The Halakhic and Ethical Issues Regarding Early Ovulation and
Conception
Liat Greenwood
Introduction to the problem
V’el isha b’nidat tumata lo tikrav l’galot ervata.
“To a woman in the niddah state of ritual impurity, you may not come near to
uncover her nakedness.” (Leviticus 18:19)
The sages explain that a woman enters the status of a niddah with the release
of uterine blood; as a result, she becomes Temeah, ritually impure, and may not
cohabit with her husband. In Torah times, the woman would have been able to change
her status to that of Tehorah, ritually pure, by immersing in the Mikveh, a ritual bath,
after seven days. She could then resume intimate relations with her spouse.
With the arrival of the Israelite nation in their homeland and the rise of the
rabbinic leadership, the timing by which a woman achieved the status of Tehorah
underwent a significant transformation. The rabbis mandated that a woman would be
considered a niddah for the first four to five days of her menstrual cycle (four
according to the tradition of the Sephardic Jews–from Arab and Spanish lands– and
five according to the Ashkenazic Jews – from the remainder of Europe). But in
addition, she would now be considered a niddah for the following “seven blood-free
days” as well (at a minimum, a total of eleven days for Sephardic women and twelve
days for Ashkenazic women).1 These laws remain in effect to this day and an
The progression of these laws will be described in greater depth in a later section, “The Niddah
Status.”
1
observant Jewish woman is bound to adhere to them.2 Though the extension of the
niddah status by several days was ultimately rabbinic in origin, modern Orthodoxy
holds that this extension has the same weight and force as the original Torah
injunction.
How does this work from a practical standpoint in modern times? During the
seven blood-free days, a woman must have no physical evidence of uterine bleeding.
In the afternoon at the conclusion of her actual bleeding (a minimum of four or five
days, as determined by the woman’s origin and family tradition), she performs an
internal vaginal check using a white cloth. She then visually inspects the cloth to
ensure that there are no traces of red stain. If she determines that the cloth is free of
this residue, she may begin counting her seven blood-free days; this initial
examination is known as a hefsek tahara. During the successive week, she performs
the same internal check, which is now known as a bedikah, on a daily basis to ensure
that her status is unchanged from the moment of her hefsek tahara. Under normal
circumstances, a rabbi is not consulted in these matters, and the woman relies on her
own sense of integrity to declare that she has completed her seven blood-free days.
Following her last bedikah, she is permitted to visit the mikveh and is encouraged to
resume intimacy with her husband.
The connection between these seven blood-free days and fertility may not be
apparent to those without an understanding of female physiology. But if a woman
generally ovulates during her seven blood-free days, it is likely that she will be unable
to conceive during intercourse. This condition is known in the Modern Orthodox and
Ultra-Orthodox communities as “early ovulation” and the result is called “Halakhic
2
It is important to note that with the destruction of the second Temple in Jerusalem, other laws of
impurity became null and void. The laws of niddah remain intact because of the specific Biblical
prohibition against sexual relations with a niddah and its unique punishment of karet – spiritual
excommunication.
Infertility,” that is, infertility that is a direct outcome from the practice of halakha,
Jewish law. According to a recent study in 2012 by a group of gynecologists in Israel,
21% of women (who observe the laws of niddah) reported that ovulation occurred on
average 24 hours or more before their mikveh immersion.3 This means that they were
halakhically infertile since they were prohibited to their husbands at the time they
would have been able to conceive. Infertility, resulting from early ovulation combined
with adherence to the laws of niddah (i.e., ovulation before immersion in the mikveh
and resumption of sexual relations), creates a number of dilemmas, both ethical and
halakhic in nature.
Physiology of Ovulation and Conception
The female reproductive system's primary organs are the ovaries. The two
ovaries are located on the lateral walls of the pelvis, and are attached to either side of
the uterus or womb by the ovarian ligaments. The ovaries are responsible for creating
the ova (the female gametes or eggs). They also release the female hormones
estrogens and progesterone, which help regulate the menstrual and fertility cycle,
among other functions. An external view of an ovary shows that it is relatively small
(about the size of an almond) and spherical. An internal view of an ovary shows many
sac-like structures called ovarian follicles, each containing an immature ovum called
an oocyte, engulfed in a layer of cells, called follicle cells. Each ovarian follicle goes
through stages of growth while the egg is maturing. The follicle expands outwards
creating open space between the maturing egg and the cell layer. This space is called
3
161 women, ranging in age from 22 to 30, were followed for a three-year period. Haimov-Kochman
MD, Ronit, Chana Adler MD, Eliana Ein-Mor MSc, Daniel Rosenak MD, and Arye Hurwitz MD.
"Infertility associated with Precoital Ovulation in Observant Jewish Couples; Prevalence, Treatment,
Efficacy, and Side Effects. "Israel Medical Association Journal 14 (2011): 100-103.
the antrum and is filled with liquid. When the ovarian follicle reaches the stage where
the antrum is fully developed, it is called the vesicular or Graafian follicle; after this
point, the ovum is mature and ready to be sent out from the ovary into the fallopian
tubes in the process called ovulation.
In the general population of women, ovulation occurs on average every 28
days--towards the end of the proliferative stage--around days 6-14 of a woman's cycle
(counted from the first day of menstruation). After ovulation occurs, the mature ovum
will live for up to 24 hours before disintegrating. Once it is destroyed, conception
cannot occur until the woman ovulates again during her next cycle. If a Jewish
woman ovulates regularly during any of the first six blood-free days (i.e., before she
has immersed)--equivalent to the proliferative stage of an average woman's cycle-then, she will be unable to conceive during intercourse, as there is no egg present to
fertilize. Using advances in modern medicine and technology, and by turning to
leniencies in Jewish Law, our sages have devised ways to combat the problem of
halakhic infertility.
The Niddah Status – Historical Overview
Ve'ishah k-tihiyeh zavah dam yihiyeh zavah bivsarah shivat yamim tihiyeh
veniddatah vechol-hanogeyah bah yitmah ad-ha’arev
“And when a woman has a discharge and the discharge of her flesh is blood,
she will be a zavah for seven days, and everyone who touches her will be
ritually impure until the evening.” (Leviticus 15:19)
The Torah mandates that a woman who has expelled uterine blood is not
permitted to engage in sexual relations with her husband for a seven-day period,
beginning with the onset of bleeding. The punishment for transgressing this
commandment is severe – that of Karet, spiritual excommunication -- as ritual purity
is at stake. But the Torah also speaks about another status which is historically
relevant, as it relates to the ultimate expansion of the seven-day waiting period to the
current minimum of eleven or twelve days. The Torah introduces the concept of a
zavah, a woman who encounters uterine bleeding at a time outside of her expected
menstrual period. According to the Torah, a zavah must count seven blood-free days
following the cessation of her flow before she can become tehorah and is permitted to
her husband. In practice, however, women were unable to distinguish between the
laws of the zavah and niddah. Therefore, in order to ensure that they were not
transgressing a Torah commandment, and were at risk for the punishment of Karet,
Jewish women started to observe their own stringencies. The practice became
widespread to consider all uterine bleeding as rendering them zavah -- and not niddah
-- thus requiring them to count seven blood-free days only after all uterine bleeding
had ended. This is known as Takanat Rebbi Zeira, the ordinance of Rabbi Zeira, and
is recounted in the Talmud as follows:
Amar Rabbi Zeira: B’not yisrael hechmiro al aztman, she’afilo ra’ot tipat dam
chardal – yoshevet aleyha shiva neki’im
Rabbi Zeira said: the daughters of Israel accepted a stringency on themselves,
that even if she saw only a drop of blood the size of a mustard seed, she would
sit on it for seven blood-free days.4
In Jewish law, it is customary that a chumra (stringency) created or codified by the
sages of previous generations takes on the status of Torah law.
It is clear that with Takanat Rebbi Zeira, a woman now needed to wait until
the conclusion of her uterine bleeding before performing a hefsek tahara and
beginning the count of the seven blood-free days. But how did the rabbis determine
that a woman needed to wait at least four of five days before starting the count? What
would happen in the case of a woman whose bleeding lasted only three days? The
rabbis added an additional day (or two, depending on regional differences) because of
4
BT Niddah 66a
the possibility that the woman and her husband had sexual relations just prior to the
onset of her niddah status. They feared that her seven days would be tainted by the
expulsion of semen, which would cause further impurity forcing her to start a
recount.5
The extension of the counting period by this many days may overlap with
ovulation. Hence, a direct result of Takanat Rebbi Zeira is that there are women who
will become Halakhically Infertile. That is, they will not be able to conceive naturally
during the time that they are permitted to their husbands.
Halakhic (Jewish Law) Solutions
If a women suspects that she ovulates during the period in which she is
halakhically prohibited to her husband, she should confirm that this is, in fact, the
case by performing a test with an ovulation kit (available over-the-counter at
pharmacies). Once confirmed, she should ensure that she is counting her seven
blood-free days correctly, before considering any other halakhic or medical
interventions. She may only be menstruating for the minimum four or five days
(according to her family tradition), but think that she is menstruating for longer,
especially if her hefsek tahara is questionable. The woman would need to submit her
hefsek tahara cloth to a rabbinic authority to confirm whether or not she has identified
her status correctly. If she has misunderstood the colors on the hefsek tahara, then she
will be encouraged to consult with a rabbi during the next cycle, so that she can attend
mikveh at the earliest possible opportunity and not delay unnecessarily. If she is
counting her days properly, then halakhic leniencies can be taken. If an Ashkenazic
5
For a more elaborate discussion, see: Shulkhan Arukh, Laws of Niddah, 196
woman is only menstruating for four actual days, many rabbis will allow her to
perform a hefsek tahara at that time (as is the Sephardic custom).6 She would still
wait her seven blood-free days, but they would be pushed forward so she could
potentially ovulate after her mikveh visit (or no more than 24 hours beforehand).
According to mainstream Orthodox view, if none of the above works, and she wants
to have children while still observing Jewish law, she has to proceed with medical
intervention.7
6
Rabbi Eliezer Waldenberg, author of the book of responsa, Tzitz Eliezer, and Rabbi Moshe Feinstein
were among the first rabbis to offer Halakhic opinions on the question of shortening the total number of
days of menstrual bleeding. Zimmerman MD, Deena. "Hormones, Health and Halacha." Lecture,
Midreshet Yom Rishon from Yeshiva University, New York City, November 8, 2009.
7 An opposing view, espoused by a gynecologist and a Rebbetzin, will be presented later, along with
responses from the rabbinate.
Medical Interventions
Clomid
The drug most commonly recommended by doctors for the problem of
halakhic infertility is Citamine Citrate (more commonly known by the brand name
Clomid). Clomid is a non-steroidal ovulatory stimulant. It interacts with estrogenreceptor-containing tissues (i.e., the hypothalamus, pituitary, ovary, endometrium,
vagina, and cervix). The cost for the drug over one cycle appears to run between $10$100, depending on dosage, with an average cost of approximately $40.8
Citamine Citrate must be prescribed by a doctor due to its potential side
effects, as explained in the Physician’s Drug Reference9. 1.5% of women taking
Clomid reported blurring and/or other issues with their eyesight. In fact, a woman
taking Clomid is advised not to drive or use machinery. For women with careers
requiring perfect vision, for example--a surgeon, Clomid may not be an acceptable
means to solve Halakhic infertility. 5.5% of women reported having abdominal and/or
pelvic pain and distension and bloating. And the risk of multiple pregnancies was
7.98%, higher than with than regular conception (directly due to overstimulation in
the ovaries). In addition to these risks, 13.6% of women reported ovarian
enlargement, 10.4% reported vasomotor flushes, 2.2% reported nausea and or
vomiting, 2.1% reported breast discomfort, 1.3% reported moderate to severe
headaches, and 2.1% reported abnormal uterine bleeding (which would defeat the
purpose of using this particular drug for the purpose of halakhic infertility).
When taking Clomid, a woman is at risk for Ovarian Hyperstimulation
Syndrome (OHSS). The risk of OHSS is higher in women under the age of 30. OHSS
8
Sherbahn MD, Richard. "Clomid Fertility Drug Treatment Protocols, Clomiphene Citrate." Advanced
Fertility Center of Chicago Infertility & IVF Specialists. http://www.advancedfertility.com/clomidtreatment.htm (accessed May 26, 2013).
9
Risk Evaluation & Mitigation Strategies. "Physician’s Desk Reference for Clomid." Physicians' Desk
Reference. products.sanofi.us/clomid/clomid.pdf (accessed May 26, 2013).
is a serious medical disorder that can progress very rapidly. OHSS causes a build-up
of fluid leading to ovarian enlargement, gastrointestinal symptoms, ascites (fluid in
the peritoneal cavity), dyspnea (shortness of breath), oliguria (a low output of urine),
and pleural effusion (fluid in the lungs). If used for more than one cycle, taking
Clomid may increase the risk of developing an ovarian tumor. According to a study
conducted between 1965-1985, Clomiphene Citrate used for one cycle increased the
risk of uterine cancer by 1.79%.10 Finally, there have been no studies to show how
Clomid reacts with other drugs.
There is also the possibility that a woman will not be allowed to take Clomid
due to medical contraindications. A woman cannot take Clomid if she is prone to
abnormal ovarian cysts, which occur in 67% of women. Additionally, she may not
take Clomid if her estrogen levels are too low, or if she has a history of liver disease,
thyroid problems, or adrenal dysfunction.
Intrauterine Insemination (IUI)
Intrauterine Insemination, known more commonly as IUI, is a relatively safe
medical procedure (it is a type of Artificial Insemination, AI), which takes place while
a woman is ovulating. The IUI procedure takes around twenty minutes and costs
between $500 and $1,000.11 Women under 35 years of age have a 10% to 20% chance
of getting pregnant after one IUI cycle. Women between the ages of 35 and 40 have a
10
This study must be considered carefully as it involved woman who were infertile and, in many cases,
obese. Infertility of itself may increase the risk of uterine cancer, rather than medical treatment for
infertility. Althuis, Michelle D., Kamran S. Moghissi, Carolyn L. Westhoff, Bert Scoccia, Emmet J.
Lamb, Jay H. Lubin, and Louise A. Brinton. "Uterine Cancer after Use of Clomiphene Citrate to
Induce Ovulation."American Journal of Epidemiology 161, no. 7 (2005): 607-615.
11
Mayo Clinic Staff. "Intrauterine insemination (IUI) - MayoClinic.com." Mayo
Clinic. http://www.mayoclinic.com/health/intrauterine-insemination/MY00104 (accessed May 26,
2013).
10% chance, and women over the age of 40 have only a 5% chance of getting
pregnant after one cycle of IUI. 12
Beforehand, a woman takes Follicle Stimulating Hormone (FSH) or another
ovary stimulating drug to ensure that she will produce enough ova for the procedure.
Separately (and usually at an earlier date), her husband's sperm is harvested in
accordance with halacha and is then cleaned.13 A rabbi can be present in order to
ensure that the husband’s sperm is being used, and not that of another man, thereby
preventing issues of adultery and relations with one’s close relative. The sperm are
then injected into the uterus so that the ova can be fertilized. The main risks posed by
IUI are multiple pregnancies due to the use of ovary stimulation drugs. Less than 1%
of women acquire infections from the procedure.14
In Vitro Fertilization (IVF)
Another option for the halakhically infertile woman is in vitro fertilization,
also known as IVF. IVF costs between $1,200-1,500 and has a success rate of 39.6%
for women under 35 during one cycle, significantly higher than that of IUI. Women
over the age of 40 have an 11.7% chance of becoming pregnant after a single cycle of
IVF, also significantly higher than with IUI.15
Because this is a ritual purity issue, a woman cannot have relations with her
husband during the seven blood-free days. However, that does not prevent a doctor
12
Mayo Clinic Staff. "Intrauterine insemination (IUI) - MayoClinic.com." Mayo Clinic.
http://www.mayoclinic.com/health/intrauterine-insemination/MY00104(accessed May 26, 2013).
13
The Torah only permits seminal emissions during sexual intercourse. As such, there are some rabbis
who categorically forbid IUI and IVF. Most hold that there are halakhic means for harvesting sperm,
with post-coital collection as the favored method. These issues will not be addressed further as they
are outside the scope of this paper.
14
Mayo Clinic Staff. "Intrauterine insemination (IUI) - MayoClinic.com." Mayo Clinic.
http://www.mayoclinic.com/health/intrauterine-insemination/MY00104(accessed May 26, 2013).
15
IVF permits the use of pre-gestational diagnosis (PGD), whereas IUI does not, and this is considered
advantageous by some rabbis and doctors. PGD can be used to screen for genetic diseases such as Tay
Sachs.
from harvesting her eggs during the time she normally ovulates for later implantation.
Rabbi Eliezer Waldenberg, a former judge on the supreme rabbinical court in
Jerusalem, did not allow IVF because he was of the opinion that IVF is an unnatural
process. He wrote in his book, Tzitz Eliezer, "the very order of nature has been
altered,"16 when conception occurs outside of the woman's body.17
Before a woman would normally ovulate, she would take drugs such as
Gonadotropins (which contain FSH) to stimulate her ovaries so that during this
particular cycle, they would produce more than one to two eggs. The eggs are
harvested during ovulation. This can be done either laparoscopically or through
aspiration guided by ultrasound. Separately, her husband's sperm is collected in a
halakhically acceptable manner. A doctor will then fertilize the eggs with the sperm
in a petri dish. As an extra precaution in modern times, a rabbi can be hired to oversee
the process and make sure the husband's sperm has been correctly mated to the
woman's eggs.
The fertilized eggs, now called embryos, will go through the stages of early
cleavage (a cluster of four cells), morula (expansion to a ball of cells), and the early
blastocyst stage. Once the zygotes reach the early blastocyst stage, no more than three
or four are implanted into the wall of the uterus--called the uterine lining--into its
16
Tzitz Eliezer Responsa 45
It is not even clear that IUI and/or IVF fulfill the Biblical obligation for a man of Pru Urvu to “be
fruitful and multiply,” which is found twice in the Torah. Rabbi Yaakov Breisch, in his responsum
“Chelkat Yaakov Even Ha’Ezer,” believes that this is the case. In fact, he holds that if the woman’s
husband were to die, she would need to go through a Levirate marriage in order to have children with
his brother. In contrast, the Chief Rabbi of England, Lord Jonathan Sacks, released a statement when
IVF pioneer Robert Edwards died, saying: “…we see the in vitro treatment of infertility as a sacred
task, one that inspired members of our own community like Lord Robert Winston to make their own
contributions to the field. Five million children have been born thanks to Robert Edwards’ work: five
million blessings brought into the world.”
17
outermost layer called the endometrium.18 From there, the pregnancy will most likely
continue normally leading to a single birth or multiple births.
As with any medical procedure, IVF has its side effects—both on the mother,
her husband, and their baby. Although the aspiration procedure is generally
considered safe, it can cause damage to the bowel, blood vessels, or bladder. It may
also cause some bleeding and or infection. Some babies who are conceived via IVF
are born premature with low birth weights, in single as well as multiple births.
Research shows that uterine bleeding in the first trimester is more common in women
who have conceived via IVF.19
A major side effect of IVF is its effects on mental health, rather than physical
health – namely, the stress that it causes for the woman, for her spouse and on their
relationship. One study observed that women undergoing IUI and IVF tended to have
higher distress levels, be more fatigued, and have fewer social contacts than their
spouses. The same study notes that after failed IVF cycles, 13% of women had
suicidal thoughts.20
Due to the fact that more than one embryo is usually implanted into a mother's
uterus, IVF poses a stronger risk of multiple births than does IUI and Citamine
Citrate, if more than one embryo is implanted. The risks of multiple births include:
premature labor and delivery, low birth weight (under 2500 grams or 5 pounds, 8
ounces), intrauterine growth restriction (also known as IUGR), preeclampsia (the
18
Bracha Rutner, a Yoetzet Halacha (advisor on matters related to niddah) reports that more doctors
are choosing to implant only one or two embryos at a time. Rutner, Bracha. Interview by author. Phone
interview. USA, April 24, 2013.
19
Mayo Clinic Staff. "In vitro fertilization (IVF) - MayoClinic.com." Mayo Clinic.
http://www.mayoclinic.com/health/in-vitro-fertilization/MY01648 (accessed May 26, 2013).
20
Boivin, Jacky, Lena Andersson, Agneta Skoog-Svanberg, Anna Hjelmstedt, Aila Collins, and
Torbjorn Bergh. "Psychological reactions during in-vitro fertilization: similar response pattern in
husbands and wives." Human Reproduction 13, no. 11 (1998): 3262-3267.
chances of preeclampsia are doubled with multiple births), gestational diabetes,
placental abruption, miscarriage, and cesarean section.
Women with single pregnancies tend to deliver after 39 weeks of pregnancy,
while under 37 weeks is considered premature. With each additional baby in utero,
gestation length decreases. On average, twin pregnancies remain 36 weeks, triplets
remain 32 weeks, and quadruplets remain 30 weeks in the womb. 60% of twins are
delivered preterm, while 90% of triplets are delivered preterm. Babies born
prematurely run the risk of both short-term and long-term risks. Short-term risks
include: breathing difficulty (due to under-developed lungs), intraventricular
hemorrhage (bleeding in the brain), hypotension (low blood pressure), hypothermia
(poor temperature regulation), and anemia. Long-term risks include: a higher risk of
Cerebral Palsy, impaired cognitive skills and visual, dental, and hearing problems.
Ethical Issues regarding Medical Interventions
Clomid, IUI and IVF are the mainstays of medical treatment for halakhic
infertility, but each has its own costs – both financial and medical. In order to
conceive children, a halakhically infertile woman must invest money and significant
time into a procedure that may or may not prove successful. In addition, she needs to
weigh the benefits of having a child against the unknown health consequences
(physiological and psychological). As written in a study researching the effects of
fertility treatment on stress, “Infertility treatments are invasive, expensive, timeconsuming and emotionally draining. Treatment involves the repetitive raising and
dashing of the hope of pregnancy, perhaps resulting in an increase in the saliency of
parenthood identity and a heightened sense of distress in the face of the failure to
attain parenthood.”21 Another ethical issue that arises is the allocation of medical
resources. Funds, time, and effort, which are directed towards fertility treatments,
could instead serve those with significant medical needs.
Divorce
The Babylonian Talmud states that a man may divorce his wife if she has
failed to produce a child after ten years, so that he may marry another woman and
start a family.22 This begs the question – Can a man divorce his wife if she refuses to
undergo any of the aforementioned medical therapies despite struggling with halakhic
infertility? Rabbi Dr. Harvey Belovski of the Golders Green Synagogue in London
21
McQuillan, Julia, Arthur L Greil, Lynn K White, and Mary Casey Jacob. "Frustrated Fertility:
Infertility and Psychological Distress Among Women." Bureau of Sociological Research - Faculty
Publications 13 (2003): 1007-1118.
http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1012&context=bosrfacpub&seiredir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar_url%3Fhl%3Den%26q%3Dhttp%3
A%2F%2Fdigitalcommons.unl.edu%2Fcgi%2Fviewcontent.cgi%253Farticle%253D1012%2526contex
t%253Dbosrfacpub%26sa%3DX%26scisig%3DAAGBfm0XuKZvqT2xTF_sVrLCHHaD4KFfaA%26
oi%3Dscholarr#search=%22http%3A%2F%2Fdigitalcommons.unl.edu%2Fcgi%2Fviewcontent.cgi%3
Farticle%3D1012%26context%3Dbosrfacpub%22 (accessed May 26, 2013).
22
Mishnah, Tractate Yevamot (laws relating to levite marragies), Chapter 6, Mishnah 6
writes that, although this is possible, “in this day and age, we try to do everything
possible to make sure that this does not happen, and it rarely does.”23
Causing Harm
Since there are inherent health risks associated with these medical procedures,
the question arises -- Can a woman cause potential harm to herself for the sake of
having children while maintaining the laws of niddah? The actual positive
commandment to “be fruitful and multiply” was given to Jewish men only.24 Since the
wife is not commanded to have children, there is no halakhic reason for her to put
herself in any unnecessary danger in order to produce a family.
There are several other Torah commandments that are relevant to this issue as
they explore the obligation to avoid danger. It is a positive Biblical commandment
for the individual to avoid harm. But there are also two relevant negative
commandments derived from the Torah; an individual may not harm him/herself (i.e.,
the flip-side of the positive commandment) and the individual may not harm others.
The negative commandment against harming others is derived from a passage in
Deuteronomy:
Arba'im yakenu lo yosif pen yosif le hakoto alelleh makkah rabah, veniklah
achicha le'eineicha.
“Forty lashes you may give him; you shall not add, for if you add, and beat
him more than these lashes, then your brother will be ashamed before your
eyes.” (Deuteronomy 25:3)
The rabbis of the Babylonian Talmud learn from this passage that since one cannot
add to the punishment (in the form of lashes) of a guilty man, even more so, one
should not harm or injure an innocent individual.25 This commandant seems to present
23
Belovski, Rabbi Dr. Harvey. Private email correspondence. England, May 12, 2013.
Mishnah, Tractate Yevamot (laws relating to levite marragies), Chapter 6, Mishnah 6
25
TB Ketbubot 32b
24
a problem for a Jewish doctor who prescribes any medication or performs surgery that
is not absolutely necessary for a woman’s health, and which could cause harm to the
woman.
As for the commandment to keep oneself healthy (observed as both a positive
and a negative commandment), Maimonides wrote:
Ho’eel v’heyot haguf bari v’shalem midarchei hashem hu, sheharei ii efshar
sheyavin oh yada davar miyediyat haboreh v’hu choleh, lefichach tzarich
l’harchik adam atzmo midvarim hama’avadim et ha-guf, v’lihanhig atzmo
bidvarim hamavrin v’hamalchimim
As a whole and healthy body are one of the ways of God and it is impossible
that one will understand or know the Creator when he is ill, one has to distance
oneself from things that destroy the body and engage in practices that are
healthful and healing.26
Rabbi Moses Isserles reiterates this theme in the codification of Jewish law known as
the Shulkhan Arukh:
V’chen yizhar mikol dvarim hamevi’im lidei sakanah, ki sakanata chamira
m’isura, v’yesh lachush yoter l’safek sakanah milisafek issur
And similarly, he should be careful with those things that lead to danger, and
danger is more severe than prohibition, and one has to be more careful about a
possible danger than a possible prohibition. 27
These sources elucidate the problem for a woman electing to use a medical solution to
halakhic infertility; if there are any medical contraindications, she could be violating
both the negative commandment against self-infliction of injury and the positive
commandment to keep herself healthy.
Upholding Takanat Rebbi Zeira
The Torah calls for a seven-day waiting period for a woman who is niddah.
Ever since the sixth century, rabbis have upheld Takanat Rebbi Zeira, that women
should count four to five days following the appearance of uterine blood, before
26
27
Maimonides on Yoreh Deah 4:1
Shulkhan Arukh Yoreh Deah 16
beginning the count of seven blood-free days. No Modern Orthodox rabbi has ever
publicly stated that he would allow a woman to count seven days of separation
beginning from day one of her menstrual cycle, rather than from day four or five (i.e.,
adhering to Torah law, but forsaking the rabbinic stringency). In this case, the
Orthodox establishment believes that rabbinic law holds greater weight as it is meant
to safeguard the correct performance of the Torah decrees. However, there are
anecdotal reports, that some rabbis may have allowed this privately on a case-by-case
basis.28
In 2006, Dr. Daniel Roznak, a gynecologist at Hadassah Hospital, in
partnership with Rivkah Shimon, an Orthodox Rebbetzin from Pisgat Ze’ev,
Jerusalem, caused furor in the religious community after publishing an article in the
journal HaTzofeh, calling for a return to the seven-day waiting period mandated in the
Torah (i.e., counting from the first day of uterine bleeding).29 The authors called for
the elimination of Takanat Rebbi Zeira. They followed up with the publication of a
book30 and website,31 on which they write:
The “Halakhic” roller-coaster suggested today as a “solution” to the problem
of religious sterility by feeding perfectly healthy women hormones they do not
need, while risking their health and lives is another facet of the moral and
ethical value of this atavistic stringency… It is obvious that the decrees of the
rabbis were the best suited for their time and age, but it is also obvious that if
they were aware of the medical knowledge we possess today, they would be
the first to cancel this specific Chumra… it is obvious that we are dealing with
a non-moral solution…”
Reactions to the writings of Dr Roznak have been virulent. Rabbi Bornshtein,
director of Puah (the Institute for Halakhic Infertility in Israel), is highly critical of the
way in which Roznak publicizes his ideas. Rabbi Bornshtein argues that rather than
28
Rutner, Yoetzet Halacha Bracha. Phone interview by author. April 24, 2013.
Ettinger, Yair. "Be pure or be fruitful."Haaretz (Tel Aviv), December 10,
2006. http://www.haaretz.com/print-edition/features/be-pure-or-be-fruitful-1.206733 (accessed May
26, 2013).
30
‫להחזיר טהרה ליושנה‬
31
tehora.co.il
29
approaching this issue from the bottom-up (i.e., bringing it to the masses to advance
change), it should have been approached from the top-down (i.e., discussing it with
the rabbinic authorities) in order to actuate change.
It is unfortunate that my request [for Roznak to refrain from publishing] was
not accepted and that we arrived at an article such as this. Publications such
as these cause suffering to people with urgent need who would have benefitted
from the provision of a personal psak (Halakhic ruling), but today we
encounter a greater fear -- lest the exception becomes the rule.32
Though Rabbi Bornshtein’s language is vague, he alludes to the fact that he may
allow for leniencies on a private, case-by-case basis (though those leniencies are
never defined). He is deeply disturbed, however, that Dr. Roznak has brought
attention to the matter and carried it from the personal realm into the public realm.
Rabbi Bornshtein also addresses major gaps in Dr. Roznak's understanding of
Jewish Law. He strongly disagrees with Dr. Roznak’s assertion that our sages did not
fully understand fertility and the concept of ovulation. He writes:
Even if medical technology during the time of the sages was not at the level it
is today, there is no need to underestimate their intelligence or mental
sensibilities. Even then, the sages also knew the period for conception, as they
discussed in Niddah (a section of the Babylonian Talmud), "No woman
conceives, unless she has just completed her immersion." Any intelligent
individual understood that there were those who missed this time period (for
conception). It is possible they solved this through vaginal insemination
because there was no need for the medical wisdom of the 21st century to
conduct this treatment.33
Furthermore, Rav Bornshtein brings in the professional medical opinion of Dr. Chana
Katan, a gynecologist, who disagrees with Dr. Roznak’s statistics--from the potential
dangers of possible medical intervention to the percent risk of breast cancer from the
use of hormones such as Clomaphine Citrate. Dr Katan minimizes the risks of shortterm hormone use (claiming that they may even be protective against some cancers),
and accuses Roznak of leaning towards extremes when evaluating medical data.
32
33
Author’s Translation
Author’s Translation
I want to say unequivocally, and I repeat it at almost every medical
conference--there is not a single posek (halakhic authority) in the world that
would shorten the seven blood-free days.34
Rabbi Yuval Cherlow, a well-known rabbinic leader and Yeshiva educator in Israel,
reinforces this notion:
The severity of Rabbi Zeira already ceased to be a severity in the time of the
Babylonian Talmud and was accepted by Israel in its entirety. All authorities
without exception have understood this severity as law.35
However, he also writes that avoidance of medication for treatment is preferable and
that the issue of Takanat Rebbi Zeira is a discussion for a later time and place. It is
clear that Roznak’s ideas are rejected by all mainstream halakhic authorities, at this
time, however, he continues to be an outspoken advocate on behalf of the halakhically
infertile woman and has succeeded in raising awareness to the questions that rabbis
must consider when they provide rulings.
Conclusion
The psychological effects of infertility were evident even in biblical times. We
learn in the Torah about Sarah, Rachel, and Chana who went through trying times
before they were finally able to conceive. Sarah was distressed to the point that she
begged her husband, Abraham, to take her maidservant as a concubine in order to
have children.36 Rachel also pleaded with her husband, Jacob, to do the same.37 In
addition, Rachel relinquished a night with Jacob to her sister, Leah, as part of a deal to
acquire mandrakes, which she believed would help her to become pregnant.38
Chana’s anguish can be understood in her very emotional prayer to God at the Tent of
Author’s Translation
Author’s Translation
36
Genesis 16:2
37
Genesis 30:3
38
Genesis 30:15
34
35
Meeting; she was so involved and physically demonstrative that the High Priest
thought she was a drunkard.39
Modern medical innovations have made it possible for women who are
Halakhically infertile to join the ranks of these Biblical heroines, and bear children.
But at what cost? These women may face tremendous stresses – stresses that are
psychological, physical and financial in nature. At this point, these stresses are still
the subject of discussion and debate, as there is no agreement in the medical
community about the effects of the cited medical interventions on women’s health. It
is encouraging to note that Nishmat, a prominent women’s learning institute that runs
the website Yoatzot.org (to assist women in answering queries about niddah), is
currently enrolling women in a study to gather more information on halakhic
Infertility; hopefully, this study will also make observations on the psychological
impact of this condition.40 Ultimately, each couple needs to weigh the potential risks
against the possible reward/s, and the rabbis who lead them need to consider the
ethical boundaries when guiding them.
39
Samuel 1:13
"Golda Koschitzky Center for Yoatzot Halacha." Golda Koschitzky Center for Yoatzot
Halacha. http://www.yoatzot.org/(accessed May 26, 2013).
40