It is a sad truth that living an observant religious life in the modern

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1 Alfred Cohen Rabbi Alfred Cohen is rabbi of Congregation Ohaiv Yisroel in Monsey, NY, a Rebbe at Yeshiva University High School for Boys, and editor of The Journal of Halacha and Contemporary Society. MARRIED WITH AIDS It is a sad truth that living an observant religious life in the modern era does not guarantee a barrier between the ills of modern society and the practicing Jew. One of the most virulent diseases of our age is AIDS, and, unfortunately, there are Jews who suffer from this malady, whether via the mishap of a blood transfusion or some other vehicle of transmission. Aside from the multiple health problems facing a person with AIDS, there is an additional challenge for a married Jewish couple when one of the partners has AIDS, going to the very heart of the marital situation. Does halakha sanction their living together as a married couple? What are the halakhic challenges which exist, and how have rabbinic authorities dealt with these problems? WHY NOT? It may come as a surprise to some that there may be impediments to a person with AIDS getting married or even staying married, yet the reality is that some serious halakhic issues do need to be addressed. Some of these issues are so serious that there are eminent poskim who maintain that a person with AIDS is not allowed to get married, and if already married, should divorce the spouse. Therefore, if one of them is afflicted, there is no alternative other than divorce. 1 At the outset, therefore, let us enumerate some of the halakhic questions which need to be explored. 1. In 1989, 100% of those infected with AIDS died in a relatively short time. By now, that statistic has changed dramatically; nevertheless, many still die, although not as quickly, and controlling the disease is not an easy undertaking. Improvement in the prognosis continues apace, but HIV remains a very serious disease. That means that someone who has the virus and acts in a way that may transmit it to another person, is considered in Jewish law as a rodef, a pursuer. 2 If one of the partners is 19 TRADITION 40:3 / 2007 Rabbinical Council of America

2 TRADITION infected with AIDS, there is a very high probability that the disease will be transmitted to the other partner in the course of marital relations. The primary question to be resolved here is obvious is it permitted for a person with AIDS to enter or remain in a marriage which might lead to another person s death, or at least severe debilitation? 3 2. The current medical advice is that the man should use protection during sexual relations, which will drastically reduce the probability of contagion. 4 However, this medical solution raises a further halakhic concern: If a man uses a condom in such a situation, 5 is it considered zera levattala ( wasting seed ), which is a very serious religious infraction? 3. Can the couple opt not to use protection and to risk bearing children? This question really encompasses two halakhic issues: May the woman make the choice to get infected, which is likely if they avoid use of protection? (Even if both partners are infected, the medical advice remains to use precautions during sexual activity because one of the couple may have a different or stronger strain of the HIV and make the other partner even sicker.) 6 May a couple make the choice to have children who are likely to be born with the disease? 7 (Whether a couple can decide to have a child despite the likelihood that there will only be one parent surviving to raise that child is a question that is well beyond the scope of this article.) ZERA LE-VATTALA DEFINED The sin of emitting sperm le-vattala, in vain, is an egregious one, as attested by the biblical story concerning Er and Onan, the two sons of Yehudah, who incurred immediate death for their deliberate wasting of seed (Bereishit 38:9, 10).The Gemara writes that whoever emits zera le-vattala is liable to the death penalty, (Niddah 13a ) and the prohibition is codified in Shulhan Arukh, which adds, and this sin is more severe than all the sins in the Torah. 8 However, in his commentary, the Rama notes but it is permissible to have relations with a ketana (a female too young to have children) and an eylonit (a woman incapable of bearing children) since he is having relations in the normal manner (ke-derekh kol ha-arets). 9 In halakhic terms, this comment bears pivotal importance, for here a leading posek has taken the position that to have sexual relations without the goal of conceiving a child, as long as this occurs in the normal manner, is not considered a waste. Absent this proviso, however, the man commits the sin of zera le-vattala. 20

3 Alfred Cohen It is clearly necessary to delineate precisely what is meant by le-vattala and define when sperm is considered to have been wasted. As an example of the need for clarification, a woman who is pregnant is certainly allowed to engage in marital intimacy with her husband, even though there is virtually no chance that his seed will make her pregnant. The same is true of a woman past menopause. So how does the halakha define wasted? Furthermore, what is encompassed in halakha by the term ke-derekh kol ha-arets (normal sexual relations)? Defining zera le-vattala in halakha is a topic which has been addressed by a number of poskim, in a variety of contexts. To give just one example of when this question arises, there is the situation where a woman has a condition which might cause sickness or death if she were to become pregnant. The question arises: may she practice birth control (another generally proscribed activity), or must she and her husband divorce? Based on the episode of Er and Onan who died for their sin, which is described as shihet artsa ( he destroyed his seed to the ground ), some wish to define the sin of zera le-vattala as emitting sperm which does not enter the body of the female. 10 Others define zera le-vattala as sperm which enters a female who cannot become pregnant because there is a barrier preventing the sperm from reaching its usual destination. 11 The question of whether a man with AIDS can use a condom is thus an outgrowth of the general halakhic question concerning zera levattala. R. Hayyim Ozer Grodzinski apparently does accept that use of a condom qualifies as normal relations. 12 R. Moshe Feinstein, in Iggerot Moshe, however, rules that this is not considered derekh tashmish (normal sexual relations) since sperm is prevented from entering the female s body. 13 However, there are circumstances when he is prepared to be lenient, inasmuch as he defines zera le-vattala as meaning sperm being released for no reason. 14 But in a situation where a man, who has a marital obligation to his wife (the mitzvah of onah), has to be careful that she doesn t become pregnant in such cases as danger to her from pregnancy he may use protection if no other more acceptable method of contraception is feasible. In this circumstance, the Iggerot Moshe permits it even if this renders the marital act as not derekh tashmish ( in the normal manner ). 15 In the view of R. Hayyim Ozer, the condom is permissible according to all opinions in situations of great need, but R Moshe is not willing to be lenient in so many cases. 21

4 TRADITION The lack of agreement among Rabbinic scholars as to the definition of the two terms we have mentioned, zera le-vattala and ke-derekh kol ha-arets accounts for the disparity in their rulings. 16 In conclusion, we may say that there is an ongoing difference of opinion whether a condom is considered zera le-vattala or not, particularly when the man is sterile. 17 MARRIAGE? One might think that perhaps a man with AIDS should not get married at all, so as not to violate the prohibition of zera le-vattala, but it turns out that this option is also problematic, inasmuch as it puts him in violation of the mitsva to have children and also potentially involves violation of other issurim. 18 Perhaps the words of Sefer Hassidim are prescient: If one fears that he may sin with another man s wife or with a niddah, has ve-shalom, it is preferable for him to emit wasted sperm (zera levattala) rather than, has ve-shalom, to transgress [these prohibitions], but he should [thereafter] fast forty days during the summertime.... Based on the reality that a man with AIDS has very few options, however, there are poskim who are prepared to be lenient about his protection so that he may safely engage in marital relations, based on the permissive opinions we have cited earlier. On the other hand, R. Shlomo Zalman Auerbach strongly disallows use of the condom when either of the partners has AIDS, and says simply that they should divorce. He writes: As for using a condom for a man with AIDS, it is considered close to zera le-vattala, and it is forbidden whether he or she [is stricken]. And it is not comparable at all to forms of contraception permitted when there is need. Therefore, when one of them is stricken, there is no alternative other than divorce. 19 HAVING DISABLED CHILDREN What about a couple with AIDS deciding to have children, despite the strong possibility that their children will become infected? Are there halakhic impediments to this option? The basic question is whether one should be concerned about perpetuating a sickness by passing it on to offspring, or whether one should have children without giving thought to this issue. A perusal of Rabbinic literature reveals a broad range of responses to this dilemma. 22

5 Alfred Cohen The Shulhan Arukh advises a person not to marry a girl from a family which is prone to leprosy (for fear that his children will also be stricken). 20 On the other hand, when King Hizkiyahu did not want to get married at all because he foresaw that his son would be wicked, he was chastised by the Prophet Yeshayahu: Why are you involved in matters which properly belong to God? (Berakhot 10a) Here are two conflicting precedents regarding whether a person should be concerned about the kind of children he will have, and many more can be cited: R. Shlomo Zalman Auerbach was asked whether a hemophiliac could marry a woman who is unable to bear children. On the one hand, that would stop his sickness from being passed on; on the other hand, he would not fulfill the very important imperative to father children. R. Auerbach writes that he was unable to resolve the question, for he is in doubt (mesupkani) about someone who has this condition having children, since his offspring will be in pain all their lives. 21 Perhaps there is no mitsva to have children who would suffer this disability or perhaps no person is entitled to enter into calculations about the future which are only the province of the Ribono shel Olam. He felt he could not decide. R. Moshe Feinstein was asked for guidance in a case involving a woman who had already borne two healthy children as well as two sick ones. She was told by a doctor there was a high probability that future children would be similarly affected (the condition was presumably like Tay-Sachs, since the children did not live longer than two years). R. Moshe responded that it was surely forbidden for her to practice birth control inasmuch there was no element of danger to her. Furthermore, even though the children may indeed die young, it is still better than not having been born at all, since all who are born attain life in the World to Come In another case, where a woman had given birth to two children with problems (baalei mumin), R. Moshe would not sanction her having her tubes tied, although he did allow her to use a diaphragm. 23 R. Waldenberg, however, takes a stricter approach: even if the doctors predict that there is 50% chance of her having more handicapped children, he does not counsel birth control, but rather divorce. 24 In another case, R. Moshe Feinstein writes to a man who is too sick to raise children, that it is forbidden for him to get married with the intention of using birth control, inasmuch as the only heter to prevent conception is when there is an element of danger in having children. Since this is not the case here, R. Moshe advises him to marry a post-menopausal woman so that he will not have to resort to birth control. 25 A different approach, 23

6 TRADITION however, is evidenced in a case where both parents would be too traumatized to take care of a disabled child and are distraught at the thought of divorce, R. Shlomo Zalman Auerbach permits her to use a diaphragm if the pain is... very great for both of them. 26 Iggerot Moshe discusses the case of a young man who has a serious disease, for which he has already had to undergo surgery, and has lost the vision in one eye. There is a good chance that any children he has will be similarly afflicted. Nevertheless, R. Moshe tells the man that he is not only permitted but even required to get married and have children. He advises him to pray for their welfare; even if they are sick, he will have fulfilled the mitsva of having children. 27 R. Zilberstein advises two young people who had planned to marry, but upon being tested found out that they both had a defective gene, that the best advice for them is not to get married to each other. Moreover, if they are already married, he advises them to divorce. However, if they don t want to do that, it seems to him they must have children. 28 A married couple had five children, but the youngest was born with a sickness. The doctors felt that the child would benefit greatly from specialized attention, but the parents did not have the money to hire help so that the mother could devote her energies to the sick child (or the help would take care of the sick child and she would tend to the healthy ones). Minhat Yitzhak, who was asked what they might be permitted to do, writes that there is no permit for them to practice birth control [even] because of the burden of raising their children or because of the [financial] needs of the home, because of lack of trust [in God] for their income. All the above would seem to indicate very strongly that in a situation of a married couple where one has AIDS, halakha seems to leave little room if any for them to employ measures to prevent having children. Perhaps it is for this reason that some authorities advise them to divorce, since their children would likely become infected as well. However, inasmuch as the prognosis for AIDS has greatly improved in the past few years, and since medical knowledge now can often prevent a child s contracting the disease, it is possible that these opinions would be modified in the present climate. 29 DIVORCE OPTIONAL OR MANDATORY? The Shulhan Arukh Even ha-ezer 154 indicates that there are times when the Beit Din could force a man to divorce his wife, one of them 24

7 Alfred Cohen being if he became afflicted with boils. The Gemara has ruled, Even if she wants to live with him, they [Beit Din] are not to listen to her but must separate them against their will because by cohabiting with him [she can cause his condition to get worse and he could die]; but if she says I will stay with him with witnesses so that he cannot approach me [sexually], we listen to her. 30 This seems to be virtually the same situation as a man with AIDS theoretically, he should be forced to divorce her, since he endangers her life every time he lives with her. However, if she avers, I m prepared to take my chances; I love him and know he won t be able to find someone else to marry, so I ll stay with him and take a chance, should he still be forced to divorce her? As we have seen earlier, the transmission of AIDS from an infected person to his partner has a very high degree of probability. Is she permitted to take this risk? After all, there is a positive commandment in the Torah, ve-nishmartem me od le-nafshoteikhem, which obligates every Jew to guard his/her health carefully and not do anything to endanger it. The Shulhan Arukh, Even ha-ezer 154 seems to indicate that the couple has no option other than divorce. Although there are times when a person can risk his life to save another, that is only if there is a risk but not near certainty of death involved in the attempt. However, for a married couple, her danger arises each time they engage in marital relations. Furthermore, in the case of a sinking ship, the outsiders looking on can objectively gauge the viability of a rescue effort, but in a marital relationship, the emotional factor is so great, it may well overcome rational behavior. There is a Talmudic text in the name of R. Meir, which mandates that three situations warrant a woman s use of a type of birth control 31 (mokh): danger to herself (a young girl), or to her fetus (if she is already pregnant), or to her infant (if she is nursing). However, the other rabbis said these three are permitted to engage in customary marital relations without precautions, because God watches over the simple, shomer peta im Hashem (Yevamot 12b). However, it is highly questionable whether the danger to these three women which is remote is analogous to the danger faced by a marital partner of an AIDS sufferer. Nevertheless, there are those who maintain that if it is possible to greatly reduce the danger to the partner as we have discussed herein, one should try to do so. Although this is the logic of Iggerot Moshe and Ahiezer (R. Hayyim Ozer Grodzinski), as we have seen, other poskim do not agree

8 TRADITION OTHER ISSUES At the very least, the infected person must inform the prospective partner that he/she has the disease. But here there are other restrictions to be considered. It is the position of Hafets Hayyim, 33 based on Sefer Hassidim, 34 that a person contemplating a shiddukh is required to tell the person of any blemish or disease which, if the other knew about, would dissuade him from embarking on the shiddukh in the first place. On the other hand, there is an episode related in the Gemara, involving R. Yohanan, who is considered one of the greatest Amoraim. R. Yohanan advised a person of questionable yihus (family origin) to move to a town where no one knew him, as he would find it easier to get married there (because people would not think to ask him about his family background) (Yevamot 45a). Now, this is quite a startling position for a leading rabbi to have taken, seemingly advising someone how to fool others [!], and various scholars have offered rationales. Mekor ha-hesed 35 distinguishes between a blemish which is a flaw in the person s physical makeup which may not be apparent, and a blemish in the person s halakhic status, which might make the prospective spouse not want to marry the other. His resolution of the difficulty in the Talmudic text is not acceptable to all, since it is difficult to justify the distinction between kinds of blemish. 36 R. Waldenberg is reported as opining that the Talmudic text in Yevamot should have indicated that the blemish in the man who was told to go elsewhere was one which, if the girl found out, she would not be happy about; however, she might agree to marry him nevertheless. 37 This opinion, however, hardly seems to be comparable to a person with AIDS getting married, for no reasonable person would be likely to want to enter into a marital relationship with a person so afflicted. Consequently, not only is the AIDS-infected person required to tell a prospective partner, but even others who know must tell. 38 HE IS WORTHY OF BEING RELIED UPON IN A PRESSING SITUATION It is somewhat surprising to observe that many poskim are not prepared to allow an AIDS couple to use a condom, despite the written opinions of respected poskim who do permit use of the device at times. Why do the poskim who disallow it not rely on the principle He is worthy of 26

9 Alfred Cohen being relied upon in a pressing situation? 39 R. Waldenberg, for one, permitted use of a condom for a woman who had a painful (allergic?) reaction to her husband s sperm. There is no mention in this responsum if the man had already fulfilled the mitsva of fathering children, nor does he in any way recommend a divorce. 40 But we do not find others citing his ruling, despite his preeminence as a posek. Even if his opinion is in the minority, one would think that in extreme circumstances it could be relied upon? The Gemara itself is prepared to rely on a minority opinion when it is found to be very necessary. In Niddah 9b, for example, it says that R. Shimon is worthy to be relied upon in a pressing situation, and there are times when poskim do employ this rationale as a last resort. CONCLUSION In this study we have tried to outline briefly problems which a person with AIDS may face when contemplating marriage, and the positions taken by poskim on these very serious issues. In general, we find a delicate balance between compassion for individuals afflicted with the virus and the requirement that their rulings be true to the halakha. It is my hope that this article is helpful in elucidating that tension and resolution. NOTES 1. Minhat Shlomo III 103:1. This will be discussed more fully hereinafter. 2. Within five years of living with an AIDS-infected spouse, 66% of the partners were similarly infected. Seventh Conference on Retroviruses and Opportunistic Infections, February 1, extra_html/meds_trans_bits.html. A rodef is defined as someone who is pursuing another person with the intention of killing him. In Jewish law, anyone who is able to save the victim is obligated to intervene, even it if means killing the rodef. 3. R. Yitzchak Breitowitz offers his opinion on a number of questions relating to a person with AIDS, both from a philosophical and religious point of view, in his article in the Journal of Jewish Law, December 5, 2005: AIDS: A Jewish Perspective. I thank R. Shalom Carmy for bringing this article to my attention. 4. The latest statistics indicated that condom use consistently reduced the potential for transmission by 80%, and when latex condoms are used properly, the infection rate drops to zero. 5. The potential for infection is primarily from male to female, so that is the 27

10 TRADITION scenario which is being assumed for the purposes of our inquiry. See 6. HIV Medicine MMWR August 6,1993 (about latex condoms being better). 7. New AIDS drugs are constantly being developed and improved. Currently, it has been found that a regimen of Zidovudine during pregnancy greatly reduces the rise of transmission to the newborn but may cause an increase in toxicity for the patient ingesting the drug. Furthermore, an HIV-infected woman who nurses her child increases the chances for that child to become infected. 8. Even ha-ezer 23:1. 9. Ibid. 10. If this is accepted as the definition, then a problem arises when a man s sperm needs to be tested, which is required in various cases of infertility, artificial insemination, in vitro fertilization, and other procedures. Poskim have permitted or forbidden the procedure, based on their understanding of zera le-vattala. 11. The Pill is probably not considered a barrier but is rather similar to kos shel ikrin (a drink which had a contraceptive effect). The Shulhan Arukh permits use of this drink in a case of great distress. See Even ha-ezer 5:12 and Pithei Teshuva No Ahiezer III Even ha-ezer I 63. Although R. Moshe has other responsa on this subject, this is the most comprehensive treatment of methods of contraception, and it was written while he was still in Europe. His attitude towards that topic is summed up in his comment And the majority of poskim are appropriate to be relied upon in a very pressing situation and great distress such as this, and also in a situation where [a woman faces] abandonment, and [in order] to make peace between husband and wife, where the Torah and our Sages were lenient.... After a long disquisition on the subject, R. Moshe does permit use of the condom in some circumstances if nothing else is available. However, concerning the heter to use a [condom]... the man should discuss this with one of the great men of the generation and show him this responsum. Note how he interprets the text in Ketubot 13b and his comments on the Rishonim there; see also Maharsham III Iggerot Moshe Even ha-ezer III 21: However, one cannot permit him to use a condom as I explained in my responsum. 15. In responsum Even ha-ezer III 14, he writes about the issur of le-vattala... such as wearing a condom or a mokh during tashmish. It should be noted that Iggerot Moshe Even ha-ezer IV, only allows use of the condom where there is danger to the woman s life (pikuah nefesh). In a case of great distress the most he allows is a mokh, but he finds spermicide more acceptable. 16. It is puzzling that R. Moshe Feinstein permitted use of a condom in special circumstances (see note 14 above), yet in two other responsa (Even ha- Ezer IV 35-36) he writes that it is forbidden! 17. In regard to the issur of zera le-vattala, there is debate whether it is forbidden by the Torah itself or only by the rabbis. Otzar ha-poskim IX, starting 28

11 Alfred Cohen on p. 163, cites the various opinions and how they impact on the situation of a woman who, for health reasons, is not permitted to become pregnant, and also the difference of opinion whether this issur applies equally to women and men (ibid, p. 168). There is no difference in halakha regarding zera le-vattala when having relations with a woman who is unable to have children or with one who is not allowed to become pregnant. It is the opinion of Minhat Hinukh that whatever issur may apply, it would only apply to people who are capable of having children. For example, if the man is sterile, it might not apply and there might be grounds for leniency (end of Mitsva 1). However, Binyan Tzion rejects this distinction (137; see also Rav Pealim 3:2). 18. See Imrei Eish Yoreh Deah 69; and R. Meier Arik, Minhat Pittim, Even ha- Ezer Many Torah scholars are not prepared to countenance a situation where a man lives permanently without a spouse, for almost inevitably it will lead him to be tempted to transgress a broad spectrum of issurim, including zera le-vattala and eishet ish. 20. Minhat Shlomo III 103: Even ha-ezer 2:7, based on a text in Yevamot 64b. 22. Nishmat Avraham III, p Iggerot Moshe Even ha-ezer I 62. R. Zylberstein, writing in his Hashukei Hemed, pp , also discusses the views of R. Elyashiv and others on this question of bringing children into the world who may have various problems. 24. Iggerot Moshe, Even ha-ezer III Tsits Eliezer XV Iggerot Moshe Even ha-ezer IV 71; see also Avnei Nezer, Hoshen Mishpat Nishmat Avraham, Even ha-ezer, Iggerot Moshe, Even ha-ezer IV 73, note Sefer Halakha u-refuah II p. 111; see also Iggerot Moshe Even ha-ezer IV 73: It should be mentioned that Tsits Eliezer IX 51 allows an abortion to save the woman great distress. How this decision would impact on our issue is not specified. 31. Ketubot 77b. See also Beit Shmuel 154; Arukh ha-shulhan, ibid; Tsits Eliezer VI 42, note 5. The author, R. Waldenberg, cites numerous opinions that even if the man is suffering from a disease which would not endanger her life but she is totally put off by his condition (ma-us alai), he can be forced to divorce her. It is only when she is willing to stay with him that we invoke the principle that if her life is endangered, they must divorce. 32. Whether this mokh is employed prior to or after marital relations occur is a point of dispute between Rashi and Tosafot, Yevamot 12b. 33. Maharsham III; Shevet Sofer, Even ha-ezer 2; Hatam Sofer Yoreh Deah Sefer Shemirat ha-lashon Hilkhot Rekhilut, kellal 9:1, Tsiur Shelishi, # See also Helkat Yaakov III:136. Tsits Eliezer XVI:4; Yehave Daat 4:60 and Be-er Mayim Hayyim s.k :1. 29

12 TRADITION 37. Nishmat Avraham III, p Ibid, p For further discussion, see my article on Privacy in Volume I of The Journal of Halacha and Contemporary Society. Similar questions are discussed in an article, Hastarat Meida be-shiddukhin, by R. Yoel and Dr. Chana Katan, which appeared in Vol. 25 of Tehumin, pp One of the questions discussed was about a young woman who had been promiscuous, but has now repented, and whether she has to inform her present fiancé of her previous behavior (Shut Divrei Yatziv, Even ha-ezer 15). Similarly, whether in other situations, the person is required to tell the prospective spouse: a girl who has never menstruated (Nishmat Avraham, Even ha-ezer IV, Siman 68:5, n.1); a young man who has had one testicle removed (Nishmat Avraham V siman 5:7, note 2); a young woman who has had a hysterectomy. The discussion includes debate about whether another person who has this information need tell, or whether the person involved need tell. The number of questions asked on these topics is eye opening. 40. She eilot Uteshuvot R. Akiva Eiger 222 writes that if there are many authorities on both sides of an issue, we can surely rely on the lenient opinion. The principle kim li doesn t apply here, since it is only relevant in monetary situations. See Maharik 149 and Rashdam II 62 and IV Tsits Eliezer XX 50. Interestingly, this responsum is not listed in the Table of Contents. 30