In a column in the Jerusalem Post last week, Seth Frantzman wrote about Israel's new and lenient policy towards immigrants who give birth to children in Israel. The government policy required female foreign workers to leave the country with their babies within three months of giving birth. The workers would have been allowed to retain their work visas only if they returned to their home countries and then returned to Israel without their infants. The Supreme Court, in a decision written by outgoing Justice, Ayala Procaccia, decided recently that a female immigrant who gives birth here may not be deported because doing so would affect her "right to be a parent, to have a family and to support herself. The policy is incongruent with Israeli labor laws that safeguard the rights of the woman both during and after birth.” Frantzman argues that this policy is based on paternalistic or racist views because the government sees the East Asian or African foreign workers as incapable of making mature decisions. Thus when foreign workers come into this country with a visa and decide to remain illegally they are not treated as having made a conscious decision to break the law but as charity cases who need special protection. Frantzman writes that "By deporting foreign workers, their 'rights' to a family are not being harmed; they are merely being asked to be responsible adults, responsible toward the law and their children." The State has the right to set the rules for who can and cannot enter. When the State gives a woman a working visa, it a personal right, not a right that extends to the woman's whole family.
***UPDATE*** The decision from this case was on the Hebrew portion of the Dinei Yisrael exam yesterday, August 7, 2011.
Part of me has trouble with the whole notion of borders in the first place.
Lines were arbitrarily drawn on a map (usually after a conflict of some sort) and divided into countries. In order to travel from one artificial demarcation to another, a person needs permission from both countries. People who were lucky enough to be arbitrarily born in a sector of the cartesian plane abundant in basic necessities and more attempt to keep out others who were unfortunately arbitrarily born elsewhere. I understand that sometimes countries are successful because of the investments that their forbears made but it is still just a toss of the divine dice that decides who is born where.
Lines were arbitrarily drawn on a map (usually after a conflict of some sort) and divided into countries. In order to travel from one artificial demarcation to another, a person needs permission from both countries. People who were lucky enough to be arbitrarily born in a sector of the cartesian plane abundant in basic necessities and more attempt to keep out others who were unfortunately arbitrarily born elsewhere. I understand that sometimes countries are successful because of the investments that their forbears made but it is still just a toss of the divine dice that decides who is born where.
A more powerful argument for borders would be a voluntary system where people live in a country because they share certain values and goals. This is part of the federalist structure of the United States where each state was generally founded by like minded people and each is able to experiment with laws that work best in its geographic boundaries without necessarily affecting the other states. People are allowed to freely move from state to state if they like the laws of another better. But somehow when it comes to crossing international boundaries the indigenous people are very protective of their turf. There are in fact people calling for open international borders. See the website of OpenDemocracy here, the article from the Australian here, as well as the blog post here. For an interesting post on the economic effects of new immigration laws in Georgia see The fruits of immigration — Marginal Revolution. For a law review article related to this topic see Some Reflections On Israel’s Temporary Legislation On Unification Of Families by Ruth Lapidoth and Ofra Friesel.
When it comes to Israel, the issue is more challenging. As a Jewish and democratic state, how it can allow immigration and still maintain its Jewish character? If Israel threw open its borders to everyone (excluding dangerous individuals) how could it ensure that the new citizens would not vote to remove its Jewish character?
I've always wondered what the Jewish law approach to this is. It seems to me that the Torah has a concept of a Ger Toshav, a non-Jewish person who resides in Israel and resolves to keep the Seven Noahide Laws is allowed to live in Israel and is entitled to legal protections and financial aid. I am not aware of anything in the Torah permitting the deportation of law-abiding immigrants. At the same time however, the Torah gives the Courts and the King the ability to enact laws and decrees as needed so if the government determines that immigration must be restricted based on economic factors it should be in their power to do so.
I have yet to see a Jewish law analysis of this topic so if anyone knows of anything written about this please let me know.
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