(2005/5765)

Introduction

Recently, procedures have been developed to tattoo permanent or semi-permanent makeup on women.  I have been told that in the process of applying permanent makeup, also known as micropigmentation, dermapigmentation or cosmetic tattooing, a needle deposits colored pigments made from iron oxide into the skin’s dermal layer (the layer between the permanent base layer and the constantly changing top layer).  This procedure is applied on the lips and/or around the eyes.  This procedure is performed under antiseptic conditions and anesthesia is used when performing this form of surgery.  The tattooing can be either permanent or semi-permanent.  The form of  semi-permanent tattooing that contemporary Poskim discuss lasts up to three years and eventually disintegrates.  These procedures are very tempting for observant women (especially those who are blessed with the task of caring for young children) as it saves time and avoids the problem of applying makeup on Shabbat.  However, there are serious Halachic problems associated with this procedure, as we shall explain in the essays that we will begin to present this week. 

Cosmetic Surgery

According to the sources, we outlined last week, there is no explicit Heteir (rabbinic sanction) to undergo any cosmetic surgery purely for reasons of convenience.  However, even if one were to argue that cosmetic surgery is permitted for reasons of convenience, applying permanent makeup might be prohibited because of the prohibition of Kitovet Kaaka (tattooing, see Vayikra 19:28).  In this essay, we shall explore the prohibition to apply a tattoo and we shall see how contemporary Poskim apply it to the issue of permanent and semi-permanent makeup.  Similar to countless other contemporary Halachic issues, this modern innovation compels Poskim to rigorously define the parameters of Kitovet Kaaka, even more so than was done in previous generations. 

Our discussions will be based on two essays written on this topic that have been published in Techumin; one (Techumin 10:282-287) written by Rav Ezra Basri (a prominent Sephardic Dayan who presides over a State of Israel Beit Din in Jerusalem and the author of Teshuvot Shaarei Ezra and Dinei Mammonot) and the other (Techumin 18:110-114) written by Rav Baruch Shraga (the Rav of French Hill in Jerusalem).  In addition, two Teshuvot have been published in recent years, by Rav Shraga Shneebalg of London (Teshuvot Shraga HaMeir 8:44 and 45) and Rav Natan Gestetner of Bnei Brak (Teshuvot Lihorot Natan 10:64).  These two Rabbanim are Poskim of note and Rabbanim throughout the world cite their works.  Rav Shmuel Wosner (Teshuvot Shevet HaLevi 10:137) wrote a brief responsum on this issue as well (Rav Wosner lives in Bnei Brak and ranks in the first tier of contemporary Poskim). 

How Long Must Kitovet Ka’aka Last?

The Rishonim (authorities who lived during the Middle Ages) disagree about how long a tattoo must last in order to constitute a violation of the Kitovet Kaaka prohibition.  Rashi (commentary to Vayikra 19:28 and Gittin 20b s.v. Kitovet) and the Ritva (Makkot 21a s.v. Hakotev) describe Kitovet Kaaka as something permanent.  The Nimukei Yosef (Makkot 4b in the pages of the Rif s.v. Ad Sheyichtov) on the other hand, describes Kitovet Kaaka as something that lasts “for a long time.” 

Rav Gestetner notes that the Rambam (Hilchot Avodat Kochavim 12:11) and the Shulchan Aruch (Yoreh Deah 180:1-4) do not limit the prohibition to permanent tattooing, thus implying that one violates the Kitovet Kaaka prohibition even if the tattoo is not meant to last permanently, in accordance with the view of the Nimukei Yosef.  Moreover, Rav Gestetner suggests that when Rashi writes that Kitovet Kaaka lasts “Liolam”, Rashi does not mean “forever” literally.  He cites Rashi in another context (Shabbat 111b s.v. Vieilu Kesharim) where he uses the term Liolam and it is fairly obvious (in light of Rashi, Shabbat 112a s.v. Bidichumrata) that Rashi means for a long period of time, and not necessarily forever.  Rav Gestetner rules that three years is considered “a long time” and thus even semi-permanent cosmetic tattooing that lasts for three years might be biblically prohibited.  Rav Shneelbag, it should be noted, understands Rashi to forever literally, and is inclined to consider semi-permanent cosmetic tattooing as a rabbinic prohibition. 

Moreover, Rav Shneelbag notes that all Rishonim agree that one violates at least a rabbinic prohibition even if the tattoo is not a permanent one.  The proof to this is the fact that the Gemara (Makkot 21a) debates whether one is permitted to put stove ashes on an open wound, which creates a mark that resembles a tattoo.  This  mark does not last very long and is undoubtedly classified as  temporary.  The fact that the Gemara even raises the possibility of regarding such a mark as Kitovet Kaaka proves that one violates at least a rabbinic prohibition even if the mark does not last forever.  The Rivan (ad. loc. s.v. Uchtovet) might also indicate this, as he writes that “it is forbidden to write any writing” on the flesh.    

One point of clarification:  The primary Talmudic discussion of the topic of tattooing appears in Makkot 21a.  Rashi did not complete his commentary to the last few pages of Masechet Makkot.  His son-in-law, the Rivan, did complete his father-in-law’s commentary to this tractate.  Hence, we will frequently be referring to the Rivan in these essays.

How Deep Must the Tattoo Be?

How deep must the tattoo be inserted to qualify as Kitovet Kaaka?  The Ritva (ad. loc.) writes that “the dye enters between the skin and the flesh.”  Rav Shneelbag notes that it appears from the Ritva that one violates the prohibition even if the dye is inserted only immediately below the skin level.  It seems that the Shulchan Aruch (ad. loc.) agrees with this assessment, as it describes Kitovet Kaaka as “scratching the flesh.”  Thus even if one layer of skin is penetrated, the prohibition is violated.  As stated earlier, I have been informed that the process of cosmetic tattooing involves the insertion of the pigments into the skin’s dermal layer.

We should clarify that the Mishnah (ad. loc.) states that in order to be punished by Malkot, one must both write and cut the skin.  The Minchat Chinuch cites a dispute among the Acharonim as to whether there is a rabbinic prohibition in merely writing on the skin without cutting the skin.  The Minchat Chinuch notes a rule that Poskim often utilize to resolve a disputed issue – “go out and see what is the common practice.”  Accordingly, the Minchat Chinuch notes that since common practice among Jews is not to make indelible markings on the skin even if the skin is not cut, the reason must be that normative Halacha follows the opinions that believe that it is rabbinically forbidden to do so. 

The Minchat Chinuch, though, writes that it is obvious that this rabbinic prohibition applies only if the mark cannot be erased.  However, he writes, simple writing with ink on the hand is not even rabbinically prohibited.  Accordingly, it seems that it is not prohibited to have one’s hand stamped at an amusement park to prove that the admission fee has been paid.  Accordingly, it is not technically forbidden to write with ordinary ink on one’s skin.  Although this is undignified, it appears that it is not technically prohibited;  Chazal prohibited only activities that resemble Kitovet Kaaka (see Tosafot Gittin 20b s.v.Uchtovet).  Amusement park stamps and ordinary writing on the body do not resemble a tattoo at all.  The fake tattoos that small children apply are also most likely permitted, even on a rabbinic level.

Conclusion

In our next issue, Im Yirtzeh Hashem and Bli Neder, we shall further explore the parameters of the K’tovet Kaaka prohibition and their application regarding the processes of permanent and semi-permanent makeup.