04. Practical Questions

A man’s reproductive organs may be damaged several ways; to determine whether a particular injury renders him a petzu’a daka, the general rule is that if he can sire children, he is not a petzu’a daka, and he may marry a Jewish-born woman like any other Jewish man. This determination is left to reliable doctors. In the time of the Rishonim, many doctors believed that a man lacking one testicle could not have children. Based on this, most Rishonim ruled that such a man had the status of petzu’a daka. Rabbeinu Tam and several other Rishonim maintained that he can sire children (SA EH 5:7). Nowadays it is clear to doctors that such a man can father children, so clearly he is not considered a petzu’a daka.[4]

Older men commonly experience swelling of the prostate gland, through which the vas deferens and the urethra pass. This makes it difficult to urinate. In some very serious cases, the prostate gland is severed to allow the excretion of urine. The problem is that severing the prostate prevents the flow of sperm through the penis during sexual relations. Instead, the sperm travels from the testicles into the bladder, and from there it is excreted together with the urine. Thus, even though his body produces viable sperm cells, the man cannot actually impregnate his wife, as he does not ejaculate sperm cells during sex. Some poskim claimed that since this person became sterile, practically speaking, as a result of human intervention, he may not marry a born Jew, and if he is already married, he must divorce his wife. In practice, however, there is general agreement that he is not considered a petzu’a daka. First, severing the prostate is a procedure performed as a result of an illness. As we saw in the previous section, according to most poskim such a person is viewed as having been made sterile by God. Additionally, the doctor performs the surgery to relieve his pain, not to sterilize him. Furthermore, he is not a petzu’a daka because, in fact, his sperm ducts remain intact. It is only due to a peripheral issue that the sperm are not ejaculated during sexual relations.

A more difficult case is that of a man who has his testicles removed to improve his chances of surviving prostate cancer (or another cancer), as the testes produce the hormones that accelerate malignant activity. Many maintain that even though technically his testicles are removed by a person, he is still considered to have been made sterile by God. As we saw above, Rambam (and most poskim) say that in a case where sterility is a consequence of illness, the man is considered to have been made sterile by God. Additionally, we might argue that even those who are stringent in that case (Rosh) would be lenient in our case; they might agree that it is only when the illness itself damages the reproductive organs that the man may not marry a born Jew, because he is considered to bear some responsibility for the illness. In contrast, if the illness does not damage the reproductive organs, but rather the doctors are forced to remove his testicles to save him from the illness, he may marry a Jewish-born woman (Ḥelkat Yo’av EH §3; R. Tzvi Pesaḥ Frank).

The same applies to someone who has cancer and undergoes radiation therapy that completely destroys his ability to produce sperm. Even though he cannot have children, since his sterility results from treatment of an illness, it is considered an act of God and he may marry a Jewish-born woman.[5]

When any doubt arises in such matters, halakha follows those who are lenient, for the general principle is that under pressing circumstances we rely on lenient opinions. These cases definitely qualify, as if we were to rule stringently, the man would not be allowed to marry a Jewish-born woman, and if married, he would be required to divorce. Additionally, according to many poskim, the law of saris is like the law of mamzer; under Torah law, the marriage restrictions apply when it is certain that someone is indeed a mamzer, petzu’a daka, or krut shofkha, but when there is any uncertainty as to his status, the restrictions do not apply. Therefore, in any case of uncertainty, the halakha accords with those who are lenient.[6]

[4]. The law of petzu’a daka and krut shofkha applies only when a man is rendered sterile. We learn this in Yevamot 75b, which cites the view that a man with a perforation in his testes is considered a petzu’a daka. This is challenged with an anecdote about a man who had a perforation in his testes and still sired a child. Those who ruled stringently countered that the child was not his; rather, his wife committed adultery and bore someone else’s child. We see that it is assumed that a petzu’a daka is sterile and could not impregnate a woman. This is the position of Rambam; Me’iri; Raavya; Yam Shel Shlomo, Yevamot 8:9; and Igrot Moshe, EH 2:3.

The Rishonim disagree as to the status of someone who had one testicle removed. According to Rabbeinu Tam (Tosafot to Yevamot 75a, s.v. “she-ein”), since he can still have children, he is not considered a petzu’a daka, and he may marry into the congregation. Many Rishonim disagree with Rabbeinu Tam and disqualify such a person. This is the opinion of SA and Rema, EH 5:7. However, the Aḥaronim agree with Rabbeinu Tam, including Yam Shel Shlomo; Ḥatam Sofer, EH §17; Divrei Ḥayim 1:11; and R. Ḥayim of Volozhin, as cited in Pitḥei Teshuva, EH 5:7. The consensus among doctors today is that someone who lost a testicle can sire children. It would seem that those Rishonim who disagreed with Rabbeinu Tam did so based on the medical knowledge available to them at that time. Perhaps in the past, due to infection, a person who lost a testicle was generally unable to have children.

[5]. Poskim disagree about the status of a man who becomes sterile from medically unnecessary radiation treatment (the question arose vis-à-vis victims of Nazi experimentation). Some are stringent, as human action caused the infertility (Ḥelkat Yaakov, EH §30). Others say that even though such sterilization is prohibited according to Torah law, since the three parts of his reproductive system are intact, he is not considered to be petzu’a daka or krut shofkha (R. Isser Yehuda Unterman, Shevet Mi-Yehuda 4:17). He is no worse than someone who drinks a sterility potion. Just as such a person is allowed to marry any Jewish woman (Birkei Yosef 5:7; AHS ad loc. 24), this person is allowed to as well.

[6]. Even though someone with an uncertain status of mamzer is permitted to marry a Jewish-born woman according to Torah law, because of the severity of a status that is passed on from generation to generation, the Sages prohibited a mamzer of uncertain status and only permitted in cases of twofold uncertainty (sfek sfeika). However, the Sages did not apply this stringency to cases of uncertainty about the status of a petzu’a daka or krut shofkha. This is the approach of Responsa R. Akiva Eiger 3:63; Avnei Nezer, EH 17; Be’er Yitzḥak, EH 4; Beit Yitzḥak, EH 1:36; AHS 5:20; and others. R. Ovadia Yosef collects them in Yabi’a Omer, EH 7:8:10.

Thanks to advances in medical technology, a new question has arisen nowadays. What is the status of someone whose reproductive organs are damaged, and who in the past would not have been able to father children, but nowadays can, since doctors can extract sperm from his testicles and use them to impregnate his wife? It would seem that since his status is uncertain, we should follow the lenient opinion. In the future, another question may arise. What will be the status of a man whose reproductive system is damaged and cannot produce sperm at all, if doctors can fertilize his wife’s egg using a cell produced via cloning? This may not qualify as a case of doubt, for anyone who has sustained damage to his reproductive system and does not produce sperm is considered a saris.

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