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Then: Sex, No Procreation. Now: Procreation, No Sex.

Then: Sex, No Procreation Now: Procreation, No Sex

In the first divine commandment that appears in the Bible, God turns to the newly created human couple, male and female, and directs them, “Be fertile and increase, fill the earth and master it…” (Genesis 1:28). Though the text is explicit that this command is directed “to them,” rabbinic Judaism and the legal tradition that it initiated came to understand this imperative to be one that binds men, but not women; women themselves are understood to be exempt from any similar duty to bear children. And yet, of course, woman is crucial to the process by which a man fulfills his religious obligation, and thus women’s role in the childbearing process is of intense interest to the Jewish legal tradition. It is that paradox that gives rise to an incisive study by Ronit Irshai, Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature (Brandeis University Press, $39.95), which examines how Jewish legal thinkers through history have addressed issues relating to women’s decision-making over their childbearing choices.

The book is divided into two broad sections, “Sex Without Procreation” (birth-control and abortion) and “Procreation Without Sex” (artificial insemination, in vitro fertilization and surrogacy). Irshai chooses to focus on legal writings coming from Orthodox communities, both “modern” and “haredi” (Ultra-Orthodox), with an emphasis on modern texts. This means that her study is in essence a review of the religious writings of men addressing issues of fundamental importance to women’s physical, spiritual, intellectual and emotional well-being, but women themselves are not participants in the discussions, a point of which Irshai is highly conscious: “Jewish law (halakhah) is the product of an exclusively male preserve. Though it governs the lives of men and women alike, it has been formulated and interpreted, for thousands of years, by an all-male scholarly elite.”

As the author demonstrates, the broad trends in Orthodox legal thinking in these two areas seem to go in opposite directions — strict limitations or outright prohibitions on means of preventing or ending pregnancy, versus a cautious but ultimately accepting approach towards the use of scientific means to fertilize and gestate a fetus. But Irshai probes into the legal decisors’ moves and maneuverings, selective readings and omissions so as to reveal aspects of a common gender ideology that links them: the ideology of pro-natalism. Compare, for example, the positions taken by Rabbi Moshe Feinstein, one of the most prominent Orthodox decisors of the 20th century, in the following areas: …the authorization [to abort a fetus] extends only to saving its mother from dying while giving birth and not to any of the mother’s other needs; that is obviously forbidden.

“[Artifical insemination] should be permitted with use of sperm from a gentile, for since the offspring will be a Jew because its mother is Jewish, there are no concerns of any sort… with the husband’s consent, and where they are suffering greatly, it should be permitted…”

Much of Irshai’s task is to walk the reader through the sources relevant to the topics at hand, from their origins in classical rabbinic literature of late antiquity (such as the Mishnah and Babylonian Talmud) through medieval commentary, responsa and codes, and into the writings of widely recognized Orthodox authorities of the 20th century. Irshai is well versed in the details and intricacies of these legal readings, and while the material may be more difficult for readers without this textual and legal training, Irshai is a clear and lucid guide, highlighting the crucial points and turns of logic  — or twisting of earlier sources — out of which legal rulings are built.

Ultimately, Irshai’s aim is to use methods of critical feminist theory “to tell a different halakhic story, one that accounts for the female narrative and its missing perspective.” As she observes, it is not enough to attempt to determine if the outcome of a legal ruling is “good” or “bad” for women: “We have seen that even when the halakhic conclusion of a given responsum could be considered respectful of women and properly sensitive to their interests, the rhetoric of that responsum sometimes points in the opposite direction.” Whatever the legal outcomes may be, she notes, “a substantial number of contemporary halakhic rulings in fact fail to treat the women in question as subjects, as ends in their own right; instead they define women’s value as people primarily through their reproductive function.” She demonstrates again and again that many of the conclusions reached by recent decisors are not the inevitable outcome of their source materials. She ends, however, on a hopeful note, one that stresses the importance of this work and others like it, particularly for “women who feel committed to halakhic discourse but also to the values of equality.” “The new ‘halakhic story’ they are creating affords the women of this generation the possibility of a considerable degree of liberation and opens the door to future change as well.” May it indeed be so.

Gail Labovitz, a Conservative rabbi and associate professor of rabbinic literature at the American Jewish University, is the author of Marriage and Metaphor: Constructions of Gender in Rabbinic Literature.