CCAR RESPONSA
American Reform Responsa
156. Birth Control
(Vol. XXXVII, 1927, pp. 369-384)
In considering the question of the Talmudic-Rabbinic attitude towards birth-control we must seek to clear up the confusion that prevails in the discussion of the subject and define the principles involved in the whole question.
Some rabbis are inclined to regard all forms of birth-control, excepting self-control or continence, as “Hotsa-at shichvat zera levatala,” and therefore put them in a class with masturbation or self-abuse. Hence, they believe that by citing Agadic sayings from the Talmudand the Midrashim against the evil practice of self-abuse, they have also proved the opposition of Rabbinic law to the various forms of birth control. Such a method, however, is unscientific and not justified in the discussion of such a serious and important question.
In the first place, the method of adjudging questions of religious practice on the basis of Agadic utterances is altogether unwarranted. The Talmudic rule is “Ein morin min hahagadot,” i.e., that “We cannot decide the questions of practice by citing Agadic sayings” (Yer., Chagiga I.8, 76d). The Agada may set up an exalted ideal of the highest ethical living. It may teach the lofty precept “Kadesh atsmecha bamutar lecha,” to aspire to a holy life and to avoid even such actions or practices which–though permitted by the law–do not measure up to its high standard. But it does not rest with the Agada to decide what is forbidden or permitted by the law. “The Agadist cannot declare anything forbidden or permitted, unclean or clean,” says the Talmud (“Ba-al agada she-eino lo oser velo matir, velo metame velo metaher,” Yer., Horayot III.7 48c). The answer to questions of practice–that is, as to what is permitted by Jewish law and what is not–can be given only on the basis of the teachings of the Halacha.
Secondly, it is absolutely wrong to consider cohabitation with one’s wife under conditions which might result in procreation as an act of “Hotsa-at shichvat zera levatala,”and to class it with sexual perversions such as self-abuse.
In the following, therefore, we must consider only what the Halachateaches about the various forms of birth control and ignore what the Agada has to say in condemnation of the evil practices of self-abuse and sexual perversions.
In order to avoid confusion and for the sake of a clearer understanding and a systematic presentation of the Rabbinic teachings bearing upon our subject, it is necessary to formulate the question properly. It seems to me that the correct formulation of our question is as follows: Does the Talmudic-Rabbinic law permit cohabitation between husband and wife in such a manner or under such conditions as would make conception impossible; and if so, what are the conditions under which such cohabitation is permitted?
As to the first and main part of the question, there is no doubt that it must be answered in the affirmative. To begin with, the Rabbinic law not only permits but even commands the husband to fulfill his conjugal duties to his wife, even after she has experienced the change of life and has become incapable of having children. Likewise, the husband is permitted to have sexual intercourse with his wife even if she is congenitally incapable of conception, as, for instance, when she is Akara, sterile, or an Ailonit, that is, a wombless woman (Tosafot and Mordecai, quoted by Isserles in Shulchan Aruch, Even Ha-ezer XXIII.2). The later Rabbinic law goes even further and permits even a man who has never had children (and thus has not fulfilled the duty of propagation of the race, “Mitzvat Periya Ureviya”) to marry a woman incapable of bearing children, that is, a sterile woman (Akara) or an old woman (Zekena) (Isaac b. Sheshet, quoted by Isserles, op. cit., I.3). From all this it is evident that the act of cohabitation, even when it cannot possibly result in conception, is in itself not only not immoral or forbidden, but in some cases even mandatory. Hence, we may conclude that the discharge of sperm through sexual intercourse, even though it does not effect impregnation of the woman, is not considered an act of “wasteful discharge of semen” (Hotsa-at shichvat zera levatala), which is so strongly condemned by the Agadic sayings of the Talmud. For while–as regards procreation–such a discharge is without results and purposeless, yet since it results from legitimate gratification of a normal natural desire, it has fulfilled a legitimate function and is not to be considered as in vain.
Now it may be argued that only in such cases where the parties–through no fault of their own–are incapable of procreation does the law consider the mere gratification of their natural desire a legitimate act and hence does not condemn it as “Hotsa-at shichvat zera levatala.”We have, therefore, to inquire further whether the gratification of their legitimate desire by sexual intercourse in a manner not resulting in procreation would be permissible even to a young and normally healthy husband and wife who are capable of having children.
To my knowledge, the Halacha–aside from recommending decency and consideration for the feelings of the wife in these matters–does not put any restrictions upon the husband’s gratification of his sexual desire for his wife, and certainly does not forbid him any manner of sexual intercourse with her. This is evident from the following passage in the Talmud (Nedarim 20b) where R. Johanan b. Nappaha, commenting upon a saying of R. Johanan b. Dahabai in disapproval of certain practices indulged in by some husbands, says: “These are but the words [i.e., the individual opinion] of Johanan b. Dahabai; the sages, however, have said that the decision of the law, i.e., the Halacha, is not according to Johanan b. Dahabai, but a husband may indulge with his wife in whatever manner of sexual gratification he desires” (“Amar Rabbi Yochanan, ‘Zo divrei Rabbi Yochanan ben Dahavai. Aval ameru chachamim: Ein halacha keYochanan ben Dahavai, ela kol ma she-adam rotseh la-asot be-ishto, oseh”‘).
This Halacha of R. Johanan b. Nappaha, supported by the decisions of Judah Hanasi and Abba Areka and reported in the Talmud (ibid., l.c.), has been accepted as law by all medieval authorities, and they accordingly permit intercourse with one’s wife in any manner (“Kedarkah veshelo kedarkah”) (Maimonides, Yad, Isurei Bi-a XXI.9; Tur, Even Ha-ezer 25; and Isserles on Shulchan Aruch, Even Ha-ezer 25.2). MaimonideS (l.c.) would limit the permission of sexual indulgence (“Shelo kedarkah”) only to such forms of “Shelo kedarkah” which do not result in Hotsa-at shichvat zera levatala, for he says: “Uvilvad shelo yotsi shichvat zera levatala.” But other medieval authorities permit intercourse “Shelo kedarkah” even when resulting in Hotsa-at shichvat zera levatala. The only restriction they would put on this permission is that a man should not habituate himself always to do it only in such a manner: “Dela chashuv kema-aseh Er veOnan, ela keshemitkaven lehashchit zera veragil la-asot ken tamid. Aval be-akrai be-alma umit-aveh lavo al ishto shelo kedarkah–shari” (Tosafot, Yevamot 34b, s.v. “Velo kema-aseh Er ve-Onan”; Turand Isserles, l.c.).
From the fact that they permit “Shelo kedarkah” even when it necessarily results in “Hotsa-at shichvat zera levatala” we need not, however, necessarily conclude that these authorities would also permit such practices of “Shelo kedarkah” as are performed “Mimakom acher” or “Shelo bamakom zara” (see Rashi to Yevamot 34b, s.v. “Shelo kedarkah”; and Rashi to Genesis 24:16, compared with Genesis R., XL.5), which are really sexual perversions and not sexual intercourse. See R. Isaiah Horowitz in his Shenei Luchot Haberit, Sha-ar Ha-otiyot (Josefow, 1878, pp. 132-133). It seems rather that the Rabbis were of the opinion that when intercourse is had by what they euphemistically term “Hafichat Hashulchan,” whether “Hi lema-ala vehu lemata” or “Panim keneged oref,” the very position of the woman is such as to prevent conception. Compare their saying “Isha mezana mithapechet, kedei shelo tit-aber” (Yevamot 35a; also Tur, Even Ha-ezer 76 end). Hence, according to their theory (though not sustained by modern medicine), there are forms of sexual intercourse–“Shelo kedarkah”–which cannot result in conception. These alone–not sexual perversions–do they permit. The statement of Rava (Sanhedrin 58b), taking for granted that an Israelite is permitted (“DeYisra-el shari”; see Tosafot and Maharsha, ad loc.) to have intercourse with his wife “Shelo kedarkah” is also to be understood in this sense; though from the phrase “Vedavak–velo shelo kedarkah” used in the amended saying of Rava it would appear that the term “Shelo kedarkah” means “Bi-a mimakom acher.” From a baraita in Yevamot 34b, we learn that during the period of lactation the husband is allowed, if not commanded, to practice coitus abruptus when having intercourse with his wife. The baraita reads as follows: “Kol esrim vearba-a chodesh dash mibifnim vezoreh mibachuts, divrei Rabbi Eli-ezer. Ameru lo, ‘Halalu eino ela kema-aseh Er ve-Onan.”‘ (“During the twenty-four months in which his wife nurses, or should nurse, the child, the husband when having intercourse with her should, or may, practice coitus abruptus [to prevent her from becoming pregnant again; for in the latter eventuality she will not be able to continue nursing the child and the child might die as a result of an early weaning–Rashi, ad loc.: ‘Kedei shelo tit-aber vetigmol et benah veyamut’]. The other teachers, however, said to R. Eliezer that such intercourse would be almost like the acts of Er and Onan.”) One may argue that this permission or recommendation of practicing coitus abruptus represents only the opinion of R. Eliezer, and we should decide against him, according to the principle “Yachid verabim–halacha kerabim.” But such an argument does not hold good in our case. In the first place, when the individual opinion has a good reason in its support (“Demistaber taameih”), as–according to Rashi–R. Eliezer’s opinion in our case has, the decision may follow the individual against the many (see Alfasi and Asheri to B.B., chapter 1, end; and comp. Maleachi Cohn, Yad Mal-achi, 296). Secondly, we cannot here decide against R. Eliezer, since the other teachers do not express a definite opinion contrary to his. For we notice that the other teachers do not say, “It is forbidden to do so.” They do not even say that it is Onanism. They merely say: “It is almost like the conduct of Er and Onan.” This certainly is not a strong and definite opposition to R. Eliezer’s opinion. It seems to me that even the other teachers did not forbid the practice under the circumstances. They merely refused to recommend it as R. Eliezer did, because they hesitated to recommend a practice which is so much like the acts of Er and Onan, even under circumstances which made it imperative that conception be prevented. And we have to understand R. Eliezer’s opinion as making it obligatory for the husband to perform coitus abruptusduring the period of lactation.
That this interpretation of the respective positions of R. Eliezer and the other teachers in our baraita is correct will be confirmed by our consideration of another baraita dealing with the question of using contraceptives. This other baraita is found in Yevamot 12b, 100b; Ketubot 35b; and Nida 45b. It reads as follows: “Tanei Rabbi Bibi kameih deRav Nachman: Shalosh nashim meshameshot bemoch–ketana, me-uberet umeinika. Ketana, shema tit-aber vetamut; me-uberet, shema ta-aseh ubarah sandal; meinika, shema tigmol benah veyamut. Ve-eizo hi ketana? Mibat 11 shanim veyom echad ad 12 shanim veyom echad; pachot mikan veyoter al ken meshameshet kedarkah veholechet. Divrei Rabbi Me-ir. Vachachamim omerim: Achat zo ve-achat zo meshameshet kedarkah veholechet, umin hashamayim yerachamu, mishum shene-emar ‘Shomer peta-im Adonai.”
Before we proceed to interpret this baraita, we must ascertain the correct meaning of the phrase “Meshameshot bemoch,” as there are different interpretations given to it. According to Rashi (Yevamot 12b), it means putting cotton or other absorbent into the vagina before the cohabitation, so the semen discharged during cohabitation will fall upon the cotton and be absorbed by it and conception will not take place. According to R. Jacob Tam (Tosafot ibid., s.v. “Veshalosh nashim”), however it means using the cotton (or the absorbent) after the act of cohabitation in order to remove the semen and thus prevent conception. Whether the latter is, according to modern medical science, an effective contraceptive or not, is not our concern; the Rabbis believed it to be such.
It is evident that according to R. Tam, the use of a douche or any other means of removing or destroying the sperm would be the same as “Meshameshot bemoch.” Likewise, according to Rashi, the use of other contraceptives on the part of the woman would be the same as “Meshameshot bemoch.” Possibly R. Tam would permit the use of chemical contraceptives, even if employed before cohabitation. For his objection to the cotton put in before cohabitation is that when the semen is discharged upon the cotton, it does not touch the mucous membrane of the vagina. This he considers “no real sexual intercourse, but like scattering the semen upon wood and stone” (“De-ein derech tashmish bechach, vaharei hu metil zera al ha-etsim veha-avanim keshemetil al hamoch”)–a practice which according to the Midrash (Genesis R. XXVI.6), was indulged in by the “generation of the flood” (Dor Hamabul).This objection, then, would not hold good when chemical contraceptives are used.
Again, according to Rashi, (Yevamot 100b) the phrase “Meshameshot bemoch” means “Mutarot leiten moch be-oto makom, shelo yit-aberu,” that is, that in these three conditions women are allowed to use this contraceptive. This would imply that other women who do not expose themselves or their children to danger by another pregnancy are forbidden to do so. According to R. Tam (Tosafot Ketubot 39a, s.v. “Shalosh nashim”), Asheri and R. Nissim (on Nedarim 35b) the phrase “Meshameshot bemoch” means “tserichot” or as R. Nissim puts it “chayavot,” that is, that these three women–because of the danger of possible harm which might result from pregnancy–are obliged to use this precaution. If we interpret the phrase in this sense, it would imply that other women–not threatened by any danger from pregnancy–are merely not obliged to use this precaution against conception, but are not forbidden to do so. It would also follow from this interpretation that if the other teachers differ from R. Meir, they differ only in so far as they do not consider it obligatory upon these three women (or, to be more correct, upon the Ketana) to take this precaution; but as to permitting these three women (or any other woman) to use a contraceptive, there is no difference of opinion between R. Meir and the other teachers. R. Solomon Lurya (1510-1573), in his Yam Shel Shelomo to Yevamot, ch. I, no. 8 (Altona, 1739), pp. 4b,c has indeed so interpreted our baraita. He points out that from the Talmud (Nida 3a) it is evident that Rashi’s interpretation of “Meshameshot bemoch” as meaning “putting in the absorbent before cohabitation takes place,” is correct. As to R. Tam’s objection, Lurya correctly states that such a practice is not to be compared to “Metil al etsim.” For, after all, it is a normal manner of having sexual intercourse, and the two bodies derive pleasure from one another and experience gratification of their desire. It is, therefore, not different from any other normal sexual intercourse with a woman who is incapable of having children: “Ve-ein zeh kemetil al etsim, desof sof derech tashmish bechach, veguf neheneh min haguf.”
Lurya further points out that since from Nida 3a it is also evident that all women are permitted to use this contraceptive, the meaning of the phrase “Meshameshot bemoch” in our baraita must therefore be that these three women must use this precaution–which implies that all other women may use it. From this, argues Lurya, we must conclude that even if we should decide that the law (Halacha) follows the Chachamim who differ from R. Meir, it would only mean that we would not make it obligatory for these three women to use this precaution. But these three women, like all other women, are permitted to use it if they so desire. This is in essence the opinion of Lurya.
It seems to me that a correct analysis of the baraita will show that Lurya did not go far enough in his conclusions, and that there is no difference of opinion between R. Meir and the other teachers on the question of whether a pregnant or a nursing woman must take this precaution. For this is what the baraita says: “There are three women who, when having intercourse with their husbands, must take the precaution of using an absorbent to prevent conception: a minor, a pregnant woman, and a woman nursing her baby. In the case of the minor, lest she become pregnant and die when giving birth to the child. [It was believed by some of the Rabbis that if a girl became pregnant before having reached the age of puberty, she and her child would both die at the moment of childbirth. Comp. saying of Rabba b. Livai in Yevamot 12b and Tosafot ad loc., s.v. “Shema tit-aber”; also saying in Yer., Pesachim, VIII.l, 35c: “Iberah veyaleda, ad shelo hevi-a shetei se-arot–hi uvenah metim.”] In case of a pregnant woman, this precaution is necessary, lest, if another conception takes place, the embryo becomes a foetus papyraceus (comp. Julius Preuss, Biblisch-Talmudische Medizin, Berlin, 1921, pp. 486-487). In the case of a nursing mother, this precaution is necessary, for if she should become pregnant, she will have to wean her child before the proper time [which was considered to extend for twenty-four months], and the child may die as a result of such an early weaning.” So far the baraita apparently represents a unanimous statement. It then proceeds to discuss the age up to which a woman is considered a minor in this respect. R. Meir says that the minor in this case is a girl between the age of eleven years and one day and twelve years and one day, and that during that period only must she take this precaution. Before or after this age she need not take any precaution, but may have natural intercourse (“Meshameshet kedarkah veholechet”). The other teachers, however, say that even during the period when she is a Ketana (i.e., between the age of eleven and twelve), she may have natural intercourse and is not obliged to take any precautions; for the heavenly powers will have mercy and protect her from all danger, as it is said, “The Lord preserveth the simple” (Ps. 116:6). The other teachers evidently did not consider the danger of a minor dying as a result of childbirth so probable. They must have believed that a girl even before the age of puberty could give birth to a living child and survive (comp. Preuss, op. cit., p. 441). But as regards the nursing or the pregnant woman, even the other teachers do not say that she may dispense with this precaution, for we notice that they do not say, “Kulan meshameshot veholechot.”
The rules of law laid down in this baraita according to our interpretation are, therefore, the following: When there is a danger of harm resulting to the unborn child or the child already born, all teachers agree that it is obligatory to take the precaution of using a contraceptive. According to R. Meir, however, this obligation holds good also in the case when conception might result in danger or harm to the mother. But even if we should understand the baraita to indicate that the other teachers differed with R. Meir in all three cases, it would still only follow, as Lurya correctly points out, that in all three cases we decide the Halacha according to the Chachamim and do not make it obligatory upon these three women to take the precaution of using contraceptives; the rule indicated by the baraita would still teach us that, according to the opinion of all the teachers, it is not forbidden to use a contraceptive in cases where conception would bring harm either to the mother or to the child born or unborn. And I cannot see any difference between the protection of a minor from a conception which might prove fatal to her and the protection of a grown-up woman whose health is, according to the opinion of physicians, such that a pregnancy might be fatal to her. Neither can I see any difference between protecting a child from the danger of being deprived of the nourishment of its mother’s milk, and protecting the already born children of the family from the harm which might come to them due to the competition of a larger number of sisters and brothers. For the care and the comfort which the parents can give their children already born will certainly be less if there be added to the family other children claiming attention, care, and comfort.
The Talmudic law even permits a woman to sterilize herself permanently (“Ha-isha rasha-it lishtot kos shel ikarin,” Tosefta, Yevamot VIII.4). And the wife of the famous R. Hiyya is reported to have taken such a medicine (“Sama de-akarta”) which made her sterile (Yevamot 65b). Whether there be such a drug according to modern medicine or not, is not our concern. The Rabbis believed that there was such a drug which, if taken internally, makes a person sterile (see Shabbat 110a,b and Preuss, op. cit., pp. 439-440 and 479-480), and they permitted the woman to take it and become sterile. According to Lurya (op. cit., Yevamot IV.44), this permission is given to a woman who experiences great pain of childbirth, which she wishes to escape, as was the case of the wife of R. Hiyya. Even more so, says Lurya, is this permitted to a woman whose children are morally corrupt and of bad character, and who fears to bring into the world other moral delinquents: “Ela lemi sheyesh lah tsa-ar leida ke-ein deveitehu deRabbi Chiya; vechol sheken im baneiha ein holechin bederech yeshara, umityare-a shelo tarbeh begidulim ka-elu, shehareshut beyadah.”To these I would add the woman who, because of hereditary disease with which she or her husband is afflicted, fears to have children who might be born with these diseases and suffer and be a burden to their family or to society.
From the passage in the Talmud (Yevamot 65b) we learn, however, that there is an objection which the Jewish law might have to a man’s using contraceptive means, or having intercourse with his wife in such a manner as to make conception impossible. This objection is based not on the view that such an act is in itself immoral or against the law, but merely on consideration for another religious duty which could not be fulfilled if such a practice would be indulged in all the time. The wife of R. Hiyya–so the Talmud tells us–incapacitated herself only after she had learned that the duty of propagation of the race was not incumbent upon her, since, according to the decision of the Rabbis, women were not included in the commandment, “Be fruitful and multiply” (Genesis 1:28), which was given to men only. Since a man must fulfill the duty of propagation of the race (“Mitzvat periya ureviya”)he cannot be allowed the practice of having intercourse with his wife only in such a manner as to make conception impossible. For in so doing he fails to fulfill the law commanding him to have children. It is accordingly a sin of omission but not of commission; for the practice as such is not immoral or against the law.
But–and this is peculiar to the Jewish point of view on this question–the man who practices absolute self-restraint or total abstinence is also guilty of the same sin of omission, for he likewise fails to fulfill the duty of propagation of the race. No distinction can be made, according to Jewish law, between the two ways of avoiding the duty of begetting children, whether by total abstention from sexual intercourse or by being careful not to have intercourse in such a manner as would result in conception. For, as has already been pointed out, the act of having intercourse with one’s wife in a manner not effecting conception is in itself not forbidden by Jewish law. If, however, a man has fulfilled the duty of propagation of the race, as when he already has two children (i.e., two boys according to the School of Shammai or a boy and a girl according to the School of Hillel) and is no longer obliged by law to beget more children (Yevamot 61b and Shulchan Aruch, Even Ha-ezer 1.5), there can be no objection at all to the practice of birth control. For while the Rabbis of old, considering children a great blessing, would advise a man to continue to beget children even after he has already fulfilled the duty of propagation of the race, yet they grant that any man has a right to avoid having more children when, for one reason or another, he does not consider it a blessing to have too many children and deems it advisable in his particular case not to have more than the two that the law commands him to have.
But even in the case of one who has not yet fulfilled the duty of propagation of the race (“Mitzvat periya ureviya”) it might, under certain conditions, be permitted to practice birth control, if it is done not for selfish purposes but for the sake of some higher ideal or worthy moral purpose. For the Rabbinic law permits a man to delay his marrying and having children or even to remain all his life unmarried (like Ben Azzai), if he is engaged in study and fears that having a family to take care of would interfere with his work and hinder in the pursuit of his studies (Kiddushin 29b; Maimonides, Yad, Hil. Ishut, XV.2-3; Shulchan Aruch, Even Ha-ezer, I.3-4)
Since, as we have seen, the act of having intercourse with one’s wife in a manner not resulting in conception is in itself not against the law, there can be no difference between the failure to fulfill the commandment of propagation of the race by abstaining altogether from marriage and the failure to fulfill the commandment by practicing birth control. The considerations that permit the one permit also the other. It would even seem that the other–i.e., the practice of birth control–should be preferred to the one of total abstention. For. in granting permission to practice the latter, the Rabbis make the proviso that the man be so constituted, or so deeply engrossed in his work, as not to be troubled by his sexual desires or to be strong enough to withstand temptation (“Vehu shelo yehe yitsro mitgaber alav,” Maimonides and Shulchan Aruch, l.c.). Now, if a man is so constituted that he is troubled by his desires and suffers from the lack of their gratification, and yet is engaged in some noble and moral pursuit (like the study of the Torah) which hinders him from taking on the responsibilities of a family, he may marry and avoid having children. He may say with Ben Azzai, “I am very much attached to my work and cannot afford to have a family to take care of. The propagation of the race can and will be carried on by others” (“Efshar la-olam sheyitkayem al yedei acherim,” Yevamot 36b; Tosefta, ibid., VIII, end). For the Rabbis also teach that “it is better to marry,” even if not for the sake of having children, than “to burn” with passion and ungratified desires. And, as we have seen above, the Rabbinic law permits marriage even when it must result in failure to fulfill the commandment “Be fruitful and multiply,” as when a young man marries an old or sterile woman. The Rabbis did not teach total abstention. They did not agree with Paul that “It is good for a man not to touch a woman” (I Corinthians VII:l). While the institution of marriage may have for its main purpose the propagation of the race, this is not its sole and exclusive purpose. And the Rabbis urge and recommend marriage as such without regard to this purpose, or even under conditions when this purpose cannot be achieved. The companionship or mutual helpfulness in leading a pure, good, and useful life, achieved by a true marriage, is also a noble purpose worthy of this divine institution. In fact, according to the Biblical account, this was the first consideration in the Divine mind when creating woman for man. He said: “It is not good that the man should be alone, I will make him a helpmeet for him” (Genesis 2:18). He did not say, “I will make him a wife that he have children by her.” The commandment to have children God gave to Adam later on. When husband and wife live together and help each other to lead a good life–whether they have children or not–God is with them and their home is a place for the Shechina, the Divine purpose, says R. Akiva (Sota 17a). Ben Azzai did not say like Paul, “I would that all men were even as I myself” (I Corinth. VII:7). He did not set up celibacy in itself as an ideal, nor would he recommend it to others (comp. H. Graetz, Gnosticismus und Judenthum, Krotoshin, 1846, pp. 73ff). Ben Azzai considered marriage a divine institution and recognized the obligation of propagating the race as a religious duty. But he believed that he was exempted from this duty in consideration of the fact that it might interfere with another religious duty, e.g., the study of the Torah in which he was engaged. Of course the same right would, according to Ben Azzai, be given to others in a similar position, i.e., to those pursuing studies or being engaged in any other moral religious activities which might be interfered with by the taking on of the obligation of having children. We have seen that the medieval Rabbinic authorities have concurred in the opinion of Ben Azzai and allowed a man engaged in a religious pursuit, such as the study of the Torah, to delay–or even altogether neglect–fulfilling the commandment of “Be fruitful and multiply.” And we have also found that no distinction can be made between neglecting this duty by abstaining from marriage and neglecting it by practicing birth control.
The above represents the logical conclusion which one must draw from a correct understanding and a sound interpretation of the halachic statements in the Talmudtouching this question, disregarding the ideas expressed in the Agadic literature as to the advisability of having many children.
The later Jewish mystics emphasized these Agadic sayings, as well as the Agadic condemnations of the evil practices of “Hotsa-at shichvat zera levatala.” They came to regard any discharge of semen which might have resulted in conception but did not, almost like “Hotsaat shichvat zera levatala.” Nay, even an unconscious seminal emission is regarded as a sin against which one must take all possible precautions and for which one must repent and make atonement. But even the mystics permit intercourse with one’s wife even when she is incapable of having children (see Zohar, Emor 90b).
Some Rabbinic authorities of the 18th and 19th centuries–under the spell of the Agadic sayings of the Talmud and more or less influenced by the mystic literature–are loath to permit birth control. But even these authorities do not altogether prohibit the practice when there is a valid reason for exercising it. The reasons given by some of them for opposing the practice are not justified in the light of the halachic statements of the Talmudwhich we discussed above. Their arguments are not based upon correct interpretations of the Talmudic passages bearing upon this question, and they utterly ignore or overlook the correct interpretations and the sound reasoning of R. Solomon Lurya quoted above. In the following I will present the opinions of some of the authorities of the 18th and l9th centuries on this question.
R. Solomon Zalman of Posen, rabbi in Warsaw (died 1839), in his responsa Chemdat Shelomo (quoted in Pitchei Teshuva to Even Ha-ezer XXIII.2)–in answer to a question about a woman to whom, according to the opinion of physicians, pregnancy might be dangerous–declares that she may use a contraceptive. He permits even the putting into the vagina of an absorbent before cohabitation, declaring that since the intercourse takes place in the normal way, the discharge of the semen in such a case cannot be considered “Hashchatat zera.”
R. Joseph Modiano, a Turkish rabbi of the second half of the 18th century, in his responsa collection Rosh Mashbir, part II (Salonica, 1840), no. 49, discusses the case of a woman who, during her pregnancy, becomes extremely nervous and almost insane. He quotes the great rabbinical authority R. Michael, who declared that the woman should use a contraceptive. R. Michael argued that since the woman is exposed to the danger by pregnancy she is in a class with the three women mentioned in the baraita of R. Bibi and should therefore, like them, use an absorbent, even putting it in before cohabitation (“Sheyeshamesh ba-alah bemoch kedei shelo tit-aber”), and her husband cannot object to it. Modiano himself does not concur with the opinion of R. Michael; he argues that the use of the absorbent could only be permitted if employed after cohabitation, and the husband who may find the use of this contraceptive inconvenient or may doubt its effectiveness should therefore be permitted to marry another woman. But even Modiano would not forbid the use of this contraceptive if the husband had no objection to it.
R. Akiva Eiger in his Responsa(Warsaw, 1834), nos. 71 and 72, pp. 51b-53a, also permits the use of an absorbent, but only if it is employed after cohabitation. The questioner, R. Eleazar Zilz, a rabbinical authority of Posen however argued that it should be permitted even when employed before cohabitation.
R. Moses Sofer in his Chatam Sofer (Pressburg, 1860), Yoreh De-a, no. 172, pp. 67b-68a, likewise permits it only when used after cohabitation. R. Abraham Danzig in his Chochmat Adam and Binat Adam(Warsaw, 1914), Sha-ar Beit Hanashim, no. 36, p. 156, permits the use of an absorbent or a douche or any other method of removing or destroying the semen after cohabitation. He adds, however, that according to Rashi’s interpretation, it would be permitted to the woman in question to whom pregnancy was dangerous, to use this contraceptive even before cohabitation.
R. Jacob Ettlinger (1798-1871) in his Responsa Bin yan Tsion (Altona, 1868), no. 137, pp. 57b-58b, and R. Joseph Saul Nathanson (1808-1875) in his Responsa Sho-el Umeshiv,Mahadura Tenina (Lemberg, 1874), part IV, no. 13, are inclined to forbid the use of any contraceptive, even when used after cohabitation.
The authorities objecting to the use of an absorbent before cohabitation, do so, of course, on the ground that, like R. Tam, they consider such a practice “Kemetil al ha-etsim ve-al ha-avanim.”On the same ground they would no doubt object to the use of a condum. But, as was already pointed out above, they could have no objection to the use of chemical contraceptives on the part of the woman.
In summing up the results of our discussion, I would say that while there may be some differences of opinion about one detail or another, we can formulate the following principles in regard to the question of birth control which are based upon a correct understanding of the halachic teachings of the Talmudas accepted by the medieval Rabbinic authorities, and especially upon the sound interpretation given by R. Solomon Lurya to some of these Talmudic passages: (1) The Talmudic-Rabbinic law does not consider the use of contraceptives as such immoral or against the law. It does not forbid birth control, but it forbids -birth suppression.
(2) The Talmudic-Rabbinic law requires that every Jew have at least two children in fulfillment of the Biblical command to propagate the race, which is incumbent upon every man.
(3) There are, however, conditions under which a man may be exempt from this prime duty: (a) when a man is engaged in religious work, such as the study of the Torah, and fears that he may be hindered in his work for taking on the responsibilities of a family; (b) when a man, because of love, or other considerations, marries a woman who is incapable of having children (i.e., an old or sterile woman); (c) when a man is married to a woman whose health is in such condition as to make it dangerous for her to bear children; for, considerations for the saving of human life–Pikuach Nefesh or even Safek Pikuach Nefesh–set aside the obligation to fulfill a religious duty. In this last case, then, the woman is allowed to use any contraceptives or even to permanently sterilize herself in order to escape the dangers that would threaten her at childbirth.
(4) In case a man has fulfilled the duty of propagation of the race (as when he has already two children), he is no longer obliged to beget children, and the law does not forbid him to have intercourse with his wife even in a manner which would not result in conception. In such a case the woman certainly is allowed to use any kind of contraceptive or preventive.
Of course, in any case, the use of contraceptives or of any device to prevent conception is allowed only when both parties, i.e., husband and wife consent.
Some Rabbinic authorities of the 18th and l9th centuries would object to one or another of the above rules, and especially put restrictions upon the use of contraceptives. But we need not expect absolute agreement on questions of Rabbinic law. We must be content to have good and reliable authority for our decisions, even though other authorities may differ. We have the right to judge for ourselves which view is the sounder and which authorities are more correct. We have found that the arguments of those authorities of the 18th and l9th centuries who would oppose or restrict the use of contraceptives in cases where we would recommend it, are not convincing. With all our respect for these authorities, we may ignore their opinions, just as they in turn have ignored the opinions of other authorities (especially those of R. Solomon Lurya) on our question.
Jacob Z. Lauterbach
See also:
S.B. Freehof, “Sterilizing Husband,” Reform Responsa, pp. 206ff.
If needed, please consult Abbreviations used in CCAR Responsa.