May the Humra Di’R. Zeira be Relaxed in Cases of Halakhic Infertility?

Introduction

“Halakhic infertility” occurs when observance of hilkhot niddah results in a woman ovulating only during the days that wife and husband are forbidden to be physically intimate. These situations result from post-biblical stringencies that lengthen the time of prohibition.

This article discusses whether a couple may cease observing one such stringency, the humra di’R. Zeira ^[1] (hearafter: humra [^[2]), while they try to become pregnant. The discussion is li’halakhah vi’lo li’maaseh, that is to say, it seeks to clarify the law but does not provide direct authority for action. Such authority must come from a competent halakhist who is convinced by my arguments and evidence.

My reticence to rule li’maasah has three causes. The first is that hilkhot niddah have become a specialty area in halakhah, and my overall knowledge of the subject is inadequate. The second is that halakhic infertility may be dramatically over-diagnosed. I have been told by rabbis, physicians, and yoatzot halakhah that a woman’s ovulation schedule is much less rigid and more susceptible to non-medical intervention than was previously thought, to the point that lenient psak might rarely if ever be necessary.^[3] The third is that R. Moshe Feinstein, in two teshuvot on this issue, writes that he has rationales for leniency but that he is unwilling to share them even in a private letter, let alone publish them.  Presumably R. Moshe was concerned that his rationales or precedent would be used too broadly if publicized.^[4]

However, more than 50 years have passed since R. Moshe wrote those teshuvot. A combination of Orthodox social change and of progress in the technology of fertility may have swung the pendulum far enough that we should now be equally concerned that people will rule and act strictly in cases where stringency is inappropriate. Yet it would be pollyannaish to deny that there is no risk of improper leniency. Some 21^st century writers have even used the issue of halakhic infertility to argue for removing all post-biblical niddah stringencies.

Writing li’halakhah vi’lo li’maaseh seems a reasonable middle ground. I hope this article will be useful to poskim who specialize in hilkhot niddah, to couples dealing with the practical and religious challenges posed by the possibility of halakhic infertility, and to anyone dealing with the broader issues of halakhah that arise in the course of this discussion. I pray that I have not erred and that my writing will not cause others to err.

History

In the late 19^th century, R. Yaakov Katz, Av Beit Din of Anad, sent a summary of a case and his proposed response to several colleagues with a request for comments. The case involved a childless couple who had received considered and confident medical assurances that the wife could become pregnant if they had intercourse during the three days following her menstruation. The explanation given by the doctors does not seem compatible with contemporary science. It is not clear whether R. Katz thought this was a once-in-a-millennium case or rather a regularly occurring phenomenon. So far as I can tell, this is the first reported case of (alleged) halakhic infertility, and the only reported case until the late 1940s.

Responses to R. Katz may be found in Shut Hinukh Beit Yitzhak (EH 6) and Shut Neta Sorek (YD 53).^[5] Each author reports that R. Katz sought to permit the couple to have intercourse based on the argument that the positive mitzvah of pru u’rvu should override the prohibition of sexual intercourse during rabbinically mandated shivah nekiyim. Neta Sorek raises doubts about R. Katz’s arguments but is unwilling to deal with the case practically. Hinukh Beit Yitzchak challenges R. Katz’s claim that there is no potential di’oraita violation, as well as his reliance on the medical opinion. Neither Hinukh Beit Yitzchak nor Neta Sorek relates to the specifics of the case, and neither relates specifically to the humra as distinct from the takkanah.

In the mid-20^th century, advances in the scientific understanding of human reproduction led to a new recognition of the effects of hilkhot niddah on reproduction. It turned out that hilkhot niddah, as practiced, generally bring husbands and wives together at the ideal time for reproduction. It also became clear that hilkhot niddah, as practiced, prevent a small percentage of women from conceiving because their seven clean days extend past their time of fertility.

This new understanding quickly made its way into halakhic discourse. In a 1950 responsum,^[6] R. Moshe Feinstein reports that he had been asked more than 20 times in the preceding several years whether the seven clean days could be waived when they interfered with fertility. He notes that R. Yosef Eliyahu Henkin had also received such questions.

Alternative Reproductive Technology (ART) was essentially nonexistent at that time. The only way these women could conceive, absent halakhic dispensations, was artificial insemination. Rabbinic literature had long discussed cases of accidental impregnation without sexual intercourse, but deliberate artificial insemination in humans was almost unknown until after the 1930s. When the issue of halakhic infertility arose, the halakhah was not clear:

(a) Whether a child conceived through artificial insemination was halakhically related to the biological father;
(b) Whether a child conceived through artificial insemination satisfied the father’s obligation in pru u’rvu;
(c) Whether a child conceived through artificially inseminating a woman during the time she is niddah is considered a “ben/bat niddah” who incurs some form of stigma;
(d) Whether a male is permitted to deliberately self-stimulate and ejaculate outside his wife’s body for the purpose of collecting the sperm for use in artificial insemination.

In the decades since, the halakhic consensus in most communities has tended to permit (d) and deny all stigma in (c). No stable consensus has emerged regarding (a) and (b).^[7]

In the late 20^th century, methods were developed for chemically manipulating the menstrual cycle. Such methods may allow women with halakhic infertility to become pregnant through intercourse without any relaxation of standard niddah practices such as the humra. These methods pose none of the halakhic issues associated with artificial insemination: they do not involve ejaculation outside the woman’s body and they cast no shadow on paternity. Many doctors and rabbis began recommending such treatments in cases where halakhic infertility was suspected.

Halakhic Approaches

There are four approaches to halakhic infertility:

(1) Treating it like infertility that has a purely physical cause. Theoretically, halakhah requires a husband who has not fulfilled pru u’rvu to divorce his wife. In practice, we allow the couple to remain together and remain childless, if they prefer that to divorcing.
(2) Using artificial insemination (or other ART means) to impregnate the woman with her husband’s sperm.
(3) Using hormones to alter the woman’s cycle so that she ovulates later.
(4) Finding mechanisms within halakhah, such as relaxing the humra, that enable the couple to have children naturally.^[8]

Parameters of the Discussion

Competent poskim dealing with a case of halakhic infertility will suggest methods of  shortening the period of separation required by hilkhot niddah without touching upon the humra. There are also significant disputes as to the scope of the humra.  This article addresses situations in which the humra would certainly be violated, and in which all other purely halakhic methods to resolve the infertility have been exhausted.

Analysis: Rishonim

A clear statement of the case against relaxing the humra in response to halakhic infertility is found in the work of my dear friend and distinguished colleague, R. Chaim Jachter. He writes:

Waiving the chumra deRabbi Zeira would enable women who ovulate early to conceive. Without chumra deRabbi Zeira, they could immerse seven days after beginning to see blood, in accordance with the laws of a Biblical niddah. However, virtually all halachic authorities have forbidden this solution. Rav Yosef Dov Soloveitchik (as reported by Rav Aharon Lichtenstein and Rav Yosef Adler), Rav Ovadia Yosef (Taharat Habayit 1:1:6) and Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:70:1:3), all cite the Ramban’s aforementioned comments as proof that we may never waive the requirement for the seven clean days, even when it interferes with conception.^[9]

R. Jachter adds the following in a footnote:

The Meiri adopts a similar approach in his commentary to Berachot (31a, s.v. nimtza). The Shach  (Yoreh Deah 183:4 also writes, “Chazal always required the counting of the seven clean days.”^[10]

To my knowledge, this is a comprehensive collection of the pre-20^th century sources cited by subsequent authorities as the basis for stringency.

As the earliest such source, Ramban seems a good starting point for our analysis. Here is R. Jachter’s translation of the relevant passage, in accordance with its use by R. Auerbach:

This stringency that Jewish women have adopted was approved by Chazal,
and they accorded it the status of halachah p’sukah in all locales.
Therefore, it is never permitted to be lenient in this matter.(my emphasis)^[11]

I contend that this translation is imprecise and misleading. Ramban does not oppose leniency in cases of halakhic infertility. The last sentence should read: “It is never permitted to be frivolously lenient in this matter.”
Here is Ramban in the original Hebrew:^[12]

חומרא זו שנהגו בנות ישראל הוכשרה בעיני החכמים ועשו אותה כהלכה פסוקה בכל מקום. לפיכך אסור לאדם להקל בה ראשו  לעולם

The bolded  term “kalut rosh” always means “lightheadedness” or “frivolity”, not mere leniency. Leniency in response to infertility does not involve treating the humra frivolously or lightheadedly.^[13]

Second, even if we understand Ramban to be forbidding ordinary leniency, he means only that the humra may not be treated more leniently than other rabbinic laws, not that it may not be relaxed under any circumstances whatsoever. Rabbinic laws are often overruled or waived when they conflict with other halakhic rule or values. Such circumstances are not “leniencies” at all, rather, ordinary determinations of law. For example, Ramban is not claiming that a person should permit themselves to die rather than violate the humra.

Third, anyone bringing evidence from Ramban’s language must concede that ordinary rabbinic laws would be relaxed in response to halakhic infertility. Ramban cannot be forbidding leniency in specific response to halakhic infertility, as the phenomenon had not yet been discovered. Even if Ramban intended to designate a special status for this rabbinic law, there is no evidence that it would extend to the banning leniency in the extreme case of halakhic infertility, which involves enormous human suffering and prevents the fulfillment of the biblical obligation of procreation.

A close reading of Ramban’s sources in the Talmud, Talmudic commentators and Rambam demonstrates each of my contentions. The humra is mentioned in the Talmud on Berakhot 31a, Niddah 66a and Megillah 28b. On Niddah 66a, Rava teaches that a woman who labors for two days and miscarries on the third must wait seven clean days. Rav Pappa challenges the need for Rava’s ruling, stating that it is simply an application of the humra. Rava responds that his ruling is halakhah, whereas the humra is only a minhag. He adds that because the humra is only a minhag, it applies only where it is already practiced; one cannot make logical arguments to extend it further, even if the extension fits perfectly with its rationale.

Most rishonim understand Rava’s response to mean that the humra had not been adopted in all locations. Since in some locations women did not have a minhag of waiting seven clean days after laboring for two days and miscarrying on the third, new legislation was necessary for those locations. Other rishonim understand Rava’s response to mean that this type of miscarriage would logically be subject to the humra, but women had not extended their minhag to that case, therefore, legislation was necessary to mandate seven clean days in the case of a woman who labors for two days and miscarries on the third.

On Berakhot 31a and Megillah 28b, the Talmud cites the following rule: “One may not rise to pray immediately after adjudicating or after a halakhic discussion, only after learning a halakhah pesukah.”  The humra is then cited as an example of a halakhah pesukah.

Berakhot 31a cites two other examples of halakhah pesukah: 1. One may evade agricultural taxes by bringing grains into the house before winnowing; 2. One is biblically forbidden to derive benefit from blood drawn from a sacrificial animal. There is no obvious commonality to these rules. Rashi defines a halakhah pesukah as a halakhah that does not require analysis and learning and, therefore, will not be a distraction if prayer immediately follows.^[14] Others explain that a halakhah pesukah is not subject to dispute. Neither explanation provides any support for a contention that the standard for relaxing a halakhah pesukah is different than that for relaxing any other Rabbinic law.

Berakhot 31a continues by citing a ruling that one should not rise to pray when engaged in idle conversation, play or frivolity (sihah, sehok, kalut rosh). The discussion on Megillah 28b is preceded by a rule that forbids kalut rosh in a synagogue. In each of these contexts it is obvious that kalut rosh means lightheadedness or frivolity, not leniency. Ramban’s use of the term is likely influenced by those contexts.

Nonetheless, one might try to argue that Ramban’s use of the term li’olam (ever) creates an absolute ban on leniency. However, Ramban almost certainly adopts li’olam on the basis of Rambam’s codification of our sugyot:^[15]

In Rambam’s context, the clear meaning is that unlike an ordinary minhag, this particular minhag may not be uprooted either through public non-adherence or by Rabbinic direction. Rambam’s statement has no relationship to the question of under what circumstances it may be overridden by a different halakhah; and neither does Ramban’s.^[16]

We now turn to Meiri:^[17]

Meiri defines a halakhah pesukah as a rule that is accepted as halakhah without debate. He says nothing about giving a halakhah pesukah special standing when it conflicts with other laws or halakhic values.^[18]

Turning to Shakh:^[19]

The key word here is li’olam (always). We have explained the meaning of li’olam in Rambam and Ramban; Shakh most likely follows them. Alternatively, one might argue that Shakh means that Hazal required seven clean days for all types of bleeding.

In sum, these sources provide no indication that the humra should be treated as stronger than an ordinary di’rabanan when it conflicts with other halakhot or halakhic values.^[20] Moreover, none of these texts relates directly to the issue of whether the humra may be relaxed in cases of halakhic infertility, which was not recognized before the late 19th-early 20th century. None of these authorities was aware of any cases in which the humra led to permanent infertility and the possibility of compelled divorce. Unless we have evidence that they contemplated cases of equivalent seriousness, there’s no reason to assume that their statements against leniency were intended to extend to such cases.^[21]

20^th Century

R. Jachter cites three Torah giants of the 20th century as holding the “absolutist” position that the humra may not be relaxed under any circumstances: R. Ovadiah Yosef, R. Shlomo Zalman Auerbach and R. Yosef Dov Soloveitchik. R. Moshe Feinstein’s name is conspicuously absent from R. Jachter’s list. I will begin by examining R. Moshe’s position, and then address the other three.

R. Moshe Feinstein

R. Moshe addressed the issue of halakhic infertility in a 1950 responsum:^[22]

This responsum is uncharacteristically ambivalent and ambiguous. R. Moshe begins by noting that the issue was first raised two years previously, and in that time has generated an extraordinary number of queries. He states that he has rationales for being permissive (it is not clear whether this refers only to the humra or to the takkanah as well), but that he is hesitant because the humra (and takkanah) are generally treated with great stringency. He is at the same time fully aware that the humra and takkanah have never been discussed previously in the context of fertility issues. In the end, R. Moshe does not provide his grounds for leniency, and indicates that he would not act on them. But his conclusion is opaque: his correspondent should “push the matter back to the questioner.”

R. Moshe wrote similarly in a 1961 responsum permitting the use of artificial insemination in cases of halakhic infertility:^[23]

Here again, R. Moshe’s mentions that he has rationales for leniency and states that he is unprepared to discuss them in writing, let alone use them to rule leniently. Moreover, it seems that R. Moshe raises the issue of relaxing the humra even though his correspondent never considered it.

R. Moshe’s tantalizing hints were long accompanied by rumors that he was willing to be lenient in specific cases. I was able to confirm that this was so. Mr. Carmi Schwartz ^[24] told me in a phone conversation that his havruta asked this she’eilah directly to R. Moshe in 1969. After verifying the diagnosis, R. Moshe permitted the couple to observe hilkhot niddah in accordance with di’oraita law in order to become pregnant.

R. Ovadiah Yosef

R. Ovadiah Yosef’s position appears in Taharat Ha’bayit (1:6:6). Taharat HaBayit is written as a code with extensive footnotes. The code is very carefully nuanced:

R. Ovadiah rules that a woman who is diagnosed with halakhic infertility is forbidden to listen to her doctors’ advice to act leniently regarding the humra. Rather, the couple must ask a hakham. R. Yosef does not indicate what the hakham might tell them. It seems possible that the hakham would require them to try other options first but would relax the humra if those other methods failed.

In the footnotes, R. Ovadiah surveys the literature with his always remarkable breadth and clarity. He begins by citing Ramban, Ritva and Meiri and contrasts them with the position taken by R. Dovid of Navaredok in Galya Masekhet:^[25]

R. Ovadiah notes that Galya Masekhet does not cite Ramban and Meiri, both of whom state that the humra was made into a di’rabanan by the Sages. R. Ovadiah appears to rule on the basis of those rishonim hat one may not relax the leniency even for the mitzvah of pru u’rvu, although he indicates in a parenthesis that the position of Galya Masekhet should not be disregarded. He cites R. Uziel, R. Moshe Feinstein, and R. Shlomo Zalman as agreeing with the stringent position.

The remainder of the footnote includes:

a. A discussion, based on Hinukh Beit Yitzhak, whether a man may divorce his infertile wife against her will nowadays, despite the herem of Rabbeinu Gershom. R. Ovadiah concludes this part of the discussion by referring to his own teshuvah recommending artificial insemination in these cases as a means of fulfilling pru u’rvu.
b. A discussion of whether the humra protects against the possibility of violating a di’oraita. He concludes that according to the position of Rashi and Ramban, whom the halakhah follows, it does not have any di’oraita
c. A further discussion based on R. Katz of Anad, Hinukh Beit Yitzhak and Neta Sorek whether the humra may be relaxed for the sake of pru u’rvu. He concludes that he sees no basis for doing so. He cites a roster of other figures as agreeing with him, including R. Auerbach and R. Feinstein.
d. A discussion whether one may relax the humra in specific cases by introducing another safek. He concludes that one may.

Section (d) makes it clear that R. Ovadiah consider the humra at most an ordinary di’rabannan. He is willing to relax it in specific cases, and on the basis of standard rules such as safek di’rabanan lekula (in which we rule leniently in cases of rabbinic law when there is a doubt).

Why then is R. Ovadiah’s default position to rule strictly in a standard case of halakhic infertility? I suggest that he sees the initial acceptance of the humra as a clear choice to impose a stringency even though it inhibits pru u’rvu, and he does not wish to rule against the original intent of the Sages. Instead, for the purpose of the husband fulfilling pru u’rvu, R. Ovadiah is willing to countenance divorce against the wife’s will. Finally, he sees artificial insemination as a perfectly acceptable solution. In other words, R. Ovadiah does not see halakhic infertility as a situation of near-iggun, ^[26] and he does not address a case in which the couple wishes to stay together even if that means they will remain childless.

A hint as to what R. Ovadiah would say if these parameters were changed may be found in his apparent endorsement of R. Yitzchak Liebes’ Shut Beit Avi 3:128. R. Liebes discusses the case of a woman who is becoming a ba’alat teshuvah while married to a nonobservant man. The husband is willing to observe niddah di’oraita, but is not ready for full observance of niddah di’rabbanan. R. Liebes’ analysis explores whether the woman may remain married and accede to this partial observance in order not to discourage her husband from becoming more observant. R. Liebes concludes that she may, as the alternative is tantamount to motzi’in ishah mi’tahat ba’alah, in other words, forcing an otherwise successful marriage to end in divorce. Moreover, R. Liebes takes as a given, based on the Talmud, that bi’issur di’rabbanan ein motzi’in ishah mi’tahat ba’alah – one never imposes a rabbinic prohibition at the cost of ending an otherwise successful marriage. His uncertainty, in this case, is only because the di’rabbanan is violated by choice.

It seems clear that R. Liebes would take the same lenient position in any case that is defined as motzi’in ishah mi’tahat ba’alah. R. Ovadiah’s apparent endorsement of R. Leibes’ responsum suggests that he would agree. In other words, he rules stringently only because he believes that halakhic infertility is not considered a case of motzii’n ishah mi’tahat ba’alah. 

R. Yosef Dov Soloveitchik

R. Jachter’s reporting of R. Soloveitchik’s position based on conversations he had with R. Aharon Lichtenstein zt”l and R. Yosef Adler yb”l. I have confirmed with R. Adler that R. Soloveitchik did not share a rationale for his position, and that he was not ruling in an actual case.

R. Saul Berman told me that he brought an actual case to R. Soloveitchik in 1975. R. Soloveitchik’s custom when students brought cases to him was to hear their presentation, ask them which way they wanted to rule and then to give one of three responses: “No”, “I agree”, or “You can pasken that way.” R. Berman told R. Soloveitchik that he wanted to rule leniently, and received the third response: “You can pasken that way”.

R. Shlomo Zalman Auerbach

R. Shlomo Zalman was against any relaxation of the humra. He proposed a technological solution to halakhic infertility and other circumstances in which observance of hilkhot niddah could lead to divorce. That solution^[27] did not gain the support of his colleagues, and I have received conflicting opinions from doctors as to whether it is practically feasible.^[28] Regardless, there is no evidence that he softened his position about the humra after his solution failed to gain traction.^[29]

R. Shlomo Zalman writes:^[30]

R. Shlomo Zalman’s absolutist position rests on two claims:

1) No one had ever ruled that one could relax the humra for any reason.
2) We have another example of a rabbinic niddah prohibition that was enforced even when the consequence was compelling a couple to separate. Maharsham enforces the prohibition on intercourse when there is a presumption, based on past experience, that a woman will see blood  following intercourse.^[31]]

In his discussion of Maharsham’s responsum, R. Shlomo Zalman concedes that Maharsham’s case is different than halakhic infertility. In Maharsham’s case, there is a real chance of violating a di’oraita, and the dispensation, by definition, would have to apply to the couple’s every act of intercourse throughout their marriage. In the case of halakhic infertility, by contrast, R. Shlomo Zalman concedes (although not everyone agrees) that there is no genuine risk of a biblical violation, and the dispensation applies only until the wife becomes pregnant.

Maharsham himself mentions these distinctions.^[32] Furthermore, he cites Tosafot Ketubot 51b^[33] as proof that di’rabanans are generally waived in order to avoid compelling a divorce, and acknowledges that the general rule in halakhah is that a couple whose marriage involves a di’rabanan violation need not divorce.

Nonetheless, R. Shlomo Zalman cites Maharsham as evidence for an intuitive claim that some rabbinic laws are not waived regardless of consequences. He offers two further examples:^[34]

It is generally difficult to evaluate the truth of an intuition. But in this case, we can suggest that a case R. Shlomo Zalman brings to support his intuition actually disproves it. Shut Shevet Ha’levi 2:95 rules, with good reason, that we waive miut ha’makpid when there is no alternative.^[35]

Summary of 20th century Poskim

There is no public record of any 20^th century posek relaxing the humra. However, there is also no record of any such figure, aside from R. Shlomo Zalman, maintaining the humra where the halakhic alternative is ending a marriage that the couple wishes to maintain. There is a private record of R. Moshe Feinstein ruling leniently and that is certainly a plausible reading of his teshuvot. There is also no compelling evidence that anyone other than R. Shlomo Zalman ever held that the humra di’R. Zeira is an absolute rule that may not be waived under any circumstances.^[36]

Rather, earlier precedents as well as 20^th century psak indicate that the humra may be relaxed when necessary to achieve a sufficiently important end. The question is whether relaxing the humra in a case of halakhic infertility is considered “necessary” for achieving a “sufficiently important end.”

Grounds for Relaxing the Humra

Galya Masekhet contended that the humra may be pushed aside more easily than an ordinary di’rabanan. While his position is a very plausible outcome based on the Talmud, many rishonim clearly disagree. R. Katz of Anad argued that the humra should be relaxed whenever it interfered with fulfillment of pru u’rvu. His argument was rejected, and I think correctly so, both for technical reasons and because the humra by definition always interferes with pru u’rvu to some extent. However, there are no precedents for enforcing the humra at the cost of separating an otherwise happily married couple, i.e., at the cost of compelling a divorce (motzi’in ishah mi’tahat ba’alah) and the general rule is that di’rabanan prohibitions are relaxed to avoid that cost. If halakhic infertility is considered an equivalent case, there are sufficient grounds for leniency.

R. Moshe Feinstein offered strong grounds for considering halakhic infertility an equivalent case.^[37] The halakhah is that a couple who has been married for ten years without children must divorce so that the husband can fulfill his obligation of pru u’rvu. Moreover, halakhic infertility will prevent a woman from conceiving with any partner. This means that she cannot have children even if she remarries and it has serious implications for her ability to remarry. Therefore, the halakhah regards cases of halakhic infertility as ones in which we would rule that a divorce could be compelled (motzi ishah mi’baalah) and, consequently, similar to iggun.^[38] It follows that the humra may be relaxed in such cases.

One might still argue that relaxing the humra is permitted only when the practical consequences of halakhic infertility cannot be mitigated in any other way. An argument for relaxing the humra must demonstrate that these alternative fertility methods are halakhically irrelevant.

Grounds for relaxing the humra despite the availability of hormonal therapy

Disregarding the option of hormonal therapy is justified because halakhah does not mandate the use of medical means to avoid halakhic difficulties. For example, there is near-universal agreement that one is not required to use an IV drip in order to fast on Yom Kippur. Similarly, R. Moshe Feinstein, in ruling that a woman need not have her labor induced in order to avoid possible hillul Shabbat, states emphatically:^[39]

In other words, medical treatment is halakhically mandated only to treat illness or injury, and halakhic infertility is neither illness nor injury. R. Moshe rules that one may avoid a medical procedure even when doing so may lead one to (legitimately) violate a di’oraita; avoiding hormonal treatments in our case will lead only to (legitimate) violations of a di’rabanan.

R. Moshe Sternbuch^[40] makes a claim in his discussion of IVs on Yom Kippur that my teacher R. J. David Bleich^[41] suggests is parallel to R. Moshe’s argument about inducing labor. R. Sternbuch argues that our preference for minimizing violations applies only to the way of accomplishing something, not to its nature. When one is permitted to eat on Yom Kippur, one may eat normal food by normal means, even if the same result could be achieved via an intravenous drip.

It seems possible that R. Feinstein’s formulation of “stratagems against nature” (tahbulot neged ha’teva) may be combined with R. Sternbuch’s argument to allow for the broader claim that halakhic calculations take into account only possibilities that are part of “normal life.”^[42]  That claim provides an additional basis for leaving the possibility of artificial insemination out of the halakhic calculus regarding the humra.

Finally, I think it is clear that poskim would not require hormonal therapy if they considered it risky. Some women claim that the use of hormones to alter a woman’s cycle carry long-term health risks and may have painful side effects as well.^[43] However, this is not the current medical consensus.^[44]

Should risk assessment be the responsibility of the person asking the halakhic question or of the person answering it? My general position is that poskim may not impose their understanding of the facts unless a shoel or shoelet specifically and explicitly gives them that authority. Therefore, if the woman asking the she’eilah reasonably believes that a particular treatment option carries particular risks, the job of her posek is to either answer the question within the framework of her belief or else refuse to answer.^[45]

R. Moshe Feinstein’s discussion of intravenous feeding on Yom Kippur explains why concerns regarding hormone therapy can be considered reasonable even against medical consensus:^[46]

It is impossible to rigorously assess the potential side effects of new treatments without longitudinal studies. Requiring such studies would delay the introduction of new treatments by at least a generation. This is not a moral option in a world where life-saving advances in medical technology are made regularly. Contemporary medical science therefore has no choice but to engage in risk-assessment by projection. Since medical risk is a relevant halakhic factor, halakhists must acknowledge these inherent uncertainties and treat concerns about side effects in such cases as reasonable.^[47]

Grounds for relaxing the humra despite the availability of artificial insemination

Arguments that would allow disregarding the option of artificial insemination include: 1) A claim that the use of artificial insemination does not a man to fulfill his obligation in pru u’rvu; 2) A claim that a child conceived during the seven clean days is a ben/bat niddah; 3) A claim that ejaculation outside marital sex, even when the goal is reproduction, is forbidden as hotza’at zera li’vatalah. It might be sufficient if either the couple or their posek accepts any one of these positions. The argument that halakhic calculations take into account only possibilities that are part of “normal life” provides an additional basis for leaving the possibility of artificial insemination out of the halakhic calculus regarding the humra.

We may also argue hashkafically ^[48] that something vital is lost when procreation is not linked to sex. That link is under enormous pressure from recent technological and social shifts. Accordingly, we should try to rule in ways that strengthen that link to the extent possible. Mandating the use of artificial insemination weakens that link. This argument has significant appeal to me.

Conclusion

In 2006, the conversation about halakhic infertility changed radically. Dr. Daniel Rozenak proposed doing away with the humra (and possibly the takkanah) entirely on the ground of the number of infertility cases it caused.^[49] His article drew responses from halakhists across the Orthodox spectrum all of whom disagreed with his suggestion. As R. Dror Berman observed, in our day, the publication of a leniency can lead to a backlash that makes issuing leniencies politically impractical. R. Bermah suggests that such leniencies regarding the humra are halakhah vi’ein morin ken, meaning, that they should never be stated publicly. This is a plausible extensions of R. Moshe’s reticence.

The problem is that such a discourse of fear may end up eliminating the leniencies it seeks to protect. If leniencies may not even be discussed, no one will know to ask the questions, and eventually there will be no practical tradition that differs from the declarative. In our case, this may lead to several negative outcomes. Couples may stop observing these halakhot. They may lose respect for halakhah generally. They may remain childless. Finally, women may be encouraged to manipulate their bodies chemically. It seems clear to me that these outcomes have become actual in our day.^[50]

Therefore, it is necessary and valuable to establish, as a matter of principle, that halakhah does not impose a rabbinic stringency at the cost of a marriage, and that halakhah does not mandate undergoing medical treatment to resolve halakhic issues. I pray that my work will serve li’hagdil Torah uli’haadirah.

Footnotes

^[1] The standard account of the difference between takkanat Rebbi (henceforth: takkanah) and humra di’R. Zeira is as follows: The takkanah requires women who bleed for fewer than three days to keep six clean days before resuming sexual intimacy, and women who bleed for three or more days to keep seven clean days. The humra requires women to wait seven clean days after any uterine bleeding. Consequently, arguments for relaxing the humra apply only to the small number of women who bleed for one or two days and can conceive on the seventh day after the onset of bleeding

^[2] The term humra can refer to both rabbinic laws and to customs, and each of those categories comes in many variations. An argument for relaxing one stringency has no necessary implications regarding any other.

^[3] See in this regard the groundbreaking reports by Yoatzot Halakhah Drs. Tovah Ganzel and Deena Zimmerman, Akirut Hilkhatit: Ivhun Vi’tipul Hilkhati Refui, Assia 84-85 (2009) pp. 63-82. Please note also that some contemporary halakhic figures contend that there are few, if any, cases where relaxing this humra is sufficient to resolve halakhic infertility. See also fn. 52.

^[4] I demonstrate below that while R. Moshe writes in these responsa that the humra may not be relaxed in practice, he permitted its relaxation when responding to private questions.

^[5] These sources were collected by R. Ovadiah Yosef zt”l in Taharat Ha’bayit 1:6:6.

^[6] Igrot Moshe, YD 1:93.

^[7] Many other modes of alternative reproduction (ART) have since been developed, such as IVF. Most of them raise the same halakhic issues as artificial insemination and, in addition, are more invasive and riskier. Consequently, they have little impact on the question framed in this article.

^[8] The availability of technological solutions may reduce the moral pressure on poskim to find halakhic solutions. For example: If one rules that the mitzvah of pru u’rvu is fulfilled via artificial insemination, one may use method (2) to resolve both the practical and halakhic aspects of halakhic infertility. Poskim may therefore agree that the humra does not apply when it would result in a compelled divorce or childlessness, but nonetheless refuse to be lenient in cases of halakhic infertility because they are confident that their positions will not yield these results.

^[9] R. Chaim Jachter, Gray Matter: Discourses in the Complex Halachic Issues of Today, vol. 2 (Yashar Books: New York, 2006) p. 98.

^[10] Ibid, p. 96, fn. 4.

^[11] Ibid, p. 96.

^[12] Hilkhot Niddah Li’ramban 1:19.

^[13] For a clear indication of this usage of kalut rosh in a halakhic context, see Meiri, Taanit 30b:

אף על פי שהרבה דברים התרנו בזה מכח ההלכה אין לו לאדם להקל ראשו בכך וכל המחמיר על עצמו ומרבה באבלות הרי זה משובח.

For an explicit contrast of li’hakel and li’hakel rosho, see Mishmeret Ha’bayit al Torat Ha’bayit 7:7:

אמר הכותב: דעתא שבישתא לא צילתא קא חזינא הכא אם ראה דברי גדולי ישראל אשר בית ישראל נכון עליהם איך מלאו לבו להקל בהם שאסרו הם ועוד שהקל ראשו לומר שהדברים שכתב דברים ברורים להתיר מה שהם בעיני הגדולים דברים אסורים.

Note that medieval halakhic literature is filled with reports of various attempts at treating the humra differently and more leniently than biblically mandated niddah rules permitting touching, early immersion, etc. Most of these attempts are supported by some rishonim. There is no evidence in these discussions of a position that the humra should be treated more stringently than other rabbinic laws. See Kovetz Shitot Kamai, Niddah 66a.

^[14] Rashi, Berakhot 31a s.v. halakhah pesukah.

^[15] Hilkhot Issurei Biah 11:4,9. For the full context see Hilkhot Issurei Biah 11:4-10.

^[16] Ritva, Niddah 66a follows Ramban but has li’hakel bah without rosho:

שאילו היתה ראיה מרובה, היה אפשר לומר שראוי הוא לחוש בדרך רחוק שמא שלש ראיות היו בשלשה ימים ונצטרפו בפרוזדור בימי זיבה. אבל עכשיו שהיא כחרדל, אף חששא זו אינה כאן. אלא שבנות ישראל קדושות רצו להחמיר ולעשות עצמן כסותרת כדי להשוות כל ראיותיהן ולישב על כולן שבעה נקיים. וכיון דעבדה ר’ זירא שמעתא, ובפרק אין עומדין (ברכות ל”א א’) מנו לה להלכה פסוקה, למדנו כי חכמים קבלו מהם כן ועשו אותה תקנה ופשט איסוריה בכל העולם ואין כח לבטלה ולא להקל בה כלל.

In context, it is clear that li’hakel is parallel to li’vatel – to make a structural change  in the takkanah that creates a leniency or to adopt a lenient position against the standard rules of psak. It does not reject treating it as an ordinary di’rabanan which is subject to being overridden or suspended when it conflicts with other halakhot or values. For parallel usages see Ritva to Rosh HaShannah 19b and Megillah 5b:

ראש השנה (יט:) ומה שאנו נוהגין להתענות בו אינו אלא לדברי שמואל דסבר לפניהן מותרין, (וכיון) [ואף] דשמואל ור”י הלכה כר”י, הכא הלכה כשמואל, דכיון דקיי”ל במגלת תענית כדברי האומר בטלה – הרי דעת החכמים להקל בה, ומדבריהם נלמוד להקל ג”כ בחנוכה ופורים ולפסוק כדברי שמואל להקל דאמר לפניהם ולאחריהם מותרין,  וכ”כ הרב אלברצילוני והוא הנכון בעיני.

מגילה (ה:) והנכון – דרבי היה רוצה לעקור תשעה באב כגון י”ז בתמוז, דשורת הדין אין הפרש ביניהם בגזירת נביאים, [ושלא] כדברי הראשונים ז”ל [שרצה לעוקרו] שלא להתענות בו כלל, [אלא רצה לעוקרו לבטל ממנו רחיצה וסיכה וכולהו דיני] דחומרי דתענית, וחכמים לא הודו לו בזה, לפי שהוכפלו בו צרות ואין ראוי לנו להקל בו אף על פי שאפשר כן מגזירת נביאים ברצו, אלא שישראל חסידים לא רצו להקל בו מטעם זה, ולפיכך היו שלוחים יוצאים בו, משא”כ בשאר תעניות, וזה טעם קצת רבותי והוא טעם נכון וברור.

^[17] Beit Ha’behirah, Berakhot 31a.

^[18] For an explicit example of Meiri’s lenient position with regard to a law he described as halakhah pesukah, see his commentary to Shabbat 151b:

זהו ביאור המשנה וכלה הלכה פסוקה היא, ומ”מ חוכך אני להקל עכשיו שנוהגים לטלטלו על ידי ככר לאמץ את עיניו.

^[19] Shakh, YD 183:4.

^[20] For a similar conclusion regarding the rishonim, see R. Shaul David Botschko, Ha’kalah Bi’akarut Hilkhatit Li’or Shitat Ha’rav Kook, Tzohar 42 (5778), p. 167-168. My thanks to yedidi, Dov Weinstein, for the reference.

^[21] See for example R. A. Y. Kook, Shut Da’at Kohen 84, who is in principle prepared to override the humra in a case of pikuah nefesh.

^[22] Igrot Moshe, YD 1:93.

^[23] Igrot Moshe, EH 2:18.

^[24] Mr. Schwartz is a longtime osek bitzarchei tzibbur be’emunah and father of R. Ezra Schwartz – ashrei yoladto!  My thanks to the wonderful R. Michoel Zylberman for putting me on the trail of this invaluable testimony.

^[25] Galya Mesekhet, YD 4.

^[26] Unlike R. Moshe, who sees the possibility that the wife will be divorced against her will as tantamount to making her an agunah, a woman chained to a dead marriage. See below for R. Moshe’s position.

^[27] The solution, known as shfoferet, involved the insertion of a tube that conducts uterine blood through the cervix to outside the woman’s body without bodily contact.

^[28] However, see R. Meir Nehorai and Dr. Chana Adler-Leizerovich, Shimush Bi’pitaron Hilkhati Kayam avur Ee Peryon al Reka Hilkhati: Hatza’ah Li’takanat Nashim Bi’inyanei Niddah, Tehumin 34. My thanks to R. Jachter for referring me to their article.

^[29] See below for evidence that such questions may have been directed away from him.

^[30] Shut Minhat Shlomo 2:72.

^[31] Teshuvot Maharsham 1:7.

^[32] Teshuvot Maharsham 1:7:

בד”ה והנה בגוף וכו’ הבאתי מתשו’ רע”א סי’ ס’ דבתרי דרבנן כדאי היחיד לסמוך עליו. ושוב ראיתי בתשו’ שיבת ציון סי’ ל”ו וסי’ ל”ז שכתב בפשיטות דבתרי דרבנן אין להוציא אשה מבעלה. ועיין תוספות כתובות נ”א סוע”ב בד”ה אונס וכו’ דאי מדרבנן לא היו מוציאין אותה מבעלה על כך ע”ש. ומוכח דגם בחד דרבנן הוי כן.

^[33] Tosafot Ketubot 51b s.v. ones di’shari rahamana heiki mishkakhat la:

אף על גב דאבוה דשמואל חיישינן קאמר משמע ליה דמדאורייתא קאמר דאי מדרבנן לא הוי מוציאין אותה מבעלה על כך.

^[34] Shut Minhat Shlomo 2:72.

^[35] Shut Shevet Ha’levi 2:95. The case involved a woman who could not allow the insides of her ears to get wet.

ולענ”ד לחלק בסברא שאין ענין רואה מ”ת דומה לנ”ד, דודאי במקום שגזרו חז”ל שיפרוש ממנה מחמת וסתות דרבנן או מחמת רואה דם מ”ת, דהגזירה היא מחמת הרחקה שעלולה לראות באותו זמן ובאמצע תשמיש – והרי רגליים לדבר שכבר רגילה לראות בזמן ההוא ובאופן זה, והיא גזירה מציאותית – ודאי לא נוכל להתיר גזרת חכמים גם בא”א כה”ג דמה הועילו בזה אם תתיר להם דרבנן, והם יכשלו עי”ז בחמור ממנו בדאורייתא, דתראה דם מחמת תשמיש דגזירת חכמים היא להצילו מחמור ממנו.

אבל בגזירה דידן כגון מיעוט המקפיד שהיא גזירה בפנ”ע אטו רוב המקפיד, ואם נשפוט בדעת חכמינו גוזרי הגזירה דבמקום סכנה וא”א לטבול לא גזרו גזירתם ונשארה טבילה זו טבילה גמורה כמו שהיתה קודם הגזירה ואין בה חשש כלל מפגיעה באסור תורה בהא ובכה”ג ודאי דברי הגאון אמרי יושר וחלקת יואב מסתברים שבמקום עיגונא דאיתתא לא גזרו גזירתם והיא טובלת טבילה גמורה כתורה וכדעת חכמים. כן נראה בעניותי נכון בסברא אם כ”ת יסכים עמדי.

^[36] In a responsum for the Schlesinger Institute (www.medethics.org.il), R. Mordekhai Halpern notes that he raised this issue with R. Yisroel Zev Gustman and was surprised to be referred to R. Yosef Shalom Elyashiv rather than to R. Shlomo Zalman, whom he describes as closer personally and geographically to R. Gustman. But when R. Shlomo Zalman’s treatment of the issue was published, he understood why. It seems likely then that R. Gustman and R. Elyashiv also disagreed with R. Auerbach.
Others have argued that R. Gustman in his published shiurim defends the position of Galya Masekhet to some extent; this does not seem to me a compelling halakhic argument. R. Yaakov Love told me that he recalls R. Gustman spending a week focused on the issue. He believes that his teacher would have ruled like Galya Masekhet had he been compelled to pasken on the issue. R. Halpern’s testimony suggests that R. Gustman chose, on the basis of his own research, not to refer such questions to R. Shlomo Zalman.

^[37] Igrot Moshe,YD 2:84.

^[38] R. Moshe maintains that this is the case even though, practically, we have allowed husbands to remain married to infertile wives. His position is based on both the theoretical necessity and the practical likelihood of divorce.

^[39] Igrot Moshe YD2:74.

^[40] Moadim U’zmanim 1:60.

^[41] R. J. David Bleich, Contemporary Halakhic Problems, Vol. 3, (New York: Ktav, 2013) p. 139

^[42] I learned the concept of “normal life” as a guiding halakhic principle from R. Aharon Lichtenstein zt”l in his shiurim on Bava Kamma at the Gruss Center in 1990-91. R. Lichtenstein pointed that it seemed that oxen did so much damage that the Torah should have imposed the same level of liability on their owners as we do for the owners of dogs and snakes, and required them to watch their oxen personally at all times to avoid liability. The reason it didn’t is that owning an ox was part of normal life, and we could not impose onerous restrictions on doing so. I have used this concept elsewhere to explain the halakhot of tzniut and war.

^[43] See e.g. the article by Nehorai and Adler-Leizerovich cited in fn. 28 above.

^[44] I am grateful to Rabbi Jachter for referring me to prominent endocrinologist, Dr. Daniel E. Stein, and to Dr. Stein for generously taking the time to speak with me. Dr. Stein made at least two important points in this regard.  First, a common method of medically delaying ovulation involves administering estrogen at levels below those used for contraception. Second, women who ovulate very early in their cycles (certainly before day ten) often have inadequate development of ovarian follicles and are, therefore, subfertile or infertile for physical as well as halakhic reasons. Halakhic leniencies would not solve their fertility issue as delaying ovulation is necessary for them regardless.

^[45] The question of how poskim should respond to a shoel who holds unreasonable belief requires separate analysis.

^[46] Igrot Moshe, OH 4:101:3.

^[47] In some cases, one might argue that the halakhic tradition includes a factual component. For example, in recent discussions of whether pregnant women should fast on Yom Kippur, some poskim have argued that the long halakhic tradition of requiring such women to fast demonstrates that there is no serious risk of premature labor or birth as such a risk would have been noted in previous sources. However, there can be no authoritative masoret about halakhic infertility, since the mechanisms of fertility were not well-understood, and there was no obvious relationship between observance and infertility. (See however Shut Da’at Kohen 84.)

^[48] For a different hashkafic argument, see Shut Hemdat Genuzah 3:11. My thanks to yedidi, Dov Weinstein, for the reference.

^[49] See reports and later articles at www.tehora.co.il.

^[50] On a positive note, the desire to avoid halakhic solutions may also have led to the discovery or rediscovery of folk remedies.  In a recent newspaper article, Makhon Puah claims, for example, that eating an early breakfast regularly solves a significant percentage of cases. It may be that we will reach or have reached a point where medicalization is unjustifiable practically, and yet all cases in which halakhah is the sole cause of infertility may be resolved without touching the humra or ttakkanah, and without resorting to artificial insemination.