The Halakhic and Ethical Issues Regarding Early Ovulation and

Conception

Liat Greenwood

Introduction to the problem

V’el isha b’nidat tumata lo tikrav l’galot ervata.

“To a woman in the niddah state of ritual impurity, you may not come near to

uncover her nakedness.” (Leviticus 18:19)

The sages explain that a woman enters the status of a niddah with the release

of uterine blood; as a result, she becomes Temeah, ritually impure, and may not

cohabit with her husband. In Torah times, the woman would have been able to change

her status to that of Tehorah, ritually pure, by immersing in the Mikveh, a ritual bath,

after seven days. She could then resume intimate relations with her spouse.

With the arrival of the Israelite nation in their homeland and the rise of the

rabbinic leadership, the timing by which a woman achieved the status of Tehorah

underwent a significant transformation. The rabbis mandated that a woman would be

considered a niddah for the first four to five days of her menstrual cycle (four

according to the tradition of the Sephardic Jews–from Arab and Spanish lands– and

five according to the Ashkenazic Jews – from the remainder of Europe). But in

addition, she would now be considered a niddah for the following “seven blood-free

days” as well (at a minimum, a total of eleven days for Sephardic women and twelve

days for Ashkenazic women).1 These laws remain in effect to this day and an

1 The progression of these laws will be described in greater depth in a later section, “The Niddah Status.”

observant Jewish woman is bound to adhere to them.2 Though the extension of the

niddah status by several days was ultimately rabbinic in origin, modern Orthodoxy

holds that this extension has the same weight and force as the original Torah

injunction.

How does this work from a practical standpoint in modern times? During the

seven blood-free days, a woman must have no physical evidence of uterine bleeding.

In the afternoon at the conclusion of her actual bleeding (a minimum of four or five

days, as determined by the woman’s origin and family tradition), she performs an

internal vaginal check using a white cloth. She then visually inspects the cloth to

ensure that there are no traces of red stain. If she determines that the cloth is free of

this residue, she may begin counting her seven blood-free days; this initial

examination is known as a hefsek tahara. During the successive week, she performs

the same internal check, which is now known as a bedikah, on a daily basis to ensure

that her status is unchanged from the moment of her hefsek tahara. Under normal

circumstances, a rabbi is not consulted in these matters, and the woman relies on her

own sense of integrity to declare that she has completed her seven blood-free days.

Following her last bedikah, she is permitted to visit the mikveh and is encouraged to

resume intimacy with her husband.

The connection between these seven blood-free days and fertility may not be

apparent to those without an understanding of female physiology. But if a woman

generally ovulates during her seven blood-free days, it is likely that she will be unable

to conceive during intercourse. This condition is known in the Modern Orthodox and

Ultra-Orthodox communities as “early ovulation” and the result is called “Halakhic

2 It is important to note that with the destruction of the second Temple in Jerusalem, other laws of impurity became null and void. The laws of niddah remain intact because of the specific Biblical prohibition against sexual relations with a niddah and its unique punishment of karet – spiritual excommunication.

Infertility,” that is, infertility that is a direct outcome from the practice of halakha,

Jewish law. According to a recent study in 2012 by a group of gynecologists in Israel,

21% of women (who observe the laws of niddah) reported that ovulation occurred on

average 24 hours or more before their mikveh immersion.3 This means that they were

halakhically infertile since they were prohibited to their husbands at the time they

would have been able to conceive. Infertility, resulting from early ovulation combined

with adherence to the laws of niddah (i.e., ovulation before immersion in the mikveh

and resumption of sexual relations), creates a number of dilemmas, both ethical and

halakhic in nature.

Physiology of Ovulation and Conception

The female reproductive system's primary organs are the ovaries. The two

ovaries are located on the lateral walls of the pelvis, and are attached to either side of

the uterus or womb by the ovarian ligaments. The ovaries are responsible for creating

the ova (the female gametes or eggs). They also release the female hormones

estrogens and progesterone, which help regulate the menstrual and fertility cycle,

among other functions. An external view of an ovary shows that it is relatively small

(about the size of an almond) and spherical. An internal view of an ovary shows many

sac-like structures called ovarian follicles, each containing an immature ovum called

an oocyte, engulfed in a layer of cells, called follicle cells. Each ovarian follicle goes

through stages of growth while the egg is maturing. The follicle expands outwards

creating open space between the maturing egg and the cell layer. This space is called

the antrum and is filled with liquid. When the ovarian follicle reaches the stage where 3 161 women, ranging in age from 22 to 30, were followed for a three-year period. Haimov-Kochman MD, Ronit, Chana Adler MD, Eliana Ein-Mor MSc, Daniel Rosenak MD, and Arye Hurwitz MD. "Infertility associated with Precoital Ovulation in Observant Jewish Couples; Prevalence, Treatment, Efficacy, and Side Effects. "Israel Medical Association Journal 14 (2011): 100-103.

the antrum is fully developed, it is called the vesicular or Graafian follicle; after this

point, the ovum is mature and ready to be sent out from the ovary into the fallopian

tubes in the process called ovulation.

In the general population of women, ovulation occurs on average every 28

days--towards the end of the proliferative stage--around days 6-14 of a woman's cycle

(counted from the first day of menstruation). After ovulation occurs, the mature ovum

will live for up to 24 hours before disintegrating. Once it is destroyed, conception

cannot occur until the woman ovulates again during her next cycle. If a Jewish

woman ovulates regularly during any of the first six blood-free days (i.e., before she

has immersed)--equivalent to the proliferative stage of an average woman's cycle--

then, she will be unable to conceive during intercourse, as there is no egg present to

fertilize. Using advances in modern medicine and technology, and by turning to

leniencies in Jewish Law, our sages have devised ways to combat the problem of

halakhic infertility.

The Niddah Status – Historical Overview

Ve'ishah k-tihiyeh zavah dam yihiyeh zavah bivsarah shivat yamim tihiyeh veniddatah vechol-hanogeyah bah yitmah ad-ha’arev

“And when a woman has a discharge and the discharge of her flesh is blood, she will be a zavah for seven days, and everyone who touches her will be ritually impure until the evening.” (Leviticus 15:19)

The Torah mandates that a woman who has expelled uterine blood is not

permitted to engage in sexual relations with her husband for a seven-day period,

beginning with the onset of bleeding. The punishment for transgressing this

commandment is severe – that of Karet, spiritual excommunication -- as ritual purity

is at stake. But the Torah also speaks about another status which is historically

relevant, as it relates to the ultimate expansion of the seven-day waiting period to the

current minimum of eleven or twelve days. The Torah introduces the concept of a

zavah, a woman who encounters uterine bleeding at a time outside of her expected

menstrual period. According to the Torah, a zavah must count seven blood-free days

following the cessation of her flow before she can become tehorah and is permitted to

her husband. In practice, however, women were unable to distinguish between the

laws of the zavah and niddah. Therefore, in order to ensure that they were not

transgressing a Torah commandment, and were at risk for the punishment of Karet,

Jewish women started to observe their own stringencies. The practice became

widespread to consider all uterine bleeding as rendering them zavah -- and not niddah

-- thus requiring them to count seven blood-free days only after all uterine bleeding

had ended. This is known as Takanat Rebbi Zeira, the ordinance of Rabbi Zeira, and

is recounted in the Talmud as follows:

Amar Rabbi Zeira: B’not yisrael hechmiro al aztman, she’afilo ra’ot tipat dam chardal – yoshevet aleyha shiva neki’im

Rabbi Zeira said: the daughters of Israel accepted a stringency on themselves, that even if she saw only a drop of blood the size of a mustard seed, she would sit on it for seven blood-free days.4

In Jewish law, it is customary that a chumra (stringency) created or codified by the

sages of previous generations takes on the status of Torah law.

It is clear that with Takanat Rebbi Zeira, a woman now needed to wait until

the conclusion of her uterine bleeding before performing a hefsek tahara and

beginning the count of the seven blood-free days. But how did the rabbis determine

that a woman needed to wait at least four of five days before starting the count? What

would happen in the case of a woman whose bleeding lasted only three days? The

rabbis added an additional day (or two, depending on regional differences) because of

the possibility that the woman and her husband had sexual relations just prior to the

4 BT Niddah 66a

onset of her niddah status. They feared that her seven days would be tainted by the

expulsion of semen, which would cause further impurity forcing her to start a

recount.5

The extension of the counting period by this many days may overlap with

ovulation. Hence, a direct result of Takanat Rebbi Zeira is that there are women who

will become Halakhically Infertile. That is, they will not be able to conceive naturally

during the time that they are permitted to their husbands.

Halakhic (Jewish Law) Solutions

If a women suspects that she ovulates during the period in which she is

halakhically prohibited to her husband, she should confirm that this is, in fact, the

case by performing a test with an ovulation kit (available over-the-counter at

pharmacies). Once confirmed, she should ensure that she is counting her seven

blood-free days correctly, before considering any other halakhic or medical

interventions. She may only be menstruating for the minimum four or five days

(according to her family tradition), but think that she is menstruating for longer,

especially if her hefsek tahara is questionable. The woman would need to submit her

hefsek tahara cloth to a rabbinic authority to confirm whether or not she has identified

her status correctly. If she has misunderstood the colors on the hefsek tahara, then she

will be encouraged to consult with a rabbi during the next cycle, so that she can attend

mikveh at the earliest possible opportunity and not delay unnecessarily. If she is

counting her days properly, then halakhic leniencies can be taken. If an Ashkenazic

woman is only menstruating for four actual days, many rabbis will allow her to

5 For a more elaborate discussion, see: Shulkhan Arukh, Laws of Niddah, 196

perform a hefsek tahara at that time (as is the Sephardic custom).6 She would still

wait her seven blood-free days, but they would be pushed forward so she could

potentially ovulate after her mikveh visit (or no more than 24 hours beforehand).

According to mainstream Orthodox view, if none of the above works, and she wants

to have children while still observing Jewish law, she has to proceed with medical

intervention.7

6 Rabbi Eliezer Waldenberg, author of the book of responsa, Tzitz Eliezer, and Rabbi Moshe Feinstein were among the first rabbis to offer Halakhic opinions on the question of shortening the total number of days of menstrual bleeding. Zimmerman MD, Deena. "Hormones, Health and Halacha." Lecture, Midreshet Yom Rishon from Yeshiva University, New York City, November 8, 2009.7 An opposing view, espoused by a gynecologist and a Rebbetzin, will be presented later, along with responses from the rabbinate.

Medical Interventions

Clomid

The drug most commonly recommended by doctors for the problem of

halakhic infertility is Citamine Citrate (more commonly known by the brand name

Clomid). Clomid is a non-steroidal ovulatory stimulant. It interacts with estrogen-

receptor-containing tissues (i.e., the hypothalamus, pituitary, ovary, endometrium,

vagina, and cervix). The cost for the drug over one cycle appears to run between $10-

$100, depending on dosage, with an average cost of approximately $40.8

Citamine Citrate must be prescribed by a doctor due to its potential side

effects, as explained in the Physician’s Drug Reference9. 1.5% of women taking

Clomid reported blurring and/or other issues with their eyesight. In fact, a woman

taking Clomid is advised not to drive or use machinery. For women with careers

requiring perfect vision, for example--a surgeon, Clomid may not be an acceptable

means to solve Halakhic infertility. 5.5% of women reported having abdominal and/or

pelvic pain and distension and bloating. And the risk of multiple pregnancies was

7.98%, higher than with than regular conception (directly due to overstimulation in

the ovaries). In addition to these risks, 13.6% of women reported ovarian

enlargement, 10.4% reported vasomotor flushes, 2.2% reported nausea and or

vomiting, 2.1% reported breast discomfort, 1.3% reported moderate to severe

headaches, and 2.1% reported abnormal uterine bleeding (which would defeat the

purpose of using this particular drug for the purpose of halakhic infertility).

When taking Clomid, a woman is at risk for Ovarian Hyperstimulation

Syndrome (OHSS). The risk of OHSS is higher in women under the age of 30. OHSS

8 Sherbahn MD, Richard. "Clomid Fertility Drug Treatment Protocols, Clomiphene Citrate." Advanced Fertility Center of Chicago Infertility & IVF Specialists. http://www.advancedfertility.com/clomid-treatment.htm (accessed May 26, 2013).9 Risk Evaluation & Mitigation Strategies. "Physician’s Desk Reference for Clomid." Physicians' Desk Reference. products.sanofi.us/clomid/clomid.pdf (accessed May 26, 2013).

is a serious medical disorder that can progress very rapidly. OHSS causes a build-up

of fluid leading to ovarian enlargement, gastrointestinal symptoms, ascites (fluid in

the peritoneal cavity), dyspnea (shortness of breath), oliguria (a low output of urine),

and pleural effusion (fluid in the lungs). If used for more than one cycle, taking

Clomid may increase the risk of developing an ovarian tumor. According to a study

conducted between 1965-1985, Clomiphene Citrate used for one cycle increased the

risk of uterine cancer by 1.79%.10 Finally, there have been no studies to show how

Clomid reacts with other drugs.

There is also the possibility that a woman will not be allowed to take Clomid

due to medical contraindications. A woman cannot take Clomid if she is prone to

abnormal ovarian cysts, which occur in 67% of women. Additionally, she may not

take Clomid if her estrogen levels are too low, or if she has a history of liver disease,

thyroid problems, or adrenal dysfunction.

Intrauterine Insemination (IUI)

Intrauterine Insemination, known more commonly as IUI, is a relatively safe

medical procedure (it is a type of Artificial Insemination, AI), which takes place while

a woman is ovulating. The IUI procedure takes around twenty minutes and costs

between $500 and $1,000.11 Women under 35 years of age have a 10% to 20% chance

of getting pregnant after one IUI cycle. Women between the ages of 35 and 40 have a

10 This study must be considered carefully as it involved woman who were infertile and, in many cases, obese. Infertility of itself may increase the risk of uterine cancer, rather than medical treatment for infertility. Althuis, Michelle D., Kamran S. Moghissi, Carolyn L. Westhoff, Bert Scoccia, Emmet J. Lamb, Jay H. Lubin, and Louise A. Brinton. "Uterine Cancer after Use of Clomiphene Citrate to Induce Ovulation."American Journal of Epidemiology 161, no. 7 (2005): 607-615.11 Mayo Clinic Staff. "Intrauterine insemination (IUI) - MayoClinic.com." Mayo Clinic. http://www.mayoclinic.com/health/intrauterine-insemination/MY00104 (accessed May 26, 2013).

10% chance, and women over the age of 40 have only a 5% chance of getting

pregnant after one cycle of IUI. 12

Beforehand, a woman takes Follicle Stimulating Hormone (FSH) or another

ovary stimulating drug to ensure that she will produce enough ova for the procedure.

Separately (and usually at an earlier date), her husband's sperm is harvested in

accordance with halacha and is then cleaned.13 A rabbi can be present in order to

ensure that the husband’s sperm is being used, and not that of another man, thereby

preventing issues of adultery and relations with one’s close relative. The sperm are

then injected into the uterus so that the ova can be fertilized. The main risks posed by

IUI are multiple pregnancies due to the use of ovary stimulation drugs. Less than 1%

of women acquire infections from the procedure.14

In Vitro Fertilization (IVF)

Another option for the halakhically infertile woman is in vitro fertilization,

also known as IVF. IVF costs between $1,200-1,500 and has a success rate of 39.6%

for women under 35 during one cycle, significantly higher than that of IUI. Women

over the age of 40 have an 11.7% chance of becoming pregnant after a single cycle of

IVF, also significantly higher than with IUI.15

Because this is a ritual purity issue, a woman cannot have relations with her

husband during the seven blood-free days. However, that does not prevent a doctor

12 Mayo Clinic Staff. "Intrauterine insemination (IUI) - MayoClinic.com." Mayo Clinic. http://www.mayoclinic.com/health/intrauterine-insemination/MY00104(accessed May 26, 2013).13 The Torah only permits seminal emissions during sexual intercourse. As such, there are some rabbis who categorically forbid IUI and IVF. Most hold that there are halakhic means for harvesting sperm, with post-coital collection as the favored method. These issues will not be addressed further as they are outside the scope of this paper. 14 Mayo Clinic Staff. "Intrauterine insemination (IUI) - MayoClinic.com." Mayo Clinic. http://www.mayoclinic.com/health/intrauterine-insemination/MY00104(accessed May 26, 2013).

15 IVF permits the use of pre-gestational diagnosis (PGD), whereas IUI does not, and this is considered advantageous by some rabbis and doctors. PGD can be used to screen for genetic diseases such as Tay Sachs.

from harvesting her eggs during the time she normally ovulates for later implantation.

Rabbi Eliezer Waldenberg, a former judge on the supreme rabbinical court in

Jerusalem, did not allow IVF because he was of the opinion that IVF is an unnatural

process. He wrote in his book, Tzitz Eliezer, "the very order of nature has been

altered,"16 when conception occurs outside of the woman's body.17

Before a woman would normally ovulate, she would take drugs such as

Gonadotropins (which contain FSH) to stimulate her ovaries so that during this

particular cycle, they would produce more than one to two eggs. The eggs are

harvested during ovulation. This can be done either laparoscopically or through

aspiration guided by ultrasound. Separately, her husband's sperm is collected in a

halakhically acceptable manner. A doctor will then fertilize the eggs with the sperm

in a petri dish. As an extra precaution in modern times, a rabbi can be hired to oversee

the process and make sure the husband's sperm has been correctly mated to the

woman's eggs.

The fertilized eggs, now called embryos, will go through the stages of early

cleavage (a cluster of four cells), morula (expansion to a ball of cells), and the early

blastocyst stage. Once the zygotes reach the early blastocyst stage, no more than three

or four are implanted into the wall of the uterus--called the uterine lining--into its

16 Tzitz Eliezer Responsa 4517 It is not even clear that IUI and/or IVF fulfill the Biblical obligation for a man of Pru Urvu to “be fruitful and multiply,” which is found twice in the Torah. Rabbi Yaakov Breisch, in his responsum “Chelkat Yaakov Even Ha’Ezer,” believes that this is the case. In fact, he holds that if the woman’s husband were to die, she would need to go through a Levirate marriage in order to have children with his brother. In contrast, the Chief Rabbi of England, Lord Jonathan Sacks, released a statement when IVF pioneer Robert Edwards died, saying: “…we see the in vitro treatment of infertility as a sacred task, one that inspired members of our own community like Lord Robert Winston to make their own contributions to the field. Five million children have been born thanks to Robert Edwards’ work: five million blessings brought into the world.”

outermost layer called the endometrium.18 From there, the pregnancy will most likely

continue normally leading to a single birth or multiple births.

As with any medical procedure, IVF has its side effects—both on the mother,

her husband, and their baby. Although the aspiration procedure is generally

considered safe, it can cause damage to the bowel, blood vessels, or bladder. It may

also cause some bleeding and or infection. Some babies who are conceived via IVF

are born premature with low birth weights, in single as well as multiple births.

Research shows that uterine bleeding in the first trimester is more common in women

who have conceived via IVF.19

A major side effect of IVF is its effects on mental health, rather than physical

health – namely, the stress that it causes for the woman, for her spouse and on their

relationship. One study observed that women undergoing IUI and IVF tended to have

higher distress levels, be more fatigued, and have fewer social contacts than their

spouses. The same study notes that after failed IVF cycles, 13% of women had

suicidal thoughts.20

Due to the fact that more than one embryo is usually implanted into a mother's

uterus, IVF poses a stronger risk of multiple births than does IUI and Citamine

Citrate, if more than one embryo is implanted. The risks of multiple births include:

premature labor and delivery, low birth weight (under 2500 grams or 5 pounds, 8

ounces), intrauterine growth restriction (also known as IUGR), preeclampsia (the

18 Bracha Rutner, a Yoetzet Halacha (advisor on matters related to niddah) reports that more doctors are choosing to implant only one or two embryos at a time. Rutner, Bracha. Interview by author. Phone interview. USA, April 24, 2013.19 Mayo Clinic Staff. "In vitro fertilization (IVF) - MayoClinic.com." Mayo Clinic. http://www.mayoclinic.com/health/in-vitro-fertilization/MY01648 (accessed May 26, 2013).20 Boivin, Jacky, Lena Andersson, Agneta Skoog-Svanberg, Anna Hjelmstedt, Aila Collins, and Torbjorn Bergh. "Psychological reactions during in-vitro fertilization: similar response pattern in husbands and wives." Human Reproduction 13, no. 11 (1998): 3262-3267.

chances of preeclampsia are doubled with multiple births), gestational diabetes,

placental abruption, miscarriage, and cesarean section.

Women with single pregnancies tend to deliver after 39 weeks of pregnancy,

while under 37 weeks is considered premature. With each additional baby in utero,

gestation length decreases. On average, twin pregnancies remain 36 weeks, triplets

remain 32 weeks, and quadruplets remain 30 weeks in the womb. 60% of twins are

delivered preterm, while 90% of triplets are delivered preterm. Babies born

prematurely run the risk of both short-term and long-term risks. Short-term risks

include: breathing difficulty (due to under-developed lungs), intraventricular

hemorrhage (bleeding in the brain), hypotension (low blood pressure), hypothermia

(poor temperature regulation), and anemia. Long-term risks include: a higher risk of

Cerebral Palsy, impaired cognitive skills and visual, dental, and hearing problems.

Ethical Issues regarding Medical Interventions

Clomid, IUI and IVF are the mainstays of medical treatment for halakhic

infertility, but each has its own costs – both financial and medical. In order to

conceive children, a halakhically infertile woman must invest money and significant

time into a procedure that may or may not prove successful. In addition, she needs to

weigh the benefits of having a child against the unknown health consequences

(physiological and psychological). As written in a study researching the effects of

fertility treatment on stress, “Infertility treatments are invasive, expensive, time-

consuming and emotionally draining. Treatment involves the repetitive raising and

dashing of the hope of pregnancy, perhaps resulting in an increase in the saliency of

parenthood identity and a heightened sense of distress in the face of the failure to

attain parenthood.”21 Another ethical issue that arises is the allocation of medical

resources. Funds, time, and effort, which are directed towards fertility treatments,

could instead serve those with significant medical needs.

Divorce

The Babylonian Talmud states that a man may divorce his wife if she has

failed to produce a child after ten years, so that he may marry another woman and

start a family.22 This begs the question – Can a man divorce his wife if she refuses to

undergo any of the aforementioned medical therapies despite struggling with halakhic

infertility? Rabbi Dr. Harvey Belovski of the Golders Green Synagogue in London

21 McQuillan, Julia, Arthur L Greil, Lynn K White, and Mary Casey Jacob. "Frustrated Fertility: Infertility and Psychological Distress Among Women." Bureau of Sociological Research - Faculty Publications 13 (2003): 1007-1118. http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1012&context=bosrfacpub&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar_url%3Fhl%3Den%26q%3Dhttp%3A%2F%2Fdigitalcommons.unl.edu%2Fcgi%2Fviewcontent.cgi%253Farticle%253D1012%2526context%253Dbosrfacpub%26sa%3DX%26scisig%3DAAGBfm0XuKZvqT2xTF_sVrLCHHaD4KFfaA%26oi%3Dscholarr#search=%22http%3A%2F%2Fdigitalcommons.unl.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1012%26context%3Dbosrfacpub%22 (accessed May 26, 2013).22 Mishnah, Tractate Yevamot (laws relating to levite marragies), Chapter 6, Mishnah 6

writes that, although this is possible, “in this day and age, we try to do everything

possible to make sure that this does not happen, and it rarely does.”23

Causing Harm

Since there are inherent health risks associated with these medical procedures,

the question arises -- Can a woman cause potential harm to herself for the sake of

having children while maintaining the laws of niddah? The actual positive

commandment to “be fruitful and multiply” was given to Jewish men only.24 Since the

wife is not commanded to have children, there is no halakhic reason for her to put

herself in any unnecessary danger in order to produce a family.

There are several other Torah commandments that are relevant to this issue as

they explore the obligation to avoid danger. It is a positive Biblical commandment

for the individual to avoid harm. But there are also two relevant negative

commandments derived from the Torah; an individual may not harm him/herself (i.e.,

the flip-side of the positive commandment) and the individual may not harm others.

The negative commandment against harming others is derived from a passage in

Deuteronomy:

Arba'im yakenu lo yosif pen yosif le hakoto alelleh makkah rabah, veniklah achicha le'eineicha.

“Forty lashes you may give him; you shall not add, for if you add, and beat him more than these lashes, then your brother will be ashamed before your eyes.” (Deuteronomy 25:3)

The rabbis of the Babylonian Talmud learn from this passage that since one cannot

add to the punishment (in the form of lashes) of a guilty man, even more so, one

should not harm or injure an innocent individual.25 This commandant seems to present

23 Belovski, Rabbi Dr. Harvey. Private email correspondence. England, May 12, 2013.24 Mishnah, Tractate Yevamot (laws relating to levite marragies), Chapter 6, Mishnah 625 TB Ketbubot 32b

a problem for a Jewish doctor who prescribes any medication or performs surgery that

is not absolutely necessary for a woman’s health, and which could cause harm to the

woman.

As for the commandment to keep oneself healthy (observed as both a positive

and a negative commandment), Maimonides wrote:

Ho’eel v’heyot haguf bari v’shalem midarchei hashem hu, sheharei ii efshar sheyavin oh yada davar miyediyat haboreh v’hu choleh, lefichach tzarich l’harchik adam atzmo midvarim hama’avadim et ha-guf, v’lihanhig atzmo bidvarim hamavrin v’hamalchimim

As a whole and healthy body are one of the ways of God and it is impossible that one will understand or know the Creator when he is ill, one has to distance oneself from things that destroy the body and engage in practices that are healthful and healing.26

Rabbi Moses Isserles reiterates this theme in the codification of Jewish law known as the Shulkhan Arukh:

V’chen yizhar mikol dvarim hamevi’im lidei sakanah, ki sakanata chamira m’isura, v’yesh lachush yoter l’safek sakanah milisafek issur

And similarly, he should be careful with those things that lead to danger, and danger is more severe than prohibition, and one has to be more careful about a possible danger than a possible prohibition. 27

These sources elucidate the problem for a woman electing to use a medical solution to

halakhic infertility; if there are any medical contraindications, she could be violating

both the negative commandment against self-infliction of injury and the positive

commandment to keep herself healthy.

Upholding Takanat Rebbi Zeira

The Torah calls for a seven-day waiting period for a woman who is niddah.

Ever since the sixth century, rabbis have upheld Takanat Rebbi Zeira, that women

should count four to five days following the appearance of uterine blood, before

26 Maimonides on Yoreh Deah 4:127 Shulkhan Arukh Yoreh Deah 16

beginning the count of seven blood-free days. No Modern Orthodox rabbi has ever

publicly stated that he would allow a woman to count seven days of separation

beginning from day one of her menstrual cycle, rather than from day four or five (i.e.,

adhering to Torah law, but forsaking the rabbinic stringency). In this case, the

Orthodox establishment believes that rabbinic law holds greater weight as it is meant

to safeguard the correct performance of the Torah decrees. However, there are

anecdotal reports, that some rabbis may have allowed this privately on a case-by-case

basis.28

In 2006, Dr. Daniel Roznak, a gynecologist at Hadassah Hospital, in

partnership with Rivkah Shimon, an Orthodox Rebbetzin from Pisgat Ze’ev,

Jerusalem, caused furor in the religious community after publishing an article in the

journal HaTzofeh, calling for a return to the seven-day waiting period mandated in the

Torah (i.e., counting from the first day of uterine bleeding).29 The authors called for

the elimination of Takanat Rebbi Zeira. They followed up with the publication of a

book30 and website,31 on which they write:

The “Halakhic” roller-coaster suggested today as a “solution” to the problem of religious sterility by feeding perfectly healthy women hormones they do not need, while risking their health and lives is another facet of the moral and ethical value of this atavistic stringency… It is obvious that the decrees of the rabbis were the best suited for their time and age, but it is also obvious that if they were aware of the medical knowledge we possess today, they would be the first to cancel this specific Chumra… it is obvious that we are dealing with a non-moral solution…”

Reactions to the writings of Dr Roznak have been virulent. Rabbi Bornshtein,

director of Puah (the Institute for Halakhic Infertility in Israel), is highly critical of the

way in which Roznak publicizes his ideas. Rabbi Bornshtein argues that rather than

28 Rutner, Yoetzet Halacha Bracha. Phone interview by author. April 24, 2013.29 Ettinger, Yair. "Be pure or be fruitful."Haaretz (Tel Aviv), December 10, 2006. http://www.haaretz.com/print-edition/features/be-pure-or-be-fruitful-1.206733 (accessed May 26, 2013).להחזיר טהרה ליושנה 30 31 tehora.co.il

approaching this issue from the bottom-up (i.e., bringing it to the masses to advance

change), it should have been approached from the top-down (i.e., discussing it with

the rabbinic authorities) in order to actuate change.

It is unfortunate that my request [for Roznak to refrain from publishing] was not accepted and that we arrived at an article such as this. Publications such as these cause suffering to people with urgent need who would have benefitted from the provision of a personal psak (Halakhic ruling), but today we encounter a greater fear -- lest the exception becomes the rule.32

Though Rabbi Bornshtein’s language is vague, he alludes to the fact that he may

allow for leniencies on a private, case-by-case basis (though those leniencies are

never defined). He is deeply disturbed, however, that Dr. Roznak has brought

attention to the matter and carried it from the personal realm into the public realm.

Rabbi Bornshtein also addresses major gaps in Dr. Roznak's understanding of

Jewish Law. He strongly disagrees with Dr. Roznak’s assertion that our sages did not

fully understand fertility and the concept of ovulation. He writes:

Even if medical technology during the time of the sages was not at the level it is today, there is no need to underestimate their intelligence or mental sensibilities. Even then, the sages also knew the period for conception, as they discussed in Niddah (a section of the Babylonian Talmud), "No woman conceives, unless she has just completed her immersion." Any intelligent individual understood that there were those who missed this time period (for conception). It is possible they solved this through vaginal insemination because there was no need for the medical wisdom of the 21st century to conduct this treatment.33

Furthermore, Rav Bornshtein brings in the professional medical opinion of Dr. Chana

Katan, a gynecologist, who disagrees with Dr. Roznak’s statistics--from the potential

dangers of possible medical intervention to the percent risk of breast cancer from the

use of hormones such as Clomaphine Citrate. Dr Katan minimizes the risks of short-

term hormone use (claiming that they may even be protective against some cancers),

and accuses Roznak of leaning towards extremes when evaluating medical data.

32 Author’s Translation33 Author’s Translation

I want to say unequivocally, and I repeat it at almost every medical conference--there is not a single posek (halakhic authority) in the world that would shorten the seven blood-free days.34

Rabbi Yuval Cherlow, a well-known rabbinic leader and Yeshiva educator in Israel,

reinforces this notion:

The severity of Rabbi Zeira already ceased to be a severity in the time of the Babylonian Talmud and was accepted by Israel in its entirety. All authorities without exception have understood this severity as law.35

However, he also writes that avoidance of medication for treatment is preferable and

that the issue of Takanat Rebbi Zeira is a discussion for a later time and place. It is

clear that Roznak’s ideas are rejected by all mainstream halakhic authorities, at this

time, however, he continues to be an outspoken advocate on behalf of the halakhically

infertile woman and has succeeded in raising awareness to the questions that rabbis

must consider when they provide rulings.

Conclusion

The psychological effects of infertility were evident even in biblical times. We

learn in the Torah about Sarah, Rachel, and Chana who went through trying times

before they were finally able to conceive. Sarah was distressed to the point that she

begged her husband, Abraham, to take her maidservant as a concubine in order to

have children.36 Rachel also pleaded with her husband, Jacob, to do the same.37 In

addition, Rachel relinquished a night with Jacob to her sister, Leah, as part of a deal to

acquire mandrakes, which she believed would help her to become pregnant.38

Chana’s anguish can be understood in her very emotional prayer to God at the Tent of

34 Author’s Translation35 Author’s Translation36 Genesis 16:237 Genesis 30:338 Genesis 30:15

Meeting; she was so involved and physically demonstrative that the High Priest

thought she was a drunkard.39

Modern medical innovations have made it possible for women who are

Halakhically infertile to join the ranks of these Biblical heroines, and bear children.

But at what cost? These women may face tremendous stresses – stresses that are

psychological, physical and financial in nature. At this point, these stresses are still

the subject of discussion and debate, as there is no agreement in the medical

community about the effects of the cited medical interventions on women’s health. It

is encouraging to note that Nishmat, a prominent women’s learning institute that runs

the website Yoatzot.org (to assist women in answering queries about niddah), is

currently enrolling women in a study to gather more information on halakhic

Infertility; hopefully, this study will also make observations on the psychological

impact of this condition.40 Ultimately, each couple needs to weigh the potential risks

against the possible reward/s, and the rabbis who lead them need to consider the

ethical boundaries when guiding them.

39 Samuel 1:1340 "Golda Koschitzky Center for Yoatzot Halacha." Golda Koschitzky Center for Yoatzot Halacha. http://www.yoatzot.org/(accessed May 26, 2013).