prove that a father has an obligation to give a bris milah to his son. The Gemara then expounds that if a father does not circumcise his son, it becomes a judicial responsibility of Beis Din, as set forth in the pasuk of “Himol lachem.”
The Shulchan Aruch (Yoreh Dei’ah 261:1) likewise rules that if a father does not circumcise his son, Beis Din is responsible to do so. The Rama (ibid) adds that while a beis din can circumcise a son without the father’s permission or knowledge where a father refuses to circumcise his own son, the beis din (or anyone else) cannot do so without the father’s permission where the father plans on circumcising his son himself.
II. Missing in Action
What about where the father is overseas on the eighth day but is on his way back? Should the bris wait for him? Should the family and friends hire a mohel to perform the bris milah before the father returns later in the day?
The Avnei Neizer (Yoreh Dei’ah 318-319) addresses this issue and rules that it is preferable to do the bris milah on the eighth day without the father than to wait for the father, even if the father is a mohel himself. Indeed, the Avnei Neizer proves from the Gemara in Shabbos (133a) that a bris milah in the proper time is preferable than a milah performed by the father. The Gemara rules that a father who intends to cut off tzaraas cannot perform a milah on his child, as this would violate an aveirah of cutting off tzaraas, which is not allowed even when performing a positive commandment. This is in contrast to a milah on the eighth day on Shabbos, which is permitted despite the performance of an aveirah at the time of the bris.
III. How Long Should You Wait?
While the Avnei Neizer does not address how long the family and friends should wait for the father on the eighth day before doing the bris milah without him, other poskim address this issue. The Hadras Kodesh (siman 6), Rav Tzvi Pesach Frank zt”l, addresses the case where a father was in the army and was expected back on the eighth day, which was Shabbos. He ruled that the family should wait until right before sh’kiah before performing the milah without him. The mitzvah of a father being present at the bris milah takes precedence over the concept of z’rizus, performing the milah as early in the day as possible.
[As an aside, the footnotes of the Hadras Kodesh cite an incredible story that there was a woman who could not have children for many years until she received a brachah from the Rebbe, Reb Shlomo MiZvhill. But, the Rebbe warned her that she should not give the baby a bris milah on the eighth day. After she gave birth to a healthy son nine months later, there was no apparent medical reason not to give the baby a milah on the eighth day, and her husband pushed her to arrange the milah on the eighth day. The wife was nervous, so they asked Rav Tzvi Pesach Frank, who said that the baby should get a checkup in the middle of the eighth day, based on the holy words of the Rebbe. Sure enough, the examination revealed a health issue that was not previously caught, and the bris milah was pushed off to a later date. The doctors were amazed – had the milah occurred on the morning of the eighth day before the examination, the baby would have died!]
Similarly, the Sheivet HaLevi (5:148) rules that it is preferable to wait until close to sh’kiah before giving a baby a milah without his father.
IV. Right Away!
On the other hand, the Aruch HaShulchan (Yoreh Dei’ah 261:5) rules that the family should not even wait until chatzos, midday, of the eighth day. If the father is not there in the morning, the family should circumcise the baby without him. However, even the Aruch HaShulchan acknowledges that the custom is to wait until midday. See also M’or HaMilah (p. 15).
Note, though, that the sefer Zera Beirach Hashem (p. 33), as well as the sefer Nachalas Pinchas (69) limit the ruling of the Aruch HaShulchan to a situation where the father does not know about the bris milah or has not given consent to have the bris milah. However, if the father hired the mohel, but just is delayed overseas and is on his way back, the bris should take place first thing in the morning, even without the father.
V. Not Without Dad
Interestingly, the Hadras Kodesh (ibid) cites Rav A. M. Solomon who suggests a novel approach. As explained earlier, the Gemara in Kiddushin (ibid) employs different p’sukim to explain the source of a father’s obligation to circumcise his son versus the judicial responsibility. Thus, Rav Solomon understands that the entire obligation to perform a bris on the eighth day falls on the father. Others only have an obligation (in the absence of the father) to give the baby a bris, but not necessarily on the eighth day. If that is the case, where the father is absent (or legally absent) on the eighth day – either because he is overseas, dead, or a gentile – there is no permission for Beis Din to perform the bris on Shabbos. Likewise, a beis din (or the family) can – and should – wait until the father returns to perform the bris milah, even if this means performing the milah after the eighth day.
Next Week’s Topic: What should be done where a bris milah was performed before the eighth day?
Rabbi Ephraim Glatt, Esq. is Assistant to the Rabbi at the Young Israel of Kew Gardens Hills and a practicing litigation attorney. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..