MARRYING THE STERILIZED

QUESTION:

A man undergoes vasectomy. His bride nevertheless agrees to marry him. May we officiate at such a marriage? Furthermore, what if the doctor declares it dangerous for the woman to bear children and she is sterilized? Should we officiate at such a marriage? (Asked by Dr. M. J. K., Vineland, N.J.)

ANSWER:

THE FIRST QUESTION asked is based upon the clear statement in Deuteronomy 23:3, that a man who is a eunuch may not enter the congregation of God, i.e., may not marry a Jew. In the definition of this physical state the law clearly adds that closing off of the duct which carries the seed constitutes rendering the man a eunuch (Even Hoezer 5:2). Thus the modern operation of vasectomy comes under the Biblical prohibition of Kruss Shofcho.

While the law seems clear enough, there are a number of exceptions which modify this law considerably. First of all, there is a limitation as to what is meant by a eunuch. The law is clear that a man is to be defined as a eunuch if his state is the result of an operation (Saris Adam); but if the impotence is not the result of an operation but is the result of a birth defect (Saris Chama, made a eunuch “by the sun,” i.e., by nature) then he is not forbidden to marry. In fact, Maimonides (Issurey Biah 16:2, 6, and 9) is still more permissive. He says that even if the man is made impotent by a doctor, due to the man’s sickness which makes this operation necessary, even then he is not to be considered a eunuch who is prohibited to marry.

There is some doubt as to this permissiveness with regard to the man who is sterilized because of sickness. The Tur in Even Hoezer 5 says that Rashi and his own father (Asher ben Yehiel) disagree with Maimonides as to the admissibility of a man who has been sterilized because of sickness. Be that as it may, in the case which is before us the woman is sterilized because of sickness and (for other reasons which will now be mentioned) there is no objection to her being married. In fact, according to the commandment to “increase and multiply,” there is no objection to her being married, since this is a commandment imposed upon the male, not upon the female. Therefore it is permitted for a woman to be sterilized (Tosefta Yevamos 8:4).

Another modification of the eunuch law should be mentioned. The rabbis emphasize the phrase in the Deuteronomy verse: “the congregation of the Lord.” They explain this phrase as meaning the community of those who are born of Jewish parents. While proselytes are of course accepted as full Jews, nevertheless they are considered as being organized into a separate “congregation of proselytes” (Kehal Gerim). There fore the law is clear that a sterilized man may marry a convert (m. Yevamos 8:2).

There is still another consideration. If the man now sterilized already was the father of a son and a daughter, then he is considered by the law to have fulfilled the commandment to “increase and multiply” and thereafter there is no objection to his marrying without the prospect of children. See especially Rashi to Yevamos 61b in which he says that in that case (since he already had a son and a daughter) it is not necessary to look for a wife who can bear him children (Eyn Tzorich, etc.).

Now the question is whether such a marriage between one or two sterilized people can be considered to be a valid Jewish marriage (Kiddushin) . Maimonides in Hil. Ishus 4:10 says that if a man who is sterilized marries, whether he be born sterilized and thus technically he is not considered a Saris, or whether he is sterilized through human action, this marriage is to be deemed valid. The Lechem Mishna (Abraham De Boton) raises an objection against the decision of Maimonides that such a marriage with a sterilized person is valid. As a matter of fact DeBoton would accept, surprisingly enough, the validity of such a marriage only in the case of a person sterilized by human means and not by nature. The reason for this distinction of DeBoton is found in Mishna Yevamos 8:4, that such a marriage is valid because the man at one time was normal; in other words, he had Sha’as Ha-Kosher, just as in the case that is before us where the sterilized person was at one time fruitful.

A very interesting and full discussion of this decision of the Rambam (that such a marriage is valid) is given by Yair Chayim Bachrach in his Responsa # 2 21, near the end of the responsum. His comment fits, almost precisely, the case in question here. He explains the Rambam must have considered this marriage valid on these grounds: First, she knows of the situation beforehand and consents and secondly, the operation made him unfruitful but has not made him sexually impotent. This is exactly the circumstance today with modern vasectomies.

But suppose she did not know of his condition before the marriage, would the marriage be valid? Bachrach in this responsum says “no;” but Jacob Reischer of Metz (Shevus Ya’akov 101) says that even if she did not know of it beforehand, this marriage is nevertheless valid and she cannot be freed from it without a Get.

Besides all these considerations, when the law discusses various blemishes in a husband for which a woman might be justified in asking for a divorce, they frequently mention the fact that there are many other reasons why a woman might want to remain married rather than being alone (Kesuvos 75a, Tov I’meysav ton du).

To sum up, while of course the purpose of marriage is children and such marriages as here described should not be encouraged, nevertheless one cannot say that such marriages are invalid and that we should refuse to officiate. We should bear in mind the fact that Moses Isserles was well aware of changes in the social mood from one era to another. In Even Hoezer 1:3 he says that nowadays we no longer stand in the way of mar-riages which will not result in children.