THOUGHTS ON THE PARASHAH
Rabbi Evan Hoffman – Congregation Anshe Sholom
Parshat Tazria-Metzora – פרשת תזריע-מצורע
April 29, 2017 – ג אייר תשע”ז
This essay is sponsored by Sisterhood in memory of Sandy Wolff שרה בת הרשל הלוי; and by David & Florence Simhon in memory of Isaac Simhon יצחק בן שלמה.
Dam Tohar: The Forgotten Leniency
Leviticus 12 sets forth a series of laws pertaining to women who have recently given birth (yoledet). A woman contracts impurity by birthing a child. In the post-Temple era, the restrictions on an impure woman’s contact with sacred foodstuffs as well as on her freedom of movement have fallen into desuetude. Similarly, the yoledet’s sacrifice of a lamb and pigeon or turtledove to remove the last vestiges of impurity is a dead letter. The primary halakhic concern for a yoledet is to determine when she may immerse herself in a ritual bath and resume sexual relations with her husband. Leviticus 12 strongly hints when that might be, but remains ambiguous.
The yoledet’s term of impurity is either seven or fourteen days, after the birth of a boy or a girl, respectively. During the applicable period, the mother is “unclean as at the time of her menstrual infirmity (12:2).” Leviticus 18:19 prohibits amorously drawing near a menstruant (niddah). It necessarily follows that, even without expressly mentioning the issue, Leviticus 12 prohibits marital intimacy during the initial postpartum phase.
The duration of the yoledet’s next halakhic phase is again determined by the baby’s gender. It is either 33 or 66 days after the birth of a boy or girl, respectively. During this period, the mother “shall remain in a state of blood purification. She shall not touch any consecrated thing nor enter the sanctuary until her period of purification is completed (12:4).” The term דמי טהרה is unclear. A literal translation would be “pure blood.” The sages understood the verse to mean that only with respect to consecrated matters and sacred space is the yoledet still at a disadvantage. As for sexual activity, which is ordinarily proscribed if she experiences vaginal bleeding, during this phase she can have intimate relations with her husband and disregard any such blood because it is pure.
Why should dam tohar, the pure blood of the yoledet’s second phase, be treated leniently by Scripture? Rav and Levi, early third century CE Amoraim, debated the issue (Niddah 35b). Levi posited that women have two separate wellsprings from which blood emerges: One uterus expels impure menstrual blood; the other expels dam tohar. Rav claimed that as a matter of scientific fact both impure niddah blood and dam tohar emerge from the same source. The halakhic distinction between the two relates not to anatomy but solely to timing. By unexplained Scriptural fiat, on some days of the yoledet’s calendar she is susceptible to impurity but on other days she is not.
Though the commentators are largely silent on the matter, it is easy to theorize why the category of dam tohar came to be. The Author of the commandments, aware of the extended period during which a woman who has recently given birth is likely to experience vaginal bleeding, did not wish to impose such a lengthy term of sexual abstinence on the couple. Accordingly, a fixed term of 33 or 66 days was established wherein there could be no ritual impediment to physical relations between husband and wife (see Midrash Ha-Gadol Leviticus 12:4).
The leniency of dam tohar has not been an operative part of normative rabbinic Judaism for at least 600 years. It has evaporated. Why and how the practice moved rightwards can be explained only in light of the broader evolution in the laws of niddah towards standards much stricter than those set out by the Torah.
According to Torah law, a woman who experiences menstrual bleeding at an expected time has the status of niddah. She remains impure for seven days and may then immerse in the mikvah. A woman who experiences one or two days of vaginal bleeding at an unexpected time has the status of zavah ketanah (minor zavah). She must abstain from sex for one clean day and then immerses. A woman who bleeds for three consecutive days at an unexpected point in her menstrual cycle becomes a zavah gedolah (major zavah). She must count seven clean days before she may immerse and, subsequent thereto, have sexual relations with her husband.
Because of the complexity of the purity laws and the difficulty of keeping accurate track of what days are “expected” niddah days versus “unexpected” zivah days, Rabbi Judah the Patriarch instructed women living in the countryside to do this: After one day of vaginal bleeding, abstain from sex for the subsequent six days (a total of seven). After two days of bleeding, she should similarly abstain for the next six days (a total of eight). After three or more days of bleeding, she should count seven clean days before immersing (Niddah 66a). Rabbi’s guidance had the effect of eliminating the category of zavah ketanah. Every episode of vaginal bleeding, would, at a minimum, be treated like niddah blood. Moreover, since most women experience at least three days of bleeding during menstruation, the typical niddah would have to abide by the strict rules pertaining to a zavah gedolah.
These simple safeguards, directed toward unlettered women who lived far from centers of religious knowledge, nevertheless apparently were insufficient. Rabbi Zeira, a third generation Amora, reported that “the daughters of Israel have taken a stringency upon themselves that even if they see just one drop of blood the size of a mustard seed they wait seven clean days.” This stringency very quickly became a universal practice within Jewry. The Talmud teaches that one should not rise to pray amidst the mental anguish of intricate, complex halakhic study, but rather amidst the mental calm that follows the recitation of a clear-cut law. Abaye, a fourth generation Amora, referred to the stringency of the daughters of Israel as an example of a clear-cut law (Berakhot 31a). [There is some scholarly debate whether Rabbi Zeira’s report accurately portrays the history of the custom. Another Talmudic source has Rav Huna, a second generation Amora, reciting before prayer the rule about counting seven clean days after seeing a small amount of blood. Yet Rav Huna did not identify the practice as a stringency or as having been initiated by the daughters of Israel (Yerushalmi Berakhot 8d). One guesses that the rule likely was imposed by the rabbinical class but was recorded for posterity as having originated with the female laity to make it seem less onerous.]
Considering the overall, unalloyed severity of the niddah laws as actually practiced since the third century CE, it is hardly surprising that the yoledet’s leniency of dam tohar eventually was abolished and forgotten.
Rabbi Isaac Alfasi (11th century) was the first commentator to explain why a mother during her 33 or 66 “days of purity” ought nevertheless to be treated like all other women and be required, upon seeing blood, to abstain for seven clean days and immerse. He noted that a woman who gives birth while being a zavah would require seven clean days, even in the “days of purity,” before she could properly immerse. Moreover, ever since the days of Rabbi Zeira all women who give birth are treated as impure at the level of zavah rather than niddah. Since the “days of purity” do not protect women from the need to observe clean days in all instances, a safeguard was instituted whereby the “days of purity” never shield a bleeding woman from the abstinence and immersion requirements (Rif Shevuot 4a).
Rabbi Abraham ben David of Posquieres (12th century) accepted the abrogation of the leniency of dam tohar, though he rejected Alfasi’s reason, instead putting forth one of his own. He noted that women are prone to make mistakes in calculating time. He argued that just as the law changed out of concern that women will fail to distinguish between the days of niddah and zivah, so too did the law need to change because of the possibility that a yoledet will miscalculate and fail to distinguish between her “days of purity” and days after her exempt period (Baalei Nefesh, Sha’ar Ha-Perishah).
Ramban offered yet another reason for discontinuing the leniency of dam tohar. If a woman miscarries after at least 40 days of pregnancy, she assumes the status of a yoledet and observes seven or fourteen days (depending on the gender of the expelled fetus) of impurity, followed by 33 or 66 days (again, depending on gender) of purity. Often there is doubt about whether a pregnancy was far enough along to classify the woman as a yoledet. In those instances, she must observe the first phase of impurity out of doubt. But she cannot take advantage of the second phase of purity lest she not be truly a yoledet and inadvertently have illicit intercourse. Ramban asserted that the leniency of dam toharr had to be abolished because, had it not been, women would then incorrectly assume that any yoledet, even a doubtful one, who observes the first phase of impurity is necessarily entitled to subsequent “days of purity.” Ramban also advanced the logical argument that if women were so strict as to wait seven clean days after seeing a miniscule drop of menstrual blood, a fortiori they would not engage in sexual relations while gushing blood — even if the Torah allows it (Hilkhot Niddah La-Ramban 7:20).
Rabbi Joseph Karo cited Rashba in offering yet another explanation. It is possible that a fetus will partially emerge before sunset, slip back into the mother’s body, and be born only after sundown. In such a case, the yoledet’s calendrical reckoning should begin on the preceding day. Unaware of that halakhic super-fine point, the mother might begin counting on the second day and eventually (incorrectly) reckon day 81, when she is subject to impurity, as day 80, when she is still not tainted by menstrual impurity. To avoid that possibility, the leniency of dam tohar was abolished (Bet Yosef Yoreh Deah 194).
When did the change in halakhah take place? Ramban strongly asserted that treating the yoledet in her “days of purity” no differently from all other women was an integral part of the original stringency of the daughters of Israel. This would date the change to the late Tannaitic or early Amoraic period. Rashba, however, cited proof that the leniency of dam tohar was still in effect for part of the Amoraic period. Samuel told Rav Judah not to permit women who miscarried to observe “days of purity” unless the fetus had hair (Niddah 25b). Rabbah bar bar Hannah said in the name of Rav that those who have sexual relations in the presence of dam tohar must abstain on the 41st night after the birth of a boy or the 81st night after the birth of a girl (Pesahim 113b). These Talmudic texts clearly indicate that third century CE Babylonian Jewry continued to uphold the Biblical law of yoledet.
Rambam claimed that the abrogation of the Biblical leniency did not occur until the Geonic era. Moreover, he denied that the more demanding standard was universal Jewish practice, since, he asserted, it was accepted in Babylonia, Eretz Yisrael, and Spain, but not in France. On this matter, Rambam recognized the legitimacy of divergent regional customs (Hilkhot Issurei Bi’ah 11:6-7). Ramban was similarly aware that some Jews were still not living according to the stricter approach, yet he denied the religious legitimacy of their behavior, and (ahistorically) asserted that the Geonim issued an excommunication edict against anyone who applied the Biblical law of dam tohar.
Rabbi Isaac ben Moses of Vienna (13th century) confirmed that the practice among Ashkenazi Jews was to allow sexual activity in the presence of dam tohar throughout the “days of purity.” He cited the permissive ruling of Rabbenu Tam that dam tohar is absolutely pure (Or Zarua 1: Hilkhot Niddah 339). Rabbenu Asher, commenting on the stricter custom of the Sephardic world, noted that in France and Germany the popular practice was still in accordance with the more lenient Biblical law (Rosh Niddah 10). His son, Rabbi Jacob (1270-1340), was the last major rabbinic writer to state that Ashkenazi Jews in France and Germany still utilized the leniency of dam tohar (Tur Yoreh Deah 194).
Though in the early phases of halakhic history Ashkenazic Jewry was more lenient than Sephardic Jewry regarding the purity status of a yoledet, that situation reversed itself at some point in the 14th century.
Rambam mentioned a fringe practice in some Jewish communities for couples not to have sexual relations for 40 days after the birth of a boy or 80 days after the birth of a girl. He regarded this as a heretical custom copied from the Sadducees and considered the uprooting of that practice to be a religious obligation (Hilkhot Issurei Bi’ah 11:15).
Rabbi Isaac ben Sheshet Perfet (14th century North Africa) attempted to justify the practice as virtuous asceticism. Alternatively, people were strict for hygienic reasons or because there is a copious amount of bleeding during the “days of purity.” However, Perfet stipulated that those adhering to the custom need to know that it is merely a custom and not required by law. If they erroneously believe that it is required, they need to be disabused of that Sadduceean notion (Shu”t Rivash 40). Rabbi Joseph ben Solomon Colon (15th century Italy) thought the custom to be absurd. He incredulously wondered how the Torah’s extraordinarily lenient treatment of the yoledet’s purity status could serve to justify the practice of forbidding sexual contact with her for even longer than is the case for an ordinary menstruant. Nonetheless, in those communities that had already adopted the custom he was willing to countenance its perpetuation because it is important that one “do[es] not forsake [one’s] mother’s teaching (Proverbs 1:8).” He further theorized that those who initiated the practice must have been trying to rein in religious laxity (Shu”t Maharik 144). Rabbi Alexander Suslin (14th century Germany) suggested that the extreme stringency was adopted by women out of fear that they would forget to abstain from intercourse on night 41 or night 81, as the case might be (Sefer Ha-Agudah Pesahim 96).
Rabbi Jacob ben Moses Levi Moelin (Germany 1365-1427) offered a fascinating theory about the spread of theyoledet’s extreme stringency in Ashkenazic communities. The women were worried about possibly erring in their calculation of the “days of purity” and so they wished to adopt the stricter standard of waiting seven clean days and immersing. But they feared that their husbands would not listen to them and would insist upon having intercourse even in the presence of dam tohar. To avoid being coerced into what might be possibly sinful sexual encounters, the women simply refused to immerse until 40 or 80 days after childbirth (Shu”t Maharil 93).
A highly technical justification for the practice of delayed immersion was put forth first by Rabbi Moses Isserles (Darkei Moshe) and was later amplified by Rabbi Joel Sirkes (Bach) in their respective commentaries on the Tur. The Talmud questions whether a zavah who gives birth can begin counting clean days during the initial seven or fourteen day period of intense childbirth impurity (Niddah 54b). Nearly all the Rishonim ruled affirmatively in accordance with Rava (Rambam Hilkhot Issurei Bi’ah 7:11). Only Rabbenu Tam ruled prohibitively in accordance with Abaye (Tosfot Niddah 37a). Moreover, according to Rabbenu Tam, the woman must first immerse and rid herself of childbirth impurity before she can begin counting seven clean days in anticipation of her second immersion to rid herself of zavah status, at which point finally she would be permitted to her husband. There never developed a popular practice for women to immerse twice before resuming marital relations, and Bach suggested that it would be too difficult for them to do so. The solution, instead, was to wait until after the “days of purity” were over, at which point only one immersion would be necessary. However, Bach pointed out, the practice of delayed immersion can be truly reconciled with the halakhic opinions of Rabbenu Tam only if the yoledet begins counting her clean days after day 80 and immerses after day 87. [The irony of this proposition is that Rabbenu Tam himself encouraged early immersion and permitted sexual relations in the presence of dam tohar.]
Rama codified the abrogation of the Biblical leniency of dam tohar, noting that by the time of his generation the stricter standard had become the uniform practice throughout Jewry. He also mentioned the extreme practice of not immersing until after 40 or 80 days. He ruled that one should adhere to the custom in those locales where it is accepted practice, but that if a community has no such tradition it should not be adopted (Shulhan Arukh Yoreah Deah 194:1). Rabbi Mordechai Yoffe had a negative view of delayed immersion but, like Rama, he suggested that communities with such a tradition not forsake it lest that lead to further illegitimate liberties taken by the laity in matters of purity (Levush).
Bach (1561-1640) was the only major rabbinic figure to write favorably of the custom of delayed immersion. He harshly criticized those in his generation who undermined the tradition by sending their wives to the mikvah before night 41 or 81, applying to them the verse “he who breaks walls should be bitten by a snake (Ecclesiastes 10:8).” His son-in-law, Rabbi David HaLevi Segal (1581-1667), felt that Bach had gone too far in unfairly chastising those rejecting the extreme custom (Taz Yoreh Deah 194:3). Taz noted that, in his own day, very few women waited 40 or 80 days before immersing, and absolutely no women waited that long after a miscarriage. He blessed those who, for the sake of Heaven, wished to preserve the custom of delayed immersion, but “Heaven forfend to punish someone for not doing so.”
Rabbi Zvi Hirsh Ashkenazi (1656-1718), known as the Haham Zvi, was asked whether there is any justification for distinguishing between the purification rites of a woman who gives birth to a live baby and one who experiences a miscarriage. He answered that at the Biblical level there is no difference. At the practical level, however, he insisted that even in communities where a yoledet waits 40 or 80 days to immerse, after a miscarriage she should immerse immediately upon counting seven clean days. Why? The custom of delayed immersion is actually nonsense or worse. Some of the rabbis, seeing that the practice would not totally disappear, attempted to give it quasi-rational explanations. The best rationalization, in the view of Haham Zvi, was that of Rivash, who claimed that the long period of abstinence was due to the copious amount of vaginal bleeding. Since there is substantially less blood expelled from a miscarriage than from a live birth, observance of the custom is unwarranted. Moreover, a baseless custom cannot be allowed to interfere with the Divine commandment and the innate human desire to procreate (Shu”t Haham Zvi 8).
Rabbi Jonathan Eybeschutz (1690-1764) was troubled by the dramatic shift in Ashkenazic practice. How could it be that the Ashkenazim, who in prior centuries had been so lenient as to allow intercourse in the presence of dam tohar, moved so radically in the other direction? He theorized that Ashkenazic rabbis wanted to adopt the middle ground of merely abolishing the leniency of dam toharr. But the women, who were accustomed to the very lenient Biblical standard, refused to show their bloodstained cloths to the men. Rather than capitulating to female demands, the rabbis simply banned immersion until after the “days of purity.” Eybeschutz argued that since nobody even remembers the Biblical rule there is no longer any need to preserve the custom of delayed immersion. He posited that the custom is terrible because it leads to lasciviousness, lustful thoughts and the wasting of seed. Men cannot be removed from their only lawful sexual outlet for such a lengthy period without negative consequences. Another motivation for abolishing the custom was that in Eybeschutz’s generation it was observed in a flawed manner. Women would go the mikvah 45 days after having a boy or 65 days after having a girl. That timetable lacked any justification. Accordingly, Eybeschutz eliminated the practice in Prague (late 1730’s) and in Metz (1740’s). Haham Zvi had already eliminated it in Hamburg in the 1690’s. Eyebuschutz advised women to immerse just prior to their return to the synagogue, which was typically four weeks after giving birth (Kreiti u’Pleiti Yoreh Deah 194).
[The theories of Eybeschutz and Maharil concerning the evolution of the halakhah of yoledet are similar. Both hold that a pious group wanted to raise the standard of observance from the lenient Biblical paradigm to the mid-level policy of forbidding intercourse in the presence of dam tohar, but that, because of the intractable nature of some other group, there was no choice but to adopt the most stringent standard of delayed immersion. They disagree about who this “other group” of pietists was. Maharil thought that the women were exceedingly pious while the men were more interested in sexual opportunity. Eybeschutz thought that the pietists were the rabbis, while the women tenaciously held onto the relaxed standards of the past. These divergent theories correspond neatly to the two accounts of the original Talmudic era tightening of the law. Was it the “daughters of Israel” or the rabbis who insisted upon seven clean days for minor vaginal bleeding?]
Rabbi Ezekiel Landau (1713-1793), one of Eybeschutz’s successors in Prague, had a negative view of the custom of delayed immersion. He, too, noted the absurdity of women’s immersing on day 45 or 65 after childbirth. However, he did not want laypeople instituting changes in the purification timetable without first consulting rabbinic authorities (Shu”t Noda b’Yehuda Kamma Yoreh Deah 54). At the end of the 19th century, Rabbi Yechiel Michel Epstein wrote that to his knowledge the practice of delaying immersion no longer existed. As soon as women were able to count seven clean days they would go to the mikvah (Arukh HaShulhan Yoreh Deah 194:23). The audacity of the laity in casting off an onerous custom, combined with the general rabbinic antipathy for the custom, led to its discreet disappearance.
The primary reason Rambam opposed complete sexual abstinence during the “days of purity” was that he regarded it as a sectarian heresy. Indeed, the rabbis were the only group within Judaism to interpret Leviticus 12:4-5 as permitting intimate contact during the 33-day or 66-day second postpartum phase. The Samaritans, Karaites, and Ethiopian Beta Yisrael all forbade sexual relations with a yoledet until after 40 or 80 days. Eliyahu Bashyatchi, a 16th century Karaite scholar, criticized rabbinic halakhah as being derived from “Tradition” but in conflict with the plain meaning of Scripture (Aderet Eliyahu Inyan Tumah v’Tahara 12). Karaite exegetes compared Leviticus 12:7, which pertains to the yoledet’s sacrifice and final stage of purification, with Leviticus 20:18, which sets forth the punishment for fornicating with a menstruant. The former verse reads “and she shall be cleansed from the fountain of her blood,” while the latter reads “she hath uncovered the fountain of her blood.” The similarity of language implies, according to the Karaites, that a yoledet is forbidden to her husband as though she were a menstruant until the full two-stage term of purification has elapsed. For the Karaites and other like-minded groups, there never was a Biblical leniency of dam tohar. The rabbis created it and the rabbis took it away.
The law of the parturient (yoledet), and its evolution over many centuries, is a case study in conflicting tendencies in religious law. On the one hand, there is a trend toward stringency and the implementation of safeguards lest a theoretical (even though probabilistically unlikely) scenario lead to a sinful outcome. On the other hand, there is pushback against standards so rigorous that it is unrealistic to expect the broader public to submit to them. We have in this essay observed the unfortunate tendency for today’s private asceticism to become tomorrow’s binding law, and also how well-intentioned piety can be deemed to be objectionable because, unknowingly, it may mimic the behaviors and exegesis of Judaic sects considered by the rabbinic establishment to be renegade.