HYSTERECTOMY

QUESTION:

A young woman has had a hysterectomy and cannot bear

children. Her husband refuses to have intercourse with her because this would be “spilling seed,” prohibited in the Torah. Can this actually be justified within Halacha? (Asked by Rabbi Daniel Syme, New York.)

ANSWER:

THE YOUNG MAN is entirely mistaken as to the law in this matter. First of all, while the general purpose of marriage is to have children, nevertheless it is no longer prohibited to a man to marry a woman who cannot have children. See the clear statement of Isserles in Even Hoezer 1:3. Now it would stand to reason that if a man may marry a barren woman, it is understood that he would have intercourse with her, and that the intercourse in which the seed will be unproductive cannot be deemed sinful.

But we do not need to rely upon this inference, logical as it is. There is a clear statement in the law, first found in the Mordecai #3 to the sixth chapter of Yevamos, and stated with unmistakable clarity in the Shulchan Aruch, in the section of “spilling of seed” (Even Hoezer 23:5), as follows: It is permitted to have intercourse with a woman who cannot bear children (and it is not considered wasting seed) since the intercourse is conducted in the normal way. As long as the intercourse is normal, and there is no artificial barrier inserted into the womb before intercourse, there is no committing of the sin of “seed spilling.”

There can be no doubt that the opinion of Isserles in Even Hoezer 23:5, which we have cited, applies clearly in the case of hysterectomy. This is confirmed by the chief Orthodox authority in America today, Moses Feinstein (in his responsa Igros Moshe, Even Hoezer #3). Rabbi Feinstein had received a request from a Chicago rabbi to endorse a permission by the Jewish court (ma’aseh bes din) allowing a certain man to marry another wife (without a get to his present wife). Rabbi Feinstein endorses the document for one of the various reasons given but rejects two of the reasons as irrelevant or invalid. One of the reasons which he rejects is that the wife has had a hysterectomy. Feinstein declares that this fact is no reason to void the marriage; and he cites precisely what we have cited from Even Hoezer 23:5 as proof that a man may continue to have sexual intercourse with his wife even after she has had a hysterectomy.

I cite Moses Feinstein not only because he is a prime Orthodox authority and has applied, as I did, the permission in Even Hoezer 23:5 to hysterectomies, but because he also gives two strong Talmudic proofs of the permission to remain married and have intercourse with a woman who has had a hysterectomy. His two proofs are as follows: The first is from the Talmud in Yevamos 42b. There the discussion is over the rule that a woman must wait three months after being divorced or widowed from one husband before she may marry a second. The purpose of this three-month wait is to distinguish (havchana) between a child of the first husband and a child of the second—in other words, to make sure of the paternity of the child. If she had waited only two months and given birth seven months after her second marriage, it would be uncertain whether the child is a nine-month infant from the previous husband or a seven-month baby of her second husband. Therefore she must wait three months between the two marriages. The discussion in the Talmud is whether or not she needs to wait the three months if she is barren. Rashi explains the word “barren” here as meaning if she has had a hysterectomy. Thus it is clear that a woman who has had a hysterectomy may (or may not) have to wait three months, but in either case, she may be married and live a normal sexual life.

The second proof cited by Moses Feinstein is also from Rashi. It is in Ketubos 60b. There the discussion is about the rule that a woman who is nursing a child may not remarry for twentyfour months (the period of lactation). Then a similar debate arises in the Talmud as in Yevamos, whether a woman who is barren must wait the twenty-four months. Rashi, evidently facing the unasked question as to how a woman who is barren can have a child and now be nursing him, explains the word “barren” as meaning that she had a hysterectomy. Therefore, whether or not she has to wait the twenty-four months, she may be married and live a normal life. Thus Rashi to the Talmud makes it clear that a hysterectomy must not prevent normal sexual relationships because in Jewish law a wife has the right not to be ignored in this regard.

Let me explain further the statement above that as long as the intercourse is normal, and there is no artificial barrier inserted into the womb before intercourse, there is no committing of the sin of “seed spilling.” Even the rule in this matter offers some additional support to our conclusion with regard to a hysterectomy. Normally the law would prohibit the insertion of an obstacle (such as a diaphragm) before intercourse because that would result in what would be deemed “spilling the seed.” But the law cited in a number of places (especially in Yevamos 12b) is that three classes of women—a minor, a nursing mother, and a woman already pregnant— may insert such obstacles before intercourse. In fact, Rabbenu Tarn goes further than Rashi and says that these three women not only may use the obstacle, they should do so (cf. Tosfos ad l o c) . So it is evident that there are many cases in which, during normal intercourse, the so called spilling of seed is ignored. This applies clearly in a case of hysterectomy.

Fertilized Ovum Implant

The inquirer also asked about the new medical procedure whereby a fertilized ovum from one woman’s body may be implanted in the womb of another woman. Is the host woman to be considered the mother of the child (and the child Jewish if the host woman is Jewish)?

The answer is that the status of the child depends upon the seed of his parents, the father and the mother. If there is no sin involved, the child follows the status of the father. If there is sin involved, it follows the status of the mother. (This is a rather rough statement of a more complicated rule.) Therefore, what this child is will not depend upon the host mother, who is a mere incubator, but on the status of the parents, male and female, who fertilized and provided the ovum. Artificial insemination is not the same thing because while in that case the sperm is inserted in the woman’s womb, she supplies the ovum.