In January 2024, the Jofa and Maharat mission to Israel met with a number of Israeli leaders, including Rabbi Seth Farber, founder and director of ITIM; Sarah Evron, CEO of the Religious Kibbutz Movement; Dr. Michal Prins, a sexual intimacy counselor to religious couples; Sharon Laufer, who identifies fallen women soldiers and prepares them for burial; Rabbi Herzl Hefter, founder and rosh yeshiva of Yeshivat Har’el; and Rabbi Doron Perez, executive chairman of the World Mizrachi Movement.
Our discussions included an exploration of various halakhic issues brought to the fore by the October 7th war. These topics included the circumstances under which it is required to violate Shabbat in order to save lives (pikuah nefesh), how to conduct a “just war,” and if and how to negotiate for the return of the hostages. This article, however, will address specifically the gendered issues related to the war.
It is noteworthy that, when it comes to personal status issues, the State of Israel does not maintain a separation of religion and state. In such matters, the Israeli government, through the Israeli Rabbanut, plays a crucial role in determining who is a Jew, deciding questions of burial, divorce, and marriage, as well as mandating and controlling use of the mikvah (ritual bath) for women. While there have been concerns about the Rabbanut’s overreach in a variety of areas, it is important to realize that the majority of the rabbis who comprise the Rabbanut, and thereby hold the power to decide these issues, have not and do not serve in the army and so are often “walled off” from the experience of general Israeli society. Yet all Israeli Jews are beholden to the Rabbanut, regardless of their own religious affiliation and personal practice.
Use of the Mikvah
There are several times when immersion in the mikvah is ritually required for women. These include conversion (also required for men), prior to marriage, and—for couples who observe niddah—in connection with a women’s menstrual cycle and after childbirth. Ritual immersion in the context of marriage traditionally takes place after dark. In Israel there are an estimated 600,000–750,000 women who use the mikvah every year. Unlike anywhere else in the world, where mikvaot are privately held entities, in Israel the mikvaot are considered to be a public service and are funded and controlled by the government. In the aftermath of October 7th, there were numerous women in Israel who wanted and needed to make use of the mikvah, but could not go at night, either because they did not have childcare support (because their spouses were deployed) or because they felt unsafe going out at night.
All Israeli Jews are beholden to the Rabbanut, regardless of their own religious affiliation
Because mikvah attendants and workers are government employees who are contracted to work at night, the government could not unilaterally mandate a change in their work hours and force them to take on daytime shifts. And since the halakhically preferred time to immerse in the mikvah is at night, the Rabbanut did not seek to make a systemic—even if temporary—change in mikvah opening hours. But in light of the wartime situation, there were many women who now needed to use the mikvah during the day. In the end, a compromise was reached with the Rabbanut in each city, whereby they would open a mikvah during the daylight hours.
Relatedly, married couples who observe niddah laws refrain from intimacy during the wife’s menstruation and for the following seven days until she has immersed in the mikvah. For many couples this means refraining from all physical contact during this period. These couples looked for a rabbinic dispensation to allow for some physical contact, such as a hug, when a spouse’s deployment or return fell during the time when they normally refrained from such contact. There was little public discourse about this topic, but people privately shared the understanding that these were extenuating circumstances, and just as pikuah nefesh exceptions were made for use of technology on Shabbat in time of war, so too exceptions could be made to allow nonsexual physical touch for those with mental health or emotional wellness needs.
Military and Marriage
While there are incredible stories of women’s heroism in this war, such as the tank unit that held the line on October 7th, and the sacrifice that the tatzpitaniot (army spotters) made on October 7th, the majority of combatants serving on the front lines are men.
In Jewish law, a marriage is dissolved either when the husband delivers a get (writ of divorce) or by death. If the husband fails to deliver a get to his wife, she becomes an agunah and is unable to remarry. This could occur if the husband is captured or missing in action and it is impossible to determine whether he has died, or if, as a result of accident or injury, he lacks the mental capacity to consent to delivery of a get.
The Gemara relates that the soldiers in King David’s army would divorce their wives before going out to war to prevent exactly these scenarios. Variants of this approach could have been applied in the current war, but two considerations were raised in opposition to this practice. The first was that in King David’s day, men went off to war and did not return until the end of the battle. Thus a get delivered at the start of the battle remained effective until the battle was over and the fighters came home. However, halakhah provides that a get is deemed ineffective if the husband and wife have had sexual relations after it was given. During the current conflict, men cycled in and out of military service and returned home for days, weeks, or months at a time, rendering any previously given get ineffective. Another consideration raised about giving a get while at war was concern for morale, i.e., the message it would send suggesting that husbands might not return. The result of the current practice is that many wives of soldiers risk becoming agunot.
A related concern is that if a married man who did not have children was killed in the line of duty, his widow would be required to undergo either yibum (marrying the deceased husband’s brother) or halitzah (formally and ritually separating from the deceased husband’s brother). If the deceased husband’s brother refused to perform either of these acts, the wife would become unable to remarry. With the increased numbers of couples rushing to get married, or scheduled to get married as the husbands returned to their ranks, the possible need for halitzah ceremonies due to war has increased.
Burial and Who Is a Jew Questions
There were a number of concerns related to burial. First, Jewish tradition requires burial as soon as possible after a person dies. However, in this war an unprecedented number of dead bodies had to be accounted for and prepared for burial. Some bodies were in horrific states that needed additional care—because many families wanted the option to sit with their deceased loved one before burial, and their wishes had to be taken into consideration as well. In some cases, protocols for confirming the identities of the dead were modified. Some bodies were misplaced for a time. Some of the deceased had intended to donate their organs. In some cases, for security reasons, funerals had to be held outside of the deceased’s local cemetery. This raised the question of getting permissions to exhume and rebury later down the road.
During the war the issue became whether individuals who were Jewish for purposes of Israeli citizenship but not halakhically would be allowed to be buried in Jewish cemeteries.
Other issues regarding burial had to do with “Who is a Jew” status. The State of Israel has two different definitions of Jewishness. The first is the halakhic definition, namely, one who is born of a Jewish mother, or one who has converted to Judaism. The other definition is connected to the 1950 Law of Return, which granted entry and automatic Israeli citizenship to every Jewish person—defined to include individuals with at least one Jewish grandparent or a Jewish spouse. As a result, there are an estimated 550,000 Jewish-identifying people with Jewish lineage who are Israeli citizens but are not halakhically Jewish.
Traditionally, Jews and non-Jews are not buried in the same cemetery. During the war, the issue became whether individuals who were Jewish for purposes of Israeli citizenship but not halakhically would be allowed to be buried in Jewish cemeteries. In recent years, the army has dealt with this issue with the passage of a bill that permits soldiers, regardless of their halakhic Jewishness, to be buried alongside their Jewish comrades. However, there are a number of families (of both soldiers and others killed on October 7th) in which only some of the family members are halakhically Jewish, yet who want to be buried together as a family. There is still no consensus about how to deal with this situation.
Conclusion
Many of the issues described above were relevant even before the war, but became more urgent and potentially able to affect more people as a result of the war. As long as the Rabbanut retains control over these issues, accommodations will be slow in coming and many people will suffer.