06 – Complications and Infertility

01. The Duty to Use Medical Technology (IVF)

If it becomes clear, after reliable testing, that a couple’s chance to conceive naturally is very low, they are required to undergo whatever treatments are conventionally prescribed by medical practitioners in order to fulfill the mitzva of procreation by having a son and a daughter. This includes IVF (in vitro fertilization), a procedure that involves extracting the woman’s ova and the man’s sperm and putting them together in a lab so that eggs become fertilized and develop into embryos, which are then implanted in the woman’s uterus.

In the past, poskim ruled that people are not obligated to take unnatural measures to fulfill the mitzva. However, that was at a time when methods to deal with fertility issues were not reliable, when there was no medical consensus about them, and therefore, most people were not taking advantage of treatments developed by some physicians, and, consequently, these efforts were considered unnatural. Now that these medical interventions have proven to be so successful that most infertility can be resolved, whatever is medically conventional is considered part of the obligation of this mitzva. Clearly, this obligation includes all treatments that an HMO covers for its members, and it seems to me that even treatments that are not included under regular health insurance, if they are treatments that most people who want children are willing to undergo, are required, even if they are expensive, to enable the fulfillment of the mitzva of procreation.

Even one who has already fulfilled the Torah commandment of procreation has a rabbinic mitzva to have more children, using the tools offered by modern medicine. Nevertheless, if it demands a major effort, it is only an embellishment of the mitzva.^[1]

[1]. R. Malkiel Tannenbaum writes: “We are commanded to fulfill the mitzva of procreation in the normal human way, not through sophisticated means that are closer to prohibitions and obstacles” (Divrei Malkiel 4:107). The “obstacles” in question include wasting seed and the concern that a woman’s egg would be fertilized by the sperm of another man. However, given the proven success of medical treatments, it is generally agreed that they may be used for procreation, while taking precautions to ensure that the husband’s semen is not switched with that of another man. Some rule against using such methods once the Torah obligation has been met (Shevet Ha-Levi 8:251:11; R. Yosef Shalom Elyashiv as cited in Teḥumin 22, p. 403). However, according to R. Shlomo Zalman Auerbach, it may be permissible even for additional children (Nishmat Avraham, EH 23:1 s.v. “ve-katav li”p. 226; likewise R. Ḥanan Aflalo, Responsa Asher Ḥanan 3-4:61). However, according to R. Auerbach, this is not obligatory (Minḥat Shlomo 3:98:8). Even when ovulation occurs prior to the mandated time for immersion in the mikveh, the mitzva to procreate does not obligate the couple to devise methods like taking sperm from the husband and using it to impregnate his wife while she is ovulating. However, R. Auerbach was not sure whether, where one spouse demands such a procedure, the other may refuse. Similarly, my teacher, R. Shaul Yisraeli, expresses uncertainty about this situation (Ḥavat Binyamin 3:108).

It seems that all of this applied when use of IVF was rare and its efficacy uncertain. However, now that fertility treatments have become commonplace and successfully resolve most cases of infertility, they have become part of the normal effort that a couple must make in order to fulfill the mitzva. Just as a man cannot claim that he need not buy his wife a refrigerator and an oven because no one had them 200 years ago, so he cannot claim that he need not try to fulfill the mitzva of procreation using these procedures because a hundred years ago people did not do so. It cannot be that the Jewish people, who are commanded to procreate, fail to take advantage of treatments being used all over the world. This view is presented by R. Shlomo Daichovsky in Teḥumin 22, p. 406. He goes so far as to say that if necessary, a couple must spend very substantial amounts of money for these treatments. If there is a reason that the treatments are difficult for one spouse, a rabbi should be consulted.

Some claim that the mitzva is to conceive naturally, through sexual relations, while any other method does not fulfill the mitzva. However, according to Minḥat Ḥinukh (1:13), the mitzva is to have children; how this comes about is immaterial. The opinion of Tosafot (Bava Batra 13a s.v. “kofin”) is the source for those who limit the mitzva to natural means of conception (Be-ohala Shel Torah 1:69; it is also possible to understand Mishpetei Uziel, EH 2:19 this way). This limitation is surprising. Of course, it is clear that the biblical mitzva to procreate assumes sexual relations. Nevertheless, the essence of the mitzva is for the couple to have a son and a daughter. Thus, if there is an alternative way for them to conceive, they are obligated to try it. This is not comparable to the case of a woman who is impregnated from a man’s sperm in the bath. There, poskim express uncertainty as to whether or not the father has fulfilled the mitzva of procreation (Ḥelkat Meḥokek, EH 1:8); they are inclined to rule that he has not (She’elat Ya’avetz 2:97), since this is not a normal way to conceive. However, now that people regularly conceive through IVF, husband and wife do fulfill the mitzva this way. It seems to me that the Aḥaronim who agree with Tosafot that the mitzva involves having intimate relations (Har Tzvi, EH §1; Igrot Moshe, EH 5:19) really mean that an action must be taken deliberately for the purpose of fulfilling the mitzva. If this is correct, the deliberate act of undergoing IVF qualifies, and thus the couple would fulfill the mitzva even according to those Aḥaronim.

However, in my humble opinion, if a man becomes a sperm donor for pay, and his sperm is used to impregnate someone, he does not fulfill the mitzva. The normal way to fulfill the mitzva is through intimate relations between husband and wife, or at the very least through their mutual consent to IVF. In contrast, if a man does not even know whom he is impregnating, he does not fulfill the mitzva. This is implied by the manner in which the mitzva was relayed to Adam and Ḥava. God commanded them together: “Be fruitful and multiply” (in the plural). The use of the plural form implies an instruction to husband and wife as a couple. And since a man does not fulfill a mitzva through sperm donation, it is prohibited, because he is wasting his seed.

02. Providing Sperm for Testing or IVF

When a couple experiences difficulty conceiving, sometimes it is necessary to conduct a semen analysis to determine whether there is male factor infertility. Other times it is necessary for the man to provide sperm for the purpose of IVF or IUI (intrauterine insemination), a procedure in which his sperm is injected into his wife’s uterus.

To collect this sperm, the husband should have sexual relations with his wife while wearing a condom. The condom must be a special one, without any spermicide (as that would obviously interfere with the test results). It should also have a tiny hole in it, so that it is possible for some sperm to escape. That way, according to all poskim, there is no prohibition of wasting seed.

A regular condom may be used in two circumstances: when no condom with a small hole is available, and when the sperm being collected is for IVF which is being done to prevent genetic diseases. (In this case, one does not want any sperm to reach the woman’s uterus, as this may lead to the birth of a baby with the disease.) It would seem that all poskim would agree in these cases as well.

When having relations with a condom is impossible, for example in a case where the sample must be brought to the lab almost immediately, most poskim permit the wife to stimulate her husband manually, to enable him to ejaculate into a condom or container used for that purpose. It is possible that all would agree to this as well.

Because of the severity of the prohibition of wasting seed, some maintain that when this is necessary to determine the reason for infertility, all possible tests must be conducted on the woman before the man may provide a sperm sample. In practice, all tests that can easily be performed on the woman should be done first. After that it is permissible to conduct the necessary tests on the man, because as long as the wife helps her husband produce the sample, it is considered part of the fulfillment of the mitzva.

When a couple cannot have relations using a condom, and the wife cannot help her husband ejaculate because she is a nidda, according to most poskim the man may ejaculate into a container. Others do not allow it. In practice, when there is no other option, one may be lenient.^[2]

[2]. As we will discuss below (7:2), the Torah states that a man who is a krut shofkha (his member is cut off) may not marry a woman who is Jewish from birth (Devarim 23:2). The Talmud explains that this includes a man whose penis is punctured. In a case in which it is uncertain if the puncture extends to the ejaculatory ducts (and the reproductive system is compromised), it is necessary to perform a test to determine if, during ejaculation, semen emerges from the puncture. If it does, then the man is considered a krut shofkha; if it does not, he may marry. The examination is described in the Talmud as follows: “We bring hot barley bread and put it on his anus. The heat causes him to ejaculate, and we observe what happens” (Yevamot 76a). While today we do not understand exactly how this worked, clearly it caused a man to discharge semen without the need to touch himself directly. This is relevant to our discussion. While a krut shofkha is allowed to marry a convert, nevertheless in order to broaden his marriage pool to include born Jews as well, he is permitted to indirectly waste seed. How much more so should a man be permitted to indirectly waste seed in order to fulfill the mitzva of procreation (Ezrat Kohen §32; Igrot Moshe, EH 1:70).

Poskim disagree regarding a case in which a man cannot ejaculate without direct stimulation. Would it be permissible for him to stimulate himself manually to provide sperm for analysis or for fertilizing his wife’s eggs? Some prohibit this, including Rav Kook (Ezrat Kohen §32), R. Feinstein (Igrot Moshe, EH 1:70 and 2:16), and R. Elyashiv (Kovetz Teshuvot 3:189). Others permit it, including R. Grodzinski (Aḥiezer 3:24:4) and R. Uziel (Mishpetei Uziel, EH 2:42). The latter explains that in the case in the Talmud, the purpose was to see if sperm would seep out of the puncture. If the man were holding himself, it would be difficult to determine this. However, had there not been a practical necessity to avoid manual stimulation, it would have been permissible in the service of procreation. This is also the approach of R. Waldenberg (Tzitz Eliezer 9:51, sha’ar 1, 2:2) and R. Daichovsky (Teḥumin 18). See below, section 4 and n. 4, where we discuss the law pertaining to a young man who has cancer and must undergo radiation treatments that may render him infertile. Before he undergoes such treatments, it is a mitzva for him to produce sperm to freeze, so that when he gets married he will be able to fulfill the mitzva of procreation.

It would seem that this disagreement is based on how one understands the underlying reason for the prohibition of wasting seed. If it is prohibited because it contains an element of adultery (Or Zaru’a 1:124; Smak §292) or because it involves sinful thoughts (Baḥ 3:6), then masturbating might be prohibited even for the sake of a mitzva. However, according to the opinion of Tosafot (Sanhedrin 59b s.v. “ve-ha”) that the prohibition of wasting seed is an extension of the mitzva of procreation, clearly it is permissible to provide sperm in order to solve fertility issues. Similarly, according to those who maintain that the prohibition is derived from the story of Er and Onan, who were trying to avoid having children (Pri Megadim, Eshel Avraham 31:14; Ben Yehoyada, Nidda 13a), the prohibition would not apply to masturbating for the purpose of having children. According to those who maintain that the prohibition of wasting seed stems from the prohibition of wasteful destruction (R. Yaakov Ettlinger, Arukh La-ner, Nidda 13b and Binyan Tziyon §137), then in this case, where clearly the purpose is to be productive, there is no problem.

In practice, it seems that it is permitted. First, some maintain that the whole prohibition of wasting seed is rabbinic, as explained above in ch. 4, n. 1. Furthermore, when the production of semen is for the sake of performing the mitzva of procreation, even those who are stringent would concede that the prohibition is rabbinic. When there is disagreement concerning a rabbinic law, halakha follows the lenient position. Moreover, the reasoning of those who are lenient is persuasive. Furthermore, in pressing circumstances and when extremely necessary, we rule leniently. It is also possible that if those who were stringent in the past had known that these tests had a reasonable chance of enabling a couple to fulfill the mitzva of procreation, they would have been lenient. Doctors then were fumbling around in the dark. Since a procedure was only a shot in the dark, some poskim did not permit masturbation to enable it. Now that success rates are so much higher, it is permitted even for a couple who have already fulfilled the Torah commandment. Nevertheless, testing the wife should be done first, because this involves no possible prohibitions. However, if a test is extremely difficult for the woman or very expensive, then her husband can provide semen for analysis before she undergoes it.

All this refers to a case in which a man stimulates himself manually and ejaculates into a container. However, if his wife helps him ejaculate by embracing or touching him, it is possible that everyone would agree that this is permitted, since it involves no element of adultery or sinful thoughts. With respect to the problem of the ejaculation being non-procreative at the time, we know that some Rishonim (Orḥot Ḥayim, Hilkhot Ketubot §7; Rabbeinu Yona on Sanhedrin 58b; Tur, EH 25:2) permit intercourse with other parts of the body (i.e., non-vaginal and non-anal). Rambam seems to permit it as well (MT, Laws of Sexual Prohibitions 21:9). Rema rules in practice: “Even though doing all of these is permissible, anyone who sanctifies himself [by refraining from] what is permitted to him is considered holy” (EH 25:2). In our case, when the husband is producing sperm to enable fulfillment of the mitzva of pru u-revu, it is a mitzva for him to do so. This would also seem to be the opinion of R. Shlomo Zalman Auerbach (Nishmat Avraham, EH 23:2, n. 1). In my humble opinion, when his wife helps him, it is unnecessary for her to undergo all sorts of tests before her husband provides a sperm sample, though if they can be done easily, it is preferable.

It is even better if the couple has relations using a condom. There is absolutely nothing wrong with this, nor is any seed being wasted, as the entire point is to fulfill the mitzva of procreation. It is better yet when the condom has a hole, so that it is possible for a drop of semen to escape and possibly impregnate the wife. However, when it is difficult to acquire such a condom, or when the objective of using the condom is to prevent the transmission of genetic diseases, it is certainly permissible to have relations with a standard condom. It would seem that all poskim would agree with this.

03. Genetic Diseases

It is often asked whether a man who carries a serious genetic disease is obligated to fulfill the mitzva of procreation in light of the real risk of having a child who suffers from that disease. Poskim disagree about this; some say that he still has an obligation to have a son and a daughter, for even if they are sick, he has contributed to populating the world. Moreover, there is a good chance that the child will be completely healthy. Others say that the Torah does not command us to procreate when there is a significant risk of having a child whose life will be one of constant suffering. In practice, in cases like these, a wise person should be consulted.^[3]

Nowadays, however, by God’s grace, there is a solution for most genetic illnesses, namely, it is often possible to do IVF and then, a few days later, to check the embryos for disease (pre-implantation genetic diagnosis, or PGD), and only implant disease-free embryos in the woman’s uterus. Where this option is available, the couple has an obligation to fulfill the mitzva in this way, so as not to have sick children.

[3]. R. Moshe Feinstein was asked about Marfan syndrome, a genetic disorder of the connective tissues, which damages the heart, the aorta, the eyes, and the skeleton. Those suffering from this condition may go blind, suffer from deformities and pain in the spine and the bones, or die from internal bleeding. They must often undergo surgery in order to prevent problems in the vascular system. Half of the children of those who have this disease are born with it as well. R. Feinstein rules that someone with Marfan syndrome must marry and have a son and a daughter. Even if his children do have the disease, he has still fulfilled the mitzva by having them, as they too populate the world. Furthermore, there is a fifty percent chance that each child will be healthy (Igrot Moshe, EH 4:73:2). We can add to this what we have seen in Berakhot 10a (above, 5:2). Even after King Ḥizkiyahu knew for certain that his son would be wicked, he was not allowed to refrain from procreation. It can be argued that having a sick child is not worse than having a wicked one. However, one might respond that a wicked person can repent (as did Menasheh, Ḥizkiyahu’s son), while someone suffering from an incurable disease has no such option.

According to R. Waldenberg, even a carrier of a genetic disease is obligated to fulfill the mitzva of procreation. However, if a fetus is shown to have a disease that will leave it physically and mentally disabled, an abortion may be performed up until the seventh month (Tzitz Eliezer 15:43). According to Devar Yehoshua 3, EH 1, a carrier may have children, but is not obligated to. R. Auerbach concludes that “more in-depth investigation is necessary” to determine whether one is obligated to fulfill the mitzva of procreation in such a situation, adding that if his fear of having sick children is so great that he would willingly spend twenty percent of his assets on preventing it, there may be grounds to exempt him, since we know (Rema 656:1) that one need not spend more than twenty percent of one’s money on a positive mitzva (Minḥat Shlomo 3:103:1). According to R. Naḥum Rabinovitch, when there is a risk that a child will suffer greatly and will not live long, it is forbidden to have children (Si’aḥ Naḥum §96).

04. Additional Halakhic Questions

If an unmarried young man has cancer and must undergo radiation therapy and other treatments that may permanently affect his virility, it is a mitzva for him to provide sperm prior to the treatment, so that it can be frozen and then used to impregnate his eventual wife. Even if he is too young to be contemplating marriage, once he has reached the age of thirteen he is obligated in mitzvot. To fulfill the mitzva of procreation, there is a mitzva for him to produce semen that can later be used to have children. This is not wasting seed, as it is for the sake of procreation. Even if the treatments might not render him sterile, in which case it will have been unnecessary for him to provide sperm, he still has a mitzva to do so in order to guarantee his future ability to have children and fulfill the mitzva. If he can provide sperm without touching himself, that is preferable; if not, he may stimulate himself manually.^[4]

If a husband or wife is HIV-positive, then every time they have sexual relations, the spouse is at risk of contracting the virus. The only way to avoid this is to use a condom, which protects the healthy spouse. Some poskim rule that the couple may not have sexual relations, since regular condom use is considered wasting seed, and the couple must therefore divorce (Minḥat Shlomo 3:103:16). Others maintain that the prohibition of condom use is for its usual purpose, namely, contraception. However, if it is being used to protect the life of the husband or wife, they may use a condom, so they can at least fulfill the mitzva of ona (Aḥiezer 3:24:5; Igrot Moshe, EH 1:63; Tzitz Eliezer 9:51:2). Halakha follows the latter opinion.

[4]. As explained in n. 2, one may provide semen for the purpose of fulfilling the mitzva of procreation, though R. Bakshi-Doron prohibits it, maintaining that in practice, only a married man can fulfill the mitzva of procreation, since it involves having intimate relations. Since a single man cannot fulfill the mitzva, he is guilty of wasting seed if he produces a sperm sample (Responsa Binyan Av 2:60). Those who permit include R. Auerbach (Nishmat Avraham EH 23:2, n. 3), R. Ariel (Be-ohala Shel Torah 1:69), and R. Lior (Devar Ḥevron §33). Their primary rationale is that there is no prohibition of wasting seed when there is an important reason to do so. R. Daichovsky concurs, adding that the mitzva of procreation applies from the age of thirteen (Teḥumin 18). (I explained above, in 5:7, that even though we delay marriage to allow a young man to prepare by studying Torah and training for a job, the obligation begins at age thirteen,.) In my humble opinion, the young man is not merely allowed, but obligated to provide sperm. After all, we argued in n. 1 that the mitzva obligates a couple to have children via whichever methods are accepted. Since this is an accepted method, it is obligatory for the young man to provide sperm so that he can fulfill the mitzva of procreation later on.

05. Procreation for the Mentally or Psychologically Disabled or Ill

Those who are mentally of psychologically ill or disabled, namely, those who cannot take responsibility for care of children, are exempt from the mitzva to procreate. We can infer from the idea that marriage can be delayed until a man’s worldview and ability to provide for a family stabilize (5:7 and 5:9 above) that one who is incapable of taking responsibility for the care of his children, even at the most basic level, is not obligated in the mitzva. Even if such a person is capable of marrying, the couple should avoid having children. The easiest method is via an IUD.^[5]

[5]. R. Auerbach writes that one who is unable to raise children is exempt from the mitzva to procreate, unlike a mamzer and one who is half-slave and half-free, who are mentally fit. If a man with such an illness seeks help to enable him and his wife to have children, he must be told that because he cannot care for children, he is exempt due to circumstances beyond his control (Minḥat Shlomo 3:103:2). In my humble opinion, since they are not obligated to procreate, they must use contraception, so as not to bring a child into a family that cannot care for it properly. I recommend above that they use an IUD, as it provides ongoing contraception without having to remember to do anything. If a grandparent is willing and able to take full responsibility for the child’s care and wants the couple to have a child, they are not obligated to use contraception.

06. A Mamzer

The poskim disagree about whether a man fulfills the mitzva of procreation by having a son and daughter through an adulterous sexual union that renders them mamzerim.^[6] Poskim also disagree about whether a mamzer has a mitzva to marry a woman whom he is permitted to marry – a mamzeret or convert – and have a son and daughter, even though these children will also be mamzerim.

Those who maintain that the mitzva applies to them adduce proof from the Talmud’s statement that the laws of sota apply to mamzerim. That is, if there is reason to suspect that the wife has committed adultery, we erase God’s name and give her the infused water to drink in order to make peace between the husband and wife, even though any children they go on to have will be mamzerim (Sota 26a). The implication is that mamzerim do fulfill a mitzva when they have children.

Others say that it is preferable for a mamzer not to have children, so as to avoid increasing the number of mamzerim. Proof for this view lies in the suggestion of the Sages that a mamzer marry a slave woman in order to purify his offspring. In order to avoid passing on his mamzer status, he may marry a woman from a gentile nation who has been acquired by a Jew. After the birth of their children, he can arrange for their freedom. Their status will be that of freed slaves – Jewish and not mamzerim. This course of action is recommended even though he will not fulfill the mitzva of procreation, because the children born of this union are not considered of his halakhic lineage. We see that it is preferable for a mamzer not to fulfill the mitzva of procreation, so that he will not pass on the status of mamzer to his offspring.^[7]

[6]. According to Ramban, Rashba, and Ritva, based on the Yerushalmi (y. Yevamot 2:6), if someone has relations with a married woman, which results in the birth of a male mamzer, he has fulfilled the obligation of having a son, despite the terrible sin he has committed. This is the position of Rema (EH 1:6), Levush, and AHS. However, according to Radbaz (7:2) this is inconceivable, as a mitzva cannot be fulfilled by committing a sin; the Yerushalmi, in his reading, is inconclusive. Radbaz learns that this is also the understanding of Rif, Rambam, and Rosh, as none of them writes that having a mamzer fulfills the mitzva of procreation. Birkei Yosef 1:12 follows this approach. Minḥat Ḥinukh (1:8) and Pri Yitzḥak (1:42) explain the logic of the position that one fulfills the mitzva by having a mamzer: while the sexual act is sinful, it is only a hekhsher mitzva (an action that facilitates a mitzva). The mitzva, in contrast, is not fulfilled until birth; therefore, it is not considered a mitzva that is fulfilled via commission of a sin. Tzitz Eliezer 4:16:4 adds that a sin negates a mitzva in a situation in which the mitzva can actually be negated. However, in this case the child exists and cannot be negated. Thus, the father has fulfilled the mitzva.

Another reason that supports those who maintain that having children who are mamzerim is nevertheless a fulfillment of the mitzva can be found in the Talmud, which concludes that the halakha follows R. Yose that in the future, all mamzerim will be purified and permitted to marry any Jew (Kiddushin 72b). Some say this purification will be limited to those mamzerim who are not known as such (MT, Laws of Kings 12:3; Ran; Tosafot Ha-Rosh). Others say that even known mamzerim will be declared pure at that time (Ramban and Rashba).

[7]. Those who maintain that a mamzer is obligated to fulfill the mitzva of procreation include R. Yaakov Emden (She’elat Ya’avetz 2:97) and R. Ben-Zion Meir Ḥai Uziel. However, it seems that even they would agree that it is preferable for him to have children with a female slave, thereby purifying the children of this taint. Even though he would not fulfill the obligation of procreation because the children are not halakhically considered of his lineage, he will nevertheless fulfill the mitzva of populating the earth (shevet), which is a more sweeping and important mitzva.

Others maintain that even though a mamzer does fulfill the mitzva of procreation by having children who are mamzerim, he should not do so le-khatḥila. Therefore, if he does not have the option of marrying a female slave (Kiddushin 69a), it is preferable for him not to fulfill the mitzva of procreation. (He may marry a convert or a female mamzer who cannot conceive, or they can use birth control.). This is the position of Netivot La-shevet, EH 1:8 and Minḥat Ḥinukh 1:22. It would also seem to accord with y. Yevamot 8:2, which records that, according to R. Yehuda, two mamzerim may not marry each other, so as not to increase the number of mamzerim (Responsa Pnei Moshe, EH 1:1).

07. Ten Years of Childlessness

The Sages assume that a husband and wife who have been married for ten years and have not had children will probably not have children together, so they declare that the husband must divorce his wife, pay her ketuba, and marry someone else in order to fulfill the mitzva. Even though divorce is terribly destructive – the Sages go so far as to say, “The altar sheds tears for someone who divorces his first wife” (Gittin 90b) – nevertheless the mitzva of procreation takes priority, for through it a person achieves continuity. Also, the short-term pain of divorce is generally less hurtful than the long-term pain of remaining childless.

True, when polygamy was practiced, the husband had the option of marrying a second wife without divorcing the first. This is what happened when Sarah was childless, as it says (Bereishit 16:3): “So Sarai, Avram’s wife, took her maid, Hagar the Egyptian – after Avram had dwelt in the land of Canaan ten years – and gave her to her husband Avram as a wife” (Yevamot 64a).

If a couple has one child, even if ten years pass and it is no longer possible that they will have an additional child and fulfill the Torah obligation of procreation, the husband is not obligated to divorce his wife. By having even one child, they fulfill the general mitzva for which the world was created (above, 5:3 and n. 2).^[8]

During the period in which a couple did not have children, if they were separated for an extended period of time or the husband or wife was sick, that time is not factored in the ten years. If the wife became pregnant but miscarried, the ten years are calculated from the time of the miscarriage (SA EH 154:10-12).

If a couple living outside of Eretz Yisrael moved to Eretz Yisrael, the ten years are counted from their arrival in Eretz Yisrael, because it is possible that in the merit of living in Eretz Yisrael they will conceive. Similarly, if a couple living in Eretz Yisrael left for a certain period of time, the time they spend abroad is not factored into the ten years (Rashi and Ramban on Bereishit 16:3; AHS 154:25).

If the husband believes that he is infertile, he is not obligated to divorce his wife. Nevertheless, if she wishes to get divorced in order to remarry and have children, he is obligated to grant her a divorce and pay her ketuba. However, if she wishes to stay with him, she may do so, since she does not have a personal obligation to procreate (Yevamot 64a; SA EH 154:6; above 5:3).

It is important to emphasize that the obligation of a husband to divorce his wife after ten years does not establish that she is infertile, but simply means the chances of their conceiving a child together are slim. It is certainly possible that she will be able to have children with a different husband. Therefore, a man who has not yet had children may marry her. If after ten years she has not conceived with her new husband, he too must divorce her. After that, a man who has not yet fulfilled the mitzva of procreation may not marry her. Since she has failed to conceive with two different men, it is likely that that she is infertile (Yevamot 64a; SA EH 154:16-17).

Everything we have said about a man being obligated to divorce his wife after ten years applies to a situation in which there is no clear medical diagnosis. However, if reliable doctors have concluded that there is no chance that the wife will conceive, then even though the couple has not yet been married for ten years, her husband may divorce her in order to fulfill the mitzva to procreate; and vice versa, if ten years have passed but reliable doctors believe that there is still a reasonable chance that the wife will conceive, her husband is not required to divorce her (see Responsa Maharashdam YD §91; Meshiv Davar 4:9; Ish U-veito 16:15, end of n. 1.)

[8]. According to Responsa Radbaz (1:126 and 2:700), a couple must divorce if they had only one child followed by ten childless years, since the Torah obligation is to have a son and a daughter. This is also implied in Responsa Rivash §15. However, most Rishonim and Aḥaronim rule that they need not divorce, as the Mishna’s formulation is, “He married a woman and remained with her for ten years and she did not give birth” (Yevamot 6:6). The implication is that if she did give birth, even once, they are not required to divorce. This is the position of Ramban, Rashba, Me’il Tzedaka §33, Rema, EH 154:10, Pitḥei Teshuva ad loc. 26, and AHS ad loc. 23 and 29. Ritva and Nimukei Yosef imply this as well.

08. Permission Not to Divorce

The Sages’ obligation for a man to divorce his wife after ten childless years can be very painful. Some men, including Torah scholars, despite their desire to fulfill the mitzva of procreation, found it very difficult to divorce their beloved wives, with whom they had entered into an eternal covenant. They sought ways to permit their marriages to continue. Indeed, there are several grounds that sometimes permit this.

The most straightforward grounds for permission are when the husband believes himself to be the cause of their childlessness, or that there is at least a reasonable chance that he is the cause – for example, if he is sickly, or if an accident may have rendered him infertile. Even in these cases, if his wife wants a divorce in order to have a child, he is required to divorce her.

When it is impossible to claim that the husband is infertile, other justifications are sometimes sought. Some assert that since halakha does not require a person to spend more than a fifth of his assets on the fulfillment of a positive commandment (Rema 656:1), if the ketuba payment is more than this he is not obligated to divorce her (see Bigdei Kehuna, EH §1.) However, it seems that poskim do not rely on this claim. Rather, they require the husband to divorce his wife and pay her ketuba, because the mitzva of procreation is so important that one must spend more than a fifth of his assets in order to fulfill it (Avnei Nezer EH 1:1). Moreover, the cap of one-fifth may apply only when an exorbitant price is being demanded for a mitzva. If the price demanded is the accepted price of the mitzva, one is obligated to pay it (see BHL 656, s.v “afilu”). Nonetheless, perhaps one can say that the obligation to divorce is the general rule, but if someone is especially attached to his wife, to the extent that the pain of divorce seems terrible, above and beyond the norm, and worse than losing most of his assets, he is not obligated to divorce his wife.

When the amount of the ketuba payment is more than the husband can afford, some say that he cannot divorce his wife (Rashba; Pri Ḥadash). Many others maintain that since the divorce is halakhically required, if the husband is unable to pay the entire amount of the ketuba he pays as much as he can, and the beit din sets up a payment plan for the remaining amount. The divorce, however, is not delayed (Responsa Radbaz 1:458; Get Mekushar 119:18; Yaskil Avdi, vol. 2, Kuntres Aḥaron, EH §1; Yabi’a Omer, EH 7:2:10).

Outside of Eretz Yisrael, some wish to rely on the few Rishonim who maintain that even after ten years there, it is unnecessary to get divorced.^[9]

In practice, in each and every case, all factors are considered, and usually, by combining two or more rationales, justification is found to keep them together.

Another claim that can be used to allow a childless couple to remain married is for the woman to refuse to accept a get. The man can then claim that Rabbeinu Gershom’s ban forbids him from divorcing her against her will. (Technically, if he insists on marrying another woman, he might be permitted to take a second wife; if he does not insist, he would simply remain married to the current wife.) However, this is be-di’avad because it is based on the wife’s refusal to uphold halakha.^[10]

[9]. According to the majority of Rishonim and Aḥaronim, even outside of Eretz Yisrael a childless couple must get divorced after ten years. This is the position of Ramban; Rashba; Ritva; Yam Shel Shlomo; Bi’ur Ha-Gra, EH 1:10; Levush, EH 154:11; AHS ad loc. 24-25; and many others. According to Or Zaru’a, Raavan, and Hagahot Maimoniyot, the ten years rule does not apply at all outside of Eretz Yisrael. Some Aḥaronim are willing to use this as an additional reason to be lenient, when there are other reasons as well, including: Shev Yaakov EH 2:1; Bigdei Kehuna, EH 1; Noda Bi-Yehuda 1, EH 1.

[10]. If the husband wants to divorce his wife but she refuses to accept a get, some say that we allow him to divorce her against her will (Beit Shmuel 1:7). Others say that we allow him to take a second wife (Yaskil Avdi, EH 2:1; Yabi’a Omer, EH 7:2). Others say that he is neither permitted to divorce his wife nor to marry another woman. They are afraid that his intentions in taking a second wife would not be for the sake of heaven and the mitzva of procreation (Ha-elef Lekha Shlomo, EH §7), and he might marry a woman who cannot have children (R. Yitzḥak Elḥanan Spektor, Ein Yitzḥak, EH 2:57). Some do not permit marrying another woman even in a case with four uncertainties as to whether Rabbeinu Gershom’s rule of excommunication is applicable (R. Ḥayim Palachi, Ḥayim Sha’al 2:16). R. Goren rules this way, as do other rabbinical judges (see Piskei Din Rabbaniyim vol. 6, p. 193). In Israel, these questions are discussed and decided by a beit din, and in exceptional cases, permission to take a second wife is granted.

09. Noaḥides

The mitzva of procreation is relevant even to Noaḥides (non-Jews), as God said to Noaḥ and his sons: “And you, be fruitful and multiply, abound on the earth and increase on it” (Bereishit 9:7). However, the specific obligations that require men to get married by the age of twenty (24 at the latest) and to have a son and a daughter (5:7-9 above) do not apply to Noaḥides (see Sanhedrin 59a).

If a Noaḥide had a son and a daughter and later converted to Judaism, he has fulfilled the mitzva of procreation, for even when he was a non-Jew, the mitzva was relevant to him (Yevamot 62a). There is a disagreement as to whether this is the case only if his children also converted, or if it is true even if they did not (5:4 above).

Since the mitzva for Noaḥides is a general one and is not an absolute obligation with specific parameters, a Noaḥide who has good reasons not to fulfill it – for example, if there is a reasonable concern that his children will be sick, or if there is a serious concern that he will not be able to educate his children to be decent people – he need not do so even le-khatḥila.^[11]

Some say that Noaḥides may not waste seed. We have seen (4:1) that this is one of the sins that was punished by the flood, as we read:

The earth became corrupt before God; the earth was filled with lawlessness. When God saw how corrupt the earth was, for all flesh had corrupted its ways on earth, God said to Noah, “I have decided to put an end to all flesh, for the earth is filled with lawlessness because of them: I am about to destroy them with the earth.” (Bereishit 6:11-13)

The Sages explain that the flood waters were as hot and thick as semen, for “with hot passion they sinned, and with hot water they were punished” (Sanhedrin 108b). The waters of the deep overflowed and drowned them (R. Ḥayim Palachi, Ḥayim Ve-shalom §16; Tzofnat Pa’ane’aḥ §30).

In contrast, some say that there is no prohibition for Noaḥides to masturbate and waste seed; since this prohibition hinges on the mitzva to procreate, which does not apply to Noaḥides, they are also not included in the prohibition to waste seed (based on Tosafot to Sanhedrin 59b, s.v. “ve-hu”; Igrot Moshe 4:116). It would seem, though, that even according to those who are lenient, such behavior is improper, for all desire should be directed toward increasing love within the framework of marriage.^[12]

[11]. At first glance it seems that the Rishonim disagree as to whether Noaḥides are obligated to procreate. According to She’iltot (165) and Tosafot (Ḥagiga 2b s.v. “lo tehei”), they are obligated. This is based on Yevamot 62a, where there is a discussion of whether a convert who had children while he was a non-Jew has fulfilled the mitzva of procreation. According to R. Yoḥanan he has, “because they were subject to the commandment to procreate beforehand.” Rashi, Raavan, and Me’iri conclude from this that Noaḥides have a mitzva to procreate. In contrast, the straightforward reading of the Talmud in Sanhedrin 59b seems to indicate that Noaḥides are exempt from the mitzva. According to Tosafot (Yevamot 62a s.v. “bnei”), non-Jews are not obligated to procreate, but if they do have children, the children are considered of their lineage. Or Zaru’a and R. Avraham Min Ha-har agree (commenting on Yevamot ibid.). However, it is possible to say that even in their opinion, while non-Jews are not obligated to procreate, the general mitzva is relevant to them as well. (The general mitzva is actually greater than the individual obligation, as I explained above in 5:3.) This is the position of AHS 1:5. One can argue that the relationship of non-Jews to procreation is similar to that of Jewish women. Fulfilling the mandate to procreate is a tremendous mitzva for them, but not an obligation.

[12]. Sdei Ḥemed (Klalim, Ma’arekhet Zayin, klal 20) explains that according to Tosafot (Sanhedrin 59b) there is no prohibition for non-Jews to waste seed, because they are not obligated to procreate. She’iltot, which maintains that non-Jews are obligated, rules that they may not waste seed. However, Ramban and Rashba (above, ch. 4 n. 15) argue that there is no connection between the obligation to procreate and the prohibition against wasting seed. Thus, we can say that Noaḥides may not waste seed just as Jewish women may not masturbate – because desire must be preserved to increase love between husband and wife.

It is possible that the ruling in this case hinges on the underlying rationale of the prohibition. If the prohibition to waste seed stems from the prohibition of “Do not commit adultery” (following Or Zaru’a 1:124 and Smak §292), then perhaps Noaḥides are included, since they, too, are admonished not to commit adultery. If the prohibition to waste seed stems from the mitzva of procreation (following Tosafot), or from the prohibition of bal tashḥit (following R. Yaakov Ettlinger), then non-Jews are not included, even though wasting seed is still improper.

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