Responsa

ARR 146-149

CCAR RESPONSA

American Reform Responsa

57. Anesthetic for Circumcision

(Vol. LXXV, 1965, pp. 99-101)

QUESTION: A physician performing a circumcision insisted upon using an anesthetic. Should this be permitted or even encouraged from the point of view of Jewish legal tradition?

ANSWER: This question has been asked a number of times in recent years when the use of anesthetics (even for minor surgery) has come into general use. The question is asked usually with regard to adult converts. Sometimes a convert will not consent to circumcision unless an anesthetic be used. In one case the circumstances were reversed, and the convert insisted that no anesthetic be used because he wanted to feel pain, since he considered the pain to be sacrificial. Sometimes it is asked with regard to children. A Jewish child had not been circumcised in infancy (for reasons of ill health). Now, at the age of five, he is to be circumcised and the mother insists that a local anesthetic be used. Out of these various cases a general attitude has emerged as to the use of anesthetics in circumcision for adults and for children.

Perhaps the first discussion of the question was by Meir Arik, the great Galician authority in the past generation. In his responsa (Imrei Yosher II, 140) he decides definitely in the negative. His arguments are worth notice because they reveal the general mood of the authorities of the time to all new suggestions which may affect the ceremonial laws. He calls attention to the Talmudic debate (in Kiddushin 21b) which deals with the piercing of the ear of a Hebrew slave who refuses to be set free. The Talmud there speaks of sam (an anesthetic medicine). This provides, he said, that the Talmud was well acquainted with such medicines. Yet, since the Talmud does not mention the use of anesthetic medicines in circumcision, it clearly was opposed to their use. Furthermore, he says that the Midrash (Genesis Rabba47.9) tells that Abraham was in pain because of his circumcision, and it was for that pain that God gave him additional reward. Then he concludes with a general statement in the nature of a warning, namely, that we have never used anesthetics in the past and, God forbid, that we should introduce any novelties.

This firm and indignant negative is not shared by the majority of the scholars who have dealt with the question. For example, Bezalel Shafran (Responsa Rabaz, #125) refutes the prohibitory opinion found in the book Sefer Haberit, which insisted that the circumcised must be awake for the reason that the fulfillments of commandments require conscious intention (Kavana). Shafran proves that a child may be asleep during the operation and this fact would not impair the legal validity of the circumcision.

The strongest opinion in favor of the use of anesthetics comes from the famous Rabbi of Kishinev, Judah Lev Zirelsohn (who was murdered by the Nazis). It was he who dealt with the question of the five-year-old boy mentioned above. In his Ma-archei Lev, #53, after reviewing various arguments, he comes to the general conclusion that the Torahnowhere requires pain in the circumcision, and therefore, he agrees in the case mentioned to the use of anesthetics.

Gedalia Felder of Toronto, who has done yeoman service in collecting and organizing the Law and Customs in his four-volume work Yesodei Yeshurun, has now written a special work on adoption, conversion, etc. In this work (Nachalat Tsevi,p. 57) he summarizes the various opinions on this question and also doubts the negative opinion of Meir Arik.

In the light of the above, we may conclude that there is no objection to anesthetics. The law does not insist upon pain in the fulfillment of this commandment. However, to this extent Meir Arik is correct: that we should not introduce novelties unless there is a good reason for them. If the child is likely to be naturally asleep during the operation (as often happens), the law does not require that he be wakened (cf. the opinion of Bezalel Shafran). However, if the operation is done by a doctor, and he insists that an anesthetic be used, then we may assume that he has a good reason for it, and we should not raise any objections. In general, we should not institute the use of anesthetics as a regular procedure, but we should permit them when the surgeon or the parent asks that they be used.

Addendum

You now ask about the popular idea that the wine which is (sometimes) given the infant during circumcision is for the purpose of allaying the pain of circumcision.

It is customary for the Mohel to give a drop or a touch of wine with his fingertip after the two blessings, when the phrase from Ezekiel is used: “Live in thy blood.” This custom is mentioned by Joseph Caro in Shulchan Aruch(Yoreh De-a 265.2). Of all the classic commentators, only the Spaniard Abudarham gives an explanation; but his explanation has to do with the sinful Israelites being given to drink the water into which their Golden Calf had been ground. A later commentator tries to connect it with the word “live” in the Ezekiel quotation, and attempts to have the drop of wine symbolize eternal life.

These explanations are obviously forced. One may say that no explanation is given for the drop of wine. Nowadays they sometimes give the child a bit of cloth or cake soaked in wine. This would lend itself to the notion that it was for the purpose of allaying pain. But the texts only speak of a “drop” or a finger touch. This could hardly have any pain-allaying effect, and therefore, this could not be the reason.

For the sake of completeness, it might be added that another taste of wine is sometimes given the child on fast-days at the blessing. The Mohel recites the blessing, but since it is a fast-day, he may not taste the wine. Therefore (in order that the blessing not be a “vain blessing”), a taste of the wine is given to the child (cf. Isserles to Yoreh Dea 265.4, Orach Chayim 621:3). But Abudarham quotes Ibn Gayyat and Maimonides, who object to the practice and who prefer that on fast days the wine blessing be omitted entirely. There is a wide variance in the minhagim about this practice. Some say: Give it to the Sandak to taste; some say: Give it to the young boys present to taste; some say: Give it to the mother; and some say: Give it to the child. Mishna Berura (The Chafets Chayim) to #621, says: It all depends on custom, and each custom has its basis. For a fuller discussion, see Edut LeYisra-elby Jacob Werdiger (Benei Berak, 1963), p. 127, #3.

The present custom of giving the child a wine soaked object to suck, which leads to the notion of allaying pain, is not authentic. Only a drop was used, and pain alleviation is neither mentioned in the sources nor possible.

Solomon B. Freehof

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 163-164

CCAR RESPONSA

New American Reform Responsa

101. Anesthesia for a Berit Milah

QUESTION: At a recent berit milah the Jewish physician who performed the surgery asked me why it should not be possible to apply a local anesthetic superficially to the penis of the infant before the operation. This is routinely done before a cystoscopy or similar examination. (Rabbi Karl Richter, Sarasota FL)ANSWER: We must remember that the widespread use of anesthesia is rather recent. It is now utilized generally for minor surgery and even for routine dentistry. Although there was some early opposition to the use of anesthesia in circumcision as with all suggestions of change (N. Arik Imrei Yosher II #130). Later authorities indicated that there was no objection (Gedalia Felder Nahalat Tzevi p 57). A number of individuals have written on the subject and indicated that it is the operation itself which is important and not the reaction to it. In other words, the child or adult who is circumcised may be asleep or awake. Either way the operation is valid. He may feel pain or no pain. That too makes no difference although a midrash declared that Abraham gained merit because of the pain of circumcision which he bore stoically (Midrash Rabbah Gen 47.9). Furthermore, the mohel usually places a drop or two of wine on the lips of the child which may have a slight pain alleviating effect although this is not mentioned by any of the traditional authorities. We do not know whether an infant, eight days old, suffers more than slight discomfort due to the circumcision. I have seen a number of children virtually sleep through the whole operation. So it is not clear that anesthetic is necessary. If, however, the physician feels in a particular case that some kind of local anesthetic would be useful there would be no objection to using it.August 1989

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 155-156

CCAR RESPONSA

New American Reform Responsa

96. Terminated Pregnancy and Berit

QUESTION: For various reasons (i.e. post term pregnancy, medical complications, convenience of the doctor or patient) it was decided that a woman who was pregnant should have her pregnancy ended before labor commenced. Labor was then artificially induced either through the use of Pitocin or by having the doctor rupture the amniotic membrane. In either case it could be argued that because labor had been started artificially the actual delivery date has also been altered by artificial medical intervention. If the child was born on the shabbat after such an artificially induced labor, should the berit ceremony then be postponed to Sunday (ninth day). (Mark Lebovitz, Cherry Hill NJ)ANSWER: Tradition has mandated that the berit milah shall be conducted on the eighth day as a mark of the covenant (Gen 17.9 ff; Lev 12.1 ff; Yad Hil Milah; Tur and Shulhan Arukh 264). The circumcision was to take place on the eighth day as indicated by the Biblical citations and also in later literature even if it was shabbat (Tur and Shulhan Arukh Yoreh Deah 262.1, 266.2). There were some circumstances in which the child was not circumcised on shabbat although it may have been the eighth day. It was not done if there was some uncertainly about the time of birth. For example if the child was born at twilight (Shulhan Arukh 264.4, 266.8). In addition a circumcision was postponed if the child was ill or there is some other medical reason for doing so and then the postponed circumcision would not be permitted on shabbat or a festival (Yeb 64b, Shulhan Arukh Yoreh Deah 262.2, 263.4, 266.10). A child born through Cesarean section is also not circumcised on shabbat (see responsum # 95). As far as drugs or any other methods which hasten the delivery of a child are concerned, they would make no difference with the berit. That would be determined by the time of birth irrespective of the method of birth. We should remember that a child born by Cesarean does not need to be redeemed (Nu 18.15 f). This is so because the child did not “open the womb” as would occur with a normal delivery (M Bek 8.2; Shulhan Arukh Yoreh Deah 305.24). The other male babies who do not need to be redeemed were the firstborn of a priest or a Levite (Shulhan Arukh Yoreh Deah 305.18), and the son of a woman who had a miscarriage after the first forty days of conception (M Nidah 3.7; Shulhan Arukh 305.23). This ritual, of course takes place on the thirty-first day after birth and is never held on shabbat or a festival but postponed until the next day. Circumcision therefore under all circumstances except a Cesarean section and those listed above takes place on the eighth day when it falls on shabbat irrespective of what has induced the labor which led to the birth of the boy.June 1989

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5768.4

CCAR RESPONSA

5768.4

Caesarian and Circumcision

She’elah

A member of our synagogue gave birth to a boy by Caesarian section (C-section) on Shabbat. The boy’s parents attempted to arrange a berit milah on the eighth day of the child’s life, also a Shabbat, but an Orthodox mohel told them C-section baby is not circumcised on a Shabbat or a festival. What is the basis in traditional Jewish law for this position? Should a Reform mohel observe the prohibition against performing the milah on the eighth day of the child’s life if that day coincides with Shabbat or a yom tov? (Rabbi Michael Dolgin, Toronto, ON)

Teshuvah.

This she’elah involves a technical point of Jewish ritual law. Yet like many such seemingly “minor” issues, it raises some interesting questions as to how we are to read and to make sense of our traditional sources when these are equivocal. And it raises similar questions concerning the way we interpret our own Reform Jewish sources when these, too, lead to differing conclusions.

1. The Traditional Prohibition. The Orthodox mohel is correct in his understanding of the halakhah, if by that term we mean “the law as stated in the major codes.”[1] While all agree that the infant boy is circumcised on the eighth day of his life, even if that day should occur on a Shabbat or a festival,[2] both Maimonides[3] and the Shulchan Arukh[4] rule that the child delivered through Caesarian section (yotzei dofen) is not to be circumcised on those days. Yet the matter is rather more complicated. The Talmudic source of this rule is B. Shabbat 135a-b, where Rav Assi draws a midrashic link between Leviticus 12:3 (the child is circumcised on the eighth day) and Leviticus 12:1, which speaks of tumat leidah, the ritual defilement that accompanies birth. From that link, he learns that the child is circumcised on the eighth day only when the mother contracts this defilement. Since the woman who delivers by means of C-section does not contract tumat leidah (M. Nidah 8:1), her baby is circumcised at birth.[5] The Talmud objects to Rav Assi’s conclusion by citing an Amoraic dispute in which both authorities are said to agree that the C-section baby is indeed circumcised on his eighth day but disagree as to whether that circumcision should take place on a Shabbat. The Talmud further cites a dispute among the earlier Tanaim as to whether, in fact, the issue of tumat leidah has anything to do with whether the child is to be circumcised on the eighth day.[6] The passage does not explicitly resolve these disagreements, and the post-Talmudic authorities are not surprisingly divided as to the proper decision. Some rule according to Rav Assi: the C-section baby is not to be circumcised on the eighth day, and his milah therefore does not override Shabbat.[7] Others say that the halakhah definitely does not follow Rav Assi, so that the milah for this baby must occur on the eighth day even should that fall on a Shabbat or a festival.[8] And others, including Maimonides and the Shulchan Arukh, unable to decide between the above alternatives, take what we would call the “cautious approach” and rule stringently on both matters:[9] the C-section baby should be circumcised on the eighth day (in case the law in fact requires this) but not on Shabbat or festivals (in case the law in fact forbids this).[10] This stance has become the predominant traditional practice and, in turn, explains what the Orthodox mohel told the parents to whom our sho’el refers.

We suggested above that the Talmudic source of this halakhah is equivocal. This is because it does not clearly indicate the correct rule and has led to conflicting legal interpretations over the centuries. The “cautious approach” of the major codifiers is therefore a reasonable one. When the arguments on both sides of a dispute are so closely balanced that it is impossible to decide with confidence between them, it makes sense to steer a middle course and to affirm the central concerns of both points of view. Halakhic authorities often resort to this device.[11] We, however, are not convinced that the cautious approach was necessary in this case, because it appears to us, as it appears to several rishonim,[12] that the dispute is not so equally balanced. A careful reading of the Talmudic passage indicates that a majority of the Sages named therein reject the connection that Rav Assi makes between tumat leidah and the date of circumcision. In our view, therefore, the better reading of that passage is that the halakhah definitely does not follow Rav Assi:[13] the C-section baby ought to be circumcised on the eighth day, even on Shabbat and festivals.

2. The Reform Halakhic Tradition. The situation in Reform practice is also equivocal, because the two Reform responsa that address this issue arrive at conflicting decisions. Rabbi Solomon B. Freehof rejects the traditional prohibition and rules that we circumcise the C-section baby on Shabbat or a festival.[14] Rabbi Walter Jacob, meanwhile, writes that “we must respectfully disagree” with Rabbi Freehof’s decision[15] and that we should postpone the milah of such a child to the next day.[16] Given that we must choose between these two positions, let us examine the arguments that each of them presents.

Rabbi Freehof criticizes the traditional prohibition on the grounds that the ruling “overextends the statement in the Mishnah (Shabbat 19:3) which speaks only of the androgynous and does not at all mention the Caesarian child.” This is true, but the Mishnah’s silence concerning the C-section baby does not mean that Jewish law ignores the subject. This particular rule, as we have seen, is based not on the Mishnah but on a series of Amoraic and Tanaitic statements brought forth in the Talmud (B. Shabbat 135a-b). All subsequent authorities base their rulings on this Talmudic source, and they do not cite the Mishnah’s silence as an argument either pro or con. As Rabbi Freehof does not discuss the Talmudic source, his responsum offers no substantive argument against the prohibition as registered by Maimonides and the Shulchan Arukh.

Rabbi Jacob upholds the prohibition because “there is neither a Reform ideological reason for a change nor any other reason.” He thereby invokes a general principle of Reform halakhic decision making (pesak): the “default” position of our responsa should be to affirm the traditional practice unless there is sufficient cause based in Reform doctrine that would lead us to depart from that standard. This principle is a powerful one. The affirmation of traditional practice, particularly because that standard helps to unite us with the rest of the Jewish community, has often informed our thinking.[17] Yet in this instance we can identify at least two good “Reform ideological reasons” that do argue for a departure from the traditional practice.

a. Talmudic halakhah treats the C-section baby as an exceptional case because, in the view of the Sages, such a child was “delivered” but not “born” in the usual sense of that term.[18] But this notion is foreign to our contemporary way of thinking. Caesarian section, once considered extremely dangerous and hence very rarely performed, has become much safer and more commonplace; in 2002, nearly 26% of all births in the United States were C-sections.[19] In the conceptual world in which we Reform Jews live and function it no longer makes sense to draw legal and ritual distinctions between babies delivered in the “natural” way and those brought forth from the womb via C-section. To put it another way, the means by which this child has entered the world is much less important to us than the fact that he has entered it.

b. To enforce the traditional prohibition may distract our people’s attention from the religious significance of the mitzvah of berit milah. That mitzvah is performed, in the absence of medical complications,[20] on the eighth day of a Jewish boy’s life, even if that day is a Shabbat or a festival. The timing is an essential element of the mitzvah; we have consistently held that circumcision must take place on the eighth day and be neither advanced nor postponed out of reasons of convenience.[21] To delay the milah from Shabbat until Sunday in this case, on grounds that will strike many as a technicality devoid of substance and relevance, may well persuade members of our community that it is permissible to postpone milah for other, unacceptable reasons (i.e., for the sake of convenience) that they will nonetheless take more seriously.

3. Conclusion. We hold that the Jewish child delivered by Caesarian section should be circumcised on his eighth day, even if the eighth day is a Shabbat or a festival. We do so because the traditional rule that prohibits such circumcisions is grounded upon a weak and contested reading of the halakhic sources; because the prohibition is no longer coherent with our understanding of childbirth; and because the maintenance of the prohibition conflicts with our insistence upon the eighth day as the proper time for the mitzvah of berit milah.

It is important to note, however, that all C-sections are not the same. Sometimes the procedure is performed, as it was always performed in the past, as an emergency measure, to deliver a child when a problem developed with a vaginal birth. Today, however, it is often the case that physicians will routinely schedule C-sections for women whom they know or fear will have difficulty giving birth vaginally. For purposes of berit milah, we consider an emergency C-section no different than a regular birth. A baby born as the result of an unscheduled C-section should be circumcised on the eighth day even if that day is Shabbat or a festival. However, a scheduled C-section is a different matter, since parents in that case have the option to choose a day that would avoid scheduling a berit milah on Shabbat or a festival. In those cases, the berit milah should be performed after Shabbat or the festival, in keeping with traditional practice.

NOTES

1. This note is not the place for an extended discussion of the nature of halakhah. It bears emphasis, however, that our entire Reform responsa enterprise is based upon the assertion that “the” halakhah is not to be identified with any particular, formal statement of it, whether that statement is a paragraph in the Shulchan Arukh or whether it reflects the consensus opinion among the contemporary Orthodox rabbinate. In fact, we would argue that the entirety of the Jewish legal tradition is based upon this assertion. Halakhah is the ongoing conversation and argument over the meaning of the texts of that tradition and their application to our lives. To identify any “code” or banc of poskim as the final arbiters of the law is to cut short this argument and to deny us the opportunity to read and to understand the sources as best we can, according to our own lights.

2. See Leviticus 12:3 (“On the eighth day the flesh of his foreskin shall be circumcised”) and B. Shabbat 132a (“‘On the eighth day’ – even if it is a Shabbat”). Yad, Milah 1:9; Shulchan Arukh Orach Chayim 331:1ff and Yoreh De`ah 266:2.

3. Yad, Milah 1:11.

4. Shulchan Arukh Orach Chayim 331:5 and Yoreh De`ah 266:10.

5. See Rashi ad loc., s.v. kol she’ein imo temei’ah leidah.

6. If the answer to this question is “no,” which is the view attributed to the anonymous (majority) position in the baraita (against that of R. Chama), then the C-section baby would obviously be circumcised as all other babies: on the eighth day, including Shabbat.

7. Among these: R. Yonah Gerondi, cited in Chidushei HaRashba, Shabbat 135b and in R. Nissim Gerondi’s commentary to Alfasi, Shabbat 135b; Chidushei HaRitva, Shabbat 135b.

8. See Nachmanides, Chidushei HaRamban, Shabbat 135b, who takes this position in theory (although retreats from it in practice). He is perhaps the anonymous authority to whom this position is attributed in R. Nissim, Rashba, and Ritva (see preceding note). See as well Sefer HaHashlamah (Provence, early 13th century), Shabbat 135b.

9. This is how R. Nissim (note 6, above) and R. Yosef Karo (Kesef Mishneh, Milah 1:3 and Beit Yosef, Orach Chayim 331 and Yoreh De`ah 266) account for Rambam’s ruling (see note 2, above) as well as the silence of R. Yitzchak Alfasi on this issue in his Halakhot to Shabbat 135. See also R. Asher b. Yechiel, Hilkhot HaRosh, Shabbat 19:6; R. Menchem HaMe’iri, Beit Habechirah, Shabbat 135b; and R. Zerachyah Halevi, Sefer Hama’or to Alfasi, Shabbat 135b.

10. Yad, Milah 1:7; Shulchan Arukh Yoreh De`ah 262:3.

11. Another example of this approach is the compromise over hatafat dam berit, the taking of a drop of blood from a proselyte who was circumcised prior to deciding upon conversion to Judaism. Some authorities say that this ritual is a requirement for conversion, while others say that there is no requirement that we take a drop of blood from a previously-circumcised proselyte. Therefore, we do take the drop of blood, “just in case” the halakhah requires this of a Jew by choice, but we do not recite a berakhah over this procedure, “just in case” it is not required (which would render the blessing a berakhah levatalah). See Shulchan Arukh Yoreh De`ah 268:1 and Siftei Kohen ad loc., n. 1.

12. Nachmanides, Rashba, and R. Nissim (notes 6 and 7, above), among others, make this point.

13. This reflects the general rule that “we incline after the majority” in deciding disputes among Talmudic authorities: M. Eduyot 1:5; B. Berakhot 9a and numerous other places (“yachid verabim halakhah kerabim”); B. Bava Metzi`a 59b (“acharei rabim lehatot” in a dispute over legal interpretation). We should not imagine that this “general” rule is an ireoclad one; “majority rule” does not always decide matters in the Talmud. However, the fact that Rav Assi’s is a minority opinion does serve to weaken its claim to being the “correct” interpretation of the halakhah.

14. Today’s Reform Responsa (TRR), no. 35, pp. 92-94.

15. This reminds us that Jewish law, as a general rule, does not recognize a doctrine of binding precedent (takdim mechayev, in the language of contemporary Israeli jurisprudence). The decisions of past authorities can and do serve as sources of guidance (takdim mancheh) for the present-day posek, and most halakhists show deference to such decisions, particularly if they represent a historical consensus in the scholarship. However, the individual judge is entitled to rule as she or he sees fit on the basis of his or her best interpretation of the sources. See (at length) Mark Washofsky, “Taking Precedent Seriously: On Halakhah as a Rhetorical Practice,” in Walter Jacob and Moshe Zemer, eds., Re-Examining Reform Halakhah (New York: Berghahn Books, 2002), 1-70.

16. Questions and Reform Jewish Answers (NARR), no. 95 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=95&year=narr).

17. For a description of how this principle works in the activity of the Responsa Committee, see the Preface by Rabbi W. Gunther Plaut to Teshuvot for the Nineties (TFN) (New York: CCAR, 1997), p. x: “Our procedure [in writing responsa] was marked by two considerations. First we asked: ‘How might Tradition answer this question?’ Then, after exploring this aspect, we asked: ‘Are there reasons why, as Reform Jews, we cannot agree? If so, can our disagreement be grounded in identifiable Reform policy?’ In this way we placed Reform responsa into the continuum of halakhic literature.” For an example of this principle at work, see our responsum “A Non-Traditional Sukkah,” TFN, no. 5755.4, pp. 91-96 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=5755).

18. The sources say this explicitly; see M. Nidah 8:1. Indeed, the connection that Rav Assi draws between circumcision on the eighth day and tumat leidah is understandable only if we think that the C-section baby was not “born” in the first place. An example of how the halakhah registers this distinction is that the yotzei dofen, because he was not technically “born” to his father, is not regarded as the firstborn son (bekhor) for purposes of inheritance; see B. Bekhorot 47b on Deuteronomy 21:15 (veyaldu lo); Yad, Nachalot 2:11 and Shulchan Arukh Choshen Mishpat 277:7 (lefi shelo nolad). All of this reminds us, of course, of William Shakespeare, Macbeth, Act V, Scene VIII, lines 12-16.

19. The figure is provided by the US National Institutes of Health, http://www.nlm.nih.gov/medlineplus/ency/article/002911.htm (Accessed May 30, 2008).

20. See Shulchan Arukh Yoreh De`ah 262:2 along with Siftei Kohen ad loc.

21. American Reform Responsa (ARR), nos. 55-56, (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=55&year=arr and http://data.ccarnet.org/cgi-bin/respdisp.pl?file=56&year=arr).

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 153-155

CCAR RESPONSA

New American Reform Responsa

95. Caesarean and Berit

QUESTION: May a child born of Cesarean section be circumcised on shabbat, or should the circumcision be postponed? This question is asked because there seems to be a difference of opinion between the traditional sources and the response given by Solomon B. Freehof in Today’s Reform Responsa. (Rabbi B. H. Mehlman, Boston MA)

ANSWER: As you have indicated, the traditional sources which deal with this question state that a child whose sexual status is doubtful, who has two foreskins or who is born through Cesarean, should not be circumcised on shabbat (Yad Hil Milah 1.11; Shulhan Arukh Yoreh Deah 266.10; Yad Hil Milah 1.11). These statements were very clear and the commentaries on them did not present any arguments in another direction. They were based on the decision of the Mishnah (Shab 19.3) which prohibited the circumcision of an androgynous child on shabbat. It is correct that a child born of Cesarean section was not mentioned in the Mishnah nor in the subsequent discussion of the Talmud (Shab 134a) . Although there were numerous discussions of children whose sexual status is doubtful (hermaphrodites or androgynous) in the classical literature both in connection with this matter and others, there were none to the best of my knowledge which dealt with the question of circumcision of a Cesarean birth on shabbat. The tradition of not circumcising on shabbatdeveloped and was accepted.

We must now ask why Solomon B. Freehof in his last volume of responsa answered in a different vein. I have looked through his halakhic correspondence as well as various papers in order to discover some reason for his conclusion. In the responsum itself, he only indicated that he felt the decision of Maimonides and Caro “overextends the statement of the Mishnah.” That is perfectly correct and we may add that no reason for this extension of the Mishnaic prohibition has been provided. We might guess that it took place for one of two reasons: a) An extension of the statement that pidyon haben was not required for those born through a Cesarean (Yad Hil Bikurim 11.16; Tur and Shulhan Arukh Yoreh Deah 305.24); b) there was a hesitancy about violating shabbat for a child whose birth was surrounded by any doubt, not only an androgynous or hermaphrodite child, but also one who was born at twilight as it may have been born on Friday or shabbat. Such a “doubtful status” might have been extended to the Cesarean as well. In any case we do not know the reason for the traditional statement which may also have simply followed minhag.

Solomon B. Freehof s conclusion in this matter was surprising as he advocated change only when there was a specific reason. It is, of course, possible to argue that the Mishnah has limited itself to the child of doubtful sexual status, and as it did not include a child born of Cesarean section we should not either. He mentioned that Rabbi Judah disputed the conclusion of this Mishnah, however, the decision went against him.

I believe that in this instance we must respectfully disagree with the decision of Solomon B. Freehof. As there is neither a Reform ideological reason for a change nor any other reason we would state with the tradition that a child born of a Cesarean should not be circumcised on shabbat, but on the next day.

August 1990

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 173-174

CCAR RESPONSA

New American Reform Responsa

**109. Berit and Baptism**

QUESTION: A mohel has been asked to officiate at a berit milah of the child of a mixed marriage. The mother is Jewish with a strong Jewish identity and background. The father is a believing Catholic. They have agreed that the child should have a berit and then be baptized. He is to be educated in both religious traditions so that he may make a choice at the age of maturity. Should the mohel conduct the berit? (Lewis M. Barth, Berit Milah Board of Reform Judaism, Los Angeles CA)ANSWER: We might argue that it is our task to bring the child into the covenant of Abraham, and the later actions of the parents are not our primary concern; this finds some justification in the tradition. As the child is Jewish by matrilineal descent, irrespective of what is done, the child would be considered potentially Jewish by us and fully Jewish, but an apostate, by traditional Jews. This would be true whether he is circumcised or not. We should remember that duty of circumcision rests upon the father (Kid 29a; Shulhan Arukh Yoreh Deah 261.1); a secondary obligation rests with the bet din (Ibid). If the mother does not have her son circumcised, the duty falls upon him as an adult (Shulhan Arukh Yoreh Deah 261). These reasons might move us in the direction of a berit, however, in this confused setting should we permit it? Had the parents indicated that they would have a berit but no baptism, and that they would determine the religious education of the child later, then we could, in clear conscience, proceed. The berit would represent an initial tentative step toward Judaism. In accordance with our decision on patrilineal descent other steps must follow. Even without a berit we would later accept the child in our religious school. A berit now, without baptism, would provide some time for discussion and persuasion about the needs of a Jewish religious education. However, in this instance they intend to have a baptism immediately after the berit, and continue this dual path through the child’s life. He would be brought to Religious School and Hebrew School and as well catechism instruction. He would celebrate all the Jewish and all the Christian holidays and later prepare for Bar Mitzvah and First Communion simultaneously. We cannot condone such religious syncretism and must avoid it from the beginning of the child’s life. We must indicate to the family that this is the time to choose one religious path or the other for their child. If they are not prepared to make this choice, let them surgically circumcise the child so that a possible entry into the covenant can later be effected by the painless tipat dam. A choice at this junction will avoid confusion for the child and problems with various Jewish authorities throughout his life. This has been our decision in an earlier question which dealt with a child raised in two religious traditions (W. Jacob, Contemporary American Reform Responsa #61). We would recommend the same path here at the beginning of life and we cannot proceed with the berit.September, 1987

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 48

CCAR RESPONSA

Contemporary American Reform Responsa

28. Berit Milah

QUESTION: Is it Reform

practice to observe the berit milah on the eighth day, or can it be done at the

convenience of the parents by a Jewish or Gentile physician? In addition, should the comparable

naming ceremony for girls also be observed on the eighth day? (Rabbi E. Sapinsley, Bluefield,

WV)

ANSWER: The Biblical statement about circumcising a male on the eighth day

is very clear and is provided in Genesis 17.11 (Shulhan Arukh Yoreh Deah 261 ff;

Yad Hil. Milah). Reform Jews observe this practice on the day stipulated. Of course if a

medical reason makes the circumcision dangerous, it may be postponed virtually indefinitely

until the child can be circumcised safely. All traditional authorities agree completely on this. If the

parents do not arrange for a boy’s circumcision as a child, it becomes his responsibility as an

adult.

It is clear as well (A. Z. 26a) that a Jew must perform the actual operation of

circumcision. In the Reform tradition, if no Jewish doctor is available, then a non-Jew may

perform the operation while the rabbi or father recites the appropriate prayers. In fact, someone

totally removed from Judaism [a pagan] would be preferable to an individual close to Judaism

[like a Samaritan] who is a sectarian, according to Rabbi Meir (A. Z. 26b). In his notes to the

Shulhan Arukh, Moses Isserles indicated that a non-Jew might also perform the operation

during a period of duress or danger (Shulhan Arukh Yoreh Deah 264.1).

The

treatment of girls, as far as the “covenant” is concerned, varies (S. J. Maslin, Gates of

Mitzvah, p. 15). Many congregations name girls in the synagogue at a Sabbath close to birth

when both parents can attend and participate in the service. This makes the event a happy

congregational celebration. The recently introduced ceremony of “covenant of life” should

probably also occur on the eighth day if we wish to indicate complete equality for girls. As no

medical impediments can arise, and as there is no need to return to a hospital, it is possible to

conduct this ceremony on the eighth day, but postponement for the sake of family convenience

is equally acceptable.

January 1978

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 253-254

CCAR RESPONSA

Contemporary American Reform Responsa

168. Jewish Bridesmaid at a Christian

Wedding

QUESTION: May a Jewish girl be a bridesmaid in a Christian

wedding ceremony which will be held in a Christian church? (Rabbi L. Winograd, McKeesport, PA)

ANSWER: This question involves our relationship with Christians and the

nature of the bridesmaids’ involvement in the wedding ceremony. Let us look at each of these matters separately.

In the Biblical and Talmudic periods, concern about relations with

idolaters was constantly voiced. The entire tractate Avodah Zarah deals with every conceivable association with pagans, including worship and business matters, as well as social contacts. Although these laws continue to appear in the later codes, they were hardly applicable to anyone by the Middle Ages, as both Christians and Muslims were considered as monotheists and in the category of gerei toshav (Menahem Meiri, Bet Habehira to Avodah Zarah 20a; Meir of Rothenburg, Responsa #386; Isaac of Dampierre, Tosfot to San. 63b; Bekh. 2b; Tur Yoreh Deah 148; Shulhan Arukh Yoreh Deah 148.12). Orthodox authorities as Emden, Bacharach and Ashkenazi, at the beginning of the modern era, also stressed a positive outlook toward non-Jews (A. Shohet, “The German Jew: His Integration Within the Non-Jewish Environment in the First Half of the Eighteenth Century,” Zion, Vol. 21, 1956, pp. 229 ff). The Reform Movement has continued this trend, and the responsa of our movement make this clear, as do numerous resolutions of the Central Conference of American Rabbis (Solomon B. Freehof, Reform Responsa and succeeding volumes; W. Jacob, American Reform Responsa).

This positive outlook toward Christianity

has not been shared by some scholars living in the Muslim world, so for example, Maimonides sometimes considered Christianity as a form of idol worship (Yad Hil. Avodat Kokhavim 9.4; Hil. Maakhalot Asurot), although he, too, had some positive thoughts about Christianity (Yad Hil. Melakhim 11.4). Of course Maimonides dealt with Christianity in the abstract in contrast to the other authorities who lived in a Christian world. On other occasions he felt that Christians or Muslims should be considered as gerei toshav. They would assist in the preparation for the Messianic era (Yad Hil. Melahim 8.11 and Hil. Teshuvah 3.5; Edut. 11.10; see also “A Rabbi at a Christian Ordination Service” for additional references).

In more recent times, some authorities have again viewed the trinitarian element of

Christianity as shituf in an effort to create a firmer distinction between Judaism and Christianity (David Hoffmann, Melamed Lehoil Yoreh Deah 2.148). Others have not felt threatened, so David Hoffmann’s Berlin colleague, Marcus Horovitz, who was equally Orthodox, did not follow this line of reasoning and considered Christianity as monotheistic (David Ellenson, Jewish Covenant and Christian Trinitarianism,” R. A. Brauner, Jewish Civilization: Essays and Studies,Volume III, pp. 86 ff).

Our general mood is to consider Christianity as

monotheistic. Although assimilation represents a danger for us, conversion to Christianity is extremely rare and presents no threat. We may, therefore, associate with Christians freely.

Let us turn to the second matter at issue. Is a bridesmaid in any way an active

participant in the worship element of a Christian service? Public participation in contrast to attendance in a specifically Christian service is prohibited. Acts like kneeling, bowing, etc. would be prohibited for Jews. Generally a bridesmaid simply stands in attendance and is, therefore, only in attendance but not a participant. She is singled out for this honor as a token of friendship. As long as she does not participate in any act of worship, her participation is permissible.

We can see, therefore, that as we consider Christianity as a monotheistic

religion, we can be present at a Christian service, although we may not participate in the acts of worship themselves. The young lady may attend as a bridesmaid but she may not kneel or do anything which may be considered as participation in a Christian worship service.

July 1986

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 124-126

CCAR RESPONSA

New American Reform Responsa

80. Berakhah LEeatalah

QUESTION: In a new service for the minor festival of Tu Beshvat, a number of blessings for trees, fruit and wine are repeated. Would such a repetition, intended both for children and adults, be considered berakhah levatalah, a blessing in vain? What is encompassed by that concept and what role does it play in tradition? (Rabbi Adam D. Fisher, Stony Brook NY)

ANSWER: The concept of not reciting a blessing in vain is intended to guard against the misuse of the divine name; this is one possible interpretation of the third commandment (Exodus 20.7; Ber 33a; Tur and Shulhan Arukh Orah Hayim 215.4), the third commandment encompasses other prohibitions as well, and tradition provided a large number of possible interpretations (W. Jacob, The Expression ‘To Take God’s Name in Vain’: A History of its Interpretation” Unpublished Prize Essay Hebrew Union College, 1953). Anyone who heard a blessing said in vain should not respond with “amen” (Tur and Shulhan Arukh Orah Hayim 215.4).

The definition of what is involved in a “vain blessing” is a little more difficult. It may consist of one of the following: The recital without the action connected with it, as not consuming the food or drink for which the prayer has been said (Tur Orah Hayim 213-215 and commentaries); the recital of blessings after they had already been spoken by someone else, the recital of erroneous blessings, the recital of proper blessings at an inappropriate time and the recital by inappropriate persons such as the priestly benediction by non-kohanim in a traditional setting.

There are, of course, numerous instances in which blessings are repeated intentionally as by the reader at a service. These were considered customary repetitions and were appropriate. The repetition of the qiddush in the Pesah Seder is considered appropriate before the meal. The blessing over bread is sufficient for any other food or drink which might be served during a meal. The only exception is wine which merits a special blessing at the beginning of the meal; that is sufficient for any number of cups of wine (Shulhan Arukh Orah Hayim 174.1; 177.1). When a blessing had been recited, the act for which it had been made should be executed whether it consists of eating, or anything else (Shulhan Arukh Orah Hayim 167.6; etc). When a number of different foods were consumed, then the most important food determined the blessing to be recited (Shulhan Arukh Orah Hayim 204.12).

When an individual recited a blessing or a set of blessings as a leader for others, as for example the qiddush or the birkhat hamazon, and someone present did not consider that individual fit to act in this leadership capacity, he could refuse to say “amen” or could repeat the blessing. In this way blessings have been used as a way of determining status.

The training of children was exempt from the prohibition against reciting blessings in vain. The normal designation for God could be used in those blessings – when they are taught although, some prefer to omit it (Tur and Shulhan Arukh Orah Hayim 215.3).

The complete terminology of blessing had to be erroneously used in order to consider it a “blessing in vain”. In other words if a blessing called for the statement “Lord, our God” and only “Lord” was used, it was not considered “a blessing spoken in vain” (Tur and Shulhan Arukh 206.6).

Some authorities felt that it is meritorious to add blessings and prayers to those normally recited. This was deemed necessary to fulfill the obligation of reciting one-hundred benedictions a day (Men 43a). This need was felt particularly on shabbat when the tefilah contains fewer benedictions and so the required number is not fulfilled. The blessing recited in connection with the “third meal” has been discussed in this context (Rosh Responsa Rosh 22.4; Tur and Shulhan Arukh Orah Hayim 291.3 and commentaries). Repetition is also an appropriate mechanism to involve individuals throughout the day (Ber 21a and Tos; Or Zarua II pp 91).

Now let us turn to your specific situation which not only celebrates a holiday, albeit a minor one, but also seeks to educate the entire family. It is appropriate to repeat benedictions for various trees and the blessing over wine before the meal. The ritual planned is akin to the Pesah Seder and will teach blessings now not frequently used. In general we need to be much more careful about the misuse of the divine name in other settings than in that of “benedictions spoken in vain.”

June 1988

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 309-310

CCAR RESPONSA

New American Reform Responsa

194. A Ceremony for Burial of Books

QUESTION: The congregation wishes to have a ceremony for the burial of old books and a worn Sefer Torah. What kind of ritual would be appropriate? Is there anything in tradition about the burial of these objects? (Morris Teitelman, Toronto Ontario)ANSWER: Traditionally a Torah or books which contain the name of God and were no longer fit for use were buried or set aside in a safe place (Rashi to Ket 19b; Shulhan Arukh Orah Hayim 154.5). Those sources indicated that they were frequently buried with a scholar. This was done in order to prevent the desecration or erasure of the name of God (Deut 12.3 Sifrei (ed Friedman p 87b; Sefer Hahinukh #437). In glancing through the literature I have not found any ceremony connected with the burial of books or their placement in a genizah. We may wish to stimulate reverence for sacred texts through such a ceremony. It might begin with an explanation of the nature of the sacred in Judaism and the special place which the Torah and Hebrew books have had for us. This could be accompanied by readings or some form of study, perhaps utilizing the texts now to be buried. We might conclude with the qaddish de rabanan normally recited at the conclusion of study. There are, of course, many other possibilities and the nature of the group with whom this is done should determine the form of the ceremony.July 1990

If needed, please consult Abbreviations used in CCAR Responsa.