May 19, 2024
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Procreation, Adoption and Artificial Insemination in Jewish Marriage

Yevamot 64a and 65b

“I have been married to my wife for ten years,” said the husband to the Bigdei Kehunah, “and we are still childless.” “My wife is such a kind, God-fearing woman, I could not live without her; I am not very healthy; she allows me the freedom to study Torah and takes good care of me and we are raising and educating an orphan in our house, but they tell me that a man who has no children must divorce his wife. I really cannot do that, but neither do I want to neglect the mitzvah of procreation; how would I explain that on the day that I face Him? What should I do?”

A man is obliged to have children, but a woman is not. This duty is considered fulfilled when a man has both a boy and a girl.

If a couple is not blessed with the ability to have children, what are their rights and obligations and what should they do? The Halacha deals with this painful question in three different contexts, namely, the case where the inability is clearly the man’s, where the inability is clearly the woman’s and where the inability cannot be attributed to either spouse.

When the man is clearly infertile, and the woman claims that she wants children and has no ulterior motive for a divorce, such as wanting to collect the ketubah money, the woman may sue the husband for divorce and the Jewish court of law will compel the husband to give his wife a get immediately.

When the woman is clearly infertile, the Jewish court, in Talmudic times, would compel the man to divorce her immediately. In post-Talmudic times, the court no longer compels divorce but leaves it up to the husband. If the husband so elects, he may divorce his wife, even against her will. The legislation of Rabbeinu Gershom, which prohibits a man from divorcing his wife without her consent, would not apply under these circumstances.

When the inability cannot be clearly attributed to either spouse, the halacha is the subject of debate between the Rishonim. The starting point of the debate is the mishnah in Yevamot that states that if a couple has been married for 10 years and has no children, the husband must either divorce his wife or marry another, in addition to his first wife. In the Talmudic era, the courts would compel a divorce under these circumstances, even if neither spouse requested it. The source of this law is the story of Abraham and Sarah. “Abram’s wife Sarai had not borne him any children. She had an Egyptian slave-girl by the name of Hagar. After Abram had lived in Canaan for 10 years, his wife Sarai took Hagar and gave her to her husband as a wife.”

Abraham and Sarah counted 10 years of infertility from the date of their residence in Canaan, Israel, and ignored the childless years during which they resided in Padam Aram, outside of Israel. The Talmud infers from this that the husband is not obliged to divorce his wife after 10 years of a childless marriage outside Israel. Perhaps, explains Rashi, the sin of living outside Israel is the real reason for the couple’s infertility and the remedy would be to move to Israel rather than to divorce. Certain Rishonim, early commentators, agree that the obligation to divorce one’s wife after 10 years of childless marriage has no application outside Israel. The Rosh and other Rishonim, however, rule that this obligation applies everywhere.

Let us assume that we follow the position of the Rishonim who rule that the obligation applies everywhere. Does the obligation still apply after the 10th-century legislation of Rabbeinu Gershom that prohibits a man from divorcing his wife without her consent and prohibits a man from having more than one wife?

In this matter, too, there is a dispute between Rishonim. There are those Rishonim who maintain that Rabbeinu Gershom never intended that his prohibition override the very important biblical commandment of procreation. Other Rishonim maintain that since there is no guarantee that the man will have children from a marriage with another woman, the prohibition of Rabbeinu Gershom remains in place.

Let us assume that we follow the opinion of those Rishonim who rule that the obligation to divorce one’s wife after a 10-year childless marriage applies everywhere and that such an obligation overrules the prohibition of Rabbeinu Gershom. Does the obligation apply even when the couple does have children but do not have a boy and a girl? The opinion of many is that the obligation would not apply in this situation because the couple has demonstrated their ability to produce children and the potential exists to produce more children.

Whatever the outcome of these discussions among the Rishonim, there is a consensus among them that in the post-Talmud era, unless the marriage is a prohibited union, the courts will not force a couple to divorce if neither spouse requests it.

According to some authorities, a man who is infertile can fulfill the mitzvah of procreation through adoption. This ruling is based on the dictum in the Talmud that raising an orphan in one’s house is equivalent to giving birth to a child. The effort involved in adoption, suggests Dayan Abramsky, is equivalent to the effort of childbirth.

Can one fulfill the commandment of procreation by means of artificial insemination? There is persuasive authority supporting the position that a husband can do so provided he is the sole donor of the semen. When the husband is not the donor of the semen, many authorities are of the opinion that he will not have fulfilled the mitzvah of procreation.

And what did the Bigdei Kehuna reply to the distressed husband? First he said, “You may rely on the opinion of those Rishonim who rule that the obligation to divorce one’s wife does not apply to a childless marriage outside Israel. Furthermore, there is no knowing whether you will find another wife, whether your new wife will be as loving and God-fearing as your present wife, and whether she will allow you to devote time and resources to raising an orphan and teaching him Torah. In addition, the expense involved in divorcing your wife and marrying another is prohibitive. According to the halacha, you should not spend more than a third of your wealth on a mitzvah, even one that is within your power to fulfill, such as the purchase of Arba Minim. You are certainly not obliged to spend more than a third of your wealth on divorce and marriage for the sake of the mitzvah of procreation, which, perhaps, you will never be able to fulfill.” And so the Bigdei Kehuna ruled that the man could live with peace of mind and with his wife too. “Spend your time learning, look after the orphaned child and enjoy your marriage.”

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at or by emailing Raphael at [email protected].

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