fertility and jewish law brandeis series on gender, culture, religion, and law Lisa Fishbayn Jo√e and Sylvia Neil, Series Editors This series focuses on the conflict between women’s claims to gender equality and legal norms justified in terms of religious and cultural traditions. It seeks work that develops new theoretical tools for conceptualizing feminist projects for transforming the interpretation and justification of religious law, examines the interaction or application of civil law or remedies to gender issues in a religious context, and engages in analysis of conflicts over gender and culture/religion in a particular religious legal tradition, cultural community, or nation. Created under the auspices of the Hadassah-Brandeis Institute in conjunction with its Project on Gender, Culture, Religion, and the Law, this series emphasizes cross-cultural and interdisciplinary scholarship concerning Judaism, Islam, Christianity, and other religious traditions. For a complete list of books that are available in the series, visit www.upne.com Ronit Irshai, Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature Janet Bennion, Polygamy in Primetime: Media, Gender, and Politics in Mormon Fundamentalism Jan Feldman, Citizenship, Faith, and Feminism: Jewish and Muslim Women Reclaim Their Rights hbi series on jewish women Shulamit Reinharz, General Editor Sylvia Barack Fishman, Associate Editor The HBI Series on Jewish Women, created by the Hadassah- Brandeis Institute, publishes a wide range of books by and about Jewish women in diverse contexts and time periods. Of interest to scholars and the educated public, the HBI Series on Jewish Women fills major gaps in Jewish Studies and in Women and Gender Studies as well as their intersection. The HBI Series on Jewish Women is supported by a generous gift from Dr. Laura S. Schor. For the complete list of books that are available in this series, please see www.upne.com Ronit Irshai, Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature Elana Maryles Sztokman, The Men’s Section: Orthodox Jewish Men in an Egalitarian World Sharon Faye Koren, Forsaken: The Menstruant in Medieval Jewish Mysticism Sonja M. Hedgepeth and Rochelle G. Saidel, editors, Sexual Violence against Jewish Women during the Holocaust Julia R. Lieberman, editor, Sephardi Family Life in the Early Modern Diaspora Derek Rubin, editor, Promised Lands: New Jewish American Fiction on Longing and Belonging feminist perspectives on orthodox responsa literature Ronit Irshai translated by joel a. linsider Brandeis University Press Waltham, Massachusetts Brandeis University Press Library of Congress Cataloging-in-Publication An imprint of University Press of New England Data www.upne.com ∫ 2012 Brandeis University Irshai, Ronit. All rights reserved Fertility and Jewish law: feminist perspectives Manufactured in the United States of America on Orthodox responsa literature / Ronit Irshai; Designed by Mindy Basinger Hill translated by Joel A. Linsider.—1st. ed. Typeset in 11/14 Garamond Premier Pro by p. cm.—(hbi series on Jewish women) Keystone Typesetting, Inc. Includes bibliographical references and index. isbn 978-1-61168-239-7 (cloth: alk. paper)— University Press of New England is a member isbn 978-1-61168-240-3 (pbk.: alk. paper)— of the Green Press Initiative. The paper used in isbn 978-1-61168-241-0 (ebook) this book meets their minimum requirement for 1. Conception—Religious aspects—Judaism. recycled paper. 2. Abortion—Religious aspects—Judaism. 3. Jewish law. I. Linsider, Joel A. II. Title. For permission to reproduce any of the material in this book, contact Permissions, University bm538. c68i78 2012 Press of New England, One Court Street, Suite 296.3%662—dc23 2012007839 250, Lebanon NH 03766; or visit www.upne.com This book was published with the generous support of the Lucius N. Littauer Foundation. 54321 To Professor Dafna Izraeli (z’’l) Contents Acknowledgments xi introduction Epistemology, Jurisprudence, and Halakhah: A Feminist Critique 1 Part One Sex without Procreation chapter one ‘‘Be Fruitful and Multiply’’ 25 chapter two Birth Control and Family Planning 53 chapter three Halakhic Rulings on Abortion: A Historical Survey from the Rabbinic to the Modern Period 111 chapter four Abortion in Contemporary Halakhic Rulings 160 Part Two Procreation without Sex chapter five Artificial Insemination, In Vitro Fertilization, and Surrogacy in Liberal and Radical Feminist Approaches 203 chapter six Artificial Insemination, In Vitro Fertilization, and Surrogacy: Halakhic Analysis 225 afterword The Gender Project in the Philosophy of Halakhah as an Exercise in Criticism 269 Notes 277 Bibliography 315 Index 343 Acknowledgments Twelve years ago I knew nothing of feminism. At that time I was enrolled as a doctoral student in the field of modern Jewish thought at the Hebrew Uni- versity of Jerusalem and was engaged in beginning my study of the religious philosophy of Isaac Breuer, a leading figure of early-twentieth-century Ger- man neo-Orthodoxy. It was simply by chance that I found myself attending Professor Tamar Ross’s course on Feminism and Judaism. This was an earth- shaking experience. I felt as if transported back to my first year as a B.A. student in the philosophy department, studying Socrates and feeling the cogs in my brain turning nonstop. A month later I informed my advisor at the Hebrew University that, despite my love of modern Jewish thought, I was now captivated by the encounter between Feminism and Judaism and had decided to direct my academic e√orts to this field. I approached Professor Ross and asked her to be my new advisor without even precisely knowing the subject of my re- search or exactly what it was I wished to pursue. Of one thing only was I certain: that I wanted to explore the ways in which feminist theories can influence Jewish halakhic thought. For her trust, and for opening the door to this new and challenging field, I am profoundly in Professor Ross’s debt. It is to Professor Ross first and foremost that I must tender thanks for this book. Later on, she was joined by Professor Noam Zohar, who became my second advisor. It was my good fortune to benefit from both Noam and Tamar’s knowledge and wisdom. Bar-Ilan University was the first university in Israel to open a gender studies program at the doctoral level. This program was founded and di- rected by the late Professor Dafna Izraeli. Dafna’s inspiration as a feminist and a scholar illumined my path during this long journey. This book is dedicated to her memory. Beyond the scope and high level of its o√erings, the Bar-Ilan Gender Studies Program became my second home, and its students and lecturers became close friends, and later colleagues. To them I owe many productive discussions and exchanges, but above all the commitment to feminist ideas, their loyalty, and friendship. After completing my doctoral degree I spent a year at the Women Studies in Religion Program at the Harvard Divinity School. It was during this wonderful year that I had the opportunity to start thinking of revising my dissertation and turning it into a book. I wish to express my sincere thanks and gratitude to director Ann Braude, who even though on sabbatical was available to us, to acting director Joan Branham for doing a great job during this year, and to my colleagues: Sue Houchins, Michelle Molina, Miryam Segal, and Monica Maher with whom I shared many of the ideas found in this book. The publication of this book received financial support from two in- stitutes at Bar-Ilan University. I thank the Fanya Gottesfeld Heller Center for the Study of Women in Judaism and its chairperson Dr. Elisheva Baum- garten for finding my work in harmony with its objective of advancing femi- nist research on women in Judaism. I must also thank the Dafna Izraeli chair at the Gender Studies Program and Professor Tova Cohen who succeeded Professor Izraeli as chair of the Gender Studies Program. It was Professor Cohen who not only provided personal support and encouragement for my research but also paved the way for my appointment to the sta√ of the gen- der program. This project would not have been possible without the invaluable contri- bution of Joel Linsider, the translator of the Hebrew manuscript, whose erudition and linguistic skills are reflected throughout the English transla- tion. I owe him profound thanks. Nor do words su≈ce to express my heart- felt appreciation to my research assistant, Rachel Furst, an excellent scholar in her own right, who devoted days and nights to helping me complete the di≈cult task of finishing and editing this manuscript for publication. Her good will, wisdom, and meticulousness made this a better book. I must also thank the members of the Hadassah-Brandeis Institute, espe- cially Professors Sylvia Barack Fishman and Shulamit Reinharz, and Dr. Lisa Fishbayn Jo√e, for supporting my work and a√ording me the opportunity to publish this book in two distinguished Brandeis series. It is also my pleasant xii acknowledgments duty to thank the helpful sta√ at the University Press of New England: Phyllis Deutsch, Amanda Dupuis, and Katy Grabill. Special kudos to editor- in-chief Phyllis Deutsch for her outstanding patience! And finally my family: I thank my parents, brother, and sisters for their unconditional support; my beloved children, who despite their youth were willing to share their opinions and to discuss some of the ideas, problems, and uncertainties that accompanied my writing; and finally, my husband, who is more than a friend, without whose support and understanding none of this would have happened. Ronit Irshai jerusalem, summer 2011 acknowledgments xiii fertility and jewish law introduction Epistemology, Jurisprudence, and Halakhah a feminist critique Jewish law (halakhah) is the product of an exclusively male preserve. Though it governs the lives of men and women alike, it has been formulated and interpreted, for thousands of years, by an all-male scholarly elite.