In Fertility and Jewish Law, Dr. Ronit Irshai provides a scholarly and comprehensive review of the halakhic literature on the fertility related topics of contraception, abortion, and artificial reproductive technology (ART). Her clear analysis and explanation of the key issues in each of these sources is commendable. So, too, is her desire to analyze these issues from the female point of view.
Her analysis, however, is, at times, hard to reconcile. Dr. Irshai describes a man’s situation as one where “personal interests … are balanced against the obligation to procreate in a way that allows for fairly broad freedom to the point that his ability to shape his life as he sees fit within the context of his religious obligations is almost unimpaired.” A woman, on the other hand, Irshai continues:
is not bound by the commandment to procreate or by the commandment to study Torah and is certainly not regarded as the primary, or even secondary, breadwinner. At first glance, her freedom would appear to be absolute. In practice, however, she is bound by cultural presumptions that take an unfavorable view of her remaining unmarried, she is subordinated to her husband’s obligation to procreate… and she is denied almost all recognition of her presence as a subject where abortion is a relevant consideration (p. 193).
These claims are perplexing because: (1) Men are bound by halakhic considerations (not only the commandment to procreate) that take an unfavorable view of remaining unmarried. (2) If a wife is only the vehicle for her husband’s obligation to procreate, and he has freedom, does she not have freedom as well? (3) When abortion is permitted, it is justified on the basis of the threat to the woman’s physical or mental health; why is this not recognizing her needs? When abortion is permitted in the case of a severely disabled child, it is the impact on the family (both the father and the mother) that is the reason.
Dr. Irshai’s presentation of artificial reproductive technology is an important one. She correctly points out that the halakhic discussion to date has focused solely on the implications on parentage, without examining the potential risk to women from the procedures. It would have been helpful had Dr. Irshai enumerated what these risks are. As risk to health is a halakhic consideration, discussion of the impact of halakhic rulings on women should be not only on the impact on their educational freedom and career development, but on their bodily health as well.
One topic is surprising in its absence. Though mentioned in passing, artificial insemination for unmarried women does not receive full treatment. Although there are few written responsa on the topic, there are even fewer that permit this phenomenon. It would seem that a complete feminist analysis of fertility needs to engage this topic, as it might be argued that this is an example where concerns of public policy take precedence over the purported claim of procreation at all cost.
The book would have benefited from a clear definition of what constitutes a modern responsum. The examples quoted range from the mid-1900s to the present. At times, Dr. Irshai quotes writing that was meant as a commentary, not as a responsum. For example, Rabbi Dr. Avraham Steinberg made the comments quoted in his name as part of an encyclopedia entry. While Dr. Irshai states at the outset that she is going to stick to public proclamations and not private conversations, she does not at all tap into the large world of halakhic rulings on the Internet. Had she done so, she would have found a number of rulings that are far more permissive than the ones she quotes.
Analysis of modern responsa should also reflect modern phenomena. There needs to be acknowledgment that in the National Religious community of Israel, large families do not preclude a career on the part of the wife. There are many mothers of families of six and beyond in which the mother has at least one advanced degree, if not more, and uses it professionally.
I would answer Dr. Irshai’s call for assuring that the feminist viewpoint be taken into consideration in halakhic rulings by striving to ensure that women be Jewishly educated. Halakha is case-based. The more questions that are asked by women who know the sources, the more the female point of view will be taken into account. This has certainly been my experience as a yoetzet halakha. In my experience in answering thousands of questions on Nishmat’s Women’s Health and Halacha website (www.yoatzot. org), women’s reproductive choices are more often limited by their insufficient knowledge or lack of realization that they have a right to ask questions than by the answers they are getting.
In summary, this is a book that should be read by all those who find the topic of fertility in Jewish law to be of interest. It can be the first step in the increased education I proposed above. However, the presentation of the issues in the book should be taken as food for thought that requires further digestion rather than just being swallowed whole.