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".

Can a Husband See His Wife Undressed During Labor?

In this post, we are going to discuss items 3,6 and 7 from the list we quoted from the Yoatzot website.  All of these laws are based on the assumption that a man may not see certain parts of his wife's body when she has the status of Niddah.  As usual, we will have to trace this law from its' origins and then see how it may or may not apply to our situation.  We will begin with the following statement in the Talmud:

 Rabbi Aḥa, son of Rabbi Yoshiya, says: Anyone who watches women will ultimately come to sin, and anyone who looks at the heel of a woman will have indecent children as a punishment. 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. (Talmud Nedarim 20a)

The simple reading of this Gemara is that a man is not supposed to look at his wife's genitalia while she is a Niddah.  One would infer from there that while she is not a Niddah and they are permitted to have sexual contact, there is no such prohibition.  This is how most of the Rishonim understand this Gemara.  Rabbi Bezalel ben Avraham Ashkenazi (1520-1592, also known as the "Shita Mekubetzet"), who anthologizes and summarizes the rishonim, explains it this way (my translation)

... Rabbi Yosef explains that this prohibition is when his wife is a Niddah, the reason he need to state this is because for (gazing at) other women it is already prohibited from the verse which states "One must be careful from anything evil" as we learned in tractate Avodah Zarah. When it says the language "her heel" it is referring to the place of her genitalia which is opposite the heel, as it states in Tractate Niddah, (that when a blood stain is found) on her heel, she is considered impure (as blood from the vagina could very easily fall and land on her heel) (Shita Mekubetzet Nedarim 20a)

Clearly Rabbi Ashkenazi understood that this prohibition was specifically against gazing at the genitalia of one's spouse when she is in Niddah status.  Presumably, the reason for this prohibition is because looking at his wife when she is undressed and seeing her genitalia is sexually arousing to him at a time when sexual contact is prohibited.  Therefore one is prohibited from gazing upon her genitalia as it is likely to stimulate sexual desire. This is even more clear from the language of Rabbi Menachem ben Solomon Meiri (1249-1315, also known as "the Meiri") (my translation).

...(after describing a general prohibition against gazing at women in general who are not his spouse) But anyone who gazes upon the "heel" of a woman, if it is his wife and she is in a state of purity, and the purpose is for her to be more desirable to him (to increase his desire at a time when sexual activity is permitted - K'dei Le'Chavevah is the language used by the Meiri)  then it is permitted, and not only gazing upon her "heel" is meant by this permission, but even that which is "opposite the heel" (euphemism for genitalia as stated in the Talmud) , the reason the Gemara chose the term "heel" is because a heel also refers to "Ikvoteha" (her stride) as in (usual circumstances) she is dressed and walking (past him) even towards him and he sees her from the front, or as she passes him and he sees her stride as she walks past.   But if she is a Niddah and (he gazes upon her genitalia) then he will have improper children (as a punishment for gazing upon his wife's genitalia during a prohibited time) (Beit Habechirah Nedarim 20a)

The Meiri was clearly not prohibiting gazing at one's spouse while fully clothed and walking while she is in Niddah status. It is a clearly established and non controversial Halacha that we shall quote later in this post that such activity is completely permissible.  When the Meiri prohibits gazing at one's wife when she is a Niddah, he is referring to the same thing that he was permitting when she is not a Niddah. This was gazing at her "heel" which in the context of the Meiri's comments of the Gemara in Nedarim is a euphemism for her genitalia. In other words, just as we saw in the Shita Mekubetzet above, a husband is permitted to look upon his wife's genitalia when she is permitted to him as the purpose is "K'dei Le'Chavevah" (in order to make her sexually desirable to him).

The Rif as well quotes this sugyah in its simple meaning, which applies a prohibition against gazing at one's wife's genitalia when she is a Niddah, but not when she is not a Niddah. Since his quote is almost a direct quote of the Gemara above I will not quote it again here.  

Rabbi Avraham of Montpelier (mid 13th century, died in 1315, also known as Rabbi Avraham min HaHar"), in his commentary on Nedarim writes in regard to the law of gazing at her "heel" (my translation):

This law (of gazing at her "heel" - euphemism for genitalia) was stated only in regard to his wife when she is a Niddah, that it is prohibited to look at her (in this way) but when she is not at her time of Niddah it is permitted, but other women it is always prohibitted even if they are not a niddah (Rabbi Avraham min hahar, Nedarim 20a)

This basic understanding of the Gemara in Nedarim is written as practical halacha as we have seen in the previous Rishonim by Rabbi Isaac ben Sheshet Perfet (1326-1408, also known as "the Rivash") (my translation):

...(after discussing the general prohibition against gazing upon women to whom someone is not married) ... and in this (following) manner as well an unmarried woman even if she is not a niddah is more strict then regarding his wife who is a niddah, as (with one's wife even in Niddah status) it is permissible to look at her and even derive pleasure from seeing her, and they (the rabbis) did not prohibit looking upon one's wife who is a Niddah only at her genitalia, as we see in Tractate Nedarim 20a. (Teshuvat HaRivash 425:3) 

So the Rivash makes it clear that he understood the Talmud in Nedarim, just as the other Rishonim that we quoted.  That the prohibition of Niddah is looking upon his wife's genitalia during the time of Niddah.

This understanding of the sugyah seems clear from the Rambam as well (my translation):

A man is permitted to look at his wife when she is a Niddah, even though she is prohibited to him (at the time) and (this is true) even though he has pleasure in his heart from looking upon her since she will be permitted to him at a later time (we are not concerned that he may) come to a transgression as a result of this action (seeing her) however, he should be careful not to be frivolous or careless (in his behavior) with her as maybe this could lead to a sin. (Mishna Torah Hilchot isurrei Biah 21:4)

The Rambam does not mention directly the prohibition of gazing upon his spouse's genitalia, and the reason for this is not clear.  One possibility is that he does not see this as a prohibition, as at the end of the Gemara in Nedarim, the following is stated:

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)

After listing various practices regarding inappropriate behavior with women, the Rambam several paragraphs later concludes in 21:9 by quoting the above statement of Rabbi Yohanan. It is plausible that the Rambam felt that the statement of Rabbi Yochanan applied to all of the preceding statements in the Gemara as well, and therefore the Rambam did not record any prohibition of seeing one's spouse as a Niddah, even the genitalia.  Rabbi Avraham ben David (1125-1198, also known as "the Ra'avad") may have understood the Rambam this way, which is why he adds the following  (my translation):

...(commenting on the Rambam's words that frivolous behavior may lead to sin) ... However he may not look upon her private hidden place as it states in Nedarim 20) (Hasagot HaRa'avad Hilshchot Issurei Biah 21:4)

It is not clear if the Ra'avad understood that the Rambam held that there were no laws against a husband gazing upon the genitalia of his wife who is a Niddah and that he was arguing on the Rambam's position, or if the Ra'avad was explaining the Rambam's position and adding that included in "being frivolous" was the prohibition against looking upon her genitalia.  Regardless, it is again clear that the understanding of the Raa'vad was that the Gemara in Nedarim was only referring to a prohibition against gazing upon the genitalia of someone's wife when she is a Niddah.

Another important point from the Rambam is that we have the first explicit explanation as to the reason for this prohibition, which is because it may lead to sin. This will be important later on in our discussion.

Rabbi Vidal of Tolosa (14th century, also known as "the Maggid Mishna") also understood the Gemara in Nedarim in the same way, and he addressed the Ra'avad's comments by stating clearly that this was the Rambam's intent when he discussed the importance of not being "frivolous" (my translation). 

...(discussing the Rambam's words that it is permissible for a husband to look upon his wife when she is a Niddah) .. this is clear from the Talmud in Nedarim 20a, as they said there that one who gazes upon the "heel' of a woman will have children that are not good children, and rav Yosef stated that this is referring to his wife when she is a Niddah, Rabbi Shimon ben Lakish stated that when it says her "heel" it is really referring to her genitalia which is opposite the heel, It seems clear from here that to gaze upon any other places it is permissible. and similarly it says that it is permissible for a woman to adorn herself while she is a Niddah so that she does not look ugly to her husband, as it states in Rambam Chapter 11, so we see from there that it is permitted to look upon her (anywhere other than the genitalia) and in the comments of the ra'avad he adds that in the hidden place upon her he may not gaze but (I feel) that it was unnecessary for our teacher (the Rambam) to state this  because he already stated that one may not act frivolous or careless and certainly that would include gazing upon her genitals (Maggid Mishna Hilchot Issurei Biah 21:4) 

We have now demonstrated that the overwhelming majority of the Rishonim understood the gemara in Nedarim according to its' simple meaning.  The practical halacha then according to Shita Mekubeztet, Meiri, Rif, Rabbeinu Avraham min Hahar, Rivash, Rambam, Ra'avad, and Maggid Mishna was simple and explicit. When a woman is not a Niddah, there are no restrictions at all against looking at one's spouse.  This includes the genitalia. However, when she is in the status of niddah, there are no restrictions other than looking at her genitalia, and this is consistent with the simple reading of the Gemara in Nedarim. The Tur in Even Ha'ezer 21, and the Beit Yosef and the Shulchan Aruch as well in Even Ha'ezer 21 all seem to agree with the poskim we quoted above.

According to all of the above, the entire issue of seeing one's wife uncovered in labor is mostly a non issue.  For starters, we have already argued that she is not a Niddah in labor, which means that there would be no restrictions, even to see her genitals. This would mean that issues regarding what the husband may or may not see (#'s 3,6,7) stated in the list from the Yoatzot website are simply non issues.  even the birth itself would be a non issue until the baby is born, after which all agree she has the status of Niddah.  At that time one could argue that he would be prohibited from looking at her vagina.  However, even then it is almost certain that seeing her vagina after the delivery will not lead to transgression.  This would not be considered the type of "frivolous and careless" behavior that the Rambam was referring to that might lead to sexual intercourse.

I would like to make a point here which should be obvious.  Maintaining appropriate modesty and making the woman in labor as comfortable as possible is always priority one. I am not suggesting here at all that she should not dress in a manner that best maintains her sense of modesty and comfort.  The same is true for the husband's behavior.  He should always behave in such a way as to make his wife as comfortable as possible.  I am only discussing here "the rules", but one must always remember that "Derech Eretz kadma La'Torah" proper and respectful behavior always comes first.

So where did these laws come from? Why does the Yoatzot website give guidance that is so different from all of these Rishonim and the Gemara?  In order to understand this, we will have to follow a completely different stream in the Halachic literature, one which started with Rabbi Shlomo ibn Aderet (1235-1310, also known as "the Rashba" (my translation):

...(discussing the laws of the harchakot - the "distancers" which one should practice to prevent falling into a transgression of the laws of Niddah) ... and anyone who looks upon the "heel" of a woman will have children that are improper, Says Rav Yosef (Nedarim 20a) and this includes a woman who is a Niddah. and from the fact that the "heel" (is prohibitted) we can derive that all areas that are "covered" on a woman's body (should not be seen by the husband when she is a Niddah) (Rashba, Torat HaBayit, HaBayit 6, Sha'ar 5)

There are several things which are unclear from this Rashba. For starters, he does not bring the final statement which defines the "heel" as referring to the genitalia.  One must assume, that the Rashba was simply using the term "heel" as a euphemism for the genitalia, as he clearly knew how the Gemara explained that terminology.  If so, when the Rashba adds the idea that from the prohibition of looking at the genitalia of one's wife when she is a Niddah that we "derive' that one may not look at any "covered" parts, what exactly does he mean?  Is he adding a stringency from his own understanding that since one may not look at the genitalia then it would be proper not to look at other covered parts as well? Or does he believe that this was the intention of the Gemara itself?  This is important, because if the Rashba feels that this was the proper reading of the Gemara (despite that fact absolutely no other Rishon understood it that way) then the Rashba would be claiming that not looking upon any "covered" part of one's spouse is an actual Talmudic decree. On the other hand, if this is just the Rashba deriving a stringency on his own, (and his understanding of the Gemara is consistent with everyone else's) then we are simply dealing with a custom established by the Rashba, not an actual rabbinic decree.

Since it is easier to assume that the Rashba understood the Talmud in Nedarim the same as everyone else, I believe that it is much more likely that he was simply adding the stringency on his own.  However, this stringency of the Rashba had massive influence on the development of this Halacha.

The Tur quotes the Rashba (my translation):

...and one should not look (at his wife when she is a Niddah) even at her heel and not at any place that is (usually) covered ...(Tur Yoreh De'ah 195)

The Beit Yosef then comments (my translation):

and even though Resh lakish said there (in Nedarim) that the "heel" refers to the genitalia ... it seems to our teacher (the Tur) that from the "heel" (euphemism for genitalia) we can derive that any (typically) covered place (is also prohibited) Nonetheless it seems clear that any other place that is not normally covered is permitted (for the husband) to look upon them.  (Beit Yosef Yoreh De'ah 195:11:1)

It is still unclear if the Beit Yosef means to say that the Rashba, and hence the Tur in his footsteps, understood that this was the explanation of the Gemara itself, or if the Rashba was deriving his own stringency.  Regardless, this is what become codified in the Shulchan Aruch.  This time, unlike in previous topics we have discussed, the Rama only points out that "non-covered" places are permissible to see, and he does not bring any arguments for leniency.

The modern poskim (See Iggrot Moshe, Yoreh de'ah 2:75), all follow in the footsteps of the SA and therefore declare that any place that is "normally covered" may not be seen while a woman is a Niddah. 

Recall that in our previous posts we argued that non-sexual touch would be allowed even if she were a Niddah, even according to the Rambam that touching one's wife while a Niddah is a Torah prohibition.  We also mentioned above, in the name of the Maggid Mishna, that when the Rambam stated that one should not be "frivolous" with his wife when she is a Niddah, that the reason was because it would lead to sin.  If, for some reason, any part of a woman needs to be uncovered during labor, either for medical reasons or for her comfort, that should always be the priority.  The fact that he may see something that is usually covered should not be of concern to us, as this is exceedingly unlikely to lead to sin.  This is similar to the argument that we made regarding non-sexual touch before.  Only here, clearly, the husband should not be gazing upon her in ways that would make her uncomfortable, or in ways that suggested sexual attraction.  Such a situation would be quite awkward indeed, for obvious reasons. 

Let us summarize now all of what we have just learned, and apply it to our situation of the husband in the labor room:

1. According to the simple understanding of the Gemara and the overwhelming majority of Rishonim and early Poskim, there are no visual restrictions at all when a woman is not a Niddah.  therefore:
1. if you assume like we have argued that a woman in labor is not a Niddah until the child is born, there would be no visual restrictions until birth
2. after the birth, one could argue that seeing the vagina is prohibited as she is a Niddah
3. even after birth, one could still argue that since this is not "frivolous behavior" that could lead to sex (as sexual intercourse resulting from seeing the vagina at this time is exceedingly unlikely to result) then even after the birth there are no visual restrictions at all, even vaginal
2. According to the Rashba, one should be stringent when a women is a Niddah and not visualize the parts of a woman's body that are "usually covered", Therefore:
1. if you assume like we have argued that a woman in labor is not a Niddah until the child is born, there would be no visual restrictions until birth
2. If you assume that she is a Niddah during labor, then it would simply be required that she cover herself as she normally would when at home with her family.  Obviously, she is having a baby, so this would not be completely possible.  At this point, common sense and her personal comfort would have to be your guide.  Her personal comfort is the primary issue, while the fact that he may inadertently see something would not violate the Rashba's chumra, as it would not be such that it could lead to sin.
3. after the birth, the women should then cover herself in the way she normally would if she were at home with her husband. This may not be totally necessary given that seeing his wife at this time is exceedingly unlikely to lead to transgression, just like we argued before.  Again, her comfort and her medical care should be the only factor driving decision making. 

The bottom line of all of this is, that if we simply keep the woman comfortable and have her covered in a way that she is comfortable and maintains her own sense of modesty, we really do not need to worry about what the husband sees or doesn't see. 

This brings us to another issue I now need to address, and that is item # 4 on the Yoatzot list. This is the assertion that a husband cannot see his wife's vagina even if she is not a Niddah. This statement is quite contradictory to almost everything I just wrote in this post. Those of you that are ready to pounce on me for this, please hold on until you read my next post. I will be delving into the origins of that statement and how that fits in with the ideas I just expressed in this post.

Is the Husband Only Allowed if No One else is Available?

In the last two posts, we discussed the first two assertions that were gleaned from the Yoatzot website regarding restrictions that apply to a couple when a woman is in labor.  I had originally listed 8 rules that I got from the website as follows:

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

The first assertion we discussed in this post here, and I argued that it is not necessarily the case that a woman in labor has the status of a Niddah.  The second assertion, I discussed in this post here, and I argued that physical contact that is non-sexual touch is not prohibited, even if she were considered a Niddah during labor.

The eighth item on the list states that a husband should not touch her unless there is no one else to help.  The origin of this suggestion is the following Rama, which we quoted in the last post as well:

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

The Rama seems clear that the husband has permission to touch his wife when she is ill only if there is no one else available who can provide the same support. It is interesting to note that the source that the Rama brings does not make this statement only when there is no one else to help.  He makes this statement in all situations where the woman is ill. Rabbi Joshua Falk (1555 - 1614, also known as the "Perishah" writes in the name of Rabbi Mordechai ben Hillel Hakohein (1250-1298, also known as "The Mordechai")  (my translation):

...there is a note in the Mordechai in the first chapter of Tractate Shabbat who writes as follows; Rabbi Meir of Rothenburg (1215-1293, also known as the "Maharam of Rothenburg") wrote that those people who are stringent and will not touch their wives when they are ill and in the state of Niddah, this is a custom of foolish piety. This was what I heard from Rabbi Tuviah.  and the Rama writes that we follow this custom if she has no one else to care for her and she needs this help ...(Perishah, Yoreh De'ah 195:8:1)"

It seems that the opinion of Rabbi Tuviah, Rabbi Meir of Rothenburg, and Rabbi Mordechai ben Hillel was that it is allowed to touch one's wife while she is a Niddah if she is ill.  The Rama felt that this was indeed the proper law, but he only saw fit to be lenient when no other options were available, in deference to the opinion of the SA. so this is the basis of assertion number 8.

I stated in the beginning of this thread that clearly every woman and every situation is different.  Some women are more comfortable with a close friend, or a trained doula, or their mother or some other support person there to help her.  For reasons that go well beyond Hilchot Niddah, it should be clearly obvious that it is everyone's responsibility, especially the husband's, to make sure that a woman in labor has the support that will help her get through this difficult time.  If she wants her Mom at her side, or if they have hired a doula (a professional labor coach), or if she has a best friend, then that is how it should be.

That being said, many modern women look to their husbands for support.  Many desire him to be at their side and find that holding his hand or feeling his touch is comforting during labor.  I am not here to make societal comments about why this is.  However, if the husband is providing comfort that helps her in this difficult situation, and it because she has a bond with her husband that cannot be replaced by anyone else, then Halachically speaking that is the equivalent of there being "no one else available" to do so.  This is true even if there are other women available for support, as long as the comfort provided by his touch is due to the special relationship that exists between them as a couple.

There are many studies that support the benefits of supportive touch during labor.  There are very few that directly compare supportive touch from a partner versus a doula or friend.  However, there is some evidence that  partner's touch has better effectiveness if that is what the woman feels comfortable with.  Given the evidence, and using common sense, it would seem that in cases where a woman wants her husband to touch her, that it should be not just allowed, but encouraged.

So far we have discussed items 1,2 and 8.  In the next post, I will discuss items 3,6 and 7, as they all relate to the same issue of what the husband may or may not see or observe in the labor room. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the words of Maimonides:

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

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

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

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

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

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

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

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

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

Analysis According to Maimonides

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

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

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

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

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

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

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

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

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

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

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

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

Applying The Maimonides/Nachmanides Debate to Childbirth

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

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

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

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

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

Is a Woman in Labor a Niddah?

In the last post, I listed several points that were assumed in the formulation of the restrictions that many Halachic authorities placed upon the husband in the delivery room. The first point was that a woman in labor has the status of a Niddah, and that because of this the husband and wife are forbidden to touch each other. So we must start our series by explaining the origins of the Halacha that a woman in labor is considered a Niddah, then we can analyze if indeed this assumption is necessarily true.

The Torah states:

Speak to the Israelite people thus: When a woman at childbirth bears a male, she shall be unclean seven days; she shall be unclean as at the time of her menstrual infirmity. On the eighth day the flesh of his foreskin shall be circumcised. She shall remain in a state of blood purification for thirty-three days: she shall not touch any consecrated thing, nor enter the sanctuary until her period of purification is completed. If she bears a female, she shall be unclean two weeks as during her menstruation, and she shall remain in a state of blood purification for sixty-six days. (Leviticus12:2-5)

From here we learn that a woman in childbirth has the same status in terms of "uncleanliness" as a woman who menstruates.  For the following verse we learn that a woman who is menstruating is prohibited to have sexual intercourse with her husband:

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

The context of the verse I just quoted is referring to sexual intercourse, which the Torah calls "coming near" as a euphemism for intercourse.  The fact that the Torah uses the terminology of "coming near" instead of more explicit language as used in the other verses in the same chapter will be of importance later in our discussion.  Be that as it may, we now have established that a woman who gives birth is prohibited to have intercourse with her husband until a certain period of time is completed and she immerses in a mikveh.

At what point during childbirth does the Niddah status begin? This is very unclear from the verses themselves.  From the simple meaning of the verses it would seem that this "uncleanliness" only begins after she "bears a male" or "bears a female" meaning after the baby is born.  It is by no means clear from the verses themselves that she becomes "unclean" during labor prior to the actual birth.  Even if she has bleeding during labor prior to birth, which almost always is the case, from the verses themselves we do not know if this bleeding would render her a Niddah.  I say this because we see in the same chapter that not all blood associated with childbirth is considered "unclean" menstrual blood.  Since this is not menstrual blood, we do not know from these verses when exactly she becomes a Niddah.  For this we have to rely upon the Talmud and further rabbinic explanations.

In the Talmud Tractate Niddah 21a, the Talmud makes several points clear (please forgive me for not bringing the direct quotes here as I usually do.  The discussion is several pages long and it would be quite tedious.  Feel free to study it yourself)

1. The Talmud records a debate among the rabbis as to whether or not it is possible for the uterus to "open" and discharge some tissue (or a baby!), and there be no bleeding accompanying that discharge
2. In the case of an actual birth, whether it is a live birth or tragically a miscarriage or stillbirth, the woman is considered a Niddah regardless of whether or not there is bleeding. Some Rabbis say that this is because it is impossible to have the uterus open and there be something exiting the uterus without blood.  Other Rabbis say that it is because a woman is "impure" due to a birth even without blood.

It is thus inferred that there are two ways to understand the verses quoted that declare that a woman who delivers a baby is "impure" like a Niddah.
 
The first group of rabbis understanding is that the "uncleanliness" is a result of bleeding. They apply the rule that "There is no opening of the uterus without blood".  Even if you don't see any blood, she is still "impure". Though this is virtually impossible in a full-term delivery, it could apply in cases where the uterus opens to deliver other types of tissue such as Fibroids or polyps.  According to these authorities, the time that the women becomes a Niddah in childbirth would be the point when the uterus opens, or when she has obvious uterine bleeding.  Exactly when is the time that the "uterus opens is unclear, and we will have to search the sources to clarify this. 

The second group of rabbis argue that it is possible to have the "uterus open without bleeding".  According to these rabbis, the "impurity" of the childbearing woman has nothing to do with blood.  They hold that it is the birth itself that causes this impurity, which would only apply to the birth of an actual child, whether alive of stillborn.  But it would not apply to passing other types of tissue as long as there is no blood.  Practically speaking, according to the second group of Rabbis, if there is blood during labor, the woman would be considered a niddah if the blood came from inside the uterus.  However, until there is bleeding, even if she was in labor, she would not be "impure" until the actual birth occurs.

The Halacha has been determined on the side of the Talmudic Rabbis who hold of the first explanation (See Maggid Mishna on Maimonides Mishna Torah Laws of Forbidden Interourse 5:13 for full explanation of why we decide according to this opinion).  That it is the blood of the delivery that causes the "impurity".  Once the uterus opens, she is assumed to have blood even if we don't see it, because "there is no opening of the uterus without blood". So, the question of when a woman has the status of Niddah is dependent upon exactly when this event of "opening of the uterus" is assumed to have occurred. 

Interestingly, the question of exactly when the process of labor begins as it relates to exactly when she becomes prohibited to her husband is not discussed in the Talmud at all.  The "Opening of the Womb" is discussed, but only as it relates to two other Halachic issues.  In order to make sense out of this, one must understand that there are three Halachic issues related to the beginning of the labor process. The three issues are Ritual impurity, Desecration of Shabbat, and Niddah status. The first issue is related to ritual impurity.  this is discussed in the Mishna in Oholot:

If a woman was having great difficulty giving birth and they carried her out from one house to another, the first house is doubtfully unclean and the second is certainly unclean. Rabbi Judah said: When is this so? When she is carried out [supported] by the armpits, but if she was able to walk, the first house remains clean, for after the womb has been opened there is no possibility of walking, For stillborn children are not [deemed to have] opened the womb until they present a head rounded like a spindle-knob. (Mishna Oholot 7:4)

This issue of ritual impurity has little relevance in practical Halacha today, as we no longer are concerned about ritual impurity after the destruction of the temple. However, if one assumes that ritual impurity begins at the same time as the Niddah prohibition between the couple begins, then one would derive from this Mishna that as soon as a woman is in significant pain (and needs help to walk) that would be the time she would be prohibited to her husband as a Niddah. Rabbi Shimon ben Avraham of Sens (1150-1230, also known as the Rash MiShantz) compares this Mishna to another discussion in the Talmud Shabbat.  He points out that they seem to contradict one another regarding when this moment of the "opening of the womb" is. The following Gemara is discussing at what point a woman in labor is considered in a situation of life-threatening risk for whom the desecration of Shabbat would be permitted.

With regard to the matter of the open womb, the Gemara asks: From when is it considered that the opening of the womb has begun? Abaye says: It begins from when the woman sits on the travailing chair. Rav Huna, son of Rav Yehoshua, said: It begins from when the blood flows and descends; and others say when her friends need to carry her by her arms, as she can no longer walk on her own. (Shabbat 129:a)

So here we have two different explanations for when the "womb opens" though the context is very different. The context here is regarding the laws of Shabbat and being allowed to violate the shabbat for her.  If we assume that the time of "the opening of the womb is the same for all three categories, we then have to reconcile which is of these opinions is authoritative.

It is important to explain the the ritual impurity being discussed in Oholot is the impurity that the deceased body of the stillborn baby would impart to the house within which it is born.  As long as it is within the woman's body, it would be considered a "Tumah Belu'ah" - an impurity contained within her body and as such a house in which the woman was present would not be "impure".  As soon as the "womb is open" though, then the corpse would be exposed to the house and the entire house and its' contents would become ritually impure.  In Oholot, we are not discussing the "impurity" associated with Niddah status.  That impurity would indeed coincide with the onset of the contact restrictions between husband and wife.  Thus we are discussing three completely separate areas of Halacha: Ritual impurity, Niddah, and Shabbat.

However, it is not clear that the time that a woman is considered in a life-threatening situation and the time that she becomes a Niddah is necessarily the same moment.  They may be different points in time even though the Talmud uses the same terminology of "the opening of the womb".  Some later authorities seem to make the assumption that in all three of these categories of Halacha: ritual impurity; Shabbat desecration; and Niddah status; that the moment of the start of labor is the same.  This seems to have been the underlying assumption of the Rash MiShantz when he asked why the Mishna in Oholot was contradicted by the amoraim in Shabbat. 

This assumption seems reasonable enough, except that at least one of the opinions regarding the "opening of the womb" on Shabbat is when the bleeding starts.  On the other hand, when it comes to Niddah status, we know that it will start even without seeing any bleeding at all. We described above in Niddah 21a above that even without bleeding, we assume that there is always blood even if we don’t see it as soon as the womb "opens".  This leaves us with some mind-bending cyclical logic.  When does the "womb open" = when the bleeding starts.  When do we assume that bleeding starts even if we don't see it = when the womb opens.  Round and round we go.

One way out is to assume that the criteria for shabbat are completely different than the criteria for Niddah status. However, the accepted halachic norm has been to assume otherwise. Indeed, Rabbi Elhanan Ashkenazi (from late 18th to early 19th century) attempts answer the seeming contradiction raised by the Rash MiShantz between the Gemara in Shabbat and the Mishna in Oholot by explaining that regarding ritual impurity, the womb must be open a significant amount, however regarding violating shabbat, the time from when we are allowed to violate Shabbat is much earlier, even when the womb is "only open a little bit" (my translation):

That which we said in the Mishna (in Oholot) that the opening of the womb is only from when she can no longer walk on her own, that is only when the womb is open a significant amount which is required for her to be ritually impure, However, even a small opening occurs before she is unable to walk, and therefore regarding Shabbat and danger to life all of those Amoraim (Talmudic Rabbis) ion Tractate Shabbat felt that we can violate the Shabbat as soon as the womb begins to open even if it is only open a small amount, she is still approaching birth (and is in danger) and therefore there is no contradiction (with the Mishna in Oholot) and therefore the same rule would apply regarding her Niddah status and the husband must be careful (from touching her) as soon as the womb opens even a little unless it turns out that the labor was false ...(Sidrei tahara 194:25)

While the above may seem a bit obscure, it is actually very important.  For reasons which he does not explain at all, Rabbi Ashkenazi has just explicitly done two things.  First, he stated that "opening of the womb" is not universally the same event. For the purpose of determining ritual impurity it is a different event than it is when determining the laws of Shabbat.  This makes perfect sense.  But then he states clearly that the laws of the "open womb" on Shabbat are exactly the same as the laws for when the husband may no longer touch his wife.  He offers no explanation as to why he made this assumption.  How did he know that? Maybe just like the "opening of the womb" is determined differently for ritual impurity than it is for Shabbat desecration, it might also be determined differently as it relates to Niddah status?  One could easily make a very logical argument that regarding shabbat, one should be allowed to violate shabbat at any question of the possibility of labor, even in the very beginning stages, while regarding Niddah status, maybe it occurs much later?

Nonetheless, the words of Rabbi Ashkenazi became standard in the subsequent Halachic literature.  Most influentially we find this in Iggerot Moshe Yoreh Deah 2:75, and in other modern Poskim.  Thus, according to Rabbi Feinstein, the moment she feels labor pains, is the moment she is prohibited.  Other Rabbis are more lenient and say that it is only when she starts to have bleeding, or is fully dilated (which they equate with "sitting on the birth stool" to push the baby out), or when she is in so much pain that she requires help to walk.

In truth, since the overwhelming majority of women have some bleeding even in the early stages of labor, the other two criteria of not being able to walk on her own or being fully dilated are rarely relevant.  We have now explained the halachic basis for the current halachic guidance that a woman in labor is a Niddah.  This is what we saw reflected on the yoatzot website, and what appears in most of the modern halachic literature. Exactly when it begins is a bit of a Halachic moving target, but we've done the best we can to explain the options available in the current literature. The same point in time that the Gemara in Shabbat determined she was in labor regarding the allowance to desecrate Shabbat for her, is the same point at which she becomes a Niddah.

I would like to suggest a potential alternative based on the same sources, but coming to a very different conclusion. The following logical steps are listed in chronological order, using the sources that we have quoted so far. However, these steps lead us in another direction completely:

1. The Mishna and the subsequent Talmudic discussion that began in Niddah 21a gave us two alternative understandings of the biblical teaching that a woman that has a child has the status of Niddah
2. The first understanding was that the birth itself and not the blood is what renders her a Niddah, and the second understanding was that it is the blood that renders the woman a Niddah, and that even if we don't see blood, there is always blood when "the womb opens". The Halacha was determined by the second approach
3. The "opening of the womb" for shabbat purposes is determined by when the woman is in danger, and all agree that this is the moment she begins having labor pains or even if there is any doubt about her status.  However, let us assume for a moment, unlike Rabbi Ashkenazi, that the "opening of the womb" regarding Niddah status is not the same as it is for Shabbat.
4. The Talmud in Niddah from which we derive the idea that delivery = blood even if we do not see any blood is discussing cases where a woman passes any sort of tissue, even a piece of "flesh" (likely a polyp or fibroid).  This tissue was almost certainly only noticed when she actually passed the tissue.  In other words, the application of the "opening of the womb always has blood" law only happened after the delivery, and the Niddah status did not start until it passed out of her body.  
5. Taking all of the above into account, it is quite reasonable to assume that the "opening of the womb" in Niddah 21 also refers to the actual delivery of the baby as the start of the Niddah status, not the onset of labor
6. The bleeding that occurs during labor is almost always bleeding from the dilation of the cervix and not uterine blood.  In fact, uterine bleeding, which is the blood that the Talmud is referring to when it states the rule of "there is no opening of the womb without blood" does not usually start until after delivery of the baby when the placenta separates.  In fact, bleeding from the uterus during labor can be a sign of a problem called an abruption which can be dangerous, and certainly is not the norm.
7. Bleeding from the cervix, most Halachic decisors agree is not considered Niddah blood, but rather has the status of "Dam Makkah" - the blood of a wound.  This is somewhat debatable, but most Halachic decisors rely on this assumption if a woman bleeds after a doctor checks her cervix before labor or strips the membranes or other interventions than can result in cervical bleeding. (Feel free to ask me for sources offline or in the comments regarding the assertion I just made regarding cervical bleeding)
8. If you follow my logic outlined in steps 1 through 7 above, a woman in labor is not a Niddah until the delivery of the baby.  Even if she has bleeding, it can be assumed to be coming from the cervix.  Bleeding from cervical dilation is simply not Niddah blood as it is not uterine in origin. Only after the delivery do we apply the rule that any opening of the womb necessarily has bleeding.  In fact, I can tell you from my extensive medical knowledge and experience, that this is exactly when the uterine bleeding typically begins.  As soon as the baby is born.

My arguments above are all well-established from the biblical verses, the Talmudic discussions, and the later rabbinic authorities. I only needed to make one jump that was not documented in the halachic literature.  Rabbi Ashkenazi explained that the idea "the opening of the womb" is not necessarily the same for the laws of ritual purity and the laws of shabbat.  He stated, without citing any sources, that the "opening of the womb" is the same concept for shabbat and for Niddah.  I argue, based on scientific understanding of the process of birth, and based on the context of the Gemara in Niddah, and based on simple logic, that this is not correct.  The timing of "the opening of the womb" for Hilchot Niddah is not the same as it is for violating shabbat.  So according to me, the idea that a woman in labor is a Niddah is simply incorrect.  A woman that just had a baby though, as the Torah clearly states, is a Niddah.

There is an indicator that I may be correct about the assertion I just made. The earlier halachic authorities, when they describe the law that a woman who gives birth has the status of a Niddah, simply do not discuss at what time during labor she gets the status of a Niddah.  The Shulchan Aruch, and the Tur in the beginning of chapter 194 of Yoreh De'ah simply state that a woman who had a baby is a Niddah.  The Rambam does not discuss exactly when during labor she is prohibited to her husband, and the rishonim who explain the gemara in Niddah also do not discuss this question. This discussion only began with some of the commentaries on the Shulchan Aruch. There is a reason that Rabbi Feinstein's source for the timing of the onset of Niddah status in labor was from an 18th century Posek and not a Rishon.  The reason is because the rishonim do not deal with this question at all. Perhaps this is because this question was irrelevant to the earlier Halachic decisors?  Perhaps it is because she is not a Niddah until the birth?

I know that the absence of evidence is not the same as the evidence of absence, but it certainly seems quite plausible.
 
We now need to move on to the next step.  The yoatzot website, after concluding that a woman in labor is indeed a Niddah, stated that the couple are therefore not allowed to have physical contact.  That will be the subject of our next post.

Addendum:

After publishing this post, I thought of a clear proof for my argument above, so I am adding it here.  I argued that "the opening of the womb" as it regards Hilchot Niddah is the time of delivery of the baby, and not the onset of labor pains or bleeding.  It is pretty clear from the Rambam that this is the case.  The Rambam states as follows (my translation):

If the child becomes broken apart (lit. "cut up") inside her womb and delivers piece by piece, whether it comes out in order of the limbs like feet first then thighs etc, or whether it comes out in random order, she is not considered impure as it regards the impurity of a childbearing woman until most of the child has exited her body. once the head comes out, that is considered most of the body....(Rambam Hilchot Issurei Biah 10:6-7)

The Rambam here is stating as clear as day, black on white, that she is not a Niddah until either the baby's head or most of the body has delivered.  It is inconceivable that she hasn't been going through a process of labor prior to the delivery of this baby.  Clearly despite having been in labor for a while, she is still not a Niddah until the delivery.  This is clear proof that the Rishonim understood that "Tumat Leydah" the impurity associated with childbirth, does not begin until after the child is born.  The "opening of the womb", as it seemed clear from the Gemara in Niddah as we argued above, is referring to the actual passage of tissue or the baby.  It is not referring to the onset of labor.