Thursday, March 2, 2017

Petzuah Daka - A Riddle Wrapped In a Mystery Inside an Enigma

In our previous post, we touched upon some of the paradoxical issues of a petzuah daka. And I must admit that I find these Halachos frightening if not a bit disturbing. Not only does a petzuah daka not need to be born with this status to be forbidden, but if he is born with an identical condition, he is not a petzuah daka and has no restrictions! 

This teaches us that HKBH has no hakpadah (disdain) that a man who cannot procreate should not be allowed to marry. Indeed, if a man wishes to marry a known eiloniss (barren woman), there is no prohibition to do so. At most, if he has not sired children with any previous wives, he is ipso facto transgressing the positive commandment to procreate; but there is no prohibition in the marriage itself. The Torah’s issue is that a man who was born fully intact cannot alter his body to a state of sterility. And for such an infraction, HKBH decreed that he be ostracized from society and not allowed to marry. This that he can marry a convert is an anomaly.

As Churchill exclaimed: “It is a riddle wrapped in a mystery inside an enigma, but perhaps there is a key....” The Sefer HaChinuch (559) writes that, in Biblical times, there was a tendency for kings to emasculate men to serve as guards for their harems “and there are even those low-lifes who desire such a procedure in order to merit benefits from the king’s table and to profit in money…

Perhaps, we can add to this that HKBH was “concerned” that sincere pious Jews who wish to be ascetic and holy and not to have to deal with the “temptations of flesh” would resort to self-castration to purify themselves. In fact, Yalkut Shimoni tells us a tale of Rabi Mattai ben Cheresh who chose to gouge out his eyes when faced with a temptation and he is lionized for his bravery. So perhaps the same would apply to one who castrates himself. As such, HKBH saw a need to demonstrate how abominable such an act is in His eyes.

Of course, this perspective begs the question that, although it seems logical in a case where one actively carries out this procedure or allows it to be done to him willingly, the implication of chazal in the gemara and the rishonim, including the Sefer HaChinuch itself, is that this decree applies to one who is emasculated due to any form of injury, including where he was attacked by an animal or hit by the branch or a tree as well as being involuntarily injured by the malice or negligence of another. 

Hence, one can be victimized by a Jew hating thug or sustain a war injury and in addition to losing his manhood, he must divorce his wife who is then free to marry anybody she wants while he can only be married to a convert. Note that during the times of the Crusades, Cossaks, and Inquisition, etc. when mutilations of this sort must have been reasonably common, converts were understandably exceedingly hard to come by.  

To augment this irony, in our last post we noted that all of the above applies even if he has a house full of kids so there is no longer the mitzvah to procreate and he can still perform sexually and has a healthy libido (which generally needs to be satisfied) albeit no viable sperm. In other words, he can still be intimate with his wife. 

A bit disconcerting isn’t this? 

Now here is where the quagmire gets deeper. 

At least up to this point we are assuming that if the 35 year old man with a loving wife and six kids gets whacked, and according to Halacha he must divorce his wife and perhaps he will find a giyores to marry, at least he won’t be having a second family with the giyores. I mean, a petzuah daka and krus shafcha are totally sterile, aren’t they? 

Well, yes and no. Here is one of a number of places in Shas where chazal throw us a hard curve ball (please wear a cup). 

Rest assured, the Rishonim that define the status, notably the Sefer HaChinuch I mentioned above as well as Rambam in Sefer HaMitzvos, clearly define the petzuah daka/krus shafcha (PD/KS) as “one who has destroyed his reproductive organs to the extent that he cannot procreate”. Likewise, the gemara itself mentions in several places in the sugya that a PD/KS is not capable of procreation. Nevertheless, the gemara does us the favor of describing what kind of injuries bring one to this state.  

Chazal insist that if one can emit seed but cannot shoot seed “like an arrow”, this type of seed is incapable of fertilizing. Likewise, if the seed does not emerge from the tip of the shaft, for instance if one was pierced or cut at a lower point on the shaft and his fluids exit from the lower point, this seed is not capable of fertilizing and as, such, the man is forbidden. In addition, the gemara quotes a Braitha which defines a petzuah daka as “one who sustained a wound to even one of his 'eggs' or even just a pierce or even…” don’t ask. The gemara on the spot challenges this Braitha with an incident of an accidental injury to one egg (we note from here that even accidental injuries count) and yet he had more children. The gemara brushes off the challenge by declaring that the children must not be his.  

Hence, the gemara insists that the Braitha’s guidelines are scientifically immutable. Tosefos challenges the scientific accuracy of this Braitha that we see those who have lost one testicle and still procreate. The only response that Rabenu Tam can give us is to distinguish between where a testicle is totally removed – can procreate – to where one is wounded but not removed (and the other is intact) – cannot procreate.  

Despite this distinction, Rambam and Shulchan Aruch and, according to Rema, most Rishonim rule like the Braitha. If the Braitha says one is pasul it means he cannot procreate. Period.  

Likewise in the case of the seed coming out of a lower exit, the ruling is that this person is unequivocally a krus shafcha. Pischei Teshuva (Even HaEzer 5: sk 5) brings a case where the man was not aware that they cannot be married, married and had children. He then learned this Halacha and asked a shaila. He did not get a hetter to stay married. 

[While we are in the krus shafcha department, I asked the dayan that in today's world, if one is "Bobbitized", the doctors can take some muscle from another area and reconstruct the damage. As far as I know, it is possible even for impregnation. Does this count? His off the cuff response to me was , "Lo tov." Whereupon, we can ask (I didn't),what about in the actual Bobbitt episode where the original shaft was reattached and - from the sources - seems to have worked just fine. Is that okay?]   

What emerges is another type of paradox. Even though the identifying condition for the status of a PD/KS is that the subject is incapable of procreation, in practice the status is set by chazal’s guidelines and not by any actual litmus test of whether the person can actually procreate. In all these cases, we are not dealing where the subject is not capable of sexual performance. They can all perform sexually at some level and release seed. Chazal seem to carry a mesora that these cases are non-procreative. And the Halacha is set accordingly. Yet, Tosefos, some case histories and today’s reproductive science indicate that not all of these injuries inhibit procreation. 

So, to return to our original question where I answered Yes and No, the answer is Yes that by definition a PD/KS is fully sterile but No that we don’t test the person scientifically and according to the Halachic guidelines that we follow, there can be discrepancies.  As such, we may even see cases where a person is injured, forced by Halacha to divorce his wife, go on and marry a giyores and have more children! 

So, what’s the deal in our generation? What about prostate surgery and vasectomies? And what about our friend from last post who was downsized in summer camp (he’d be in his 50s now)? 

To start we first must stress the fundamental stipulation that this condition only applies to an afterbirth event of injury – which is called Bidei Adam (though even from an animal, stick, bullet, bayonet, whatever). It does not apply to any case that is not the result of an injury, which is called Bidei Shamayim. As such, our Rabbanim try to give the most liberal definition of Bidei Shamayim as they can. 

Any birth defect, natural old-age impotence, low libido and general ED are all Bidei Shamayim. Also anything that is solely the result of a sickness (ch”v cancer or tumors) or an infection that comes by itself that makes one sterile but does not require surgical removal of the testicles or cutting through seed passages. If the infection is the result of a wound, it is bad news. The grey area is where there is a need for surgery due to an ailment but the testicle was originally affected by the ailment and the doctor is merely removing diseased tissue. This is a serious shaila but it seems that most poskim will call it Bidei Shamayim. 

As for PD/KS that is a result of an accident or injury, I think we should look at this at three levels: 

Level 1 - One who’s injury matches the descriptions in Chazal who can fully perform and possibly even procreate (e.g., our friend from summer camp). 

Level 2 - One who can function sexually and maintain intimacy but is not fertile (a vasectomy).

Level 3 One who cannot carry out marital relations at all.

Level 1

Level 1 is the paradoxical case that I was describing earlier. The Halachic question is: in case there is a discrepancy, where the injury matches the description of Chazal yet it appears that the person can or may be able to procreate, which factor prevails? The stated Halacha or the current reality? 

This question stood in limbo until the winter of 1963 whereupon Harav Moshe Feinstein, ZT”L (bless him), in a monumental psak, ruled once and for all that the prohibition is absolutely contingent upon the subject being truly sterile. He said the pshat in Chazal is that the Torah left it in the hands of Chazal to tell us which cases cause sterility and which don’t in accordance to the conditions in their times, but if and when the conditions change, Chazal whole-heartedly would modify their guidelines. Thus, as long as we know that one should be able to procreate there are no grounds to prohibit. 

Whatever Rav Moshe paskens is Halacha L’Moshe M’Sinai but we must recognize that Rav Moshe had to struggle with Rambam and Shulchan Aruch and many previous piskei din in 9 ½ columns of small print to make his case. And he had to insist that reproductive conditions of today are not the same as in the times of Chazal. Until 1963, no major posek paskened that the ability to procreate trumps all other factors and, as such, we must believe that before 1963, this viewpoint was anything but unanimous.

So, our friend from summer camp is very fortunate to live in our generation. If he can indeed function normally and procreate, according to Rav Moshe Feinstein he is good to go. Both to get married and to stay married. If he cannot and the injury did not affect the other “stone”, there still may be numerous opinions to be lenient, even to get married. If the other “stone” was also damaged, it is much more difficult to get a hetter, which brings us to Level 2.

Level 2

It is obvious that Level 2 is precisely the scenario that the prohibition is meant to address. So the rule of thumb is that our subject is a PD/KS and out of business. However, we all recognize how tragic and devastating such a thing would be. As I wrote, for an unmarried PD/KS this is a life sentence of loneliness and isolation. It’s like solitary confinement. And for a married person, it’s even worse. Indescribably worse. And here is where the Rabbanim need to be “creative”. 

I spoke to a high-end dayan about this. He confirmed that it is a serious problem and more than many people know. One avenue, as I wrote earlier is to give an exceedingly liberal definition of Bidei Shamayim. There are some opinions who want to hold that if someone was injured involuntarily or without actual human causation (i.e., an animal or “unmanned” object), it can be construed as Bidei Shamayim. This, however, has been rejected by many poskim since it flies in the face of many references in the gemara and rishonim such as the Sefer Hachinuch that I quoted earlier. 

Perhaps another avenue for a hetter would be if a doctor would state that there is a minute chance that he can release fertile semen even if it is mathematically ruled out, perhaps we can rely on this (my own thought). 

There may be some other back-door hetteirm but he didn’t have time for a full rundown. He did refer me to check out the Otzar HaPoskim (a 60 year old anthology of teshuvos on Even HaEzer which was mainly compiled to help WWII agunos). Yet, he told me that sometimes there are no solutions. 

Also, be aware that some hetteirim which are implemented to save a marriage are not adequate to allow somebody to get married in the first place. 

As for prostate surgery, Rav Moshe, ZT”L has a teshuva on it and he refers us to a psak from the Chazon Ish who said that, although the gemara specifically includes the cutting of seminal passages in the definition of petzuah daka, it only means those in the scrotum. Those that are embedded in the body behind the protruding organs do not make one a PD. Though there is no real logic to make this distinction, Chazon Ish says we do not need to prohibit anything beyond what Chazal told us explicitly even though there is no logical difference. Today, we all rely on this psak. 

As for a vasectomy – don’t even think about it. I tried to find out what a posek would do if one did have one and wants to stay married (which is probably why he had one) but wasn’t successful. I emailed a Rav in boondocks America who I am related to and he didn’t answer me.
I don’t know exactly how vasectomies are done but if it was done in the prostate area, we may be able to rely on the Chazon Ish. If not, perhaps we could advise him to to a reversal procedure which, if successful, is wonderful and if it’s not successful, perhaps we can fall back on the “minute possibility” concept that I proposed earlier. 

Level 3

As far as level 3 is concerned, where a person cannot perform sexually at any level, I did not discuss this specifically, but from what I understand, it would be next to impossible for somebody who is not married to get a hetter. In some ways, this is less of a tragedy than Level 2. In Level 2 a person can still perform and very likely has sexual cravings, so it is tortuous for him to be denied the intimacy that he needs and and is capable of. For one who doesn’t have the equipment, it is not as tortuous although everybody needs companionship. 

If one is married and wants to stay that way, quite obviously we must employ all means at our disposal to find a hetter just as we would for Level 2. 

This basically concludes our discussion about petzuah daka but there still remains one gaping question: 


Why am I discussing this? Why this? Why now? 

It is certainly a very complex and misunderstood topic and very underrated in terms of importance. As it can, R”L, affect anyone of us, it is certainly quite relevant. I hope I have increased people’s awareness about this subject and that my readers have learned from it. 

But what inspired me? 

I originally meant to cover the whole topic in my first post of this series and certainly by the end of this one; but the posts just expand and I can only stay up so late and I can only make a post so long. 

So, stay tuned for the (I really hope) grand finale.

 With the sting comes the honey – if one is “That Kind of Person”. 

So long…

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