Volume 62 Number 76
Produced: Sun, 10 Apr 16 12:41:18 -0400
Subjects Discussed In This Issue:
Aylonit
[Chana Luntz]
Concubinage Relationship
[Susan Buxfield]
Context for "famous quotes"?
[Yakir Hameiri]
Single motherhood (was Halachically married without civil marriage)
[Leah S. R. Gordon]
Under age Marriage (2)
[Robert Schoenfeld Chana Luntz]
When someone unintentionally disturbs davening
[Carl A. Singer]
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From: Chana Luntz <Chana@...>
Date: Sat, Apr 9,2016 at 06:01 PM
Subject: Aylonit
Martin Stern wrote (MJ 62#75):
> Chana Luntz wrote (MJ 62#74):
>
>> In relation to women, while there is no specific obligation on women to have
>> children - there are halachic issues in a marriage if in fact the woman is
>> what is deemed an aylonis - which involves lack of fertility, particularly if
>> this is not disclosed to the husband before marriage. ...
>> However the level of falsehood might arguably be mitigated if the artificial
>> creation could, if necessary, be carried through in all respects - ie if in
>> fact science allowed the husband to in fact have children with this woman,
>> even if, without the assistance of science, he could not.
>
> I very much doubt if this could be done for an aylonit since, although
> this condition involves a lack of fertility, one of its crucial
> aspects is a failure to show any signs of puberty.
>
> I have always been puzzled by how an aylonit would be described in modern
> terminology and the nearest I could find was a genotypical male (XY) with
> congenital androgen insensitivity syndrome (CAIS) who would appear at birth
> to be female. This happens because, in the absence of androgens or changes
> produced in reaction to them, a foetus will develop female characteristics
> even though it may have male gonads. It would appear that this condition is
> caused by the mutation of a gene carried, surprisingly, on the X chromosome
> and so is transmitted from the mother.
>
> Perhaps there are some paediatricians on our mailing list who might be able
> to shed more light on the matter.
I am certainly no paediatrician, but I am fairly confident that this is not the
only reason for a failure to show any signs of puberty. The reason I am so
confident is that a girl I was very friendly with at school was failing to show
signs of puberty, and her parents took her off and got her "fixed up". I never
felt able, despite our friendship, to ask her for the details, but she went on
to have children (and I don't think they were even test tube, it being a bit
early for that to be common, and I am pretty sure I would have been told). She
certainly had a (actually more than one) normal birth.
I suspect therefore that the category of alyonis covered a multitude of
scenarios, from XX who for some reason had the puberty hormones failing to fire,
to the genetic situation you describe. And, from what I have read, hormonal
treatment can now alleviate (in all categories) the lack of physical signs of
female puberty. What I don't believe they can do currently is provide a womb
when there isn't one to allow carriage of a baby inside it. But then again
maybe womb transplants are not as much science fiction as one might suspect.
Regards
Chana
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From: Susan Buxfield <susan.buxfeld@...>
Date: Sun, Apr 10,2016 at 10:01 AM
Subject: Concubinage Relationship
Chana Luntz (MJ 62#75) has responded to my post (MJ 62#64) but without any
reference to later posts on the subject.
In order not to burden the group with a repeat of my arguments, the following is
a response to points not previously covered.
> The Rema sees it as a split between the Ra'avad and "ktzat meforshim"
> [the minority of comentators]
The translation of "Ketzat meforshim" is "some commentators" in this context
which is not necessarily a minority.
> Various Achronim do indeed disagree (and understand the various Rishonim
> differently from the Rema and in the way that Susan cites), but it is hard
> to say that the Rema's position in the Shulchan Aruch is "tenuous".
My post did not say that the Rema's position is tenuous, but rather that the
original poster's argument, classifying "the majority opinion holding that it is
not permitted", is tenuous.
> given that the position of the Rema in the Shulchan Aruch is generally
> understood to prima facie be normative for Ashkenazim.
Normative? that is a very loaded statement. There are plenty of examples where
Ashkenazim do not pasken like the Rema.
> And once one gets into the Acharonim, the only serious halachic voice
> speaking out in favour of concubinage is Rav Ya'akov Emden (She'elat Ya'avetz
> chelek 2 siman 16), and even he specifically said that nobody should rely on
> his teshuva on the subject without the agreement of the gedolei hador.
Except for the Rambam in Hil. Nashim perek 1 who seems to forbid pilageshut
(but see Hil. Melachim 4,4 where he does permit under limited conditions) almost
all the Rishonim do not forbid pilageshut - not that they actively support the
concept.
Yes, there are very few Acharonim speaking out in favor, but there are also very
few speaking out in public against.
> It appears that no such support was forthcoming.
As the Ramban wrote "if the heter would be known there would be pritzut and
be'ilut niddot". Since a pilagshut relationship does not require any ceremony or
official acquiescence there is no need for "forthcoming support".
> I do not think it unreasonable therefore for R' Teitz to regard what
> appears to be a lone voice amongst the Acharonim calling for the
> permissibility of concubinage to be a minority opinion (where you have, for
> example, the Gra ...
Do you have a source where the Gra states that pilageshut is forbidden? In
several mentions, the Gra suggests that the pilagshim of "Caleb & Gidon, and the
many Gedolei Hador et al. that 'married' pilagshim" could be attributed to the
RaMBaM's permission of Ama Ivria - a Jewish maid servant.
> ... and the Igros Moshe regarding it is forbidden).
Source?
http://daattorah.blogspot.com/2012/07/r-moshe-feinstein-pilegesh-no-kiddushin.html
in the last paragraph states R' Moshe's words (in Hebrew):
"In any case it is obvious from the words of our masters the Rishonim that the
pilagesh is without kiddushin and does not need a get and is permitted ... and
that the Yerushalmi and aggadata are only according to those that hold pilagesh
with kiddushin." (my translation).
> And that continues to this day, those who attempt to learn general
> permissibility are, by and large, usually outside the mainstream, as the
> vast majority of poskim regard it as forbidden.
Majority? This is how this discussion started off.
While many poskim may not feel comfortable endorsing the idea either privately
or publicly, there does not seem to be too much registered data to clearly
signify a stance by Gedolei Yisrael.
> The moralistic reasons do also need explaining.
Chana has gone here to great lengths try to explain why not to rock the boat.
She is right and any relationship outside the norm should be examined by the
parties involved to make sure that all the pluses and minuses are clear.
However as mentioned in previous posts, the reason for a pilgashut relationship
is not just for a non-hassle exit which can be very helpful if needed.
A relation who had married a no-good husband eventually got divorced both with a
get and civilly only after agreeing in a civil court to pay her non-working-ex
half her savings accumulated from having worked 30 years.
Her ex by halacha would have been entitled to all her 30 years of "ma'ase
yadayim [earnings]", also her house if she would have died first as inheritance
even though she had children from a previous marriage, and since her ex had no
children she would have been forced to do halitza.
Boruch HaShem that the rabbonim outlawed the Yavam (levirite husband) from
exercising his Torah right to force himself upon her without her consent.
And in essence from the halachic view, except for the wedding and seven days of
feasting, what is the practical day to day difference between kiddushin and
pilagshut especially in this era for those many women who are financially
independent even in times of sickness or child-rearing.
Perhaps the real reason for getting married is that in case of breakdown, the
parties involved are also governed by state laws.
Susan
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From: Yakir Hameiri <yakir.h@...>
Date: Fri, Apr 8,2016 at 12:01 PM
Subject: Context for "famous quotes"?
Joel Rich wrote (MJ 62#75):
> Famous sayings I - Pesachim 86b - "kol ma sheyomar lecha baal habayit aseh
> (chutz metzei)" [Anything the Master of the House tells you to do, do (besides
> leave)]. I must have heard this many times and passed it inside at least 3
> times, yet this is the first time I noticed the parenthesis (which means don't
> include it). I wonder how many famous quotes are used without fully getting
> the context? A good secular example might be "I think therefore I am."
My father a"h would quote the explanation attributed to the Vilna Gaon that tze
is in fact rashe tevot [initial letters] of tzad issur. This is similar to his
explanation of ein Torah uMitzvot b'chutz la'aretz being based on amistaken
understanding of the rashei revot for t'rumot u'maasrot
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From: Leah S. R. Gordon <leah@...>
Date: Fri, Apr 8,2016 at 02:01 PM
Subject: Single motherhood (was Halachically married without civil marriage)
In reply to Martin Stern, on the topic of single motherhood (MJ 62#74):
> At the very least, I would consider it irresponsible to deliberately place
> children in a less than optimum environment....
> IMHO this idea that a woman should be allowed deliberately to satisfy her
> maternal instincts outside marriage, even if not in breach of strict
> halachah, would undermine society and should not be encouraged.
One of our values in Western society is that individual men do not have a voice
in the general reproductive decisions of women (even related women, but
particularly women in society at large). So when he says "should not be
encouraged," it makes me wonder what he means by that. I hope he is not
implying that women should be mistreated, or that their innocent children should
be shunned or bullied. In fact, just the act of speaking ill of various family
structures, makes innocent children the victim of unkind comments.
His claim "less than optimum" is additionally not supported by data. There is
data available on various outcomes for children who spend their lives in
different family structures.
It turns out that in an evidence-driven judgement, when you account for
socio-economic differences in families, outcomes are no worse for single-mother
households, and are by some measures BETTER for same-sex households.
The best summary of studies I found regarding same-sex parents, appears at:
http://journalistsresource.org/studies/society/gender-society/same-sex-marriage-children-well-being-research-roundup
For single-mother households, it is difficult to find "neutral" summaries of the
data, and in fact, there are confounding variables if a marriage breaks up
(stress/fighting in front of children; greater likelihood of financial
difficulties when one household becomes two) vs. if a person is a single parent
by choice. I found one column in the _Washington Post_ where she brings several
points of data and discusses this issue:
https://www.washingtonpost.com/posteverything/wp/2015/03/16/im-a-single-mother-by-choice-one-parent-can-be-better-than-two/
I doubt many of the writers on M.J think that their own children would have
been better off raised by a lesbian couple, even if by pure numbers, it would
make their educational outcomes more "optimal".
The only questions we can answer about what family structure is best, would
be for our own families. And on M.J, we can bring additional Jewish sources as
well. I'm aware of Jewish sources indicating that the community should treat
single mothers with tzedaka and respect, but I am not aware of any that suggest
"severely stigmatizing" them.
> While adoption may be seen as an act of tzedakah, there is a tremendous
> shortage of children available so it would seem not in their best interest
> to be reared by a single person (of either sex) if there is the alternative
> of a couple.
Please provide a source that there is anything but an overabundance of
children waiting for adoptive homes. I don't disagree that having two parents
makes certain aspects of parenting much smoother - for me, and maybe for you -
but that's not a decision we make for the rest of the world.
None of this even addresses the cruelty of implying to a single woman
approaching the end of her fertility, that she should wait for the
possibly-never-to-come husband instead of raising a child on her own, if she
craves doing so. Data show that we do have single Orthodox Jewish women who are
getting into their late 30s (aka the "shidduch crisis") - and many of these
women desperately want children. Men do not face the same biological reality, so
in some sense it is "fair" that women can proceed on their own via other means.
Leah S. R. Gordon
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From: Robert Schoenfeld <frank_james@...>
Date: Thu, Apr 7,2016 at 10:01 PM
Subject: Under age Marriage
I remember reading that in Yemen to avoid orphans from being converted
to Islam children as young as a few months if orphaned were married They
were allowed to get a get when the attained bar or bat mitzvah status.
--
Bob
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From: Chana Luntz <Chana@...>
Date: Sat, Apr 9,2016 at 08:01 PM
Subject: Under age Marriage
Martin Stern wrote (MJ 62#73):
> Yisrael Medad wrote (MJ 62#72):
>> Just as an aside, there were more than a few Jewish men who were married
>> before their barmitzvah prior to the 19th century.
>
> This seems completely implausible since a minor cannot give a woman kessef
> kiddushin [nowadays a ring] to effect the marital tie. It is possible that
> there may have been shidduchin arranged for them but that is quite a
> different matter.
>
> Of course, there may have been an attempt to effect kiddushei biah, since
> for a boy over nine we rule biato biah, but, even so, I doubt if it would
> have been any more effective since he would nonetheless not have had the
> requisite da'at [legal capacity]. In any case this mode of kiddushin has
> been banned since Talmudic times.
I only became aware of this when reading a series of teshuvos from the Noda
B'Yehuda. The first one is at Medura Tinyana Even HaEzer 52. The situation
that provoked the question was this: a boy and a girl married, the couple went
to live with her parents for over a year and a half, and then he totally
vanished - leaving the girl an agunah. There was clearly a general keenness to
find a way to rule that the marriage was invalid, so that the girl could marry
again, and witnesses were brought that in fact the chuppah / kiddushin occurred
when the boy was twelve and a half, i.e. a full half a year before his
thirteenth birthday (the girl it would seem was at least bas mitzvah), albeit
that he then lived with his "parents in law" until he was fourteen, and some
months before vanishing. On this basis they wrote to the Noda B'Yehuda asking
him to agree that the marriage was invalid and the girl could marry again (or,
perhaps more accurately, marry). However the Noda B'Yehuda refused, saying the
marriage was valid and advancing his arguments why. The next two teshuvas there
in the Noda B'Yehuda indicate that more and more people wrote to the Noda
B'Yehuda (including the Noda B'Yehuda's own son) arguing with him, and saying
the marriage was invalid (and advancing a multitude of different reasons as to
why this was the case) with the Noda B'Yehuda then responding to each and every
one and restating the validity of the marriage.
I confess, as one is reading these teshuvos, and seeing what seems to be some
extraordinary pilpul [sophistry] defending the validity of this marriage, one
cannot help wondering - why was the Noda B'Yehuda going to these great lengths
to defend this marriage? Clearly the sympathies of all the other rabbis who
wrote to him were with the girl, and the Noda B'Yehuda himself does not seem (in
other places) unsympathetic to freeing agunos - so what was going on here? And
the answer came in the final teshuva (54) where he makes it clear that it was
"the minhag [custom] of the country of Poland to marry the sons prior to their
becoming bar mitzvah in the days of their youth this is a straightforward custom
and the actual "state of marriage" then occurs [automatically] when they turn 13
- and I have never heard that they needed to make a second kiddushin after the
chuppah [ie that occurred before they were 13] or that they did anything that
could be identified as a new kiddushin" - and he then goes on to cite various
great Polish rabbis, or relatives of great Polish rabbis who were married in
this way - and while he says he left Poland when he was 26, and never fully
investigated the fundamental basis for this minhag, the reasoning that he
advances in the varous teshuvos must form the halachic basis for it.
He does add, by the way, right at the bottom of the last teshuva, that after
writing this he has now heard that the body of the boy was found - and that that
of course makes her free to marry again without any doubt (and you can almost
feel his relief in writing those words).
But nevertheless, even when it would keep a woman an aguna, he remained adamant
in his basic point, which was that the minhag in Poland was legitimate and
justified, and rested on sound halachic basis, despite the astonishment
expressed here (and indeed from many of those who argued with him).
The Noda B'Yehuda's understanding however, by and large, does not extend to
kiddushin being valid when given by a boy younger than twelve - the halachic
status of "samuch l'ish" [close to a man] at which point vows made are
considered valid and binding. Below twelve for a boy (and 11 for a girl)
halachic vows are not considered binding, and the Noda B'Yehuda understands this
fact to be crucial for the validity of the kiddushin - ie in effect the boy is
making a vow to enter a state of kiddushin with the girl under the chuppah,
which vow becomes "valid" as soon as he actually hits 13. It was therefore
crucial to the Noda B'Yehuda that the boy in question had lived with the girl
until he was 14 (even if he hadn't had biah - as this was disputed, the girl
apparently claiming it hadn't happened). He toys with the idea that because the
girl was in fact bas mitzvah, under the principle that a child can in fact come
to own something by a halachic mechanism by which the adult puts the item into
the reshus [jurisdiction] of the child, that is what happened here, i.e. the
girl effected the marriage there and then to the boy, as she was an adult, and
she put herself within the boy's reshus, but ultimately is less than satisfied
with this understanding, and comes back to the view that it is based on it being
a vow that later comes to fruition.
>From this distance, it is hard to see the analysis as anything other than
strained, as it seems to cut across various pretty explicit gemoras - but
nevertheless, there you are. It was the minhag in Poland for boys to marry
prior to bar mitzvah, including amongst the children of the greatest talmidei
chachamim of that country, and the Nodeh B'Yehuda was determined to justify this
practice halachically and consider such marriages valid, even in difficult
circumstances.
Regards
Chana
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From: Carl A. Singer <carl.singer@...>
Date: Fri, Apr 8,2016 at 11:01 AM
Subject: When someone unintentionally disturbs davening
As I am currently saying kadish, I find myself davening in many different venues
in order to always "chop" (catch) a minyan. In one such venue there is a
gentlemen who davens
(a) with great fervor
(b) with great volume and
(c) slightly out of synchronization with the kehillah.
Nonetheless, I think it would be both inappropriate and rude to wear earplugs at
a minyan. (I keep earplugs in my car's glove compartment for use at weddings.)
I'd be interested in comments both halachic and social regarding this situation.
Carl Singer
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End of Volume 62 Issue 76
