Thursday, July 17, 2014

My oh my, How Times Have Changed

We have now described the fundamental assumption upon which the article "Obstetrics and the Curse of Eve" is based.  According to the authors, a birthing woman is in a category not exactly equal in halachic status to the critically ill patient. Thus, in what they consider to be the classical halacha; on Shabbat one must use a shinuy whenever possible, prior to the final stage of labor one may do nothing other than to call the midwife, and generally speaking only the midwife is called upon to violate Shabbat restrictions.

From here they go on to describe how much things have "changed".  Here are the next few paragraphs:
"Such halakhot could be easily implemented in a society where midwife attended home births were the rule. The only person who, under normal circumstances, had to transgress the Sabbath was the midwife. From a global perspective, home birth is still the norm and hospital birth the alternative. In middle- and high-income countries the opposite is true: the home birth rate in these countries is very low, for example, less than 1 percent in the United States. Where hospital births are the norm, the traditional halakhot about Sabbath observance have quickly become inoperative. 
Even a brief examination of a respected 1979 halakhic compendium will show how much these laws have changed. According to Rabbi Joshua Neuwirth, a woman should travel to the hospital at the onset of the slightest sign of labor. She may carry her possessions with her to the hospital, even through an area without a permitting enclosure (‘eruv) and can be accompanied by an “escort” (presumably her husband), who may also transgress the Sabbath. She may even, under certain circumstances, travel home from the hospital on the Sabbath if in fact she had been mistaken about being in labor.
What sources does Rabbi Neuwirth quote when allowing wholesale transgression of the Sabbath before the final stages of labor? Almost invariably he says, “So I have heard from rabbinic authorities” or refers his readers to the general rule of life-threatening situations (piqquaḥ nefesh). There is no attempt to justify these radical changes; piqquaḥ nefesh apparently speaks for itself."
We have already demonstrated that the fundamental assumption made by the athors is deeply flawed.  That is because the majority of the poskim follow the simple meaning of the words of the Shulhan Arukh and the rambam and the Gemara that state unequivocally that a birthing woman is "B'sakanat nefashot", and that the same laws that apply to any critical patient apply to her as well.  The Maggid Mishna that was quoted by the authors which differentiated between a birthing woman and a critically ill patient was either not accepted by many poskim, or interpreted by the poskim to be refering only to things being done l'yashev da'atah - to calm her fears.

R' Neuwirth, in Shemirat Shabbat K'Hilchatah (SSKH), paskens exactly NOT like the authors of the article would have you assume is the accepted halacha.  In fact, he paskens exactly like many of the poskim we quoted before, and that there is no halachic difference whatsoever between a birthing woman and a critically ill patient.  See SSKH Vol 1, 34:4 note 6 where he states, and I quote:
"see earlier in 32:28 (where R' Neuwirth paskens that one must use a shinuy for every critically ill patient whenever possible), therefore, the law of a birthing woman is the same as the laws of a critically ill patient, in that whenever it is possible, a shinuy must be used."
It is unclear why in the text of the SSKH R' Neuwirth quotes the Maggid Mishna when he states that the pain of birthing is a natural process. However, he provides the source in his note and refers us to the Arukh Hashulkhan and the Mishna Berura.  It is well known that the normal style of the SSKH is to leave this type of detailed analysis to the reader, and simply to provide the sources for someone interested in further investigation.  Regardless, the SSKH is crystal clear, both in 32:28 when he discusses the laws of the critically ill patient, and in 36:4 when he discusses the laws of the birthing woman, that he considers them exactly the same.  He thus follows, not surprisingly at all, the pattern of most poskim throughout the centuries, who did not differentiate between the two.  Unlike the authors who would have you believe that "medieval halakhic codes made a clear distinction between the birthing woman and the standard critically ill patient".

Thus it should be no surprise at all when he allows what the authors consider "wholesale transgression of the Sabbath".  He doesn't need any more sources, as the poskim, especially the Arukh HaShulkhan who WAS quoted by the SSKH, made abundantly clear that even things that are only needed to calm her down, but aren't medically necessary, are permitted on the Shabbat.

The next issue that the authors discuss is the use of male birth attendants.  In summary, they contend that Halakhah in general "severely limited the access of male physicians to women". Traditionally, births were attended by women only, and midwives were the attendents at births.  However, "today most Orthodox women standardly have their babies delivered by male physicians...", and this has been supported by the halachic authorities.  Consistent with the theme of their article, the assumption is made that the reason for this leniency of the modern poskim is that when life is in danger, we can allow transgressions of halachah, including the use of male birth attendants.  In their words, "The male physician is exempted from this rule (the rule prohibiting males from being present at the birth), presumably for reasons of piqquaḥ nefesh."

I will discuss this issue in detail in my next post.

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