CCAR RESPONSA COMMITTEE
5771.1
Sterilization for the “Mentally Challenged”
Sh’elah.
I have received the following inquiry from the parents of Ann, a thirty-year-old woman with “mild learning disabilities” who has become engaged to a man who has similar disabilities. The fiancé’s father is concerned that, should they have biological children, the couple would not be able to care for them properly. He also fears that those children, like their parents, would be “mentally challenged.” He has suggested that his son have his seminal vesicles cut, and Ann have her tubes cut. Ann’s parents are quite conflicted. On the one hand, they do not want to deny their daughter the opportunity to have children. On the other hand, they worry that they might have to raise their grandchildren should Ann and her husband prove incapable of caring for them. “We are approaching sixty years old,” they say. “What is our longevity?” Does Jewish law permit this couple to undergo sterilization prior to their marriage? (Rabbi Samuel M. Stahl, San Antonio, TX)
T’shuvah.
As your question suggests, our Jewish tradition as a general rule prohibits the sterilization of human beings, but it permits the procedure under certain circumstances and for sufficient cause. Our t’shuvah will begin with a discussion of Jewish law on the subject of sterilization, and we will then ask how that law might guide us in the situation you have described.
1. Sterilization in Jewish Law. Although the Bible never explicitly outlaws the surgical sterilization (seirus) of humans, the tradition locates the prohibition in Leviticus 22:24, which deals with sacrificial animals: “Any animal that has its testicles bruised or crushed or torn or cut you shall not offer to Adonai; you shall not do it within your land.” The phrase “you shall not do it within your land” is understood to forbid the emasculation of any species, including humans, that lives upon the land. [1] We might also cite Deuteronomy 23:2: “No one whose testicles are crushed or whose male organ is cut off shall enter the assembly of Adonai.” The tradition interprets the phrase “to enter the assembly” as “to marry”; hence, a man who has been emasculated may not marry a Jewish woman, [2] and it would presumably be forbidden in the first place to injure him in this manner. Since these verses speak of male animals or humans, the question arises: does the prohibition of seirus apply to females as well? The Rabbis dispute this question,[3] and the subsequent halakhic literature concludes that the surgical sterilization of women is forbidden although not punished as severely as the seirus of a male. [4]
What is the reason for this prohibition? According to the predominant view in the tradition, [5] the Torah forbids the sterilization of humans because it prevents us from fulfilling the mitzvah of procreation (p’ru u’vu, “be fruitful and to multiply”; Genesis 1:28).[6] If this is the case, it would follow that the Torah ought to prohibit all forms of human sterilization and not only those performed by surgical means. And indeed, as we read in the Tosefta: “a man is not permitted to drink a sterilizing drug (ikarin) in order that he not beget children, and a woman is not permitted to drink a sterilizing drug in order that she not bear children.”[7] This text is not universally accepted. A variant manuscript reading preserves a conflicting rule: “… a woman is permitted to drink a sterilizing drug” even though a man is forbidden to do so.[8] This variant is supported by other Rabbinic sources,[9] and its position – that a woman may sterilize herself medically – is adopted by the major codes.[10] Why are women treated differently than men in this case? Commentators cite the majority view in traditional halakhah that the obligation of p’ru ur’vu is incumbent upon males but not upon females. [11] A woman therefore violates no Toraitic obligation[12] when she takes actions to prevent pregnancy, and the rules concerning the sterilization of women are accordingly more lenient than those that apply to men.
Reform Judaism does not regard procreation as a chovah, an obligation incumbent upon each and every individual. We take this position for two reasons. First of all, childbearing has historically posed (and to a great extent still poses) significant risks to the health and the lives of women, and it would be morally unacceptable to demand that women accept those risks in order to fulfill the terms of Genesis 1:28.[13] Second, Reform Judaism treasures individual freedom and does not tend to speak of “obligations” or absolute requirements, especially in matters so personal and so fateful as the decision to have children. At the same time, we are by no means neutral or indifferent to the choices that our people make in this realm. Childbearing is an undertaking of deeply important Jewish and religious – as well as personal – significance. We look upon it, therefore, as a mitzvah for the community, an act through which Jews find religious fulfillment and the community finds blessing, even though we do not regard it as an obligation that rests upon each and every individual Jew.[14] This is the position that our Conference enunciates in Gates of Mitzvah, the most systematic guide to Reform Jewish teachings concerning the Jewish life cycle:[15]
A-1 The mitzvah of procreation
It is a mitzvah for a man and a woman, recognizing the sanctity of life and the sanctity of the marriage partnership, to bring children into the world.
A-2 Birth control
Reform Judaism respects the right of parents to determine how many children they should have. In considering family size, however, parents should be aware of the tragic decimation of our people during the Holocaust and of the threats of annihilation that have pursued the Jewish people through history. Thus, while Reform Judaism approves of the practice of birth control, couples are encouraged to consider the matter of family size carefully and with due regard to the problem of Jewish survival.
These statements are intended as formulations of a general attitude. In a footnote to the above passage, Gates of Mitzvah notes: “There are people who, for a variety of valid reasons, will be unable to fulfill this mitzvah. It should be understood that any mitzvah prescribed in this book is a mitzvah only for those who are physically and emotionally capable of fulfilling it. Those who cannot are considered no less observant and no less Jewish.” How this comment might apply to the specific case before us is the subject of the next section of our responsum. At this juncture, it is enough to say that as a general rule Reform Judaism would strongly counsel against sterilization as a method of family planning for those who have not yet had children. Any irreversible step such as the surgeries mentioned in our sh’elah would definitely run counter to our movement’s teaching that giving birth to children, in addition to offering us one of the most profound blessings of human life, is a mitzvah, a means by which we can realize the higher purposes of Jewish existence and religious fulfillment.
2. When is Sterilization Permissible? Despite the general prohibition, under certain circumstances Jewish law will permit and even require the sterilization of human beings. The most obvious example concerns medical necessity: a person suffering from a serious disease is obligated to accept treatment needed to save his or her life even if that treatment would leave that person in a condition of sterility.[16] A key term here is sakanah, “danger,” as in the phrase choleh sheyesh bo sakanah,[17] “a patient suffering from a ‘dangerous’ or ‘serious’ disease.” In other words, sterilization is permissible in order to save a person from a condition that can be classified as sakanah.
The problem in this case is that the sakanah that the parents wish to prevent is not a medical danger to their “mentally challenged” children but a potential risk to any offspring that these children might bring into the world. That risk, in turn, is partly a medical one (the possibility that the offspring might inherit their parents’ learning disabilities) and partly a social and psychological one (the difficulties that may await them should their grandparents prove incapable of caring for them). The question we have to address is whether risks of this nature qualify as the sort of sakanah that can justify the extreme remedy of surgical sterilization.
We might find a precedent in a question that came before Rabbi Moshe Feinstein, the leading Orthodox posek (halakhic authority) in 20th-century North America.[18] The case concerned an eleven-year-old girl whose severe emotional difficulties required that she be committed to a state-run mental hospital. The girl was described as sexually active, to the point that the hospital physicians recommended that she be sterilized. Does halakhah permit the procedure? Rabbi Feinstein responded in the affirmative: sterilization is permitted “so that the other patients will not sexually abuse her (shelo yinhagu bah minhag hefker).” On its face, Rabbi Feinstein’s ruling is a puzzling one. Other authorities criticize it on the grounds that the remedy does not address the problem: “the girl will continue to be subject to abuse, since sterilization will not decrease her sexual appetite,” let alone the propensity of the other patients to have sex with her. Besides, if the goal is to prevent pregnancy and to forestall the need for abortion, that goal can be met with measures far short of sterilization.[19] In defense of Rabbi Feinstein’s decision, we could speculate that he was not confident that those other measures (birth control pills and the like) would succeed in preventing pregnancy as well and as certainly as sterilization. But there is another potential rationale for his ruling. It could be that his primary concern was not with the girl herself – he was presumably aware that sterilization would not prevent her from engaging in sexual activity – but with the fate of any children that might be born to her. What would become of those children, and who would ultimately care for them? If so, then we could say that a prominent halakhic scholar permits sterilization for reasons quite similar to those advanced in our sh’elah.
We think, though, that this interpretation is forced and improbable. Rabbi Feinstein speaks exclusively of the eleven-year-old girl herself; he never mentions the harm that might come to any children who could be born to her. Had that concern been present in his mind, we would expect him to have stated it explicitly. And had he done so, we would have expected him to explain (and not merely to state) his rationale: in what way might the potential dangers awaiting these not-yet-conceived children warrant a remedy as extreme as sterilization? His decision therefore does not apply specifically to our case, and it offers us little guidance as to whether Jewish law would authorize sterilization under circumstances such as those we are discussing here.
3. The Case Before Us. The question therefore remains: does Jewish tradition permit the sterilization of an individual in order to prevent him or her from posing a danger to potential offspring? If it does – and we have yet to find clear and convincing proof that it does – it would presumably allow the sterilization only in cases where the potential danger is serious and substantial. Accordingly, we would need to know just how serious and substantial is the danger in this particular case, because it is far from obvious that the mere existence of “mental disabilities” automatically disqualifies Ann and her fiancé from parenthood. This point is argued strenuously by the American Association on Intellectual and Developmental Disabilities, which formulates its policy as follows: “The presence of an intellectual and/or developmental disability does not in itself preclude effective parenting; therefore, the rights of parenthood must not be denied individuals solely on the basis of intellectual and/or developmental disabilities. Parents with intellectual and/or developmental disabilities should have access to support as needed to perform parental roles just as they are supported in other valued social roles and activities.” [20] This last sentence is key. With access to sufficient and proper support of family members, neighbors, and the wider community,[21] intellectually disabled people can function as parents; thus, they need not be presumed incapable or unfit for that role as a matter of course. Since we cannot measure the nature or extent of this couple’s mental disabilities, we cannot answer either “yes” or “no” with any real certainty. What we do know, however, inclines us more to “no” than to “yes.” First of all, the descriptions offered of our couple – Ann has “mild learning disabilities,” her fiancé is “mentally challenged” – do not suggest that their problems are so profound as to warrant sterilization as the only proper course. Rather than upon coaxing them into surgery that will deny them the blessings of parenthood forever, their parents should perhaps concentrate upon securing them the support services they will need in order to raise their children in a safe and secure environment.
The word “coaxing” raises a point of special sensitivity. Ann and her fiancé are adults, but their mental disabilities may render them susceptible to tactics of persuasion that for all practical purposes amount to coercion. This would contradict the ethical maxim that adults normally have the right to informed consent over actions taken on their behalf. The problem, of course, is that ours may be a situation in which informed consent is difficult or impossible to obtain.[22] For its part, Jewish tradition does not recognize the doctrine of informed consent or for that matter the more inclusive concept of patient autonomy as the exclusive indices of ethical correctness. On the contrary: the halakhah tends to regard healing as a paramount obligation, to the point that the need to accept vital medical treatment generally outweighs one’s “right” to refuse it.[23] Within the field of secular ethics, too, some argue that under circumstances involving “the best interests of the patient” a mentally disabled person must be sterilized even without his or her informed consent.[24] Yet we ought to be disturbed at the prospect of coerced sterilization undertaken for the supposed “benefit” of the individual or the community. Such measures, adopted in recent memory by a number of nations[25] (including liberal, democratic societies like the United States),[26] have stained the moral reputation of those nations. We regard them today as heinous, and rightly so. [27] Before we decide in favor of human sterilization – a step that, in cases such as this, cannot but involve an element of coercion – we must meet a very high burden of proof. We must be sure that such a fateful step is justified by the circumstances of the case.
Conclusion. Surgical sterilization, particularly for those who have not yet had children, stands in sharp conflict with the values of our Jewish tradition and with the positions enunciated by Reform Judaism. Ann may have “mild learning disabilities” and her fiancé may be “mentally challenged,” but those descriptions do not convince us that the couple are incapable of raising children with love and devotion, let alone that they would pose a significant danger to the children they might have. It is possible, of course, that the couple’s disabilities are more severe than these descriptions indicate; if so, it is possible that our answer would change. As a general rule, however, we would counsel against the “remedy” of sterilization for those with mental disabilities. The families, instead, should work to provide the support this couple will need should they bring children into the world. Their synagogue and their Jewish community, moreover, should stand by them and help them in any way they can.
NOTES
1. The midrash is found in B. Chagigah 14b. A variant occurs in B. Shabbat 110b, where the idea is derived from the words lo ta`asu (“you shall not do it”) in the Leviticus verse; the phrase is re-read as lo te`asu, “it shall not be done” (see Rashi, s.v. lo ta`asu). See also Yad, Isurei Bi’ah 16:10; Tosafot Shabbat 110a, s.v. talmud lomar; Shulchan Arukh Even Ha`ezer 5:11. R. Yosef Karo (Beit Yosef to Tur Even Ha`ezer 5) notes the interpretive problem: be’artz’khem (“in your land”) is usually read as referring to the land that belongs to you, i.e., eretz ysirael, the land of Israel. Yet the prohibition is generally understood to be chovat haguf, an obligation incumbent upon persons, regardless of location. Tosafot (loc. cit.) solves the problem by suggesting that the prohibition stems from the suffix -khem (“your,” that is, “it shall not be done by you”) rather than from the beginning of the word (“your land”).
2. Yad, Isurei Bi’ah 16:1. He may marry a female convert (giyoret) or a female Canaanite slave who has been freed and converted to Judaism (m’shuchreret), since the word “assembly” (kahal) in the verse is understood to exclude those who belong to these groups. See M. Yevamot 8:1-2.
3. Sifra, Emor, Parashah 7; Tosefta (ed. Lieberman) Yevamot 8:4.
4. Rambam (Yad, Isurei Bi’ah 16:11) defines the act as patur, meaning that it is forbidden but that it is not punishable by stripes (makot) as is the emasculation of a male (Magid Mishneh ad loc.; Beit Yosef to Tur, Even Ha`ezer 5). The passage includes the females of other species within the scope of the prohibition. See also Shulchan Arukh Even Ha`ezer 5:11 (“patur aval asur”).
5. As we know, there is frequently as difference between the “original” meaning of a Biblical verse, the meaning that would have been ascribed to it by ancient (that is, “pre-Jewish”) Israelite readers, and the way in which the verse is understood and interpreted within the later Rabbinic Jewish tradition. At any rate, the Bible itself never draws an explicit connection between seirus and procreation. The Biblical prohibition may have been motivated by other concerns: a revulsion against human mutilation, perhaps, or by the association of this practice with idolatrous worship. See Jeffrey Tigay, Jewish Publication Society Commentary to Deuteronomy (Philadelphia: Jewish Publication Society, 1996), p. 210 (on Deut. 23:2), and the literature he cites in notes 24-27, p. 386.
6. On the mitzvah of procreation, see M. Yevamot 6:6; Yad, Ishut 15:1; Shulchan Arukh Even Ha`ezer 1:1. Among the sources that connect the prohibition of seirus with the obligation of p’ru ur’vu are B. Shabbat 110b; Tosefta (ed. Lieberman) Yevamot 8:4; Tosafot Shabbat 110a, s.v. vehatanya; Chidushei HaRashba, Shabbat 111a; Chidushei HaRitva, Shabbat 111a; Sefer HaChinukh, mitzvah no. 311; R. Yoel Sirkes, Bayit Chadash to Tur Even Ha`ezer 5, s.v. ve’ishah.
7. Tosefta (ed. Lieberman) Yevamot 8:4.
8. See Lieberman’s note to Tosefta ad loc., as well as his Tosefta Kif’shutah to that passage. The Magid Mishneh commentary to Yad, Ishut 16:12 cites this same variant of the Tosefta passage.
9. B. Shabbat 111a and Yevamot 65b.
10. Halakhot Gedolot, ch. 36, Hilkhot Ketubot; Yad, Ishut 16:12; Shulchan Arukh Even Ha`ezer 5:12.
11. M. Yevamot 6:6; B. Yevamot 65b; Yad, Ishut 15:2; Shulchan Arukh Even Ha`ezer 1:1 and 1:13.
12. On the other hand, the tradition suggests that women partake of a similar, though non-Toraitic, obligation, derived from Isaiah 45:18, to help populate the world. See Magen Avraham to Shulchan Arukh Orach Chayim 153, no. 9 and Mishnah Berurah, Orach Chayim 153, no. 24.
14. This discussion should evoke the distinction between chovah and mitzvah, a familiar one in halakhic literature. See our responsum no. 5758.3, “In Vitro Fertilization and the Mitzvah of Childbearing,” Reform Responsa for the Twenty-First Century (New York: CCAR Press, 2010), at p. 178 and note 47.
15. Shimeon Maslin, ed., Gates of Mitzvah: A Guide to the Jewish Life Cycle (New York, CCAR Press, 1979). The quoted text is found on p. 11.
16. The rules concerning pikuach nefesh, the obligation to set aside virtually every prohibition in the Torah in order to save human life, are generally derived from Leviticus 18:5: “You shall keep my laws… which one shall observe and live by them,” which the midrash interprets as “but not to die by them.” See B. Yoma 85b; Yad, Yesodei Torah 5:1ff; and Shulchan Arukh Yoreh De`ah 157:1. With respect to medicine in particular, the primary text is B. Pesachim 28a: “One may use anything for the purpose of healing, except for idolatry, sexual immorality (gilu’i arayot), and murder”; Yad, Yesodei Hatorah 5:6: Shulchan Arukh Yoreh De`ah 155:2. The rules concerning sterilization are somewhat more complicated, since some authorities apparently prohibit surgical or medical sterilization even for medical purposes (refu’ah); see Tur, Even Ha`ezer 5 and Beit Shmu’el to Shulchan Arukh Even Ha`ezer 5, no. 13. On the other hand, the great 14th-century commentator R. Yom Tov b. Ishbili, citing the phrase “nothing stands in the way of pikuach nefesh” (B. Yoma 82a and Ketubot 19a), permits sterilization for serious medical purposes. This position is taken by a number of recent halakhists, including R. Benzion Meir Hai Ouziel (Resp. Piskei Ouziel, no. 55) and R. Moshe Feinstein (Resp. Igerot Moshe, Even Ha`ezer 3:12). One might still insist upon a distinction between surgical sterilization, which is Toraitically forbidden for males, and sterilization by way of a drug, which does not literally involve that prohibition. We, however, see no reason to apply this distinction in a case of serious medical concern.
17. B. Shabbat 30a and elsewhere; Yad, Shabbat 2:1ff; Shulchan Arukh Orach Chayim 328:11 and elsewhere.
18. Resp. Igerot Moshe, Orach Chaim 2:88. The responsum dates from 1962.
19. Rabbi A. S. Avraham, Nishmat Avraham, v. 5 (Jerusalem: Falk Schlesinger Institute, 1987), p. 102. R. Avraham adds that Rabbi Yehoshua Noivert, a noted Israeli halakhic authority, endorses his critique of Feinstein’s ruling.
20. American Association on Intellectual and Developmental Disabilities (AAIDD), Position Statement: Parents with Intellectual and/or Developmental Disabilities. 2008. http://www.aamr.org/content_3434.cfm (accessed November 2, 2010).
21. The AAIDD Position Statement (see previous note) offers the following examples of support services that ought to be made available to these parents: in-home visits to teach parenting skills; assistance with daily living skills; access to nutritional resources such as “ready to feed” formula; child care, early intervention services, and counseling; basic academic education for parents; assistance in accessing public benefits as appropriate; crisis intervention services, availability of intensive supports as needed, and volunteer mentoring programs.
22. On the concept of “informed consent,” see Reform Responsa for the Twenty-First Century, vol. 2 (New York: CCAR, 2010), no. 5763.2, p. 149, at notes 29-31; http://ccarnet.org/responsa/nyp-no-5763-2. The issue there is whether in that particular instance “informed consent” is even possible. The same, obviously, applies here.
23. For a discussion of the interplay between the doctrines of individual autonomy and pikuach nefesh in the context of a liberal approach to Judaism, see our responsum no. 5766.3, “Hunger Strike: On the Force Feeding of Prisoners,” Reform Responsa for the Twenty-First Century, vo.2, pp. 381-395, especially at section 2b (http://ccarnet.org/responsa/nyp-no-5766-3).
24. For an example of such an argument, see T. Tannsjo, “Non-Voluntary Sterilization,” Journal of Medicine and Philosophy 31:4 (2006), pp. 401-415. The issue, of course, is extremely controversial, and we do not mean to suggest here that we have resolved all the questions. For a balanced treatment of both sides of the dispute see D. S. Diekema, “Involuntary Sterilization of Persons with Mental Retardation: An Ethical Analysis,” Mental Retardation and Developmental Disabilities Research Reviews 9:1 (2003), pp. 21-26. Similar balance is present in the statement by the Committee on Bioethics of the American Academy of Pediatrics: “Sterilization of Minors with Developmental Disabilities,” Pediatrics 104:2 (1999), pp. 337-340, http://pediatrics.aappublications.org/cgi/content/full/104/2/337 (accessed November 4, 2010).
25. The most obvious example is that of Nazi Germany. See the testimony gathered by the United States Holocaust Memorial Museum, “The Biological State: Nazi Racial Hygiene, 1933-1939,” http://www.ushmm.org/wlc/en/article.php?ModuleId=10007057 (accessed November 8, 2010). See, in general, George J. Annas and Michael A. Grodin, The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (New York: Oxford University Press, 1992) and Robert Jay Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (New York: Basic Books, 1986).
26. On the eugenics movement in the United States, which flourished during the early- to mid-twentieth century and which led to measures that legalized the compulsory sterilization of “undesirables,” see, in general, Wendy Kline, Building a Better Race: Gender, Sexuality, and Eugenics from the Turn of the Century to the Baby Boom (Berkeley: University of California Press, 2002); Harry Bruinius, Better for All the World: The Secret History of Forced Sterilization and America’s Quest for Racial Purity (New York: Alfred Knopf, 2006); M. A. Hasian, Jr., The Rhetoric of Eugenics in Anglo-American Thought (Athens: University of Georgia Press, 1996); and Daniel Kevies, In the Name of Eugenics: Genetics and the Uses of Human Heredity (New York: Knopf, 1985). We note the racist overtones of the movement in the “Conclusion” of our responsum no. 5768.3, “On Human Genetic Modification,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5768.
27. For an example of such abhorrent thinking on the part of otherwise enlightened intellectuals, consider the notorious decision of the United States Supreme Court in Buck v. Bell, 274 U.S. 200 (1927), which upheld the constitutionality of compulsory sterilization of “feeble-minded” persons. Delivering the opinion of the court, Justice Oliver Wendell Holmes wrote as follows (at p. 207): “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”