Responsa

ARR 416-419

CCAR RESPONSA

American Reform Responsa

137. Marriage After a Sex-Change Operation

(Vol. LXXXVIII, 1978, pp. 52-54)

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?

ANSWER: Our responsum will deal with an individual who has undergone an operation for sexual change for physical or psychological reasons. We will presume (a) that the operation is done for valid, serious reasons, and not frivolously; (b) that the best available medical tests (chromosome analysis, etc.) will be utilized as aids; and (c) that this in no way constitutes a homosexual marriage.

There is some discussion in traditional literature 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 (Yoreh De-a 116; Chulin 10a). The Mishna dealt with the problem of individuals whose sex was undetermined. It divided 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 (Yev. 83b). Solomon 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. 128ff). The Androginos is a hermaphrodite and clearly carries characteristics of both sexes (M. Bik. IV.5). The former was a condition which could be corrected and the latter, as far as the ancients were concerned, could not, so the Mishna and later tradition treated the Androginos sometimes as a male, sometimes as a female, and sometimes as a separate category. However, with regard to marriage, the Mishna (Bik. IV.2) states unequivocally: “He can take a wife, but not be taken as a wife like men.” If married, they were free from the obligation of bearing children (Yad, Hil. Yibum Vachalitsa 6.2), but some doubted the validity of their marriages (Yev. 81a; Yad, Hil. Ishut 4.11; also Sh.A., Even Ha-ezer 44.6). The Talmud has also dealt with Ailonit, a masculine woman, who was barren (Yad, Hil. Ishut 2.4; Nid. 47b; Yev. 80b). If she married and her husband was aware of her condition, then this was 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 could divorce her in order to have children (Yev. 61a; M. Yev. 24.1). Later authorities would simply permit such a marriage to stand.

We, however, are dealing either with a situation in which the lack of sexual development has been corrected and the individual has been provided with a sexual identity, or with a situation in which the psychological makeup of the individual clashed with the physical characteristics, and this was 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?

There is no doubt that both procreation and sexual satisfaction are basic elements of marriage as seen by Jewish tradition. Procreation was considered essential, as is already stated in the Mishna: “A man may not desist from the duty of procreation unless he already has children.” The Gemara to this concluded that he may marry a barren woman if he has fulfilled this mitzvah; in any case, he should not remain unmarried (Yev. 61b). There was a difference between the Schools of Hillel and Shammai about what was 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 (Tos., Yev. 8; Yad, Hil. Ishut 15.16, etc.). The sources also clearly indicate that this mitzvah is only incumbent upon the male (Tos., Yev. 8), although some later authorities would include women in the obligation, perhaps in a secondary sense (Aruch Hashulchan, Even Ha-ezer 1.4; Chatam Sofer, Even Ha-ezer, #20). Abraham Hirsh (Noam,vol. 16, pp. 152ff) has recently discussed the matter of granting a divorce when one spouse has had a transsexual operation. Aside from opposing the operation generally, he also states that no essential biological changes have taken place and that the operation, therefore, was akin to sterilization (which is prohibited) and cosmetic surgery.

Hirsh also mentions 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 has committed a homosexual act. This statement is 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 also played 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 were to be recited for those beyond child-bearing age, or those who were sterile (Abudarham, Birchot Erusin98a).

Most traditional authorities who discussed childless marriages were considering a marriage already in existence (bedi-avad) 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 (Sh.A., Even Ha-ezer 23; see Isserles’ note on 154.10). This was the only alternative solution, since bigamy was no longer even theoretically possible after the decree of Rabbenu Gershom in the 11th century in those countries where this decree was accepted (Oriental Jews did not accept the Cherem 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 (Lechem Mishneh to Yad, Hil. Ishut 4.10). Yair Hayyim 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 (Chavat Yair, #221). Traditional Halacha, 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 did not affect her (as mentioned earlier).

There was some difference of opinion 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 R. Waldenberg assumed that a sexual change has occurred, and terminated the marriage without a divorce (Tsits Eli-ezer X, #25). Joseph Pellagi came to a similar conclusion earlier (Ahav Et Yosef3.5).

Perhaps the clearest statement about entering into such a marriage was made by Isaac bar Sheshet, who felt that the couple was permitted to marry and then be left alone, although they entered the marriage with full awareness of the situation (Ribash, #15; Sh.A., Even Ha-ezer 1.3; see Isserles’ note). Similarly, traditional authorities who usually oppose contraception permitted it to a couple if one partner was in ill health. The permission was granted so that the couple could remain happily married, a solution favored over abstinence (Moses Feinstein, Igerot Mosheh, Even Ha-ezer, #63 and #67, where he permits marriage under these circumstances).

Our discussion clearly indicates that individuals whose sex has been changed 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.

Walter Jacob, Chairman

Solomon B. Freehof, Honorary Chairman

Stephen M. Passamaneck

W. Gunther Plaut

Harry A. Roth

Herman E. Schaalman

Bernard Zlotowitz

See also:

S.B. Freehof, “Marrying a Trans-Sexual,” Reform Responsa for Our Time, pp. 196ff.

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 109

CCAR RESPONSA

New American Reform Responsa

69. Type of Willow for the Sukkot

QUESTION: There are a number of species of willows in our area and we are not certain which one should be used for the lulav? (Terry Osman, Philadelphia PA)ANSWER: The Bible along with other ancient texts is not very specific about the nature of plants. For that matter, up to the time of Linneus plant identification was quite uncertain and popular names in various countries as well as various sections of countries often were used to identify entirely different plants. All indications point to the willow species (Salix Alba) as the willow of the Biblical period. However, it might also have been Salis Acmophylla. The difference between the two trees is that one grows in a cooler climate and the other in the hot climate of the Jordan River Valley as well some of the oases. We shall also note that the tree mentioned in Psalm 137.2 which is sometimes translated as willow probably refers instead to the Euphrates poplar (Populus Ephratica which is a totally different species also mentioned in the Book of Ezekiel (17.5). As the Jews moved into various other lands, we simply used the local species of willow tree and this varied from country to country and was never questioned. Probably one reason for this is that fact that in contrast to the palm branch and the etrog it would not be possible to transport a willow branch any distance and keep it looking green. Any willow, therefore, is acceptable for use as the lulav. One need not be particular about obtaining the Israeli species.October 1991

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 108

CCAR RESPONSA

New American Reform Responsa

68. Nature of the Lulav

QUESTION: What is the nature of the lulav used on Sukkot? For how many days of the festival should it be used? (Stephen Paul, Indianapolis IN)ANSWER: The lulav is the shoot of a palm tree which has remained in its folded state. In other words, before the palm leaf actually spreads out (Lev 23.40). It should measure at least three handbreadths in length. Two twigs of a willow and three of a myrtle are associated with it (Suk 29b, 32b,34a). These three kinds of branches are tied together and used for Sukkot services with the etrog. Their use can be documented to the period of the Temple and its service throughout the seven days of the festival of Sukkot. The lulav was only used on the first day in the Temple. After the destruction of the Temple in 69 CE its use for the entire festival was mandated (Suk 41a, 43b). The lulav is carried during the recital of the Hallel Psalms (Psalms 113-118). All of this, of course, is based upon the Biblical description of the festival (Lev 23.40). No specific kind of palm has been mandated so the unfolded leaf on any palm branch is acceptable. Probably the most likely palm is the date palm (Phoenix dactylifera) as seems indicated by the sources (Suk 32b; Nid 26a; Yad Hil Sukkah 7.8). The palm leaf must be three handbreath in length. The following other palms have also been used: Hyphaenae thebaica, corypha umbraculifera, as well as the thorn palm (Suk 32b), but we need not limit ourselves to them.October 1989

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 4-5

CCAR RESPONSA

New American Reform Responsa

3. The Rebbe’s Picture

QUESTION: The Lubavitch group has placed many advertisements with large pictures of its rebbe. Is this in keeping with Jewish tradition? Does not Jewish tradition frown upon a display of any image? Does this include such photographs? (Rabbi Amiel Wohl, New Rochelle NY)ANSWER: Although portraits have rarely survived the Middle Ages we have a picture of what is assumed to be Maimonides, now unfortunately found on the label of an indifferent kosher wine. We possess portraits of various other figures, for example, Manneseh ben Israel, several paintings by Rembrandt of Jews who did not seem to hesitate about sitting for him, etc. In more recent times various Orthodox authorities have been reluctant about photographs so for example, the Hungarian custom of placing photographs on the tombstone of a deceased has been denounced (Greenwald Kol Bo al Avelut pp 380 ff). Similarly Jacob Emden felt it was wrong to have a portrait done. We can see that in the last centuries there was some reluctance to move in the direction of portraits, but it was usually overcome in favor of a picture as long as it did not appear in the synagogue. Two dimensional pictures as well as portrait busts were permitted in the older tradition, we as Reform Jews have no objections to them even in the synagogue (S. B. Freehof Modern Reform Responsa #33). We should remember, however, that with the Lubavitch Rebbe we have an additional problem of adoration verging on idolatry. This is an issue which should be appropriately addressed by that group and by their Orthodox colleagues as such adulation is not appropriate within the Jewish tradition and approaches avodah zarah.December 1989

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CARR 256-257

 

CCAR RESPONSA

 

Contemporary American Reform Responsa

 

171. The Lord’s Prayer

QUESTION: A rabbi

who has joined Alcoholics Anonymous discovered that the meetings concluded with the recitation

of the “Lord’s Prayer.” He personally does not feel uncomfortable with that prayer, but wonders

whether it is appropriate for him as a rabbi to participate in the recital of that

prayer.

ANSWER: As you have indicated in your letter, it is clear that the “Lord’s

Prayer” is Jewish in spirit and parallels a number of ancient Jewish prayers. This has been

discussed at some length by a wide variety of Jewish scholars from Kaufmann Kohler to Jakob

Petuchowski (Kaufmann Kohler, “The Lord’s Prayer,” Jewish Encyclopedia, VoI. VIII, pp.

183 f; C. G. Montefiore, Rabbinic Literature and Gospel Teachings; Jakob Petuchowski

and Michael Brocke, The Lord’s Prayer and Jewish Liturgy) .

The problem does

not lie with the origin of the prayer, or its Talmudic parallels (Ber. 16b f, 29b; Tosefta Ber.

3.7), but with the fact that Jesus taught it to his disciples (Matt. 6.9 ff; Luke 11.1 ff). Furthermore,

it has become the central prayer of Christianity, and, in fact, is one of the strongest bonds

between the Catholic and Protestant forms of Christianity. Although its content is neutral and it

does not contain any direct reference to Christianity, its origin with Jesus and its strong Christian

overtones makes its use unacceptable to Jews. It would, therefore, be better if Jews refrained

from its recital even in a non-religious setting like Alcoholics Anonymous. As it is recited at the

conclusion of the meeting, there is really no reason to participate. One can stand in silence, and I

am sure that this would be respected and understood. An alternative would be the recital of

Psalm 23 which has been used by a number of chapters at the conclusion of their

meetings.

July 1985

 

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 532-539

CCAR RESPONSA

American Reform Responsa

169. How Should a Loan in Foreign (Russian) Currency, Exchanged in Another Country (United States) Be Repaid?

(Vol. XXX, 1920, pp. 113-119) From the Scriptural injunction: “Hear the causes between your brethren, and judge righteously,” Talmudic judicial procedure derives a rule forbidding the court to hear one party to a litigation in the absence of the other party; and from another Scriptural dictum is derived that the one party should not unfold to the judge his side of the controversy in the absence of his adversary (Sanh. 7b; cf. Shev. 31a). Accordingly, the greatest rabbinic authorities have always refrained from expressing opinions, even in an academic way, on questions involving money, unless both parties to the cause had clearly set forth their respective allegations (Solomon Luria, Responsa, Fuerth, 5528.24). In view of those just and wise regulations it may be deemed presumptuous on the part of even a recognized judicial authority (Mumcheh lerabim)–and much more on the part of one who, like myself, is not vested with such authority–to venture a ruling in a case the parties to which are separated by land and sea, and, consequently, on the one-sided statement of facts affecting money matters. However, it should be considered that, in the present case, the novelty of having before me a debtor who is anxious to be adjudged indebted to a greater amount than his creditor is likely to consider his due, proved an irresistible temptation to examine the matter and to clarify his status according to Rabbinic law. Moreover, it should be remembered that just because I am not vested with judicial authority, I am not bound by those restrictive regulations. Shortly before the outbreak of the World War, Ephraim determined to emigrate from his native Russia to America. Before his departure from home, his chum, Manasseh, presented him with 300 rubles in Russian currency, saying, “Here are three hundred rubles. Please accept them from me, and carry them to the United States; and may He ‘Who maketh poor and maketh rich’ prosper your way. Providence permitting, in the course of the next year or two, I too shall come thither, and then if you are able and your heart prompts you (I shall never appear as your creditor, neither shall I ever press you), you may repay me the loan, but without interest.” Ephraim accepted the proffered bills, pocketed them, and departed. Arrived in America, he exchanged the Russian bills for $145 in American money, and God blessed him in all his undertakings. In the meantime the terrible war broke out, and prevented Manasseh from crossing the ocean. He is still in Russia, while Ephraim has for some time been anxious to repay his indebtedness, but does not know how to cancel his debt, for if he sent his friend an exchange for 300 rubles, which would cost now about $15, that would represent only about one-tenth of the amount he realized for the Russian money he had taken from Manasseh; and, on the other hand, if he should repay him the sum of $145, this would be equal to about 3,000 rubles–ten times as much as the original sum. I have intently listened to Ephraim’s recital and pleas, and carefully pondered his sincere utterances and his earnest mien. I became convinced that he was anxious to repay the kindness of his friend who stuck to him closer than a brother. At least he was desirous of repaying his actual debt, at once and in cash if he only knew what that debt was. He reasoned thus: “If I should send Manasseh 300 rubles, which, at the present rate of exchange, would amount to only $15, I should consider myself as robbing my friend and benefactor of 90 percent of the sum he lent me (i.e., of the sum I received in exchange for his 300 rubles); and if I sent the value of $145 in Russian money, which would be about 3,000 rubles, I feel sure that Manasseh would be grievously offended. He would think that his close friend, who knows that he had never lent his money on interest, now presumes to suspect that he would take usury from his life-long friend. I know that he would never forgive me such an offense, while I am anxious to perpetuate and to strengthen the bond of friendship between us.” Therefore, he importuned me to advise him how to proceed in this case, so that he might discharge his obligation as he feels it, without offending his friend or the Rabbinic law. Bearing in mind the circumstances and details of the transaction as portrayed by Ephraim, I find some analogy in the following precedent. A ruling was asked of Simeon ben Zemah Duran in this case (see Tashbaz II, 288): Reuben had borrowed from Simeon 20 pounds of purple yarn, with the distinct understanding that 20 pounds of purple yarn should eventually be returned. Subsequently the price of purple yarn rose, and now Reuben argues that he owes him no more than an amount equal to the value of the borrowed yarn at the time of the borrowing, while Simeon claims that this is not so, but that purple yarn was the loan and purple yarn must be returned. However, he hesitates to press this claim lest it savor of usury; he therefore seeks the sanction of the learned in the law.This was the answer: From the phraseology of the question it appears that no time for the return of the loan was stipulated; and since the price of purple yarn is known among the dealers so long as their storehouses contain yarn, the case is analogous to borrowing a Se-a of wheat to be repaid with a Se-a of wheat, which, when the price is once standardized, may be done without setting a time for the return of the loan, and may be returned at any time. For while it is taught (B.M. 75a), “A woman must not lend to her neighbor a loaf, unless she sets on it a price, else, should wheat rise in value, the transaction might eventuate in usury”–that is not confirmed law. The Gemara cites the comment of Samuel, reported by R. Judah: “That is Hillel’s doctrine; but the [majority of] sages have decided that one may lend without stipulations and repay without stipulations.” Hence it appears that he [Simeon] is likewise within his rights in demanding the present price of the yarn; for, according to the universally approved ruling of R. Yannai (ibid., 65b): “There is no difference in the law between the goods and the value of the goods.” Agreeable to the principles underlying this decision, had our clients–Ephraim and Manasseh–appeared before a rabbinical court in Russia, which apparently is the place where the loan was consummated, they could be viewed as standing in the same relation towards one another as did Reuben and Simeon in their case, and the Russian currency notes could be considered as the purple yarn; and hence it would appear that Manasseh could legally claim no more than 300 rubles in Russian currency. For, if at the time of the transaction, the notes were considered as commodities (they themselves having no intrinsic value, except as certificates of trusts, which pass as money because the government promises to redeem them at their face value with silver, but have as yet not been redeemed and therefore have a fluctuating market value), I should consider their status analogous to that of the wheat in the following baraita (B.M. 75a), where it is decided: “One may borrow a Kor of wheat [without setting a price]; if wheat becomes cheaper, the borrower may return wheat;1 if it becomes dearer, he repays its value as it was at the time of the loan.” And if, on the contrary, we consider the ruble notes as money–since in contradistinction to commodities they certainly are money–their status is like that of the coin in Asheri’s responsum which concludes with the decision: “Where one borrows money without specifying how it is to be repaid, he may repay in the kind of coin borrowed, even if it is nowhere current; a fortiori, in this country where no coin is invalidated, but all are current, only one more so than another. Therefore he is obliged to repay in the coin which he borrowed.”2 Nor can Manasseh claim that, because the notes have fallen in value, silver has gone up, and should he now wish to exchange the notes for silver he would incur a loss in the weight of bullion. Should he so argue, Ephraim could rejoin in the words of Rabbi Yom Tov Lipmann Heller (Pilpula Charifta, B.K. 98a): “You did not lend me bullion, but coined money, and coined money I return; hence you lose nothing.” Again, should Manasseh plead: Because the value of the notes has come down, the price of goods has correspondingly risen, hence I should not now get as many goods as I formerly could have for the same amount in currency notes, Ephraim could counter with the statement that the price of goods has really gone up only because the government of the country has fallen, and, consequently, the people have lost confidence in the treasury notes, although the notes themselves have been reduced neither in size nor in weight. Therefore, since Manasseh lent him Russian notes, he must accept Russian notes in return. And were Manasseh to sue Ephraim before a rabbinical tribunal in this country–where no place for repayment is specified, because “a loan may be reclaimed anywhere” (“Milva nitena litava bechol makom,” B.K. 118a)–in that case Ephraim could not discharge the debt with Russian currency. For a baraita provides: “When one produces a bond of indebtedness against another…no place for repayment being designated therein, if the bond is produced in Babylon, the creditor collects in Babylonian money; if it is produced in Eretz Yisrael, payment may be demanded in the money of Eretz Yisrael” (Ket. 110b). Elsewhere it is taught (B.K. 97a): “Where one lends his neighbor money on condition that repayment be made in coin, Rav decides that payment must be made in the coin current at this time, while Samuel rules, the debtor may say to the creditor, Go to Meshan and spend it there.” Thereupon Rav Nahman remarks: “Samuel’s ruling is reasonable if the creditor is likely to go to Meshan; but if he is not likely to go to Meshan, the debtor may not pay him with coins not current here.” And since Manasseh’s intention is to establish himself permanently in this country, he must be considered as not likely to go to Russia. This being so, Ephraim must pay him with the money current at the place of payment, which is America; but even so, Manasseh is not entitled to more than the value, in American money, of 300 rubles at the time of repayment. From what has been said it follows that, although there is some difference as to the kind of money with which payment can be made (this depending on the place where the claim is made), there is no difference as to the amount Manasseh may claim according to Rabbinic law; to wit: 300 rubles–in Russia of Russian currency notes; or in America, of American money to the value of 300 rubles in America the established rule applicable to this case being, as enunciated by R. Yannai: “Ma li hen, ma li demeihen” (“There is no difference between goods and their value in money”). Such, it seems to me, would be the judgment of a rabbinic tribunal, if we view Russia as mekom hashiabud, the place where the obligation was consummated. After careful consideration, however, that view is impossible. The Rabbis of the Mishna (B.K. X.6) prescribe: “If one robs another, or borrows anything from him, or accepts from him a deposit for safe-keeping, if the deed is done at an inhabited [i.e., safe] place, he cannot legally make restitution in the desert; but when the deed is conditioned on going out to the desert, he may make restitution in the desert.” Hereunto the Gemara (ibid., 18a) remarks: “‘On condition of going out to the desert’–Why, this is self-evident! Well, it would really not have been necessary to state it, were it not intended to intimate that when the owner said, ‘Let this thing stay with you, for I intend to go out to the desert,’ whereupon the other said: ‘I too intend going out to the desert; if I should desire to restore it to you there I might do so.”‘ This is variously explained. According to Rashi (ibid., l.c., s.v. “I ba-ina”), it means: “Although there is no real condition, since he says, ‘If I should desire,’ nevertheless, because he too goes out to the desert, he is obliged to accept it there even against his will.” Bertenura interprets it thus: “It means not that one says, ‘On condition that you come out into the desert and restore it to me’–that would be self-evident; but even if the one says to his friend, ‘Let this remain in your custody for I am going out into the desert’; whereupon the friend says, I too intend going out into the desert’–even so, if he so desires he may restore it to him in the desert.” The difference between these two expositors is that Rashi makes the borrower the first to say: “Ana lamidbar ba-ina lemeifak”; while, according to Bertenura, it is the lender who says it first. There is, however, no difference as to the legal effects whether the one or the other expresses his intention first, since both share that intention. Now, in our case there was an express condition; for according to Ephraim’s statement, the lender had said to the borrower: “Providence permitting, in the course of the next year or two it too shall come thither, and then…you may repay me the loan.” Surely there need be no more express condition thnt this! If “even when a loan is made at an inhabited place, and the borrower says to the lender: ‘I intend going out to the desert,’ whereupon the lender expresses a like intention, it is legally considered as if the loan was made in the desert” (Tur, H.M. LXXIV), although neither loan nor repayment was mentioned by either party; a fortiori when, in our case, the lender plainly says: “I too shall come to the United States, and then you may repay me,” it should be taken as if the loan was made in the United States. And if the loan was consummated in the United States, the United States must be considered mekom hashi-abud, the place where the obligation was incurred. Therefore, Ephraim must pay to Manasseh the value of the loan in United States money. This, I think, is perfectly clear. But in view of this, the question comes back: What does Ephraim owe to Manasseh? What are we to understand by “the value of the loan”–300 rubles at the present rate of exchange or the value of 300 rubles as the rate stood at the time of the first transaction? The answer may be deduced from the following ruling (B.M. 72b): “A merchant carrying goods from market place to market place is approached by another who proposes to take the goods off his hands at the price which they are expected to bring at a certain place,” where goods are rated higher (Rashi, ad. loc.). In this case it is ruled that, “if the risk of conveyance to that place is carried by the original vendor, the bargain is permissible; but not so if the buyer assumes that risk,” for the surcharge might be construed as interest for deferring payment until after the sale of the goods at that other place (cf. Maimonides, Yad, Malveh IX.9). Now, if we carefully ponder Manasseh’s words which accompanied the loan, as repeated by Ephraim, it appears that not only did Manasseh entrust the Russian currency notes to Ephraim with the stipulation that they should be taken to the United States and exchanged for United States money, but also that Manasseh assumed the risk for the time being and for the future (i.e., the risk of transportation and until Ephraim should have accomplished the exchange and begin to profit by the use of the proceeds thereof as a business capital). For thus Manasseh said to Ephraim at the time of the loan: “Here are 300 rubles. Please accept them from me and carry them to the United States; and may He Who ‘maketh poor and maketh rich’ prosper your way. Providence permitting, in the course of the next year or two, I too shall come thither; and then, if you are able and your heart prompts you (I shall never appear as your creditor, neither shall I ever press you), you may repay me the loan, but without interest.” By this Manasseh surely did not mean to intimate that Ephraim should take the Russian notes overseas and lock them up in a safe or “bury them (according to the Talmudic advice, B.M. 42a) in a wall within a handbreadth from the ground”; but that he should exchange them for American money and use that money in business. Hence, Ephraim was Manasseh’s agent to convey Manasseh’s goods to America, there to dispose of them at the market price. Only after thus disposing of the goods and beginning to employ the proceeds in his own business did Ephraim become the borrower of Manasseh’s capital. Accordingly, we must apply to our case Rashi’s construction of the baraita just quoted: “There could be no loan until the goods have been sold; hence no matter how high a price the goods brought, all the proceeds belong to the original owner” (Rashi, B.M. 73a, s.v. “Mutar”). And since Ephraim received in exchange for the Russian notes entrusted to him by Manasseh one hundred and forty-five dollars, he owes Manasseh one hundred and forty-five dollars ($145.00), or the value of this sum in Russian currency notes, in accordance with the accepted principle enunciated by Rabbi Yannai: “There is no difference between the goods and their value in money.” Under the prevailing circumstances, Manasseh being in Russia (where United States money is not current), Ephraim is obliged to avail himself of the latter alternative, even though in following that course he will repay in rubles ten times the original sum entrusted to him. The increase can be considered neither as a “belated bonus” (“Ribit Me-ucheret”) for the use of the money, nor as any other shade of interest (“Avak Ribit”). It was practically a number of dollars that Ephraim borrowed from Manasseh; and if today the dollar buys more rubles than it could buy six years ago, it is the value of Manasseh’s dollars that pays for the greater sum of rubles. This, it appears to me, is the correct judgment, according to Talmudic and later Rabbinic law and regulation; and so I advised Ephraim, this the seventh day of Chanuka 5680, December 23, 1919.Samuel MendelsohnNOTES:1. Cf. Tosafot, B.K. 97a, s.v. “Hamalveh.”2. Asheri, Responsa, CIII.l.

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 254-259

CCAR RESPONSA

New American Reform Responsa

156. Living Will*

QUESTION:What is the Jewish attitude toward a “living will”? (Loren Roseman, Norcross GA)

ANSWER:The “living will” provides a legal method in some thirty-seven states for terminating life support systems in the case of individuals who are dying because of serious illness or accident. The pain of family members or friends in comas over long periods of time and in a “persistent vegetative state” while attached to life preserving machinery has led to the consideration of such documents. At that juncture often no one will agree on what should be done. In some occasions the courts have intervened; in others eventually a family member or physician intervenes, but at the risk of subsequent legal action.

Those who wish to spare their family from this agonizing decision may decide on a “living will”, a form frequently used with a proxy designation statement reads as follows:

Living Will Declaration

To My Family, Physician and Medical Facility

I,_______________, being of sound mind, voluntarily make known my desire that my dying shall not be artificially prolonged under the following circumstances:

If I should have an injury, disease or illness regarded by my physician as incurable and terminal, and if my physician determines that the application of life-sustaining procedures would serve only to prolong artificially the dying process, I direct that such procedures be withheld or withdrawn and that I be permitted to die. I want treatment limited to those measures that will provide me with maximum comfort and freedom from pain. Should I become unable to participate in decisions with respect to my medical treatment, it is my intention that these directions be honored by my family and physicians(s) as a final expression of my legal right to refuse medical treatment, and I accept the consequences of this refusal.

Signed____________________________________Date_______________Witness____________________________Witness___________________________

Designation Clause (optional*)

Should I become comatose, incompetent or otherwise mentally or physically incapable of communication, I authorize___________________presently residing at________________________to make treatment decisions on my behalf in accordance with my Living Will Declaration and my understanding of Judaism. I have discussed my wishes concerning terminal care with this person, and I trust his/her judgment on my behalf.

Signed____________________________________Date_______________Witness____________________________Witness_______________________________

*If I have not designated a proxy as provided above, I understand that my Living Will Declaration shall nevertheless be given effect should the appropriate circumstances arise.

The various statutes specifically exclude chronic debilitating diseases such as Alzheimers which are not life threatening and attempt to deal with other problems as well.

This approach raises many questions about traditional and modern Jewish perceptions of life and death. Is this akin to suicide or euthanasia? Suicide has always been considered a major sin (A Z 18a; Semahot 2.2; Shulhan Arukh Yoreh Deah 345.2) and even its contemplation was considered wrong. We have also felt that euthanasia is not consistent with our tradition (W. Jacob (ed) American Reform Responsa #78, 79). We may see from the arguments presented in these two responsa that nothing positive may be done to encourage death, however, the “Living Will” is not euthanasia, but an instrument of antidysthanonic. Our tradition has felt that a goses (dying person) should also not be kept from dying after all hope for recovery has passed, and so the Sefer Hassidim stated that if the steady rhythm of someone chopping wood kept a goses alive, the wood chopping should be stopped (#723; Isserles to Shulhan Arukh Yoreh Deah 339.1). Some rabbinic statements limit the definition of goses to persons who will not live for more than three days, however modern medical technology has made these limitations obsolete. Earlier Biblical statements clearly indicated that no positive acts to abbreviate life even when there was not hope were permitted (I Sam 31.1 ff; II Sam 1.5 ff). In a later age Solomon Eger indicated that medicine should also not be used to hinder a soul’s departure (comment to Shulhan ArukhYoreh Deah 339.1). We may then safely say that at the critical juncture of life when no hope for recovery exists the soul should be allowed to drift away peacefully. We have become even more sensitive to issues of euthanasia through our own experiences with the Holocaust.

Love of life in all its forms is very much part of our tradition. Even when conditions of life are rather doubtful and when there might be serious questions about the “quality of life” we cannot encourage euthanasia (W. Jacob Contemporary American Reform Responsa#83) nor can we make assumptions about “the quality of life.”

The modern development of medicine has brought wonderful cures and provides additional years of life even to those in advanced years. On the other hand its technology may leave us in a permanent coma or a persistent vegetative state in which we are neither alive nor dead. Such individuals may be completely dependent upon life support machinery. While this is acceptable during periods of recovery, we fear a permanent coma when the mind has ceased to respond and a plateau of mere physical existence has been reached.

When the Harvard criteria of death have been satisfied, life support machinery may be removed. This state of “brain dead” has been defined by an ad hoc committee of the Harvard Medical School in 1968 (Journal of the American Medical Association Vol 205, pp 337 ff). It recommended three tests: (1) Lack of response to external stimuli or to internal reed; (2) absence of movement and breathing as observed by physicians over a period of at least one hour; (3) absence of elicitable reflexes; and a fourth criterion to confirm the other three; (4) a flat or isoelectric electroencephalogram. The group also suggested that this examination be repeated after an interval of twenty-four hours. Several Orthodox authorities have accepted these criteria while others have rejected them. Moses Feinstein felt that they could be accepted along with shutting off the respirator briefly in order to see whether independent breathing was continuing (Igrot Mosheh Yoreh Deah #174). Moses Tendler has gone somewhat further and has accepted the Harvard criteria (Journal of American Medical Association Vol 238 #15 pp 165 ff). David Bleich (Hapardes Tevet 5737) and Jacob Levy (Hadarom Nisan 5731 Tishri 5730; Noam 5.30) have vigorously rejected these criteria as they feel that life must have ceased entirely with the heart no longer functioning, a condition belatedly established by Hatam Sofer in the eighteenth century (Responsa Hatam Sofer Yoreh Deah #338). We can see that although the question has not been resolved by our Orthodox colleagues, some of them have certainly accepted the recommendations of the Harvard Medical School committee. We are satisfied that these criteria comply with our concern that life has ended. Therefore, when circulation and respiration only continue through mechanical means, as established by the above mentioned tests, then the suffering of the patient and his/her family may be permitted to cease, as no “natural independent life” functions have been sustained. We would permit a physician in good conscience to cease treatment and to remove life giving support systems. The “persistent vegetative state” is more difficult as “brain death” has not yet been reached. Such an individual would be considered a goses who is considered to be a living human being in all respects (Semahot 1.1; Yad Hil Evel 4.5; Tur and Shulhan Arukh Yoreh Deah 339.1 ff.). One may desecrate the Sabbath to help him according to Jacob Reischer (Shevut Yaakov 1:13), though others (Kenesset Hagadol)disagreed.

The long discussions about a goses indicate that no positive actions to hasten death may be taken, so he/she is not to be moved or his/her eyes closed, etc. As stated above there is no prohibition against diminishing pain or increasing the person’s comfort or initiating new treatment which will not change the condition of the patient. Under these circumstances a “Living Will” may be helpful although we realize that we know little of the “inner life” of people in this state; we do not wish to terminate what may still be significant to them.

It would be permissible according to this point of view to help and assist those who may need to make these kinds of judgments for us in the future through a “Living Will”. This may be especially important if there is no one present who can be counted on to make an appropriate decision in keeping with our verbally expressed wishes. The document must be worded so that it deals with the “persistent vegetative state” without moving toward euthanasia. The document should be sufficiently recent to assure that it reflects the wishes of the patient.

All of us wish for a reasonable exit from this world and would also like to make that period as bearable as possible for ourselves and our surviving family. The positive outlook on life which governs Judaism prohibits any drastic steps toward death but it does not insist that life continue when the person is a goses. At that point a peaceful release is permitted. The “Living Will” provides one possibility; the appointment of a proxy provide another.

March 1989

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5752.6 305-308

CCAR RESPONSA

Linkage Analysis

5752.6

She’elah

A new form of genetic called linkage makes use of genetic markers near the gene of interest, to make predictions about the probability that the fetus has inherited a genetic disorder. This has been used for the prenatal prediction of a number of childhood disorders (such as cystic fibrosis, the muscular distrophies) and to predict such conditions as Huntington Disease and susceptibility to chronic diseases (cardiovascular, neuropsychiatric, cancerous) that may develop at a later stage of the individual’s life. The following questions have been asked by the researcher:

 

1. Should such a testing which only provides probability of odds and does not establish definite be used for the prenatal detection of genetic diseases and possible abortion of fetuses found to have a high likelihood of having inherited the disorder?

 

2. Successful use of the technique often requires the genetic testing of other members of the family in order to determine what markers are present and how they are organized in the individual seeking information. Do other family members have an obligation to participate in this testing when, as a result, they may discover that they are a carrier or likely to develop a genetic disorder?

 

3. Should genetic testing be done for disorders that develop later in a person’s life and for which there is currently no effective treatment or cure as in Huntington Disease or Alzheimer’s Disease?

 

Teshuvah

New trends in scientific research about the components of the human genome and of their organization and function are laying the foundation for considerable scientific advances and, at the same time, engage our concern about their impact on social and individual ethics. The field of new medical frontiers is constantly expanding, and whatever answers we may be able to provide will themselves raise additional questions.1 We do not, in this teshuvah, aim at a comprehensive analysis of all the issues involved, but will rather attempt to set them into the framework of Jewish concerns.

 

Summary of Halakhic Precedents.

 

We stand in the tradition of the Rambam (Moses Maimonides, 1135-1204) who set the model for combining Jewish insights with scientific and metaphysical inquiry. He stressed wonder and modesty as starting points of any inquiry:

 

When we reflect on these [wondrous] things…and realize the divine wisdom manifested in them all, our love for God will increase, the soul, the very flesh will yearn to love God. We will be filled with fear and trembling as we become conscious of our own lowly condition.2

 

Basing himself on scriptural verses and talmudic precedents, he reaffirmed our obligation to apply the divine gift of human intelligence to explore nature and use its resources for the art of medicine, and that it was a mitzvah to heal and to be healed.3

 

Physicians are therefore expected to use their art to heal through the means provided to them by nature. Indeed, to refuse to heal was compared to shedding blood.4 In this way the pursuit of modern science to widen the opportunities for healing are urged upon us as a mitzvah, and Liberal Judaism fully supports this traditional demand.5

 

Response to the Questions.

 

1. The acquisition of new medical insights therefore has solid support. Even though the result of testing provides us currently and perhaps inherently not with certainties but only with odds, we consider this an important and permissible inquiry. Knowledge is open-ended, and because human foresight will always be limited, certainties will elude us in any case in most areas of knowledge.

 

But, asks the questioner, how do we deal with the added probability that the odds will stimulate people’s desire for children with a minimum of medical problems and therefore will choose abortion if there is any question?

 

Jewish tradition countenances abortion under certain conditions,6 and Reform tradition has dealt with it on a number of occasions.7 Thus, we have permitted abortion when results of aminocentesis for Tay-Sachs Disease suggested its desirability.8

 

Generally, we would support decisions on an individual basis. Some families thrive on crisis situations, others break down; one woman reacts differently from another. The possibility that the test results may lead to some abortions is not, in our view, reason to abstain from research in this area altogether. As its methods are refined and the odds for accurate predictions increase, the necessity for more and more difficult moral decisions will also increase. Indeed, the application of new knowledge will frequently present us with new problems.

 

2. Members of the family, like all members of the human family, have an obligation to save life. The Rambam phrased it succinctly:

 

A person who is able to save another and does not do so transgresses the commandment “Do not stand idly by the blood of your neighbor” (Lev. 19:16).9

 

But the saving of life is not at stake here. In linkage analysis the family would be asked to undergo testing so that the physician can more accurately analyze the genetic markers and so that, thereupon, one or several members of the family might make an informed decision about unborn children. This can hardly be classified as saving life; hence no one is obligatedto participate in the testing.

 

We would consider it the physician’s duty to inform all members of the family about the process and, if they do consent to participate, the doctor in turn would be obligated to make the results of the testing available to them if they wish it.10 Thus, they may consent to be tested, yet not desire to know the outcome. They have a right to this refusal, for linkage analysis does not at this point provide them with opportunities for bettering their own health (in which case the answer could be different).

 

3. As long as there is no effective treatment for certain diseases, testing would provide information only, and little more. Some persons may wish to obtain it, but with resources already limited we doubt that it would be freely available under such circumstances. If, on the other hand, there are familial links to people who have been tested positively, the situation might change. In such cases the information might serve the mental well being of the patient seeking the information. Healing through information may in fact become a new frontier of the medical arts.

 

Notes

See H. J.. Evans, New Trends in Human an Introduction and an Overview, Experientia, 42:10, p. 1069. Funding for the Human Genome Project has recently been curtailed in the United States, but it remains a formidable project. See Marc Lappi, Genetics, Neuroscience and Biotechnology, Hastings Center Review, Nov./Dec. 1990, p.21. Yad, Yesodei Ha-Torah 4:12; see also Maharil (R. Jacob b. Moses of Moelln), Netivot Olam, 14. The biblical proof text is usually found in Exod. 21:19, where the double use of the word heal (rappo yerappe) is taken to mean he shall surely heal. However, the Rambam preferred to rely instead on Deut. 22:2; see his commentary on M. Nedarim 4:4. Sh. A., YD 336:1, and see Turei Zahav. We may note here the problem which medieval scholars faced when they were confronted with certain medical practices of Babylon which are recorded in the Talmud. Could such prescriptions be overridden in the light of newer medical insights? They managed to set aside the rules of the ancients by saying that they were no longer understood. See, for instance, the question whether bleeding is beneficial: BT., Shabbat 129a; Yad, Hilkhot . De’ot, 4:18; and also the Rambam’s Responsum on the Length of Life. See Fred Rosner, Modern Medicine and Jewish Ethics, pp. 161-171. See Walter Jacob, Contemporary American Reform Responsa, # 16, pp. 23-27. We will not here rehearse these discussions. To be sure, our generally liberal attitude as to what constitutes a threat to the mother’s health (which is the prerequisite for permission to abort) would favor the mother’s right to make an informed choice, but this is not equivalent to endorsing the unlimited Pro-Choice position in the current political controversy. R. Eliezer Waldenberg, Tzitz Eliezer, vol. 13, #102, also takes this position, but would not permit abortion when the presence of Down’s Syndrome is discovered in the fetus. Yad, Hilkhot. Rotze’ach 1:14. While the biblical verse was usually understood in this manner (so, for instance, does Rashi), there is some doubt as to its real meaning. The translation of the Jewish Publication Society suggests that the Hebrew probably means that we should not profit from our neighbor’s misfortune. See A. S. Avraham, Nishmat Avraham, YD 338, # 3; also Prof. Shimeon Glueck in Sefer Asya, April 1987, pp. 8-11.

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 362

CCAR RESPONSA

American Reform Responsa

111. Emblem of the Tribe of Levi

(Vol. XXXIII, 1923, p. 60)QUESTION: A friend would like to know what ensign or emblem the Tribe of Levi had, if any. If not, is there anything that he could use as a seal which might have some connection with the name of the Tribe of Levi?ANSWER: The Tribe of Levi did not have any special standard or emblem. On the breastplate of the High Priest the name of Levi was, according to tradition, engraved upon an emerald stone (Targum Jonathan to Exodus 28:17; comp. also Yalkut Re-uveni to Tetsaveh, Warsaw, 1901, p. 149, where some mystic reasons are given for it). In later times, the Levites used as an emblem on their seal, a pitcher, or a pitcher with a basin, which is symbolic of the function of the Levites in assisting the priests. The Levites pour out the water upon the hands of the priests when the latter prepare to go up to recite the priestly benedictions. These emblems are also found engraved on the tombstones of Levites. Comp. B. Wachstein, Die Inschriften des alten Judenfriedhofes in Wien I (Wien, 1912, p. XLVIII).Jacob Z. Lauterbach and Committee

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 297

CCAR RESPONSA

Contemporary American Reform Responsa

200. Lesbians and Their Children

QUESTION:

Two women who are in a lesbian relationship have raised a child who has been adopted by one of them. The child has been formally converted to Judaism with berit milah and miqveh. This was done like any other conversion and posed no problems. Now, however, the child is about to be Bar Mitzvah and the two women want to participate in the service as any parents. Should they be permitted to do so? (Rabbi M. Staitman, Pittsburgh, PA)

ANSWER: Although Jewish tradition from the Bible onwards strongly

condemns homosexuality, it has rather little to say about lesbianism. Some of the sources indicate that it may have been treated as a temporary phenomenon, rather than as a permanent condition among women. So, the Talmud (Shab. 65a; Yeb. 76a) and the Sifrei (9.8) prohibit sexual intercourse between women, but do not specify any punishment. They state that such a woman was permitted to marry even into the priesthood. As lesbianism was considered obscene, later sources demanded punishment (makot mardut) for those involved (Yad Hil. Issurei Biah 21.8; Shulhan Arukh Even Haezer 20.2). As, however, there was no Biblical basis for such punishment, there was also little further discussion in responsa literature.

We should be guided by these feelings and by our tradition’s

strong support of normative family life. Everything which we do should strengthen the family. We should, therefore, ignore the lesbian relationship and feel no need to deal with it unless the individuals involved are flagrant about their relationship and make an issue of it. If they do not, then their lesbian relationship is irrelevant; it should not be recognized. They should be permitted, along with other individuals both male and female, to participate in the Torah readings as well as other portions of the Friday-shabbat service. This will indicate to both the congregation and this household that we recognize the love and care given to the child and do not focus on or recognize the lesbian relationship.

March 1986

If needed, please consult Abbreviations used in CCAR Responsa.

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