STERILIZING THE FEEBLEMINDED

QUESTION:

A public social service organization in a southern state sterilized a feebleminded young girl who was a client of the organization. After the operation was performed, the mother of the girl strongly protested, on the ground that when the authorities suggested to the girl that she be sterilized, she did not understand what was being asked of her. The mother’s protest soon became a public agitation. The question is asked: What is the attitude of Jewish law and tradition to this action and to the protest against it? (Asked by R. G., Tallahassee, Florida.)

ANSWER:

JEWISH LAW is quite definite about the status of the feebleminded (Shota) with regard to family relationships. (See the descriptions of the feebleminded in Hagiga 3b-4a). It is a definite law that a feebleminded person, like a person who is definitely insane, cannot legally contract marriage (b. Yebamos 112b; Even Hoezer 44:2) . While the specific reason mentioned (in the Talmud) for the inability of the feebleminded to contract legal marriage is based on the fact that it is dangerous for a normal person to live with such a person, the basic reason must be that the express purpose of marriage is to procreate children. The law is clear that every man is in duty bound by Jewish law to marry and have children (Even Hoezer 1:1). While it is true that the great Polish legalist, Isserles, says that nowadays we do not insist that a man should not marry a woman who cannot bear children, nevertheless, the basic law remains that the purpose of marriage, its mandate, is to “increase and multiply.” If, therefore, according to Jewish law a feebleminded person cannot legally contract marriage, it follows logically that they are not meant to have children. Since there may be no marriage for the feebleminded, they may not have children. Of course the law does not deal with or advocate procreation without marriage.

But this fact that the feebleminded may not have children is not necessarily any justification for the social service office to have sterilization performed on a feebleminded person. There is a general Jewish law dealing with sterilization. It is based on Leviticus 22:24, which declares that mutilated animals should not be brought to the altar as sacrifices. Then the verse concludes: “Thou shalt not do so in thy land,” upon which the Talmud bases the clear-cut prohibition of any act of sterilization anywhere against animals or humans. So the prohibition is recorded in the law, Even Hoezer 4:12, 14. Therefore an observant Jewish doctor would be prohibited by Jewish law from sterilizing any human being or, for that matter, a Jewish veterinarian would be prohibited from performing a similar operation upon cattle or birds.

While the law seems absolute, there are some mitigations of it. Maimonides (Issure Biah 16:2, 6, 9) in discussing the further prohibition that a eunuch, i.e., a sterilized person, may not contract legal marriage, makes this distinction: that if it is because of the patient’s sickness that a doctor sterilizes him or her, such a person may contract legal marriage. While some disagree with this statement of Maimonides (Tur, Even Hoezer 5) he remains a strong authority and most scholars agree with him on this matter. Furthermore, Isserles to 5:14 states that if it is a matter of health, the operation is permitted.

If, therefore, it could be demonstrated that it was for the physical and mental health of this feebleminded girl not to bear children, or not to have the responsibility of raising children, this might be a further mitigation of the general prohibition against sterilization.

There is also another possible permissiveness involved. The law against sterilization applies more strictly againt sterilizing males than sterilizing females, because the Biblical command to “increase and multiply” is understood to be directed at men. It is a man’s obligation to marry. He commits a sin if he remains a bachelor. A woman commits no sin if she remains a spinster. Therefore the law states (Even Hoezer 5:12) that it is prohibited to administer a sterilizing medicine to a man, but a woman may take such a medication (cf. Chelkas M’chokek ad loc). So one authority, Rabed to Sifra Emor, section 5, says that there is no objection to sterilizing a woman medically, but there is objection to sterilizing surgically. Furthermore, Yechiel Epstein, in the Aruch Ha-shulchan to Even Hoezer 5 (22) says that the sterilization of women is not forbidden Biblically but only as a cautionary measure (i.e., rabbinically) and then he says at the end of section 23, speaking here of both men and women, that if the operation is indispensable for the person’s health, it may be done.

One of the legal scholars calls attention to the different forms of the verb “give” in both halves of the law. One may not “give” the medicine to a man, but it does not say “one may give” the medicine to a woman. It says “a woman may drink the medicine,” which means “of her own accord,” or “with her consent.” In other words, the sterilization would be more defensible in the law if this feebleminded girl gave her consent, or if she cannot understand what is asked of her, if her parent or guardian gave consent.

To sum up: The law forbidding marriage to the feebleminded implies forbidding them to have children. However, the act of sterilization is forbidden by Jewish law, although the prohibition applies less strictly to women than to men. An exception to the prohibition may well be made when health is involved and effective consent is given. If these limitations are observed, it would be safe to say that Jewish legal tradition would not oppose sterilization of the feebleminded.