A Husband in the Delivery Room

I really appreciate the feedback that I have been getting regarding subjects of interest that readers of this blog would like me to discuss.  Another topic which people have requested of me is to discuss the laws of the "husband in the delivery room".  IOW, what is the appropriate Halachic behavior of a husband when he is present while his wife is experiencing the experience of the labor and delivery of their child.

This topic fits perfectly into the types of issues I intended on dealing with when I founded this blog 10 years ago.  Once again, in this area, contemporary Halachic guidance seems to lead to conclusions that are contrary to either common sense or what we perceive as morally or ethically the "right" thing to do.  When "Halacha" seems to mandate or prohibit activities that are contrary to what we innately feel regarding right or wrong, a serious reexamination of the issue at hand must be done.  As we have found so far, we may find that it is indeed not the "Halacha" that is the problem, but the modern interpretations of Halacha that are the source of the problem. In every single case, my promise to you is:

1. I will always write a thorough and transparent analysis of how the Halacha came to be interpreted in the way that is
2. What are the ethical and moral dilemmas raised by the way the halacha is being interpreted
3. A modern scientific and historically accurate analysis of how and why the Halacha came to be what it is
4. most importantly, a fully researched and well reasoned Halachically valid argument for why and how the Halachic paradigm can or should be something different than what is being taught in contemporary Chareidi Halachic works

Once again, I ask that you review my first post regarding the "five principles of medical Halachic rationalism". So here goes.

The following is to be found on the Halachic advice website of Yoatzot at this link.  I am fully aware that "Yoatzot" is almost by definition not "really Chareidi" as the entire point of this organization is to allow and encourage female halachic scholars to act as Halachic guides, especially in areas of specific concern for women.  However, if anything, that makes this problem even worse.  If a slightly more "left wing" organization teaches Halacha this way, you need not have much of an imagination to to conjure up what the more right wing Halachic advice books are saying:

Husband in the Delivery Room

Childbirth produces wonderful results, but it is often a painful and frightening process. Both medical and halachic sources attest to the importance of emotional support for the mother during labor and delivery. However, the growing trend for the husband to serve as his wife's labor coach presents certain halachic difficulties. First, a woman in childbirth has the status of a niddah. Therefore, physical contact between the couple is prohibited and the husband may not see his wife undressed. Furthermore, the husband is halachically prohibited from looking directly at his wife's vaginal opening even when she is not a niddah. Due to these concerns, many rabbis forbid the attendance of the husband in the delivery room. There are, however, those who permit it with the following stipulations: 

1) The couple should request that a mirror NOT be used to allow the husband to see the baby emerging.

2) The couple should request that the wife be kept as covered as possible, or that a screen be placed between her upper and lower body. (This is done routinely for cesarean deliveries and thus should not be difficult to arrange).

3) The husband should not touch his wife unless no one else is available to help her. (Yoatzot Website)

I will point out the following Halachic statements and then raise some questions regarding these key points.  We will then have a chance in this new series to take apart these "Halachic" statements and decide if indeed this is the proper advice for "A husband in  the Delivery room".

1. That a woman in childbirth has a status of a Niddah 
2. Since she has a status of Niddah, physical contact between the husband and wife is prohibited
3. The husband may not see his wife undressed because she has the status of a Niddah
4. The husband may not see his wife's vagina even if she weren't a Niddah
5. Many rabbis prohibit him from being there in the first place, but some "permit' it (apparently according to this website no Rabbi would actually encourage it)
6. No use of a mirror is allowed which could God-forbid, allow the husband to see the actual birth of the baby
7. Using a screen to cover her so that the lower half of her body is not visible is advised, and that attempts should be made to cover her body as much as possible
8. The husband should not touch her unless there is no one else to help

Each and every one of these assertions will need to be examined carefully. It will take us some time, and as always, my commitment to you is a full and thorough Halachic analysis.

It is necessary to preface the remainder of this discussion with the following statement.  There is one person in the delivery room whose comfort and and care are the only thing we should be concerned about.  That is the comfort of the woman in labor.  Of course there is also a child being born, and the safety of the child is paramount as well. However, the issue we are discussing now is the comfort of the woman in labor.  For a myriad of different reasons, different women will seek support from different sources.  Some women desire support from their best friend, some from a professional labor coach, some from their mother, and some from their husband.  I am not here to judge who the best labor coach is for every woman.  Those decisions are only to be made by the woman involved.

Therefore, if the woman in labor does not want her husband there at her side, that is her prerogative, and we should respect her choices. In some cultures, the norm is to have other women there for support, and that is totally fine in that context.  However, in modern times, more and more women feel that they get the most meaningful support from the husband they love.  Scientific evidence and common sense both tell us that a women will experience less anxiety and fear when they are accompanied throughout this extremely challenging experience by the person upon who they rely for emotional support. The science even seems to suggest better and healthier outcomes when a woman has proper support during labor.  So if a woman wants her husband at her side for support, what is the Halacha?  Is the above quoted "Halachic" guidance really correct?

That is the question we are about to answer.  I hope you stay with me for this discussion. 

Changing the Halachic "First Time" Paradigm

It is finally time to summarize our conclusions regarding this issue of "the first time".  I hope that most of you were able to follow our trip through the sources and arguments that led to the paradigm shift that I am going to argue for in today's post. I know that many readers just want the bottom line and will read this post alone, and I understand that.  Please remember though that I arrived at these conclusions only after a thorough review of the subject beginning from the verses in the Torah and following until the modern poskim.  All of my arguments were presented, source materials quoted, and my thinking has been completely transparent.

The mental health professionals can do a much better job describing this issue than I can, but I will first summarize the problem that inspired this blog series about "the first time".  The recent NetFlix series "Unorthodox" stimulated a large amount of discussion about sex in the Chareidi community. In a Zoom panel hosted by Talli Rosenbaum and Rabbi Scott Kahn, several mental health professionals who treat Chareidi couples discussed a wide range of sexual problems that are prevalent in the Chareidi world.  One of the most prominent issues they agreed upon, was the way Chareidi couples are taught the Halachot of the first intercourse, or the "Be'ilat Mitzvah".

There are many guidebooks in many languages that have been published in recent decades that summarize the Halachot of intimacy that are used in the Chareidi world today.  I am going to summarize the "rules" as they appear in f the many popular such books, as I cannot possibly quote them all.  I can assure you that what we are going to find here is extremely similar if not identical to what we will find in almost all books of this genre. This is a summary of the Halachot you will find regarding the wedding night:

1. If there is any bleeding on the first attempt at intercourse, the bride is considered a niddah and they must separate and count 7 clean days etc...
2. If they have complete intercourse and there is no bleeding, they still must separate and count 7 clean days etc..
3. The couple is encouraged to have intercourse as soon as possible, in order to accomplish the Be'ilat mitzvah and so that they no longer need to worry about the necessity of separating after intercourse (it will be impossible to have a normal physical relationship until the first intercourse is accomplished)
4. The couple is also discouraged from waiting and giving themselves time to explore and become more comfortable with each other prior to actually having intercourse due to the concern for "spilling seed" 

Assuming that this is actually the halacha has led to numerous sexual and relationship dysfunctions in the Halacha-observant world. I encourage you to listen to the zoom panel, and also to these podcasts here and here. I will summarize here some of the issues.

1.  Putting pressure on the couple to "get it done" is not a very healthy way to learn how to have sex.  
2. There is no emphasis on the discomfort such a mechanical approach to sex can cause to the new bride.  This can lead to the idea that sex is something she must endure and tolerate for the sake of the Mitzvah (or her new husband), rather than something that should be pleasurable.
3. It is not conducive to sexual arousal for most men either to be told that they must have sex.  This can often lead to concerns about erectile dysfunction in men who are actually completely normal and just need time to learn about normal sexual arousal with their partner.
4. The questions of whether or not they had "complete intercourse" etc.. leads to a very unhealthy dynamic of family and rabbinic involvement in the couples intimate affairs.
5. The psychological effects on the young couple can be devastating, each partner thinking there is something wrong with themselves, or leveling accusations against the other partner.
6. Taking two young adults, who barely even know each other, both of whom have had very limited exposure to the opposite gender at all, let alone knowledge of what is normal sexual behavior, and to expect them to go from "0 to 60" in one night is exceedingly unrealistic to say the least.   

The new halachic paradigm that I am recommending, based on all of the sources and arguments I have presented in this blog so far, would look as follows: 

1. The couple is educated, (preferably together - but in most Chareidi circles this will not be possible) in normal sexual behavior in an open and non judgmental way. This education must include:
1.  A detailed and anatomically correct understanding of both male and female anatomy
2. A detailed explanation of normal male and female physiologic sexual arousal and response
3. a detailed and clear understanding of how male and female sexuality are a normal part of the way healthy couples communicate with each other and build lifelong bonds of connection through mutual trust and mutual understanding
2. The couple should be taught that they should take their time to get to know each other after their wedding (in the Chareidi world this is generally not possible prior to the wedding).  This includes just simply talking to each other, getting to know each other etc.  When they feel comfortable, they should feel free to explore physical contact
3. A strong emphasis should be placed on the Halacha that it is absolutely prohibited to violate anyone elses body without consent.  That means that neither partner (usually the man but not necessarily) can tell the other, "You must do this because the Torah says ..." even kissing, holding, touching, etc.. all has to be when both parties are ready.
4. There is NO MITZVAH to have sex the first night, period.  The original custom should be restored that gives the Bride and Groom the time they need to be ready.
5. As long as there is no bleeding, the couple can and should remain together, and physical contact is completely appropriate. In fact, it should be viewed as the normal preparation for a lifelong healthy sexual relationship.
6. If as part of foreplay with each other the groom ejaculates, then this is just a normal part of the learning process as the new couple gets to learn about each other's bodies. The groom should be learning how to give his bride pleasure as well, if they were properly taught during their preparation for marriage. In short, just be normal and caring people.
7. Once they do have intercourse, if they are patient and take their time, there will likely not be any bleeding, they do not need to separate, for the following reasons:
1. They can rely upon the Rambam, Rif, Sefer Yereim, and Ra'avad who hold that there is only a need to separate if there actually is bleeding
2. Even according to the Rishonim (Ramban, Rashba, Rosh and more) that required separation when there is no blood
1. This stringency was based on the erroneous assumption that most women bleed, therefore this stringency no longer needs to be applied, or
2. Most women today should be considered in the category of a woman whose hymen has already been stretched and thus bleeding should not be suspected unless actual blood is seen
8. If there is vaginal bleeding at first intercourse, they should separate and keep the laws of Niddah as declared in the Talmud, even though this is not truly menstrual blood
9. There is no need to discuss with the rabbi or the Mother-in-law if the intercourse was "complete" or not, as this only matters if you assume that they must separate even when there is no blood.  Since the Halachah only requires separation when there is actual blood, the couple can easily figure that out themselves.

I would like to add another point that someone brought to my attention over this past Shabbat.  We quoted in the previous post the Ra'avad who mentioned that the women of the house of Rabbi Yehudah Hanassi used to remove their hymen digitally prior to their first intercourse.  This actually gives women another option to avoid the need to separate after the first intercourse.  By using a vaginal dilator, or asking a physician to do this, they can have the hymen stretched and removed prior to the wedding.  This would allow the couple to have sex as many times as they wish without any need for separation.

  

We have just established a Halachically valid foundation to change a practice that has caused untold harm to an uncountable number of young Jewish couples.  

When I started this blog about 10 years ago, I noted that there are many occasions where the accepted norms of modern halacha create situations that seem either immoral, harmful, or illogical.  I have maintained since beginning of this blog that I was going to analyze the Halachic sources according to what I called the "five principles of rationalist medical halacha".  I hope and pray that with my analyses here that I help stimulate more halachic research so that we can be intellectually honest and rational about the halachic conclusions that we live by.  In this way, we can maintain both the integrity of the religion we have inherited from our ancestors, and at the same time we can build healthy and productive lives for our generation and all future generations that follow us. 

The Myth of Hymenal Bleeding and Allowing Newlyweds not to Separate After "The First Time"

I want to apologize for not doing the weekly Parsha post this week.  As you can see, I've gotten sidetracked with the issue of "the First Time" and I only have so much time in the day to do this blog.  Please forgive me.

I have so far identified the Rambam, the Rif, and the Ra'avad as Rishonim who only considered a new bride as a Niddah if there was actual bleeding during the first intercourse.  I would now like to add another source that I found this morning.  Rabbi Eliezer ben Samuel of Metz (died 1175) writes as follows (my translation):

the laws of the blood of the hymen, even though it comes from the sides (of her vagina and not the uterus) and is pure, nonetheless the Sages prohibited the couple from having a second intercourse in order that one doesn't confuse it with the blood of the uterus, as it says in Niddah (he goes on to quote the gemara that one must separate after the first intercourse) ...(Sefer Yereim 26:8)

Rabbi Eliezer of Metz is an early Ashkenazi Posek and  there are two important points in his words:

1. He clearly writes that the Talmud is concerned about the blood of the hymenal tearing. There is no reference at all to a prohibition if there is no bleeding.  In this he is similar to the Rambam and the Rif who never recorded any prohibition of Niddah if there is no blood.  Since he lived before the Ramban, Rashba, Ritva, Ran, Rosh etc. who were the ones who introduced this idea that even without blood they need to be concerned,  this is not surprising at all.
2. Rabbi Eliezer of Metz assumed that the reason for the rabbinic prohibition of hymenal bleeding was because of the possibility of confusing this blood with true Niddah blood, not because of "rov" (majority)". 

Now we can add another prominent Rishon to our growing list of Poskim who did not see any need to separate unless there is bleeding on the first intercourse.

At risk of being repetitive, let me summarize the steps that got us to where we are, in chronological order. Feel free to skip this summary if you have been following the blog until now and have it all clear in your head.  

1. Hymenal bleeding is not menstrual blood, and therefore, according to the Mishna, a woman who has bleeding from her hymen is not considered a Niddah.  
2. The later Rabbis of the Talmud enacted a stringency that considered hymenal bleeding to be Niddah blood and therefore they decreed that after the first intercourse, if there is bleeding, the couple must separate as if she was a niddah.  Three possible reasons were given for this stringency
1. One possible reason, which is inferred in the Yerushalmi, was that there is a concern that maybe there is some menstrual blood mixed in with the hymenal blood, or that people may confuse the two types of blood. 
2. Another possible reason, is that the pain of hymenal tearing might induce uterine bleeding (Sefer Yereim) 
3. The third potential reason, was the concern that a new groom will not be able to differentiate between the different menstrual statuses of women at different ages, which was quite a complex set of rules, so they made a blanket prohibition on all hymenal bleeding (Rosh and others)
3. Once the Talmud established that we consider hymenal blood to have the status of menstrual blood, many Rishonim (Ramban, Rashba, Rosh and more) were of the opinion that the majority of women have hymenal bleeding on the first incidence of sexual intercourse. Therefore, they felt that even if the couple does not see any bleeding, we assume that there must have been a small amount of blood and it just got lost, and thus the couple must separate as if there was some bleeding.
4. Other Rishonim (Rambam, Rif, Ra'avad, Sefer Yereim) wrote that the only time a couple must separate is when there is actual bleeding at the time of the first intercourse. 
5. The SA was stringent and declared that the couple must separate after the first intercourse regardless of whether or not there was any bleeding, while the Rama cited the lenient opinions and felt that one need only be stringent after there was a complete and full intercourse, until then the couple may remain together and engage in sexual activities not including full intercourse

The Rishonim clearly state the reason why they require that the couple separate after the first intercourse even if there is no bleeding. They were concerned that there really was blood, but they just didn't see it. This goes against the usual principles of Chazakah (you always assume that a woman's status remains the same until you have proof otherwise) the Rishonim were still concerned. This was due to an assumption that the majority of women have hymenal bleeding upon the first incidence of sexual intercourse.  From the Talmud itself we have already demonstrated that it is clear that if there was no bleeding with the first intercourse that subsequent intercourse was completely permissible.  This is true even after the decree of Rav and Shmuel regarding the stringency that considered hymenal bleeding to be impure as if it were true uterine blood.

I will quote just a few examples that establish that this new stringency of the Rishonim was based solely upon this assumption:

even if they had intercourse and did not find any bleeding since most women do have bleeding from their hymen (at first intercourse) we suspect that maybe there really was a tiny drop of blood like (the size of) a mustard seed and it just got lost, or maybe it got covered up in the semen. (Rosh)

Even if the couple has intercourse and they did not find any blood at all, he still must separate from her , this is because most women have hymenal bleeding (at their first intercourse) so we suspect that she may have had a small drop of blood like a mustard seed and it got lost ... (Rashba Torat Habayit)

The assumption that most women experience hymenal bleeding with their first intercourse is now known to be completely false.

The misconception that women usually bleed with their first intercourse is a myth that was widespread during the times of the Rishonim.  It still remains widespread among many cultures and people today.  But it is scientifically verifiable that it is nothing more than a myth.  The overwhelming majority of women that engage in consensual intercourse for the first time do not experience any bleeding.  This is a simple fact. According to a study published in the British Medical Journal in 1998, 63% of women reported no bleeding at all with their first vaginal intercourse. That is a significant "rov" (halachic majority) of women that do not experience bleeding.

The reasons for this are many. I refer you to this nice post by Talli Rosenbaum that will help you understand.  After discussions with experts and life long experience as a physician, I can assure you that it is virtually certain that even the 63% number is probably too low.  I say this because most of the time, when there is bleeding with the first attempt at vaginal intercourse, it could have been avoided.

With proper foreplay, and with proper gentleness and patience and lubrication, almost always the hymen will stretch and accommodate the penis without any bleeding at all.  The best protection against bleeding is patience, communication, kindness, empathy and relaxation. This will lead in due time to a sexual encounter  that is full of love, tenderness, and mutual desire. The first time a couple has sex is always going to be awkward, challenging, and maybe even uncomfortable. But it does not have to be physically and emotionally painful, and full of bleeding and physical trauma. Much more important than the avoidance of bleeding is that this is a much healthier way to begin a sexual relationship. 

So the manner in which the act of intercourse is performed is the primary determining factor in whether or not there is going to be any bleeding.  But it is more than that. Many women have already stretched the hymen during the years of life preceding their wedding.  This could have been through exercise, bike riding, running, masturbating, using tampons or just self exploration.  Many women hardly even have a hymen or have none at all from birth.  Even with none of the above, the hymen is often soft and easily stretchable, and when treated gently with normal consensual sex it will typically not cause bleeding. On the other hand, on occasion a woman may have a little blood the first time. Occasionally the hymen does bleed a little with intercourse until it stretches enough to be no longer an issue. 

This stringency has caused untold harm and difficulties and sexual dysfunction for thousands upon thousands of inexperienced young Jewish couples.  Again I recommend listening to the Zoom Panel I have referred to several times. It is based on a mistake.

While this alone should be enough to change accepted practice back to what it originally was, there is still more.  To explain this, let us start with the words of the Ra'avad (who did not agree with the above stringency that requires separation even with no bleeding) himself. Until now I have been quoting him as quoted by the Hagahot Maimuniyot, but now let me quote his own words:

There are those who say that when the Gemara says, “he performs the mitzvah act of intercourse and separates,” it makes no difference if he had intercourse and found blood or if he had intercourse and did not find blood, for we are concerned that due to the pain of the [rupturing] of the hymen, uterine blood, which is impure, will flow. Others hold that [she is rendered a niddah]only when he had intercourse [with her] and discovered blood, but if no blood was discovered, he does not have to separate. It makes sense to be lenient in cases where she did a thorough checking in the “outer house” (vagina), and saw nothing red… And it appears to me that it was as a result of this stringency (to treat hymenal blood as menstrual blood), that the women of Rebbe’s household who crushed [their hymen with their fingers] had adopted such a practice (Yevamot 34b), so that no doubt should arise [that they might be a niddah] when they had the first act of intercourse. (ra'avad Balalei Hanefesh, Sha'ar Haperishah:3)

 Several important points must be noted:

1. As we already knew, the Ra'avad  held that the newlywed couple need not separate from each other unless there is bleeding
2. The Ra'avad assumes that the reason for the stringency of those who hold that a couple must separate even without bleeding is not because of a "Rov" (the assumption that most women have hymenal bleeding at first intercourse).  Rather, he assumes that they were concerned that hymenal tearing might cause pain that then might cause uterine bleeding!  He then dismisses this concern.  So the Ra'avad never even entertained the notion of "rov"!
3. The Ra'avad allows for another leniency.  When a woman uses her fingers prior to marriage to remove her hymen, she then would have the status of one who is no longer a halachic "virgin" and would therefore no longer even have to worry about separating after the first intercourse.

It is point number 3 which leads us to an entirely new Halachic line of reasoning.  If a woman who uses her own fingers is not considered a "halachic virgin" and need not separate from her new husband after the first intercourse, then we should be able to apply this leniency to all women in modern times. We can prove scientifically that the overwhelming majority of women today have either removed their hymen or rendered their hymen unlikely to bleed, or have been born with a hymen that is unlikely to bleed.  If this is so, then the majority of women would have the same halachic status as that which the Ra'avad gave to the women of rabbi's household.

The halacha of the Ra'avad, that a woman who through some action has "removed" her hymen prior to marriage no longer is considered a virgin in respect to this requirement to separate after the first intercourse, has been upheld by Rabbinic precedent.   Most prominently, the great 20th century Posek, Rabbi Moshe Feinstein writes:

I was asked about an individual who, when it was not possible for him to have the first act of intercourse with his wife because the opening (vagina) was exceedingly sealed, (this is a very rare condition where the vaginal opening is either closed off or almost closed off by the hymen, called "imperforate hymen" and it occurs in less than 1% of the population) and she needed a doctor to open the opening with an instrument and to remove the hymen, and if he doesn’t have intercourse on that day, the doctor said that there is a risk that it would seal again. Does this [the opening the hymen with an instrument] require that the couple separate until the woman has counted seven clean days and immersed [in a mikveh]?
I replied that she is permitted to her husband and does not require seven clean days and immersion. For, in actuality, the hymenal blood is in essence the blood of a wound [and should not, in principle, render the woman a niddah]. It was only when it was torn through intercourse that the Sages forbade [continued intercourse and physical touch], but not when it was ruptured by a stick or an instrument… Thus, the only case that we have [as problematic] is the case that the Sages forbade, which is only when the hymen is ruptured through intercourse.
Now, if as a result of his having intercourse with her after [this procedure], he (sic.) finds blood, then he must attribute it to the hymenal blood [with the standard law that] they will be required to separate until she counts seven clean days and immerses. If, however, he does not find blood, he is not required to separate, for we can assume that all the blood [of the hymen] has already exited [her body] as a result of the doctor’s procedure, even if the doctor says that he only made a small opening. (Iggrot Moshe, YD1:87)

Some points from Rabbi Feinstein:

1. In the event that we know that the hymen was removed by some source other than previous intercourse, we no longer apply the rule that one must separate even if there is no blood after the first intercourse
2. Rabbi Feinstein is not worried at all about the potential concern of there having been blood that might have come from the uterus which was mentioned by the Ra'avad, and he was also not worried that people might confuse the two.  This makes sense because the Poskim, as we have seen (including the Ra'avad himself) rejected these concerns
3. Rabbi Feinstein was still assuming that most women do have hymenal bleeding.  He had no reason to question the general rule of the Poskim that requires separation even without bleeding.

We only need to make a short jump from Rabbi Feinstein's decision regarding the case of the imperforate hymen to the general public.  Rabbi Feinstein was discussing a case where we know for a fact that someone (in this case a doctor) had removed the hymen. Rabbi Feinstein was still operating under the assumption that "most women" have hymenal bleeding at first intercourse, which we now know is false.  The Ra'avad himself also was discussing a case where we know for a fact that someone removed the hymen, in his case it was the women themselves in Rabbi's house. 

We now know that the majority of women are in this category as we just described in length. By using the same principle of "Rov" the halachic default assumption should be that every women be considered Halachically as if she has already had intercourse.  No one questions that a woman who already has engaged in sexual intercourse, either from a previous marriage or for whatever reason need not separate from her new husband after the first intercourse.  So it follows, using basic Halachic principles, that there is no reason for any modern woman to separate if there is no bleeding. The status of "Rov" should apply to all women.  

We should add the obvious as well.  The best way to make sure there is no bleeding is to be patient, allow the couple to take their time, and have intercourse when both the new bride and the new groom are ready.

However, there still will be some instances of hymenal bleeding, and in this minority of cases, the couple may be stringent and follow the rules of Niddah, even though it is not menstrual blood.  This would be in keeping with the decree of Rav and Shmuel as recorded in the Talmud. In the next post I will summarize the new "halachic paradigm shift" that my arguments that I have presented to you in this series would suggest.

Why Not Wait Until the Couple is Ready? Does it have to be on the Wedding Night?

In our last post, we described the custom to allow a couple to take their time before having the "first intercourse" after their wedding.  This was apparently widespread among Ashkenazi Europe at least until the time of Rabbi Yonatan Eybuschitz (1690-1764).  We also read about the concerns of the Rama and Rabbi Eybuschitz that this would lead to sexual behavior between the newlyweds that they considered unbecoming of a groom who was concerned about his spiritual welfare (A "Ba'al Nefesh").

This custom, if it was still the norm, would allow for what the many therapists in the Zoom panel I referred to back in the beginning of this thread had recommended.  The therapists were all concerned about the pressure put on young couples to have "complete" intercourse right away. They were concerned that this does not allow for a young and inexperienced couple to take their time until they are ready.  The precedent this sets for the marriage is a serious concern, and again I recommend that you listen to the panel discussion if you haven't done so already.

So what happened to this custom? Why did it virtually disappear in the world of Halacha observant Jewry? It has become almost universal in Chareidi Orthodoxy today to assume that the "Be'ilat Mitzvah" - the first intercourse, must be done as soon as possible and most preferably on the night of the wedding. In the last two or three centuries, there has been a proliferation of literature that condemns the practice of waiting until the couple are more comfortable, and upholds this idea.  I cannot possibly survey all of the literature in this blog, but i will bring the primary sources that explain how the practice of allowing the couple time before the first intercourse became condemned and eventually thrown into the dustbin of Halachic history.

This historic process began quite soon after the writing of the Rama which we quoted in our last post. Rabbi Shabetai ben Meir HaKohein (1621-1662) (otherwise known as the "Shach" after his commentary on the SA called Siftei Kohein)  is the first to level an attack against this custom. First, we need to describe the context of the Shach's comments. The SA is discussing what happens if a bride and groom have not yet had intercourse, and she begins to menstruate after the marriage ceremony has been completed (my translation):

...and similarly a groom who (married when his bride was not menstruating) then his new bride began menstruating before they had intercourse, he should not remain alone with her, but rather he should sleep among his male friends, and the bride should sleep among her female friends (out of concern that they will not be able to resist the temptation of sexual intercourse with each other) (SA YD 192:4)

The Rama then amends this  (my translation):

note: some say that they do not require any special guarding (and they may sleep together in the same room privately and we can trust the young couple to keep the laws of niddah even though they have not yet had sexual intercourse) but one who is stringent in this matter is blessed. (Rama YD 192:4

The Shach was clearly wondering in what type of scenario such an occurrence might happen.  If the groom and bride are together the first night, why haven't they had intercourse yet before her period started? He assumes that the most likely reason this has occurred must be because they are in keeping with the custom of the time.  The custom was to wait and give the couple time to get used to each other before actually having sex.  Given this understanding,  he writes as follows (my translation):

...and it seems that nowadays since the custom is not to have the first intercourse until after several days after the marriage, even though this custom is a foolish custom, and has (potential) prohibitions for various reasons, and it would be a good idea to abolish (this custom) nonetheless since this is the prevalent custom, therefore if (they wait too long and) she begins to menstruate certainly they should separate because the reason he hasn't had intercourse right away is because of the custom, and such is the custom (Shach, YD 192:11)

Several points can be derived from the words of the Shach:

1. The custom of waiting before the first intercourse and giving the newlyweds time to get to know each other first was widespread and was the prevalent custom among Ashkenazi Jews. It was still the prevalent custom during the 17th century, the era of the Shach.
2. The Shach did not like this custom and thought it was foolish and should be abolished ... but there is no historic record of the Shach ever attempting to abolish this custom. We have no record of such a decree or attempt to abolish the prevalent custom by the Shach
3. The Shach felt that the custom was foolish because it could potentially lead to sin for "many reasons" but he does not state what these reasons are.

So what are the reasons that the Shach felt that that this could lead to sins and that he therefore felt it was a foolish custom (but was still not willing to do anything substantive to actually change it)? We can only make an educated guess by searching the context of his words.  The first and most likely reason is the one that the Rama himself hinted to.  He was concerned that the young couple was going to "play around" (I know this term isn't the most academic, and it sounds a little coarse, but I can't think of a more accurate translation for the word "Mesachek" as it is used by the Rama).  The young couple now have finally been given the permission and privacy necessary to spend time getting to know each other on a physical level.  While in modern times we would be more likely to consider this a positive and natural thing, during the 17th century the Shach was worried about a lack of concern for holiness.

Another reason might be the very concern that the SA was discussing in 192:4 that we just quoted.  If you give the couple more time, there is an increased risk that the bride may begin menstruating. Then the possibility that the new couple might violate the rules of Niddah becomes more likely.

Given the context of the Shach, the SA and the Rama, these are the most likely reasons that the Shach was concerned about this custom of waiting.  

However, those of you that have been following this blog for the last few months may already be harboring a suspicion deep in the back of your mind that something more sinister is about to sneak up upon us. There is a huge pink Gorilla in the room. When the young couple are allowed to explore and learn and develop the physical aspect of their relationship, there is certainly a significant chance that something else may happen. The young man may "spill seed"....

Please refer back to my discussion before regarding the topic of "spilling seed as we discussed it extensively. The fact is that the widespread custom in Ashkenazi Europe prior to the advent of the Chassidic movement in the late 17th century was to wait some time until the couple were ready to have intercourse..  This is pretty clear evidence that the concern over male masturbation and spilling seed was not a big issue.  This changed dramatically as the mystical teachings of Lurianic Kabbalah penetrated into the Jews of eastern Europe, mostly facilitated by the Chassidic movement.

Once the sin of masturbation became well established in eastern European Jewry, we would not be surprised if the commentators would assume that the "many sins" that the Shach was worried about was the sin of spilling seed.  Indeed we find that this is exactly what happened.  For this reason, it suddenly became imperative that vaginal intercourse become established as soon as possible.  As it is the only acceptable manner in which the new husband can fulfill his sexual desires with his new wife.

Indeed, the Rabbi Samuel ben Nathan Loewe-Kellin (1720-1806) in his work "Machatzit HaShekel" is the first to explain the Shach this way, and gives us an insight as to why the custom of waiting before the first intercourse eventually became abolished (my translation):

... (the Rama writes) that one who is stringent (and does not allow the bride and groom to sleep together if she becomes a niddah prior to the couple having their first sexual intercourse) is considered blessed, then (the Shach comments) that this (the custom of waiting before the first intercourse should be) prohibited for many reasons, this is because we are afraid that he may intentionally have an erection and end up spilling seed ...(Machatzit HaShekel, Hilchot Niddah 192:8)

So Rabbi Kellin has thus established what he felt the concern of the Shach really was. This is despite the obvious reasons of the Shach that are much more likely based on the context of his comment. According to Rabbi Kellin, the concern is much different. If we allow the bride and groom to wait before intercourse, then we are afraid that the new husband may become guilty of "spilling seed".  However, it is also evident from his words, that the custom of waiting was still prevalent in his time, and the new stringencies had not yet taken hold in the population.

Needless to say, as Lurianic kabalistic ideas became more and more influential in the mainstream, the previous custom of waiting became attacked more and more by the authorities.  The view that the Be'ilat Mitzvah had to be done as soon as possible on the wedding night took hold.  By the early 20th century. the deal was sealed.

There are many many examples of rabbinic works that codify the rules based on this idea, all after the time of the Machatzit Hashekel.  I cannot possibly quote them all, and I cannot possibly in this blog track the hundreds of books of the topic of Niddah which clearly record the assertion that I just made. However, I will give an important example. This example is important because it is extremely typical of this phenomenon and illustrates what I am trying to point out very clearly.

Rabbi Yisroel Yitzchak Yanovsky, a prominent rabbi in Prague in the early 20th century, wrote an influential work on the laws of Niddah which was published in 1910 called "Taharat Yisroel".  This work was influential and often quoted in further works on the topic, and reflects the rabbinic opinions and practices that had become accepted by the early 20th century.  Regarding our topic he writes as follows (my translation):

The Groom should be extremely careful not to allow himself to wait before performing the Be'ilat mitzvah (the first intercourse) and he should make sure to have full intercourse on the first night (of his marriage) (Taharat Yisrael, Chukat hataharah 193:3)

In his explanatory note he writes as follows (my translation):

...(the reason is) because God forbid he may cause himself to spill seed, may God protect us, and (as is known) the first children often die due to this sin (he brings a source from the Zohar) (Taharat Yisroel , Be'er Yitzchak 193:10) 

So now we have it.  I would like to point out the following:

1. At least until the 17th century, the accepted custom was to wait a few days, or as long as the newlyweds needed, before having the first intercourse
2. The "sin" of "spilling seed' became accepted as a terrible sin among the Jews of Europe. This coincided with the acceptance of Lurianic kabbala and the Zohar. The rabbis became extremely concerned that if the bride and groom wait too long, then their activities together in private may results in this "terrible sin"
3. The language we have seen used by Rabbi Yanovsky in 1910, that "The groom must be extremely careful not to allow himself to wait .. and he should make sure to have full intercourse on the first night" is completely and utterly new in rabbinic literature, and did not arise until after the Machatzit Hashekel that we just quoted was the first to link the "problematic" custom of giving the couple time to the "sin" of spilling seed.
4. The fear tactics used by Rabbi Yanovsky are frankly very disturbing, and they come directly from the Zohar. The idea that ejaculating extravaginally during the first few days of marriage will cause one's children to die God forbid, is awfully frightening to say the least. 

Allow me to make another point extremely clear. If we would simply rule according to the Rama, who is considered the preeminent and standard codifier of Halacha for the Ashkenazic community, then the custom would be exactly as it was in the days of the Rama.  That is, we would allow the bride and groom time and not pressure them to have "complete intercourse" on the night of of their wedding. Once they have "complete intercourse", however long that may take them, she would be considered a niddah and need to count 7 days and immerse in a Mikveh before being allowed again to be in physical contact with her husband.

What I am about to say in this paragraph requires that you read my entire thread on the topic of masturbation first.  If you haven't read it, please do not even bother to read this paragraph. But this must be said.  If the purpose of waiting as much time as the young couple needs is in order to facilitate the development of a healthy sexual relationship then if the husband happens to ejaculate during this time there is no sin of spilling seed.  If the purpose of waiting is in order to help the couple learn how to have a normal pleasurable sexual relationship that is pleasurable for both parties in this marriage, then spilling seed is simply not a sin at all.  If the purpose is not to "play around" in an immodest way (like the Rama was concerned about) but rather it is to build a healthy basis for a future Jewish couple and family, than it is a mitzvah to wait, not God forbid a sin.  

In my next post I am going to question the assumption that if there is no bleeding, that they must separate after the first "complete intercourse".  It seems so far that even the Rama agrees that we should be stringent and not rely on those opinions who do not require separation once there is a "complete" act of intercourse.  But it is far from simple. Hold on to your seats please.

The Rama and the Law of Unintended Consequences

In the last post, we traced the development of the stringency that assumed that every new couple must separate after the first intercourse because of the assumption that most women have some hymenal bleeding at their first intercourse.  Even if they do not see any blood, the majority of the Rishonim (early halachic decisors circa 11th century - 15th century) assumed that there must have been some bleeding although it just got lost.  Therefore, one must separate from his wife after the first intercourse.

This stringency, not mentioned in the Talmud (as we demonstrated that the Talmud only requires separation when there is bleeding) , places a tremendous pressure on the new couple in the beginning of their marriage.  They cannot ever begin the normal course and rhythm of sexual life that usually occurs in an Orthodox Jewish couple until they get the "first time" over with (I deliberately chose this coarse sounding term, because that is the effect it has on the young couple).  Once the "first time" is accomplished, she can count 7 clean days, go to the mikveh, and then in most cases they can resume a normal life of intimacy in keeping with usual Orthodox practice and avoid sexual activity only during the times of her monthly cycles. 

Immediately after the codification of the Shulchan Aruch, Rabbi Moshe Isserles (1530-1572), also known as the Rama, wrote his famous "Mapah" the "tablecloth" that he felt needed to be placed atop the "table" of the Shulchan Aruch.  The Mapah was written in the form of glosses and notes on the SA. In his glosses on the SA, the Rama typically listed opinions that reflected the Ashkenazic customs and halachic opinions that were at odds with the opinions codified by the SA.  Had the Rama not done this, there was a significant risk that the laws as codified by the SA would eventually have replaced and nullified Ashkenazi practices and opinions that were practiced for centuries and fully legitimate.

The Hagahot Maimuniyot that we quoted previously was a classic Ashkenazic Posek (Halachic Decisor) from the 13th century, and he recorded the fact that in his day, many of his communities relied upon the Ra'avad who held that the couple only needs to separate after the first intercourse if there is indeed actual bleeding.  Therefore, the Rama, in order to make sure this leniency didn't get forgotten, writes the following note on the SA (my own translation):

Note: There are those opinions who are lenient in cases when she did not have any bleeding (and therefore do not require separation after the first intercourse when there is no blood) The general custom has become that when the intercourse is not complete, rather he just entered her a little bit and she did not bleed then they do not need to separate. However, if he truly has complete intercourse with her then he needs to separate from her even if she does not see any blood (IOW we are stringent like the more stringent opinions) a person who is concerned about his spiritual well being (a "ba'al nefesh") should be careful not to "play around" ("Mesachek") with a young girl (Rama YD 193:1)

There are some clear conclusions from this Rama:

1.  The Rama clearly held that the "lenient opinions" were reliable enough to uphold the custom that was prevalent in Ashkenazi Europe during his time
2. The prevalent custom among Ashkenazim at the time of the Rama was to allow for appropriate sexual activity between a new husband and wife, even involving genital contact, as long as they did not have full intercourse.  This activity would last as long as she didn't have any bleeding. Certainly this could last even up to several weeks until her next period, and presumably even beyond that time point if they still haven't had "full intercourse".
3. Once they did have full intercourse, even though there is no blood and reliable opinions hold that they need not separate, the Rama felt that we should be stringent. He was concerned due to the overwhelming number of Rishonim who felt that indeed they should separate even without any bleeding.
4. In keeping with the general ideas of sexual morality taught by Orthodox Judaism, the Rama understood that this leniency might lead a newlywed couple to engage in all sorts of sexual activity when they are first married. He was concerned about the laxity in the attitude of holiness that this could represent. He therefore added a warning, that although as long as sexual intercourse was not "completed" yet one need not separate from his spouse, be careful not to "play around' with young girls, especially for a young man who wants to maintain a holy lifestyle

The fact that this was general practice in Europe is also documented by Rav Yonatan Eybushitz (1690-1764) in Chiddushei Hilchot Niddah 193:2.  He was also concerned that the reliance on this leniency codified by the Rama could lead to a laxity in the attitude toward sexual activity between the two newlyweds. He felt that it could be immoral and not the point of the leniency of the Rama which was widespread (my own translation):

" (The Rama wrote) And the custom has become to be lenient" .. and due to this widespread custom of leniency (Pashetah Ha'Kulah") and our many sins, it has become widely known (to women that they need not separate as long as they don't have full intercourse) to women that the Groom will have sex with his new bride many times for many days as long as there is no blood on the sheets, and they end up (being guilty of) playing around with young girls, and this is not really considered "incomplete intercourse" because (often they) really are having complete intercourse, ... (Chidushei Hilchot Niddah 193:2)

Several points:

1. The custom to allow for continued contact between husband and wife and not separating until "complete intercourse" was widespread among Ashkenazi Jews.  Widespread was the words of Rabbi Eybushitz, not mine.
2. Rabbi Eybuschitz had two worries regarding this custom, the first worry was that these couples were guilty of "playing around" ("mesachek") which he felt (and the Rama felt as well) was unbecoming of a holy young man (a "Ba'al Nefesh")
3. The second worry was that they may actually be having full intercourse, in which case we should be stringent and make them separate as the Rama stated

This is really important.  The pressure placed upon the couple to "complete intercourse" the first time has become a total obsession among the Halacha observant world.  How incredible it is to learn that only a few hundred years ago, the widespread custom was to allow for the couple to have as much time as they needed to get familiar with each other, to get more comfortable with physical and sexual contact of all sorts, and then when they eventually do have sexual intercourse, they can the count 7 clean days and resume normal sexual activity for the remainder of their lives.  

We have only just begun our halachic analysis, because even this rule of separating after "complete intercourse" will be further analyzed as we progress in this thread. We still have a long way to go.

Before I leave this topic, I would like to point out the "law of unintended consequences".  The "law" refers to the many instances where a legislative body enacts a law which is intended to solve a problem, but in ways that they did not anticipate, the law actually ends up exacerbating the problem instead of solving it.  It is sometimes called the "Cobra Effect" after a famous incident in British Colonial India.  The colonial authorities were concerned about the proliferation of cobras in the populated areas of Delhi, an obvious threat to the health of the population.  So they enacted what seemed like a reasonable law.  The government would pay a bounty for every captured cobra.  In the beginning it seemed to be working, as the local population began hunting cobras and bringing them to the authorities to collect their reward.  It didn't take long for some entrepreneurial Indians to realize that this could be a great way to make money.  They could simply breed cobras in their homes and bring them in for cash.  Ultimately, instead of decreasing the cobra population in Delhi, the cobra population in Delhi exploded due to the amount of cobra breeding going on.

There are many examples of this "law" (see here for some examples). 

The Rama intended on annotating the SA in order to be more lenient on young Jewish couples, and lessen the pressure to have "complete intercourse' right away.  He included a warning that one should still practice modesty in his sexual behavior, but that the new couple may engage in whatever sexual activity they desire prior to "complete intercourse" for as long as they want. However, he created a monster that was completely not intended.

What happened was, that later halachic decisors found a differentiation between "complete" and "incomplete" intercourse.  Now instead of giving the couple the autonomy to have the time they need to get to know each other, there was now a need for the couple to figure out if what they did was indeed "complete".  Since we are generally discussing young and sexually inexperienced men and women who are trying to keep Halacha, they now had to ask their trusted family and friends if indeed what they had was "complete" intercourse.  Suddenly the Moms, Grandmoms, Aunts, sisters, and Rabbis were discussing just how far did the penis go in? At what point did you lose your erection? "did you push all the way in?" "did you ejaculate?" etc.  and you need not have a great imagination to see how ridiculous and demeaning these conversations have become.  This was clearly not what the Rama had in mind. 

There is a lot more to discuss, as I now must analyze much deeper this idea of the Machmirim (the MRs) that after the first intercourse one must separate from his new wife because of the assumption that there was bleeding but it could have been lost and thus not seen.  The discussion is far from over.

Beit Yosef Decides According to the Stringent Ones

In our last post, we presented the position of the "maikilim" or the lenient ones. For the sake of this series, the MK's will refer to those who hold that the only time a person must separate from his new spouse after the first intercourse is IF she has bleeding.  The bottom line of this opinion is as follows.  The gemara in Niddah 64b-65b is discussing how to treat hymenal bleeding halachically.  According to the letter of the law, as long as we can attribute the origin of the blood to the hymen and not the uterus, the woman would not be considered a niddah. The stringency of Rav and Shmuel that suspected that any blood might have uterine blood as well, was referring to cases where there actually was bleeding, however, if there is no bleeding, there is no reason to separate the new couple. 

I want to describe in some more detail now the opinion of the "machmirim" the stringent ones.  These are the Poskim who have determined that one must separate from his new spouse after the first intercourse even though they do not see any bleeding at all.

It is crucial to understand this position in order to continue, and I will begin with the following exchange recorded in the Gemara:

It was stated that the amora’im engaged in a dispute: If a husband engaged in intercourse with a virgin and did not find blood, and he went back within the first four nights and again engaged in intercourse with her and this time he found blood, Rabbi Ḥanina says: The wife is ritually impure, as this is menstruation blood. And Rabbi Asi says: She is ritually pure, as it is blood from the wound resulting from the act of intercourse. Rabbi Ḥanina says: She is ritually impure, as if it is so that it is blood from her hymen, i.e., the blood of her virginity, it would have come at the outset, after the first time they engaged in intercourse. And Rabbi Asi said: She is ritually pure, as perhaps it happened for him that he engaged in intercourse like Shmuel described. As Shmuel said: I can engage in intercourse several times without the appearance of blood. In other words, I can engage in intercourse with a virgin while leaving her hymen intact. And the other Sage, Rabbi Ḥanina, does not allow for that possibility, since he maintains that Shmuel is different, as his strength was great. Shmuel was particularly skilled at this, while others cannot accomplish this. (Niddah 64b)

There are several points that are evident from this gemara:

1. The assumption is clear that one is not prohibited to remain sexually active with his new spouse when there is no bleeding at all with the first intercourse.  Thius is undisputed in ANY of the commentaries, and it crystal clear in the passage that we just quoted.  This passage was written AFTER the decree of Rav and Shmuel, as both Rav and Shmuel lived close to a hundred years prior to Rabbi Ami and Rabbi Asi.
2. It is clear that the only concern with the second intercourse was because there was bleeding, and the question revolved whether or not it is possible that the hymen was still intact and the blood was hymenal in origin, or was it impossible to have intercourse without breaking the hymen once, and then break the hymen again.  The conclusion was that if their is going to be hymenal bleeding, we must assume that it will happen every time, as not everyone is an "expert" like Samuel was in intercourse without breaking the hymen.
3. But what if there is no bleeding at all? Not with the first or the second or the third time?  It is obvious from the Gemara that under such circumstances she would NEVER be prohibited to her husband.  Maybe because she simply does not have a hymen that will bleed, or for some other reason.  This is a crucial point.   

Despite what we have just seen, the majority of the Poskim say, as we saw quoted in the HM in our last post, that one must separate from his wife even if there is no bleeding with the first intercourse.  I can quote here the Rashba (Rabbi Shlomo ben Avraham ibn Aderet 1235-1310), the Ritva (Rabbi Yom Tov ben Avraham Asevili - 1260-1320), Ramban (Rabbi Moshe ben Nachman also known as Nachmanides 1194 - 1270) and many others.  However, I am going to choose to quote the Rosh (rabbi Asher ben Yechiel 1259 - 1327) for several reasons. For starters, the Rosh was a little later than the previous Rishonim and thus he synthesizes the opinions of the MRs in a very coherent and clear manner.  So it is our best way to get an understanding of the thought process that led to this stringency.  In addition, the Rosh famously combined the wisdom and Halachic traditions of both the Ashkenazic and the Sephardic Poskim.  Thirdly, the influence of the Rosh on the future development of Halacha, through his son's (Rabbi Jacob ben Asher 1269-1343) work in the Arba'ah Turim. The Beit Yosef (Rabbi Yosef Karo 1488-1575) and ultimately the Shulchan Aruch were directly based on the foundation laid out by the Rosh.

...Rav and Shmuel together stated that the law is that he has the first intercourse of the Mitzvah and then he separates (from his spouse) ....(The Rosh continues to quote the Talmud that establishes the decree of Rav and Shmuel as normative) ... and it seems to me that the reason for this decree is not because we are concerned that maybe there is blood from the uterus mixed in with the blood from the hymen (even though I mentioned to you before that it seems from the Yerushalmi that this is the reason for this decree.  The Rosh is disagreeing with this reasoning) For why should we be concerned (especially) by a young girl who has never menstruated that there is menstrual blood mixed in? and even by an adult woman who has menstruated, Haven't we stated (further in chapter 3 of Niddah) that if there is a woman who bleeds during intercourse, even if it occurs regularly, that if there is a wound we can assume that the wound is the origin of the bleeding, and what would is more obvious than tis (the wound of the hymenal tearing) and clearly this is hymenal blood and not uterine blood. rather, the reason for this stringency is because the first intercourse is something which all people engage in (even inexperienced and uneducated people) and most people cannot differentiate between women who have had periods before, and women who have not, and women who are adults and women who are not, Furthermore, a new groom is very excited (and therefore presumably will not differentiate between which blood is OK and which is not) So therefore the rabbis agreed to treat this blood as the most severe of all the severities (at this point the Rosh is still talking only about cases in which there was actual bleeding) ...(I am skipping here where the Rosh discusses whether or not the husband needs to wait until he loses his erection before he "comes out" and separates from his wife) ... and since they were stringent with this first intercourse to consider her like a woman who has menstruated, therefore even if they had intercourse and did not find any bleeding since most women do have bleeding from their hymen (at first intercourse) we suspect that maybe there really was a tiny drop of blood like (the size of) a mustard seed and it just got lost, or maybe it got covered up in the semen. but we do not suspect that maybe he was able to "tilt" (in such a way that the hymen did not tear as "tilting' is not common as we see in the Talmud (here he brings the Talmud we just quoted)(Rosh Perek 2 Niddah)

It is now very clear that the MRs are making several assumptions for very clear reasons.

1. The reason for the separation after the first intercourse is because the Rishonim assumed that "most women do have bleeding from their hymen (at first intercourse)" Those are his words, not mine.
2.  The decree of Rav and Shmuel, according to everyone, was regarding actual blood from the first intercourse.  This is clear from the Rosh, and clear from the Gemara itself in the case of Rabbi Ammi and Rabbi Assi which we just quoted before.  Remember that the Rosh began by explaining the reason for the decree of Rav and Shmuel. He didn't understand why she should be considered a Niddah at all if the blood was clearly Dam Makkah (blood of a wound). Clearly the Rosh understood that Rav and Shmuel were discussing a case of actual bleeding!  The Rosh then explained that the laws regarding when we can assume it is hymenal in origin and when we must be concerned that it could be menstrual in origin are too complicated for the general public, especially for the "excited new husband" so they just decided to be stringent.
3. However, the Rosh THEN established that it was the decision of the later Poskim, like the Rosh himself, following in the footsteps of the Rashba, Ritva, Ramban etc..that because they assumed that most women bleed at first intercourse from their hymen tearing, that we should assume that every woman, even when blood is not found, should be considered a NIddah as well.

Let me be extremely clear.  The Rambam and the Rif and other earlier poskim said absolutely nothing about this new decree regarding a woman who has not seen blood separating from his wife.  The Rambam clearly stated, as we showed in the last post that this entire discussion is only relevant in cases where there actually was bleeding with the first intercourse.  Furthermore, this new stringency was not widely accepted by the rabbis of the time or the general population, as we see that the Ra'avad felt that we should be lenient, and that the Hagahot maimuniyot (HM) quoted rabbis at the time that still relied upon the "lenient" opinions. 

It is this opinion of the Rosh that eventually became codified into law by the Shulchan Aruch. First, the Arba'ah Turim in Yoreh Deah 193 summarizes his father the Rosh that we just quoted as law. Interestingly, unlike his usual pattern, the Tur does not quote the Rambam at all. The Beit Yosef, also in Yoreh Deah 193, brings a lengthy discussion of the opinions of the Rishonim. I simply cannot quote him here as it is quite lengthy. I do want to point out that the Beit Yosef (BY) begins with a lengthy discussion of the parameters of when hymenal bleeding is considered Niddah blood and when it is not, and whether or not it matters if she has already had a period or not had a period (Ra'atah or Lo Ra'atah).  This includes a really long discussion of the Rambam and the Rif who seem to feel that these differences apply nowadays despite the decree of Rav and Shmuel.  In the end, because the other authorities such as the Rosh we quoted above feel that all of this is too complicated for the average person, they interpret that the very reason for the decree of Rav and Shmuel was in order to avoid the need for some complicated and nuanced differentiations.  So the BY supports the Rosh in this as the explanation for Rav and Shmuel. 

However, after establishing that in all circumstances we are stringent like Rav and Shmuel and consider hymenal bleeding to be prohibited blood, the BY (YD 193:3,4 then deals with the question of what happens if they have the first intercourse and their is no bleeding.  Here he quotes the HM and the Ra'avad and the lenient opinions, but then states that since the majority of Poskim have been stringent, we must follow the stringent opinion.  I will emphasize here, that repeatedly throughout his discussion, both in his own words and in the quotes that the BY brings from other authorities, the reason for the stringency is because they assume that most women will have hymenal bleeding at the time of their first intercourse.  This point is absolutely crucial for the remainder of our discussion in this thread.

Needless to say, when the BY codified this law in the Shulchan Aruch YD 193, he codifies into law that regardless of whether or not there is bleeding, one must separate from his wife after the first intercourse.

This is not the end, the lenient opinions of the MKs are going to pop up again, though the authority of the SA have now dealt these opinions a severe blow. 

In our next post, we will trace discuss the Ramah and how this influenced the actual experience of our young brides and grooms today. Hopefully, we will be able after that to present a new Halachic paradigm, based on rationalist Halachic principles.

Hymenal Bleeding - Does it Make a Woman a Niddah?

The law that a woman who is menstruating is prohibited from intercourse with her husband is a clear Torah prohibition.

Do not come near a woman during her (menstrual) period of uncleanness to uncover her nakedness. (Leviticus 18:19)

In other verses we learn that this "uncleanness" refers to the blood of her period that comes from the uterus.

If a man lies with a woman in her infirmity and uncovers her nakedness, he has laid bare her flow and she has exposed the source of her blood flow; both of them shall be cut off from among their people. (Leviticus 20:18)

Those words "the source of her blood flow" is understood by the Rabbis to mean that the only blood that makes a woman prohibited is blood that comes from the "Makor" or the "source" which means the uterus.  This is repeated in many places, for example:

"if she will have": from the pronouncement on. "a flow": I might think even if she flows from any place she is tamei; it is, therefore, written (Vayikra 20:18) "and she has revealed the source of her blood." This teaches us about (her) blood that (it causes uncleanliness) only if it comes from the source (the uterus) (Sifra, Metzorah, Parsha 4:2)

From here the rule is established that only uterine blood causes a woman to have the status of a niddah and not blood from any other source such as a vaginal wound or growth or injury of any sort.  This is called a "dam makkah" or the "blood of a wound".

Hymenal bleeding is clearly established by the Talmud in the category of blood from a wound that does not render a woman a Niddah. the Mishna in Niddah states:

In the case of a young girl whose time to see a menstrual flow, i.e., the age of puberty, has not yet arrived, and she married and engaged in intercourse and her hymen was torn, Beit Shammai say: The Sages give her four nights after intercourse during which the blood is attributed to the torn hymen and she remains ritually pure. Thereafter, any blood is assumed to be menstrual blood and renders her impure. And Beit Hillel say: The blood is attributed to the torn hymen until the wound heals. ...In the case of a young woman who saw menstrual blood before marriage while she was still in her father’s house, Beit Shammai say: The Sages give her permission to engage only in relations that consummate a marriage, which are a mitzva, after which she is ritually impure due to the blood. And Beit Hillel say: The husband and wife may engage even in several acts of intercourse, as any blood seen throughout the entire night is attributed to the torn hymen. (Mishna Niddah 64b)

This Mishna was written in a time that child marriage was considered acceptable.  This would be abhorrent in our time and prohibited by all modern rabbinical authorities.  For the sake of our discussion today, I will ask you to painfully look past the child marriage issue here and focus on the issue related to our current discussion.  The Mishna clearly establishes that hymenal bleeding is considered blood of a wound and does not render a woman a niddah. Even a woman who has already started menstruating prior to marriage, Beit Hillel says clearly that she is not considered a niddah from the first intercourse, as one can assume that her bleeding was from the hymen.
However, on the next page, the Talmud records a rabbinic decree:

Although the Mishnah provides a certain period of time for both a minor and a young woman during which they may attribute any blood to the torn hymen, nevertheless Rav and Shmuel both say that the halakha is that the groom engages in relations that consummate a marriage, which are a mitzva, and then he separates from his wife. (Talmud Niddah 65b)

From the context of the conversation, it seems clear that Rav and Shmuel are discussing the same case that the gemara had been discussing the entire time.  That is, when a new husband has intercourse with his virgin wife for the first time, and there is bleeding, he can complete the act, and then he should separate from her until she counts 7 clean days and immerses in the mikveh. This is an added stringency to the Mishna in which Beit Hillel permitted further intercourse despite the bleeding until the "wound" of the torn hymen is healed.  After that, he may continue having intercourse as normal, unless she sees blood again which can no longer be attributed to the torn hymen and must be assumed to be menstrual blood.  The reason for this added stringency is presumably because we are concerned that at least some of this blood is coming from a uterine source (The Talmud Yerushalmi in Berakhot 19a seems to indicate that this is the concern). This is indeed the way this Halacha is clearly recorded in the Rambam (translations are my own): issurei biah 5:18-19.

The blood of the hymen is pure, and it is not considered menstrual blood or blood of zivah, as it does not come from the uterus. So, what is the law regarding hymenal bleeding for a virgin? ... (I am skipping here the laws of marriage to a young girl who has not yet menstruated) ... If she has begun normal menstruation while still living in her father's house, and then she gets married, he shall only have the first intercourse with her and then separate from her (due to the bleeding from the first intercourse) and we assume that the hymenal bleeding from the first intercourse is (also) the beginning of her period.... (Mishna Torah Hilchot Issurei Biah 5:18-19) 

It seems quite clear from the language of the Rambam, that this rule of Rav and Shmuel is referring to what one must do IF there is bleeding from the first intercourse.  As the Rambam stated "we assume that the hymenal bleeding from the first intercourse is also ..."   In other words, according to Beit Hillel we should allow for continued intercourse despite hymenal bleeding because we can assume that the blood is hymenal in origin and not menstrual.  Nonetheless, Rav and Shmuel added a stringency that we consider this blood to be menstrual in origin, even though we otherwise could've assumed that the bleeding was from the torn hymen.

The Rambam is extremely clear about this, and repeats it again:

...and so is the law regarding the blood of the hymen, that even if ... she never has had a period before, he has the first intercourse and then separates from her (due to the bleeding from the first intercourse) and as long as she continues to have bleeding due to the wound (of the hymenal tearing) she is considered "tameh" ...  (Mishna Torah Hilchot Issurei Biah 11:8) 

Again, it is clear from the Rambam that he understood that the reason he must separate from her, is because of the blood from the hymenal tearing.  If there is no blood, then there would be no reason to separate from her. 

Let me mention also the Rif (Rabbi Yitzchak Alfasi), who discusses these laws in Shavuot Chapter two.  There is no mention of the need to separate if there is no bleeding.

The Hagahot Maimuniot (HM) (Rabbi Meir HaKohen of Rothenburg - end of 13th century) annotates the Rambam in chapter 11 which we just quoted and says:

The Raavad writes that it makes no difference if he sees the blood or otherwise (as we suspect there was blood anyway), however there is one who holds that this law applies only if she has bleeding, and it seems that one should be lenient (and assume that if they don't see bleeding she need not separate from her husband) However, I found in Rashi (that he is) stringent, and similarly in the Rokeach and in the Ramban, as he (the Ramban) writes, "Even if she does not see any bleeding, we don't think that maybe that he "tilted" (had intercourse in such a way that did not cause bleeding due to trauma to the hymen) and if so her hymen is still intact (and therefore she is still permitted to him) because it is not common to "tilt" in this way and therefore we suspect that there maybe was some (small amount of) blood and it just got lost, and therefore he should finish this first intercourse and then separate etc." and my teacher our rabbi also ruled that we should be stringent (even when there is no blood) and even those rabbis who are lenient (and assume that when there is no blood she is still permitted) require that she check herself with a cloth (to make sure there was no blood) (HM note 3)

There are a few points I would like to make clear from the words of the HM:

1. That it is clear that during the time of the HM there were Rabbis who felt that they should separate after the first intercourse regardless of whether or not there is bleeding, and there were Rabbis who felt that she should check herself and if there is no blood, she is OK to remain with her husband normally
2. It is clear that everyone understood that the Gemara meant that they must separate due to the actual blood of hymenal tearing. The Ramban and others however were stringent because they assumed that there would always be blood from hymenal tearing at the first intercourse.  The only way they thought there could not be bleeding, is if a person "tilted" in such a way that did not tear the hymen.  This they felt was unusual for most people, and therefore they felt that even if they didn't see blood, it must've been there, but they missed it. 
3. That the Ra'avad felt that we should be lenient in this matter, while many other authorities felt that we should be stringent even when the blood is not found

So, the "universal" Halachic practice of automatically separating from one's newlywed after the first intercourse was not so universal after all, at least until the time of the HM. In fact, it was only enacted because the rishonim that were stringent assumed that every virgin has a hymen, and that with the first intercourse the hymen would tear, and that this would cause bleeding. 

In our next post, we will follow this Halacha as it made its way into the Shulchan Aruch, and how it became standard practice among Halacha observant Jewry.  We will soon see how the lenient opinions we just reviewed became no longer an accepted norm. We are also going to explore in more depth the opinions of the "machmirim" (the stringent ones).