Are the Couple Really Prohibited from Touching Each Other During Labor?

In the first post of this series, I listed 8 Halachic points that I drew from the Yoatzot website regarding the laws of a woman in labor .  The first point was that a woman in labor has the status of a Niddah. In the last post I presented my argument that the Niddah status does not start until the birth takes place.

For the purpose of this post, let us assume for argument's sake that a woman in labor is actually a Niddah at the time of onset of labor, as seems to be the accepted position among many modern Poskim.  Due to the assumption of Niddah status, the Poskim then take a second step.  The couple is therefore forbidden from touching each other.  Today we will explore the origins of this idea and determine if indeed a husband and wife are not allowed to touch each other while she is in labor.

I pointed out in the last post that the language the Torah uses when describing the prohibition of Niddah is "Do not come near".  In other places that  the Torah prohibits sexual intercourse, it uses language such as "reveal the nakedness (L'galot ervah)" or "do not come onto (Lo Tavo)".  However here the Torah chooses to use this language. Why?

To explain this, we first must point out an obvious difference between the sexual restrictions against intercourse with a Niddah, and the other sexual restrictions listed in the Torah. Although a couple may not have intercourse when the wife is a Niddah, this same couple will be permitted to each other after the Niddah status is over.  For the other restrictions such as the various forbidden incestual relationships, they are never appropriate, ever.

Therefore, one interpretation of the Torah's choice of words is reflective of this difference. That is as if the Torah said, "do not make the time of intercourse too close" meaning, don't rush it!  If you wait until the proper time, it will be permitted.  So the meaning of "come close"  is really an issue of making the timing of sexual activity too close, rather than physical proximity.  This is how the Da'at Zekeinim (A compilation of opinions of the 12th and 13th century Ashkenazic Tosafists) and the Chizkuni (Rabbi Hezekiah ben Manoah, France 13th century) understood this verse.

These commentaries based their understanding of this verse from several earlier Midrashic and Talmudic sources, most prominently from the Medrash Lekach Tov (Compiled by Rabbi Toviah ben Eliezer in 11th century) (my translation):

(The Torah states) "...and to a woman during her (status of) her menstrual impurity you shall not come close ..." Toviah son of Rabbi Eliezer states, why is the (prohibition of) uncovering the nakedness of a Niddah mentioned in proximity to (the similar prohibition against sexual intercourse with) a wife's sister? Only to tell you that just like a woman who is a Niddah there will be a time later one when she is permitted, so to a wife's sister there (may be) a time when she is permitted to after one's wife passes away. Similarly, our rabbis taught (Talmud Yevamot 54b) "A man who takes his wife's sister she is (prohibited to him) just as a Niddah" Just like a Niddah there is a permitted time in the future, so to a sister-in-law there (may be) a time in the future when she is permitted. (Medrash Lekach tov Leviticus 18:19)  

However, the thrust of the rabbinic understanding of the Torah's choice of language is very different.  The warning against "coming close" is generally understood to be a warning that not only is a couple prohibited from engaging in sexual intercourse, they also should be careful not to "come close" to each other. Since they are husband and wife, they are thus naturally inclined to be comfortable with physical intimacy that can lead to sexual intercourse. Therefore, the couple is warned to take precautions so that this does not happen. There are many sources for this in the Midrashic literature and the Talmud, but I will just quote some of the most important sources.

What is the fence that the Torah made around its words? It says (Leviticus 18:19), “Do not come near woman during her period of impurity.” Perhaps [you would still think] one could hug her and kiss her and speak flirtatiously with her. So the verse tells you, “Do not come near.” Perhaps [you would still think] one could sleep next to her on the bed, as long as she was clothed. So the verse tells you, “Do not come near.” Perhaps [you would still think] she could wash her face and put makeup on her eyes. So the verse (Leviticus 15:33) tells you, “She is in her period of exile” – that is, all the days that she is in her period [of impurity], she will be in exile. Because of this they said: The spirit of the sages is pleased with anyone who makes herself unattractive during the days of her period [of impurity]. The spirit of the sages is displeased with anyone who makes herself attractive during the days of her period [of impurity].(Avot D'Rabbi Natan)

The Talmud in Shabbat 13a - 13b has a lengthy discussion regarding the laws of proper versus improper contact between a husband and wife while she has the status of a Niddah. I am going to quote some of the discussion, and skip some parts, as it is long and detailed. 

What is the halakha with regard to a menstruating woman? May she sleep with her husband in one bed while she is in her clothes and he is in his clothes? ... (The Talmud tries to bring proofs for and against the permissibility of the couple sleeping together fully clothed while she is a Niddah, and cannot resolve it through logic.  On the one hand, since they are two separate individuals, they will remind each other to keep the laws, while on the other hand, since they are accustomed to physical and sexual contact, they may forget and transgress the laws. The Talmud also discusses whether the very fact that they are wearing clothing is enough to remind them to avoid sexual contact) ... the Talmud could not resolve the issue through logical debate, and therefore brings proofs from statements of Tannaim (earlier scholars of the Mishna)  Come and hear a different resolution from that which was taught in a baraita: It is stated: “And he has not eaten upon the mountains, neither has he lifted up his eyes to the idols of the house of Israel, neither has he defiled his neighbor’s wife, neither has he come near to a woman in her impurity” (Ezekiel 18:6). This verse juxtaposes a menstruating woman to his neighbor’s wife. Just as lying together with his neighbor’s wife, even when he is in his clothes and she is in her clothes, is prohibited, so too, lying with his wife when she is menstruating, even when he is in his clothes and she is in her clothes, is prohibited. The Gemara comments: And this conclusion disagrees with the opinion of Rabbi Pedat, as Rabbi Pedat said: The Torah only prohibited intimacy that involves engaging in prohibited sexual relations, as it is stated: “None of you shall approach to any that is near of kin to him, to uncover their nakedness” (Leviticus 18:6). The prohibition of intimacy in the Torah applies exclusively to relations, and all other kinds of intimacy that do not include actual relations are not included in the prohibition. When there is separation, they did not issue a decree.

At this point, the Talmud has left the issue as an argument between Rabbi Pedat who felt that only sexual contact is prohibited, and the anonymous Beraita that forbade closeness between the couple as a precaution.  The Talmud continues with more Talmudic scholars that either made statements or did actions which indicated that they held with one side of the debate or other.  

The Gemara still doesn't seem to have a resolution, but then it brings the following frightening story:

The Sage in the school of Eliyahu taught a baraita that deals with this halakha: There was an incident involving one student who studied much Mishna and read much Bible, and served Torah scholars extensively, studying Torah from them, and, nevertheless, died at half his days, half his life expectancy. His wife in her bitterness would take his phylacteries and go around with them to synagogues and study halls, and she said to the Sages: It is written in the Torah: “For it is your life and the length of your days” (Deuteronomy 30:20). If so, my husband who studied much Mishna, and read much Bible, and served Torah scholars extensively, why did he die at half his days? Where is the length of days promised him in the verse? No one would respond to her astonishment at all. Eliyahu said: One time I was a guest in her house, and she was relating that entire event with regard to the death of her husband. And I said to her: My daughter, during the period of your menstruation, how did he act toward you? She said to me: Heaven forbid, he did not touch me even with his little finger. And I asked her: In the days of your white garments, after the menstrual flow ended, and you were just counting clean days, how did he act toward you then? She said to me: He ate with me, and drank with me, and slept with me with bodily contact and, however, it did not enter his mind about something else, i.e., conjugal relations. And I said to her: Blessed is the Omnipresent who killed him for this sin, as your husband did not show respect to the Torah. The Torah said: “And to a woman in the separation of her impurity you should not approach” (Leviticus 18:19), even mere affectionate contact is prohibited. The Gemara relates that when Rav Dimi came from Eretz Yisrael to Babylonia, he said: That student did not actually sleep with her with bodily contact; rather, it was in one bed that they slept without contact. In the West, in Eretz Yisrael, they say that Rav Yitzḥak bar Yosef said: When they would sleep together in one bed, she wore a belt [sinar] from the waist down that would separate between him and her. Nevertheless, since the matter is prohibited, that student was punished.

This is the end of the discussion.  It seems that the Talmud, after not fully resolving the question at hand, is advising us to be stringent.  The story of the death of the young scholar is meant to warn us to be careful.  Indeed, this is how the Halachic authorities assumed and so the Halacha developed.  This is the origin of the halachic category of forbidden activities between a husband and wife meant to prevent them from transgression.  They are called the "Harchakot" or the "distancers". In addition to sleeping in the same bed, there are other Harchakot, but to discuss them in detail would take us way off track in our discussion.

In the words of Maimonides:

It is forbidden to a person to embrace his wife during these seven "spotless" days. [This applies] even if she is clothed and he is clothed. He should not draw close to her, nor touch her, not even with his pinky. He may not eat together with her from the same plate. The general principle is he must conduct himself with her during the days she is counting as he does in her "days of niddah." For [relations with her] are still punishable by kareit until she immerses herself, as we explained. For this reason, she should not eat with him from the same plate, nor should he touch her flesh, lest this lead to sin. Similarly, she should not perform these three tasks for him during her seven "spotless" days. It is permitted for a woman to adorn herself during her "days of niddah," so that she does not become unattractive to her husband. A niddah may perform any task which a wife would perform for her husband except washing his face, hands, and feet, pouring him a drink, and spreading out his bed in his presence [These were forbidden as] decrees, lest they come to sin.(Mishna Torah Hilchot Issurei Biah 11:18-19)

If you want to know more about the Harchakot, feel free to check the Tur, Beit Yosef, and Shulchan Aruch Yoreh De'ah 194 for more details. So this is the origin of the rule that a husband and wife may not touch each other while she has the status of a Niddah.

I am sure that many of you are already thinking the following question. The reason they may not touch each other is because this may lead to sexual relations. Shouldn't there be obvious cases where this is not a concern and they should be allowed to touch each other? In order to answer this question, we need to first describe a basic disagreement about the nature of this prohibition.

This disagreement pits two of the greatest Halachic authorities of history against each other, Nachmanides (Rabbi Moshe ben Nachman 1194-1270, also known as the Ramban) and Maimonides.

Maimonides understands that this prohibition of touching has the full force of a Torah prohibition (A "D'Oraytah"), as it is derived from the words "Do not come close".  Here are the words of Maimonides (my translation):

One must be careful from coming close to any of the women that are prohibited by the Torah, even if there is no sexual intercourse, such as kissing, hugging, and similar promiscuous things that are done, and this is what the verse means when it states that a man may not "come close" to reveal the nakedness of a woman he is related to, as if the Torah is stating that no closeness at all is allowed because it will bring to sexual intercourse, and this is the language of the Sifra, "one shall not come close to reveal her nakedness, I only know that one may not "reveal the nakedness" (have intercourse) how do I know that one may not even come close, therefore the Torah repeats itself (in reference to Niddah) that "one may not "come close" to a woman who is in her state of menstrual impurity.... (The Sifra continues to declare that the punishment of Kareit only applies to actual intercourse, implying that although it is a Tarah prohibition, only lashes apply but not Kareit) (Rambam Sefer HaMitzvot Lo Ta'aseh 353) 

However, Nachmanides strongly disagrees.  He bases his disagreement on the discussion of the Talmud in Shabbat that we quoted above (my translation): 

The Rabbi (Maimonides) writes that negative commandment #353 was "to derive any pleasure from one of the forbidden relationships even without actual intercourse such as hugging or kissing and similar activities that bring one closer to promiscuity, and this is what The Holy One meant when he said (in the Torah) "and to a woman who is related one should not come close to reveal her nakedness" and the language of the Sifra is that "had it said "and to a woman during her Niddah status one should not come close to reveal her nakedness, I would only have known that sexual intercourse was prohibited, how do I know that (other activities) are also prohibited, because it uses the language you shall not come close etc..." However, when one analyzes the Talmud one sees that this is not correct that when there is no actual intercourse such as only hugging or kissing that there is a Torah prohibition that would be a Torah transgression which would require lashes etc... This is clear from the Talmud in Shabbat 13a which asks whether or not there is any prohibition against a man and woman sleeping together in their clothing when she is a Niddah, and there were some opinions that were stringent but then the Talmud says that these opinions are contradicted by Rabbi Pedat  as Rabbi Pedat said: The Torah only prohibited intimacy that involves engaging in prohibited sexual relations, as it is stated: “None of you shall approach to any that is near of kin to him, to uncover their nakedness” (Leviticus 18:6) so if this is the case then the Talmud clearly did not understand that the "coming close" as quoted in the Sifra was referring to (touching) but it was referring to "coming close" as a (euphemism for) sexual intercourse. and it is well known from the ways of the Talmud that had this statement of the sifra been authoritative and the words of Rabbi Pedat considered contradictory to the Sifra that the Talmud would have clearly cited the Sifra against rabbi Pedat and stated that it was a conclusive refutation of Rabbi Pedat. Since the Talmud did not do this (refute Rabbi Pedat) it is clear that this prohibition (against touching) was only rabbinic in origin (and the entire discussion was regarding whether or not it is even a rabbinic prohibition) and even if one argues that it has a Torah origin it would not be an actual prohibition but rather it would be similar to someone who has some small amount of benefit from a prohibited item such as eating a tiny amount ("Chatzi Shiur") of forbidden food (which is not allowed but also not actually a transgression)  However that is not really the right interpretation (that it can be compared to a "chatzi shiur" or a "tiny amount") rather it is actually (only a rabbinic decree) and the verse is simply only an "asmachta b'alma" (a hint in the words that is not an actual command) and we find this often in the sifra etc.....(Ramban, Notes on Sefer Hamitzvot, Lo Ta'aseh 353)

So Maimonides is of the opinion that touching while a woman is a Niddah is a Torah based prohibition, and Nachmanides is of the opinion that it is of rabbinic origin.  This has significant meaning as we decide how to apply exceptions to the rule of not touching.  In general, we are always more strict when deciding the parameters of a Torah prohibition. So does the prohibition of touching apply to a woman in labor?

Analysis According to Maimonides

First, let us analyze the more stringent opinion of the Rambam.  If the Torah prohibits touching, does this apply to all kinds of touching? Or only touching with sexual overtones that can lead to sexual activity?

Maimonides himself when he describes this prohibition in Hilchot Issurei Biah 21:1 writes the following language:

Anyone who has sexual activity with a forbidden woman using any of his limbs or he hugs and kisses in a way that derives pleasure from physical contact this person gets lashes (due to violating) a Torah prohibition 

The Shach (Rabbi Shabetai HaKohain 1621-1662) Yoreh De'ah 157:10 points out that from the language of the Rambam it would seem that the only prohibition is when the touching is of a sexual nature. Non-sexual touch would not be prohibited.  The Shach also points out that there are numerous examples of non-sexual touch recorded in the Talmud without any criticism of such behavior at all. 

However, the Shulchan Aruch (SA), following the lead of the Rambam, is stringent in these matters and states, that even in cases where the touch is clearly non-sexual, it is still prohibited.

A woman who is ill and is in a state of Niddah it is prohibited for her husband to touch her in order to help her such as helping her stand or sit or lean upon him for support. If he is a physician he may not e(examine her) by listening to her pulse. (Shulchan Aruch, Yoreh De'ah 195:16-17 

The Shach, based on his understanding of the Rambam, disagrees with the SA. He  comments that even if we decided according to the Rambam touching is a Biblical prohibition, he still should allow a husband to help his wife who is ill, because this is not sexual touch.  However, the SA himself felt that since it is a Torah prohibition, that Maimonides prohibits even non-sexual touch.

Interestingly, the SA himself, in Yoreh De'ah 195:15 also permits non-sexual touch in cases where it will not lead to intercourse, such as when the husband is ill and this not likely to desire intercourse.  So one must understand that even according to the SA, non-sexual touch that is not going to lead to intercourse is not prohibited. However if it is the wife who is ill, the SA is still worried that maybe the husband will have intercourse with her and thus prohibits even non sexual touch.

To summarize, even according to the Rambam who holds that touching is a Torah prohibition, non-sexual touch is completely permitted according to the Shach's understanding of the Rambam. According to the SA's understanding of the Rambam, even non-sexual touch is prohibited unless the situation is extremely unlikely to lead to intercourse, such as the illness of the husband.

The Rama decides the halacha according to the Ramban that touching is of rabbinic origin.  Therefore, in his comments on the SA, he says as follows:

There are those who hold that if there are no other (women) available to help her that he may do whatever she requires for her care, and such is the custom.  and according to what I wrote that the custom is to allow such touch, if (he is a physician) and she needs him to examine her pulse and there are no other doctors available and she needs his help and she is dangerously ill he certainly is allowed to do so (Rama Yoreh De'ah 195:16-17)

Since it is of rabbinic origin, the Rama is lenient in any case where his wife needs his help and the touching is non-sexual.

Applying The Maimonides/Nachmanides Debate to Childbirth

There is clear scientific evidence that the outcomes of a birth in which the woman in labor gets appropriate support are safer than outcomes in which a woman does not get appropriate support.  There is a reduction in labor time, a reduction in rates of Cesarean section, reduction in interventions such as forceps or vacuum and more.  The person from whom a woman receives support is important and there is enough evidence to claim that it can actually make the difference between life and death in some cases. Anyone who desires sources please ask me offline.

There is no question at all that a woman in labor is equivalent to a woman who is ill.  This is both common sense and well established in Halacha.  Supportive touch from a husband is non sexual in nature. Therefore, we can summarize our findings so far as follows:

1. If the law is according to Maimonides that sexual touch is a Torah prohibition
1. According to the Shach's understanding of the Rambam non sexual touch is not prohibited at all. This would permit supportive touch during labor
2. Even according to the SA's understanding that non-sexual touch is prohibited by the Rambam, a reasonable argument could be made that in the case of supportive touch during labor there is no chance of it leading to intercourse, in which case even according to the SA non-sexual touch is permitted, similar to the case where the husband is ill
2. Assuming that the law is according to Nachmanides, as the Rama stated is our custom, then there is no question at all that touch during labor would be permitted, as she has the same status of a woman who is ill.  

In our last post we proved that a woman in labor does not have the status of Niddah until the delivery of the baby or when there is uterine bleeding (which doesn't start with certainty until the delivery of the baby).  In today's post we have proven, that even if she did have the status of Niddah while in labor, it would still be permitted for the husband to offer his wife supportive touch.  So even after the delivery, when she does have Niddah status, he is still allowed to offer supportive touch because she is ill and requires his help and comfort.

We have now challenged the first two items on the list that we found on the Yoatzot website.  The fact that a woman in labor is a Niddah, and that because of her niddah status they may not touch each other during labor.  The third item on then list was that because of her Niddah status, he may not see her undressed.  We will discuss this issue in our next post.