(2006/5767)

Introduction – A Halachic Stringency Imposed by Technology?

Usually, technology improves our lives in regards to both mundane and Halachic matters.  For example, the problem of Agunot (women unable to remarry because and it is not known if their husbands are dead or alive) has been dramatically ameliorated in our generation due to vastly improved communication technologies and DNA evidence (see my Gray Matter 2:114-138).  However, the emergence of ultrasound testing of pregnant women as a standard procedure might impose a restriction upon the wives of Kohanim if they discover that their baby is a boy.

A few points need to be clarified before we begin our discussion.  The restriction upon Kohanim to come in contact with the dead applies only to male Kohanim (Sotah 23b cited by Rashi to Vayikra 21:1).  However, adults cannot deliberately cause even the youngest of Kohanim (even infants) to come in contact with a dead body (Mishnah Berurah 343:3 and Aruch HaShulchan Y.D. 373:1).  In addition, contact with the dead includes being in the same building as the dead body (Bemidbar 19:14). 

Traditionally, pregnant wives of Kohanim did not have to be concerned about the possibility that they might be carrying a boy  which would prohibit them from entering a building containing a dead body (such as a funeral home or possibly even a hospital – see the summary of the issue of Kohanim visiting a hospital in Nishmat Avraham Yoreh Deah 1:335:4).  A primary reason for this leniency is a Sefeik Sefeika (double doubt) articulated by the Rokeiach (number 366).  Although normally if there is a doubt regarding a Torah prohibition, one must rule strictly, if there are two doubts, one may rule leniently even in case of a Torah prohibition. 

The Rokeiach argues that a Kohen’s wife need not avoid contact with the dead since there are two doubts that lead us in a lenient direction.  The first doubt is perhaps the child is a female and not a male.  The second doubt is that even if the child is a male, it might be a Neifel (a non-viable child), to whom the restrictions to come in contact with the dead do not apply.  The Shach (Y.D. 371:1),the most authoritative commentary to the Yoreh Deah and Choshen Mishpat sections of Shulchan Aruch, cites the Rokeiach as normative Halacha.  It should be noted that the Shulchan Aruch, Rama, and Aruch HaShulchan do not raise the question of a fetus coming in contact with the dead.  We shall deal with this fact later in our discussion.

Accordingly, many note that the Rokeiach’s lenient approach might no longer be applicable today, when women are able to discover the gender of their unborn child when they undergo their routine sonogram.  The first prong of the Sefeik Sefeika might no longer be relevant in an age when the doubt as to the gender of the fetus does not exist.   In this essay, we shall outline both the lenient and strict approaches to this issue, as Poskim remain divided as to the resolution of this question.  Our discussion is based on an essay written by Rav J. David Bleich (Tradition Summer 2005 pages 90-96), an essay by Rav Zalman Nechemia Goldberg (Ateret Shlomo pp. 33-39), and a conversation I had with Rav Hershel Schachter.  We should note that the discussion of this issue among the Poskim is extraordinarily rich and touches on many fundamental principles and disputes regarding various aspects of the Halachic process. 

The Strict Approach – Rav J. David Bleich  

Rav Bleich focuses on a debate among the Poskim as to whether a Sefeik Sefeika remains in effect if the doubt can be resolved.  The Rama (Y.D. 110:9) rules leniently but the Shach (Y.D. 110 Kelalei Sefeik Sefeika 35:66) notes that some are strict about this question.  This question seems to hinge upon how one understands the role of Sefeik Sefeika; see Rav Yosef Dov Soloveitchik’s analysis cited by Rav Schachter in the Journal of Halacha and Contemporary Society, Spring 1985 p.158.  If one believes that in a case of Sefeik Sefeika it is as if no Safeik exists at all, there is no need to investigate further.  The Shach concludes that one should be strict in a case in which it is easy for one to check and there is no expense involved in resolving the doubt.  Thus, since it is easy (and involves no extra cost) for a pregnant wife of a Kohen to simply inquire as to the gender of the fetus when she undergoes her routine sonogram, it would seem that she is obligated to make this inquiry and avoid contact with the dead if she is informed that the fetus is a male.

Nonetheless, Teshuvot Noda BeYehuda (Y.D. 43 cited in the Pitchei Teshuva Y.D. 110:35) writes that even the strict opinion would be lenient in a case where only one of the prongs of the double doubt can be clarified.  The Pitchei Teshuva records that Rav Akiva Eiger (Teshuvot number 77) and Maharshal (cited in Teshuvot Beit Yaakov 84) agree with this approach, and cites no dissenting opinions.

Accordingly, since only one of the prongs of the Rokeiach’s Sefeik Sefeika can be resolved by a sonogram (whether the fetus is a male or female) the Sefeik Sefeika remains in effect.  Thus, wives of Kohanim should not inquire as to the gender of their unborn child in order to preserve the Sefeik Sefeika and thereby obviate the need to avoid contact with the dead.

Rav Bleich, however, notes that some Acharonim, including the Pri Megadim (O.C. Aishel Avraham 343:2) and Gilyon Maharsha (Y.D. 371:1), challenge the validity of the Sefeik Sefeika presented by the Rokeiach.  They note that Tosafot (Ketubot 9a s.v. VeIba’it Eimah), the Shach (Y.D. 110 Klalei Sefeik Sefeika 33) and the Aruch HaShulchan (Y.D. 110:115) rule that a doubt can be utilized to create a legitimate Sefek Sefeika only if both sides are Safeik HaShakul (at least a 50/50 chance of occurence).  Accordingly, while the Safeik as to the gender of the fetus is a Safeik HaShakul (since at least fifty percent of babies are female) the Safeik as to whether the baby is a Neifel is not, since only a small minority of babies is Nefalim (Baruch Hashem). 

This leads the Chatam Sofer (Teshuvot Y.D. 354, referred to in Pitchei Teshuva Y.D. 371:1) to conclude that the principle that permits pregnant wives of Kohanim to come in contact with the dead is not a Sefeik Sefeika.  Rather, it is because of Rov (majority), as combining the possibilities of the fetus being a girl and also being a Neifel leads one to conclude that there is no concern for contact with the dead regarding the majority of unborn children.

Rav Bleich notes that there is a major implication inherent in concluding that the Rokeiach’s lenient ruling is based on Rov rather than Sefeik Sefeika.  Unlike a Sefeik Sefeika, which remains intact even if one of the prongs can be readily resolved, one cannot rely on Rov to resolve a doubt if the doubt is readily resolved upon inspection.  In a situation where there is a very significant minority (Miut HaMatzui) of cases where the Rov does not apply, rabbinic law requires one to investigate the situation if it is possible to do so (see Rashi to Chullin 12a s.v. Pesach and Ramban in his Milchamot Hashem to Chullin 4a in the pages in the Rif).  It is generally accepted that more than ten percent is considered a Miut HaMatzui (see Teshuvot Mishkenot Yaakov 1:Y.D. 17, Teshuvot Minchat Shlomo 2:61:1, and Rav Hershel Schachter’s Nefesh HaRav p. 228; Rav Mordechai Willig also mentioned this figure in a Shiur delivered to the Rabbinical Council of America). 

For example, Rav Hershel Schachter told me that if most suit jackets do not contain Shaatnez (a forbidden wool and linen mixture), but more than ten percent do, one would be rabbinically required to inspect a suit jacket he has purchased to see if it contains Shaatnez.  In our case, Rav Bleich rules, since a very significant minority of unborn children are viable males, a woman would be required by rabbinic law to inquire at her routine sonogram if the fetus is male or female.  If the child is discovered to be a male a Kohen’s wife would be required to avoid contact with the dead. 

Rav Bleich, though permits the wife to give birth in the hospital (despite the possible presence of dead bodies) because of concern for Pikuach Nefesh (danger to life).  Rav Bleich notes that Halacha regards childbirth as a situation that constitutes danger to life (see Shabbat 128b-129a), and the danger is lessened when it occurs in a hospital.  Rav Bleich marshals many recent medical studies to prove this point.  He notes that although there are some studies that indicate that home births with a professional certified midwife might be as safe as delivery in a hospital, every individual has the Halachic right to choose which health care provider and service is the better option for him or her (Shemirat Shabbat Kehilchata 32:38).  Accordingly, even if the routine sonogram indicates that the fetus is a boy, the Kohen’s wife may choose to give birth in a hospital if she believes that that it is safer to give birth there.   

The Lenient View – Rav Zalman Nechemia Goldberg 

There are, however, many reasons to adopt a lenient approach to our issue.  First, one may defend the integrity of the Sefeik Sefeika from the question posed by the Pri Megadim and Gilyon Maharsha.   Rav Zalman Nechemia Goldberg notes that the Gemara (Yevamot 119a) constructs a similar Sefeik Sefeika (although the term Sefeik Sefeika is not specifically mentioned in this passage) in the context of the Halachot regarding Yibum and Chalitzah (“perhaps she miscarried and perhaps she gave birth to a female”).  He also points out that the Rivash (number 371) notes that this passage in the Gemara contradicts the aforementioned Tosafot in Ketubot 9a. 

The Rivash (Rav Zalman Nechemia believes that this is also the approach of the Shev Shmateta 1:18) distinguishes between the two cases, explaining that a naturally occurring Safeik (one that pertains to a naturally occurring event), as opposed to a Safeik as to what behavior a human being chose to engage in, can be marshaled to construct a Sefeik Sefeika even if it is not a Safeik HaShakul.  Tosafot, on the other hand, address a case in which the Sefeik Sefeika is based on doubts regarding as to what choices were made by certain human beings. 

Accordingly, concludes Rav Zalman Nechemia, the Sefeik Safeika of the Rokeiach is legitimate, since both prongs involve doubts regarding which naturally occurring events occurred, even though one prong is not a Safeik HaShakul.  Since the Rokeiach’s Sefeik Sefeika is upheld, one can argue that a Kohen’s wife may rely on the opinions that one need not resolve a Sefeik Sefeika and need not inquire as to the gender of the fetus when she undergoes her routine sonogram.  A reason why investigation is not necessary regarding a Sefeik Sefeika as opposed to a Rov is that Sefeik Sefeika is a more potent tool to resolve doubt than Rov (although there is much discussion of this point, summarized in the Aruch HaShulchan Y.D. 110 96-98). 

Next week, we shall (IY”H and B”N) present two other reasons to justify a lenient ruling in our case.