Volume 62 Number 74 
      Produced: Thu, 07 Apr 16 04:09:36 -0400

Subjects Discussed In This Issue:

Can a woman become a man and get an aliyah? 
    [Chana Luntz]
Halachically married without civil marriage (2)
    [Martin Stern  Jeanette Friedman]
Marital rape (2)
    [Jeanette Friedman  Dr Russell Jay Hendel]
Under age Marriage 
    [Yisrael Medad]


From: Chana Luntz <Chana@...>
Date: Mon, Apr 4,2016 at 08:01 AM
Subject: Can a woman become a man and get an aliyah?

Harlan Braude wrote (MJ 62#73): 

> Chana Luntz wrote (MJ 62#72):

>> And that would presumably mean (again geneticists might be able to help me
>> here) that, despite certain halachic assumptions brought by the Tzitz Eliezer
>> that an androgynos is unable to have children, that is not in fact true  - 
>> that they might well be able to do so as a male.  Does such an androgynous 
>> have eggs? Could she have a child as a female by way of a surrogate mother? 
>> Is it science fiction for a womb to be created and for her to possibly carry
>> her own child? These are medical questions to which I do not know the 
>> answers, but which might have halachic relevance. Is the Tzitz Eliezer 
>> right?  Should we be doing surgery on babies in order for them to fit into 
>> one of the two categories of modern society, when halachically there were
>> traditionally four categories?
> In my simplistic, "baala'batishe" view of the world (forgive me if this 
> results in reductio ad absurdum), I think we're over-thinking the issue. 
> Chaza"l gave us basic tools to determine things like when puberty is reached 
> and how gender is (or isn't) determined. It's principally based on what can 
> be seen, like the presence and number of hairs and other physical attributes.
> It does not depend, for example, on the ability (or lack thereof) to become
> pregnant, otherwise a number of women (men?) who's gender has never been in
> doubt could be subjected to forced reclassification.

The reason why the Tzitz Eliezer, based on earlier poskim, referred to the
relevance of a man having children is because, as has been previously cited on
this list, there is a prohibition on castration for men.  One of the concerns
involved in a doctor doing surgery, either on internal male organs (as in the
particular case of the teshuva), or perhaps partially external male organs, is
whether such surgery violates this prohibition.  However, the Tzitz Eliezer
cited approvingly those poskim who held that this prohibition, ie on castration
for men, does not apply if the person in question already cannot have children -
so that, in this example where the baby had no external male organs, there was
no way of this baby fathering children, and hence there was no problem removing
the male organs that were found internally.

However, it is not so clear to me that this is the case in numbers of the
ambiguous or doubtful cases - even if we are talking about fathering children in
a normal manner (ie we do not count test tube children for this purpose).  If we
do count test tube children as fulfilling the mitzvah of pru u'rvu, that is
another consideration, as it would open up a much wider group of people who can
father children.

In relation to women, while there is no specific obligation on women to have
children - there are halachic issues in a marriage if in fact the woman is what
is deemed an aylonis - which involves lack of fertility, particularly if this is
not disclosed to the husband before marriage. While of course this occurs
naturally, and the woman in question might well not know, it does seem to me
that the artificial creation of a full fledged girl, as the Tzitz Eliezer rules
is permissible, and as the doctor then presumably practiced, might be deemed on
some level an engagement with falsehood towards any potential suitor (especially
if the child in question was never told, and so had no way of even telling that
suitor).  However the level of falsehood might arguably be mitigated if the
artificial creation could, if necessary, be carried through in all respects - ie
if in fact science allowed the husband to in fact have children with this woman,
even if, without the assistance of science, he could not.

> Neither should there be a need to depend on findings from invasive surgery,
> magnetic or ultrasound imagery nor even genetic testing to make these 
> classifications. Just use the original standard: what can be seen by capable 
> and trained people (I didn't say "naked eye" so as not to get into an 
> argument about reading glasses/contact lenses. Let the games begin).

So, are you saying that in a similar modern day case to the case that the Tzitz
Eliezer discussed, ie where Reuven's wife turned into a man, we should, even
thought we knew from our medical assessment of this baby, that this baby despite
looking fully female on the outside, has fully developed male organs that are
likely to drop during puberty and turn the child into a male in all respects -
we should send this child to Beis Ya'akov, and only switch him to Yeshiva at
whatever age (13, 14, 16) that the organs do in fact drop spontaneously ,because
prior to this what could be seen by capable and trained people is only female? 
Is that the right approach for this kid?

If not, then one needs to engage with the science, and part of engaging with the
science would need to be an understanding of what science can actually do (or
might be able to do by the time this child grows up).  If turning her into a
full female now, by removal of those male organs that cannot be seen, will
ultimately mean that she cannot have children, is that the right thing to do? 
Might it not make a huge difference if, following her successful graduation from
Beis Ya'akov, she could, albeit with scientific help, have children as a female?




From: Martin Stern <md.stern@...>
Date: Sat, Apr 2,2016 at 05:01 PM
Subject: Halachically married without civil marriage

Leah Gordon wrote (MJ 62#72):

> Frank Silbermann wrote (MJ 62#71):

>> I suppose such a consequence would illustrate the reason a society needs a
>> severe social stigma against single motherhood (other than for reasons over
>> which the woman has no control, such as widowhood, divorce or abandonment by
>> a husband).

> I often agree with Mr. Silbermann, but I cannot allow this statement to stand.
> Why would it be appropriate to stigmatize the mother (and kal v'chomer her
> child) for what is surely at least half the responsibility of the father?

The lady doth protest too much, methinks. What Frank was suggesting was that
"society needs a severe social stigma against single motherhood" NOT "single
mothers" per se, and this should therefore apply equally to the father.
> ...
> And what about the case of a financially independent woman who chooses to
> raise her own children (via donor sperm, adoption, etc.)?  Why should she
> suffer any stigma whatsoever?

At the very least, I would consider it irresponsible to deliberately place
children in a less than optimum environment. While adoption may be seen as
an act of tzedakah, there is a tremendous shortage of children available so
it would seem not in their best interest to be reared by a single person (of
either sex) if there is the alternative of a couple.

IMHO this idea that a woman should be allowed deliberately to satisfy her
maternal instincts outside marriage, even if not in breach of strict halachah,
would undermine society and should not be encouraged.

Her suggestion that a single woman use AID to become pregnant raises further
halachic issues which would need consideration by the most qualified decisors.
But that is an entirely separate discussion.

Martin Stern

From: Jeanette Friedman <FriedmanJ@...>
Date: Sun, Apr 3,2016 at 09:01 AM
Subject: Halachically married without civil marriage

Martin Stern wrote (MJ 62#72):
> Carl A. Singer wrote (MJ 62#71):
>> At my shallow depth -- my concern is people who are for all intents and
>> purposes in a long term, monogamous  marital relationship but who present
>> themselves to government authorities as being "single" in order to reap
>> financial gain through various government subsidies.
>> Perhaps this question is not really for Mail-Jewish -- but are such actions
>> criminal. What is definitely relevant to the Mail-Jewish discussion -- are
>> such action halachically permissible .... and what if anything should our
>> "leadership" or society do about it?
> Obviously such actions would only be criminal if they broke some law in the
> country concerned. In the UK, as I wrote previously, cohabiting couples are
> treated as if married when assessing the woman's application for benefits.
> In countries where this is not done, there might be a moral problem.
> Whether it would constitute genevat da'at [obtaining a benefit through
> misleading the donor] would depend on whether claims from ladies in such
> circumstances were routinely accepted by the authorities without objection
> when they were aware of them.

As far as welfare cheats are concerned, cheating is cheating, theft is theft,
and while some people prefer to be morally blind to civil law, as long as they
feel halacha is met, it is still wrong, not to mention  a giant chillul Hashem.
Excusing this behavior is totally immoral in my opinion.

Remember, if these welfare cheats get caught and yell they are being
discriminated against because they are Jews, they create a major shanda and
really do deserve to be punished by the civil authorities - who should decide
whether suspending benefits is enough, or if the couple should go to jail. In my
opinion, again, if caught and convicted, not only should they go to jail, they
should be put in cherem for putting the worst Jewish foot forward and shaming
Hashem and the Jewish people.


From: Jeanette Friedman <friedmanj@...>
Date: Mon, Apr 4,2016 at 01:01 PM
Subject: Marital rape

>  Leah Gordon wrote (MJ 62#72):
> According to the law of the land in the United States, as well as what I would
> consider to be a reasonable person's opinion, a person who is asleep cannot
> legally consent to sexual relations. Hence, it is rape. That is what "rape"
> means - sexual use of a person without his/her consent.
> ...
> Please don't make statements that make our people sound, l'havdil, like the
> Daesh/ISIS/ISIL monsters who believe that women are property to be raped at
> will. Please also do not make statements that assume the readers of MJ are
> all men and that women are "other" or even "objects" that can be acquired.
She is correct on all counts concerning rape and sexual relations with a
sleeping woman and her summation of the attitudes of some of the men on the

Jeanette Friedman

No, I ain't dead yet. :-)

From: Dr Russell Jay Hendel <rashiyomi@...>
Date: Wed, Apr 6,2016 at 09:01 PM
Subject: Marital rape

Leah Gordon wrote (MJ 62#72):

> I understand from this that Mr. Hendel is opposed to sex with one's spouse
> while that spouse is sleeping.  That is certainly a relief.  However, it is
> false to claim that, "if a man has intimacy with his wife while asleep, he has
> not raped her" - I'm surprised even to read this statement.

Three people -  Martin Stern, Isaac Bablin, and Irwin Weiss - came to my
defense in MJ 62#73. I of course thank them but would like to clarify
further each statement.

1. Isaac Bablin objected to Leahs posting by stating:
> Leah Gordon has, in my opinion, missed Dr. Hendel's point. Dr. Hendel was
> careful to delineate halachically between cases which were biblical rape and
> those which were rabbinic rape.

I would partially disagree. Under Jewish Law, Ex. 21:10 there is a **biblical**
obligation to provide happy marital intimacy, one which the women enjoys, to
one's wife. A man who violates this has violated a positive commandment. So
sleeping with ones wife is a violation of a Biblical commandment, it is not

2. Irwin Weiss  supported Leahs assertion about American law by stating

> This is certainly true with regard to American criminal law. Here is a
> discussion from a recent Maryland case ...

I disagree with Irwin Weiss. More importantly, I have a reason for disagreeing
with him, which bears heavily on Leah's statement.  Consider the following 
recent article from the Washington Post. 78-year-old Iowa legislator is
prosecuted for having sex with his wife, who was suffering from Alzheimers. This
article may be accessed at:


The article deals with marital rape and shows that not all states regard it as
rape In passing, it is not clear if this legislator who was simply saying
goodbye to his demented wife was guilty of a crime and *should* have been prosecuted

But we have to ask why? Why should or should not marital rape be considered
rape.  It has to do with how courts treat rape. Rape refers to lack of consent
by a woman. In a date rape and marital rape, there are usually elements of both
consent and lack of consent. This creates a reasonable doubt on the presence of
continuing lack of consent. I would argue that this accounts for the relunctance
of some courts (anywhere on the planet) to prosecute the man as a rapist. Like
other serious crimes, presence of doubt does not legitimize the crime but may
prevent conviction.

3. Martin Stern objected to Leahs posting by stating:

> Clearly the halachic definition of ones [rape] is slightly different from that
> in US law and her consequential conflation of certain other halachically
> prohibited behavior with it is unfortunate.

As I just noted in my response to Irwin,  I am not certain how different the
various legal systems are. All systems oppose rape. All systems use doubt to one
degree or another to prevent conviction. There are some differences.

Finally, I would like to respond to Leahs assertion:   

> Please don't make statements that make our people sound, l'havdil, like the
> Daesh/ISIS/ISIL monsters.

On a conceptual level, certain components of ISIS believes in using rape as a
means of marriage acquisition. This has nothing to do with our discussion. In
Jewish law, you cannot marry anybody by force.

I might add (without negating the above) that Jewish law does hold a man
responsible for all bodily damage done to his wife. However, rape is classified
as a tort in Jewish law. I have to ask Leah if it really makes sense to get the
courts involved in monetary payment every time a woman claims she was humiliated
or pained by her husband. I think the more appropriate response is to require
biblically that men treat their wives properly and to encourage divorce (which
Jewish law does do) when behavior becomes unacceptable.

Russell Jay Hendel; Phd.ASA; <rhendel@...>; www.rashiyomi.com/


From: Yisrael Medad  <yisrael.medad@...>
Date: Tue, Apr 5,2016 at 08:01 AM
Subject: Under age Marriage

Martin Stern wrote (MJ 62#73):

> Yisrael Medad wrote (MJ 62#72):
>> Perets Mett (MJ 62#71) wrote:
>>> Two barmitsva boys are quite likely not of age by Torah law and would not
>>> qualify as witnesses to a marriage.
>> Just as an aside, there were more than a few Jewish men who were married 
>> before their barmitzvah prior to the 19th century.
> This seems completely implausible since a minor cannot give a woman kessef
> kiddushin [nowadays a ring] to effect the marital tie. 
> ...
> Perhaps Yisrael could fill in some more details.

Here are a couple of references:

1.  Chapt. Two of "Jewish Marriage and Divorce in Imperial Russia" By
ChaeRan Y. Freeze

2.  "Pious and Rebellious: Jewish Women in Medieval Europe" By Avraham

Yisrael Medad


End of Volume 62 Issue 74