For over 50 years Israel has avoided touching the Law of Return alongside other issues that are considered part of the so called “status quo.” There are sensitive subjects in Israeli public discourse, mainly in regards to State and religion, that David Ben-Gurion preferred to leave as they were when Israel was established.

However, it seems that now the future government may take action to make an historic change that will seriously affect Aliya to Israel. Cancellation of the grandchild clause will harm the purpose of the Law of Return, deepen the void between Israel and the Jewish Diaspora, divide families, and prevent young people of Jewish origin educated to a love of the Land from linking their fate with Israel, the land of their forefathers.

Aliya to Israel for children and grandchildren of Jews

Governments have risen and fallen in Israel, but for 50 years the state has avoided touching the clauses of the Law of Return as an issue considered part of the status quo. As is well known, when the Law of Return was legislated in 1950, it did not include a definition of who is a Jew. In 1970 the definition was added to the law, following the Orthodox Jewish halacha: a child of a Jewish mother. The amendment to the law was reached after a political furor surrounding a Supreme Court ruling to register children of a Jewish father and non-Jewish mother as having a Jewish nationality in the Interior Ministry. Alongside the narrowing of the definition of being Jewish in the 1970 amendment to the Law of Return, the circle of those eligible for Aliya was also expanded to include children and grandchildren of Jews, including their spouses.

Over the years, the grandchild clause has been criticized by the religious parties, but only recently does it appear that the conditions are ripe for them to demand amending the Law of Return. In fact, we read in the media that this issue is a condition for them joining the future coalition headed by Benjamin Netanyahu. What has changed? The Israeli public has become more right-wing and religious, and the Shas party, which formerly sat on the fence, is becoming more and more identified with the right-wing worldview, alongside conservatism on issues of Jewish affiliation. At present, they feel confident enough to “break the rules” and with them the status quo, taking advantage of their political power that the public has granted them, together with the other components of the emerging coalition.

Cancelling the grandchild clause of the Law of Return is not a new idea, but rather was suggested as a private initiative by MK Bezalel Smotrich, head of the Religious Zionist party in 2020. But now Smotrich, enjoying the public support in view of the election results, is determined to complete the process, a view he seemingly shares with the other partners in the government.

Cancel the grandchild clause – damage to the purpose of the Law of Return

The main justification for cancelling the grandchild clause is, as noted, the fear of Israel receiving Olim (new immigrants), primarily from the former Soviet Union and Eastern Europe, who are not halachically Jewish, and thus harming the country’s Jewish character. Indeed, data show that over half of the Olim to Israel since the big wave of Aliya in 1990 are not halachically Jewish, representing some half-a-million Israeli citizens at present who are defined as “religion-less” in the Israeli population registry. Also, since the war between Russia and Ukraine broke out, the overwhelming majority of immigrants to Israel, some 60,000, are from these two countries, most of them not considered by the local rabbinate as Jewish.

However, the purpose of the Law of Return is clear – to enable Jews and their descendants from all over the world to immigrate to Israel in order for Israel to be the national home of the Jewish people. The grandchild clause was not added without reason, but rather constitutes a precise expression of the law’s purpose. Even if the grandchild is not halachically Jewish, and only one’s grandfather or father is Jewish, why should one suppose that his or her connection to Israel is less strong? Does the gender of the Jewish parent determine his connection to Israel?

Judaism researcher Prof. Sergio Della-Pergola claims that erasing the grandchild clause will deny the right to Aliya for 3 million grandchildren of Jews worldwide. These are people who are currently eligible under the Law of Return, of which some were certainly raised with values of Zionism and love of the Land of Israel, identify as Jews and sometimes even suffer antisemitism in their countries of origin, even though they are not considered Jewish by Halachah. Cancelling the grandchild clause will reduce the number of Olim who seek to contribute to the country, serve in the IDF, and make their homes in Israel.

Beyond the irrationality and injustice of narrowing the Law of Return, it will deepen even further the existing tension between Israel and Diaspora Jews, many of whom are married to non-Jews. It would be better to act for unity and not division, equality and not discrimination, applying healthy logic rather than the pedanticism of a narrow religious definition. Cancelling the grandchild clause in the Law of Return will in fact cause the most harm to those who wish to make Aliyah, move to Israel and strengthen the State of Israel.

Advocate Joshua Pex is a partner in the law firm of Cohen, Decker, Pex & Brosh and a regular contributor to Israel Today.