Reconsidering halakhah in a range of fertility issues.
By Ronit Irshai
Within The Jewish tradition, the bearing of children is regarded as one of the most important of the divine commandments.1 Its origins go back to the blessing God be-stowed on Adam and Eve immediately after creating them: “God blessed them and God said to them, ‘Be fertile and increase, fill the earth and master it; and rule the fish of the sea, the birds of the sky, and all the living things that creep on the earth’ ” (Genesis 1:28). By the tannaitic period (late first to early third century CE), however, it had become a commandment imposed only on men (as distinct from a blessing applicable to both men and women).2 The great importance of the commandment to reproduce is evident in the long list of Talmudic and post-Talmudic rabbinic discourses and statements on the point, as well as in the halakhic implementation of the concept.
In the tannaitic context, it has been shown, the purpose of the commandment to procreate reflects the iconic quality that the tanna’im attributed to the idea of creation in God’s image. The creation of humans in God’s image implies a duty to procreate as a theurgic action, as the production within the world of more copies of the divine image. To state it differently, God had the same aim in creating humanity and in creating humanity’s reproductive mechanism: an ongoing augmentation of the divine image. This rationale explains why the sages regarded the commandment as so important and its abandonment as so serious a matter as to be equated with shedding blood.
But did the halakhah, throughout its history, really maintain that understanding of the obligation to procreate? I am convinced that a careful reading of the halakhic sources suggests a more balanced picture, a viewpoint that does not insist on the supremacy of procreation over all other values. Numerous halakhic analyses aim to circumscribe the scope of the commandment rather than to broaden it—some to give adequate weight to other values seen as no less important; others to recognize different interests or needs that may arise during the course of a person’s life. A line of halakhic commentaries and responses regarding the rabbinic (as distinct from the biblical) commandment to procreate suggest that the commandment may yield to various other factors—the interest in uninterrupted Torah study, economic and family concerns, or even social solidarity (as in times of famine, when procreation is to be limited). To take just one example, in his comment on the quoted Talmudic passage, R. Yom Tov ben Abraham Ishbili (Spain, 1250–1320; known as Ritba), a student of Nahmanides, maintains that a man who wishes to pursue Torah study without distraction, and who has already fulfilled the biblical commandment to procreate, is permitted to medicate himself to diminish his libido (but not to induce impotence). Other rishonim (rabbinic authorities who lived between the eleventh and the sixteenth centuries) similarly emphasize that the rabbinic obligation to procreate does not warrant disregard of economic concerns or of concerns about the welfare of one’s family.
Among the aharonim (post-sixteenth-century rabbinic authorities), wording suggests that the rabbinic commandment to procreate cannot trump all considerations of economics; on the contrary, concerns about one’s ability to support additional children are clearly relevant to any decision to enlarge one’s family. It also suggests that it is proper to consider the welfare of the children who may be born. Finally, and perhaps most broadly, it implies that the decision to bring more children into the world has to be a personal one—personal not only in the sense that it must be reached in light of an individual’s particular concrete circumstances but also in the sense that there is no “objective” test for assessing those circumstances.
However, an examination of how today’s halakhic literature treats issues related to fertility and procreation reveals that contemporary halakhic decisors adopt a very different rhetoric. In matters pertaining to abortion and birth control, the prevailing tendency is to rule strictly and to impose significant limitations on both practices. With respect, however, to such matters as artificial insemination, in vitro fertilization, and surrogacy, the prevailing tendency is toward marked leniency and permissiveness, to the point of disregarding some weighty ethical questions. This sharp contrast in attitude suggests an underlying ideology at play: if the rabbis tend to be strict in prohibiting “sex without procreation” but tend to be lenient in permitting “procreation without sex,” it is fair to infer that they are ideologically commit-ted to promoting fertility and encouraging childbearing at almost any price.
It needs to be said that in contrast to these authorities, younger rabbis, particularly within the modern Orthodox community, appear to be moving in a different direction. The novel and important developments which we are witnessing are evident, in a rhetoric that formulates the question from the woman’s perspective and takes account as well of her educational and developmental needs. The new rhetoric shows that the changes taking place in the social standing of women within this community, and the legitimacy afforded to those changes, have brought about a reframing of the issue and, as a result, the discovery of new answers not hitherto provided.
These developments notwithstanding, the dominant rhetoric within most segments of Orthodox society continues to relate to “family planning” as an influence of depraved modernism.
What can account for the pronatalist tendency that has come to dominate halakhic decision making in recent generations? Certainly, there are multiple explanations, and it is fair to assume that they entail consideration of diverse and conflicting values. A generally accepted view is that the Holocaust primarily but also the Israeli-Palestinian conflict are the main factors that underlie the tendency. That explanation is important, but I do not believe it exhausts the matter; it must be complemented by an understanding of the gender-related issues that underlie the ideology reflected in the decisions. In my judgment, a latent concept of gender that defines women and femininity with reference to women’s biological functions constitutes a necessary condition (though not a sufficient condition; as noted, other matters are in play as well) for the structuring of ideological decisions favoring childbearing. On this understanding, the primary function of women is to bear children, and it is childbearing and child rearing that define, almost exclusively, women and femininity. This concept does not regard a woman as an “end in itself” (in the Kantian sense); rather, it sees her primarily in her reproductive role—as a means. Implicit in the idea is a significant potential for maintaining clear patriarchal notions that take no account of women’s existential interests and that tend to define women as “matter” rather than “form” or that enforce their inferior state by emphasizing their role in the private sphere alone. I do not mean by this to argue that a woman’s reproductive role necessarily maintains patriarchal notions, but only to note that the weight it receives in comparison to other values determines whether its implicit potential for dominance is, in fact, realized.
The change in women’s place in society makes it difficult to negotiate the usual legal passage from precedent to the issue at hand. Borrowing terminology from the philosophy of science, we may say that halakhic decisors are working in a situation of paradigm shift, that is, a reality in which women no longer see themselves as dedicated solely to the ideal of childbearing and want to realize themselves and develop in other spheres as well. Halakhic precedent allowed men (once they had fulfilled the commandment as a matter of biblical law) to curtail their childbearing in order to pursue Torah study or earn a living, and decisors are now being asked, in view of the paradigm shift, to extend those precedents and their underlying reasoning to women as well. Indeed, if women are not subject to the commandment to reproduce (a determination already reached in the Mishnah) and are no longer subject to the traditional presumption that they crave marriage more than anything else, or if it is understood that the commandment to reproduce does not necessarily entail an obligation to bear limitless numbers of children and that measures to refrain from bearing children may be taken without any halakhic violation, it follows that women may opt to remain unmarried or, alternatively, to elect to have small families without thereby acting contrary to the halakhah. But that purely halakhic determination appears, in the eyes of many, to align the halakhah with the forces of modernity that otherwise tend to undermine the halakhah by, among other things, downplaying the importance of the family. I want to suggest that the halakhic decisors are aware of this tension and that the prominent tendency of contemporary halakhic discourse to place disproportionate stress on the commandment to reproduce constitutes, in effect, a defense mechanism against a countervailing impulse that might influence the halakhah in its own fashion. To state it differently, this is an ideological debate and the halakhah is being played here as a tool advancing its own values, not necessarily respecting women as full human beings.
- This article is translated from the Hebrew by Joel Linsider. Except as otherwise noted, translations of Hebrew or Aramaic primary sources are his. Translations of biblical texts are from the New Jewish Publication Society Tanakh (njps) (Jewish Publication Society, 1985, 1999). The term halakhah, translated as “Jewish law,” refers to the legal system that governs all aspects of Jewish life, including family relations. “Decisor” is the term used for a rabbi recognized as authoritative who renders decisions on matters of halakhah, either in a treatise or commentary or in responsa (sing., responsum), answers to specific questions posed to him.
- See Mishnah, Yevamot 6:6. Most commentators understand the commandment to be derived not from God’s blessing to Adam and Eve, but from his declarations to Noah after the Flood (Gen. 9:1, 6–7) or to Jacob (Gen. 35:11), which they read as more directive.
Ronit Irshai is a lecturer of Jewish philosophy and feminism and a faculty member of the Gender Studies program at Bar-Ilan University. She specializes in modern and contemporary Jewish philosophy and philosophy of halakhah (Jewish law), with a particular emphasis on fertility issues and feminist criticism. This year she is a visiting scholar in the Women’s Studies in Religion Program at Harvard Divinity School.