Bar-Ilan University's Parashat Hashavua Study Center

Parashat Toledot  5766/ December 4, 2005

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity. Prepared for Internet Publication by the Computer Center Staff at Bar-Ilan University. Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il

 

 

 

“For She Was Barren”: Infertility as Grounds for Divorce

 

Dr. Yoel Shiloh

 

Ashkelon College

 

Isaac and Rebekah were married for twenty years before the birth of their sons, Jacob and Esau; Isaac was forty when he married (Gen. 25:20) and when his sons were born he was sixty (Gen. 25:26).   Scripture ascribes this long wait to Rebekah’s infertility. [1] As a childless marriage is a topic discussed in Mishna and Talmud, we will bring the relevant discussions. [2]

The Mishnah (Yevamot 6.6) says that when a married couple is childless for many years, the husband must take another wife in order to fulfill the commandment to be fruitful and multiply:   “If a man has taken a wife and been with her ten years, and she has not born child, he may not abstain [from fulfilling the commandment to be fruitful and multiply].   If he divorces her, she may be married by another man, and that man may live with her for ten years. [3]   If she has miscarried, she counts [the period of ten years] from the time of the miscarriage.”  

The Mishnah does not specify what happens to the marital relationship that has been barren; must the man divorce his wife, or must he take another wife in addition to the first one? [4]   The Talmud (Yevamot 64a), however, presents a baraitha saying that the couple must dissolve their marriage:  “If a man has taken a wife and been with her ten years, and she has not born child – he must divorce her and pay her the sum of her ketubbah, [5] lest he not have sons because of her.”  This is also the ruling cited in Jewish law. [6]   The Talmud go so far as to present an opinion that the couple must be forced to divorce, even though they wish to remain married without having children together. [7]  

Furthermore, the Halakhah stipulates that even when the man is the infertile partner, the woman may sue for divorce although she herself is not obligated by the commandment to be fertile and multiply; [8] this is ruled in recognition of her natural right to bear children. [9]   The whole issue grapples with a dilemma between the duty to be fruitful and multiply and the value of peaceful marital relations.  It must be remembered that divorce is generally perceived as a difficult step in every respect, about which the Sages said (Sanhedrin 22a):   “Whoever divorces his first wife, even the altar cries over him.”

Isaac, Rebekah, and the Law

It seems one might ask why Isaac and Rebekah did not observe this rule of Halakhah.  Several explanations are given in the writings of the Sages.   Some suggest that Isaac, too, was barren, so it would have been to no avail for him to marry another woman. [10]   Others say that Rebekah was only three years old when she married Isaac, and therefore the first ten years did not count for the purposes of this law, rather the years should be counted only from the age at which she was capable of childbearing. [11]

Infertility is fairly common, and in the course of Jewish history there have surely been tens of thousands of instances of married couples who suffered the misfortune of being childless. [12]   Many of these cases came up for discussion by the rabbis of the times, who were asked to give actual rulings on them. [13]   Generally a prior controversy between the couple underlay the claims of infertility, and the claim that he had “lived with her for ten years [and she had born no child]” was only an accessory argument to the disagreement between them.  Rashbatz [14] was presented with a query involving a husband who wished to take another wife in addition to his first wife, who had born him no children.  His wife requested that he not be permitted to marry another woman in addition to her, arguing that when they were wed her husband had undertaken not to take an additional wife without her consent. [15]   Rashbatz ruled that the man must divorce his wife, and that in so doing he was not violating the terms of his marriage.  Rabbi Nehemiah ben Jacob of Lunel was presented with the converse question: [16]  the wife was demanding a divorce because she wished to marry a different man in order that she might bear children.   Her husband argued against her that she was being hypocritical and wanted a divorce because she had set her eyes on another man.  The rabbi accepted the woman’s argument and ruled in her favor that the man must be forced to grant a divorce, even if that could “only be achieved by the whip.”

There have been cases where the couple had no interest in separating, even though they were childless, yet the community or rabbinical court considered forcing them to divorce.  Such a case came up before Maimonides, who ruled emphatically against forced divorce: [17]

Regarding the ruling that was given and which you have cited, it contains an error, namely the idea that until a man have sons it does not behoove him to marry a woman who will not bear children.   This is not so; rather, a man who has been married to a woman for ten years, during which time she has not born children, may marry another woman whom he does not know to have any reason of infertility, and he may remain married to both of them at once, and under no circumstances needs be forced to divorce his first wife.

Love at Ninety

In Tunis it happened that a man wished to marry a ninety year old woman, despite the fact that he had no children from a previous marriage.   The rabbinical court in the city attempted to forbid the marriage, claiming that he only was interested in the woman’s property.  The man turned to a gentile court of law and attempted with their assistance to force the Jewish court to approve the marriage.  A query was addressed to Ribash by the gentile court of law (!) together with the rabbis of the community, to obtain his halakhic opinion: [18]

To the judges and leaders of the community in Tunis, ... concerning the venerable Inshmuel Aramah, who wishes to marry an elderly woman of ninety years or more, ... and the community has not permitted him, ... since [it was felt] he was not taking her to wife for the sake of marriage, rather because he had set his eyes on her wealth; ... moreover, he has no sons.  The aforementioned Inshmuel spoke out against the judge and some of the members of the community, and even went to the lord of the city and said to him:  “My lord, these Jews are preventing me from marrying and I do not know of any reason for this...”   You agreed with the lord of the city to write to me, asking for my opinion on this legal matter.

If courts had to act strictly according to the letter of the law in the matter of imposing divorces, they would have to force divorces uniformly on all.  Then most elderly women would find themselves obtaining divorces and going off with their ketubba and bride-price (nedunya), “and there is no ketubba over which there is no fight,” [19] so there would be much argument and fighting.  It was for this that the rabbis over the generations have looked the other way in matters of marriage, not to prevent them and needless to say, not to dissolve them, as long as both sides desired [to remanin married].... It sufficed to take out the books of law when there was a disagreement between man and wife over this and they turned to the court, which adjudicated for them according to the laws of the Torah.  Therefore, concerning the case at hand ... if you wish to look the other way [i.e. not to prevent the marriage], as has been done by many fine and estimable communities, full of wise scholars, you are fully entitled to do so.

Love Conquers All

We learn from his remarks that in general the rabbinical courts did not enforce the letter of the law, rather they let couples remain married as they wished even if strictly by law they should not have been permitted to do so.  The courts intervened and enforced the law on a couple only when a dispute emerged between them, and then the issue of infertility became another cause for requiring divorce and its concomitant financial payments. [20]

To this very day cases arise in which infertility is argued as cause for divorce and concomitant monetary claims.   In 1956 a suit for divorce came before the rabbinical court in Rehovot [21] in which the husband sought to divorce his wife on the grounds of infertility, and the court ruled that the woman be given another year’s grace, after which time if the woman refused to submit to medical examination, or if it be found that she is incapable of childbearing, a divorce would be arranged.   Medical examination established incontrovertibly that the woman had an incurable medical problem.   The court ruled that the woman must accept a divorce and the husband must pay her the additional sum stipulated in her ketubbah, but not the principal sum of her ketubbah.

Sometimes such a question arose even though it was proven that there was no medical problem preventing childbearing.   Rabbi Waldenberg [22] describes a case in which a couple had not managed to have children for ten years even though medically nothing was found to prevent it.   In fighting the husband’s suit for divorce the woman petitioned to preserve the family intact and begged that they continue living together for a short time and, if she still did not conceive, she would willingly agree to divorce.  The court granted her petition and rejected the husband’s suit for divorce.

In conclusion, we may say that by law a couple that has been married ten years must get divorced if after that length of time they have not managed to have children; however, in actual practice the rabbis have not enforced this rule of halakhah but have preferred to preserve the integrity of the family unit, for peace and harmony is of great importance.



[1] Genesis 25:21.  Scripture tells of several barren women, all of whom eventually gave birth:   Sara, Rebekah, Rachel, Manoah’s wife, and others.  The Sages said (BT Yevamot 64a):  “Why were our patriarchs infertile?  Because the Holy One, blessed be He, longs for the prayers of the righteous.”   For other reasons for the patriarch’s lack of fertility, see Song of Songs Rabbah 2.31.

[2] This article is not intended as a halakhic opinion, but as a dvar Torah, an attempt to analyze a halakhic topic.

[3] The woman may marry another man, since her failure to bear children might have been due to her husband’s infertility.

[4] In the time of the Talmud divorce depended solely on the man’s wishes; also, polygamy was permitted then.  The law only began to change on these two issues in the twelfth century, with the group of laws known as the Ban of Rabbenu Gershom. For further reading on the promulgation and spread of this ban, see Encyclopedia Talmudit, Vol. 16, pp. 384-390.

[5] The husband must give his wife a get, along with all the payments to which she is entitled as stipulated in her ketubbah [marital agreement].

[6] Maimonides, Ishut 15.7, Shulhan Arukh, Even ha-Ezer 154.10.

[7] BT Ketubbot 77a:  “If a man has taken a wife and been with her ten years, and she has not born child – he is not to be forced [to divorce]; Rabbi Tahlifa bar Abimi quotes Samuel:   even if he has taken a wife and been with her for ten years [during which time] she has not born a child, he is to be forced [to divorce her].”

[8] Mishnah Yevamot 6.6:  the husband, not the wife, is commanded to be fruitful and multiply.

[9] Tosafot Yevamot 64a, s.v. yotzi ve-yitten ketubbah (the first tosafot).   For all the legal details on insisting that the man divorce his wife in cases of infertility, see Encyclopedia Talmudit under gerushin (divorce), vol. 6, pp. 419-420.

[10] Yevamot 64a:  “Rabbi Isaac said:   Our patriarch Isaac was sterile, for it is said, ‘Isaac pleaded with the Lord facing [le-nohah] his wife,’ not ‘for his wife,’ from which we learn that they were both had fertility problems.”

[11] Midrash Aggadah (Buber), Genesis ch. 25:  “He waited for Rebekah ten years, since she was not fit to conceive, for she was three years old when she married; and he waited for her ten more years, since a woman does not become pregnant at less then 13 years of age.   Those ten years were not counted, since she was not fit to bear child, and after she reached age 13, he waited for her another ten years.”

[12] The incidence of infertility in the general population is estimated at 10% -- 15% of all couples.  In about half the cases the infertility stems from medical problems of the man, in about one third of the cases it is a problem of the woman, and in about a sixth of the cases the problems stem from incom-patibility between spouses.   Cf. Johns and Toner, N. Engl. J. Med. 329 (1993), p. 1710.

[13] Cf. Resp. Ri migash, par. 150, who is of the opinion that one should establish which of the spouses suffers from infertility.   For further reading, see A. Steinberg, Encylopedia Hilkhatit Refu’it (Halakhic Medical Encyclopedia), Jerusalem 1996, under poriyut ve-akarut (fertility and infertility), vol. 5, pp. 383-390.

[14] Rabbi Simeon ben Tzemah Duran (Majorca, 1361-Algiers, 1444).

[15] Resp. Tashbetz (=Teshuvot Shimon ben Tzemah), Part I, par. 94.  A similar response can be found in Resp. Rosh, rule 33, par. 1.

[16] Resp. Rabbis of Provence, Part I, par. 48.  A similar response can be found in Resp. Radbaz, Part III, par. 575.

[17] Resp. Rambam, par. 41.

[18] Rabbi Isaac bar Sheshet Perfet, (Barcelona, 1326- Algiers, 1408).   See Resp. Ribash, par. 15.

[19] By extension:  there is no divorce that is not accompanied by strife.  The original expression relates to negotiations between the families of the bride and groom prior to marriage.

[20] What Ribash wrote actually appears in Beit Yosef, Even ha-Ezer 154.   The Rema (Even ha-Ezer 1.8) ruled as follows:  “In our day … it has become the practice, for several generations now, not to be exacting in the law regarding marriages.”

[21] File no. 17/864, dated 20 Shevat 5721 (1961), cited in Rabbinical Court Decisions Part IV, p. 219.

[22] Resp. Tzitz Eliezer, Part 7, 48.  Rabbi Eliezer Judah Waldenberg, a dayyan on the Jerusalem Rabbinical Court, deals extensively in questions of halakhah and medicine.