QUESTION:May a rabbi officiate at a marriage of two Jews, one of whom has undergone a surgical operation which has changed his/her sex? (Rabbi D. Gluckman, Family Life Committee)
ANSWER: Our responsum will deal with an individual who hasundergone an operation for sexual change for physical or psychological reasons. We will presume (a) that this has been done for valid, serious reasons and not frivolously; (b) that the best available medical tests (chromosome analysis, etc.) have been utilized as aids; (c) that this in no way constitutes a homosexual marriage.
There is some discussion in traditionalliterature about the propriety of this kind of operation. In addition, we must recall that tradition sought to avoid any operation which would seriously endanger life (Shulhan Arukh Yoreh Deah 116; Hul. 10a) . The Mishnah has dealt with the problem of individuals whose sex was undetermined. It divides them into two separate categories, tumtum and androginos. A tumtum is a person whose genitals are hidden or undeveloped and whose sex, therefore, is unknown. R. Ammi recorded an operation on one such individual who was found to be male and who then fathered seven children (Yeb. 83b). S. B. Freehof has discussed such operations most recently; he permits such an operation for a tumtum, but not for an androginos (Modern Reform Responsa, pp. 128 ffl. The androginos is a hermaphrodite and clearly carries characteristics of both sexes (M. Bik., IV, 5). The former is a condition which can be corrected, and the latter, as far as the ancients were concerned, could not. So, the Mishnah and later tradition treats the androginos sometimes like a male, sometimes like a female, and occasionally as a separate category. However, with regard to marriage, the Mishnah (Bik 4.2) states unequivocally, "he can take a wife, but not be taken as a wife." If married, they are free from the obligation of bearing children (Yad Hil. Yibum Vehalitzah 6.2), but some doubted the validity of their marriages (Yeb. 81a; Yad Hil. Ishut 4.11; Shulhan Arukh Even Haezer 44.6). The Talmud has also dealt with ailoni, a masculine woman who is barren (Nid. 47b; Yeb. 80b; Yad Hil. Ishut 2.4). If she marries and her husband was aware of her condition, then this is a valid marriage (Yad Hil. Ishut 4.11), although the ancient authorities felt that such a marriage would only be permitted if the prospective husband had children by a previous marriage, otherwise he may divorce her in order to have children (M. Yeb. 24.1; Yeb. 61a). Later authorities would simply permit such a marriage to stand.
We, however, are dealing with a situation in which either the lack of sexualdevelopment has been corrected and the individual has been provided with a sexual identity, or the psychological makeup of the individual clashes with the physical characteristics, and this has been corrected through surgery. In other words, our question deals with an individual who now possesses definite physical characteristics of a man or a woman, but has obtained them through surgical procedure and whose status is recognized by the civil government. The problem before us is that such an individual is sterile, and the question is whether under such circumstances he or she may be married. Our question, therefore, must deal with the nature of marriage for such individuals. Can a Jewish marriage be conducted under these circumstances?
Thereis no doubt that both procreation and sexual satisfaction are basic elements of marriage as seen by Jewish tradition. Procreation is considered essential as already stated in the Mishnah: "A man may not desist from the duty of procreation unless he already has children." The Gemarah to this concludes that he may marry a barren woman if he has fulfilled this mitzvah; in any case, he should not remain unmarried (Yeb. 61b). There was a difference between the schools of Hillel and Shammai about what is required to fulfill the mitzvah of procreation; tradition followed Hillel who minimally required a son and a daughter, yet the Codes all emphasize the need to produce children beyond that number (M. Yeb. 6.6; Ket. 8a; Yeb. 61b; Tos. Yeb. 8; Yeb. 8; Yad Hil. Ishut 15.16, etc.) The sources also indicate that this mitzvah is only incumbent upon the male (Tos. Yeb. 8), although some later authorities would include women in the obligation, perhaps in a secondary sense (Arukh Hashulhan, Even Haezer 1.4; Hatam Sofer, Responsa, Even Haezer #20). Abraham Hirsh (Noam, Vol. 16, 152 ff) has recently discussed the matter of granting a divorce when one party of a married couple has had a transsexual operation. Aside from opposing the operation generally, he also stated that no essential biological changes had taken place and that the operation, therefore, was akin to sterilization (which is prohibited) or cosmetic surgery.
Hirsh also mentioned a case related to our situation; a male in the time of R.Hananel added an orifice to his body, and R. Hananel decided that a male having intercourse with this individual had committed a homosexual act. This statement was quoted by Ibn Ezra in his commentary on Lev. 18.22. We, however, are not dealing with this kind of situation, but with a complete sexual change operation.
Despite the strong emphasis on procreation,companionship and joy play a major role in the Jewish concept of marriage. Thus, the seven marriage blessings deal with joy, companionship, the unity of family, restoration of Zion, etc., as well as with children (Ket. 8a). These same blessings are to be recited for those beyond the childbearing age or those who are sterile (Abudraham, Birkhot Erusin, 98a).
Most traditional authorities who discuss childless marriages were considering amarriage already in existence (bediavad), and not the entrance into such a union. Under such circumstances, the marriage would be considered valid and need not result in divorce for the sake of procreation, although that possibility existed (Shulhan Arukh Even Haezer 23, see Isserles' note to 154.10). This was the only alternative solution since bigamy was no longer even theoretically possible after the decree of Rabbenu Gershom in the eleventh century in those countries where this decree was accepted; we should remember that Oriental Jews did not accept the herem of Rabbenu Gershom. Maimonides considered such a marriage valid under any circumstances (Yad Hil. Ishut 4.10) whether this individual was born sterile or was sterilized later. The commentator Abraham di Boton emphasized the validity of such a marriage if sterility has been caused by an accident or surgery (Lehem Mishneh to Yad Hil. Ishut 4.10). Yair Hayim Bacharach stated that as long as the prospective wife realized that her prospective husband was infertile though sexually potent, and had agreed to the marriage, it was valid and acceptable (Havat Yair #221). Traditional halakhah which makes a distinction between the obligations of men and women (a distinction not accepted by Reform Judaism) would allow a woman to marry a sterile male since the obligation of procreation do not affect her (as mentioned earlier).
There was some difference ofopinion when a change of status in the male member of a wedded couple had taken place. R. Asher discussed this, but came to no conclusion, though he felt that a male whose sexual organs had been removed could not contract a valid marriage (Besamim Rosh #340 - attributed to R. Asher). The contemporary Orthodox authority, E. Waldenberg, assumed that a sexual change has occurred and terminated the marriage without divorce (Tzitz Eliezer, X, #25). Joseph Pellagi came to a similar conclusion earlier (Yosef et Ahab 3:5).
Perhaps the clearest statement about entering into such a marriage was made byIsaac bar Sheshet who felt that a couple is permitted to marry and then should be left alone, although they entered the marriage with full awareness of the situation (Ribash #15; Shulhan Arukh Even Haezer 1.3; see Isserles' note). Similarly, traditional authorities who usually oppose contraception permit it to a couple if one partner is in ill health; the permission is granted so that the couple may remain happily married, a solution favored over abstinence (Mosheh Feinstein, Igrot Mosheh, Even Haezer #63 and #67; he permits marriage under these circumstances).
Our discussion indicates that individuals whose sex has beenchanged by a surgical procedure, and who are now sterile, may be married according to Jewish tradition. We agree with this conclusion. Both partners should be aware of each other's condition. The ceremony need not be changed in any way for the sake of these individuals.