The ethical and religious issues that surround the topic of birth control constitute one of the most controversial areas of modern medical ethics. Specifically, for the halacha observant Jew, the abundance of effective methods of contraception available today present many halachic and hashkafic (ideological) problems. These subject have been given serious consideration by many poskim and leaders of our generation , and they continue to be areas of major concern to every observant couple. Each individual method of birth control must be examined separately according to the specifications of halacha. In this way we can determine whether it is permitted at all, and if so under what circumstances.
One of the most popular methods of birth control in the world for women who desire permanent sterility is the process of tubal ligation, (commonly known as "tying the tubes"). This procedure involves halachic issues that are unique to this method, and this article is devoted to the elucidation of one of them.
First, a few words about the procedure. Worldwide, tubal sterilization is the most commonly chosen form of contraception by women who have completed their desired childbearing. In the United States, it is chosen by more married or formerly married women than any other method.1 Sterilization has enjoyed increasing popularity since the 1950's, primarily owing to technologic advances and increasing social acceptance. Improvements in technique and technology have rendered it a very safe, effective, and cost-efficient outpatient procedure. Tubal ligation now accounts for 10% to 40% of contraceptive methods throughout the world.2
Although there are several methods used in performing this procedure, they are all based on the same principle. In order to understand how it works, let us review the basic anatomy of the female reproductive organs. The female reproductive tract consists of the following major organs:
In theory, if one were to reattach the tubes, the woman would become fertile once again. However, this is not always possible to achieve, and depending on many variables, the reattachment is successful only between 35% and 80% of attempts.3 Therefore, this is considered an option only for a woman who desires permanent sterility, and is not recommended for anyone for whom future childbearing may be an option.
Before we examine the procedure of tubal ligation according to halacha, a short comment on the subject of birth control in general is appropriate. There are many issues involved in this sensitive subject. The mitzvot of pru u'rvu - "be fruitful and multiply" and lashevet yetzara - "to settle the creation" are only two of the many major issues involved. It is well beyond the scope of this article to discuss when it is appropriate for a couple to use birth control or to advise anyone in this delicate area. It should be obvious that these are things which should be considered individually by every couple and their own rabbinic leadership.
In this article we will examine one specific aspect of tubal ligation, whether it is prohibited on the basis of the prohibition against "sirus". Sirus is the talmudic term for sterilization - a process or procedure which causes an animal or human being to become incapable of bearing offspring. For the purposes of this article, we will differentiate between two types of sterilization, "active" and "passive". By active we refer to what the poskim call "sirus al yedei ma'aseh" which is sterilization brought about by the physical mutilation of the reproductive organs that renders the individual infertile. Passive sterilization refers to an act not done directly to the reproductive organs, such as the taking of a medication which accomplishes the same result of infertility. The example most often cited in the Talmud is the drinking of a "kos shel ikarin" a "cup of roots", a medication used in talmudic times to achieve infertility.
The active sterilization of a male human being or animal is a clear Torah prohibition. The verse in Vayikra states, "uve'artzechem lo ta'asu" "in your land you shall not do these things."4 From here we derive the prohibition for causing sterilization to any male, human or animal. The verse in Devarim adds "lo yavo p'tzua daka u'krut shofcha bik'hal Hashem"5 From here we derive that any man who has been actively sterilized may not have sexual relations with a Jewish woman. The Torah explicitly refers only to the male reproductive organs, however. This brings us to ask the following, what then is the law regarding the active sterilization of a female.
There are several sources in Chazal which refer to the sterilization of a female. The first is the Gemara in Shabbat.6 The Gemara there discusses a medication used to cure a certain disease called yerukna. A side effect of this treatment was to cause infertility. The Gemara is concerned that treating a man with this disease should be prohibited because of the prohibition against the sterilization of a male. After attempting several answers to the problem, the Gemara propose that only the treatment of a woman is permissible, for the sterilization of a woman is not prohibited. Therefore, she is allowed to cure herself with this medicine.
The simple reading of the Gemara, and indeed the way the majority of the Rishonim explain this, is that according to the Gemara there is no halachic prohibition against the sterilization of a female.7 However, there are two other places in rabbinic literature where female sterilization is discussed. One is in the Tosefta Makkot,8 and the other is in the Sifra.9 Both sources record a disagreement between the first opinion and R. Yehuda, with some significant variations. In the Sifra, the disagreement is recorded as follows:
Minayin shehanekevot besirus? Talmud lomar ki meshachtam bahem mum bam R' Yehuda omer bahem ein hanekevot besirus.From the Sifra it is clear that according to the first opinion the prohibition of sterilization does apply to females. This apparently contradicts what we have just seen in the Gemara in Shabbat.
"From where do we know that females are included in [the prohibition of] sterilization? The verse states (Vayikra 22:25) "for their corruption is in them, there is a blemish in them." [But] Rabbi Yehuda says, "females are not included in [the prohibition of] sterilization."
The commentaries answer this difficulty in one of three ways. Some explain that the Sifra is referring only to sirus as it pertains to disallowing an animal as a sacrifice (Ritva, S'mag).10 According to them the braitha is not referring to the prohibition of sterilization at all, only that a female animal which has been sterilized would be considered unfit for use as a sacrifice in the Temple. Others explain that our Gemara holds like R. Yehuda, who is of the opinion that there is no prohibition of sterilization for a female (Minchat Chinuch).11 A third view maintains that the Sifra is referring to "sirus bemaaseh" - "active" sterilization - whereas the Gemara only permits the passive sterilization of a female (Shevet Levi).12
In the Tosefta Makkot, the same disagreement is recorded with two significant variations:
Hamesares et ha'adam v'et habehema vechu' bein zcharim u'bein nekevot harai ze chayav R' Yehudah omer hasaras et hazcharim chayav v'et hanekevot patur.
One who sterilizes a human being or an animal...whether male or female, this person is liable [for the punishment of 39 lashes ("makkot") - as it is a Torah prohibition]. Rabbi Yehuda says, one who sterilizes males is liable, one who sterilizes females is exempt. A careful analysis of Rabbi Yehuda's words as recorded in the Tosefta would lead to the conclusion that even according to him there is a prohibition against the sterilization of females. This is because he uses the language "patur" rather than "mutar". This generally means that it is prohibited, usually because of rabbinic decree, but is not liable for punishment with lashes because it is not prohibited by the Torah. Furthermore, it seems that according to the tanna kamma (the first unnamed opinion recorded in the Tosefta) there is a punishment of makkot for one who sterilizes a female, as opposed to the Sifra where it is unclear whether there is such a punishment involved.
This Tosefta is even more difficult to reconcile with the Gemara in Shabbat. It is clearly referring to the prohibition of sirus and not to the eligibility of an animal as a sacrifice, eliminating one of the three interpretations of the Sifra. However, the other two answers that were proposed by the commentaries can still be applied. We can still say that our Gemara holds like R. Yehuda, and although even R. Yehuda admits (according to the Tosefta's version of the disagreement) that there is a rabbinic prohibition against sirus for a female, in the case of an illness where the sterilization is being done for medicinal purposes it would be permitted. We can also still explain that the Sifra is only referring to active, as opposed to passive, sterilization.
With this background, we can examine the words of the Rambam.13 After recording the law regarding sirus for a male, he writes as follows:
"vehamesares et hanekeva bein b'adam bein bishar minim patur", one who sterilizes a female, whether a human being or any other species, is not liable.
The commentaries offer three different explanations of the opinion of the Rambam. The Maggid Mishnah explains that the Rambam follows the opinion of R. Yehuda in the Sifra, and there is no Torah prohibition of sterilization of a female. However, since R. Yehuda uses the language ein hanekeva b'sirus as opposed to the language mutar lesares hanekevot, he must mean that although the female is not included in the Torah's prohibition, a rabbinic prohibition still applies. It is this explanation which is brought by the Beit Yosef, 14 and subsequently in the Shulchan Aruch, where he writes as follows;
"vehamesares et hanekeva bein b'adam bein bishar minim patur aval asur",
"one who sterilizes a female, whether a human being or any other species, is not liable but it is prohibited." 15 The Gra, however, explains that the prohibition against sterilization of a female is actually of Torah origin. 16 He holds that the halacha is actually in accord with the tanna kamma, 17 but there is no punishment of makkot because the prohibition of sterilizing females is not technically included in the prohibition of lo ta'asu chen, rather it is derived from the extra verse, ki meshachtam bahem. Therefore, the Rambam did not write that female sterilization is muttar (permitted), because it is prohibited by the Torah, only not as explicitly as the male prohibition. This is also the Gra's opinion, halacha lema'aseh - that female sterilization is a Torah prohibition.
The third opinion is that of the Bach. 18 He explains that there is no difference in halacha between active and passive sirus. Just as there is no prohibition, neither a rabbinic or a Torah prohibition, against the passive sterilization of females - there is also no prohibition against the active sterilization of a female. As we stated before, there are other reasons why a woman should not use birth control, aside from this issue of sterilization. However, all poskim agree that in cases of need, passive sterilization is permitted, 19 such as in a case where it causes undo pain to the woman to become pregnant.20 Therefore, the Bach holds that the active sterilization of a female would also be permitted under the same set of circumstances.
The Taz offers a similar explanation for this prohibition. He explains that the only prohibition involved in the sterilization of a female is that of making a wound and causing pain. He agrees with the Bach, however, that the prohibition of sterilization, both active an passive, does not apply to females. 21 According to the Taz, even active sterilization would be permitted in cases where there is a constructive purpose, and the pain is minimized. Therefore, according to the Bach and the Taz, the Rambam did not write that it is permitted to sterilize a female, because it can only be done in cases of need, just like passive sterilization.
We have thus identified three basic opinions regarding the prohibition of the active sterilization of females.
1. That it is a prohibition of Torah origin, although there are no makkot - Gra.
2. That it is a prohibition of rabbinic origin - Maggid Mishnah and Shulchan Aruch.
3. That there is no specific prohibition, and it may be done in case of need (according to the same criteria as passive sterilization) - Rishonim on the Gemara Shabbat, Bach and Taz..
The criteria for "need" which would allow the use of passive sterilization (such as with medication) have been discussed by the poskim, and it is not the focus of this article to review the extensive literature on this subject. However, it is clear according to all poskim, that whatever prohibition (the Torah prohibition according to the Gra or the rabbinic prohibition according to the Shulchan Aruch) might apply to active sterilization of the female, it does not apply to passive sterilization. This is clearly the opinion of even the most stringent of the opinions regarding active sterilization. Even the Gra, who holds that the active sterilization of a female is a Torah prohibition, still agrees that there is no specific prohibition for a female to drink a kos shel ikarin.22
Now that we understand how the laws of active and passive sterilization apply to females, we can attempt to apply them to the procedure of tubal ligation. At first glance it would seem obvious that tubal ligation should be subject to the laws of active sterilization. After all, it involves the active mutilation of a reproductive organ resulting in permanent sterilization. This has been the general consensus of the modern poskim. Based on this, most poskim have permitted active sterilization only in extreme circumstances and only when there is no other option for contraception. The reason for the stringency is the opinion of the Gra, and the rationale for the leniency in extreme cases is the opinion of the Rishonim and the Taz.23
However, the only recorded active sterilization of the female in Chazal is called "netilat (chatichat) ha'em".24 The modern correlate of this would be a hysterectomy, when for various reasons, a woman's uterus would be removed. By extension, it has been assumed by most of the poskim that kshirat hachatzotzrot or "tubal ligation" would be considered halachically equivalent to a hysterectomy because it also entails damaging one of the female reproductive organs.25 However there may be reason to suggest that this might not be the case.
The basis of this suggestion is the definition of "evarai zera" or "reproductive organs." Which organs in particular are to be considered part f this prohibition? The specific female reproductive organs that are included in this prohibition are not clearly elucidated in chazal. However, the male reproductive organs are clearly listed in the verse, and discussed by chazal in detail. It would therefore seem logical for us to examine the laws of male sterilization to find the guidelines for what should and what should not be considered a reproductive organ.
Before we enter this discussion it is important to review the basic anatomy of the male reproductive organs. They consist of the following:
1. testis (left and right) - in which the sperm are produced.
2. epididymus (left and right) - small pathways in which the sperm mature, leads to the vas deferens.
3. vas (ductus) deferens (left and right) - transport the sperm from testis to the urethra.
4. prostate - produces secretions that make up some of the semen, vas deferens runs through it.
5. urethra - the secretions of the glands and the sperm from the vas deferens mix and are ejaculated through urethra into the female reproductive tract.
The Rambam describes three organs that are halachically considered the male reproductive organs.26 Damage to one of these three would render an individual a patzua daka (one who would be prohibited from having sexual relations, if done intentionally - and the act of damage would be prohibited as an active sterilization of a male). In the Rambam's words:
Shlosha eivarin efshar sheyolid hazachar b'gid u'babeitzim u'bshvilin shebahen titbashel shichvat zera v'hen hanikra'in chutei beitzim v'keivan sheniftza b'echad mishlosha eivarim elu oh nichrat oh nidach harai ze pasul.
...and with three organs it is possible for a man to fertilize, the penis, the testicles and the pathways within which the semen becomes matured, [theses pathways] are what are called the "strings of the testicles" and if any one of these three organs is either cut or crushed this person becomes unfit [for sexual relations]:
the meaning of the phrase "chutei beitzim" - "strings of the testicles" is defined by the poskim. Rashi describes them as, "v'chutei beitzim shehabeitzim tluyin bahen b'toch hakis" - "the strings of the scrotum". 27 From the words "within the scrotum" it would seem that only the portions of the "strings" that are contained within the scrotum are included in the prohibition of sirus. This would lead one to conclude that if one were to cut the portions of the vas deferens that traverse the body outside of the scrotum, which are not considered reproductive organs halachically, it therefore would not render one a patzua daka.
The Chazon Ish uses this principle to issue a very important halachic decision. He was asked regarding a man who had undergone prostate surgery. During the course of surgery, the vas deferens, (the tube which transports the sperm from the testes, through the prostate gland and out through the urethra) was damaged or cut. The man thus became infertile. The question was, does this render him a patzua daka, i.e. can he now have sexual relations with his wife? The following are the words of the Chazon Ish: 28
V'hine kefi hayadua al pi harofim hashvilin nichnasin leomek b'guf v'ovrin kmo chatzi keshet ad shenichnasin l'gid v'ovrin serech hagid v'zormin lachutz, umidla huzkeru bagmara ubaposkim mashma d'bimkom shehashvilin bifnim einam bichlal patzua daka v'eino nifsal ela im niftzah v'nidach b'gid u'beitzim v'chutin shebahem, aval lo hachutim hapnimiyim shebeemtza haguf, v'af im mistares al yedei kritat hashvilim b'toch haguf m"m eino ne'esar bakahal v'dino kishar akar uch'saris chama v'chu' v'a"d hanituach b'choli atzirat hasheten a"y stimat shvil hasheten haba m'nfichat habasar hayadua [the prostate] v'lochetz al tzinor hasheten v'sotmo, ubishat nituach muchrachim gam shvil hashichvat zera hamuvla baguf, lmsh"k ein bazeh isur sirus deoraita rak derabanan kmo shtiyat kos ikarin, uv'chol ofen hanituach mutar mishum safek sakana, v'eino neesar lavo b'kahal.
...and behold, as it is known from the doctors that the pathways go deep into the body and they pass like half a bow [an archway] until they enter the penis and they pass through the penis and they spill [their contents] outside, and since they are not mentioned in the Gemara or the poskim, it seems that in the area where the pathways are within [the body] they are not included in [the laws of] petzua daka and one does not become invalidated [if they are damaged] unless they are ruptured or crushed within the penis or the testicles and the strings within them, but not the inner strings which are inside the body. And even if he becomes infertile by the cutting of the pathways within the body, nevertheless he is still not prohibited from sexual relations and his status is equal to that of any other infertile man or "sris chamah" [one who becomes infertile as a result of illness] and in the course of the operation when one has urinary blockage due to blockage of the urethra which comes from the hypertrophy of the "known flesh" [the prostate gland] and it puts pressure on the urethra and closes it and during the operation they are forced [to cut] also the pathway of semen which is within the body, according to what we have written this does not involve a sterilization which would be prohibited by Torah law only by a rabbinic law, similar to the drinking of a cup of roots. Anyway [even if it were prohibited by Torah law], the operation would be permitted because of possible life - threatening danger, and he would not become prohibited from sexual relation...
The Chazon Ish thus establishes a basic principle in the halachic definition of a reproductive organ in the male. Only those portions of the chutei hazera which are "outside the body" (i.e. in the scrotum) are considered evrei zera. Those portions contained within the body are not considered evrei zera. Therefore, an operation performed on the prostate gland, through which runs the ductus deferens, would not be prohibited on the grounds of the sirus prohibition, nor would he be prohibited to have sexual relations on the basis of the rules of patzua daka. Rather it would be similar to a man drinking a potion that makes him infertile, something which the majority of poskim (including the Chazon Ish himself) hold is a rabbinic prohibition.29 Therefore, it would be permissible in a case of danger, even if it may not be life threatening.
The modern poskim have overwhelmingly accept the interpretation of the Chazon Ish. R. Moshe Feinstein, R. Eliezer Waldenberg, and R. Yitzchok Yaakov Weiss have all written responsa that use the Chazon Ish as their rationale for permitting a man who underwent prostate surgery to have sexual relations with his wife.30
Interestingly, the Chelkat Yaakov also came to the same conclusion as the Chazon Ish, albeit from a slightly different angle.31 He was asked the same question regarding a man who underwent prostate surgery. His major point is that the Rambam also agrees with Rashi's principle that only those portions of the vas deferens that are contained within the scrotum are considered reproductive organs. This is why the Rambam uses the language "the pathways within which the sperm matures." This indicates that the difference between the two portions of the vas deferens is a functional one, i.e. that only within the scrotum does the sperm mature. However, outside of the scrotum the vas is only a conduit for the sperm, which is why it is not considered a reproductive organ that wold render someone a patzua daka.
He quotes a physician who demonstrated that a woman can become pregnant from sperm extracted from the epididymus which had never traversed through the vas deferens. The epididymus, within which sperm maturation occurs, consists of tiny ducts that lead from the testes into the vas deferens, and it is contained within the scrotum. The exact boundary where the epididymus ends and the vas deferens begins is not clearly delineated (see note 35).
Based on this principle, he equates the damage of the vas deferens outside the scrotum to the damage of any other organ that may cause infertility in the male, such as spinal cord or brain injury. Although such an action would be prohibited due to the general prohibition of passive sirus (for a male even passive sterilization through medication is prohibited), no one would suggest that they would be considered an active sirus causing someone to become a patzua daka. In the same way, we should consider damage to the vas deferens outside the scrotum as if it were any other nonreproductive organ that indirectly causes one to become infertile.
Let us now attempt to apply these rules to the female reproductive organs. It is logical to assume that the same rules used to identify the male reproductive organs should be applied to the female organs. It is also important to remind ourselves of the relative strengths of the prohibitions of sirus for a male vs. a female. We recall that according to many poskim, there is no prohibition of female sterilization per se, and according to others it is only a rabbinic prohibition, whereas for a male it is of Torah origin. Even according to the most stringent opinion, that of the Gra, who holds that for a female it is of Torah origin - it is still not quite as strict as by the male where it carries the punishment of makkot. From this one is forced to conclude that we certainly cannot give the female a more strict definition of "reproductive organ" than the definition we use for the male.
In the male, we make the anatomical distinction between those organs that are "betoch hakis", within the scrotum, and those that are "betoch haguf", within the body. In the female, we obviously cannot make this distinction, because all of her reproductive organs are within the body. However, if we compare the functional aspects of the male organs to the female organs, we have a lot to learn. The first major lesson is that we cannot simply assume that all organs that somehow are involved in making someone fertile are necessarily considered "reproductive organs". As we have clearly seen, even organs through which the sperm actually travel are not halachically considered reproductive organs (such as the brain or spinal cord), which may in some way be related to male fertility. Therefore, when we define the prohibition of sterilization of a female we should also assume that only those organs which are directly involved in the creation of viable zera and in its maturation into a viable fetus are considered evrei hazera. (Bearing in mind our previous organs are included in this prohibition.)
If this is true, we can make an interesting conclusion. There is a strong similarity between the functions of the vas deferens and the Fallopian tubes. The testis in the male is the male gonad, i.e. it produces the sperm. It matures in the epididymus, and then is transported through the ductus deferens. The ductus is halachically not considered a reproductive organ, because it only functions as a conduit for the sperm. In the female, the ovaries are the gonads, i.e. they store and mature the ovum ("egg"). The ovum is then taken by the fimbria, becomes fertilized by the sperm in the ampulla of the Fallopian tube, and generally remains there for several days. It is then transported through the Fallopian tubes to the uterus for implantation.33 Although the actual fertilization - the meeting of the sperm and the ovum - usually happens in the tubes themselves, it can happen outside of the tubes. It can occur within the uterus itself, or even in a test tube.34 If the halacha of sirus does not apply to the tubes in the male,35 then how can we say that it would apply to the tubes of a female? We certainly cannot be more stringent in the female than in the male!36
Let me emphasize that although it is not considered sirus in the male to cut the ductus deferens within the body, it is still prohibited because of the rabbinic prohibition against passive sterilization of a female, would also apply to a tubal sterilization however, as we have stated, the prohibition of active sterilization would not be an issue.
Some poskim have suggested that tubal ligation might be permitted on different grounds, because it is a reversible procedure.37 These poskim have generally relied upon this rationale only in cases of extreme need. This reasoning is problematic for two reasons. First of all, it is not clear that this can be considered a reversible procedure. Medical estimates are, that in the best of circumstance, there is only an 80% chance of a successful reversal. Most estimates, however, are lower than that.38 It is therefore only considered as an option for someone who desires permanent sterilization.
The second problem with this heter is that many poskim hold that even if it were 100% reversible, it still would be considered sirus.39 Their reasoning is that since it would require another operation to repair the tubes, and without another operation the individual is permanent sirus. Only if it would heal on its own would it be considered a temporary sirus according to these poskim.
1. American College of Obstetricians and Gynecologists Technical Bulletin "Sterilization" Washington D.C. Committee on Technical Bulletins: The American College of OB/Gyne, no. 222 1996
2. Hulka JF. Phillips JM, Peterson HB, et at: "Laparoscopic sterilization: American Association of Gynecologic Laparoscopist 1993 membership survey." J Am Assoc Gynecol Laparoscop 2:137, 1995.
3. Kistner's Gynecology and Women's Health, 7th edition, Mosby, Inc. 1999 p. 344 "The 1-year comulative pregnancy rates reported after tubal ligation reversal range from 35% to 80% (Boeckx et al, 1986; Henderson, 1984; Rock et al, 1987; Hulka and Halme, 1988)."
4. Vayikra 22:24.
5. Devarim 23:2.
6. Shabbat 110b-111a.
7. See Rashi s.v. ela b'isha. Sh'eina metzuva b'priah u'rviah ked'amri b'Yevamot pru u'rvu umilu et ha'aretz v'kivshua ish darko lichbosh v'ein darka shel isha lichbosh, and Tosafot s.v. b'zkena ub'akara. Be'isha nami lo shayach ba mesares achar mesares d'ein shayach ba sirus: and see also Rashba b'zkena i"n akara, klomar d'leicha mishum bitul priya urviya umishum sirus nami licha db'isha licha mishum sirus d'adam hu asar Rachmana: see also Ramban nicha le le'ashkuchei beshriyuta, ubmaskana okimana b'isha zkena i"n akara v'al af pi sheyesh ba tosefet sirus shehi mitztanenet v'eina nizkeket shuv lba'al afilu hachi b'isha shari she'ein ba din sirus, see also Ritba, Chidushei HaRaN beshem haroeh, hameiri ubilshon haTur.
8. Tosefta Makkot 4; Braitha 4
9. Torat Kohanim Parasha 7, Braitha 12.
10. Ritba Shabbat 110b, SM"G Mitzvot Lo Ta'aseh
11. Minchat Chinuch, Mitzva 291 ot 9, beuro leshitat HaRambam v'HaMagid Mishneh
12. See Perush HaRa"SH Meshantz and Perush haRa'abad al HaSifra and Shu"t Shevet Levi
6:206 Beuro beshitat haGra.
13. Rambam Hilchot Isurei Bi'ah perek 16, halacha 11.
14. The Beit Yosef apparently explains that the Gemara rules like Rabbi Yehuda, and that the version of the Tosefta was correct in that Rabbi Yehuda holds that there is a rabbinic prohibition. He would thus answer the contradiction between the Gemara and the Tosefta. See note 11.
15. Shulchan Aruch, Even HaEzer 5:11.
16. Gra, Even HaEzer siman 5 sif katan 25.
17. The Gra apparently explains that the Gemara is only referring to passive sterilization, thus
there is no contradiction between the Gemara and the Sifra and Tosefta. See note 12.
18. Bach, Even HaEzer siman 5 s.v. ve'isha.
19. It is important to note that the "need" required to permit passive sterilization is much less stringent than the need required to permit active sterilization, according to the Gra and the Shulchan Aruch. If there is a prohibition - even if it is a rabbinic prohibition - the criteria for permission are much more severe. Especially if it is a Torah prohibition, when only a life and death situation would be sufficient.
20. Yevamot 65b - ma'aseh bebito shel Rabbi Chiya. Ibid.
21. The Bach and the Taz apparently hold that the Sifra had the correct version of Rabbi Yehuda's opinion, and there is no rabbinic prohibition. The Gemara in Shabbat therefore must hold like Rabbi Yehuda. Or alternatively, they could hold like the Ritva and S'mag who explain that Rabbi Yehuda and the tanna kamma only argue in reference to the laws of sacrifice, and there is no prohibition even according to the tanna kamma. This seems to be the opinion of most of the Rishonim who explain the Gemara in Shabbat, that there is no prohibition of sirus, and they must use one of the two above explanations. See note 7.
22. Gra, Even HaEzer 5 sif katan 27.
23. Iggerot Moshe Even HaEzer 1:13, Even HaEzer 4:33-35, Sridei Esh Even HaEzer 70.
Tzitz Eliezer 14:96, 15:41.
24. See Sanhedrin 33a ma'aseh b'para (shel bet Menachem) shenitla ha'em shela v'he'echila
Rabbi Tarfon laklavim uva ma'aseh lifnei chachamim b'Yavneh v'hitiruah sh'amar todot harofe ein para v'chazira yotzet meAlexandria shel Mitzrayim ela im ken chotchin ha'em shela kdei shelo teled, also Sanhedrin 93b and Bechorot 28b.
25. Tzitz Eliezer ibid. Iggerot Moshe Even HaEzer 4:32 but see also "Hadarom" 51 p. 55,
shekatav harav Nachum Rabinowitz sheyesh lomar derak netilat ha'em havei sirus benekeva v'lo kshirat chatzotzrot.
26. Rambam, Hilchot Issurei Bi'ah 16:2.
27. Yevamot 75b s.v. bechulan.
28. Even HaEzer 12:7.
29. Shulchan Aruch Even HaEzer 5:12.
30. Iggerot Moshe Even HaEzer 4:28-9; Tzitz Eliezer 10:25 perek 24; Minchat Yitzchak 5:12.
31. Chelkat Yaakov 2:22.
32. Interestingly, in an addendum to the responsum, the Chelkat Yaakov mentions that someone showed him the Chazon Ish and he writes, "vesamachti meod..., shtli"t, shekivanti besheela chamura halazo, ledaato hagdola v'haemet".
33. See Rambam Hilchot Issurei bi'ah 5:4, where he seems to refer to the Fallopian tubes as "Hashvilin shebahem mitbashelet shichvat zera shela". This would lead one to conclude that the tubes in the woman actually are considered reproductive organs, and that they therefore would also be considered sirus in the female if damaged. However, it is unclear what the Rambam is really referring to, because he continues by saying that there is a nekev patuach from the area where the tubes are located (the "alia") and that this is called the "lul" and that the penis actually penetrates this hole during marital relations. It is clear that this cannot refer to the hole which opens from the tubes to the uterus, because the penis doesn't go anywhere near the inside of the uterus during sexual intercourse. See Nishmat Avraham Even HaEzer Hakdama lehilchot nidah for a full discussion of chazal's understanding of the female anatomy. However, by the male, it is clear that the poskim are referring to the tubes contained within the scrotum, and it is clear that the Rambam held that there was a functional difference between the tubes within the scrotum and the tubes within the body. Further more, even if we assume that the Rambam really is referring to what we now call the Fallopian tubes, and he really would have considered it sirus to cut them because they are mevashel shichvat zera shela, we should remember that sirus is only a rabbinic prohibition by a woman, and the Rambam was basing this psak - that the tubes are evrei zera - on his own scientific understanding that these are the place where the "seed of the woman" matures (indeed, see the Magid Mishneh on this Rambam where he explains the source for this "...verabeinu be'er tchunatan kefi beki'uto b'chochmot hanituach ayen sham s.v. mashal mishelo etc.") There is no source in chazal (other than the Rambam) that identifies this as the purpose of the Shvilin. In fact, there is no source in chazal that even mentions the existence of these shvilin. The braitha which we previously brought from the Tosefta and the Sifra, do not define exactly what constitutes sirus for females. Therefore, if we now know that this is not the purpose of the tubes, we can say that the Rambam was making an erroneous assumption based on the scientific knowledge of the time, not based on the rabbinic tradition. The question then becomes, are we obligated to be strict on an issur d'rabbanan based on the Rambam's understanding of anatomy?
34. Although it is true that the ampullary region of the Fallopian tubes secretes various substances which create an environment that is conductive to fertilization of the ovum and important for the development of the embryo's first few days before implantation, recent research has shown that the Fallopian tubes are not absolutely essential organs for the woman to become pregnant, even without in vitro fertilization. In the May 1998 issue of Acta Obstetricia et Gynecologica Scandanavica, pp. 475-86, in an article entitled "Have the Fallopian Tubes a Vital Role in Promoting Fertility", Dr. RH Hunter brings four lines of evidence to demonstrate that "...the fallopian tubes make no overwhelming contribution to human reproduction other than as a conduit for gametes and embryos." Three of these pieces of evidence are 1) When a woman's tubes are for some reason non-functional, doctors can, in an operation known as "Estes' operation" place the ovaries within the uterus itself, and successful pregnancy can be achieved, without any Fallopian tubes! 2) Early embryos transplanted after in vitro fertilization can successfully implant in the uterus without ever being exposed to the special environment of the Fallopian tube! 3) The transfer of ova and spermatozoa directly into the uterus can achieve pregnancy, and fertilization occurs within the uterus and not within the ampullary region of the Fallopian tubes!
35. It is true that according to Rashi the portion of the vas deferens within the scrotum would be considered a biblical sirus, even though it is also only a conduit. This might lead one to prove that even conduits are considered evrei zera. However, the junction between the epididymus and vas deferens is gradual, and it would be difficult to say that only the epididymus is sirus and not the vas. It is much easier to draw the line at the scrotum, which is an obvious point. To quote from Campbell's Urology 1998, p. 1269 "in the bulky cauda epididymidis, the diameter of the duct enlarges substantially, and the lumen acquires an irregular shape. Progressing distally, the duct gradually assumes the characteristic appearance of the ductus deferens." In addition, it is unclear where sperm maturation ends, and it is entirely possible that it continues in the beginning of the vas, again from Campbell's, p. 1280, "In an attempt to explain successful pregnancies achieved after high epididymovasostomy or efferent, Bedford (1994) suggested that the absorptive and secretory functions of the vas deferens may create a luminary environment capable of supporting the maturation of sperm fertility. Unfortunately, we were unable to find experimental results in the human that would confirm a secretory function in the vas deferens or support the idea of sperm maturation within the vas deferens."
36. Only according to the Gra, one might argue that since it is a Torah prohibition, that we should be more stringent, and consider this a case of doubt, i.e. are the tubes reproductive organs? This may then cause us to consider this a safek d'oraitha which would force us to be more stringent. However, the majority of poskim do not hold this way, see Iggerot Moshe Even HaEzer 4:34.
37. Tzitz Eliezer 14:96; Minchat Yitzchak 3:26 ot 1, 4:120.
38. See note 3.
39. Iggerot Moshe Even HaEzer 32, Shevet Halevi 3:164.