Rachel’s Cry: Single Women and Pru U’rvu

To read this teshuva in hebrew click here:

Should community resources be allocated to help an older single woman become pregnant using artificial insemination?[1]

Rav Shlomo Aviner addresses this question as follows:

Question: A single woman, about forty years old, who realistically doesn’t expect to marry and wishes, with all her soul, to have a child to love and devote herself  to – is she permitted halakhically to use artificial insemination to bear a child?

Response: … This is not a good idea as the child will be bereft without a father.  It is true that, sometimes, there are single-parent families due to divorce or widowhood; there too, the child is anguished. Though the child has a father, deceased or divorced from the mother, the child is still unhappy. The case under discussion has similarities to the shtuki who knows his mother but not his father. When the child calls, “Father!”; his mother tells him to be quiet (shtok; Kiddushin 69a). God arranged for a child to have a father and mother; that is the norm. While a single mother is able to support her children; it is morally problematic  when a mother chooses to create her own happiness at the expense of a child. The child will always find it difficult to respond to questions of his father’s identity, and it might be suspected that he was born out of wedlock.

Moreover, it is possible that there is a prohibition on medical treatment of this type. It is not self-evident that it is permissible to cure; it is only permissible  because the Torah explicitly allows it as it says, “He shall cause him to be healed” – from here we learn that permission was granted to the healer to heal (Shemot 21:19; Bava Kama 85a). God’s will is that children be born to two  parents, who are married, not to a single woman. Therefore, it is possible that using medical interventions in order for a single woman to get pregnant is  forbidden halakhically.

Summary: A single woman should not undergo artificial insemination to give birth to a child who will grow up without a father. She should pray that she marries and, also, do good deeds which are “better than sons and daughters” (Isaiah  56:5).[2]

In my humble opinion, R. Aviner’s ruling is not justifiable. We see that children who lose their father or mother, or even both parents, lead successful lives (the Amora, Abaye, is one example). R. Aharon Lichtenstein zt”l countered claims, like that of R. Aviner, in an oral statement. Initially, R. Lichtenstein considered this option neutral from a formal halakhic perspective. After weighing the matter for many years, he reached the conclusion that a woman’s desire to be a mother overrides any of the concerns raised.[3]

We are faced with a reality that Hazal would not recognize. It never occurred to them that a single woman could become pregnant outside the context of a sexual encounter. As a result, this question did not arise until our time. We have no choice but to infer the halakhah. Three central questions arise in a halakhic discussion of this topic:

1. Does a woman have a right to have a child?
2. Does she fulfill a mitzvah?
3. Should the community devote its resources to this?

The Right to Have a Child

A woman’s strong desire to have a child is expressed in several verses; perhaps the most powerful are the words of Rachel to Jacob: “Give me children, and if not, I will die” (Genesis 30:1). R. Yehoshua ben Levi interprets her words in this manner: “Any person who has no children is considered dead, as it is written, ‘Give me children, and if not, I will die'” (Nedarim 62b). Does this desire have an expression in halakhah?

The gemara (Yevamot 65b; similarly, Ketubot 64a) deals with the case of a woman who was married for several years and did not have a child; it became clear that the husband was infertile. The gemara’s question was whether the woman was allowed to demand a divorce for this reason. In two stories brought in the gemara, the Amoraim reject her demand for a divorce since a woman is not commanded in pru u’rvu (procreation). However, when the woman claimed that she wanted someone to take care of her in her old age, she was answered positively:

A woman came before R. Ami and said to him: Give me my ketubah [compel my husband to divorce me]. He said to her: Go, you are not commanded [in pru u’rvu]. She said to him: It’s because of him; what will be with this woman? He said to her: In such a case, we certainly compel [a divorce]. A woman came before Rav Nahman, He said to her: You are not commanded. She said to him: Does this woman not need a staff for her hand and hoe for her  burial (hutra li’yadah u’marah li’kvurah)? He said: In such a case, we certainly compel.

In line with this gemara, Rambam rules as follows:

A woman comes to demand that her husband divorce her after ten years of marriage because she has not given birth, and she says that he is infertile (lit., does not shoot like an arrow). We listen to her demand. Even though she is not commanded in pru u’rvu, she needs children for her old age. We compel him to divorce her and give her the main ketubah payment only, since he did not allocate  the additional ketubah payment (tosefet) so that she leave him by her choice [against his] and collect [the money].[4]

The poskim deduce from the language of Rambam that a woman is not required to  elaborate on the practical benefits of having children (e.g. hutra li’yadah u’marah li’kvurah). They found support for this in the words of Tosafot ad loc.: “… or she claims that she wishes to have a male child for one who has no sons is considered dead.”[5] According to the words of Ha’gaon R. Moshe Feinstein: “They wrote … the fact that she wants children even without a practical need for them, but just because every woman wants to have a child, this is a claim for which we compel a husband who cannot have a child to give his wife a get and her ketubah.”[6]

We have learned that the right of a woman to have a child is well anchored in the gemara and poskim.

Fulfillment of a Mitzvah?

The mitzvah of pru u’rvu and the mitzvah of la’shevet yitzarah

Do woman have an obligation in the mitzvah of pru u’rvu (procreation)? This question is debated by the Tannaim. We learn in a mishnah (Yevamot 6:6):

…A man is commanded in procreation but not a woman. Yohanan ben Brokah says: Regarding both of them, God says, “And God blessed them and said to them, ‘Be fruitful and multiply'” (Genesis 1:28).

The greatest of the Amoraim of the Land of Israel ruled like R. Yohanan ben Brokhah that a woman is obligated in the mitzvah of  pru u’rvu: “R. Yirmiyahu, R. Abahu and R. Yitzhak bar Maryon in the name of Rabbi Haninah – the halakhah follows R. Yohanan ben Brokah …  R. Lazer in the name of R. Haninah – the halakhah follows R. Yohanan ben Brokah.”[7] However, in the discussion in the Bavli ad hoc, part of which we presented above, it emerges that although a woman is not commanded in the mitzvah of pru u’rvu, it is her right to demand her get and ketubah if her husband is unable to produce a child.

This gemara, is interpreted in various ways by the Rishonim, in the context of their discussion of another mishnah (Gittin 4:5; also Eduyot 1:13):

One who is half slave and half free, works for his master one day and for himself one day – this is the view of Beit Hillel. Beit Shammai said to them: “You have fixed [the problem for] his master but you have not fixed it for the individual himself. He may not marry a slave nor may he marry a free woman. Remain idle [i.e., not marry]? But the world was created only for procreation, as it states, ‘He did not create it a waste; He formed it to be inhabited’ (Isaiah  45:18)! But because of  the social good (tikkun olam), we compel the master to free him,  and he [the freed slave] writes a promissory note for half the money [price of  release].” Beit Hillel retracted their initial position and ruled like Beit Shammai.

The Tosafists raise a question about this mishnah – why didn’t the mishnah give the command of pru u’rvu as the justification for the release of the slave? This is what emerges from their discussion (Gittin 41b, s.v. lo tohu bra’ah la’shevet yitzarah):

The reason that it [the mishnah] did not quote the verse of pru u’rvu is because if he was able to fulfill even a small aspect of shevet, we would not compel him [the master] for the mitzvah of pru u’rvu, and here we do compel him, as we explained. Alternatively, this verse [Isaiah 45:18] is quoted because it demonstrates that  this is a mitzvah of great importance (mitzvah rabbah). Similarly, the final chapter of Megillah (27a) brings this [verse] as well in reference to selling a Torah scroll [to raise funds] to study Torah or to marry. As it says: “The study of Torah is different as it is stated, ‘Study of Torah is  great’.. [marrying] a woman as well for ‘He did not create it a waste…'”

In fact, the Tosafists indicate in several places that the commandment of la’shevet yitzarah is a mitzvah rabbah equivalent to a communal mitzvah (mitzvat rabim);[8] apparently, because the accepted interpretation of this verse (Isaiah 45:18) fits the mishnah’s language of tikkun olam:

For so says the Lord, the Creator of heavens, who is God, who formed the land,  and made it, He established it, He did not create it a waste, He formed it to be inhabited, I am the Lord and there is none else.

Rashi (Hagigah 2b) explains:

Lo tohu bra’ah – The Holy One, blessed be He, did not create the land to be without inhabitation, but rather, He formed it to be settled.

After these two answers, Tosafot continues to a third answer:

Yitzhak ben R. Mordekhai explains that [the mishnah] cited la’shevet yitzarah because it applies to his “slave” side as well, while pru u’rvu only applies to his “free” side. This may be deduced from the Yerushalmi to our chapter and to first chapter of  Moed Katan which states: “We taught there, we do not marry on the holiday. Shimon bar Abba, in the name of R. Yohanan says: Because of the lost opportunity for pru u’rvu.” Meaning, he should not wait to marry until the holiday though that is a time of  joy and one has free time. “It was asked of R. Asi: May a slave marry on the holiday?  He said to them: Let’s learn it from this, “Remain idle? But the world was created only for procreation!” In addition, R. Simon Bar Abba said in the name of Rabbi Yohanan: Anyone who is commanded in procreation is forbidden to marry on the holiday.” This means, anyone who is commanded in procreation due to la’shevet yitzarah, such as a slave. But he [the slave] is certainly not commanded in pru u’rvu. According to this, shevet applies to a female slave as well. The reason that we do not compel a master to free a woman who is half slave and half free except when men took sexual liberties with her is that since she is not commanded in pru u’rvu, perhaps after she is released, she will not fulfill it [shevet].

According to this third explanation of Tosafot, in the name of R. Yitzhak ben R. Mordekhai, male and female slaves are obligated in la’shevet yitzarah. The male slave will be obligated in pru u’rvu once he is released, consequently, we can rely on his participating in la’shevet yitzarah. However, since a female slave will not be obligated in pru u’rvu (like all women), if we release her based on la’shevet yitzarah, we will not necessarily achieve the appropriate result. Therefore, our Sages sought another reason for her release.

There is a significant difference, possibly a contradiction, between Tosafot’s first two answers and the third. According to the first two answers, “la’shevet yitzarah” adds an additional mitzvah or additional heft to the mitzvah of pru u’rvu transforming it into an essential mitzvah. Consequently, it serves as a reason for the halakhah outlined in the mishnah. According to these explanations, it seems that a woman is not obligated in la’shevet yitzarah. But according to the third explanation, the mitzvah of la’shevet yitzarah is incumbent on both men and women, however, it is not an absolute obligation. Consequently, if a female slave is released, we have no assurance that she will fulfill this obligation once she is a free woman.[9] Only the mitzvah of pru u’rvu, which is an absolute obligation incumbent on a free man, guarantees the fulfillment of la’shevet yitzarah. Indeed, there is no direct contradiction between these approaches – the first two answers, which may be treated as one, and the third answer and we rule like both these positions. We will sharpen these approaches later.

Turning to the third answer, we have a dispute among the Rishonim. Some do not accept the novel explanation of R. Yitzhak ben R. Mordekhai that women have a derivative of the mitzvah of pru u’rvu, and they do not think that a woman fulfills any mitzvah whatsoever when she has a child. To elucidate this, we bring a selection from a teshuvah of Ritva. This teshuvah is in response to one by R. Dan Ashkenazi who wrote, following the view of R. Yitzhak ben R. Mordekhai, that a woman who gives birth fulfills a mitzvah. R. Dan Ashkenazi discusses a case of a woman who takes an oath, at her husband’s request, that she will not remarry after his death:

I should also learn from the words of the great rabbi [R. Dan Ashkenazi] who said, in the matter before us, that it was appropriate to annul her vow, even though  she had sworn in public (al da’at rabim), since a vow related to a mitzvah, even a light mitzvah (see the case of the school teacher; Gittin 36a) may be annulled. In    our case as well, while a woman is not commanded in procreation such that she should receive reward like “one who is commanded and does” (mitzuvah vi’osah), nonetheless, she does fulfill a mitzvah and it is appropriate to annul her vow.

This is my question – Since when does she have this mitzvah?! It’s not pru u’rvu    according to the majority of the Sages who disagreed with R. Yohanan ben Brokah, and it’s not la’shevet yitzarah as demonstrated in Yevamot where we say to her, “Go, you were not commanded in procreation,” and the only reason we listen to her is due to her claim [that she needs] a staff for her hand and a hoe for her burial. In addition, they only compelled the master to free a woman who was half  slave and half free because of a concern that sexual liberties will be taken with her…[10]

It seems that Ritva, along with many Rishonim and Ahronim,[11] disagree with R. Yitzhak ben R. Mordekhai, based on a pshat reading of the sugya. It is important to note that the position of the respondent, R. Dan Ashkenazi, that a woman who has a child fulfills a mitzvah, received the imprimatur of Rashba.[12] According to R. Dan Ashkenazi, a woman fulfills the mitzvah of  pru u’rvu as “one who is not commanded and does” (einah mitzvuvah vi’osah). It seems likely that his view is influenced by R. Yitzhak ben R. Mordekhai’s position though he does not mention it explicitly. Indeed, there are those who explain R. Yitzhak ben R. Mordekhai’s position in this exact fashion – the mitzvah of la’shevet yitzarah is defined as a fulfillment, though not an obligation, of pru u’rvu. Others find it difficult to define la’shevet yitzarah  exactly and suggest a range of formulations for his approach, from seeing this mitzvah as a type of obligation[13] to viewing it as a significant matter though not quite a mitzvah.[14]

Sale of a Sefer Torah

As noted by the Tosafists, the gemara (Megillah 27a) prohibits the sale of a Torah scroll, with two exceptions – to fund Torah study and to marry a woman:

R. Yohanan said in the name of R. Meir: We may not sell a Torah scroll except to study Torah and to marry a woman.

Rambam (Hilkhot Tefillin, Mezuzah, Sefer Torah 10:2) rules in accordance with this gemara:

We treat a kosher Torah scroll with great sanctity and respect. It is forbidden to sell a Torah scroll, even if one has nothing to eat, even if one owns many Torah scrolls and even to sell an old Torah scroll in order to purchase a new one. We may sell a Torah scroll for only two purposes – to finance Torah study or to marry, provided that he has nothing else to sell.

Tur (Hilkhot Piryah Vi’rivyah, EH 1:1) rules similarly: “This is a very great mitzvah, for we only sell a Torah scroll in order to study Torah and to marry a woman.” He rules similarly in Hilkhot Sefer Torah (YD 270). Mehaber also mentions this halakhah in both these places.[15]

It is important to note that, according to Tosafot, the permissibility (or perhaps the obligation?) to sell a Torah scroll in order to marry is connected to the mitzvah of la’shevet yitzarah, because of the mishnah’s statement: “But the world was created only for procreation, as it states, ‘He did not create it a waste; He formed it to be inhabited.'” In other words, the focus of the permissibility to sell a Torah scroll is the birth of children, not marriage itself.[16]

A teshuvah of Rivash changes the landscape and broadens the discussion from a personal one to a communal one. The teshuvah was written in response to a community that wanted to sell a Torah scroll to finance fixing the synagogue. Rivash ruled that it was forbidden. However, it was permissible to sell an invalid Torah scroll for this purpose, and it was permissible to sell a kosher Torah scroll to finance Torah study or to arrange marriages for orphans, thereby reducing communal expenditures, in order to marshal the funds to fix the synagogue:

            It seems to me that it is permissible, in practice, to sell a Torah scroll in which there is an error, or a missing or additional letter. Since it is invalid, it does not have the sanctity of a Torah scroll and it is similar to a Humash. Seven of the leaders of the community, in the presence of the people of that community, may sell it with the stipulation that the money need not be used solely for something more sacred [than the Torah scroll].

Alternatively, they may even sell a kosher Torah scroll to supply the needs of students or to use the money to marry off orphans; this is similar to [the permissibility to sell a Torah scroll] in order to study Torah and marry a woman.[17]

Beit Yosef (OH 153) quotes the words of Rivash, and rules accordingly in Shulhan Arukh (ibid. 153:6):

            We sell a synagogue as well as other sacred objects, even a Torah scroll, to  supply the needs of students or to marry off orphans with those funds.

Did Rivash intend to permit the sale of a Torah scroll to marry off male orphans and not female orphans? Maharam Al-Shakar (72) deals with this question in a teshuvah:

            …We need to examine whether the marriage of a daughter is a mitzvah or not. Regarding your statement, that it is a mitzvah for a man to marry off his daughters, if this is indeed a mitzvah, it is incumbent solely on the father and not on the people of the community. However, if the young woman is fatherless, it seems to me that this is a mitzvah for which the community may redirect monies set aside for sacred purposes for her sake as Rivash wrote in his teshuvah… Consequently, the residents of the city may even sell a Torah scroll to marry off orphans. Even though one could make the following distinction and argue that the orphans to whom he refers are specifically male, as they are commanded in piryah vi’rivyah, in any event, it seems to me that we should not make such a distinction and we should not exclude female orphans from this mitzvah.

 Maharam Al-shakar rules that one should not distinguish between male and female orphans in this case, however, he did not develop this idea. The great commentators on Shulhan Arukh finished this task. Here are the words of Magen Avraham (OH 153:9):

            To arrange marriages for orphans with these funds: The same is true for orphan girls (Maharam Al-shakar). It seems to me that this is so since the gemara’s  reason is lo tohu bra’ah la’shevet yitzarah and not pru u’rvu. Pru u’rvu does not apply to women, but la’shevet yitzarah does, as Tosafot wrote in Gittin (41b), see above, and unlike the position of Helkat Mehokek (1). I discuss this extensively in a teshuvah.

Indeed, Helkat Mehokek (EH 1:1) does not agree with Maharam al-Shakar. He thinks that a Torah scroll should not be sold except to marry off males who are obligated in pru u’rvu:

            In Shulhan Arukh (OH 153), Mehaber ruled that it is permissible to sell a Torah scroll to provide for students or to arrange marriages for orphans with those funds. This ruling is based on Rivash, as quoted in Beit Yosef (ibid. where he concludes  with the words of Rivash) that it is similar to learning Torah and marrying a woman. Accordingly,  it is specifically for a male orphan who wishes to fulfill the mitzvah of pru u’rvu but does not have sufficient funds. However, we do not sell a Torah scroll in order to arrange a marriage for a female orphan (since a  woman is not commanded in pru u’rvu, as he ruled in OH 153:13).

Beit Shmuel (ibid., 2) is inclined to disagree with Helkat Mehokek, with full awareness that there is evidence for both sides:

            We may only sell a Torah scroll to study Torah: This includes providing for students. “To marry a woman” includes providing for the marriage of orphans, as Mehaber wrote in (OH 153). One is forbidden to sell other books as well, as he wrote in (YD 270). Helkat Mehokek wrote that one may sell a Torah scroll, specifically, for the purpose of piryah vi’rivyah. We do not sell a Torah scroll to arrange a marriage for a female orphan since she is not commanded in pru u’rvu; we may only do so for a male orphan.

However, based on what I wrote that we sell a Torah scroll in order to fulfill la’erev al teinah (lit: do not withhold your hand, i.e. continue to produce children), one may say that we may sell a Torah scroll to arrange marriages for  female orphans as well since women are also commanded in la’shevet yitzarah, as indicated in Tosafot (Bava Batra 13; Gittin 41).

One who has already fulfilled pru u’rvu is included under the rubric of “to marry a woman,” and we may sell a Torah scroll in order to arrange a marriage for someone who has already fulfilled pru u’rvu or a female orphan. This is what Magen Avraham wrote (153). However, Rema writes (EH 1:13), in the name of Shiltei Gibborim, “A woman should not dwell without a husband lest suspicion fall upon her.”   This indicates that she is not commanded in shevet; this is also indicated in Tosafot (Hagigah 2b). Tosafot mentioned above also indicates that a woman is commanded in shevet, only according to one of its answers. See Teshuvot Radakh who says that a woman is commanded in shevet…

It is important to note that Tosafot in Hagigah, mentioned by Beit Shmuel, conflicts not only with the third answer in Tosafot Gittin, but the entire innovation made by the Tosafists, namely, that la’shevet yitzarah is an additional mitzvah to that of pru u’rvu. They introduce a Yerushalmi to buttress their position.[18]

The Yerushalmi quoted by Tosafot in Hagigah[19] against those who argue that women have a mitzvah of la’shevet yitzarah, in actuality, serves as a proof text for this position, as noted by Maharsha.[20] While the simple reading of the Yerushalmi supports those who oppose the novel notion that women have a kind of mitzvah of pru u’rvu, nonetheless, it seems to me that we should not dismiss this opinion. As Taz (EH 1:2) writes:

Truthfully, also according to these two answers, we can say that a woman is commanded in shevet, thus, we would sell a Torah scroll to arrange a marriage for a female orphan as well. Although Rema wrote that a woman should not remain unmarried lest suspicion fall upon her, and not because she is  commanded in shevet, it is possible that he was talking when she already had a son or daughter and had already fulfilled shevet. As it says in Yevamot (62a): Said Rava, “What is the reasoning of R. Natan, according to Beit Hillel? It says: It was not created for naught, it was formed to be inhabited.” Nonetheless, she shall not remain without a husband lest suspicion fall upon her. See also Maharam to Gittin who did not read the explanation of Tosafot (s.v. li’sa shifhah eino yakhol) correctly. See also Maharsha to the beginning of Hagigah who properly emended the text of that Tosafot. And see OH (153:10) regarding the laws for an individual who wishes to sell a Torah scroll.

Formulated in lamdut terminology, Taz thinks there are two aspects of marriage: (1) to fulfill la’shevet yitzarah, i.e., to have children; (2) to have a licit sexual relationship – to prevent suspicion.

In any case, it seems obvious to me, that according to the Tosafists and those with a similar position, these three answers are complementary. The mitzvah of la’shevet yitzarah is not a personal obligation (hovat gavra), instead, if done, it fulfills a non-obligatory mitzvah (mitzvah kiyumit), which is considered a mitzvat rabim, since its fulfillment brings great benefit to the world. In Rashi’s words, “The Holy One, blessed be He, did not create the world to be uninhabited; rather, God created it to be settled.” There is room to discuss the parameters of this mitzvah today in a world that is not lacking in population, although, we don’t have sufficient room to discuss this in this teshuvah.

In summary: The hiddush of the Tosafist, R. Yitzhak bar Mordekhai, that there is a mitzvah for women to have children, while subject to debate, is accepted by many Aharonim, among them: Beit Shmuel, Magen Avraham, Taz and Radakh; and Mishnah Berurah rules: “To marry off orphans – Even female orphans; though women are not commanded in piryah vi’rivyah, la’shevet yitzarah applies to women as well.[21]  

Why are women exempt from pru u’rvu?

If indeed, according to many poskim, there is a mitzvah for women to have children, why did the Torah exempt them from the commandment of pru u’rvu? We will conclude our discussion with the unique words of R. Meir Simhah of Dvinsk, in Meshekh Hokhmah, on the mitzvah of pru u’rvu:

Pru u’rvu: It is not far-fetched to say that the reason that the Torah exempts women from pru u’rvu and obligates only men, is because the laws of the God and God’s ways are “ways of pleasantness, and all its paths are peace”; the Torah did not burden the Jew with that which the body cannot tolerate. … Since women risk their lives with pregnancy and childbirth, [… therefore] the Torah did not decree that women be commanded to procreate. Similarly, it is permissible for a woman to drink a sterilizing potion, like in the story of Yehudit, wife of R. Hanina (Yevamot 65b). For the continuation of the species,  God made woman’s nature such that her desire to have children is stronger than that of a man. As we found with Rachel who said, “Give me children, and if not, I will die.” This explains well Rav Yosef’s statement in Yevamot (ibid.) that women are not commanded in piryah vi’rivyah based on the verse, “I am the Lord, preih u’rveih (be fruitful and multiply; singular)” (Genesis 32:11); it did not say: pru u’rvu (be fruitful and multiply; plural). When God blessed Adam and Eve before the sin when there were no travails in childbirth, they both were commanded to procreate and God said to them, “pru u’rvu” (ibid. 1:28). After the sin, when the woman would have travail in childbirth and, much of the time would be in     danger to such an extent that they say [when a woman kneels to birth the child] she swears that she will not have sex with her husband. [Therefore, the Torah says that she must bring a sacrifice; Niddah 31b]. Thus, regarding Noah, though it is written: “He said to them, ‘Pru u’rvu;’ it says beforehand (Bereshit 9:1), ‘He blessed Noah and his sons’, without mentioning their wives as they are not included in the commandment of pru u’rvu. To Jacob, it says: preih u’rveih. This is the correct explanation.[22]

According to Meshekh Hokhmah, women were created with a natural desire to have children which ensures the continuation of the human race. Despite this, our Torah exempted women from the obligation of duty of pru u’rvu, out of consideration for the physical and, occasionally, emotional trauma that childbirth causes. We can deduce from his words that the exemption does not exclude women entirely from the value of procreation and the continuation of the species, and the debate among the Rishonim and Ahronim is only whether this matter is defined as a mitzvah for which the community sells a Torah scroll.[23]

It also explains the relationship between the two parts of the sugya in Yevamot. The sugya begins with a discussion of the Tannaitic dispute regarding women’s obligation in pru u’rvu concluding with the view that exempts her. It then moves to a discussion of the woman’s right to sue for a get and her ketubah because of her desire to have children. Finally, it returns to discuss the travails of childbirth and a woman’s right to drink a sterilizing potion.

Summary

In all the sources cited above, there is no explicit reference to a woman who was not able to marry, since in their time there was no licit way to become pregnant without huppah and kiddushin. However, from the sources we can surmise that the Torah recognizes a woman’s right to have children, and according to a central opinion of the poskim, this constitutes a fulfillment of a mitzvah, or at the very least, a great value. When the technology exists such that a woman can become pregnant, without huppah and kiddushin but in a halakhically permissible manner, it is difficult to find a clear reason to prevent her from realizing her right to have children and possibly fulfill a mitzvah.

We emphasize that our teshuvah deals with the case before us in which a woman is getting older, has not yet married and she wishes to realize her right and her mitzvah to bring children into this world. This does not diminish the importance of marriage itself. Having children is certainly an important aspect of the purpose of marriage, but there is also great significance to marriage, apart from procreation, in both halakhic and human terms.

It should be noted that the discussion of the second question, whether this constitutes the fulfillment of a mitzvah, stems, in part, from the question of whether a Torah scroll may be sold to arrange marriages for female orphans or only males. Based on this, we can return to the third question – should the community devote resources to assisting single women in having children. It is not possible to prove that it is permissible to sell a Torah scroll in order to finance this, and the matter remains a matter of dispute among the poskim. Nonetheless, since the Torah recognizes a woman’s right to have children, and since this is of great value and, according to many halakhic authorities, a mitzvah, it is appropriate for the community to help an older single woman who is approaching the age when she will no longer be able to have children, to do so in a halakhically permissible manner; and even to allocate resources from the available communal funds to provide for the attendant needs.

FOOTNOTES

[1] Thank you to my dear student, Aviad Evron, who reviewed and edited this teshuvah.

[2] Sheilat Shlomo 4:277. R. Yitzhak Shilat rules similarly, but in a much sharper manner, in his article on genetic cloning: “If it becomes possible for a woman to become pregnant outside a relationship with a man, halakhic questions regarding a single woman who wants a child then arise. What will be the position of the halakhah, given that we are not talking of a forbidden sexual relationship? We need to state, unambiguously, that bringing children into the world must be done solely in the context of a two-parent family. This is not a protection against violations of bein adam li’makom, rather, as a di’oraita, fundamental law of ‘love your neighbor as yourself.’ If the mitzvah of ‘love thy neighbor as thyself’ mandates that the court choose the ‘best’ form of capital punishment (Sanhedrin 45a), how much more so does it mandate we choose the ‘best’ life. This appears to be the reason for the halakhah: ‘A man shall not marry a woman from a family of those afflicted with epilepsy or leprosy’ (Yevamot 64b, Shulhan Arukh, EH 2:7). The gemara compares this halakhah to those governing a baby boy whose brothers have died from circumcision [we do not circumcise this boy] and a woman whose previous husbands have died [she should not marry again]. Prima facie, the cases are not comparable; someone who has epilepsy or leprosy can live a long life! The reason is that it is forbidden, ab initio, to bring into the world a child who will be ill with a chronic illness, choosing a life of suffering for that child, because of the mitzvah of ‘love your neighbor as yourself.’ Every child has an emotional need for both a father and a mother. The father, just like the mother, is essential to for the child’s identity formation and character development. The birth of a child into a family without a father, not the result of the death of the father during pregnancy, is an injustice to the child who will grow up with serious emotional deprivation. In contrast, a married couple is permitted to bring a child into the world where only the mother is the biological parent, since the father will accept the child as his own. As we know, a man who raises an orphan is considered as if he fathered that child (Sanhedrin 19b); and certainly in this case where both parents raised this child together from birth.” R. Yitzhak Shilat, “Shikhpul Geneti Li’or Ha’halakhah,” Tehumin 18 (1998), pp. 141-142.

With apologies to my friend, R. Yitzhak Shilat, this comparison to one afflicted with epilepsy or leprosy is completely out of place.

[3] See R. Shmuel David, “Teshuvot Ba’al Peh shel Ha’rav Aharon Lichtenstein“, Tzohar 40 (2016), p. 32.

[4] Hilkhot Ishut 15:10; and see Shulhan Arukh, EH 154:6.

[5] Tosafot, Yevamot 65a, s.v. she’beino li’beinah he ne’emenet; see the context there.

[6] Igrot Moshe, EH 4:13; this is the practice in the batei din in Israel.

[7] Yerushalmi Yevamot (Venice edition) 7:4, see the exchange there.

[8] See Tosafot, Gittin 38a s.v. kol ha’mishahrer; Tosafot, Pesahim 88b, s.v. kofin et rabo; and Tosafot, Bava Batra 13a s.v. she’ne’emar lo tohu bra’ah, in a different version, mi’shum she’he mitzvah rabbah. Tosafot Rosh, Gittin 38b notes that these two concepts are quite close: “There is a mitzvah rabbah of la’shevet yitzarah which is analogous to a mitzvah di’rabbim.   

[9] Ran, Kiddushin (16b in Rif) wrote as follows: “… Nonetheless, the mishnah teaches us that the mitzvah [of kiddushin] is best performed by her and not by her agent (mitzvah bah yoter mibi’shluhah). While a woman is not commanded in procreation, nevertheless, she has a part in this mitzvah through facilitating her husband’s fulfillment.” It is possible that Ran does not agree with Tosafot’s third response. Had he thought so, he would have explained that mitzvah bah yoter mibi’shluhah applies since she is commanded in la’shevet yitzarah. Ran’s commentary here is similar to his statement elsewhere (see Kiddushin 12b in Rif). However, regarding Ran’s commentary there, Radakh writes that Ran’s words do not contradict Tosafot’s third response: “Tosafot explained… that a woman is commanded to marry a man and to produce children because of la’shevet yitzarah, if so … from where do we know that she is not required to marry off her son given that she is commanded to marry and produce children due to shevet? [The assumption here is that a parental obligation exists only when the parent, him or herself, is commanded in the mitzvah.] The reason is, as Ran zt”l explained, since she is not commanded in pru u’rvu, though she is commanded in shevet, her mitzvah is not equal to that of her son and she is not obligated to marry off her son and daughter.” (Shut Ha’Radakh, Constantinople edition, 17). This explanation works well with the commentary of Ran that we cited. Ran believes that the mitzvah of kiddushin derives from the mitzvah of pru u’rvu, and a woman is not commanded in pru u’rvu, only la’shevet yitzarah. In any event, the relationship between kiddushin and pru u’rvu is complex, and we cannot give it the extensive treatment it warrants here.

[10] Shut Ha’Ritva 43, see there in the latter part of the teshuvah.

[11] See Shut Yabia Omer, vol. 8, YD 22, where he cites many poskim who maintain that a woman does not have a mitzvah of la’shevet yitzarah. See there that a number of the poskim’s positions are best understood assuming that they think women are commanded in la’shevet yitzarah,  as emerges from a close reading.

[12] Quoted at the beginning of Ritva’s teshuvah above.

[13] See, for example, Shut Ha’Radakh, Constantinople edition, 17: “… She is not command in piryah vi’rivyah though she is commanded in shevet, nevertheless, she is not commanded in the same manner as the son.”

[14] For example, Arukh Ha’shulhan, EH 1:4: “… It is true that our rabbis, the Tosafists, wrote that a woman is also included in shevet. Their intention was not that she is commanded in shevet, rather, that she falls under the rubric of shevet. This is obviously true as women also contribute to the world population. La’shevet yitzarah, is not a commandment, rather, it is a narrative – God created His world to be settled by people; women are also included…” However, Arukh Ha’shulhan contradicts this a bit elsewhere, stating, “Everyone was commanded in la’shevet yitzarah ” (OH 153:15).

[15] Shulhan Arukh, YD 270:2; EH 1:2.

[16] Ostensibly, according to this response, one is not permitted to sell a Torah scroll in order to marry a woman who cannot have children. However, this is a matter of dispute and there are some who permit selling a Torah scroll even to marry a barren woman. This is what Tur (EH 1) wrote: “The only difference between a man who already has children and one who does not is in connection to selling a Torah scroll, however, he should always marry a woman who can produce children if he has the wherewithal to do so, even if he already has children. If the only way he can afford to marry a fertile woman is by selling a Torah scroll, he should do so if he does not yet have children. If he has children, then he may not sell a Torah scroll, rather, he should marry a infertile woman and not remain single. There are those who say that he should sell a Torah scroll in order to marry a woman who can have children, even if he already has children. [According to this view,] the only relevant halakhic distinction between a man who already has children and one who does not, is in the case of a marriage that has lasted 10 years and has not yet produced children. If he does not have children, the husband must divorce his wife in order to fulfill pru u’rvu; if he has children, he is not required to divorce her. As for R. Yehoshua’s statement, that a man should marry a fertile woman even in his old age, this only applies li’khathilah and he is not obligated to divorce a woman who cannot have children. This is also the conclusion of my father, Rosh.”

[17] Shut Rivash 285.

[18] Tosafot, Hagigah 2b, s.v. lo tohu bra’ah: “This positive commandment is more powerful than pru u’rvu as it says in Megillah 27a: ‘A man may sell a Torah scroll in order to marry a woman or to study Torah, and cites the verse, lo tohu bra’ah.’ There are those who say that the reason [that verse was cited] is because a slave is not commanded in pru u’rvu as the gemara states, ‘If he produced children when he was a slave and was then freed, he did not fulfill piryah vi’rivyah.’ This is not the case since it says in Yerushalmi, Moed Katan, chap. 1: ‘May a slave [delay his marriage so as to] marry on the holiday? He said to them: Learn it from the following mishnah: Should he remain idle; but the world was created only for the purpose of piryah vi’rivyah?! Shimon bar Abba said in the name of R. Yohanan: Anyone who is commanded in pru u’rvu should not marry a woman on the holiday.’ Additionally, the language used here is: ‘Wasn’t the world created just for the purpose of piryah vi’rivyah?!’ This indicates that we are speaking of both of them [pru u’rvu and shevet]. The reason we say that the slave doesn’t fulfill the mitzvah of piryah vi’rivyah, is that we require that the children be considered his; even a child born of a non-Jewish slave woman is not considered the [Jewish] father’s child. Additionally, pru u’rvu is commanded to all the descendents of Noah, even Canaan.”

[19] Tosafot Hagigah 41b s.v. lo tohu bra’ah la’shevet yitzarah. See earlier where I quoted Tosafot in full.

[20] Maharasha, Hiddushei Halakhot, Hagigah 2b: “S.v. lo tohu bra’ah  This positive commandment is more powerful… There are those who say that the reason [that verse was cited] is because a slave is not commanded in pru u’rvu… This is not so since it says in Yerushalmi, Moed Katan, chap. 1: ‘May a slave…” However, in Tosafot, Gittin, Chapter Ha’sholeiah, they deduced from a close reading of this Yerushalmi that only la’shevet yitzarah applies to a slave [and not pru u’rvu] following the view of the yeish omrim. In addition, Tosafot’s statement here: “Pru u’rvu applies to all the descendents of Noah, even Canaan,” is astonishing since the mitzvah of procreation was said to Israel and not the descendents of Noah as we say clearly in Sanhedrin, Chapter Arba Mitot, “Piryah vi’rivyah which was [originally] said to the descendents of Noah as it is written: Be fruitful and multiply (Bereshit 1:28) and was repeated at Sinai, is said to Israel and not to the descendents of Noah. This requires further analysis.”

[21] 153:24.

[22] Mesekh Hokhmah, Bereshit 9:7.

[23] Shulhan Arukh, EH 1:4 writes similarly: “Some of the sages wrote that even though a woman is not commanded in pru u’rvu, nonetheless, she is obligated in la’shevet yitzarah. There is no basis for this view, since the entire impetus for the mitzvah of pru u’rvu is shevet, as I wrote in 1:1. Women, since they are not commanded in pru u’rvu, by extension, they are not commanded in la’shevet yitzarah. This is also demonstrated in the words of Rambam, cited in 1:3, and in all the poskim; there is no obligation, whatsoever, incumbent upon women. A clear proof may be gleaned from the statement of Hazal that when the couple’s inability to have children is due to the man, the woman may not compel him to divorce her; see EH 154. If it she is commanded in shevet, why should she not be able to compel a divorce. It is true that our rabbis, the Tosafists, wrote that shevet applies to women as well (Gittin 41, Bava Batra 13a); however, their intention was not that she is obligated in shevet, rather, that she falls under the rubric of shevet, for indeed, women also contribute to the settling of the world.”  It seems, however, that R. Meir Simhah thought that this position is agreed upon and is not subject to the dispute of the rishonim re the mitzvah of la’shevet yitzarah.

Answer: