More on Artificial Insemination (l'chumra) - Rav Yaakov Epstein - Techumin 24

In this article published right after that of Rabbi Ralbag, Rav Yaakov Epstein comes out against the lenient ruling regarding children born to single women who have been artificially inseminated.

Rav Epstein approaches this issue mainly through the perspective of the issue of שתוקי, and he main conclusion from his analysis of this issue is that a שתוקי is generally dealt with strictly, and is considered to be at best a ספק ממזר, and that a child whose father is not known due to AI almost definitely falls into this category.

With regard to the notion that a woman who goes to a hospital to be artificially inseminated is dealt with as if the case is one of כל דפריש מרובא פריש, Rav Epstein raises a doubt as to whether this is really the case. He notes that in order to invoke פריש we rely on the idea that the semen is no longer connected to its donor. However, since the woman does come to an established location (the hospital), there may be room to say that she is really entering into a case of כל קבוע כמחצה על מחצה דמי. Even if this is not a true case of קבוע, and even if it thus falls into the פריש realm, since we are dealing with a case of ספק ממזר we are going to be strict.

Another line of leniency would be to allow the doctor to testify that the donor is someone who would not render the child a ממזר. However, Rav Epstein notes that this is nearly impossible for a number of reasons. First, sperm banks rely on the anonymity of the donors, and thus the doctors are unlikely to be able to make such a statement (and they would need to know not only the identity of the donor, but also be able to confirm that the semen implanted in the woman definitely came from that donor and that the woman had not received any other semen). Furthermore, Rav Shlomo Zalman Auerbach ruled in such a case that there are at least two problems that would remain - the suspicion of זנות on the part of the woman [ed. - would this change if such procedures become more common?] and the fact that since the semen is obtained via הוצאת זרע לבטלה that this would somehow convey a bad influence on the child that would be born as a result. Finally, Rav Epstein notes that given the various halachic implications of fatherhood, there is a necessity for a fairly high level of נאמנות in establishing paternity, and such a level is virtually impossible in this case.

Finally, Rav Epstein notes the position of Rav Moshe Feinstein which claims that the status of ממזר can only be conferred via intercourse and not through AI. He rejects this position, noting that most other poskim do not follow this view.

Artificial Insemination - Rav Mordechai Ralbag - Techumin 24

In this article in Techumin volume 24, Rav Mordechai Ralbag (a חבר בית דין in Yerushalayim) discusses the issue of a single woman who is artificially inseminated (AI) and the status of the child. At the outset, he notes that he is not endorsing the practice, but rather is discussing what happens with the child assuming that a woman has proceeded with said procedure.

Rabbi Ralbag begins by assuming that the most common case of AI is with a married couple who is having fertility issues. He notes that although there is some discussion on the issue, most poskim allow the husband to make his semen available for such a procedure, without worrying about השחתת זרע לבטלה, as there is a clear purpose in this case. However, everyone agrees that so long as the woman is married there is no permission given for another man to donate his semen. There are various reasons given for this prohibition - ranging from an איסור דאורייתא to a range of concerns that will develop down the road to a visceral distaste - but the agreement on the basic law stands.

In terms of the status of the child in such a case, if the donor is not Jewish then the child is fine, as the law is that a non-Jewish man who impregnates a Jewish woman produces a child whose halachic status is clear. If the donor is a Jew, then there is a debate as to whether or not the child has the status of a ממזר.

When it comes to the case of a sperm bank, how are we to deal with the identification of the donor, assuming that the bank keeps such information private? Outside of Israel, we can assume that most donors are not Jewish, and thus certainly for a single girl there will be no problem, since Rav Moshe Feinstein and Rav Yaakov Breisch have already established that we can follow the majority. If the woman is married, then things are more complicated, since what happens if the donor was in fact a Jew? Rabbi Ralbag invokes the rules of כל דפריש מרובא פריש - that since the woman goes to the hospital to be impregnated, then the sperm is considered to be separated from its source, it which case we can assume that it was derived from the majority, which in the case of חוץ לארץ means that it came from a non-Jew.

Based on an argument about the difference between שתוקי and אסופי, Rabbi Ralbag posits three possible views for our case, where the identity of the mother is known but that of the father is not:

1) According to the Maharit, the child is considered a שתוקי since even the mother does not know the identity of the father, and thus the child is a ספק ממזר.

2) According to the Noda BiYehuda, the child is considered to be an אסופי who has a sign on him (namely that his mother is protecting him). Thus, there is no ספק on the mother, and the ספק on the child is lifted by the fact that the child is considered to be פריש and thus is כשר.

3) According to the Yeshuot Yaakov and the Beit Meir, it is possible that there is no problem at all, since, based on a Gemara in Sotah, we learn that זנות is only an issue when there is actual intercourse, which did not take place in the case of AI. As such, it could be that the child is complete כשר. On the other hand, it is possible that since we know that the single mother became pregnant without know who the father is that the child will be deemed a שתוקי.

Rabbi Ralbag brings his analysis to an end by citing the view of Rav Moshe Feinstein (cited earlier on this blog) that ממזרות can only be contracted via an actual act of intercourse, and since there is none in this case, the child will be fine even if the father is himself a ממזר.

In his conclusion, Rabbi Ralbag brings support from both Rav Shalom Messas (Rav of Yerushalayim) and Rav Zalman Nechemiah Goldberg, that his analysis is correct and that if a single woman does receive AI, even though it is not advised at the outset, nevertheless the child will be deemed כשר and acceptable to marry another Jew without question.

Maintaining a Minyan - Igrot Moshe Orach Chayim 3:16

In memory of my grandfather, Walter Rosenthal a"h, whose 9th yahrtzeit is this evening, the 16th of Tevet. He was described by his Rabbi at his funeral as a "shul Jew," always committed to ensuring that he did everything that he could for his out-of-town congregation.

Rav Moshe Feinstein was asked about a shul that was having trouble with its weekday minyan. Apparently, the time of the minyan was too early for some of the people who belonged to the shul, and they wanted to daven elsewhere. However, this put the daily minyan in jeopardy and thus the question was whether the minyan should be abandoned or whether people should be pushed to help make the minyan.

Rav Moshe ruled that since this shul had a permanent minyan, it was incumbent upon the members of the community to keep it going. Even if some of the people chose to daven instead in a nearby Beit Midrash, which may be a preferable location for davening (although perhaps only for people who spend their day learning there), there should at least be enough people who make sure that the shul in question is able to maintain their daily minyan, insofar as it was well-established and constant. However, Rav Moshe notes that the Beit Midrash should be assured of a minyan as well, and if the davening time of the shul is too early for people, then a rotation should be set up so that no one has to overextend themselves every day.

Divorcing a Barren Woman - Meishiv Davar 4:8

A case was brought to the Netziv concerning a man whose wife had not given birth and was now past her childbearing years. While we have a tradition that Sarah gave Hagar to Avraham ten years after they entered Israel and still did not have children, and that this is a template for how long a couple should try having children before the man is to look elsewhere, we also now have to contend with the חרמות דרבינו גרשום which prohibit both polygamy and forced divorce. In this case, the woman refused to accept a get, and thus the question arose as to whether the man had any hope of ever having children.

The Netziv ruled that this was a clear-cut case where the man was entitled to make use of the היתר מאה רבנים, under which he could divorce his wife or at least take on another wife provided that he obtained the signatures of 100 Rabbis from at least three distinct communities. He notes that since the woman has not done anything wrong, the היתר מאה רבנים will allow the man to take on a second wife, and at whatever time that the first wife agrees to accept a get she will receive the full compensation for her ketubah.

Tallit and Tefillin before sunrise - Igrot Moshe Orach Chayim 4:7

There is an earliest time when one can put on tallit and tefillin - generally between 40 minutes and an hour before sunrise, depending on which posek one follows. What does one do if he has to daven much earlier than sunrise to the extent where he has to put on his tallit and tefillin before he is obligated to do so? This question is quite pertinent right now, as sunrise in Bergen County (where this blog is written) is well after 7am, and thus minyanim that begin closer to 6am begin before most poskim feel there is an obligation for tallit and tefillin.

Rav Moshe Feinstein felt that such a situation is comparable to a case of a person who gets tallit and tefillin in the middle of davening. In that case, the individual should put them on and make the bracha after ישתבח but before קדיש. In this case, since one has the tallit and tefillin from the start but is simply not yet obligated to wear them and, by extension, should not make the bracha, the person is allowed to put them on right away, but should wait until after ישתבח then pause and make the bracha.

There are those who say that in this case one should move his tallit and tefillin around before making the bracha so as to create circumstances as if he is newly putting them on at that time. This would be done to fulfill the requirement of עובר לעשייתן - that brachot made on mitzvot have to be made before the mitzva is performed. Rav Moshe felt that such movement was not necessary for the purposes of the bracha, and that the עובר לעשייתן requirement was fulfilled with the continued performance of the mitzva after the bracha is made. However, he does encourage one to move around his tallit and tefillin when he makes the bracha as a recognition of the mitzva that he is now making a bracha on.

Taking off a Kippa - Igrot Moshe Yoreh Deah 3:2

In a teshuva from 1974, Rav Moshe was asked about whether it would be permitted for a person to remove his kippa in a business situation if keeping it on would cost him financially.

Rav Moshe replied that according to virtually all poskim wearing a kippa is a מידת חסידות, and even though it has been widely accepted by Jews it nevertheless takes a back seat in the face of potential financial loss, which qualifies as אונס. The one possible difficulty is the view of the Taz, who raises the possibility that not wearing a kippa would be considered חוקות הגוים. However, Rav Moshe rejects this view based on the fact that nowadays, a man walking around with a bare head is considered de rigeur from a fashion standpoint and is not done for any ritual purposes. As such, a Jew walking around with a bare head would not be considered to be conforming to any specifically non-Jewish practice, and when money is on the line he should remove his kippa rather than risk his income.

Kaddish before burial - Igrot Moshe Yoreh Deah 3:160.3

My grandmother passed away on the Friday of Thanksgiving weekend and was not buried until Sunday. Should kaddish have been said already over Shabbat, even though aveilut does not begin until burial?

This question was addressed by Rav Moshe Feinstein in a teshuva written in 1981. In the teshuva, Rav Moshe notes that this is subject to a debate between the Taz and the Shach, with the former ruling that kaddish should be said and the latter (in the Nekudat HaKesef) writing that there is no need to say kaddish. The Shach explains his reason by noting that ther purpose of kaddish is to help the soul of the deceased be saved from gehinom, and since that is not even a possibility until burial, there is thus no reason for kaddish to be said.

Rav Moshe supplies a reason for the Taz's viewpoint that kaddish should be said. While there is no issue of gehinom until burial, there is still the issue of the deceased being judged in the heavenly court, and kaddish can certainly serve as a merit in that judgement even before the body has been interred. Rav Moshe feels that even the Shach would see merit in this rationale.

While the Avodat HaGershuni comes out squarely against saying kaddish at all before burial, Rav Moshe notes that the Gesher HaChayim of Rav Yechiel Michel Tuketchinsky (the authoritative source for the laws of mourning) sides with the Taz, and Rav Moshe seems inclined to do so as well.

Chanukah Issues - Igrot Moshe Orach Chayim 4

In a quick paragraph at the end of teshuva #101 in this volume, Rav Moshe states that his preferred candle lighting time is 10 minutes after the beginning of sunset (what we would call 10 minutes after שקיעת החמה). He notes that if a person lights that such a time he will need sufficient oil to last for about an hour, as the candles have to remain lit until half an hour beyond dark.

In the final section of teshuva #105 in the same volume, Rav Moshe discusses whether or not a person should light candles in a place where there will be no פירסומי ניסא (publicizing of the miracle). He notes that publicizing the miracle to non-Jews only does not count, and thus what should a person do if he is alone somewhere. Even further, the halacha is that a person who is travelling and is unable to light can rely on his wife's lighting at home in order to fulfill his own obligation - what if the individual can rely on his wife but also has the capability of lighting?

Rav Moshe rules that in such a case an individual should light for himself, even if he will be the only person to see the candles. Even further, such an individual should light with a bracha, as the need to publicize the miracle, crucial as it is, does not hold up the performance of the mitzva. As such, someone who arrives home very late at night when his entire family is sleeping should nevertheless light with a bracha, as doing so will publicize the miracle at least for himself.

Chanukah Question - Looking for an Answer

We hold that Chanukah candles have to remain lit for half an hour, and that at the time of lighting there must be enough oil or wax to last for half an hour under the conditions present at the time of lighting. In other words, if they are lit in a place where there is a wind that is likely to blow them out, then the lighting is not considered to be valid.

I have always thought it problematic for a family that lights several chanukiyot to use those small, colorful candles on the later nights of Chanukah. Since most people place their chanukiyot in close proximity to one another, the amount of heat generated by upwards of 40 candles causes the candles to burn faster than usual, and since under optimal conditions those candles only last half an hour, it would seem that this is tantamount to placing the candles in a windy spot where they are sure to not last the required minimum time.

I have finally found one source to back up this idea. In a book called מקראי קודש, by Rabbi Moshe Harari of Mercaz HaRav (published in 1996), he cites on page 65 a conversation with Rav Mordechai Eliyahu who specifically advises against having these candles too close to one another, as that will hasten their burn-down time. Has anyone seen another source for this idea?

Difficult Chanukah Situations - Igrot Moshe Yoreh Deah 3:15.5

In this brief section of a multi-part teshuva, Rav Moshe Feinstein deals with cases of people whose main domicile is not easily discerned insofar as it concerns where they should light Chanukah candles.

In terms of students living in a Yeshiva dorm, Rav Moshe rules that they should light in their rooms, where they at least have some sense of ownership, and not in the main dining room or other common area of the Yeshiva. As leaving the candles alone would constitute a fire hazard, the students within any one room should have a lottery to decide who has to stay in the room with the candles each night.

In terms of someone who is camping and thus away from home or who is travelling through the night, Rav Moshe indicates that such a person is exempt from lighting candles.

If someone is going out for dinner, such as for a family get-together, but will return home later that night, Rav Moshe is concerned that people will see him return home and suspect that he did not light if he lights in his host's home. Thus, such a person should either light at home before he leaves or come home while people are still out and about and light and home after the party.