[Avodah] Halachic Infertility

[Chana Luntz]

RAF writes:
> I am sorry, but I am confused. I don't understand what you  want.
Since we are 
> talking about a woman who, prior to becoming a vadai nidah, was
tehorah, 
> therefore, mideOraita, there is no doubt and she wouldn't  have needed
to 
> observe shiv'ah neqiyim. Why do you write that "she does need 
> shiva nekiim"? 

The assertion on this list was that when a woman started bleeding, there
was a real safek d'orisa whether she was a vadai nida or ziva.  I said
that I did not understand this.  Or at least, I understood that for the
first time we started examining the question closely, as at whatever
point we started measuring from *maybe* that was really a ziva bleed not
a nida one.  That is, the fact that she was tehorah before she stated
bleeding does not mean that that first bleed was not a ziva bleed (as
that first bleed might have taken place during the yamei ziva).  But if
we start being careful on day 1 and treat the first bleed as a safek, it
seemed reasonably easy, assuming you have 18 or so clear days to be sure
that you had reset and that the next bleed was a nida bleed, and that
you had eliminated the safek d'orisa.  RIS has been asserting that there
is indeed a real safek d'orisa going on here in all cases.  I could not
understand that - it seemed to me that it was not that difficult to get
oneself out of a real safek d'orisa situation.  RIS has now posted
explaining the situation where she could see there being a real safek
d'orisa still (if there is a short period).  However, that is assuming
there are not 18 clear days.  Given my personal situation - where in
fact there were always 18 clear days (sometimes only 18, sometimes more)
between the hefsek tahara and the onset of the next period, I hadn't
thought of that case - and I still would assume that the case that RIS
brought is a relatively unusual one even for a halachic infertility
case.  And certainly nobody asked me questions as to that effect before
suggesting I contact the medical system.

> The fact is that your example is confusing and one needs a 
> reasonable amount  of concentration to follow that you seem to be
arguing that 
> Rabbi Yehudah and  Rabbi Zeira's positions should only be relevant
when there is 
> a real safeq  deOraita.

No, I am trying to understand why RIS and others are saying that there
is a real safek d'orisa out there, even if you are careful and count
correctly.

What I am trying to establish is why is that people keep bandying safek
d'orisa around, when it seems to me that what we are talking about is a
d'rabbanan, not a safek d'orisa.  Not that this makes a difference in
the normal case.  But I would have thought that it might well make a
difference in a case where the d'rabbanan is in fact preventing the
performance of the mitzvah of pru u'rvu - because that is what we are
talking about here.

The most cogent explanation I have heard for why one cannot set aside
the shiva nekiim in order to enable pru u'rvu is the one that RZS has
advanced.  A woman is not obligated in pru u'rvu. A man is.  Therefore,
for a man to give a sperm donation (a violation of a vadai issur
d'orisa) may be permitted to enable *him* to perform the mitzvah - but
since she has no obligation, she cannot even violate a safek d'orisa.*

But a) a number of rishonim hold that women are obligated in the
d'rabban mitzvah of shevet, so if the shiva nekiim are d'rabbanan, you
end up with the same equation as with the man, except on a d'rabbanan
level.

B) unlike d'orisas, there is some scope for setting aside d'rabbanans in
cases where there is extreme human anguish (and anybody who denies that
this is what is being talked about here clearly hasn't read their
tanach, you just need to read what Rachel Imanu and Chana have to say on
the subject - and note for example that the gemora in Brochas seems to
regard it as legitimate for Chana to threaten to put herself into a
sotah situatioin in order to have children).  Failure to have children
is one of the very few reasons for which a woman is entitled to demand
that beis din enforce a get - and see the Rabbinic discussions there
(and similarly failure to have children is al pi din one of the reasons
beis din is in theory required to force a man to try elsewhere, even if,
al pi the Rema, these days we do not enforce this).  Prevention of the
mitzva of pru u'rvu for even one night was the reason that Yehoshua was
punished.  It seems to me inconceivable given all that is written about
infertility, that a rabbinic ban was intended to catch those situations
where such a ban was in fact preventing the conception of children
necessary to satisfy the d'orisa mitzvah.  Because in rov situations it
does not.  And I suspect if all women were married at 15, it would in
far fewer cases than it does today.  But there is today a significant
miut of cases (and we can now determine which they are by using the
modern technology of ovulation testing) where this is the effect of this
ban.

And yet, it seems that there are numerous children not being born
because this is not the view taken.  Or where the husband is being
required to violate an issur d'orisa of giving a sperm sample because
there is no willingness to allow what would seem, if one is careful, to
at most be a violation of a d'rabbanan.  Or where such births are
delayed because of the time taken to activate the medical system and the
hormones etc.  And where there are potential risks to the woman's health
(which a doctor will advise on - that I thought was the particular input
that the doctor in Ha'aretz was providing) which would not occur if one
could push off the d'rabbanan.

*[The one problem I have with RZS's view, ie that we hold that one
person cannot violate an issur to enable another's mitzva, is you then
get into the weird question as to on what basis may a woman ever allow
herself to get pregnant, given that we now have the means to prevent it.
After all, it is a vadai chazal that a woman about to and having just
given birth is a choleh sheyesh bo sakana (and there is no question
about nature changing on that - you should read some of the reports
produced by the Times for their Xmas appeal this year for a blood bank
for Nepal because 5000 women die in childbirth there for lack of access
to a blood bank).  Any woman who gets pregnant is vadai putting herself
into a position where she will be a choleh sheyesha bo sakana, and is
not unlikely to need to cause all sorts of people, eg her husband, to
violate shabbas on her behalf etc.  Why can she do it at all, given that
she has no mitzvah?]

> OTOH, there are other leniencies that may  be applicable in 
> difficult cases (shortening the waiting time until the hefseq 
> taharah),

This only helps if the bleeding has stopped - otherwise no hefseq tahara
can be made.

But incidently, why is this also not considered a similar situation.
After all, waiting this length of time is similarly based on a safek
d'orisa is it not?  

 more 
> so for Sefardim than for Ashkenazim (especially taking a 
> shower instead of 
> waiting 4/5 days). All of this still involves overriding dearly held 
> minhaggim and should thus be discussed with one's rav.
> 
> BTW, I find Rav Dr. Benyamin Lau's argument, that often we 
> don't need to go so  far, asking more she'elot will often suffice to
enable a 
> woman to start the  hefseq taharah earlier, because she may otherwise
be 
> excessively ma'hmir with certain shades of brown, very convincing.
> 

I find it almost impossible to believe that a woman who is prepared to
go to a doctor to get a drug to lengthen her ovulation pattern is not
going to try and see if her colours are mutar first.  I agree that we
can certainly eliminate some cases this way - we are surely talking
about those remaining.

> Kol tuv,
> --
> Arie Folger
> Check out my new website http://www.ariefolger.googlepages.com

Shabbat Shalom

Chana