Observing One's Wife Undressed When she is NOT a Niddah

I have received some comments and emails that suggest that I need to be more clear about a few things before I move on with this topic.  I have been writing about what parts of his wife's body the husband may or may not see. There are many couples who are Halacha observant for whom the husband's close involvement in the process of labor is important. For these couples, the woman in labor feels comforted by his presence and his touch.  The strict rules as they are formulated in many contemporary books of Halachic guidance can be a serious problem for these couples, as they feel as if they are not being adherent to the Halacha.

Following the guidance of some of these sources can cause a potential problem. It can cause the focus of the couple's attention to be on things like what the husband may or may not see. Such as, does she need to be covered this way or that way in order to prevent him from seeing this or that. (see on the Yoatzot website the suggestions of a screen or not using a mirror etc...) 

This is the reason why I believe that my posts regarding this topic are important.  My goal is to point out that there is no Halachic issue with what he does or doesn't see in the labor room. Of course he should not be gazing at her with sexual innuendo as this would be completely innappropriate in this environment. The only issue that matters is her comfort and the ability of the staff to take care of her.   The husband is an integral part of her support system.  How she is dressed is a matter of concern, but only because we are concerned for her comfort.  Every woman is different.  Some would rather not have the husband there at all, some would rather be more dressed than others.  

This issue should be considered as part of the context of this entire series of posts. I am trying to paint a halachically valid picture of a birth where the issue is not about Niddah, when or where or whom can touch whom,  exactly when he is no longer allowed to touch her, what should be covered and not covered, and myriads of other questions.  I have personally seen cases where husbands are spending more time asking sha'alot then taking care of their wives. The picture I am trying to paint is one where the husband does what it appropriate to care of his wife when she needs him the most. The laws he should be concerned with are the laws of derech eretz, empathy, kindness and concern.

Now I would like to address item # 4 from the Yoatzot list I have been quoting this entire series.  That was the assertion that one is never allowed to look upon the genitalia of his spouse, even when she is not a Niddah.  This clearly contradicts almost everything I wrote in the last post. I brought a long list of sources, including the Talmud in Nedarim itself, that only prohibit this when she is a Niddah. So where does this come from? How can we reconcile all of this?

I will start with the Shulchan Aruch (SA) (Rabbi Yosef Karo 1488-1575), trace ourselves back to his sources, and then try to figure out what is going on:

One may not look in that place (the genitalia) because anyone who looks in that place has no shame and he is trangressing the (command of) "one shall be modest as he goes with God (Micah 6:8)" (Shulchan Aruch, Orach Chaim 240:4)

The SA is discussing the appropriate behavior between man and wife when she is not a Niddah.  Didn't the Talmud in Nedarim 20 explicitly state that this prohibition only applied to a Niddah? Where did the SA get this from?   

The Tur (Rabbi Jacob ben Asher 1270-1340) is the source of the SA, as can be expected.  While discussing appropriate sexual behavior between a man and his wife, the Tur quotes the Talmud in Nedarim, which he quotes almost verbatim.  However, he only quotes the begniing of the Talmudic passage, not the conclusion:

Rabbi Yoḥanan ben Dehavai said: The ministering angels told me four matters: For what reason do lame people come into existence? It is because their fathers overturn their tables, i.e., they engage in sexual intercourse in an atypical way. For what reason do mute people come into existence? It is because their fathers kiss that place of nakedness. For what reason do deaf people come into existence? It is because their parents converse while engaging in sexual intercourse. For what reason do blind people come into existence? It is because their fathers stare at that place. (Nedarim 20a, as quoted in the Tur, Orach Chaim 240)

The Tur does not quote the conclusion of the Gemara which states:

 Rabbi Yoḥanan said: That is the statement of Yoḥanan ben Dehavai. However, the Rabbis said: The halakha is not in accordance with the opinion of Yoḥanan ben Dehavai. Rather, whatever a man wishes to do with his wife he may do. He may engage in sexual intercourse with her in any manner that he wishes, and need not concern himself with these restrictions. As an allegory, it is like meat that comes from the butcher. If he wants to eat it with salt, he may eat it that way. If he wants to eat it roasted, he may eat it roasted. If he wants to eat it cooked, he may eat it cooked. If he wants to eat it boiled, he may eat it boiled. And likewise with regard to fish that come from the fisherman. (Nedarim 20b)

The second quote was the conclusion of the Talmud, which was also quoted by Maimonides, and we have already discussed several times in this blog. Why does the Tur choose to mention the earlier discussion when the conclusion is that these sexual restrictions are not valid?  The conclusion of the Talmud actually is that all of the above sexual behaviors, including "staring at that place" is permitted! So why would the Tur choose not to mention the conclusion?  Also, remember the statement of Rav Yosef that explicitly limits the restriction of looking to a Niddah:

Rav Yosef said: And this relates to all women, including his wife when she has the status of a menstruating woman. Rabbi Shimon ben Lakish said: The heel of a woman that is mentioned is not the heel of the foot, but the place of uncleanliness, i.e., the genitalia, and it is called a heel as a euphemism, as it is situated opposite the heel. (Nedarim 20a) 

The source of the Tur is explained in the Beit Yosef (same author as the SA). The Beit Yosef brings the source from the Ra'avad (Rabbi Avraham ben David 1125-1198) (my translation):

...(commenting on the above passage in the Tur) ... The Ra'avad of blessed memory in the "Gates of Holiness" writes that those who look upon "that place" are violating the verse which states "one shall be modest as he goes with God (Micah 6:8)" and they are ridding their countenance of any shame as it also states "in order that fear (of God) should always be upon your faces (Exodus 20:16)" this is the shame that (prevents one) from sinning, as anyone with shame is prevented from sinning, and certainly those who kiss (in the genitalia) and even mores o they are transgressing the (prohibition against) "do not do disgusting things etc...(Leviticus 11:43)" and the Ra'avad writes further that anyone who looks upon the "heel" (euphemism for genitalia) of a woman will have children that are not proper, from here we see that it is not proper to look upon the place of dirtiness at all even with his own wife as anyone who does so has no shame and worse he is inciting his sexual desire ... (Beit Yosef , Orach Chaim 240:11:1

This is why the SA wrote that one may not look upon his wife's genitalia even when she is not a Niddah.  However, virtually all of the poskim we reviewed in our last post understood that the Talmud concludes against these prohibitions. The law against looking upon one's wife's genitalia was only a restriction when she is a Niddah.  The Ra'avad above quotes only the beginning of the Gemara in Nedarim that states the restriction but ignores the statement of Rav Yosef that explicitly limited this prohibition to when one's spouse is a Niddah. What is going on here? Why do the Ra'avad, the Tur, and the SA ignore the conclusions of Rav Yochanan and Rav Yosef?

For starters, we must point out that the Rama (Rabbi Moshe Isserles 1530-1572) in his comments on the SA, does point out that this is not the conclusion of the Talmud. He quotes the words of the Rambam, who concludes as the Talmud in Nedarim does, that all of these behaviors are permitted:

Note: A man may do with his wife whatever he desires (with her consent, this statement is addressing acceptable behaviors, consent is discussed elsewhere) he may have intercourse at whatever time he desires, and he may kiss her in whatever body part he desires, and he may have intercourse with her either in the normal way (vaginal) or in the abnormal way (anal) or any body parts.. Rema, Even Ha'ezer 25:2)

It is clear that the Rema is stating the Halacha is that the restrictions of Rabbi Yochanan ben Dehavai stated were not the conclusion, and that as the Rambam said, and as we explained in the previous post, there is no restriction against looking upon one's wife's genitalia when she is not a Niddah and is permitted to him.

In addition to the seemingly inexplicable rulings of the Ra'avad against the simple meaning of the Talmud, there is another question.  The Rama wrote his note which disagreed with the SA in Even Ha'ezer, but he did not make this same comment in Orach Chaim.  In Even Ha'ezer the topics discussed are those of forbidden sexual relations.  In Orach Chaim the SA discusses general behavior and how one is supposed to live a holy lifestyle.  In order to explain all of this, I am going to answer these two questions together. 1) why did the SA seem to ignore the conclusions of the Talmud? and 2) Why did the Rama not write his comment in Orach Chaim? 

There are three general approaches that attempt to explain these discrepencies.

The most stringent - both the SA and the Rama agree that it is prohibited

One understanding is that there is no disagreement between the Rema and the SA regarding the law of not looking at the genitalia of one's spouse. This opinion would declare that both the SA and the Rama hold that it is indeed prohibited even when she is not a Niddah.  The basis would be the Ra'avad we quoted above. According to this understanding, when the Rama wrote in Even Ha'ezer that he may kiss "any limb" he really meant "any limb except the genitalia". This is the understanding of the Beit Shmuel (Rabbi Shmuel Feivish 1650-1706) and others. This explains why the Rama did not comment in Orach Chaim - because he simply agreed with the SA.

But doesn't this contradict the conclusions of the Gemara?  There are various explanations among those who take this approach. The most common is as follows.  It is true that when a woman is a niddah, the law is not to gaze as that may lead to transgressing the sin of relations with a Niddah.  It is also true that when she is not a Niddah, that particular law does not apply. This is the law that Rav Yosef was referring to when he said that it only applies when she is a Niddah.   

However, there is also a different law derived from the verse that teaches us not to do "disgusting" things, and a law that commands us to "walk modestly with God". It is this law that applies even when she is not a Niddah, and it is the reason that the Ra'avad prohibited this practice.  It is crucial to note that according to this understanding, these laws would not be of Talmudic origin (as the conclusion of the Talmud was clear), but rather they would be due to the understanding that such things are considered "disgusting" and "shameless' and "immodest".  The Ra'avad is simply stating that although there may be no specific sexual prohibition in the Torah aginst these acts, they would still fall under the general category of being immodest and disgusting.

This understanding is the basis of the law as written on the Yoatzot website that prohibits looking at one's spouse's genitalia even when she is not a Niddah.

The middle road - it is an argument between the Rama and the SA

The second approach is to assume that the Rama and the SA disagree on this matter. This approach is taken by the GRA (Rabbi Elijah of Vilna, also known as "the Vilna Gaon" 1720-1797).  He explains that the Rama does not mention the same objection in Orach Chaim as he did in Even Ha'ezer simply because he assumed that you know what he had already written elsewhere. So the lack of a comment means nothing, and the opinion of the Rama does not need to be "ammended" in the way that the Beit Shmuel did.  The SA holds like the Ra'avad in the same way that we explained in the first approach.  The Rama holds like the Rambam who clearly holds that these behaviors are permitted.

If this is true, then Sephardic Jews who generally follow the rulings of the SA would thus be more stringent and not allow this even when she is not a Niddah.  Ashekanzic Jews who generally follow the Rama would thus be more lenient and allow it. (It is worth noting that the GRA himself rules according to the Ra'avad and the SA that it is forbidden, despite his understanding that the Rama permitted it.) Rav Yehuda Henkin (Jerusalem 1945 - present) in a responsa in his book Sefer Bnei Banim 4:16#3 brings many opinions on both sides of this issue, some that land on the side of Rambam and Rama, and others that land on the side of Ra'avad, the SA, and the GRA.  He determines that there are ample authorities that would allow one to be lenient like the Rama.

This second understanding would lead to the conclusion that it should depend on whether one follows Ashkenazic or Sephardic customs.

The most lenient - both the SA and the Rama agree that it is permitted

This third and most lenient approach seems to me to be the most consistent with all of the evidence.  This approach contends that the SA in Orach Chaim was not discussing law at all, but rather he was discussing "Midat Chassidut" or "pious behavior". Even the SA agrees with the conclusions of the Talmud that these behaviors are permitted by the letter of the law. The reason that the Rama did not comment in Orach Chaim is that he had no reason to argue with the Sa when all the SA was doing was discussing advice on how to be holy.  

In other words, we need to differentiate between laws and spiritual advice.  We have referred in this series to laws known as the "harchakot".  These were instituted by the Rabbis to prevent a couple from transgressing the sin of relations with a Niddah.  One of these is the law against gazing at the genitalia of one's wife.  This was the prohibition referred to in the Gemara in Nedarim. When she is not a Niddah, there is no such law.

However, in Orach Chaim the SA is simply discussing "proper" sexual behavior and how a person seeking holiness should behave.

This third approach assumes that even the Ra'avad himself only meant to give advice for holy behavior   when he stated that one "may not" look at his wife's genitals.   This makes sense, because when the Rambam discussed the Niddah restrictions, the Ra'avad that we quoted last post commented and added the restriction against looking at one's wife's genitals.  He only mentioned this as a rule in the context of niddah, but not where the rambam discussed general sexual behavior.  I know this is not a proof, but it certainly seems that way.

The general language of the Shulchan Aruch in the entire chapter 240 certainly seems to indicate that this chapter is about advice on piety and not about actual laws. Here are a few examples, beginning with the first statement of the chapter:

If a person is married, he should not be too frequent in his relations with his wife, but rather according to the schedule specified in the Torah. Idle men, who have means of living and do not pay taxes, their schedule is once every day; hired hands who work in another town and sleep every night at their homes, once a week; and if they work in their own town, twice a week; donkey drivers, once a week; camel drivers, once in thirty days; seamen, once in six months; the schedule of Torah Scholars is from Friday night to Friday night  (Shulchan Aruch, Orach Chaim 240:1)

Clearly, the statement of "not being too frequent" in sexual intercourse with one's spouse is a not a law, but rather it is advice on piety. Nowhere does the Torah tell us that there is a limit on how many times someone can have intercourse with his spouse.

Another example:

Even when he is with her, he should not seek his own pleasure, but be like someone paying his debt that he owes her at her schedule, and to fulfill the obligation of his Creator  (Shulchan Aruch, Orach Chaim 240:1)

Clearly, the Torah does not require a man to try not to have pleasure when he has intercourse.  This is obviously just advice for piety.  How relevant this is to us today and whether this is how we should behave today is an issue we will have to leave for another blog series.  But it is obvious that the SA is not discussing "laws" in this chapter. This third approach is taken by many modern poskim, including Rabbi Elyashiv Knohl (Rabbi of Kibbutz Kfar Etzion, 1948 - 2018) in his book Sefer Et Dodim, and Rabbi Shmuel Kedar (Jerusalem, 1953-2006) in his book Sefer Kedushat Ohel.

The conclusion of this third approach, there simply is no law that states that the husband may not see his wife's genitalia when she is not a Niddah.  Not according to anyone.

We have presented the case for or against item #4 on the Yoatzot list.  In the next post, I plan to address item #5, which will complete our discussion. I also plan to comment on a few issues that people have raised in various emails and comments on the blog.  Hopefully, the next post will thus wrap up the issue of "the husband in the labor room".