Marriage

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.

TFN no.5754.9 225-229

TFN NO.5754.9 225-229

CCAR RESPONSA

Marriage and Financial Duress

5754.9

She’elah

A couple in my congregation met one another at a support group for those battling multiple sclerosis. They have had to postpone their decision to be married, based on some very serious medical and economic problems. If one of them becomes fully disabled, full-time nursing care in the home or in a nursing home would be required. The government would insist that the spouse pay for such care and the family would be driven to destitution. Therefore, they cannot share in a wedding ceremony. Does Jewish law offer any guidance to them? (Rabbi Martin S. Weiner, San Francisco)

Teshuvah

Our tradition has the greatest regard for marriage as an institution, an aspiration, and a natural state of existence. The rabbis praise marriage as a quintessential source of joy, blessing, and goodness whose value stands at the summit of Jewish religious obligations.¹ One is permitted to sell a Torah scroll in order to raise funds for only three purposes: to study Torah, to redeem captives, and to marry.² Marriage is thus equated with the study of Torah, which itself is equal to all the other mitzvot combined,³ and the redemption of captives, compared to which “there is no greater mitzvah.”⁴ In this day and age, when the promotion of Jewish marriage and family life is a communal priority of the highest order, it is most unfortunate when a couple is denied the opportunity of marriage for financial reasons. Such, we are told, is the case before us. What practical guidance does Jewish tradition offer to this couple who wish to live their lives together but, for clear and compelling reasons, fear economic ruin should they choose to stand under the chupah?

We begin by noting that Jewish tradition is sensitive to financial obstacles to marriage and has taken steps to help overcome them. As noted, it is permitted to sell a sefer Torah, a Jew’s most cherished possession, to acquire the funds needed to begin married life. Moreover, Jewish communities throughout history have sought to provide assistance to those who, for reasons of economic hardship, find it difficult to marry.⁵ This is the act of hakhnasat kalah, which our tradition classifies under the heading of gemilut chasadim, deeds of lovingkindness, itself a rabbinic mitzvah whose roots lie in the Biblical injunction to “love your neighbor as yourself.”⁶ Such aid is called the most sublime form of tzedakah.⁷ Thus, from a Jewish perspective the problems faced by this couple are not simply their own problems. Since tzedakah is not a voluntary act of alms-giving but rather an obligation which can be enforced on grounds of social justice,⁸ they have a legitimate claim to the assistance of the Jewish community. Helping this couple deal with their situation is emphatically a communal responsibility.

This, of course, is easier said than done. Communities face many different responsibilities. Like all public bodies, Jewish communal agencies must wrestle with severe budget restraints to provide for a host of religious, cultural, and social needs. They may decide that, given the many pressing demands upon their resources, they cannot grant the kind or amount of assistance that this couple seek. The general community, meanwhile, has determined that the primary financial responsibility for long-term nursing care must be borne by one’s spouse and family. We might protest this state of affairs and argue that the United States must enact reforms in its health-care system that would provide for this need. We may argue, too, that the Jewish community should reconsider its funding priorities and devote more of its substance to long- term nursing care.⁹ These policy arguments, however, do not solve the problem facing this couple, here and now. What counsel can we offer them?

We cannot recommend that they live together without benefit of marriage. Although this would afford them a semblance of marital life while allowing them to shelter their assets, cohabitation is not and cannot be a valid moral substitute for kiddushin, a marital union consecrated in a spirit of holiness and reverence, created out of “a willingness to enter wholeheartedly into a sacred covenant with another person.”¹⁰ We recognize that this couple, by entering into marriage, will subject themselves to a significant financial sacrifice imposed by the civil law. But the absence of this or that governmental or communal benefit does not offer a moral justification for an act that denies the sanctity of Jewish marriage.

Still, there may exist legal means by which this couple can marry and yet protect themselves financially. Such a means is precedented in Jewish law.

One of the monetary obligations owed by the husband to the wife is that of refu’ah, the duty to provide for her medical expenses.¹¹ Yet the very mishnah which specifies this requirement places an important limitation upon it: “The husband is entitled to say: `Here is her get and her ketubah; let her heal herself.’”¹² The husband, that is, may divorce his wife and thereby limit his liability for her medical bills to the total amount of her ketubah. This is a controversial device, to say the least. Some early decisors deny a husband the right to divorce his wife who is seriously ill.¹³ Others say he has that right but add that it is unethical for him to use it.¹⁴ Still others rule that although this right exists in theory it is no longer enforced.¹⁵ At any rate, the discussion shows that the rabbis were vitally concerned with the issue in our case: does marriage require a person to risk financial ruin to provide for the spouse’s medical expenses?

The Responsa Committee has dealt with a somewhat related issue.¹⁶ There, the wife of an Alzheimer’s patient asked whether she was entitled to divorce her husband in order to protect her assets and to keep from falling into poverty. Since we interpret Jewish marital law in an egalitarian manner, the Committee found the legal material in the preceding paragraph to be relevant to the wife as well as to the husband. It concluded that it would be immoral, a violation of the spirit of kiddushin for the wife to divorce her husband for this reason. It also noted, however, that Jewish law permits a spouse to gain financial independence by renouncing the reciprocal duties of the partner.¹⁷ In addition, the beit din is empowered to seize the husband’s estate in the event of his mental incapacity in order to provide for his wife’s support.¹⁸ As we understand this rule, it implies that whatever disabilities befall one partner in a marriage, that condition cannot deny the other partner’s inherent right of financial sustenance.

However, our case differs in a crucial respect. We are not talking about the divorce of an incapacitated spouse. The couple are not yet married; they can make legal arrangements to protect each one’s assets and financial independence on a mutual basis, before either has reached a critical medical stage. Thus, we find no ethical objection to the drafting of a prenuptial agreement to this effect, to the extent that such is permitted under civil law.

We hope that a solution will be found that will encourage this couple to “build a household in Israel,” affording them the fulfillment of the sacred union of marriage which our tradition calls kiddushin.

Notes

[1] BT Yebamot 62b-63a; Tur, EH 1.

[2] SA and Isserles, YD 270:1.

[3] BT Shabbat 127a; Yad, Hilkhot Talmud Torah 3:3.

[4] Yad, Hilkhot Matanot Aniyim 8:10; see BT Baba Batra 8a-b.

[5] See BT. Ketubot 67b and SA, YD 250:1-2.

[6] Lev. 19:18; Yad, Hilkhot Avel 14:1.

[7] R. Yosef Kolon (15th century), Resp. Maharik, shoresh 123; SA YD 249:15.

[8] BT Ketubot 49a and Baba Batra 8a; Yad, Hilkhot Matanot Aniyim 7:10; SA YD 248:1.

[9] The question of priorities in the distribution of community resources is a complex rubric in Jewish legal literature. This responsum is not the setting to analyze those texts, but it would certainly be appropriate for this Committee or other rabbinic bodies to discuss them as part of a more general consideration of issues of social welfare and economic justice.

[10] Gates of Mitzvah, p. 29; see also American Reform Responsa, # 133, pp. 406-410 and 154, pp. 480-483.

[11] M. Ketubot 4:9 (51a); Yad, Hilkhot Ishut 12:2. The requirement is derived from the obligation to provide food (mezonot); BT Ketubot 52b.

[12] M. Ketubot ad loc.

[13] This is the opinion of R. Avraham b. David, the Rabad, who bases it upon Sifre, Deut. 21:14 (ch. 214), which states that the Israelite soldier may not send away his female captive of war while she is seriously ill. If this limitation applies to the captive, Rabad reasons, then a man’s wife certainly enjoys the same protection. He restricts the mishnah’s rule to cases where the wife is not suffering from a serious illness. See Rashba, Ritva, and Meiri to BT Ket. 52b and R. Nissim to Alfasi, Ketubot, fol. 19a.

[14] Yad, Hilkhot Ishut 14:17 (Magid Mishneh ad loc.: it is “obvious” that for the husband to exercise this lawful power is a violation of derekh erets); SA, EH 79:3.

[15] R. Shelomo Luria, cited by Bayit Chadash to Tur, EH 79, fol. 102b, and Beit Shmuel to SA, EH 79, # 4. The argument is that should this power be recognized the husband would be able to violate the decree of Rabbeinu Gershom (10th-11th c.) forbidding him to divorce his wife without her consent.

[16] Contemporary American Reform Responsa, # 86.

[17] BT Ketubot 58b; Yad, Hilkhot Ishut 12:4. The wife renounces the right to sustenance (mezonot) from her husband and thereby receives full use of her income. Again, we would apply this formula regardless of gender.

[18] Yad, Hilkhot Ishut 12:17.

ARR 412

CCAR RESPONSA

American Reform Responsa

135. Marriages Between New Year and Atonement

(Vol. XXXII, 1922, p. 41)QUESTION: Is there any Jewish law or custom which would prohibit the celebration of marriages during the days between New Year’s Day and the Day of Atonement?ANSWER: There is no Jewish law to this effect, neither can any reference to such a custom be found in the Shulchan Aruch or in any of the older Rabbinic authorities. The first one, to my knowledge, who mentioned such a custom is Rabbi Ephraim. But this custom was not widespread, and it is not generally accepted. Even Rabbi Margalioth himself declares it permissible to celebrate marriages during these penitential days, if for some reason or other no other date for the wedding could conveniently be fixed by the parties contracting the marriage. Comp. also Sedeh Chemed II, Ma-arechet Chatan Vechala, no. 23.Jacob Z. Lauterbach

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 336-337

CCAR RESPONSA

New American Reform Responsa

211. Marriage Between Mehutamin

QUESTION: The father of the groom and mother of the bride who recently married in my congregation have been seeing each other on a social basis. May they marry? How does this effect the relationship of the children? (Rabbi Alan H. Greenbaum, Thousand Oaks CA)ANSWER: The forbidden degrees of marriage were listed in the Bible (Lev 20.11-21; Deut 23.3; 27.20-23). The Talmud extended these prohibitions either by direct extension or analogy. Sometimes it also did so in order to carry out the intent of the Biblical statement which may not have been clear (Yeb 21a; 49a; 62b; J Yeb 2.4). These forbidden degrees of relationships are further clarified in the later codes (Yad Hil Ishut 1.1 ff; Hil Issurei Biah 2.7 ff; Tur and Shulhan Arukh Even Haezer 15.1 ff; 2.1 ff). Marriages between prohibited degrees which took place despite the prohibition were considered invalid (en tofsin) and were dissolved through a divorce (Kid 67b; Yad Hil Ishut 4.12 f; Shulhan Arukh Even Haezer 15.1; 44.6 f). As one reads through the lengthy discussion of these marriages, the question which you asked has also been discussed. Such marriages were specifically mentioned by the Talmud and the later codes, and for that matter a marriage between children of a widower and a widow, who had married each other and thereby became step-brother and step-sister, was also permitted (Sota 43b; Shulhan Arukh Even Haezer 15.11). There was some discussion among Palestinian scholars as to whether such a marriage between step-brother and step-sister should be permitted as it might not appear proper, but the law agreed that it was permissible. It is clear from this Talmudic discussion that the marriage which the couple in question contemplate has always been considered appropriate and I hope that these individuals have a happy future together.February 1989

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 297-298

CCAR RESPONSA

Contemporary American Reform Responsa

201. Homosexual Marriage*

QUESTION:

May a rabbi officiate at the “marriage” of two homosexuals? (Rabbi L. Poller, Larchmont, NY)

ANSWER: The attitude of our tradition and of Reform Judaism toward homosexuals is clear. For a full discussion, see the responsa by S. B. Freehof and W. Jacob (American Reform Responsa, # 13, 14). The resolution of the Central Conference of American Rabbis on homosexuality deals exclusively with the civil rights and civil liberties of homosexuals and seeks to protect them from discrimination. It does not, however, understand it to be an alternative lifestyle which is religiously condoned.

Judaism places great emphasis on family, children and the future, which is assured by a family. However we may understand homosexuality, whether as an illness, as a genetically based dysfunction or as a sexual preference and lifestyle -we cannot accommodate the relationship of two homosexuals as a “marriage” within the context of Judaism, for none of the elements of qiddushin (sanctification) normally associated with marriage can be invoked for this relationship.

A rabbi can not, therefore, participate in the “marriage” of two homosexuals.

October 1985

Please note: This responsa has been invalidated by CCAR’s Resolution on Gay and Lesbian Marriage from 1996, and this Responsa on Same-Sex Marriage as Kiddushin from 2014. This responsa remains available here for the purpose of historical reference, but is no longer representative of today’s CCAR and the Reform Movement.

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5750.1 103-110

CCAR RESPONSA

Testing for HIV

5750.1

She’elah

I have been informed that the Syrian-Sephardi Rabbinical Association of Brooklyn passed a resolution that they will not officiate at any marriage until they have received documentation attesting to the fact that both parties have undergone testing for the human immunodeficiency virus (HIV). Should Reform rabbis make the same requirement? There seems to be a parallel to the resolution we passed on Tay-Sachs disease. (Rabbi Alexander M. Schindler, UAHC, New York)

Teshuvah

I. HALAKHIC PRECEDENTS

The primary role of someone officiating at a marriage (m’sadder kiddushin, usually a rabbi[1]) is to make sure that a valid marriage is being entered into.

Circumstances may arise under which the rabbi would refuse to officiate. A well-known example is that of an inebriated groom who is unable to enter into a legal obligation. In such an instance the rabbi’s judgment not to proceed with the ceremony is not contested.[2] Since there is halakhic precedent for rabbinic refusal under certain circumstances, we must now ask whether the unwillingness of the couple or one of the partners to be tested for HIV would constitute a cogent reason for the rabbi’s unwillingness to officiate.

1. The rule that he/she would likely invoke is that of pikku’ach nefesh, the protection of life. Our tradition is firm in holding that, when pikku’ach nefesh is at stake, all mitzvot may be disregarded save bloodshed, idolatry and sexual transgressions (gilluy arayot).[3] One who is too concerned with halakhic propriety when life is endangered is regarded as a shedder of blood.[4]

The officiating rabbi has also another (though implied) role, namely, to prevent a transgression from being committed. In the case of HIV and the possibility that it will develop into the acquired immune deficiency syndrome (AIDS), a disease for which there is presently no cure, the command that stands in danger of being violated would be “Do not stand idly by the blood of your neighbor.”[5] R. Jacob Breisch derives from this Torah proscription a specific instruction to physicians to inform the healthy party to a prospective marriage that the other partner is afflicted by a dangerous disease.[6] In instances of this kind the person carrying it might be considered a rodef (literally “pursuer”[7]) who, albeit unintentionally, threatens the life of an innocent person.[8]

Can R. Breisch’s reasoning guide us in the question before us? Would the rabbi, like the doctor, be considered guilty of standing idly by the blood of the couple, should it turn out that indeed one of them is infected with HIV?

We believe that the precedent to which R. Breisch addressed himself is not operative here. The physician has actual knowledge of the presence of a dangerous disease and therefore is required to disclose that fact, while the rabbi has no knowledge of the couple’s personal exposure and knows only that many people in society carry the virus. There is a gulf between knowledge of the actual and fear of the potential.

It is worth noting, however, that the mere potential of a life-threatening situation was dealt with by the Hatam Sofer (Rabbi Moses Schreiber/Sofer) some 150 years ago. There was a severe outbreak of cholera in Europe, and physicians had warned that fasting on Yom Kippur might make people more susceptible to the disease. In view of this medical judgment the rabbi, who was Europe’s leading halakhist, permitted the consumption of food in quantities sufficient to prevent Jews from being overly weakened. Even though the violation of a direct prohibition was at issue, R. Sofer’s permission (hetteir) functioned as a prophylactic, to prevent people from becoming ill.[9] But not all authorities agreed, and some urged their congregants to observe the fast if at all possible. Still others promoted the idea of shortening the services.[10]

As in R. Breisch’s ruling, we feel that the precedent of the Hatam Sofer (if we were to agree with him) is not applicable to our case. For his hetteir was advisory and not compelling. People were free to disregard it.

More recently, this question, with specific reference to AIDS, was addressed by Rabbi Shelomo Dichovsky, a rabbinical court judge in Israel.[11] He asserts that, while the community is entitled to issue rulings (takkanot) in order to protect itself from various dangers, he would agree to particular measures for at-risk persons (kevutzot sikkun). He does not suggest that the general population be required to undergo testing.

In sum, we have not found the kind of precedent that would speak unequivocally to the she’elah before us. But before we go further it is well to look at an entirely different aspect, which is the right to privacy.

2. Actually, while it is not proper to speak of “rights” under Jewish law, there are numerous instances when it treats of obligations which in other legal systems might be termed “rights.” Thus, a home owner may take action to protect his household against the prying eyes of neighbors;[12] or we may note the Torah’s prohibition of gossip (r’khilut).[13] Tradition goes so far as to proclaim that someone who shames another in public has no place in the world to come.[14] R. Eliezer Waldenberg has applied the issue of halbanat panim (making someone blanch with embarrassment) to a medical situation and ruled that, while a physician may ordinarily bring medical students to a patient’s bed, this should not be done when it causes halbanat panim.[15]

Thus, while the right to privacy as such has no direct precedent in Jewish law, its objective – to safeguard the dignity of the individual – clearly has. In the case of AIDS, an illness surrounded by popular superstitions and anxieties, the possibility of having test results revealed (to public bodies or others) poses a definite threat to privacy and arouses fears of unwarranted disclosure and slander.

In sum, for reasons set out above in (1) and (2), halakhic precedents would lead us to view compulsory testing with caution.

II. FURTHER CONSIDERATIONS

What other consideration might then be brought to bear on the issue, and further, what additional guidelines might we obtain from precedents in the literature of the Reform movement?

1. The first that comes to mind is a resolution of the Central Conference of American Rabbis (CCAR) which, in l975, called on its members “to urge those couples seeking their officiating at marriage ceremonies to undergo screening for Tay-Sachs and other genetic diseases which afflict Jews to a significant degree.”[16] That resolution, however, is not fully applicable to our case. For one, Tay-Sachs is a disease which afflicts Ashkenazic Jews in significant proportions, while HIV/AIDS have no such specific identification with Jews. Secondly, the rabbis were called upon to urge, but not require, couples to undergo testing. Hence, we cannot take this resolution to guide us in our answer.

2. Various jurisdictions have instituted certain pre-marriage requirements (e.g., Wassermann tests), and rabbis in such states have an obligation to await the issuance of a license before they officiate. In Illinois, beginning January 1, l988, all marriage applicants have been required by law to prove that they have been tested for the presence of HIV antibodies, and that the test results have been communicated to a government health agency as well as to both parties in the proposed marriage. But that law is operative only in Illinois, and since we have been asked whether rabbis should undertake a similar program for their people, we should look at the results of the Illinois statute.

In the year since the law was instituted, only 26 people out of 155,458 marriage license applicants were found to test positive. Either the incidence of HIV is very low in the state or, more likely, the figures are skewed, in that they do not take into account those prospective marriage partners who did not want to be tested and therefore went outside the state for their marriage. Under the circumstances, C. Kelly, a member of the Illinois Department of Public Health, judged the whole procedure not to be cost- effective.[17]

In the question before us, the Illinois experience would lead us to conclude,

a. that if we were to require marriage applicants to be tested for HIV, those who believe themselves at risk would search out another rabbi or functionary who does not make such a requirement;

b. that we, as rabbis, have little reason to believe that, were we to require tests, we would be more effective than the state of Illinois. 3. Since the rabbi would request only that tests be taken, not that their results be revealed to him/her,[18] the couple’s privacy may not at first sight appear to have been invaded. Yet a closer look at the interplay of private concerns and public policy does give us second thoughts.

In many places the process of HIV testing itself has serious social consequences. For instance, physicians or institutions that do the testing may be obligated to register any positive finding with a government health agency, as is the case in Illinois. In our present climate of gross and unwarranted discrimination even against persons suspected of infection, the very process of testing is laden with the danger of divulging private a danger which is enhanced by the potential accessibility of our electronic storage systems as well as by the still error-prone testing for the there being both “false negative” and “false positive” results. For these reasons many persons who fear that they might have the HIV hesitate to submit themselves to testing.

Despite the fact that California provides the strongest protection for the preservation of confidentiality, an examination of pre-1989 legal cases indicates a serious erosion of medical privacy for HIV infected persons.[19] A rabbinic either/or requirement might therefore lead the couple to do something that will indeed expose them to social and psychological injury and make the rabbi an unwitting party thereto.

4. In the presence of HIV/AIDS we are faced with deep “social fears,” and therefore protection of the dignity of the individual must be a paramount concern.[20] This is a matter to which the CCAR has addressed itself repeatedly. In 1954 it said: “No free society can long survive if its citizens are encouraged or permitted to inform indiscriminately on one another.”[21] While that resolution spoke to the concerns of the McCarthy era in the U.S., its message remains valid even when the informing arises from medical reports. In l955 the CCAR further stated: “The pivotal problem which confronts us today remains that of the proper balance between individual freedom and national security. Our Conference has spoken in clear and forthright terms on the subject.”[22] To be sure, HIV is different from the concern for national security referred to in the resolution, but the whole fabric of protection for the individual is affected when a portion of the citizenry is unduly exposed to state interference. Both in the l950s and l990s the individual must remain on guard against the incursion of the collective, and the rabbi should not by his/her actions diminish the protected realm of those who wish to arrange for their marriage.

5. But should we not consider the spread of AIDS a veritable plague which would sweep aside these considerations? To put it differently, does the interest of the community not require us to override our obligations to the couple and their right to privacy?

While, with regards to the spread of AIDS, the term epidemic is frequently used, it does not describe an illness against which the population cannot protect itself adequately. Rather, there are high- risk groups which are indeed gravely exposed and require urgent attention, but the majority of the population continues to experience low-prevalence exposure.[23]

6. We frequently deal with couples who are already living together and are now contemplating marriage because they wish to have children. Our responsibility should therefore be to help safeguard the health of such future offspring, and we should warn the couple that, since HIV is transmissible in utero, testing prior to marriage is highly advisable.

7. The question may also be asked whether Reform rabbis, who do not function in a judicial capacity, would go beyond their duties when they decide that the particular couple is not fit to be married. This kind of judgment is in any case highly problematic and should not be exercised unless very particular circumstances obtain.

8. Finally, we should also note the special characteristics of Syrian-Sephardi communities, such as the one referred to in the she’elah. They are tightly knit, family-like groups with strong internal controls, which observe, for instance, a stringent ban against conversions for the sake of marriage.[24] We lack that kind of disciplinary control, even if we were to contemplate exercising it.

III. CONCLUSION

While halakhic precedents are inconclusive or cautionary regarding a rabbinic requirement to undergo pre-marital testing, other considerations would lead us to counsel against such procedure.

Though we have every regard for the seriousness of AIDS and are committed to extending our compassionate care to those afflicted by it, we cannot state that its spread is of pandemic proportions, nor do the results of compulsory testing in Illinois convince us that rabbinic action would be successful and wise.

Advising couples about testing is one thing and is encouraged; requiring them to undergo it is not, at least at this time. Should conditions change we would be open to reconsider our position.

(Editors’ note: The above responsum was written in the winter of 5750/1989-90, and the best data then available led us to our conclusion. Since then, the disease has taken on epidemic dimensions in certain parts of Africa, while in North America and other Western nations it remains confined to high-risk portions of the population. A review of up-to-date literature led Prof. Joseph Adelson of the University of Michigan to state in 1995 that AIDS will not touch most heterosexuals.[25])

Notes

[1] The emergence of the rabbi as the primary m’sadder kiddushin has been set forth in a teshuvah written by R. Solomon B. Freehof and issued for the CCAR Responsa Committee; see CCAR Yearbook, LXV (1955), pp.85-88.

[2] P’ri M’gadim, Orach Hayyim 573, Mishbetzet Hazahav, n. 11 (refusal because of inebriation); Resp. Minchat Yitzhak, I 10 (refusal to officiate for an apostate); Resp. HaRambam, Blau, n. 347 (refusal until groom, who is not known in the community, proves he is unmarried or divorces his present wife). We might here also mention M. Ketubot 7:10, which states that men with certain skin diseases are compelled to divorce their wives. The Mishnah speaks of sh’hin, which is variously understood as a skin disease in general, or leprosy, or boils. It is also identified as the holi tsarfati, or syphilis; see Be’er Hetev to Sh.A., Even Ha-Ezer 154. The mishnaic obligation to divorce would appear to apply to a man having AIDS and thereby give the rabbi (who knows at the time of marriage of the presence of the disease) reason to refuse officiating.

[3] B.T., Yoma 85b; Sanhedrin 74a; Rambam, Yad , Yesodey HaTorah 5; S.A., Yoreh De’ah 157.

[4] Sh. A., Orach Hayyim 328:2.

[5] Leviticus 19:16.

[6] Resp. Helkat Ya’akov, 3:136, on the basis of his reading of Rambam’s Hil. Rotze’ach 1:14.

[7] The halakhah has made this term a legal concept , and someone so designated may be killed before he/she can kill. (In 1995 the designation by some rabbis of Yitzhak Rabin as a rodef became the subject of widespread controversy after the Prime Minister was assassinated. It was believed that this designation moved the killer to commit the deed (ed. note).

[8] See Bi’ur HaG’ra on Shulhan Arukh, Hoshen Mishpat 425, n. 11.

[9] Resp. Hatam Sofer 6, n. 23.

[10] See Matteh Efrayim, ch. 618, Elef Ha-Magen.

[11] Asya (published by the Falk Schlesinger Institute at the Shaare Zedek Medical Center in Jerusalem), January 1989, pp. 28-32.

[12] Hezek re’iyah is treated in M. Bava Batra 3:7; Rambam, Hilkhot Sh’khenim 5; Sh.A., Hoshen Mishpat 154.

[13] Lev. 19:16; the Rambam lists three types in an ascending order of severity, the worst offense being the spreading of news which, though true, is damaging to someone else’s reputation (Hilkhot De’ot 7:2).

[14] B. Bava Metsi’a 59a; Rambam, Hil. De’ot 6:8.

[15] Resp. Tsits Eliezer, vol.13, n. 81, sec. 2.

[16] CCAR Yearbook LXXXV (1975) 79.

[17] Fifth International Conference on AIDS, Abstracts, Montreal, June l989, p.68.

[18] We have not been asked what consequences might ensue for the rabbi should a positive test result come to his/her attention. This would raise additional halakhic as well as general legal questions. A responsum on aspects of this issue was published by Walter Jacob, Contemporary American Reform Responsa, n. 5, “Confidential Information.”

[19] Abstracts, see above, note 17, p.945; report by Clint Hockenberry, AIDS Legal Referral Panel, San Francisco.

[20] Ibid., p.967; lecture by C. Aredondo, Spanish Ministry of Health.

[21] CCAR Yearbook, LXIV (1954), p.54.

[22] Ibid., LXV (1955), p.65.

[23] Ida Onorato, Centers for Disease Control Atlanta, Abstracts, op. cit., p.78. See further Population Reports, published by the Population Information Program of Johns Hopkins University, Series L (Sept. 1989), especially p.4. The report covers North America as well as other areas. A survey of HIV prevalence on university campuses in the U.S. produced a rate of 0.2% (Helene Gayle, Centers for Disease Control; Abstracts, op. cit., p.79). Even among homosexuals and bisexuals reported AIDS cases are leveling in selected metropolitan areas, including New York, Los Angeles and San Francisco (Ruth Berkelman, Centers for Disease Control, ibid., p.66). AIDS researcher Dr. Catherine Hankins reported that in Montreal about one in every 400 women giving birth is HIV infected. “The rates are higher than we predicted and they reflect the increasing role that heterosexual transmission of HIV is playing in Quebec” (Globe and Mail, Toronto, Nov. 17, l989). The infection rate quoted, though higher than that reported in San Francisco, is still only 0.25%, which can hardly be termed epidemic. See also the latest report of the (U.S.) Federal Centers for Disease Control, reported in The New York Times, January 4, 1990.

[24] See Moshe Zemer, “The Rabbinic Ban on Conversions in Argentina,” Judaism, Winter 1988, pp. 84-96.

[25] Commentary, July 1995, pp. 26-30. He bases himself primarily on E. O. Laumann a.o., The Social Organization of Sexuality: Sexual Practices in the United States, University of Chicago Press, 1994.

TFN no.5750.8 191-196

CCAR RESPONSA

Conversion and Marriage after Transsexual Surgery

5750.8

She’elah

An applicant for conversion, X, received extensive therapy at a recognized psychiatric institution which offers a sex-change psycho-therapy program. Subsequently he underwent surgery; his male genitalia were removed and a cosmetic vagina was constructed. However, this having taken place he had a change of heart and no longer desired to be a woman. Since he had never declared himself publicly or legally as a woman, he continued his status as a man and was later married in a civil ceremony to his fiancie, a Jewish woman who is satisfied to live with him permanently, despite his mutilated condition. She supports his desire to become a Jew. The couple have been attending Shabbat services regularly. (Rabbi’s name withheld, in order to prevent identification of X.)

Two questions:

1. Should we admit the 29-year old person to the Jewish information course established jointly by the Reform congregations in our city, holding out the likelihood that in the end there would be religious conversion?

2. If X is converted, should the rabbi sanctify the civil marriage through a religious ceremony (kiddushin) ?

Teshuvah

TRADITIONAL COMSIDERATIONS

The question of conversion. Deut. 23:2 states: “No one whose testes are crushed or whose member is cut off shall be admitted into the Congregation of the Lord.” This would appear to exclude X. from membership in the Jewish people, but already Isaiah (56:3 ff.) mitigated the application of this rule when he spoke of God having special regard for the eunuchs. Subsequently, rabbinic tradition understood the intent of “No one whose testes are crushed…” to be that such a man should not marry an Israelite woman, while his status as a Jew was not affected.¹

There is therefore no objection in principle to the conversion of a person whose genitalia are mutilated or missing altogether, even when he is a seris adam, one whose mutilation was effected by human hand and not by birth or illness (seris chammah ). In these cases, immersion alone suffices for giyur, religious conversion.² We see no reason to depart from this view and therefore hold that X’s desire to become a convert has to be treated on its own merits.

The question then arises whether X, with his history of identity problems, is qualified as a prospective convert. Should we not have some concern about the mental stability of a person who, having undergone this radical and irreversible operation, now desires to be a man after all?

The Rambam deals with a convert who had been admitted without proper examination or instruction in the mitzvot.³ But since the error has been made, he says, his conversion is deemed valid ex post facto(be-di’avad) fully established. Once conversion has taken place the presumption is in favor of the convert.⁴ But before the event lekhatchilah) it is different, for the fitness of the prospective convert should be most carefully considered.

Rabbi Walter Jacob issued a teshuvah on the question how the mental competency of a convert might be assessed, and cautioned that “we cannot accept individuals who do not meet these prerequisites [of mental competency].”⁵

In the case before us, when could it be said that X has shown that his intention to become a Jew is firm and not likely subject to reversal? As a minimum we suggest a cautionary waiting period, like the traditional cycle of three Pilgrim Festivals (which waiting period applies in other cases⁶). Since the conversion program in X’s city lasts for eight months, let him enter the course but let him also be informed that, upon conclusion of the program, there would be a further time span, say a year, after which the rabbinic gremium would rule on his admissibility to conversion.

(While this is the majority opinion of the Responsa Committee, some members disagree and would not admit X to the program at all. They would consider X as a person who has already shown his instability in a matter which fundamentally affects his physical identity. They would not wish conversion to be another stage of the person’s psychiatric meandering. The majority, as indicated, would leave the matter to the discretion of the beit din.)

2. Should the rabbi officiate at X’s marriage? The question of admissibility to religious marriage is different from that of admissibility to conversion. In the latter, it is not necessary to deal with a presumption of X’s maleness (chezqat zakhar ), because in the Reform context which treats men and women as religious equals we convert X as a human being and not as either a male or a female. But in marriage differential gender has been the precondition.

First of all, let us briefly look at the admissibility of sex change altogether. Since the Halakhah regards the mitzvah of procreation as a chief purpose of marriage , the Rabbis forbade the removal of male genitalia in the hermaphrodite (androginos), the person who possesses both male and female genitalia.⁷ Even more so would they forbid the removal of genitalia from an otherwise normally formed man who wishes to be a woman.⁸

Exceptions were made only occasionally. Thus, Rabbi Eliezer Waldenberg permitted transsexual surgery (from male to female) in the borderline case of an infant whose external genitalia were those of a female, though chromosome analysis and the presence of a testicle showed that the gender might be male.⁹ According to Rabbi Waldenberg, the general rule is that the “visible, external organs” determine sexual identity, and in the case of X he would therefore not have allowed the surgery.

The issue before us is, however, not the permissibility of the surgery but rather, since it has already taken place, whether kiddushin, religiously sanctioned union, may now be celebrated. There is a good deal of halakhic discussion of the question whether the marriage of a transsexual is still a marriage and if it is religious divorce (gittin) is necessary or redundant. When the operation has already taken place, most follow Rabbenu Asher who says that a man whose genitalia have been removed is no longer able to contract a valid even though his sexual identity may not be affected and he is still considered a man.¹⁰ The prohibition of the law in Deut. 23:2, as interpreted by Tradition, is deemed decisive.

REFORM PERSPECTIVES

Are there reasons why Reform Judaism might reach a different conclusion? There might be, for it would likely view the biblical passage differently. It would see it as a time-bound response to a particular situation, namely the use of castrated men (sarisim ) in society, and this original purpose of the law has fallen away.¹¹

In addition, Reform also would accept the findings of modern science, which holds that external genitalia may not reflect the true identity of the individual. Thus, analysts have distinguished five categories which can be said to identify biological sex. They are: chromosomal configuration; gonadal sex (presence of ovaries or testes); sex-based hormones (androgen or estrogen dominance); internal reproductive structure; and external genitalia.¹² Rabbi Solomon B. Freehof was therefore ambivalent and suggested that the rabbi be guided by the attitude of the community: if the state issues a license to a transsexual it may be assumed that his/her change has the recognition of the law and therefore kiddushin may take place.¹³ Subsequently, a CCAR Responsa Committee which dealt with the matter in some detail also allowed sex change as a permissible procedure and did not object to kiddushin.¹⁴

Despite these precedents in our movement, we remain troubled about the matter. The questioner notes that X received the best available scientific and psychological advice before his transsexual surgery was effected. Should we therefore not assume that medical evidence showed X to possess a sufficient measure of the aforementioned female characteristics? In some institutions which deal with persons like him there is a period during which the patient receives hormonal treatment and lives for a while as a woman. Only when the results of this trial period are conclusive is the surgery performed. Was this done in X’s case and was his preference for femaleness physiologically founded? The answer is not available to us and may not be available to the rabbi either. Still, we have to believe that no reputable institution would have proceeded with the surgery had there not been sufficient indications that strong female characteristics were in evidence. We would therefore consider the presumption of X’s maleness to have been seriously weakened, and X to fall into the category of safek zakhar, safek nekevah, meaning that his/her sexual identity is in doubt.¹⁵ We would therefore advise the rabbi not to proceed with kiddushinin case X is converted to Judaism.

Of course, for those Reform rabbis who sanctify same-sex marriages, this part of our discussion is irrelevant. They will say: Here are two individuals who care for each other and who want a ceremony that recognizes their intent as holy. However, while individual rabbis have taken this position, the Reform movement as represented by the CCAR has refused to do so.

In any case, even though no religious wedding will be performed, we assume that X will be treated with all the compassion and concern which such a tormented individual desperately requires.

Notes

See Rashi and Ibn Ezra on Deut. 23:2 . The prohibition against Ammonites and Moabites was applied only to men, while their women (like Ruth) were allowed to marry Israelite men. The matter is discussed in M. Yev. 8:2, and BT Yev. 76a and following. Rosh, Yevamot 4:13; Shulchan Arukh, Yoreh De’ah 268:1. Yad, Issurei Bi’ah 13:17. The Mishnah (Git. 3:3) speaks of a man who desires to divorce his wife but, being old or ill, sends a messenger to represent him. The man is presumed alive at the time of gittin until the opposite is established (bechezkat she-hu’kayyam ). The same principle applies to an animal to be slaughtered. While alive it has the status of a forbidden object, for an ever min ha-chay may not be eaten; but once slaughtered, the presumption is that the shechitah was kosher until the opposite is established (harei hee bechezkat hetteir ; Hul. 9a). American Reform Responsa, ed. Walter Jacob (New York: CCAR, 1983), # 67. The Rambam left the decision to the presiding judge; Yad, Hilch.’Edut 9:9, and Hilch. Sanh. 2:1. Such as the establishment of ownership of a lost object; see the Maggid Mishneh on the Yad , Issurei Bi’ah 13:17, who finds the case a confirmation of the uncomplimentary saying that “Converts are for Israel like a rash” (safchat , Lev. 13:2). See also M. B.M. 2:6 and commentaries. Based on Lev. 22:24; B. Shabbat 110b; Rambam. ibid. 16:10. See further the study by Moshe Steinberg in ‘Assiya, vol. 1, pp. 142-145, and R. Gedaliah Felder’s discussion of the way an androginos and tumtum are to be converted (She’elat Yeshurun, no. 23), both with extensive notes and a listing of the traditional decisors. See Rabbi J. David Bleich, “Transsexual Surgery,” in Fred Rosner and J. David Bleich, Jewish Bioethics (New York: Hebrew Publishing Company, 1983), p. 191, citing Lev. 22:24. Rabbi Solomon Freehof also says: “There seems to be no way in which Jewish tradition can permit it” [i.e., transsexual surgery, if people are born with normal genitalia]; see Modern Reform Responsa (Hebrew Union College Press, 1971), no 22. Tzitz Eliezer, vol. 2, no. 78. So Besamim Rosh, no. 340. (The work is ascribed to R. Asher ben Yechiel, known as the Rosh, but was probably not authored by him.) This opinion is supported by Yalkut Me’am lo’ez, Devarim 866. See John Money et al. in Bulletin of the Johns Hopkins Hospital 97 (1955), pp. 284- 300; and the article “Sexual Identity” in the Encyclopedia of Bioethics, vol. 3. Reform Responsa for Our Time (Hebrew Union College Press, 1977), no. 42. See American Reform Responsa, # 137, and Contemporary American Reform Responsa, # 199, both with extensive citations of source materials. That uncertainty is repeatedly treated in the tradition; see She’elat Yeshurun, l.c.

If needed, please consult Abbreviations used in CCAR Responsa.