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.

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.