2021/5781

Minute Radiation Marks – A Violation of Ketovet Ka’aka?

Recently, I received a poignant Halachic question from a medical professional in training:

“I am training to be a radiation oncology therapist. I will be operating the machines that deliver the radiation treatments to cancer patients. These machines carefully focus the beam of radiation directly on a tumor, minimizing damage to adjacent tissues. Since patients come for multiple sessions, they are often given a small permanent mark on their skin over the tumor to facilitate aiming the beam each time.

Some patients are apprehensive about having this mark placed, even though it is the size of a pencil point. To reassure and show solidarity with their patients, a tradition has arisen, in which every radiation therapist has a mark placed on the back of their own hand, so they can show each new patient: ‘see, even I have one of these. It's no big deal.’ The patients find this very comforting. Am I permitted to receive this mark”?

Possible Leniency #1 - What Must Be Written?

Our first step to answer this question is to determine whether these minute radiation marks violate the Torah prohibition of inscribing a tattoo, Ketovet Ka’aka, on our bodies (VaYikra 19:28). If it is only rabbinic prohibition we might be able to overlook this prohibition since it is a matter of Kevod HaBeriyot, human dignity.

Teshuvot Me’il Tzedakah (31, cited in Pitchei Teshuvah Yoreh Deah 180:1) asks whether one must write letters in order to violate the prohibition of Ketovet Ka’aka or whether any marking constitutes a violation. Though he suggests that creating a marking without writing is only a rabbinic prohibition, other Acharonim (such as the Minchat Chinuch) note that the Rishonim already disputed this matter.

The Semak (72), Rabbeinu Peretz (cited in the Semak), Orchot Chaim (22:4), and the Sefer HaChinuch (253) seem to believe that one violates this prohibition only if he tattoos letters into his skin. This approach might be based on the reason offered by the Rishonim (Rambam Hilchot Avodat Kochavim 12:11 and Tur Y.D. 180) for the prohibition of Ketovet Ka’aka – that idolaters would often tattoo the names of their gods into their skin, wishing to communicate that they were committed slaves to those particular gods. Accordingly, a number of Rishonim and Acharonim believe that one violates Ketovet Ka’aka only by writing letters, since this was the manner in which the idolaters expressed their commitment to idolatry.

On the other hand, the Minchat Chinuch (253:3) judges that most Rishonim believe that one violates Ketovet Ka’aka even if he does not write letters. Among the Rishonim who explicitly state that writing is not necessary are the Ra’avad (Torat Kohanim, Kedoshim 76) and the Rash MiShantz (ibid.). Rambam (ad. loc.) and the Shulchan Aruch (ad. loc.) also indicate that one violates Ketovet Ka’aka even without inscribing letters, as they make no mention of any such requirement.

Teshuvot Shraga HaMei’ir (8:44 and 45) asserts that all Rishonim would agree that one transgresses at least a rabbinic prohibition even if he does not write letters. He proves this from the Gemara's suggestion that placing stove ashes on a wound might be prohibited because the resultant scab resembles a tattoo, as we discussed above. The scab obviously does not appear in the form of a letter. Nonetheless, the Teshuvot Me’il Tzedakah (31) suggests that the scab actually does look like a letter, in which case there is not necessarily even a rabbinic prohibition if no letters are written.

Teshuvot LeHorot Natan (10:64) and Teshuvot Shraga HaMeir argue that according to the strict opinion, any form that is imprinted on the body is included in the prohibition. Rambam and the Shulchan Aruch also apparently endorse this position, as they declare that one transgresses this prohibition when he injects dye beneath the skin. Not only do they make no mention of a requirement for writing letters to violate the prohibition, but they also make no mention of a requirement for a picture or figure to be drawn.

Possible Leniency #2 - Purpose of the Tattooing

The Mishnah (Makkot 3:6) records the opinion of Rabi Shimon that one is flogged for violating the prohibition of Ketovet Ka’aka only if he tattoos the name of an idol onto his skin. The Chachamim, however, require flogging for any tattoo. The Rishonim disagree about which opinion is regarded as normative. While we usually accept the majority opinion, the Gemara (ibid.) records a discussion of the opinion of Rabi Shimon, leading some Rishonim to conclude that his opinion is the accepted one.

The Beit Yosef (Y.D. 180 s.v. Shechayav) quotes Rabbeinu Yerucham, who cites conflicting opinions and concludes that the Halachah follows the view of the Chachamim. The Beit Yosef agrees, noting that this also appears to be the opinion of the Rambam.

The Rivan (Makkot 21a s.v. U’Chetovet) writes that even Rabi Shimon prohibits tattooing any writing, even if it is not the name of an idol - Rabi Shimon and the Chachamim disagree only about whether one is flogged for such tattooing. It is possible, however, that one violates the prohibition of Ketovet Ka’aka on a biblical level only if his intention is for idolatry, even according to the stringent opinion of the Chachamim. Recall that Rambam and the Tur maintain that the reason for the Ketovet Ka’aka prohibition is to avoid idolatry. Indeed, the Chatam Sofer (commentary to Gittin 20b s.v. BeChetovet) writes that one does not violate a biblical prohibition if he tattoos for non-idolatrous reasons. The Shach (Y.D. 180:6) seems to support this view, as he explains that it is permitted (on a biblical level) to put ashes on a wound because his wound proves that he is not coloring with idolatrous motives. The Teshuvot Sho’eil U’Meishiv (2:1:49) agrees with the Chatam Sofer. The Aruch LaNer (commentary to Makkot 21a s.v. Gam Im), on the other hand, states that one violates a biblical prohibition even if his intention is not for idolatry. The Aruch LaNer and Teshuvot LeHorot Natan note that Rambam and the Shulchan Aruch seem to agree with this view, as they do not confine this prohibition only to one whose intention is for idolatry. Moreover, Rav Gestetner observes that Tosafot (Gittin 20b s.v. BeChetovet) clearly indicate that a biblical prohibition is violated even if one’s intention is not for idolatry.

Possible Leniency #3 - Who Violates the Prohibition?

Precisely how does one violate the prohibition of Ketovet Ka’aka – by actually inscribing the tattoo, or even by having it inscribed on his body? Which does the Torah intend when it commands (VaYikra 19:28), “U’Chetovet Ka’aka Lo Titenu Bachem,” “You shall not put a tattoo on yourselves?” The Tosefta (Makkot 3:9)states that both aspects are included – both one who inscribes a tattoo and one who allows a tattoo to be made on his body violate the biblical prohibition.

Rambam (A.K. 12:11) seems to qualify this, stating that the one who permits the tattoo to be inscribed on his body is punished with Malkot only if he actively assists the inscription of the tattoo. This is an application of the rule that one is flogged only if he violates a sin that involves a physical action, such as eating non-Kosher food or wearing Sha’atnez. Nonetheless, the Minchat Chinuch (253:4) writes, one who allows a tattoo to be inscribed on his body violates a biblical prohibition despite his exemption from Malkot.

It is not clear whether the Shulchan Aruch agrees with this last point. The Shulchan Aruch (Y.D. 180:2) writes that one who permits a tattoo to be inscribed in his body is “Patur” if he did not assist in the inscription.

Teshuvot Shraga HaMeir asserts that although one who has a cosmetic tattoo inscribed on his face does not assist in the process, he nevertheless transgresses a biblical prohibition. It is possible, though, that the terminology of “Patur” in the Shulchan Aruch (in contradistinction to Rambam’s phrasing, “He is not flogged” might imply that only a rabbinic prohibition is violated. Thus, it is possible that one who undergoes cosmetic tattooing might violate only a rabbinic prohibition.

It is important to add that Yad Ketanah asserts, based on the Tosefta and Rambam, that one violates the Ketovet Ka’aka prohibition on a Torah level even if the individual who inscribed the tattoo is not Jewish.

Kevod HaBeriyot

Under certain exceptional circumstances, Halachah tolerates the violation of a rabbinic prohibition. The Gemara (Berachot 19b) states, for example, that one may violate a rabbinic prohibition for the sake of Kevod HaBeriyot (preserving human dignity).

There are three possible reasons to argue that only a Rabbinic violation is involved in our case: 1) Only a minute dot is inscribed on the body; there is no lettering or images involved. 2) The intention unquestionably is not for Avodah Zara 3) The therapist receives the marking from a non-Jew and is entirely passive during its administration.
It is not a simple matter, however, as the Minchat Chinuch notes, to develop lenient approaches to this matter when the Rishonim and Shulchan Aruch all seem to allow no exceptions to this prohibition (as emphasized by Teshuvot LeHorot Natan).

Significantly, though, Rav Yosef Shalom Eliashiv is cited (Encyclopedia Refu’it, 2nd edition, 5:684, note 61) as ruling that a tattoo where there is no writing or image constitutes only a rabbinic prohibition and is permitted in case of Kevod HaBeriyot. The case he permits is inscribing a nipple during reconstructive breast surgery for a woman who has had a mastectomy.

Easing the Mind of a Dangerously Ill Patient
The following Gemara is pivotal for our case (translation from the William Davidson edition of the Talmud).

The Master said in the Baraita: If a woman giving birth were to need a lamp, her friend would light the lamp for her on Shabbat. The Gemara asks: This is obvious. The Gemara answers: It is necessary to teach this Halachah only in the case of a blind woman giving birth. Lest you say: Since she cannot see even with the light it is prohibited to bring a lamp for her, it teaches us that lighting the lamp is permitted to settle her mind. The blind woman thinks: If there is something that needs to be done in the course of childbirth, the lamp will enable my friend to see and she will do it for me (Shabbat 128b).

Based on this Gemara, Rav Moshe Feinstein (Teshuvot Igrot Moshe, O.C. 1:132) famously permits a husband to accompany his pregnant wife to the delivery room on Shabbat if she fears traveling alone. Accordingly, if we permit Torah level violation of Shabbat to ease the mind of a woman in labor, then even if the solidarity mark constitutes a Torah violation it may be administered to ease the mind of a cancer patient receiving radiation therapy.

Studies show that a positive attitude makes a significant impact on the recovery rate of cancer patients. [1] I have seen congregants who find it difficult to swallow the fact that they will have a permanent mark associated with their cancer inscribed on their body. Any means to ease these patients’ minds is a matter of Pikuach Nefesh.

Conclusion

We have seen three reasons why radiation therapy markings possibly constitute only a rabbinic prohibition which may be waived in a case of Kevod HaBeriyot. Even if a Torah level prohibition is involved, we believe it is justified since it serves to ease the mind of a dangerously ill patient.

To clarify, our concern is not so much the refusal of the patient to consent to potentially life-saving radiation therapy. Rather, the goal is to avoid demoralizing the patients. The expression of solidarity is an effort to raise the spirits, which is critically important for them.

I shared this piece with Rav Zvi Sobolofsky and he was skeptical. He wondered how positively impactful the solidarity mark would be on patients and was unsure if this was worth violating a possible Torah prohibition for highly questionable gains. However, Rav Yosef Adler (who survived a severe bout of cancer with Hashem’s help), fully concurs with my analysis. One for whom this is a relevant question, should consult with his Rabbi for guidance.

[2] https://cancer.osu.edu/news/psychosocial-factors-associated-with-high- readmission-rates-longer-hospital-stays