Not Yet in Print (responsa published by the Responsa Committee, but not yet in bound collections)

NYP no. 5756.5

CCAR RESPONSA

Disinterment From A Jewish To A Nondenominational Cemetery

5756.5

She’elah

A man was recently buried in the synagogue cemetery. His son, a member of the congregation, now wishes to exhume his father’s body and to rebury it in a small, nondenominational cemetery that is closer to his home. The son is dissatisfied with the synagogue cemetery on grounds of distance (he claims it is too far from his home) and “aesthetics” (not explained). For these reasons, he says that it is “not meaningful” for him to have his father buried there. He believes that were the body to be buried in the smaller, non-denominational cemetery closer to his home, he could render more “honor” to his father. I have raised objections to the disinterment. The son, for his part, has mentioned the possibility of legal action to force the congregation to accede to his wishes. Should we continue to deny the disinterment of his father? (Rabbi Irwin Zeplowitz, Hamilton, Ontario)

Teshuvah

The Reform Movement has published two teshuvot that deal directly with this question.[1] In brief, Jewish tradition prohibits disinterment with a few important exceptions. It has always been permitted to disinter from a grave site in the diaspora in order to reinter in the Land of Israel. It has been permissible to disinter when the grave site is threatened by vandals or nature, and permission has been granted to disinter in order to rebury in a family plot.[2] The decision to disinter must be guided by three primary principles. There are prohibitions against actions that would bring scorn or shame upon the dead (bizayon hamet). We are commanded to protect the honor of the dead (kevod hamet). And we are commanded to find ways to insure the comfort of the mourner (nichum aveilim). As we will see, these principles sometimes come into conflict. For instance, obviously, one would be showing more honor for the dead (kevod hamet) if the deceased were buried in a dignified grave site as opposed to a disgraceful grave site. And yet, Rambam wrote that disinterment is prohibited even from a pitiful grave site to one of honor. His concern was that exposing the decomposing body is a greater shame than being buried in an “unaesthetic” plot. But then again, both Rambam and Karo maintained that disinterment is permitted in order to rebury a person’s remains in a family plot, even if the actual grave site in the family plot is noticeably poorer than the original site. In our case, the overlapping principles become even more entangled. If the son intends to create a “family plot” at another cemetery, his intention would seemingly trigger one of the exceptions to the prohibition against disinterment. Thus, the son’s attempt to “render more honor” (kevod hamet) for his father would seem to override the concern for disgracing the dead (bizayon hamet) by means of the disinterment. In addition, one might argue that the Jewish community should be responsive to the son’s request because the son is one of the primary mourners and it is a mitzvah to comfort him (nichum aveilim). But the Jewish community also has a responsibility to protect the honor of the dead. A sacred trust is made when a Jew arranges to be buried in a Jewish community’s cemetery. The Jew has a right to believe that the community will care for the grave site and preserve the Jewish sanctity and identity of the cemetery. Therefore, the community, by virtue of its position as guarantor of the sacred trust, has a right to object to any attempt to disinter when such an attempt is deemed to violate that trust or is contrary to Jewish tradition. From the communal point of view, disinterment from a Jewish for reburial in a nondenominational cemetery is objectionable. It goes without saying that it is preferable for a Jew to be buried in a Jewish cemetery. The first major action of a new Jewish community has usually been to secure a dignified and exclusive place for us to bury our dead. Historically, land has been purchased for a Jewish cemetery before a synagogue or school is built. There are, however, circumstances that may prevent Jews from being buried in a Jewish cemetery. For example, in times of war Jews have been buried, with the consent and approval of the Jewish community, in “general” cemeteries. Jews in small towns where purchasing a Jewish cemetery is not practical have had to turn to the “general” or nondenominational cemetery. Rabbi Walter Jacob wrote a teshuvah on this subject and concluded that burial in a “general cemetery” is permissible, but encouraged finding a way to designate, within that “general cemetery,” a section that clearly marked it as a Jewish burial ground.[3] But in our case, in which there is no circumstance of emergency and there is obviously no shortage of Jewish burial grounds, the rabbi has done well to voice his objection to disinterment. We agree: the son should not disturb the remains of his father to reinter those remains in a nondenominational cemetery. We recognize, of course, that the threat of legal action requires that the rabbi with prudence, discretion, and good judgment. At times, such judgment requires that the standards of Jewish practice be relaxed so as to preserve communal peace (mipney darkhey shalom; see M. Gitin 5:8-9). The rabbi’s primary duty, however, is to teach and expound those standards to the community. The rabbi has done this well thus far, and we are confident that he will continue to do so. NOTES 1. These teshuvot were written by Rabbi Walter Jacob and published by the C.C.A.R. in Contemporary American Reform Responsa, nos. 110 and 111. 2. Rambam (MT, Hilkhot Avel, 14.15) followed the Yerushalmi in permitting disinterment in order to rebury in an ancestral plot. Yosef Karo (Shulchan Arukh, Yoreh Deah, 363.1) combined the exception given by Rambam with two more from Ramban concerning reburial in HaAretz and reburial to avoid danger to the grave site. 3. Contemporary American Reform Responsa, #105.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5758.14

CCAR RESPONSA

5758.14

May a Jew Married to a Gentile Serve as a Religious School Teacher?

She’elah

A Jewish woman, who is married to a Christian man, has applied for a teaching position in our religious school. Should our synagogue even consider her (or anyone in a mixed marriage) as an eligible candidate to teach our children Judaism? (Rabbi Seymour Prystowsky, Lafayette Hill, PA)

Teshuvah

The Central Conference of American Rabbis (CCAR) discourages mixed marriage.[1] We have written that “Judaism resists mixed marriage because it weakens the fabric of family relationship and the survival potential of the Jewish community,” and because it is more difficult for a religiously-mixed couple than for a Jewish couple to establish a truly Jewish home, one dedicated to the religious values of our people and our tradition.[2] A marriage between a Jew and a non-Jew is not a Jewish marriage; it is not defined in our practice as kiddushin, as marriage contracted “according to the law of Moses and Israel” (kedat moshe veyisrael). For this reason, most rabbis will not officiate at a wedding ceremony of a Jew and a non-Jew. The CCAR has long been on record as opposing rabbinic officiation. In its most recent statement (1973), the Conference declared “its opposition to participation by its members in any ceremony which solemnizes a mixed marriage.” It is true, of course, that a number of Reform rabbis do officiate under certain circumstances and conditions at mixed marriages; thus, the 1973 resolution recognizes “that historically its members have held and continue to hold divergent interpretations of Jewish tradition.”[3] Yet this does not alter the fundamental position of the Conference, one that is shared by all of our members, that the best and most desired marital choice for a Jew is Jewish marriage, a commitment made with one’s Jewish spouse to build a Jewish home and family.

Given this emphasis, it might be thought that a Reform synagogue should not consider engaging a Jew married to a Gentile as a religious school teacher. A teacher of Torah, after all, ought to be a positive role model for our children, one who embodies the Jewish values we wish to inculcate in them, who has made the sorts of Jewish choices that we hope they will make for themselves. As we care deeply about the marriage choices our children will someday make, we might argue that you should not engage this person as a teacher, lest in doing so you signal wrongly to your students that we are somehow indifferent to mixed marriage.

Yet we would caution, for several reasons, against drawing that conclusion. First, we should remember that our response to the phenomenon of mixed marriage is and ought to be one of loving outreach to the couple. The 1973 resolution mentioned above calls upon us “to keep open every channel in Judaism and Kelal Yisrael for those who have already entered into mixed marriage.” This involves educating the children of these couples as Jews; providing “the opportunity for conversion of the non-Jewish spouse”; and encouraging “a creative and consistent cultivation of involvement in the Jewish community and the synagogue.”[4] We are required, in other words, to practice the mitzvah of keiruv, to “bring near those who are distant” from Judaism.[5] It may well be that having her teach in our school is the best way to encourage her own continuing Jewish growth, along with her family’s involvement in Jewish life. Conversely, we are forbidden to erect unnecessary barriers to their participation in our community. A policy which automatically rejects this person as a teacher on the grounds that she is married to a non-Jew erects just such a barrier and therefore runs counter to our goal of outreach.

Second, we should keep in mind the practical implications of our decision. It is difficult even under the best of circumstances for our congregations to find qualified teachers who can communicate knowledge effectively to our young people. It is far from inconceivable that a Jew married to a non-Jew may be the best teacher available to us. Our smaller communities, in particular, may find this frequently to be the case. To reject such persons in principle as religious school teachers is to place a heavy burden upon our schools and synagogues, as well as to deny our children the opportunity to learn from talented teachers.

Finally, let us consider how we are to define “positive role models.” We certainly want our religious leaders to adhere as closely as possible to the ideal of Jewish life as we understand it. This ideal must take into account one’s marriage choice and the manner in which one constructs a Jewish home. And we surely expect and demand that our professional religious leadership-our rabbis, cantors, and educators–will realize this elemental standard in their own lives. We make this demand because in our view a Jewish religious professional, whose very life is dedicated to setting an example of Jewish commitment to which our people should aspire, cannot serve as a “positive Judaic role model” if he or she is married to a non-Jew. On the other hand, we do not customarily say the same concerning our laity, from whose ranks we draw our religious school teachers. While we hope that all our people will make Jewish marriage choices, we do not believe that marriage to a Gentile serves as incontrovertible proof that a Jewish layperson does not and can not live a life of Jewish quality. Our experience teaches us that many mixed-married couples do affiliate actively with our congregations, lead lives of Jewish substance, and raise their children as Jews; our Resolution on Patrilineal Descent, which confers Jewish status upon the child of one Jewish parent when that child is raised with an exclusively Jewish identity, is built upon the lessons of that experience.[6] Accordingly, we do not use mixed marriage as a reason for automatically disqualifying a Jew from positions of lay leadership within our congregations.[7] Given these perceptions, we would not use marriage to a non-Jew as the reason to reject an individual as a religious school teacher. Mixed marriage may be evidence that an individual is not the sort of Jew we want as a religious school teacher, and then again it may not. Each case must be judged on its own merits.

Conclusion

. Our synagogues are entitled and indeed required to ask that those who teach our children be “good Jews,” “positive Judaic role models.” And since marriage choice has a great deal to do with the quality of one’s Judaic commitments, you are certainly entitled to consider this applicant’s marriage to a non-Jew as part of your determination of her fitness to teach. From our perspective, though, a point of view shaped by the experience of our contemporary North American Reform Jewish communities, we do not believe that the fact of her mixed marriage is an automatic indicator of her lack of fitness. The important concern is whether her personal practice and family life are characterized by Jewish depth and quality. If such is the case, then she might well prove to be a qualified and talented teacher for you. By hiring her, you may be doing a favor to your students, and you may help to fulfill the mitzvah of bringing this person and her family ever closer to Jewish life.

NOTES

For earlier statements by the Conference, see CCAR Yearbook (CCARY) 19 (1909), 170, and CCARY 57 (1947), 161.

Gates of Mitzvah

, 37.

CCARY

83 (1973), 97. On all the above see Gates of Mitzvah, 82-3 and Rabbi’s Manual (New York: CCAR, 1988), 242-243. For a historical essay on the subject of mixed marriage, see American Reform Responsa (ARR), no. 146.

CCARY

83 (1973), 97.

See Bereishit Rabah, ch. 39, on the words “you shall be a blessing” in Gen. 12:2: Abraham is described as mekarev rechokim, one who brings “under the wings of the Shekhinah” those who are estranged from God.

See the discussion in Teshuvot for the Nineties (TFN), no. 5755.17, 251-258.The resolution (CCARY 93 [1983], 157-160) states that a child of a Jewish and a Gentile parent enjoys a presumption of Jewish status which may be established through “appropriate and timely public and formal acts of identification with the Jewish faith and people.” These acts testify to the child’s “positive and exclusive Jewish identity.” From this, it follows that a mixed-married household is capable of transmitting a firm Jewish identity to its children.

Membership in our congregations is restricted to Jews; the non-Jewish family members of a Jew are affiliated with us through that person’s membership. A non-Jewish spouse may not serve as an officer of the congregation or as the chair of a committee which exercises important religious functions. See Suggested Constitution and By-Laws for Congregations, Joint Commission on Synagogue Administration, Union of American Hebrew Congregations, April, 1984; Contemporary American Reform Responsa (CARR), nos. 163-164, and R. Solomon Freehof, Reform Responsa for Our Time, no. 53. These restrictions, however, do not apply to the congregant who is married to a non-Jew.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5760.4

CCAR RESPONSA

5760.4

Gentiles and Jewish Mourning Rites

She’elah
The non-Jewish parent of a non-Jewish member of our synagogue has died. The non-Jewish member wishes to observe shiv`ah and have a service each night at home. Is there any reason why he should not do so? Should we use the “Service for a House of Mourning” provided in Gates of Prayer, or is there something more appropriate? Is it permissible to recite El Malei Rachamim? (Joel Morgovsky, Chair of the Ritual Committee, Monmouth Reform Temple, Tinton Falls, NJ)

Teshuvah
This she’elah asks that we consider the question of boundaries in our religious communities: the boundaries that distinguish between Jews and Gentiles and the boundaries that delineate our religious and communal responsibilities toward the non-Jews in our midst. These lines of definition are difficult to draw to the satisfaction of all, and since every congregation must confront this issue, it is not surprising that different versions of such boundaries exist within our movement. Our Committee is similarly divided as to the best response to the case before us. We are in full agreement, however, that boundaries must be set and that they must reflect a process of careful and thorough Judaic thinking.

The first boundary to be considered is the one that determines membership in our synagogues. We proceed from the presumption that formal membership in our congregations is reserved for persons of the Jewish faith.[1] Again, while each congregation makes its own decisions in these matters, the essential purpose of synagogues is “to promote the enduring and fundamental principles of Judaism and to ensure the continuity of the Jewish people.”[2] It is therefore inappropriate for those who are not Jewish to enjoy formal membership in a Jewish congregation.[3] While our she’elah speaks of a “non-Jewish member” of the congregation, this person is more accurately understood as the spouse of a Jewish member. The non-Jewish spouse of a member should not hold office in the congregation or in any of its auxiliary organizations, nor should he or she vote at congregational or committee meetings. On the other hand, the spouse may attend religious, social, and educational activities and share in the fellowship of the congregation.[4]

This brings us to our second boundary, that which distinguishes Jew from non-Jew. As we have noted, the Gentile spouses in our midst are welcome to take part in the activities we offer, and we most certainly encourage them to attend and to worship at our religious services. It is therefore not surprising that those who do so may find much meaning in our religious life, to the point that they wish to adopt some Jewish observances as their own. The problem with this, to put it plainly, is that these observances are not theirs; they are ours. We do not look upon Jewish rituals and ceremonies simply as instruments for the attainment of spirituality, satisfaction, and comfort. They are rather the means through which we Jews define ourselves as a religious community, rehearse our sacred history, and express our distinct identity. Their meaning for us is primarily a Jewish meaning. It is by keeping these observances (and, at times, by introducing change and innovation into them), that we fully participate in the tradition that we have inherited from Jews in ages past, that binds us to all Jews today and that we seek to pass on to future Jewish generations. It is for this reason that, though the non-Jews in our midst may attend and worship at our religious services, there are clear limits as to their participation in our synagogue’s ritual life. Our rituals, again, are expressions of our Jewish identity, an identity that the non-Jews in our midst, so long as they do not choose to become Jewish, do not share. It is inappropriate for them to participate in our religious life as though they are Jews when in fact they are not Jews.[5]

Our she’elah is a clear and difficult test of these boundaries. This non-Jew, grieving at the death of his parent, has discovered a source of comfort in the observance of dinei avelut, traditional Jewish mourning rituals. He wants to “sit shiv`ah” and asks that we organize for him a service or “minyan” in his home each night of that seven-day mourning period so that he might say Kaddish.[6] We would certainly do so for a Jewish congregant; is it appropriate for us to do so for him? There are some strong arguments that would cause us to say “yes.” This non-Jew violates no ritual prohibition by observing Jewish mourning rites. He is already welcome at our synagogue services, where he may say Kaddish along with the congregation. Moreover, though he may not be a formal member of the synagogue, he is a member of our congregational family. He has shared our “fellowship”; he is in a very real sense one of us. It is our human and pastoral inclination to minister to him in his time of sadness. If the customs of Jewish mourning bring him strength and solace, why would we wish to deny these to him? On the other hand, we cannot forget that dinei avelut are indeed the customs of Jewish mourning, practices that enable Jews to express grief in a way that links them to the life and heritage of our people. For us to arrange a “minyan” for this individual is a well-intentioned act of kindness, but it also confuses the boundary between Jew and non-Jew; it blurs the distinction (central to our existence as a religious community) between being Jewish and doing Jewish.

In considering our question, therefore, we are pulled in different directions by the persuasive power of two sets of concerns, each of which makes legitimate demands upon us. How do we balance these concerns and establish the boundaries appropriate to this case?

One member of our Committee recommends that no service be held at the home of this non-Jewish mourner. He should be invited to attend any regularly scheduled synagogue service and to say Kaddish there. El Malei Rachamim may also be recited, but again, only at a synagogue service and not at a “shiv`ah minyan” specially arranged for him. The strength of this approach lies in its insistence on the standards of Jewish propriety: a “shiv`ah minyan” is a Jewish mourning custom, a means of expression rightfully reserved for Jews. Most of us reject this suggestion, however, on the grounds that it pays insufficient attention to the personal, emotional needs of one who is, after all, part of the congregational family. He finds meaning and comfort in the rites of Jewish mourning; we want to find an appropriate way for him to participate in those rites.
What is the “appropriate” way for this individual to observe Jewish mourning rites? Some of us would permit the community to arrange a regular “shiv`ah minyan” for him at his home. The liturgy for this service would be the same as used for all such services, whether the Gates of Prayer‘s “Service for a House of Mourning,” as mentioned by our sho’el, or the regular weekday services.[7] Kaddish and El Malei Rachamim may be recited. There is no ritual or halakhic objection to this procedure, so long as the service is led and conducted by Jews-and not by the Gentile mourner–and the Kaddish is recited by a Jew or by the entire company, as is the custom in most Reform communities. In the absence of such objections, some of us see no reason to exclude this member of our family from an observance that will bring him strength and solace.
Finally, some of us feel that the “service” at this individual’s home should not be the regular liturgy or the “service for a house of mourning.” Instead, the service might consist of special readings, perhaps including the study of text, followed by Kaddish and El Malei Rachamim. To do otherwise, in this view, would give the impression that this person is participating in our religious life as though he is a Jew. Those of us who take this position believe that the boundary between Jews and non-Jews-a boundary without which we do not exist as a distinct religious community-would be more clearly marked in this way. And all of us, no matter which proposal we favor, believe as one that this boundary must be honored.

CCAR Responsa Committee. Mark Washofsky, chair; Walter Jacob; Yoel Kahn; Debra Landsberg; David Lilienthal; Bernard Mehlman; Rachel Mikva; W. Gunther Plaut; Leonard S. Troupp; Moshe Zemer.

NOTES

See Suggested Constitution and By-Laws for Congregations Affiliated with the Union of American Hebrew Congregations, adopted by the Joint Commission on Synagogue Administration of the Union of American Hebrew Congregations and the Central Conference of American Rabbis, April, 1984, Article V, Section 1.

Suggested Constitution, Preamble.
See R. Solomon B. Freehof, Recent Reform Responsa, no. 12, at p. 65: “Jewish congregations consist of Jews by birth or conversion. All who wish to come into Judaism are welcome. No sincere applicant for conversion will be rejected. But we cannot allow the transformation of a Jewish congregation so that it ceases to be the family

RR21 no. 5758.8

CCAR RESPONSA

Medical Experimentation: Testing Drugs Made of Pork By-Products

5758.8

She’elah

I am a member of the Ethics Committee at the University of Ottawa Heart Institute. At a recent meeting, the committee discussed a protocol for testing a new cardiac drug for which the researchers plan to recruit volunteers from among heart patients. The protocol indicated that a pork by-product was present in the drug. May Jews who observe kashrut participate in this test? I realize that it is permissible to accept pork or pork by-products when these are instrumental in saving one’s life. Yet this is an experiment, and it is uncertain whether this drug will offer any life-saving benefit to these or to future heart patients. Indeed, the researchers inform the volunteers at the time of their recruitment that while the drug may prove useful, it may also turn out to be of no medical consequence at all. (Rabbi Steven H. Garten, Ottawa, Ontario)

Teshuvah

A Jew who observes kashrut may participate in the experiment described in our she’elah. We base this conclusion upon two primary arguments. The first has to do with the laws concerning the manner in which one consumes forbidden foods; the second derives from the definition of medicine, which our tradition regards as a mitzvah of the highest order.

1. The Use of Prohibited Substances for Medicinal Purposes.

The Talmud cites the following statement in the name of Rabbi Yochanan: “We are permitted to use anything for healing, with the exception of idolatry, prohibited sexual relations, and murder.”[1] Rashi explains that the word “anything” in this statement refers to isurey hana’ah, substances from which we are prohibited to derive benefit. From here, the halakhic tradition learns that “in a situation of serious illness, we may use for healing any of the substances prohibited in the Torah” outside of those three exceptions.[2] This rule is in accordance with the teaching that the saving of life (pikuach nefesh) is of the highest importance in the Torah and that it takes precedence over virtually all other commandments and prohibitions.[3] From it, we conclude that there is no objection to the use of forbidden foods and their by-products for medicinal purposes, provided that the patient suffers from a serious illness (choleh sheyesh bo sakanah).[4]

The rule in the case of a person whose illness is not a serious one (choleh she’ein bo sakanah) is somewhat more complex. In theory, the prohibition against the forbidden substance still applies. In practice, however, the prohibition can be lifted. The Talmud reports an incident in which Ravina made an ointment for his daughter’s skin out of unripened grapes that were forbidden as orlah.[5] When challenged-“did the Rabbis permit one to do this for a patient whose illness is not a serious one?”-he responded: “have I used these grapes in their normal manner?”[6] This episode serves as a precedent for the codifiers:[7] since as a matter of formal definition the prohibition against eating a forbidden substance applies only to the act technically defined as “eating” or “drinking,” an individual who is not seriously ill may take a forbidden substance for medicinal purposes provided it is administered in an “unusual” manner which differs from the way in which people ordinarily consume it (shelo kederekh akhilatan) or derive benefit from it (shelo kederekh hana’atan). Thus, it is clearly permissible to inject a patient with a drug containing animal blood, because injection is not defined as “eating” and because it does not confer the benefit or enjoyment (hana’ah) normally associated with the ingestion of food.[8] Whether this permit allows a patient not seriously ill to take such drugs orally is the subject of some controversy. Some authorities hold that the patient may swallow the medication, since swallowing is not the normal way of “eating;” others reject this distinction on the grounds that the person at any rate derives some hana’ah from swallowing.[9] Yet here, too, the objection can be met by mixing the forbidden item with “a bitter substance” which removes the possibility of “enjoyment” (hana’ah). Ingesting the forbidden matter in pill or capsule form, or in a liquid mixed with other chemicals, is therefore permitted.[10]

It should also be noted that a forbidden substance might be permitted when it has undergone a physical alteration so extensive that it can be seen as a “new substance.”[11] These considerations play a central role in rabbinic discussions of the kashrut of cheeses and gelatin.[12]

These considerations are brought together in a responsum by the 18^th-century R. Ya`akov Reischer on the practice of prescribing a liquid containing dried ram’s blood (bocksblut) as a medication for persons reporting certain symptoms that were not considered life-threatening. Reischer notes that this practice is apparently forbidden, since dried blood is nonetheless “blood” and is explicitly prohibited in the talmudic sources.[13] On the other hand, since the medication was in widespread use among Jews, he decides to apply the dictum “Jewish religious custom has the force of Torah” and to defend the practice. This he does on the grounds that the blood has undergone a substantial physical alteration and that, as an ingredient in the medicinal solution, it is ingested in an “unusual” manner.[14]

In the present case, we must presume that a patient would take the experimental drug in pill or capsule form; hence, the pork byproducts it contains are not consumed in a manner that resembles the halakhic definition of “eating.” These ingredients, moreover, have been subjected to various chemical processes that alter their original form. For these reasons, traditional Jewish law does not prohibit any patient, including one who is not seriously ill, from taking this drug.

2. Medical Experimentation as “Medicine.”

A serious difficulty, however, can be raised against our analysis. While the participants in this experiment are called “heart patients,” it is far from clear that the experimental drug they are to test can be called “medicine.” We do not know that this product is of therapeutic value; indeed, our sho’el reports, it may quite possibly turn out to be of “no medical consequence at all.” If so, then the considerations we have discussed might not apply in our case, since our sources permit the consumption of prohibited substances, albeit in an “unusual” manner, solely for legitimate medical purposes (refu’ah). To permit a Jew who observes kashrut to participate in this experiment, we would have to determine that medical experimentation is to be defined as “medicine,” even though the experimental procedures and findings may not prove therapeutic for the individuals who participate in the test.

How then does our tradition define and understand the practice of medicine? While the Talmud itself is ambivalent, containing both negative[15] and positive[16] remarks about physicians and the healing arts, it does regard medicine as reshut,[17] a permitted activity, and later scholars raise this “permission” to the level of mitzvah, the commandment to save life.[18] This commandment, as we have seen, stands at the summit of Toraitic values; virtually every prohibition in the Torah is set aside for the sake of refu’ah. And refu’ah, moreover, is viewed as a “science,” an organized body of learning that is mastered by those specially trained in its accepted standards and procedures.[19] Like all science, medicine as we understand it today is an experimental enterprise. The many wonderful life-saving tools of contemporary medicine, the drugs and surgeries and therapies, could scarcely have been developed had they not been tested in accordance with the rigorous standards demanded by the scientific community. These tests, to be sure, do not always lead directly to the discovery or perfection of new drugs and therapies. It is in the nature of experimental science that hypotheses may be disproved, that theories may be challenged for lack of confirming evidence, and that practitioners determine that a particular direction of research is not a fruitful one. Yet precisely because these “failures” are part and parcel of the scientific method, they are an integral element of science itself. In our case, the science we call medicine requires experimentation of the sort described in our she’elah, whether or not that experiment succeeds in establishing the effectiveness of the cardiac drug. In the absence of such experimentation, the practice-that is to say, the science–of refu’ah could scarcely be conceived.

For this reason, too, we today cannot conceive of the mitzvah, the religious obligation of medicine, apart from the scientific approaches which structure and govern the practice.[20] Just as the science of medicine cannot exist apart from the experimental methods by which therapies are tested and perfected, so too would it be impossible to fulfill the mitzvah of refu’ah without them. We do not distinguish between the therapies of medicine on the one hand and the legitimate scientific procedures necessary to develop those therapies on the other. The term “medicine” includes both the application of life-saving measures and the development of those tools in accordance with the methods of experimental science.[21] Those patients who serve as subjects in this experiment are therefore participating in a legitimate medical procedure. Whether the tests succeed or fail to develop a new cardiac drug, the patients contribute toward the fulfillment of the goal of medicine as the Torah conceives it: the mitzvah of pikuach nefesh, the saving of life.[22]

Jews who observe kashrut may participate in the test described in our she’elah. Indeed, it is a mitzvah for them to do so.

NOTES

BT Pesachim 25a-b. R. Yochanan’s declaration is part of the famous discussion (with partial parallels in Yoma 82a-b, Sanhedrin 74a, and Avodah Zarah 27a-b) of the sins that must never be committed, even for the sake of saving life. Idolatry is not to be practiced because one is commanded to “love Adonai your God…with all your life (bekhol nafshekha; Deut. 6:5)”, even at the cost of one’s life. Forbidden sexual relations (i.e., the list of the arayot in Leviticus 18) are to be avoided at all costs since the Torah compares them to murder (Deut. 22:26). And murder itself may never be resorted to, even to save one’s life, because it is possible that “the other man’s blood is redder”: one is in no position to determine that one’s own life is more valuable in God’s sight than that of one’s intended victim, and it is only such a judgment that would permit a murder in order to save one’s life.

Yad Yesodey Hatorah 5:6; SA YD 155:3.

BT Yoma 85b, on Lev. 18:5.

See M. Yoma 8:5-6; Yad, Ma’akhalot Asurot 14:14-16; and SA OC 618. These passages deal with feeding a sick person on Yom Kippur, and they make clear that the permit for feeding includes foodstuffs normally prohibited as tamey (impure).

See Lev. 19:23-25.

BT Pesachim 25b.

Yad Yesodey Hatorah 5:8; Sefer Hamordekhai, Pesachim, ch. 645, in the name of R. Eliezer b. Yoel Halevy (Ra’avyah); SA YD 155:3; Siftey Kohen ad loc., nos. 13-14; Resp. Ketav Sofer, OC, no. 111.

R. Yechiel Ya`akov Weinberg, Resp. Seridey Esh 2:59.

These positions are discussed by R. Yechezkel Landau (18^th cent.) in Resp. Noda Bihudah 1:35.

Resp. Seridey Esh 2:59, end. On the “bitter substance” issue, see Yad, Yesodey Hatorah 5:8.

See Isserles, SA YD 87:10 and Arukh Hashulchan, YD 87, par. 43. On “new substance,” see R. Chaim Ozer Grodzinsky, Resp. Achiezer 4:11.

The best summary is that of R. Isaac Klein, Responsa and Halakhic Studies (New York: Ktav, 1975), 43-74. The issue with respect to cheese concerns rennet, a curdling agent drawn from the stomach wall of the animal. Gelatin is a problem because it might be made from the bones and skins of non-kosher animals.

See BT Menachot 21a and Chulin 120a.

Resp. Shevut Ya`akov 2:70. Reischer adds another argument in favor of his permit: the specific complaint for which the bocksblut is prescribed is “pain experienced in the internal organs,” which might easily be defined as a serious illness even if the physicians do not so regard it.

After Ex. 15:26, which describes God-and presumably not the physician-as the source of healing. The rabbis were also influenced by the biblical author’s condemnation of King Asa in II Chr. 16:12 (“in his illness he sought not God but rather physicians”). See BT Berakhot 10b and Pesachim 56a, where King Hezekiah is praised for hiding away a medical book so that people would learn to pray for healing rather than seek medical help. See also the prayer recorded in BT Berakhot 60a, bottom, and Rashi ad loc. s.v. she’ein darkan shel beney adam. For a concise statement of this position, one could hardly do better than M. Kiddushin 4:14: “the best physician is deserving of hell,” which Rashi (BT Kiddushin 82a, s.v. tov shebarof’im) explains in that the physician arrogantly regards himself, rather than God, as the author of the patient’s healing. It is Nachmanides, in his commentary to Lev. 26:11, who presents what may be the classic formulation of this perspective. God’s people, he writes, were never intended to be subject to the laws of the physical universe; rather, they were to be judged solely according to their moral deserts. The Israelites, however, rejected this arrangement by consulting physicians during time of illness; as a result of this lack of trust, God has left us to our desires and made us subject to natural law. While we now have no alternative but to engage in natural medicine as a response to illness, therefore, this fact constitutes a spiritual defeat for us.

See BT Bava Kama 46b (“one who is in pain should go to the physician”) and Sanhedrin 17b (“A Torah scholar should not live in a city that does not have these ten things…”), one of which is a physician (rofe). Rashi, along with R. Menachem Hameiri (Beit Habechirah, Sanhedrin 17b) define this rofe as a mohel, one who practices the art of ritual circumcision, rather than a “physician.” Maimonides, on the other hand, does not make this qualification (Yad, De`ot 4:23).

BT Bava Kama 85a, from Ex. 21:19.

The authorities differ as to the biblical source of this mitzvah. Nachmanides (Torat Ha’adam, Chavel ed., Jerusalem, 1964, 41-42) classifies medicine under the heading of pikuach nefesh (and see Tur and SA YD 336:1) , while Maimonides derives the commandment from Deut. 22:2, the obligation to restore lost objects, which the Rabbis (BT Sanhedrin 73a) extend to the saving of life (Maimonides, Commentary to M. Nedarim 4:4).

See SA YD 336:1: while each of us is responsible to fulfill the mitzvah of pikuach nefesh, none should practice medicine who is not an expert (baki) in its procedures and who is not licensed by the proper authorities.

To be sure, it was not always this way. Prior to the modern period, medicine was a traditional science; much like law, theology, and similar disciplines, one learned it through the reading of the authoritative texts of such luminaries as Hippocrates and Galen, combined with a period of apprenticeship to a master. It is this version of medical study which R. Moshe Feinstein (see note 22) cites approvingly in explaining how kohanim in former times could train to become physicians. Obviously, the science of medicine has progressed (a term which, in this context, we do not think is pejorative) to the point that it can no longer be taught in this manner.

We should note that many halakhic authorities do seem to draw such a distinction. While they define medicine as pikuach nefesh, they limit it strictly to the application of therapies to patients while excluding from its purview many of the procedures that are indispensable to the practice of medicine. For example, while Jewish law does not prohibit a kohen from practicing medicine, most Orthodox halakhists do forbid him to study medicine should this study require contact with cadavers, since the priest is not to defile himself by contact with corpses other than those of his close relatives (Lev. 21:1-3). See Kol Bo `al Aveilut, 81-84, Gesher Hachayim I, ch. 6, par. 1, note 4, and R. Moshe Feinstein, Resp. Igerot Moshe YD 3:155.

On a related issue, see Teshuvot for the Nineties, 381-389, no. 5755.11.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5761.1

CCAR RESPONSA

5761.1

Copyright and the Internet

She’elah

According to Jewish law, is it right to download files (music, games, etc.) from the Internet without the creator’s consent or monetary compensation? (Rabbi Eric Gurvis and the ninth grade religious school class, Temple Shalom, Newton, Massachusetts)

Teshuvah

The easiest way to answer this question is to refer it to the civil authorities. Jewish law contains the principle of dina demalkhuta dina,[1] which recognizes the validity of the law of the state or the general government. This law is valid and binding upon us because the citizens of the commonwealth have agreed in advance to abide by the laws that pertain to the government’s accepted legislative power.[2] Our question is one of property rights, specifically the issue of ownership of what we call “intellectual property,” and this clearly falls into the category of those matters that the state may properly regulate through its legal system. Jewish law would recognize as valid the decision reached on this question by the legal system under which we live, whatever that decision might be.

Yet this “easy”answer does not really address the question we have been asked. Our sho’el wants to know how Jewish law would resolve the issue, were it not a matter to be adjudicated by the civil courts. That is, according to the tradition of legal and religious thought known as the halakhah, what is our ethical duty with respect to materials we download from the Internet? Are we permitted to access these materials freely? Or do we violate the rights of their creators and owners if we download them without their permission or do not pay them compensation? If we were dealing with a question of tangible property (real estate or chattel), our response would be obvious. Taking or borrowing the property of another person without that person’s consent is tantamount to theft. But we are dealing instead with the ownership of intellectual property, a set of rights called “copyright.” Does Jewish law recognize copyright? And if so, does copyright protection extend to material available over the Internet?

“Copyright”[3] as a legal principle does not enter the halakhic literature, or the law in general, until the invention of printing. Prior to that time, there were no mechanical means to make multiple copies of written texts. The advent of the printing press led to the creation of a new industry in which many workers were employed and in which considerable money was spent in the production of books and other printed materials. Since it was now relatively easy to make copies of these texts and to distribute them on a mass scale, authors and publishers sought to protect their investments from encroachment by competitors.[4]

The first case we encounter in Jewish law concerns the printing of an edition of the Mishneh Torah, the law code of Maimonides, by R. Meir of Padua and a Gentile printer in Venice in 1550. A competitor thereupon published the same work, pricing it somewhat lower than the first edition. R. Moshe Isserles, one of the authors of the Shulchan Arukh, issued a ban against the competitor’s edition, on the grounds that its publication wrongfully injured the livelihood of R. Meir and the first printer.[5] This ruling was controversial, since the relevant Talmudic passage seems to allow free economic competition.[6] Isserles apparently reads the passage to say that, while competition is permitted, the competitor may not destroy the livelihood of the established business.[7] The printer has a copyright upon the book, therefore, because free competition in this case would drive him from the market and deprive him of any chance to recoup his investment. Some later authorities were reluctant to accept this view. The Torah, they argued, belongs to all of us, and the study of the Torah is a central religious duty. How can anyone claim property rights over sacred texts, literature produced in fulfillment of a mitzvah?[8] This objection, however, was countered by the very practical concern that, without some sort of protection allowing him to realize a profit, no printer would undertake the financial risks necessary to publish works of Torah learning. Our devotion to the mitzvah of Torah study therefore requires that we recognize the property rights of the publishers of sacred literature.[9] In addition, those who expressed doubts about copyright did so with respect to printers who published works written by others. These authorities were much more willing to recognize that the author of a work of Torah scholarship had a right to profit from his own book.[10]

Jewish law, in other words, accepts that the author of a text enjoys a copyright over his or her work, as a matter either of principle (the creator of a text is its rightful owner)[11] or of pragmatism (without copyright protection, few would venture to publish such works). If this is true of sacred literature, where one could object that there should be no such thing as a copyright over words of Torah, it is certainly true of other written works, where that objection does not apply. And if the authors of written texts deserve copyright protection, there is no reason why we should not extend that protection to other forms of intellectual property, which like written texts are created by authors who invest time and resources into their creation in the hope of earning a livelihood and of achieving a return on their investment. These works should not be copied or reproduced without the consent of their authors, the authors’ legal representatives, or of those to whom the authors have transferred legal title.[12]

Does the new technology change these conclusions in any substantial way? The development of the Internet and the World Wide Web has dramatically transformed the publishing marketplace during the past decade, making it possible to reproduce literary and artistic materials and to distribute them instantaneously to an audience that circles the globe. Some contend that this new technology has radically altered the notion of copyright as well. Since it is so easy to download files and to share texts, the argument runs, the authors of these materials cannot reasonably expect to control their sale and distribution. Some go further, claiming that in this new “information age,” where the rapid sharing of data has become the norm, it is wrong as well as impractical to try to impede the free distribution of knowledge and information.[13]

It seems to us, however, that while information technology has become more sophisticated, the ethical issues that led to the creation of copyright laws remain the same. If it is wrong to print a book or to copy a painting without obtaining the permission of its creator, it is just as wrong to download literary and artistic creations as files without the consent of those who authored them or who own the rights to them. It is true that the “Internet age” confronts us with fundamentally new realities. It may also be true that existing copyright laws are insufficient to respond to these new realities. But it is certainly true that we continue to shoulder a duty, under Jewish tradition as well as under the law of the state, to honor, protect and safeguard the rights of authors and publishers to the works they create.

It is therefore wrong, from the standpoint of Jewish law, to download files from the Internet unless one has obtained permission from the authors of those files to do so.

NOTES

This principle, enunciated by the amora Shmuel, is found four times in the Babylonian Talmud (BT Nedarim 28a; Gitin 10b; Bava Kama 113a-b; Bava Batra 54b-55a). A similar concept is found as well in tanaitic literature, although it is given no explicit legal formulation there; see M. Gitin 1:5.

The agreement is called a stipulation (tena’i), in effect a contract or compact into which the members of the community have entered. Note the language “accepted legislative power”: the principle of dina demalkhuta dina does not entail that all the acts of the general government are accepted by Jewish law as valid and binding. On the theory and the limits of dina demalkhuta dina, see our responsum no. 5757.1.

We follow the definition of “copyright” as set forth in Corpus Juris Secundum (St. Paul: West Publishing Co., 1990) 18:2 (94): the right of literary property as recognized and sanctioned by positive law; the exclusive right of printing or otherwise multiplying copies of an intellectual production and of publishing and vending the same; and the right of preventing all others from doing so.

For the historical background see J.A.L. Sterling, World Copyright Law (London: Sweet and Maxwell, 1998), 7 ff. The granting of publication monopolies was a well-established practice in the printing center of Venice for nearly one hundred years prior to the case involving the Mishneh Torah.

Responsa Rema (R. Moshe Isserles)

, no. 10.

See BT Bava Batra 21b: may a competitor from the immediate community or from outside the community open a similar business there, or can the existing artisan or merchant prevent him from doing so? Most early authorities rule that the competitor must be allowed to do business, inasmuch as a similar business already exists within the community (Yad, Shekhenim 6:8; Alfasi to Bava Batra 21b; Hilkhot Harosh, Bava Batra 2:12). On the other hand, R. Mordekhai b. Hillel (Sefer Hamordekhai, Bava Batra, ch. 516) writes that the competitor may be prevented from setting up his business in a spot where all the potential customers will pass by his establishment without seeing that of the existing merchant or artisan, thereby depriving the latter of business.

Isserles uses the term bari hezeka (“the damage is clear and palpable”; see also his Darkhei Moshe to Tur, Choshen Mishpat 155, no. 4). R. Moshe Sofer (18th-19th cent. Hungary) explains Isserles’ point as follows: the existing business has no right to prevent the entry of a competitor when the competition will result in a lessening of the existing business’s income. But if the competition would destroy the existing business, the latter has the right to prevent the entry of the competitor (Resp. Chatam Sofer, Choshen Mishpat, no. 79).

As one posek put it: if Moses himself taught Torah without receiving payment, how can we demand the right to profit from publishing sacred texts (see BT Nedarim 30a, on Deut. 4:5)? R. Yitzchak Schmelkes (19^th-cent. Galicia), Resp. Beit Yitzchak, Yoreh De`ah 2:75.

Resp. Chatam Sofer

, Choshen Mishpat, no. 57.

Resp. Beit Yitzchak

(see note 6); Resp. Sho’el Umeshiv (R. Shaul Natanson, 19^th-cent. Galicia), 1:44; and Resp. Meshiv Davar (R. Naftali Zvi Yehudah Berlin, 19^th-cent. Lithuania), 1:24.

This argument is put forth by R. Berlin in Resp. Meshiv Davar, loc. cit. See also R. Shimeon Shkop, Chidushey R. Shimeon Yehudah Hakohen, Bava Kama, no. 1: “it is an accepted principle in Torah law that one who creates a thing is the owner of all rights to and over it.”

This statement is a simplification of a complex legal and ethical situation. The law of the state generally allows an individual to make limited “fair use” of copyrighted material for certain specific purposes. There is no requirement to obtain the author’s consent to use the materials for these purposes. The problem emerges when one reproduces literary and artistic materials for purposes other than “fair use.”

For a look at some of these arguments, see Ron Coleman, “Copycats on the Superhighway,” American Bar Association Journal 81 (July, 1995), 68-70.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5758.3

CCAR RESPONSA

In Vitro Fertilization and the Mitzvah of Childbearing

5758.3

She’elah
A couple in my congregation have been trying without success to conceive a child. They have consulted a specialist about the possibility of in vitro fertilization (IVF). They have been told that this procedure will likely involve extensive and uncomfortable testing and great financial expense. They wish to know whether Jewish tradition would require or urge them to undertake the personal, physical and monetary burdens of IVF in order that they may fulfill the mitzvah of procreation. (Rabbi Mark Glickman, Tacoma, WA)

Teshuvah
I. Childbearing, Jewish Tradition, and Reform Judaism. Our tradition indeed considers procreation to be a mitzvah, and Reform Judaism affirms this mitzvah as one of the highest values of Jewish life.

In biblical literature, children are a palpable sign of God’s blessing (Psalm 128). Infertility, by contrast, is viewed as a tragedy. Children signify hope; childlessness is a synonym for despair; and the birth of a longed-for and prayed-for child is grounds for great exultation and joy.[1] The very Hebrew word which denotes the infertile person-`a-q-r/h, “the barren one”[2]-suggests the sadness and emptiness of a life without children. Infertility is the occasion of profound sorrow, a grief so vividly expressed by Rachel, who cries “give me children, or I shall die” (Genesis 30:1), and by Abraham, who declares that in the absence of children all other blessings are worthless (Genesis 15:2).[3] It is with these sentiments in mind that the prophet utilizes the language of infertility to depict the sacred history of Israel. Jerusalem, lifeless in exile, is portrayed as a childless woman, while God’s redemption is heralded in the call: “rejoice, O barren one, who has not given birth…for the children of the desolate one will outnumber those of the one who is married” (Isaiah 54:1). Fertility, among the rewards we are promised for observing God’s commandments (Exodus 23:26; Deuteronomy 7:14), will insure the future of Israel; barrenness is the end of the chain which links generation to generation in the transmission of Torah.[4] It is little wonder that our sages, reading these texts, could declare that “one who is without children is considered as though dead.”[5]

It is understandable, then, that procreation (periyah ureviyah) becomes a mitzvah, a religious obligation for the Jew, derived from Genesis 1:28: “God blessed (the man and the woman) and said to them: Be fertile and increase, fill the earth and master it.”[6] Technically, this obligation is fulfilled when one has produced a son and a daughter;[7] nonetheless, “a man who has already fulfilled this mitzvah is forbidden by way of rabbinic ordinance to desist from procreation so long as he has the power to engage in it.”[8] Traditional halakhah, based upon a contentious interpretation of the language of the verse, regards procreation as a mitzvah for the man and not for the woman.[9] This distinction may seem a curious one; after all, both a male and a female are needed to procreate. Still, since childbirth has always involved significant medical risks for women, the predominant halakhic view may have been motivated by the desire to protect those women for whom pregnancy might pose an unacceptable danger to life and health.[10] Whatever its medical origins, this distinction is simply a way of saying that it is the man and not the woman who bears the legal responsibility imposed by the commandment. Thus, a man who has not yet become a father must marry a woman capable of bearing children, and the court (beit din) is empowered to compel him to do so.[11] In addition, a husband whose wife cannot conceive is entitled-and may even be required–to divorce her in order to marry a woman who can.[12] A woman is exempt from these requirements. This imbalance is remedied, however, by three factors. First, by long-standing custom, communities do not exert their coercive legal powers to force men to meet their procreative duties.[13] Second, although women are not considered exempt from the terms of Genesis 1:28, some authorities hold that they do partake in the related requirement, derived from Isaiah 45:18 (lashevet yetzarah And third, even if women are not technically “commanded” to bear children, the rabbis acknowledge that they, no less than men, are entitled to the blessings of parenthood. For this reason, the halakhah permits a childless woman whose husband is infertile to demand a divorce in order to marry a man who can give her children.[15]

Reform Jewish teaching is in substantial accord with that of our sacred texts. Though many cultural differences separate our world view from that of our ancestors, we still hold that “it is a mitzvah for a man and a woman, recognizing the sanctity of life and the sanctity of the marriage partnership, to bring children into the world.”[16] Indeed, given our commitment to gender equality in the realm of religious observance, we would apply the terms of this mitzvah to women and to men alike.[17] And just as our tradition understands periyah ureviyah as an essentially Jewish obligation,[18] Reform Judaism admonishes us to bear in mind the Jewish dimensions of this subject. We may be rightly concerned about the problem of world overpopulation. And human beings in any case have the right to determine the number of children they should have. On the other hand, “Jews have seen their progeny…as an assurance of the continued existence of the Jewish people.”[19] “In considering family size…parents should be aware of the tragic decimation of our people during the Holocaust and of the threats of annihilation that have pursued the Jewish people throughout history.” Therefore, “couples are encouraged to consider the matter of family size carefully and with due regard to the problem of Jewish survival.”[20]

None of this implies that procreation is an absolute requirement for every person. As Reform Jews, we place a high value upon personal freedom in the realm of religious observance. Phrases such as “absolute requirement” are conspicuous by their absence from typical Reform Jewish religious discourse. With respect to this particular observance, there have always been those who could not and did not have children; similarly, “there are people who, for a variety of reasons, will be unable to fulfill this mitzvah.” Like other mitzvot, this one is incumbent only upon “those who are physically and emotionally capable of fulfilling it. Those who cannot are considered no less observant and no less Jewish.”[21] Yet this understanding attitude should not be taken to mean that we are somehow neutral as to the decision of a Jewish couple to have children. To say that “procreation is a mitzvah” is to say that it is a positive good and that, barring truly extenuating circumstances, it is the choice that Jews ought to make for their households and families.

For this reason, our she’elah is an especially profound one. The couple who submit it clearly take their Judaism seriously. As such, they regard children not only as the fulfilment of a personal desire but also as the realization of a mitzvah, an act by which we Jews constitute ourselves as a people and as a religious community. The procedure of in vitro fertilization (IVF) may offer the only hope for them to conceive a child. They wish to know whether Jewish tradition and Reform Jewish tradition, both of which stress the importance of having children, teach that they ought to undergo this procedure despite their aversions to it. It is to this issue that we now turn.

II. Artificial Techniques of Human Reproduction: A Reform Jewish View. In ancient times, the accepted response to barrenness was prayer. Since it was natural to regard infertility as a divine punishment, an “act of God,”[22] the proper course of action was to turn to God in supplication, as did Abraham (Genesis 20:17), Isaac and Rebecca (Genesis 25:21)[23] and Hannah (I Samuel 1-2). Indeed, a refusal to pray on behalf of the infertile was considered an act of grave moral insensitivity. Thus, the rabbis criticize Jacob’s angry response to Rachel (“Can I take the place of God, who has denied you fruit of the womb?” Genesis 30:2) with a question of their own: “is this how one responds to those who suffer?”[24] Significantly, these episodes are cast in a therapeutic context. Infertility is a disease, an ailment that can be “cured” by the correct remedy. And as is generally the case in biblical and much rabbinic literature, the best available “therapy,” for childlessness as with all other diseases,[25] is prayer.

Since then, much has changed. Where healing was once effected primarily by means of prayer, Jewish tradition has for many centuries accepted the practice of medicine (refu’ah) as the correct therapy, the right response to disease. Medicine, our sources tell us, is a mitzvah; it is the way in which we most often fulfill our obligation to save life (pikuach nefesh). While it is surely a good thing to ask God’s blessings upon those who are ill–and we do so in our liturgy–prayer is no longer sufficient therapy. As the talmudic saying puts it, “one who is in pain should go to the doctor”:[26] when we are ill, we must avail ourselves of the remedies devised through human wisdom and scientific knowledge and not place our exclusive reliance upon the hope that God will intervene into the workings of nature.[27]

From all of this, it follows that the various technologies which enable the infertile to conceive ought to be understood as medicine. Our Committee has indeed taken this position with respect to artificial reproductive techniques in general[28] and IVF in particular.[29] Human infertility is a disease, not because it threatens the life and health of the infertile but because it frustrates our attainment of the goal–the mitzvah–of bringing children into the world.[30] The scientific tools developed to cure this disease are therefore advances in medicine and should be welcomed, as we welcome other medical advances, as a positive good. The question we must answer at this juncture is the extent to which this particular kind of medicine ought to be regarded as obligatory. Medical treatment, after all, is a mitzvah, understood in our tradition as a religious duty. And in cases where the medical procedure indicated for a specific condition is a tested and proven one (refu’ah bedukah or refu’ah vada’it), offering a reasonably certain prospect of successful treatment, the tradition holds that a patient is obligated to accept the treatment and can even be compelled to do so.[31] Does IVF, which we clearly regard as medical treatment for disease, fall into this category of “tested remedy”? If it does, then we would have strong grounds on which to urge the couple who bring this she’elah to undertake the procedure despite its discomfort and its cost.

III. IVF as a Medical Procedure. The technology of in vitro fertilization, first developed over fifty years ago, led to a live human birth in 1978.[32] It is a “medically indicated” treatment for infertility resulting from blockage of a woman’s fallopian tubes, male infertility, endometriosis, and “other multiple causes.”[33] The procedure may be summarized as follows.[34] The woman’s ovaries are stimulated with fertility drugs to produce multiple eggs.[35] The woman’s response is monitored by means of urinalysis, blood samples, and ultrasound. Once the eggs are released, the physician may retrieve them through laparoscopy, done under general anesthesia, in which a surgeon inserts a hollow needle, guided by an optical instrument called a laparoscope, into the woman’s abdomen. Alternately, the needle may be inserted into the vagina, guided by ultrasound. This latter method requires only a local anesthetic. Upon retrieval, the eggs are placed in glass dishes and combined with semen collected from the woman’s partner or a donor. The dishes are placed into an incubator for twelve to eighteen hours. If an egg is fertilized and develops into an embryo, it is transferred into the uterus by means of a catheter inserted into the vagina. Should the embryo become implanted in the uterine wall, pregnancy will be detected about two weeks later.

The medical effectiveness of this complicated procedure might be measured in one of two ways. First, given that “tens of thousands of embryo transfers are carried out each year internationally, and thousands of babies have been born” as a result of this therapy,[36] we might well say that in vitro fertilization works, that it has been tested and found to be a “successful” response to the disease of infertility. Yet if we consider the figures from the standpoint of IVF’s rate of success, we find much less ground for encouragement. Estimates range from a rate of 16.9% to 27.9% live births for each group of eggs collected in fertility clinics in the United States, a number which “remains lower than one would like and has not improved much during the last five years.”[37] This rate, moreover, declines further when it is calculated from the beginning of the IVF process, from the point of hormonal stimulation rather than from the collection of the eggs.[38] Such numbers do not suggest a therapy which offers “a reasonably certain prospect of successful treatment.” We might well expect them to improve as IVF techniques are refined in coming years. At present, however, this less-than-heartening success rate virtually begs us to conclude that, while in vitro fertilization offers much hope to those who seek children, it cannot be considered a “cure” for the disease of infertility.

IV. IVF–An Obligation? Given these facts, we are in a better position to address the question: does Jewish tradition require an infertile couple to undergo in vitro fertilization if that procedure is seen as the only means by which they might conceive a child?

We cannot deny, first of all, that in vitro fertilization counts as one of the “miracles” of modern medicine. We would be ungrateful indeed should we fail to acknowledge our good fortune to live in an age which has devised such a means for overcoming a condition that for many centuries has brought great sadness to women and men. Rabbis who counsel infertile couples should not fail to emphasize this blessing offered us by science, the wonderful possibilities it opens for those who yearn to fulfill the mitzvah of procreation. Still, there is a crucial difference between possibility and reality, and the reality of IVF’s success rate suggests that the procedure does not qualify as a “tested and proven” treatment (refu’ah bedukah) for infertility. We have written in connection with other medical conditions that, if a particular treatment cannot be considered a refu’ah bedukah, “if its therapeutic effect upon the disease is uncertain at best, then the patient is not required to accept it.”[39] That reasoning, we think, most certainly applies to this case.

To say that a person is “required” or “obligated” to accept a particular medical treatment means as well that, as best as medical opinion can determine, the therapeutic benefits of the treatment significantly outweigh its potential risks and side-effects. To be sure, the benefits of IVF are obvious, in the form of the “thousands of babies” it has brought into the world, and its untoward side-effects are not as clear. Physicians, for example, report that the general risks of surgery to the infertile woman “have been minimized with careful medical practice… (and) the birth defects that have been observed (in children born of IVF) occur in frequencies and types not significantly different from that found in the general population.” On the other hand, “these comforting results are… all short term.” There is some evidence that the use of fertility drugs for ovarian stimulation may significantly increase the risk of contracting ovarian cancer later in life. In addition, little is known about the long-term potential for introducing genetic defects that become manifest later in the child’s life. The increased frequency of multiple births, resulting from implantation of several embryos in the uterus at a time, is another source of health risk, as is the use of cryopreservation (freezing of embryos for later implantation.[40] It is understandable that some women do not wish to accept these potential health risks for themselves or for the children they might conceive.[41] And however we ourselves might draw that fateful balance between the possible blessings and the potential risks of IVF, the dubious success of this procedure makes it difficult in the extreme for us to assert that a particular woman is somehow “required” to undertake the procedure.

Then, too, we cannot ignore the matter of cost. As of a few years ago, the estimated expenditure for a couple in the United States achieving a successful delivery by IVF ranged from $44,000 to $211,940, the costs rising (and chances of success diminishing) with each failed cycle of treatment.[43] True, we might say that “money is no object” and that successful medical treatment ought to be regarded as a “priceless” commodity. But how “successful” is this treatment? Given that failure is the probable outcome of each IVF treatment cycle, it is again difficult to justify an “obligation” to undertake its extraordinary expense.

Finally, let us not lose sight of what our she’elah terms the “personal” burdens associated with IVF. Any surgery is an invasive procedure which by its nature inflicts physical discomfort and psychological distress upon the patient. This particular form of surgery, an arduous process which offers uncertain prospects of success and which touches upon some of the most sensitive aspects of personality and marital life, may well cause even greater suffering. Infertile women and couples who have reached the point of considering IVF have already travelled a difficult and painful road in their lives. To tell them that they are “required” to submit to this procedure–especially when it does not offer them a prospect of probable success–is but to increase to no good purpose the anguish they have already suffered. In cases such as this, we think it better to follow instead the counsel of compassion, of rachmanut; let us listen to the voice of those who suffer rather than insist they hearken to ours.

Conclusion. Jewish tradition regards the bringing of children into the world as a mitzvah, a religious duty. At the same time, it does not require or oblige this couple to undertake in vitro fertilization. How can an act be both a mitzvah and yet not obligatory? One way of thinking about this question is to remind ourselves that the word “mitzvah” can indicate a general religious requirement, one that applies to most of us, even the preponderant majority of us, most of the time, but which exempts particular individuals depending upon the circumstances of their lives. For example, Jewish law recognizes that, in general, we all bear the duty to save human life, to rescue those who are in danger, but this obligation does not apply to the individual who for some reason is “unable” to perform the rescue.[44] With respect to our issue as well, while it is true that as a species and as a people we are “required” to bring children into the world, it is also true that Jewish law accepts that there are exceptions to the general rule. Thus, it neither compels individuals to marry nor infertile couples to divorce.[45] And, significantly, it does not demand that a woman sacrifice her health for the sake of this mitzvah; as one emiment authority has put it, “one is not required to lay waste to one’s life in order to ‘settle the world.'”[46]

We might also keep in mind that our tradition draws a distinction between mitzvot which are defined as chovah and those which are not. A chovah, or “obligation,” is a religious duty that one is required to perform, regardless of the expense or inconvenience involved. At the same time, there are a number of mitzvot which do not impose absolute requirements; “one who performs this act receives a heavenly reward for doing so, but the one who does not perform it is not punished thereby.”[47] We might say that the decision to undertake IVF falls into this latter category. Reform Jewish teaching would endorse this distinction. It is certainly a mitzvah to have children, and couples considering IVF or similar procedures deserve our full encouragement and support. Still, if this couple decides against IVF, we must pay the highest deference to their freedom, human dignity, and unique experience.

Finally, we should note that IVF and other artificial techniques of reproduction are not the only means whereby this couple might hope to fulfill the mitzvah of bringing children into the world. They may create their family by way of adoption, for as we have noted elsewhere, the relationship created by adoption is equivalent in every respect to that between parents and their biological children.[48] Should the couple choose to take this path to parenthood, they are entitled to all the assistance and encouragement which our community can offer them as they continue to build their Jewish household.

NOTES

Such as Hannah’s prayer of thanksgiving (I Samuel 2) and Sarah’s happiness (Gen. 21:6-7).
While the Bible refers more often to female than to male sterility, the latter is not unknown; see Deut. 7:14 and Rashi ad loc.
Other examples include Sarah (Gen. 16:2; see Rashi ad loc., from Bereshit Rabah 45:2), Isaac and Rebecca (Gen. 25:21); Hannah (I Samuel 1-2), and the Shunamite woman (II Kings 4).
See the comment of Sforno to Ex. 23:26.
BT Nedarim 64b; Rashi to Gen. 30:1. The Torah Temimah comments upon that verse: “the Talmud teaches here that the course of life is a thread that stretches from parents to children. When one has no children, the life-thread of that individual has been severed, and he is as though dead.” See also Bereshit Rabah 45:2, cited in note 3: one who is without children lines in a state of “ruin” (harus; a play on the biblical term ibaneh in Gen. 16:2).
The midrash which derives the law from Gen. 1:28 is found in M. Yevamot 6:6. On the law itself, see Yad, Ishut 15:1 and SA EHE 1:1. It is interesting that although this verse is addressed to Adam and Eve and therefore to all humankind (and compare Gen. 9:1), the halakhah does not count procreation as one of the “Noachide” mitzvot: it is an obligation for Jews alone (BT Sanhedrin 59b). For this reason, a Gentile who has children and then converts to Judaism has fulfilled the obligation to procreate provided that the children convert as well (Yad, Ishut 15:6; SA EHE 1:7). Although some poskim disagree, holding that a proselyte’s Gentile children do “count” toward fulfilment of the mitzvah (Resp. Maharil, no. 223), others note that this has to do with the issue of relationship (yichus: Jewish law recognizes the legal relationship between members of Gentile families), and we should not infer from this dispute that either side holds procreation to be a mitzvah for Gentiles as well as for Jews (Tosafot, Yev. 62a, s.v. beney.
M. Yevamot 6:6, according to the position of Beit Hillel, who derive the “male and female” standard from the precedent of Adam and Eve, as opposed to Beit Shamai, who rely on the precedent of Moses, who fathered two sons. Yad, Ishut 15:4; SA EHE 1:5.
Yad, Ishut 15:16, from the statement of R. Yehoshua, BT Yevamot 62b.
See M. Yevamot 6:6 and BT Yevamot 65b. The setam mishnah assigns the mitzvah of procreation to the man, while R. Yochanan b. Beroka, noting that the language of the verse is in the plural voice, holds that both the male and the female are obligated under the commandment’s terms. The Talmud explains the setam position by the text’s word vekhivshuhah, “and master it”, literally, “and conquer it”: just as it is the way of the male, and not the female, to “conquer,” so does the rest of the verse, including the words peru urevu (“be fruitful and increase”) apply exclusively to the male. The meaning of “conquest” here is ambiguous: while the term may well refer to warfare, a traditionally male pursuit, some sources suggest that it deals with the husband’s mastery or dominance in the marital home; see Bereshit Rabah 8:12 and Bartenura to the mishnah. The Talmud, continuing the debate, replies on behalf of R. Yochanan b. Beroka that the word vekhivshuhah, like the rest of the verse, is written in the Hebrew plural; thus, it applies equally to the woman and to the man. The response to this is that while the word is vocalized in the plural, it is written chaser, “defectively,” as though it is a singular word, indicating that the Torah limits the obligation of this verse to the male alone. The later halakhah, beginning with the talmudic sugya at BT Yevamot 65b, accepts the setam position as authoritative (Halakhot Gedolot, ed. Hildesheimer, 2:240-241; Yad, Ishut 15:2; SA EHE 1:13).
The talmudic discussion does not mention these medical considerations. Later authorities, however, might well take them into account in their understanding of a woman’s religious obligation with respect to childbearing. See Resp. Chatam Sofer, EHE 20, discussed below at note 45: a woman is not obligated to conceive under the terms of Isaiah 45:18 when the pregnancy poses more than the usual health risk.
BT Yevamot 64b; Hilkhot HaRosh, Yevamot 6:16; SA EHE 1:3.
BT Yevamot 65a-b and Ketubot 77a; Yad, Ishut 15:7-8; SA EHE 154:6.
Resp. R. Yitzchak b. Sheshet, no. 15, and Isserles to EHE 1:3.
This theory is developed by the Tosafot (Gitin 41b, s.v. lo; Bava Batra 13a, s.v. shene’emar). The requirement of leshevet yetzarah, because it is derived from a prophetic source (divrey kabalah), is considered less stringent than that of periyah ureviyah, which is based upon a verse in the Torah. Nonetheless, the fact that women may be subject to this requirement makes a difference in traditional halakhic thought. Thus, the permit to sell a sefer torah in order to raise the funds needed to marry applies to women as well as to men, since women, though they are not obligated under Genesis 1:28, are nonetheless “covered” by Isaiah 45:18. See Magen Avraham to SA Orach Chayim 153, no. 9; Beit Shmuel to SA Even Ha`ezer 1, no. 2; and Resp. Tzitz Eliezer 10:42.
BT Yevamot 65b; Yad, Ishut 15:10; SA EHE 154:6. Should the husband refuse this demand, the court may compel him to issue a get.
Gates of Mitzvah, A-1, 11.
In this, we would follow the position enunciated by R. Yochanan b. Beroka in M. Yevamot 6:6 and BT Yevamot 65b; see note 8. His midrash, that the biblical verse speaks in the plural, is surely more compelling than that which supports the opposing view. We would categorically reject any attempt to determine religious obligation based upon some “tendency” of males toward conquest or domination.
See note 6.
Gates of Mitzvah, 9.
Ibid., A-2, 11.
Ibid., note. See also the sources cited in note 12: the “long-standing custom” in traditional Jewish practice “is not to coerce on this matter.” The community, that is to say, does not intervene into the lives of couples who for any reason do not have children.
See Genesis 20:18 (“for God had closed fast every womb of the household of Avimelekh”; Genesis 29:31 and 30:3 (“Can I take the place of God, who has denied you fruit of the womb?”); I Samuel 1:5-6 (“for God had closed her womb”).
While according to the literal sense of the verse Isaac prayed alone, the rabbis understand the words lenokhach ishto to mean that both husband and wife offered prayers; Rashi ad loc, from Bereshit Rabah 63:5.
Bereshit Rabah 71:7. The midrash continues: “by your life, your (Jacob’s) sons will one day pay fealty to her son” (i.e., Joseph; see Gen. 50:18-19, especially Joseph’s repetition of his father’s words: “can I take the place of God?”).
The idea of disease as a divine recompense for our misdeeds and of healing as a sign of God’s favor appears throughout our texts. See, for example, Ex. 23:25; Lev. 26:16; Deut. 7:15; BT Berakhot 60a (bottom, the prayer which suggests that human beings have no business engaging in medicine in response to illness); and especially the comment of Nachmanides (Ramban) to Lev. 26:11.
BT Bava Kama 46b.
As Ramban writes (to Lev. 26:11), once Israel chose to live its life in accordance with the laws of nature, rather than according to God’s special providence, “the Torah will not make its laws depend upon miracles.” That is to say, if pikuach nefesh is a mitzvah (see BT Yoma 85b to Lev. 18:5), then the correct way to fulfill that obligation is through the practice of medicine, which unlike prayer does not require a special intervention by Heaven. For a more detailed discussion see Teshuvot for the Nineties (TFN), no. 5754.18, 373-375.
See American Reform Responsa (ARR), nos. 157-159.
See our responsum no. 5757.2, “In Vitro Fertilization and the Status of the Embryo.”
On this, see responsum 5757.2 at note 7: “by ‘disease’ we mean a condition in which some aspect of our biological or psychological systems does not function properly.” And in the note itself: “This suggests that the definition of ‘disease’ is largely a matter of social construction: that part of our biological or psychological systems is functioning ‘improperly’ is a judgment we make based upon a conception of what ‘proper’ functioning is. Accordingly, we may define human infertility as a disease and the procedures designed to correct it as ‘medicine’.”
See our discussion in TFN, no. 5754.14, 348-349, at notes 38-40.
J. Rock and M. F. Menkin, “In vitro fertilization and Cleavage of Human Ovarian Eggs,” Science 100:105 (1944); P. C. Steptoe and R. C. Edwards, “Birth After Reimplantation of a Human Embryo,” Lancet 2:336 (1978).
Joseph Schenker, M.D., “Medically Assisted Conception: The State of the Art in Clinical Practice,” in Patricia Stephenson and Marsden G. Wagner, eds., Tough Choices: In Vitro Fertilization and the Reproductive Technologies (Philadelphia: Temple U. Press, 1993), 25-36. The citation is at p. 26. Dr. Schenker is Professor of Obstetrics and Gynecology at Hadassah Medical Organization, Jerusalem. At the time of this writing, he was chair of the department and president of the Israeli Society of Obstetrics and Gynecology.
This description is taken from Andrea L. Bonnicksen, “In Vitro Fertilization and Embryo Transfer,” Encyclopaedia of Bioethics (New York: Simon and Schuster MacMillan, 1995), 2221ff.
Schenker, loc. cit., adds that the current trend is away from drug-stimulated menstrual cycles and toward “natural cycle IVF”, which poses fewer risks to woman and child.
Bonnicksen, 2222.
See Michael E. McClure, M.D., “The ‘ART’ of Medically-Assisted Reproduction: An Embryo is an Embryo is an Embryo,” in David C. Thomasma and Thomasine Kushner, eds., Birth to Death: Science and Bioethics (Cambridge: Cambridge U. Press, 1996), 35-49. Dr. McClure is the Chief of the Reproductive Sciences Branch, Center for Population Research, National Institute of Child Health at the National Institutes of Health, Bethesda, Maryland. The citation is at p. 42.
One such estimate, taken from a survey of several national registries, is a success rate of 9% to 13%. See Jean Cohen, “The Efficiency and Efficacy of IVF and GIFT,” Human Reproduction 6 (1991), 5:613-618.
It could be argued that 16.9% to 27.9% success rate ought to be accepted as a “proven treatment” because it raises the chances of conception to roughly equivalent with natural conception. But this is not what we think refu’ah bedukah means. The infertile couple do not measure medical success by the degree to which their attempts to conceive enjoy the same rate of success as that of other couples. For them, “success” means a successful conception leading to a live birth. Such is a reasonable definition, as it is the prospect of actually having a baby that brings them to IVF in the first place. And until the rates of conception and live birth significantly improve, we do not think the procedure currently qualifies as refu’ah bedukah.
TFN, no. 5754.14, at pp. 348-349.
McClure, 43-46.
See Cynthia B. Cohen, “‘Give Me Children or I Shall Die!’ New Reproductive Technologies and Harm to Children,” Hastings Center Report 26:2 (March-April 1996), 19-27, arguing that a decision not to have children is certainly ethical if we know we are subjecting them to significant risk by conceiving them through artificial technologies.
McClure, 43.
See BT Sanhedrin 74a, from Lev. 19:16 (“do not stand idly by the blood of your fellow”), which declares that whoever sees his fellow in danger is “obliged” (chayav) to save him, and Yad, Rotzeach 1:14, where this obligation is formulated thusly: “whoever is able [emphasis added] to save (another) and does not do so violates the commandment ‘do not stand idly by the blood of your fellow.'”
And, again, see the sources at note 12: it has long been customary not to coerce over this very matter.
Resp. Chatam Sofer, EHE, no. 20.
The quotation, taken from Mishnah Berurah 260, no. 1, is found as well in Isserles, Darkei Moshe to Tur OC 260; he in turn derived it from the 13th-century work Or Zaru`a, Hil. Erev Shabbat, par. 7. The talmudic source is BT Shabbat 25b: “the kindling of the Shabbat lamp is an obligation (chovah), while washing one’s hands and feet in warm water on Friday afternoon (see Rashi ad loc.) is a voluntary act (reshut); but I [the transmitter of this statement] say that the latter is a mitzvah,” meaning neither obligatory not entirely “optional”. On this subject in general, see the article “Chovah, mitzvah, ureshut,” Encyclopaedia Talmudit, vol. 12: 645-679.
The quotation, taken from Mishnah Berurah 260, no. 1, is found as well in Isserles, Darkei Moshe to Tur OC 260; he in turn derived it from the 13th-century work Or Zaru`a, Hil. Erev Shabbat, par. 7. The talmudic source is BT Shabbat 25b: “the kindling of the Shabbat lamp is an obligation (chovah), while washing one’s hands and feet in warm water on Friday afternoon (see Rashi ad loc.) is a voluntary act (reshut); but I [the transmitter of this statement] say that the latter is a mitzvah,” meaning neither obligatory not entirely “optional”. On this subject in general, see the article “Chovah, mitzvah, ureshut,” Encyclopaedia Talmudit, vol. 12: 645-679.
If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5760.2

CCAR RESPONSA

5760.2

Presumption of Jewish Identity

She’elah

A woman presents herself to a rabbi and states she wants to join the congregation. The woman is unknown to the rabbi, the congregation and the Jewish community. The rabbi inquires if she is Jewish and she states that she is. Does the rabbi accept her at her word, or is the rabbi obliged to conduct further inquiry as to her Jewish status? If further inquiry is required, what threshold of proof need be met? (Rabbi Joshua Aaronson, Perth, Australia)

Teshuvah

Jewish law, in general, determines the status of persons or things in either one of two ways. The first is edut berurah, or clear proof, whether in the form of eyewitness testimony[1] or other evidence.[2] The second is presumption, which itself can take two forms: chazakah, or “presumption” proper; and rov, the “majority” principle. The rules governing these processes are much too complex and detailed to summarize here.[3] Suffice it to say that Jewish law relies upon them as grounds for action in the absence of clear proof. There are many situations for which clear proof or documentary evidence does not exist, yet the court can determine the legal status of the things or persons at issue by means of an appraisal (umdana) of what was the case prior to the raising of the issue or of what is likely to be the case according to the usual behavior of persons or things. Indeed, the most fateful sort of legal decisions-i.e., those dealing with capital offenses-can proceed from judgments based upon chazakah and rov.[4]

Presumption has always played a crucial role in determining an individual’s Jewish status. We customarily do not ask newcomers to supply proof of their Jewishness before allowing them to join our communities.[5] This custom is based upon the rule in Jewish law that when a person we do not know comes to us and claims “I am a Jew,” we accept that claim on his or her word alone.[6] This rule is explained in several ways. According to some authorities, the claim “I am a Jew” needs no proof because “the majority (rov) of those who come before us are Jews”; therefore, we accept this person as a member of that majority.[7] Other commentators say that we accept the claim “I am a Jew” because we presume that a person would not lie about such an easily-discoverable fact.[8] In either event, the Jewish status of this person is established not by means of hard evidence but by the community’s presumption that the individual is telling the truth. For this reason, it is common practice to accept as Jewish those who come to our communities and present themselves as Jews.[9]

How does this halakhic standard apply to the case before us? In theory, the rabbi could follow one of the above presumptions and accept this woman as a Jew on the strength of her claim alone. Yet the matter is hardly so simple. A presumption, as we have noted, is a determination of the status of a person or thing based upon a judgment as to what the status is likely to be; it operates in situations where we lack firm evidence to prove what that situation actually is. We think that there is serious doubt that these presumptions concerning Jewish status, which were formulated in an era when it was quite rare for non-Jews to seek to join the Jewish people, can be applied literally to the situation in our communities. To put this bluntly, it is no longer as “likely” as it once was that those who come before us are in fact Jews. This is not to say that these persons are necessarily of malicious intent or that they knowingly lie about their Jewishness, but rather that the once sharply-drawn definitions of Jewish identity are much less clear to many people today. An individual becomes a member of the Jewish people either through birth or through conversion.[10] Yet in our liberal society, where religion is often perceived as a strictly personal matter and where changing one’s religious affiliation has become increasingly commonplace, many people take the position that “I am what I claim to be.” In this view, religious identity is more truly established “internally,” by one’s heartfelt association with a particular community, than through adherence to “external,” formal standards of membership. Many of us have dealt with individuals who regard themselves as Jewish but whose Jewish identity stems neither from birth nor conversion but from an emotional bond, a feeling of connection with us. Such persons might be encouraged to consider conversion to Judaism, but until they complete the conversion process they are not Jews. In addition, there are individuals who claim to be Jewish out of genuine misunderstanding of the rules that define Jewishness.[11] Under current conditions, to apply the old presumptions without modification-to say, in effect, that anyone who claims to be Jewish must be Jewish-is quite arguably tantamount to ignoring reality.

The foregoing remarks are not to suggest that these problems have reached crisis proportions. In the vast majority of cases, we are satisfied with an individual’s statement that “I am a Jew.” Indeed, it would be tragic were rabbis and congregations as a rule to greet newcomers with suspicion and probing questions. This would violate both our common sense of decency and the mitzvah of hospitality to strangers (hakhnasat orechim).[12] Yet there will be times when the rabbi, on reasonable grounds, will not be satisfied with the individual’s claim of Jewishness. We will not attempt to define those “reasonable grounds”; that is a matter best left to the responsible and educated judgment of the rabbi, acting in his or her capacity as mara de’atra (local authority). When the rabbi feels that such grounds exist, he or she may inquire into the individual’s Jewish status. Ideally, the inquiry will be restricted to questions of the “getting-to-know-you” variety. They should be unobtrusive and respectful of the person’s basic human dignity; our tradition, as we know, prohibits us from causing another to suffer unnecessary shame and embarrassment.[13] Yet if the rabbi, mindful of these requirements, feels it necessary to ask for proof of the individual’s Jewish status, he or she may do so. To make such determinations, however sensitive the subject matter, is quite simply part of the rabbi’s job. And we trust that our rabbis will perform that task with diligence and with sensitivity.

CCAR Responsa Committee

. Mark Washofsky, chair; Walter Jacob; Yoel H. Kahn; Debra Landsberg; David Lilienthal; Rachel S. Mikva; W. Gunther Plaut; Samuel Stahl; Leonard B. Troupp; Moshe Zemer.

NOTES

Deuteronomy 19:16; Yad, Edut 5:1ff.

The classic example is documentary evidence (shetarot). Witnesses are ordinarily required to testify orally in the presence of the beit din (BT Gitin 71a on Deut. 19:16 and Yad, Edut 3:4, although Rabbenu Tam disagrees; see Tosafot, Yevamot 31b, s.v. dechazu and Hagahot Maimoniot, Edut, ch. 3, no. 2). Still, a document such as a promissory note or a deed of sale is acceptable as evidence in legal proceeding on the grounds that “when witnesses sign a document, it is as though their testimony has been investigated by the court” (BT Ketubot 18b).

For example, the articles on chazakah in the Encyclopedia Talmudit extend from vol. 13, pp. 553-760 and then to vol. 14, pp. 1-423.

That is, we make judgments concerning blood and marital relationships based upon chazakah (BT Kidushin 80a and Yad, Isurei Bi’ah 1:20) and rov (BT Chulin 11a-b). These judgments, in turn, determine the application of the prohibitions against incest and adultery, both of which are punishable under biblical law with death.

In the words of the 13^th-century R. Moshe of Coucy (Sefer Mitzvot Gadol, negative commandment no.116): “It is common practice (ma`asim bekhol yom) that, when visitors come to our communities, we do not investigate their origins. (Rather), we drink wine with them and eat the meat that they have slaughtered” (two things that these Jews would never have done had they suspected these visitors of being Gentiles).

This rule is based upon the Talmudic discussion of the person who comes to us and claims “I am a convert to Judaism” (BT Yevamot 46b-47a). Halakhah requires this person to supply proof of conversion only if we know in fact that he or she was originally a non-Jew. If, however, we do not know this person’s origin, we accept the claim of conversion because he or she could have said simply “I am a Jew,” a claim for which no proof is demanded. The legal principle here is migo: we may accept a claim as true on the grounds that this individual could have made a more advantageous claim. Since we would have accepted on face value the claim that “I am a Jew,” there is no reason for us to doubt the veracity of the claim “I am a convert,” which entails that he or she was born a Gentile. Maimonides (Yad, Isurei Bi’ah 13:10) calls this an example of the rule hapeh she’asar hu hapeh she-hitir: a person who is the sole source of information that is disadvantageous to him- or herself (“I was a non-Jew”) is believed when he or she gives testimony that reverses the disadvantage (“…but I have converted to Judaism”).

Rabbenu Tam, Tosafot, Yevamot 47a, s.v. bemuchzak lekha (and see below, note 8); Hilkhot HaRosh, Yevamot 4:34. See also BT Pesachim 3b and Tosafot, s.v. ve’ana.

R. Moshe ben Nachman (Ramban), R. Shelomo b. Adret (Rashba), and R. Yom Tov ibn Ishbili (Ritva) in their chidushim to Yevamot 47a; R. Nissim Gerondi (Ran) in his chidushim to Pesachim 3b; and Rabbenu Tam in Sefer Hayashar (ed. Schlesinger, 1959), ch. 336.

Beit Yosef

and Bayit Chadash to Tur, Yore De`ah 268, fol. 215a; Shulchan Arukh, Yore De`ah 268:10 and Siftei Kohen, no. 21.

This statement remains true even in North America, where the Reform movement has modified the traditional standards of Jewish status with the CCAR’s Resolution on Patrilineal Descent. Under that resolution, a child of one Jewish parent (either father or mother) may qualify as a Jew by performing “timely public and formal acts of identification with the Jewish faith and people.” Yet this possibility is open to the child because he or she was born to a Jewish parent. Conversely, the child of two Jewish parents remains Jewish under our definition even in the absence of such “timely and formal acts.” Thus, Jewishness for us continues to be established on the basis of birth or conversion. For details, see Rabbi’s Manual (New York: CCAR, 1987), 225-227.

For example, the determination of Jewish identity under the CCAR’s Resolution on Patrilineal Descent (see note 9) can be a source of uncertainty. Just what the resolution means by “timely public and formal acts of identification with the Jewish people” is not yet a matter of precise definition, and until that question is clarified we can expect confusion as to “who is a Jew?” according to the terms of the resolution.

See BT Shabbat 127a-b, where hospitality is listed among the things “whose fruits one consumes in this world and whose principal remains available for one in the world-to-come,” an example of gemilut chasadim (acts of lovingkindness). Maimonides classifies such acts under the rubric of “love your neighbor as yourself” (Lev. 19:18; Yad, Avel 14:1).

Arakhin 16b, based upon a midrash of the concluding words of Lev. 19:17, lo tisa alav chet, “do not bear a sin on his account”; Yad, De`ot 6:8.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5762.1

CCAR RESPONSA

5762.1

Proper Disposal Of Religious Texts

CCAR RESPONSA COMMITTEE

She’elah.

In an era of better and more widely available recycling resources, my congregants and I are curious as to how we might properly dispose of religious books in the 21st century. With so much emphasis being placed on the heightened need for us to dramatically decrease the amount of waste we throw away, we can’t help but wonder if it would be more Jewishly responsible to recycle old prayerbooks rather than to bury them. (Rabbi William Dreskin, White Plains, NY)

T’shuvah.

Concern for the environment is, without question, a profound Jewish ethical value. We Reform Jews believe that when we act to protect the cleanliness of our air and water and to preserve our natural resources we fulfill the mitzvah that warns us against the wanton destruction of our surroundings.[1] In particular, we recognize recycling as one of the most effective measures we can take to protect and replenish the natural world.[2] We ought to make every possible effort to institute programs of recycling in our homes and institutions.[3] This is certainly the case with the large quantities of paper that our synagogues and schools consume. To recycle this paper is both an act of environmental responsibility and a means by which those institutions can practice the Judaic values that they preach.

This she’elah, however, presents us with a conflict between the mitzvah of environmental stewardship and another important Jewish value: the care we take in the treatment and disposal of our sacred texts. As we shall see, Jewish tradition prohibits us from destroying written texts containing any of the azkarot, one of seven proper names of God. The recycling of old prayerbooks, which are replete with these names, would seem to transgress this prohibition. Our task, therefore, is to resolve this conflict of Jewish principles, each one making its powerful and legitimate claim upon our attention.

The Prohibition. The Torah’s prohibition (isur) against erasing or otherwise destroying an inscription containing the name of God is based upon Deuteronomy 12:2-3, which commands the Israelites to dismantle, burn, and destroy the altars of idolatry they would encounter in the land that they were about to inherit: “you shall destroy [the names of the foreign gods] from that place” (12:3, end). Verse four then instructs that “you shall not do thus (lo ta`asun ken) to Adonai your God.” Although the contextual meaning (peshat) of this verse seems to address the words that follow in verse five (namely, that the Israelites must not sacrifice to their God at the pagan holy places but do so only at the place God shall choose), the traditional halakhic understanding (derash) of this verse reads it as a prohibition against erasing or destroying of God’s name; that is, you are not to do to God’s name that which you have just been commanded to do to the names of the idols.[4] As Maimonides formulates the law: “whosoever effaces one of the pure and holy names of the Holy Blessed One violates a prohibition of the Torah.”[5] This prohibition applies to the “seven (Hebrew) names that are never to be blotted out.”[6] (It is important here to emphasize the word Hebrew: the prohibition does not apply to the name of God when it is translated into any other language.[7]) It applies even when these names of God are inscribed upon implements of glass or metal rather than written upon parchment or paper.[8] It applies to printed texts[9] and to texts that are produced photographically.[10] For this reason, our tradition would forbid us from recycling old or worn prayerbooks. We dispose of them in the same manner that we dispose of old and worn Torah scrolls: by storing them away in a genizah or by burying them in the ground.[11]

Some might argue that, as a matter of social concern, the mitzvah to protect the environment takes precedence for Reform Jews over the purely ritual prohibition of defacing the Divine name. We categorically reject that argument. “Social” mitzvot do not always and necessarily override “ritual” ones. While ethics and social justice are central to Reform Jewish thought, they are not on that account more “important” than the ritual acts by which we worship God, celebrate the seasons of the year and of our lives, and sanctify the world around us. Holiness, the goal of Jewish life, requires both sorts of behavior; ritual acts, no less than ethical ones, play an indispensable role in the construction of our religious world. That Reform Judaism has done away with a number of ritual mitzvot is a fact of our history; it does not mean that ritual obligations must automatically yield in the face of conflicting ethical or social obligations.[12] This is rather a judgment that we must make in each specific instance. We should not discard any aspect of our religious behavior until we have carefully considered its place in our experience and the demands that it makes upon us. In the present case, the prohibition against defacing sacred texts is a mitzvah that we take in all seriousness and that retains its relevance for us. The traditional rules concerning the treatment of our sacred texts, which teach us how to find God and to live Jewishly, are as valid for us as they are for other Jews.[13] We cannot answer this question, therefore, merely by saying that the “ethical” act trumps the “ritual” one. Both are mitzvot, and we must seek another way to resolve the conflict between them.

Exceptions to the Prohibition. One way to do just that is to consider the exceptions that Jewish law recognizes to the prohibition against effacing azkarot. As we examine these exceptions, let us ask whether any of them might offer a justification for the recycling of old prayerbooks.

Indirect Causation. The Talmud[14] records an opinion that permits one “upon whose flesh the name of God is written” to immerse in a mikveh, even though the water will erase the name, so long as he himself does not rub away the writing. The reason is that Deuteronomy 12:4 prohibits us only from taking direct action to destroy the name of God; the law does not forbid destruction by means of indirect causation (g’rama), that is, by putting the text in a place where some other factor, such as water, will erase the name. Although the leading codifiers omit this opinion,[15] the halakhah does posit that activities otherwise prohibited (for example, those involving labor on Shabbat) might be permitted when accomplished by indirect causation.[16] On this basis, some leading authorities rule that there is no prohibition against taking an action that leads indirectly to the effacement of the Divine name.[17] This in turn has led at least one contemporary Israeli halakhist to permit the recycling of sacred texts: since the recycling process involves a complicated chain of steps, the act of placing the texts in a recycling bin does not directly cause their destruction.[18]
To us, however, this line of thinking is not persuasive. G’rama is a flimsy basis upon which to justify the destruction of sacred texts.[19] As a matter of substance, we see no difference between the direct and the indirect effects of our action. We are surely responsible for any outcome that is the inevitable, planned result of our action, whether we were the immediate cause of that outcome or simply the first in a chain of causes.[20] Since, in our case, the effacement of the Divine name is the inevitable and planned result of the recycling process, it makes no substantive difference that we do not efface it directly, with our own hands. By placing the books in a recycling bin, we knowingly set off a chain of events that leads inevitably to their destruction; thus, we are responsible for that outcome. If, therefore, we would refrain from destroying a sacred text with our own hands, then we should be equally reluctant to destroy it through indirect means.

Destruction for the Sake of Repair. It is not forbidden to erase the Divine name when the goal is to correct the text. For example, should the letters of the name come into contact with each other, or should ink spill across them, it is permitted to scrape the ink from that spot; “this is a correction (tikkun), not an erasure.”[21] Might we permit the recycling of old prayerbooks as a different sort of tikkun, as tikkun ha`olam, an act undertaken in order to “repair the world”?[22] This argument, too, falls short, because it makes the erroneous assumption that a sacred text we no longer use ought to be sacrificed to serve a “higher” purpose. As we have already suggested, we cannot say that concern for the environment necessarily outranks the reverence for sacred texts on our scale of Judaic priorities. Both of these values are exalted purposes; we have no calculus by which we can declare that one must automatically give way to the other.

Destruction to Save the Text From Disgrace. If neither of these two exceptions to the “no-destruction” rule offers a remedy for us, there is a third exception that does. The eighteenth-century sage R. Yaakov Reischer ruled that it is at times permissible to dispose of worn sacred texts by burning them. If a community has run out of space in which to store their rapidly accumulating texts, these might well be shoved into “filthy places” or trampled underfoot; in such a case, one is permitted to consign them to the flames as the only way to save them from contemptible, disgraceful treatment (bizayon).[23] While some disagree sharply with Reischer’s conclusion,[24] similar considerations led two outstanding nineteenth-century authorities, R. Naftali Tzvi Yehudah Berlin of Volozhyn[25] and R. Yitzchak Elchanan Spector of Kovno[26] to permit Jewish printers to burn the galley proofs and spoiled pages of Bibles and prayerbooks. Here, too, the large quantity of these proofs and pages, the unavoidable products of the printing process, made it virtually impossible to store them away or to bury them, so that destroying them was the only sure means to protect them from bizayon. These scholars, we should note, were reacting to the challenges posed by the new technology of printing, which by increasing the number of sacred texts had also increased the problem of their proper disposal. At the same time, they recognized this new technology, which had made prayerbooks and works of Torah widely available and affordable, as a most positive contribution to the quality of Jewish spiritual and intellectual life. None of them calls upon the community to abandon the printing of sacred texts, even though such a course would have greatly reduced the number of texts that required disposal. They opted instead for a different means of disposal as the best available response to the problems associated with this new technology.

The situation we face today in our schools and synagogues is not at all dissimilar to theirs. Thanks to new technologies–in our case, photocopying and electronic publishing–we, too, produce a tremendous quantity of texts for study and worship. As did our ancestors, we regard our new technologies as a blessing, because they do much to help us fulfill the mitzvot of study (talmud torah) and prayer (t’filah). Yet like the Jews of those days, we find that limitations on space make it virtually impossible for us to store away or to bury all of these papers once they have served their purpose. And we worry, as did they, over what will happen to these texts if we do not find some acceptable alternative means of disposing of them. Bizayon, the contemptible and disgraceful treatment of sacred texts, is as much a concern for us as it was for our ancestors. The very holiness of our texts demands that we treat them with respect when we use them and in the means we choose to dispose of them when the time comes; we do not wish to toss them into the trash heap or dump them out with the garbage. We could address the disposal problem, of course, by abandoning these new technologies so as to produce less material. But given their very real usefulness to us in our study and our worship, we are as reluctant to do that as our ancestors were reluctant to turn their backs on the printing press. Therefore, just as leading authorities could countenance the destruction of printed sacred texts in order to save them from disgraceful treatment, we can do the same with the texts that we produce by photocopying and electronic publishing. And if it is permitted to destroy these texts as a means of preserving their honor, we think that it is even more proper to recycle them, since in doing so we act to fulfill the mitzvah of environmental responsibility.

We add this caveat, however: the above reasoning applies only to texts that exist in the form of loose pages, pamphlets, or in any other way that suggests their temporary or ephemeral function in our religious activity. It does not apply to prayerbooks, chumashim, and Bibles, for two reasons. The first reason is that we are willing to countenance the rapid destruction of sacred texts if and only if such disposal is required to save them from bizayon, disgraceful treatment. This may be the case with texts produced by copier and computer, which accumulate so rapidly that were we not to adopt this remedy we would quickly run out of space to bury or store them. The same cannot be said about bound books, which we tend to acquire in rather fixed quantities. It is difficult to imagine that most of our congregations cannot find the means to dispose of these books in the traditional way, by burying them, by storing them away, or by donating them to other communities. The second reason has to do with the nature and function of these books. Prayerbooks, Bibles, and chumashim are intended for our permanent or long-term use. They therefore embody a degree of kedushah and lasting worth that other printed and photocopied pages do not attain. We encounter and express this kedushah in the careful and reverent way that we treat–or at least ought to treat–these books. That sense of reverence and devotion testifies to the fact that these bound volumes occupy a status in our religious life quite unlike that of photocopied pages and computer printouts. These books are our constant companions in worship and study, guiding us through the yearly cycles of daily, Shabbat, and festival observance. They symbolize in physical form the very message that their words would teach us: namely, the enduring values of human and Jewish life, that which is eternal and lasting over against that which is temporary and evanescent. Given what these books mean to us as individuals and as communities, it is inappropriate to dispose of them in the same way that we permit ourselves to dispose of more ephemeral texts.

It might be argued that burying or storing away our worn religious books is a senseless and wasteful misuse of space. It might be argued that, as long as these books no longer serve a useful purpose for us, it is better to recycle them so that they may serve the mitzvah to protect the environment. To this, we respond: yes, we are committed to preserving the environment. In the name of that commitment, our communities ought to recycle all their reusable waste products. Yet we are committed to other values as well. One of these is the respect we owe to our sacred books, and that value precludes us from defining our old and worn prayerbooks, chumashim, and Bibles as “waste products.” It is the essence of “sanctity” that we treat a sacred object not in a way that we find useful and not even in a way that, to our mind, serves some “higher” purpose. rather, we treat that object in the manner prescribed by our tradition, the very source of knowledge and value that declares its true purpose, that defines it as “sacred” in the first place.[27] Therefore, if we can no longer use our sacred books, or if we cannot donate them to individuals or institutions that can, we should retire them as our tradition teaches us to do so, putting them away in a genizah or burying them in the earth. By doing this, we acknowledge their holiness as well as their usefulness. By doing this, we render them the honor they deserve. By doing this, moreover, we can teach an important lesson about the need to focus our attention upon the things in our world that are of permanent worth. And that lesson, too, in a throwaway culture such as ours, is part and parcel of our environmental ethic.

Conclusion. The traditional Jewish teachings concerning the proper treatment of our sacred texts continue to speak to us today. We should strive to dispose of worn sacred texts in the traditional manner, through genizah or burial, whenever possible.[28] We may recycle them if that is the only practical way of preserving them from disgraceful treatment, provided that these texts are intended for our temporary and ephemeral use. Prayerbooks, chumashim, and Bibles, books that enjoy a status of permanence and kedushah in our religious lives, should not be recycled; we should dispose of them by the traditionally prescribed procedures.

NOTES

This mitzvah, often referred to by its technical Rabbinic designation bal tashchit, is rooted in Deuteronomy 20:19-20, a prohibition against destroying fruit-bearing trees as part of a military siege. The Rabbinic tradition, summarized by Maimonides in Sefer Hamitzvot, negative commandment no. 57, extends this prohibition to the wanton destruction of manufactured articles such as clothing. (“Wanton” is our rendering of the Rambam’s term larik, which might also be translated as “vain,” “senseless,” or “for no good purpose.”) See also Yad, Melakhim 6:10, where Rambam numbers tools, clothing, buildings, natural springs of water, and foodstuffs among the items that may not be destroyed derekh hashchatah, in a wanton and purely destructive manner. The “wanton” aspect of this definition is significant, in that the halakhah permits us to destroy natural and manufactured items for a variety of acceptable human purposes (e.g., economic benefit and medical need; BT Bava Kama 91b-92a, BT Shabbat 105b, 128b-129a, and 140b). The fact that the prohibition seems to cover only those items that are of use to human consumption and that it is waived in numerous cases might lead us to conclude that destruction of the environment is unobjectionable so long as some human need can be cited to justify it. Yet we should remember that the protection of the environment is itself a vital “human need.” Environmental pollution and wasteful consumption of natural resources portend the most serious consequences for our future on this planet; they therefore constitute a clear example of what Rambam calls “wanton” (larik; derekh hashchatah) destruction. See also Sefer Hachinukh, mitzvah no. 529, which explains that destructiveness is a characteristic associated with evil; careful treatment of the world around us teaches us the habits of righteous people.
We refer the reader to Too Good to Throw Away: Recycling’s Prover Record, published in 1997 by the National Resources Defense Council and available at The report, written to counter a backlash against recycling among some conservative political and business interests, establishes beyond any serious doubt that recycling conserves natural resources, prevents pollution caused by manufacturing from virgin resources, saves energy, reduces the need for landfilling and incineration, helps protect and expand manufacturing jobs, and engenders a sense of community involvement and responsibility.
In its 1990 resolution entitled “Environment,” the Central Conference of American Rabbis resolved to “encourage institutions, congregations, families, and individuals to take it upon themselves to recycle as much of their waste as possible; CCAR Yearbook 100 (1990), 160-161. For the text of the resolution, see https://www.ccarnet.org/ccar-resolutions/environment-1990.
BT Makot 22a; Sifrei Deuteronomy 61:3.
Yad, Y’sodei Hatorah 6:1.
These are listed in BT Shevu`ot 35a; Yad, Y’sodei Hatorah 6:2; Shulchan Arukh Yoreh De`ah 276:9.
We follow here the ruling of the Siftei Kohen, the great 17^th-century commentator to the Shulchan Arukh: “The Name of God in Hebrew is properly considered a holy name. The Name of God written in any other language, however, is not a ‘holy name’ at all. You will understand this when you consider that it is permissible to erase a Name written in some other language, such as the word Gott in Yiddish or German” (to Yoreh De`ah 179, no. 11). For this reason, Rabbi Yosef Dov Soloveitchik used to say that “those who write the English word God in the form G-d do so out of ‘total ignorance’ (am-ha’aratzut gemurah)… since the English word God is not one of the formal Divine Names but merely a literary device that refers to the Holy One, Blessed be He”; R. Zvi Schachter, Nefesh Harav (Jerusalem: Reshit Yerushalayim, 1994), 161. True, there are authorities who dispute the Siftei Kohen (see R. Avraham Danzig, Chokhmat Adam 89:9) and who support the custom of writing the Divine Name as G-d (see R. Chaim Ozer Grodzinsky, 20^th-century Lithuania, Resp. Achi`ezer 3:32). We, however, following Maimonides and the other scholars we have mentioned, regard that custom as an unnecessary stringency.
Yad, Y’sodei Hatorah 6:6.
This issue touches upon the question whether “printing” (hadpasah) is the legal equivalent of writing (k’tivah). Some authorities who flourished during the early days of printing were of the opinion that the new technology was perfectly acceptable “for all texts that require writing” (R. Yom Tov Lipmann Heller, Moravia, 16th-17th c., Divrei Chamudot on R. Asher b. Yechiel, Halakhot Ketanot, Hilkhot T’filin, ch. 8, no. 23). Others accepted printing for some texts but not for all; thus, R. Menachem Azariah of Fano, Italy, 16th-17th c., ruled that a get might be printed although a Torah scroll must be written (Responsa, no. 93), as did R. Yair Bachrach, Germany, 17^th-c. (Resp. Chavat Yair, no. 184). See, in general, Yitzchak Z. Kahana, Mechkarim b’sifrut hat’shuvot (Jerusalem: Mosad Harav Kook, 1973), 274-276. Given that most authorities require that the holiest texts (Torah scrolls, t’filin, m’zuzot) be written rather than printed, one might draw the conclusion that printed texts are of a lesser degree of sanctity with respect to the prohibition against destroying the divine names contained in them. Yet this conclusion has been overwhelmingly rejected. See R. Binyamin Selonik (Poland, d.1610), Resp. Mash’at Binyamin, no. 99-100; Turei Zahav, Yoreh De`ah 271, no. 8; R. David Zvi Hoffmann (Germany, 19th-20th c.), Resp. Melamed Leho`il, Yoreh De`ah, no. 89; and R. Avraham Karelitz (Israel, d. 1953), Chazon Ish, Yoreh De`ah, ch. 164.
Some authorities seem to draw a distinction between printing and the photo-offset method of publication: the former is much more akin to “writing” than the latter. Still, “we must not be lenient with the disposal of these texts, for that would be prohibited as the contemptible treatment of holy writings (bizayon kitvei kodesh)”; R. Shalom Schwadron (Galicia, 19^th c.), Resp. Maharsham 3:357. R. Moshe Feinstein (USA, 20^th c.) notes that photocopying, though it cannot produce acceptable Torah scrolls, tefilin, and mezuzot, nonetheless “performs the work of writing” because it makes the letters visible; Resp. Igerot Moshe, Orach Chayim 4:40.
See our responsum no. 5757.4, “Proper Disposal of a Worn Sefer Torah,” https://www.ccarnet.org/ccar-responsa/nyp-no-5757-4.
We have reached this conclusion several times, for example, with respect to Shabbat observance. We have said that tz’dakah projects involving physical labor, monetary transactions, or other violations of what we consider to be proper Shabbat observance ought not to be permitted on that day. Although tz’dakah is a great mitzvah, Shabbat is also a mitzvah, an indispensable feature of Jewish religious life. Shabbat makes legitimate demands upon our attention, and it cannot be set aside merely because its observance would tend to interfere with the performance of tz’dakah. See our responsa 5757.7 (“The Synagogue Thrift Shop and Shabbat”), 5756.4 (“Presenting a Check for Tz’dakah at Shabbat Services”), Teshuvot for the Nineties, no. 5755.12, pp. 165-168 (“Delayed Berit Milah on Shabbat”: “The fact that Shabbat ‘conflicts’ with another mitzvah or worthy cause does not mean that it is Shabbat which must give way”), Teshuvot for the Nineties, no. 5753.22, pp. 169-170 (“Communal Work on Shabbat”), and American Reform Responsa, no. 52, pp. 53-55 (“Substituting for Christians on Christmas”).
See our responsum 5760.3, “A Defective ‘Holocaust’ Torah Scroll,” as well as responsum no. 5757.4, cited in note 11.
BT Shabbat 120b; the opinion, cited in a baraita, is that of R. Yose.
Yad, Y’sodei Hatorah 6:6, rules that it is forbidden to immerse without covering the inscription. The Tur and the Shulchan Arukh do not address this issue at all.
The classic source for this rule is M. Shabbat 16:5 and BT Shabbat 120b: while it is forbidden to extinguish a fire on the Sabbath, one is permitted to place vessels containing water in the path of a fire, so that when the heat of the flames causes them to break, the water will quench the fire. See Yad, Shabbat 12:4-5, Shulchan Arukh, Orach Chayim 334:22, and Y. Noivirt, Sh’mirat Shabbat K’hilkhatah 41:16-17. From this rule, most halakhic opinion draws an analogy to all acts of labor (melakhot) normally prohibited on Shabbat: the law does not forbid actions that bring about the desired effect in an indirect manner (Mishnah B’rurah to 334:22 in Be’ur Halakhah; R. Shaul Yisraeli in Torah Sheb`al Peh 24 (1983), 21.
Among these is R. Moshe Sofer (Hungary, 18th-19th c.), Resp. Chatam Sofer, Orach Chayim, no. 32. For a summary of opinions on both sides of the issue, see R. Chaim Chizkiah Medini (Eretz Yisrael, 19^th c.), S’dei Chemed, kelaley ha-mem, no. 11-12.
R. Shabetai Rappaport, Alon Sh’vut 86 (Adar, 5741/1981), 68-77. See also R. Uri Dasberg, Techumin 3 (1982), 319-321.
As a matter of technical halakhah, a number of authorities hold that the permit to cause indirectly (through g’rama) the destruction of a sacred text applies only to such works of Rabbinic literature that do not contain azkarot (e.g., Mishnah, Talmud, midrashim) but not to Bibles, chumashim, and prayerbooks that do contain those names. See, for example, R. Moshe Feinstein (USA, 20^th c.), Resp. Igerot Moshe, Orach Chayim 4:39.
This, in fact, is how Professor Shalom Albeck explains the Jewish legal rule that one who causes damage through indirect means is exempt from liability. “A person is liable for damages that he brought about as the first of a chain of causes if he should have known that his act would inevitably result in that damage”; in other words, indirect causation is exempt from liability only when no actual negligence is involved. See Pesher Dinei Nezikin Batalmud (Tel Aviv: Devir, 1965), 44. We think that the same should apply in other areas of the law: one should not be absolved from responsibility for the indirect results of one’s action if one should have known that the action would lead to that result.
Shulchan Arukh, Yoreh De`ah 276:11. See Tractate Soferim 5:7.
This is not the place to chart the history of the term tikkun ha`olam in Jewish practice. Suffice it to say that the term serves in Mishnaic halakhah as a justification for Rabbinic legislative enactments designed to correct abuses in the law, i.e., instances where the literal application of the Toraitic legal standard would lead to a socially undesirable result (see especially Mishnah Gitin, chapters 4 and 5). The contemporary use of the term as a synonym for “social action” is related to, though not identical with, its original usage.
Resp. Sh’vut Ya`akov 3:10.
R. Yechezkel Katznelbogen (Germany, 18^th c.), Resp. K’nesset Yechezkel, Yoreh De`ah no. 37; R. Shaul Nathanson (Galicia, 19^th c.), Resp. Sho’el Umeshiv, v. 3, part 2, no. 15.
Resp. Meshiv Davar 2:80.
Resp. Ein Yitzhak nos. 5-7.

NYP no. 5768.3

CCAR RESPONSA

5768.3

On Human Genetic Modification

She’elah

Positive eugenics is the medical process through which science and medicine is allowing parents to facilitate genetic enhancements in their children. Through a procedure known as prenatal genetic diagnosis (PGD), for example, parents can screen the genetic potential of zygotes and thereby choose the most “desirable” fetus. To be sure, we believe that negative eugenics is often immoral — the most evil example of negative eugenics is genocide. What does Judaism have to say about the morality of positive eugenics? Is genetic enhancement moral according to Judaism? Specifically, is PGD allowable for the selection of a “desirable” fetus from among a number of fertilized zygotes? Also, may we modify such zygotes prior to implantation for the purpose of enhancements such as increased height or intelligence, rather than for remedy? (Rabbi Josh Burrows, Washington, DC)

Teshuvah.

Prenatal genetic diagnosis (PGD) is often classified under the heading of “genetic engineering.” This may not be entirely accurate. While genetic engineering has been defined as “a process of inserting new genetic information into existing cells in order to modify a specific organism for the purpose of changing one of its characteristics,”[1] PGD is a much less intrusive technology; it involves no directed alteration of a cell or organism but rather an act of choice among existing zygotes. This, perhaps, is why our she’elah identifies PGD as a form of “eugenics,” a science “that deals with the improvement (as by control of human mating) of hereditary qualities of a race or breed.”[2] Yet there are differences here, as well. The concept of eugenics has been discussed and practiced for many centuries, whereas PGD, like genetic engineering, has been made possible thanks to recent advances in genetic technology and for that reason suggests a different set of questions. Given these similarities and differences, we want to examine our she’elah as an element of a larger topic that we would term “genetic modification,” which would include both genetic engineering and PGD. What is the attitude of Jewish tradition toward the range of new technologies that are intended to modify the generation of human life, that is, the outcome of the process of conception, birth, and procreation?[3] On the basis of that discussion, we can better address the specific question that has been posed to us.

1. Genetic Modification: No Prohibition. We begin by noting that halakhic authorities (poskim) have identified no traditional Jewish ritual prohibition (isur) against contemporary technologies of genetic modification. This conclusion might seem surprising, given the Biblical prohibition of kilayim, the mixing of diverse species in (among other things) the breeding of animals (Leviticus 19:19).[4] Yet leading poskim point out that the verse explicitly reads “You shall not let your cattle mate (lo tarbi`a) with a different kind,” that is, the prohibition deals specifically with the mating of mixed species and not with the “mixing” of genetic materials in a laboratory setting.[5] Since no other Biblical passage would seem to offer grounds to prohibit genetic modification, we are not required to deduce such a prohibition by means of creative interpretation.

To be sure, some commentators, including Nachmanides (Ramban), identify a governing rationale behind the mitzvah of kilayim: to instruct us that God’s creation is perfect as it is and that one who “mixes” the species denies that perfection.[6] Were we to adopt this reasoning, we might conclude that Jewish tradition opposes genetic modification as an impermissible tampering with ma`aseh bereishit, the order of creation. Yet not all halakhic authorities have drawn this conclusion. While some take a very restrictive attitude toward these new technologies,[7] others emphasize that Jewish thought has historically recognized the human control over the natural order: that is, the created universe has been entrusted to us to use, to exploit – and to alter – for our own benefit.[8] One classic statement to this effect is that of Nachmanides himself, who notes in his commentary to Genesis 1:28 (“… God said to [the man and the woman]: Be fertile, and increase, fill the earth and master it…”) that “God has given to humankind power and sovereignty over the earth, to do as they please with the animals and all that creep upon the earth, to build, to uproot, and to plant.” This statement, in turn, has been cited by halakhists in support of a permissive approach toward genetic engineering.[9] Our task here is not to resolve these two apparently contradictory statements of Nachmanides. We would simply note that Jewish tradition offers a range of understandings of humankind’s proper relationship to the natural world. For this reason, we cannot say that Jewish tradition requires that we regard the existing natural order, including the existing genetic structures of the various species of plant and animal life, as sacred and inviolate. This might imply, in turn, that there is no clear Jewish religious or legal objection to our manipulation of the genetic code of plants, animals, or even of human beings.[10]

2. Genetic Modification: Positive Support from the Jewish Tradition. Our sources, moreover, offer some positive evidence in support of this more permissive view.[11] We read in the Talmud:[12]

Rabbi Yochanan used to sit at the gates of the mikveh. He explained: “When the daughters of Israel come forth from their required immersion, they will look at me and may have sons who are handsome as I and as learned in Torah as I.”

His reasoning was that the women would be thinking of him when they went home to have intercourse with their husbands at the conclusion of their period of nidah, and that image would be imprinted upon the children they conceived. In a similar vein, Rabbi Yitzchak says, “One who places his marital bed in a north-to-south direction is sure to beget male offspring.”[13] Today, obviously, we regard these “technologies” as rank superstition. They may be better described as segulot, measures that work (if they work at all) through supernatural means and that far from replacing the “will of God” in the human reproductive process actually require Divine intervention to be successful. Yet these sources do suggest that the Sages did not object in principle to measures undertaken by human beings to influence the outcome of the “genetic lottery” and to try to insure that children would possess qualities that their parents thought desirable. From here we might learn that we, too, need not refrain from intervening in matters relating to human reproduction. And this thinking has guided contemporary halakhic authorities, including those representing the Reform responsa tradition, who have generally supported the use of advanced techniques to assist human reproduction (artificial insemination,[14] in vitro fertilization[15]), as well as such procedures as human stem cell research[16] and cloning.[17] Every one of these technologies could be viewed as a violation of the natural order, an imposition of human will upon that which ought to be reserved for Divine authority.[18] Yet the affirmative rabbinical attitudes suggest that we Jews do not necessarily view them as such. Rather, we can perceive them as the application of human reason, itself gift of God, toward finding remedies for human infertility and treatments for disease.

2. Genetic Modification: Causes for Concern. On the other hand, the fact that the sources of Jewish law do not explicitly prohibit the techniques of genetic modification does not mean that we enthusiastically support the application of those techniques under any and all circumstances. The Torah, as our teachers remind us,[19] is a written document and therefore cannot mention every conceivable issue of human conduct. For this reason, it speaks to some of those issues specifically and then offers us general rubrics or values – such as “holiness” or “righteousness” – by which we should determine our behavior in matters to which the text does not explicitly address itself. A specific action or behavior might not violate an explicit prohibition, but it might well run counter to one of those general principles, the higher standards of conduct to which the tradition would have us aspire. How we ought to apply these general, higher standards to specific questions is not obvious. Indeed, the precise meaning of terms such as “holiness” and “righteousness” in any specific instance will inevitably be contested. Yet this inherent ambiguity does not mean that we should ignore the demands of higher principles. Rather, we should consider them carefully and argue their implications as thoroughly as we can.

Along these lines, two major causes for concern make us hesitant to declare that Jewish tradition unreservedly “permits” the technologies of genetic modification.

a. Environmental Concerns. Before we can endorse any technology, we must first consider the effects it may have upon the natural environment.[20] In this case, we simply do not know enough about the potential hazards involved in the release of genetically-modified organisms (GMOs) into the environment to respond with a blanket heter (permit). In particular, with respect to genetic modification of humans, one hears dire predictions that such techniques, in the wrong hands, might be used to produce a “super race” of human beings. Some rabbis warn that they may lead to the breakdown of our social structure and of the family unit.[21] These fears may strike us as lurid or far-fetched, based as they are upon a form of “slippery slope” argumentation that is, at best, controversial.[22] As rabbis, at any rate, it lies beyond our professional competence to evaluate the probability that genetic manipulation technologies will produce ill effects upon our environment. Still, we do not believe it irrational to feel a deep concern over the potential for such effects. For example, while the Union for Reform Judaism is on record as supporting research using somatic gene therapy, i.e., the alteration of the genetic makeup of an individual organism, it pointedly does not endorse germline gene therapy, “which is more controversial and involves changes to an individual’s genetic makeup that can then be passed on to future generations, with unknown implications and potential complications.”[23] These implications and complications, precisely because they are “unknown” and “potential,” cannot be predicted with certainty. Yet their very prospect suggests that the only sane response to human genetic modification is one of extreme caution.[24]

b. Human Concerns. In addition to potentially damaging effects upon the environment, human genetic modification may also pose serious hazards to the very nature of our humanity. That is to say, it may alter in fundamental ways the manner in which we relate to the community and to our conception of our role as participants in human society. And Jewish tradition, we believe, would cast a worried eye toward the possibility of such changes. Although, as we have seen, Judaism accepts humankind’s dominion over physical creation, our sources also sound a cautionary note, warning us to avoid arrogance, to maintain our humility even at moments when we exercise our mastery, to keep far from the illusion that “my own strength and power have acquired all this abundance for me” (Deuteronomy 8:17). To put this metaphorically, we are entitled to eat the fruit of the garden (Genesis 2:16) on condition that we tend to the garden and protect it (Genesis 2:15).[25] The larger theological idea at issue is that of covenant (berit). To say that we exist in a covenantal relationship with God is on the one hand to assert a deep sense of our dignity and standing in God’s eyes; on the other hand, it is to suggest that there are proper limits to our assertiveness. This tension is reflected in the way that our sources famously describe humankind as “God’s partner (shutaf) in the work of creation.” We become God’s “partner” by following the rules God lays down for us: when we arrive at the correct legal decision,[26] when we keep the festivals properly,[27] or when we recite the passage Vayekhulu (Genesis 2:1-3) during the Friday evening prayers.[28] We would ask, therefore, what becomes of this notion of “partnership” when we undertake the enhancement of our offspring through means of genetic manipulation? Our question evokes the famous midrash on Genesis 1:26 (“Let us make the human being in our image and after our likeness”): from now on, says God, the human being shall be created by us, not by male or female alone, but by the two of them, together with God’s active participation.[29] Human life is created, yes, by human beings, but created by them in concert with God, with a sense of awe and reverence before the blessing of new life, conscious of the extent of our power and yet aware of the physical and moral limitations upon it. What happens to this sense of balance, of limitation, and of proportion when we arrogate to ourselves the power to design the genetic makeup of our children totally in accordance with our own desires?[30] What sort of people do we become when we assert our dominion over the generation of human life to the extent that these new genetic technologies make possible? What, moreover, becomes of our relationship to our children when we are empowered to “order” them in accordance with a list of desired specifications? Do we not risk turning them into commodities whose worth is measurable precisely on the basis of those specifications? We are concerned that the availability of this power will serve as an invitation to precisely the sort of arrogance that our tradition decries. Indeed, it will serve to convince us that there are no limitations (aside from technological ones) upon our right to affect and control the generation of human life.

Some of our readers, we realize, will not find these questions troubling. They will argue that the technologies of genetic manipulation pose no special or unprecedented assertion of human power. Genetic enhancement in their view is simply a form of education. They will claim that it is no less ethical “to allow parents to pick the eye color of their child or to try and create a fetus with a propensity for mathematics than it is to permit them to teach their children the values of a particular religion, try to inculcate a love of sports by taking them to football games, or to require them to play the piano.”[31] In our view, however, genetic manipulation may differ in kind, and not merely in degree, from those more traditional means of “improving” our children. It is one thing to educate our children in accordance with a set of values and virtues that we deem proper. It is the very nature of parenthood to “teach our children diligently” the path that we would have them walk.[32] At issue here, by contrast, is a level of control over our children that can hardly be compared to or described as “teaching.” We are, of course, far from neutral when it comes to wanting the best for our children. We are justified in acting so as to influence them to make good choices in their lives. But to our mind there is a huge difference between doing our best to influence outcomes (the talents that our children possess, the preferences they display, the decisions they are called upon to make) and acting so as to determine those outcomes. The latter, the province of human genetic enhancement, would tend to restrict the freedom of choice that is the basis of our conception of ethics and human personhood. It constitutes a radical and thoroughly unprecedented assertion of our control over the lives of others.

We should note that one need not be “religious” to share these concerns. There are prominent thinkers working from a secular liberal perspective who warn that the widespread availability of genetic enhancement technologies will foster the kind of world in which some of our most cherished moral values – humility; the unconditional love of parents for their children; solidarity with those who are less fortunate than we – are called into question.[33] They fear that it will be a world intolerant of human “weakness,” disability, and diversity, and they predict that such intolerance will fall heavily upon those segments of the population that do not choose – or cannot afford – to avail themselves of these technologies. Those parents who do not utilize genetic screening in order to produce more “successful” offspring, to say nothing of the offspring themselves, will bear the burden of their children’s “failures.” As one author puts it:[34]

The successful would become even more likely than they are now to view themselves as self-made and self-sufficient, and hence wholly responsible for their success. Those at the bottom of society would be viewed not as disadvantaged, and so worthy of a measure of compensation, but as simply unfit, and so worthy of genetic repair. The meritocracy, less chastened by chance, would become harder, less forgiving.

We, who approach the world from a perspective that is religious as well as liberal, would add that the values of humility, love, and social solidarity that these secular thinkers wish to preserve are firmly rooted in traditional Judaic teachings concerning our proper relationship to the world and to God. A world in which the technologies of human genetic enhancement are routine will be a world that dulls our quality of mercy and compassion, our capacity to empathize with our fellow humans, and our passion for social justice. Living in such a world may cause us to forget the message of our tradition that we human beings are not the sole masters of our nature and destiny. That act of forgetting would signal a terrible loss for humanity. We do not wish to create that sort of world for ourselves and our descendants.

Having stated our concerns over the application of the technologies of human genetic enhancement, we acknowledge that we are operating in a realm of great uncertainty. We cannot prove beyond reasonable doubt that the widespread availability of these technologies will necessarily produce the unfortunate effects that we have described. At the same time, we cannot predict with any confidence that these things will not happen if human genetic enhancement becomes a widespread practice. We find it vital, therefore, to state these possibilities clearly and not to dismiss them out of hand as improbable and far-fetched. The stakes involved, after all, could hardly be higher.

3. Medical Versus Non-Medical Applications: The Crucial Distinction. What, then, should be our response to questions such as the one addressed to us? Whatever answers we derive must proceed from a point we have already raised: our sources offer support for two differing understandings of our relationship as human beings to the created universe. We do not seek to proclaim that one of these understandings – mastery and dominion on the one hand, humility and restraint on the other – is the “correct” or better interpretation of Jewish tradition. Both are “correct,” because each makes its proper demands upon us. Judaism permits us to exercise our technological power over the natural environment, but it also asks us to place appropriate limits upon that power. Our response to this she’elah therefore seeks to define that crucial term “appropriate,” to strike a balance between the requirements of both lessons of our tradition, of both ways of looking at and acting in the world.

We find such a balance, as we have with respect to other controversial technologies,[35] in the distinction between medical and non-medical applications. Given that Jewish law and tradition offer no clear prohibition against the technologies of human genetic modification, there is no justification for rejecting their use for legitimate medical purposes. The practice of medicine is a mitzvah; it partakes of pikuach nefesh, the act of saving human life, which our tradition recognizes as our highest moral obligation.[36] To turn our back upon these newly-developed treatments for disease would accordingly be a senseless, self-destructive act in violation of that mitzvah. The better response is one of gratitude: we ought to give thanks that science has improved our ability to relieve human suffering.[37] On the other hand, to the extent that these technologies are to be employed for non-medical ends, our attitude would be more restrictive. We should emphasize that this is not a firm “no” to any and every application of these technologies for ends that are not strictly speaking medical. We recognize that there may be non-medical applications for human genetic enhancement that, when we consider each case on the basis of its own merits, will strike us as legitimate and compelling. We speak here rather of general tendencies: when the aim of genetic enhancement is not to fulfill the mitzvah of pikuach nefesh, the “causes for concern” that we have raised would correspondingly become more urgent and predominant in our thinking.

The line between “medical” and “non-medical” can be difficult to draw. The definition of “medical” is inherently controversial, in no small part because the definition of “disease,” the condition that medicine is meant to remedy, is also controversial.[38] Suppose, for example, that prenatal screening indicates that an embryo displays a genetic abnormality associated with albinism, or deafness, or short stature. Are these to be considered “diseases,” as proper subjects for intervention by way of genetic manipulation? Some define “disease” as a condition that the community judges to be “abnormal, dysfunctional, and disvalued”; if we accept that standard, “the entire process of defining health and disease must be subjective and especially vulnerable to political or social influences.”[39] Yet the fact that the definition of “disease” is not entirely objective does not mean that the term cannot be defined or that it has no substantive content. We might liken the situation to that of a spectrum. At the one end, we group those conditions that most of us would with confidence describe as “diseases,” while at the other end are those conditions that, even though we might wish to avoid them, we cannot so define. In between these two extremes will be conditions about which we will be in doubt: are these “diseases,” or are they simply realities that we may wish were different? We should consider these conditions on a case-by-case basis, open ourselves to arguments for both sides, and make the best decision that we can. We will surely disagree among ourselves as to the conclusions we draw. But such disagreements are the stuff of ethical argument and, indeed, of the study of Torah in all generations.

4. Conclusion. We cannot, therefore, draw a hard and fast general rule that distinguishes between acceptable and unacceptable use of prenatal genetic diagnosis (PGD) in all cases. What we can say is that in the cases described in our she’elah, where PGD would be employed to produce children with “increased height or intelligence,” the procedure would serve a decidedly non-medical purpose. These are goals of enhancement; they are not legitimate therapeutic responses to disease. As such, we would counsel against them. True, these enhancements would involve a choice among existing embryos rather than the directed genetic modification of any of them. They are, however, “enhancements” just the same, and of a piece with the technologies of human genetic modification that we have discussed, and over which we have expressed our deep concern, in this teshuvah.

One final note. Our she’elah speaks of a distinction between “positive” and “negative” eugenics. This calls to mind the eugenics movement that rose to social and cultural prominence in the United States and other Western countries during the early- to mid-20th century. That movement used the phrase “negative eugenics” to describe steps aimed at discouraging (or prohibiting) reproduction among those deemed unfit, while “positive eugenics” referred to measures that would encourage reproduction among the “fit” elements of the society. The movement as a whole, including its particular conceptions of human “fitness,” was rooted in a social outlook that was frankly racist;[40] there is, in other words, little that we find “positive” in “positive eugenics.” While present-day advocates of “genetic enhancement” should not be declared guilty by way of linguistic association, the fact that their terminology bears such connotations is another reason for us to think long, hard, and carefully before endorsing such measures.

NOTES

1. United States. Environmental Protection Agency, “Terms of Environment: Glossary, Abbreviations and Acronyms,” http://www.epa.gov/OCEPAterms/gterms.html (accessed January 27, 2008).

2. The definition is taken from Medline Plus, an online medical dictionary maintained by the United States National Institutes of Health, http://www.nlm.nih.gov/medlineplus/mplusdictionary.html (accessed March 3, 2008).

3. Much of what we write here is informed by the responsum of our colleague Rabbi Walter Jacob, “Jewish Involvement in Genetic Engineering,” Questions and Reform Jewish Answers (QRJA) (New York: CCAR, 1992), no. 154, pp. 247-252 and http://data.ccarnet.org/cgi-bin/respdisp.pl?file=154&year=narr . We shall extend some of the conclusions to be found there, as Rabbi Jacob notes that his responsum “is not intended to discuss genetic engineering in human beings” (p. 247).

4. See also Deuteronomy 22:9-12. These laws are set forth in the mishnaic tractate Kilayim and in the section of Maimonides’ Mishneh Torah called Hilkhot Kilayim.

5. R. Shelomo Zalman Auerbach (Israel, d. 1995), Resp. Minchat Shelomo 2:100. See also A. S. Avraham, Nishmat Avraham (Jerusalem: Falk Schlesinger Institute, 1991), v. 4, p. 216.

6. Nachmanides, Lev. 19:19; see also Sefer Hachinukh, comm. no. 331. This diverges from the approach of Rashi (Lev. 19:19), who classifies kilayim in the category of gezeirot, commandments that have no apparent logical or rational explanation and are to be obeyed simply because they are expressions of God’s will.

7. R. Shelomo Goren, Torat Harefu’ah (Jerusalem, 2001), 269, cites Genesis 5:3 (“When Adam had lived for 130 years, he begot a son I his likeness, after his image”), and remarks: “(I)f we permit genetic engineering, it is possible that the human being will no longer produce children after his own image and likeness but rather according to the image chosen by scientists…”. It is difficult to imagine that Rabbi Goren expects this purely homiletical statement to be taken literally. He does not specify, for example, at just what point a genetically-altered person ceases to be “human” and is to be defined as something else. After all, even a cloned human being would be human. As an expression of his concern over potential abuses, however, the statement does deserve to be taken seriously.

8. Rabbi Jacob (note 3, above) makes this point at length.

9. Nishmat Avraham (note 5, above), v. 4, p. 215.

10. R. Michael Broyde reaches a similar conclusion on a related issue in his article “Cloning People: A Jewish Law Analysis of the Issues,” Connecticut Law Review 30 (1997-1998), 503-535. The article is also available at http://jlaw.com/Articles/cloning.html (accessed April 8, 2008).

11. One interesting attempt to find such positive support is based upon the comment of R. Yechiel Mechel Epstein that the Torah’s prohibitions do not apply to substances too small to be seen with the naked eye (Arukh Hashulchan, Yoreh De`ah 84:36). This determination allows him to explain why we are permitted to drink water and breathe air even though in doing so we ingest countless microorganisms that presumably are forbidden for consumption. On this basis, Jewish law could be said to be strictly neutral with respect to technologies such as genetic engineering that take place in the microscopic realm. This line of thinking is rejected, however, by contemporary authorities on the very reasonable grounds that the effects of genetic engineering occur in organisms that are indeed visible to us all; see Nishmat Avraham (note 5, above), v. 4, pp. 215-216.

12. B. Berakhot 20a, B. Bava Metzi`a 84a.

13. B. Berakhot 5b.

14. See American Reform Responsa (ARR), nos. 157-158 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=157&year=arr and http://data.ccarnet.org/cgi-bin/respdisp.pl?file=158&year=arr ). For a brief survey of the traditional halakhic discussion of this procedure see Mark Washofsky, Jewish Living (New York: URJ Press, 2001), 233-236 and 447-448.

15. See Responsa Committee, 5757.2, “In Vitro Fertilization and the Status of the Embryo” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5757 ) and 5758.3, “In Vitro Fertilization and the Mitzvah of Childbearing” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5758 ).

16. Responsa Committee, 5761.7, “Human Stem Cell Research” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5761 ); testimony of Rabbi Moshe Dovid Tendler, Ethical Issues in Human Stem Cell Research, Volume III: Religious Perspectives (Rockville, MD: National Bioethics Advisory Commission, 2000), H1-H5 (http://www.bioethics.gov/reports/past_commissions/nbac_stemcell3.pdf , accessed February 20, 2008).

17. See Broyde (note 10, above).

18. As they are viewed in fact under current interpretations of Roman Catholic theology. See Donum vitae, the statement of the Congregation for the Doctrine of the Faith published on Feb. 22, 1987 and signed by the prefect of the Congregation, Joseph Cardinal Ratzinger (now Pope Benedict XVI); http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html (accessed September 24, 2008).

19. The classic expression of this point is provided, once again, by Nachmanides, in his commentaries to Leviticus 19:2 and Deuteronomy 6:18.

20. For a brief statement of this argument, see our responsum “Endangered Species,” Teshuvot for the Nineties (TFN), 5753.3, pp. 319-320 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5753) .

21. For example, R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 15:45; R. Moshe Hershler in Halakhah Urefu’ah (Jerusalem: Makhon Regensburg, 1985), v. 4, 90-95; and R. Shelomo Goren (note 7, above), 265-275.

22. The “slippery slope” argument is a familiar feature in ethical and legal debate. Strictly speaking, it is not a logical fallacy, because it cannot be either proven or refuted by formal logical demonstration. For this very reason, though, the argument is always controversial. There is no formal logical reason why taking step A will necessarily lead to the undesired conclusion Z or why the slope cannot stop at B or C or at any other acceptable middle step. See, in general, Frederick Schauer, “Slippery Slopes,” Harvard Law Review 99 (1985), 361-383; G.D. Hartogh, “The Slippery Slope Argument,” in H. Kuhse and P. Singer, eds., A Companion to Bioethics (Oxford: Blackwell, 1998), 280-292; and Mark Washofsky, “On the Absence of Method in Jewish Bioethics,” in Alyssa Gray and Bernard Jackson, eds., Jewish Law Association Studies XVII (2007), at 265-267. For critiques of the use of the “slippery slope” argument in the area of human genetic engineering, see N. Holtuq, “Human Gene Therapy: Down the Slippery Slope?” Bioethics 7 (1993), 402-419, and T. McGleenan, “Human Gene Therapy and Slippery Slope Arguments,” Journal of Medical Ethics 21 (1995), 350-355.

23. Resolution on Stem Cell Research, adopted at the 67th General Assembly of the Union for Reform Judaism (Minneapolis, 2003), http://urj.org/Articles/index.cfm?id=7152&pge_prg_id=30698&pge_id=1625 (accessed February 20, 2008).

24. See Ingmar Persson and Julian Savulescu, “The Perils of Cognitive Enhancement and the Urgent Imperative to Enhance the Moral Character of Humanity,” Journal of Applied P{hilosophy (forthcoming). http://www.practicalethics.ox.ac.uk/Pubs/Savulescu/moral_enhancement.pdf , accessed on March 12, 2008. This article is especially interesting in that Professor Savulescu, Director of the Uehiro Centre for Practical Ethics at the University of Oxford, is otherwise known for his support of genetic enhancement of humans. See his “Why I Believe Parents Are Morally Obligated to Genetically Modify Their Children,” Times Higher Education Supplement, Nov. 5, 2004, p. 16, http://www.timeshighereducation.co.uk/story.asp?storyCode=192218&sectioncode=26, accessed on March 12, 2008.

25. See Avot deR. Natan, nusach aleph, ch. 11, and nusach bet, ch. 21: “R. Shimeon b. Elazar said: Even the first human being did not taste any food until he had performed an act of labor,” etc.

26. B. Shabbat 10a; Mekhilta de-Rabbi Yishma’el, Masekhta de`Amalek, ch. 2, on Exodus 18:13.

27. Pesikta Zutarta, ed. S. Buber (Vilna, 1880), 136b.

28. B. Shabbat 119b.

29. Bereshit Rabah 8:9 and parallels.

30. For an argument along these lines, see Daniel Schiff, “Developing Halakhic Attitudes to Sex Preselection,” in Walter Jacob and Moshe Zemer, eds., The Fetus and Fertility in Jewish Law (Pittsburgh: Freehof Institute of Progressive Halakhah, 1995), 91-117.

31. Arthur L. Caplan, Glenn McGee, and David Magnus, “What Is Immoral About Eugenics?” British Medical Journal 319 (1999), 1-2, http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1129063 (accessed on April 16, 2008).

32. On the traditional obligation to teach our children both Torah and a useful occupation, see B. Kidushin 29b and Yad, Talmud Torah 1:1ff. Rambam (1:12) understands “Torah” expansively, as encompassing subject matters (“Pardes,” the domains of physics and metaphysics) that go beyond the specifics of religious practice. Our own liberal understanding of the tradition would include the human sciences and the humanities within this rubric, just as it would set aside the traditional determination that excludes women from the mitzvah of talmud torah.

33. See Jurgen Habermas, The Future of Human Nature (Oxford: Polity Press, 2003). 13: “as soon as adults treat the desirable genetic traits of their descendants as a product they can shape according to a design of their own liking, they are exercising a kind of control over their genetically manipulated offspring that intervenes in the somatic bases of another person’s spontaneous relation to self and ethical freedom. This kind of intervention should only be exercised over things, not persons.” For a good, brief summary of this position see Michael Sandel, The Case Against Perfection (Cambridge, MA: Belknap Press, 2007).

34. Sandel (note 33, above), 92.

35. An example is our response to the question of plastic surgery. Despite the obvious differences between genetic manipulation and plastic surgery, the two are similar in that the latter, like the former, involves technologies administered by medical-scientific personnel that can serve either a medical or a non-medical goal. See TFN, no. 5752.7, pp. 127-132 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5752 ), and Responsa Committee, no. 5759.4 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=5759 ). See especially TFN, no. 5752.7, p. 131: “(i)t is conceivable that, for some persons, ‘mere’ cosmetic surgery may serve a useful and legitimate purpose. It may be determined, for example, that an enhanced appearance is vital to an individual’s psychological and emotional well-being. This is a judgement that must be made carefully in each individual case; when it is made, these persons should not be dissuaded from this alternative. In general, however, we think this argument is too frequently raised and too easily exaggerated. We would argue the opposite: that so many people are willing to subject themselves to damaging and potentially dangerous procedures for no other reason than better looks is clear evidence of the overemphasis which our materialistic culture places upon superficialities. Rabbis customarily and justly critique this distortion of values. Indeed, if Judaism means anything to us, it admonishes us to look below the surface, to concentrate upon the development of deeper and more lasting measurements of self-worth and satisfaction.”

36. For sources and discussion, see Teshuvot for the Nineties (TFN), no. 5754.18, pp. 373-380 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=18&year=5754), as well as Responsa Committee no. 5759.10 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=10&year=5759 ).

37. Rabbi Jacob reaches this conclusion in QRJA, no. 154. And see Nishmat Avraham (note 5, above), p. 217: “Those researches that are presently focusing on human beings who suffer from various genetic defects and that seek to correct the defects by way of genetic modification are certainly worthy of praise.”

38. See our discussion in TFN, no. 5754.14, “On the Treatment of the Terminally Ill,” at p. 350 ( http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754 ): “Terms such as ‘therapeutic’ and ‘successful treatment’ are inherently vague and impossible to define with precision. In many situations it will be problematic if not impossible to determine when or even if the prescribed regime of therapy has lost its medical value. Yet the decision to continue or to cease the treatment must nonetheless be made, and those who must make it will confront an element of doubt and uncertainty that cannot be entirely resolved.”

39. Arthur L. Caplan, “If Gene Therapy Is The Cure, What Is The Disease?” http://www.bioethics.net/articles.php?viewCat=6&articleId=58 (accessed April 9, 2008).

40. See, in general, Wendy Kline, Building a Better Race: Gender, Sexuality, and Eugenics from the Turn of the Century to the Baby Boom (Berkeley: University of California Press, 2002); Harry Bruinius, Better for All the World: The Secret History of Forced Sterilization and America’s Quest for Racial Purity (New York: Alfred Knopf, 2006); and M. A. Hasian, Jr., The Rhetoric of Eugenics in Anglo-American Thought (Athens: University of Georgia Press, 1996).

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5758.7

CCAR RESPONSA

Conversion of a Person Suffering from Mental Illness

5758.7

She’elah

A woman in my congregation, married to a Jewish man, has been coming to me to study for conversion to Judaism. Her own religious background is quite mixed, and she feels

no particular attachment to any other faith. She has some knowledge of Judaism, and has been reading and studying with me for about six months. I believe she is sincere about wanting to convert to Judaism, although some of the motivation undoubtedly comes from her in-laws. In my opinion, however, she is not mentally stable.

The first thing she told me when we met was that she was a borderline personality who had been sexually abused by both of her parents. In the fairly brief time I have known her she has been on the verge of divorce twice, stated that her husband was abusing her, changed therapists, and asked if she could bring her dog into the sanctuary with her for emotional solace in a new environment. She often makes very dramatic statements, only to back away from them later. From everything I have been able to learn, she is quite clearly a borderline personality, a well-recognized diagnosis of significant mental illness. She is not, however, insane or incapable of making decisions for herself.

May I reject her as a candidate for conversion on grounds of her mental illness?

Teshuvah

1. Mental Competence and Mental Illness.

The possession of mental competence (da`at or de`ah) is one of the principal requirements for conversion to Judaism. This is because conversion is understood as the acceptance by a Gentile of the mitzvot, the obligations of Jewish life.[1] One who is mentally incompetent is not judged legally accountable for his or her actions;[2] therefore, a Jew who lacks da`at is exempt from the duty to perform the mitzvot.[3] Accordingly, the Jew-by-choice who seeks to enter the community of mitzvot must be able understand the nature of the duties he or she is accepting and to be held responsible for them. As our Committee has written in a similar case:[4] “conversion to Judaism is a major religious step which cannot be taken lightly; this act has legal (halachic) implications… (since) a complete understanding of Judaism is necessary for a sincere and complete conversion, such prospective converts must be of sound mind and mentally competent. We cannot accept individuals who do not meet these prerequisites.”

For these reasons, it is clear that we are entitled and even required to reject a candidate for conversion should we find that he or she does not possess the necessary mental competence. The question we face here is whether this prospective proselyte fits that concept. Does she, on account of her emotional disturbance, lack the “sound mind” necessary to make the responsible choice to enter the covenant of Israel?

To ask this question is to ask whether, in the terms of our tradition, this woman exhibits the characteristics of the shoteh/ah, the “insane” person, who by definition does not possess da`at and is thereby exempted from any and all responsibility to uphold the mitzvot.[5] The talmudic sources identify the shoteh as one who wanders alone at night, who sleeps in the cemetery, who rips his or her clothing, or who loses everything that is given to him or her.[6] The halakhic consensus holds that a person need not exhibit all of these behaviors to be defined as a shoteh; one of them alone is sufficient, provided that the action is performed regularly and in such a way that it offers evidence of insanity.[7] There is considerable disagreement in the literature as to whether insanity (shetut) is to be identified by these actions in particular or whether they are to be seen as examples of a more general condition. Some authorities regard the list in talmudic sources as exhaustive; “we have nothing to rely upon except the words of our Sages.”[8] Maimonides, on the other hand, takes the opposite view. The shoteh of whom we speak is only the one “who walks about naked, breaking things and throwing stones,” but rather “one who has lost his mind and whose mind is consistently disturbed with respect to any matter, even though he speaks rationally on all other matters.”[9]

This position surely strikes us as the more reasonable one, since it is difficult to imagine a plausible definition of insanity that restricts itself to but three or four specific actions out of a host of others that are clearly symptomatic of serious mental disturbance. As noted above, even a person who exhibits those behaviors is not judged insane by talmudic standards unless they are performed in a manner that indicates insanity (derekh shetut);[10] thus, “insanity” is better understood as a manner of behavior, a state of mental disturbance which can express itself in any number of ways, rather than as a catalogue of several specific acts.[11] Although contemporary Orthodox halakhists tend not to decide between the two sides of this legal dispute,[12] they are capable of recognizing that judgments in this area are necessarily complex. As one puts it: “it is impossible to define with precision just who is called a ‘shoteh’ in our time, or more properly, at which stage (of an illness) a person is defined as ‘insane’ and exempt from the mitzvot… On account of the wide variety of psychiatric ailments along with the many specific forms of behavior, which can change from time to time due to natural causes or as a result of treatment, we are required to judge each case separately, in accordance with the opinion of experts and the judgment of the rabbinic authority or beit din.”[13] For our part, we hold that the definition of mental illness is to be made by observation a matter of medicine and psychology, properly determined by the accepted procedures of those disciplines. As we have written, “given our positive attitude as liberal Jews toward modernity in general, it is surely appropriate to rely upon the findings of modern science, rather than upon tenuous analogies from traditional sources, in order to render what we must consider to be scientific judgments.”[14] We think that this position accurately reflects the view of Maimonides, applied in the context of the scientific and cultural realities of our time.

None of this, of course, renders the answer to this she’elah a simple one. Even if we accept this woman’s testimony that she suffers from an emotional disorder, we may not be in a position to declare that she does not possess the requisite mental competence we demand of a person who chooses Judaism. To be sure, borderline personality disorder (BPD) is a serious condition, and those afflicted with it “present a variety of neurotic symptoms and character defects.”[15] They may, we are told, fail to establish their own identities. They may be emotionally unbalanced and impulsive, display multiple phobias, obsessive thoughts and behaviors, and paranoid traits. They may be constantly angry and frequently depressed, sexually promiscuous, and have a pronounced tendency toward drug and alcohol abuse. They are unable to develop lasting relationships in marriage and career, They are quite difficult as patients, often attempting to manipulate their therapists in order to gain needed gratification. Many of them threaten suicide, and some of them are indeed suicidal. All of this may be true of BPD individuals in general and of this woman in particular, yet this is still not enough to say that she, the individual whose case we are addressing here, is a shotah, lacking the da`at or capacity to make rational decisions and judgments about herself and her life. We should not forget that a medical term such as “borderline personality disorder” is simply a name given to a particular constellation of “neurotic symptoms and character defects.” It is a category utilized by the mental health professions as a means of classifying data and determining courses of treatment. It is a description of a general phenomenon which in and of itself does not tell us that this woman is “insane.” Put another way, while this woman may be “mentally ill,” we do not know by that token that she is mentally incompetent. The diagnosis, assuming it is an accurate one, cannot serve as a substitute for a careful examination of her character, her strengths and weaknesses, her “defects” and her resiliency in overcoming or compensating for them.

This is merely another way of saying that “general principles do not decide concrete cases;”[16] or, as Maimonides remarks in his discussion of mental competence, “since it is impossible to define ‘da`at’ with full precision in writing, the matter must be decided by the judge in the particular instance.”[17] To translate this insight into the terms of the present she’elah, we cannot say this individual is unfit for conversion based upon a diagnosis that she suffers from a general syndrome known as “borderline personality disorder.” Such a determination can be based only upon a finding that this person, this individual human being, lacks the mental competence we think necessary to make an informed and rational choice for Judaism.

2. Proper and Improper Motivations for Conversion.

Yet the definition of “insanity” is not the only issue here. Our case turns as well upon the question of proper motivations for conversion to Judaism, which the Talmud discusses in two places. In the first, which describes what we must call the ideal state, the prospective proselyte is warned of all the hardships and dangers that await him should he become a Jew; if he says, “would that I merit to participate in their suffering!,” he is accepted forthwith.[18] The second text speaks not of the pure religious motivations of the ideal candidate but of those that inspire other sorts of individuals. It tells us that, in principle (lekhatchilah), we should not accept proselytes who wish to convert in order to marry a Jew, or who seek to join us out of a desire to share in our good fortune, or who come to Judaism in response to fear or threats, real or imagined, although should such persons undergo a valid process of conversion they are nonetheless considered proselytes.[19] The medieval commentators raised a difficulty against this “in principle” standard, noting several examples of Talmudic sages who accepted as proselytes individuals who came before them with evidently improper motives. They resolved the difficulty by suggesting that in those cases the sages were confident that the proselytes who came originally out of ulterior motivations would ultimately accept the Torah “for the sake of Heaven.”[20] And on the basis of that resolution, later authorities declare: “we learn from this that (with respect to conversion) the entire matter is left to the judgment of the beit din.”[21]

This, as far as we are concerned, is a chief guiding principle in our thinking about conversion. It is for the beit din, the religious tribunal under the supervision of the presiding rabbi, to determine in each and every case whether the person who comes before us for conversion does so for reasons that are appropriate. Occasionally, Orthodox authorities will rely upon this discretionary power in order to accept proselytes who wish to become Jews for reasons that fall far short of the ideal standard of pure religious conviction.[22] Yet whether for leniency or stringency, the decision is in any event for the authorities to make. On this point we are in full agreement with Orthodox halakhic thinking. Conversion, for us no less than for other Jews, is not a decision left to the heart and mind of the proselyte but a formal and public matter. One who seeks to convert seeks to join our community as a full and participating “citizen” thereof. It is accordingly for the Jewish community, acting through its acknowledged rabbinical representatives, to determine in each and every case whether an individual who wishes to convert is in fact ready to do so, for reasons that we find persuasive and compelling.

Let us turn this insight to the present case. If the rabbi under whose guidance this woman is studying believes that she is ready for conversion, that she fully understands the fateful nature of this step and is preparing to undertake it out of motivations that strike him as credible and appropriate, then he is entitled (and perhaps even obligated)[23] to accept her as a Jew-by-choice. On the other hand, should the rabbi find that there is significant doubt as to this woman’s mental and emotional readiness to make a thoughtful, careful and responsible decision to convert to Judaism, he is entitled (and perhaps required) to reject her candidacy. The burden of proof, that is to say, is upon the candidate to demonstrate her readiness and not upon the rabbi to demonstrate the opposite. His decision need not be based upon preponderant evidence that she is “insane” and lacking in da`at. He may even find, as he tells us in his she’elah, that she is “sincere” in her desire to convert. Yet so long as he is not convinced that she is ready to take this step, so long as he has good reason to believe that her desire to convert is reflective of an emotional pathology rather than what can be defined as a reasonable and responsible choice, he is definitely under no obligation to accept her.

Conclusion.

The rabbi may indeed reject this woman as a candidate for conversion, although not simply on the grounds of mental illness. A finding that she is “mentally ill” or even that she displays a condition as serious as borderline personality disorder does not necessarily in and of itself prove that she is lacking in da`at, the ability to make responsible and appropriate choices. The term “mental illness” is a broad descriptive category and not a diagnosis of the fitness of the individual person; we should beware of taking any step which suggests that those who suffer from “mental illness” are to be labelled as “insane.” He may reject her rather on the grounds that this decision, in his carefully considered opinion, is motivated by factors that call its rationality and appropriateness into serious question. In any event, “the entire matter is left to the discretion of the beit din.”

NOTES

On the process of kabalat hamitzvot by a proselyte, see BT Yevamot 47a-b; Yad, Isurey Bi’ah 14:1-5; SA YD 268:2-3. Conversion is commonly portrayed in the sources as the ritual and spiritual equivalent of the acceptance of the Torah by our ancestors at Sinai; see BT Keritot 9a and Yad, Isurey Bi’ah 13:1-5, along with BT Yevamot 46a, and Rashi, s.v. be’avoteinu shemalu.

Bava Kama 8:4; Yad, Chovel Umazik 4:20; SA CM 424:8.

Chagigah 2b and Rashi, 2a, s.v. chutz: the deaf-mute (cheresh), the insane person (shoteh), and the minor (katan) are exempt from the obligation to perform the mitzvot on the ground that “they do not possess de`ah.” See also M. Rosh Hashanah 3:8: these same individuals cannot sound the shofar on behalf of others because they themselves are not “obligated with respect to this act.” See Yad, Edut 9:9: the shoteh is not qualified to serve as a witness because “he is not subject to the mitzvot”; and Yad, Chametz Umatzah 6:4 (based upon BT Rosh Hashanah 28a): one who performs a mitzvah during a moment of insanity has not fulfilled his obligation, for at that moment he was “exempt from all the mitzvot.”

American Reform Responsa

(ARR), no. 67. The she’elah there dealt with a prospective convert described as “mentally unbalanced (paranoid).”

See M. Arakhin 1:1 and the sources cited in note 3.

Tosefta

Terumot 1:3; BT Chagigah 3b-4a; PT Terumot 1:1 (40b) and parallels.

Hil. HaRosh

, Chulin 1:4, following the view of R. Yochanan and the setam talmud in BT Chagigah 3b-4a; SA Yore De`ah 1:5; R. Shelomo Luria, Yam Shel Shelomo, Chulin 1:4.

R. Yosef Kolon (15^th-cent. Italy), Resp. Maharik Hachadashot, no. 20, quotes R. Avigdor Hakohen (13^th-cent. Germany) in a teshuvah to R. Meir of Rothenburg: “one who is not judged a shoteh by the actions mentioned in the first chapter of Chagigah [3b] must be declared mentally competent in all respects.” R. Yitzchak b. Sheshet, it would seem, also reads the talmudic list as exhaustive; Resp. Rivash, nos. 20 and 468. And R. Yosef Karo, in SA YD 1:5, defines the shoteh as one who exhibits the behaviors mentioned in the Talmud. See, however, note 9.

, Edut 9:9-10. See R. Yosef Karo’s discussion in Beit Yosef, EHE 121. Karo adopts Maimonides’ definition of the shoteh in SA CM 35:8, thereby creating a difficulty against his ruling in YD 1:5.

Chagigah 3b.

We might echo in this regard the rhetorical question posed by R. Ya`akov Weil (15^th-cent. Germany, Responsa, no. 52): “consider the one who does not rend his garments, does not sleep in the cemetery and does not wander alone at night and yet acts in an insane manner in all other respects. Is he not to be judged insane?” Other poskim suggest that the “symptoms” mentioned in BT Chagigah do not define insanity but are rather standards by which to measure insanity in its most obvious and extreme manifestation. Thus, R. Yosef Kolon (see note 8), who does not decide the machloket between Maimonides and the opposing view, writes that “if one agrees that the ‘signs’ of insanity mentioned in Chagigah are not exhaustive and that the Sages were simply giving examples… (this means that) one should examine to see whether a person has reached an extreme level of shetut such as evidenced by these behaviors.” This position is accepted explicitly by R. Yechezkel Landau (18th-cent. Prague), in a responsum included in the book Or Hayashar (ch. 30), an 18th-century work containing rabbinical responsa over the validity of a get issued by a husband who may or may not have been “insane.”

See R. A.S. Avraham, Nishmat Avraham 3:181, who recites the machloket but does not attempt to resolve it directly.

Ibid

., 181-182.

Responsum no. 5757.2.

A.M. Freedman, MD, Harold I. Kaplan, MD, and P.J. Sadock, MD, eds., Comprehensive Textbook of Psychiatry, Second Edition (Baltimore: Williams and Wilkins Co., 1975), 550. The medical information in this paragraph is taken from that source and from Benjamin B. Wolman, editor-in-chief, The Encyclopedia of Psychiatry, Psychology, and Psychoanalysis (New York: Henry Holt, 1996), 83.

The quotation is taken from the famous dissent of U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. in Lochner v. New York, 198 U.S. 45, 74 (1905). Holmes continued that “the decision will depend on a judgment or intuition more subtle than any articulate major premise.” This notion is a key to the understanding of legal reasoning, no less applicable to the halakhic tradition than to any other system of law.

Yad, Edut 9:10.

Yevamot 47a and Rashi, s.v. ve’eini kedai; Yad, Isurey Bi’ah 14:1; SA YD 268:2.

Yevamot 24b, including the mishnah (M. Yevamot 2:8); Yad, Isurey Bi’ah 13:14-17; SA YD 268:12.

Tosafot

, Yevamot 24b, s.v. lo. The exceptional cases are those involving Hillel (BT Shabbat 31a) and R. Chiya (BT Menachot 44a).

Beit Yosef

, YD 268; Siftey Kohen, YD 268, no. 23.

Among the examples: R. Shelomo Kluger, Resp. Tuv ta`am veda`at, no. 230; R. David Zvi Hoffmann, Resp. Melamed leho`il 2:83, 85; R. Benzion Ouziel, Resp. Mishpetey ouziel, YD, no. 14, and EHE, no. 18.

See BT Yevamot 47b: once a candidate has demonstrated his full and informed acceptance of the mitzvot, “he is circumcised immediately.” Why, asks the Gemara, do we do this immediately? Because “we do not delay the performance of a mitzvah.”

If needed, please consult Abbreviations used in CCAR Responsa.