Latest update: July 22nd, 2013
A proposal for changing the laws of taharat hamishpachah (family purity) was recently raised in the Israeli newspaper HaTzofeh, based on the observation that adherence to these laws may be responsible for many couples experiencing difficulty conceiving. Healthcare professionals have named this phenomenon “Orthodox Infertility.”
For some women, the time they wait before immersing in a mikvah each month likely prevents them from being able to conceive. It is halacha that is causing this infertility and, absent these laws, the couple would be able to have a child. Understandably, this problem can cause significant anguish to those who suffer from it – anguish that may make us wish we could alter the rules and allow these suffering souls, for whom we must have much sympathy, to conceive children.
This, however, is not possible.
All agree that the value of alleviating suffering is significant within halacha, but the question remains when and how to appropriately apply that factor. In this specific case, there can be no question that this valid consideration can-not override the time-honored law. But while we are not ca-pable of changing the halacha, there are other options for these couples.
The issue is more complex than can be fully presented here. The Gemara quotes Rabbi Zeira who recounts that Jewish women accepted upon themselves to be extra strict in the number of days they wait before going to the mikvah. The Rambam explains that women accepted this stringency – commonly known as chumra deRabbi Zeira – to avoid confusion in distinguishing between expected and unexpected events and risk transgressing an extremely serious Torah prohibition.
The Gemara presents this practice as an example of halachah p’sukah, an undisputed rule. The Ramban comments, “It is never permitted to be lenient about this matter.”
To the chumra deRabbi Zeira another stringency was added – one based on the Gemara and further developed in the Middle Ages – that resulted in women waiting even longer before going to a mikvah. This ruling is codified in the Shulchan Aruch and practiced universally among observant Jews.
For most women, our present stringencies work out conveniently, as the timing of immersion in the mikvah is ideal for having children. For certain couples, however, the timing does not work and they have great difficulty conceiving. The poskim of the past few decades have addressed which of the aforementioned stringent customs might be waived in order to facilitate earlier immersion for these couples.
Extenuating circumstances – such as when the Torah obligation of peru ur’vu (the obligation to have children) is combined with the emotional anguish of childless couples – do create the potential for leniency in halachic rulings. But leniencies need to be appropriately made, and the competing values need to be weighed by those most expert in these matters.
As Rav Moshe Feinstein, zt”l, points out in the context of other family laws, these types of issues are of consider-able complexity and should not be ruled upon by ordinary rabbis but only by the leading halachic experts.
Waiving the chumra deRabbi Zeira would solve a significant percentage of the infertility problems experienced in our community. Women could then go to the mikvah earlier and those with “Orthodox Infertility” problems would be able to have children. This is what has been recently pro-posed in Israel.
However, virtually all halachic authorities have forbidden this solution. For example, Rav Yosef Dov Soloveitchik, zt”l, Rav Shlomo Zalman Auerbach, zt”l, and Rav Ovadia Yosef all cite the Ramban’s aforementioned comment as proof that we may never waive the chumra deRabbi Zeira, even when it interferes with conception.
One might ask why the mitzvah of peru ur’vu does not override the rabbinic requirement for the chumra deRabbi Zeira. Rav Moshe Feinstein responds that there is no general halachic principle that permits violation of a rabbinic prohibition in order to fulfill a Torah obligation. In fact, the Gemara teaches that we may not carry a milah knife on Shabbat in an area where the rabbis forbade carrying, the biblical mitzvah of circumcision notwithstanding.
Rav Ovadia Yosef adds that a woman is not obligated in the mitzvah of peru ur’vu and that there are other halachic and medical options that allow the husband to fulfill peru ur’vu without violating this prohibition. Therefore, a woman may not ignore this rule in order to enable her husband to fulfill his obligation.
About the Author: Rabbi Chaim Jachter is a dayan with the Beth Din of Elizabeth and chairman of the Agunah Prevention and Resolution Committee of the Rabbinical Council of America.
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