HYSTERECTOMY Solomon B. Freehof

QUESTION: A young woman has had a hysterectomy and cannot bear children. Her husband refuses to have intercourse with her because this would be"spilling seed," prohibited in the Torah . Can this actually be justified within halakhah?(Rabbi Daniel Syme, New York.)*

ANSWER: The young man is entirely mistaken as to the law in this matter. First of all, while the general purpose of marriage is to have children, nevertheless it is no longer prohibited to a man to marry a woman who cannot have children. See the clear statement of Isserles in Even Haezer 1:3. Now it would stand to reason that if a man may marry a barren woman, it is understood that he would have intercourse with her, and that the intercourse in which the seed will be unproductive cannot be deemed sinful.

But we do not need to rely upon this inference, logical as it is. There is a clear statement in the law, first found in the Mordecai#3 to the

sixth chapter of Yevamor; and stated with unmistakable clarity in the Shulhan Arukh, in the section of"spilling of seed"(Even Haezer 23:5), as follows: It is permitted to have intercourse with a woman who cannot bear children(and it is not considered wasting seed) since the intercourse is conducted in the normal way. As long as the intercourse is normal, and there is no artificial barrier inserted into the womb before intercourse, there is no committing of the sin of"seed spilling."

There can be no doubt that the opinion of Isserles in Even Haezer 23:5, which we have cited, applies clearly in the case of hysterectomy. This is confirmed by the chief Orthodox authority in America today, Moses Feinstein (in his responsa Igrot Mosheh, Even Haezer#3). Rabbi Feinstein had received a request from a Chicago rabbi to endorse a permission by the Jewish court(maaseh bet din) allowing a certain man to marry another wife (without a get to his present wife). Rabbi Feinstein endorses the document for one of the various reasons given but rejects two of the reasons as irrelevant or

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