Rabbi Eliezer MelamedThe writer is Head of Yeshivat Har Bracha and a prolific author on Jewish Law, whose works include the series on Jewish law "Pininei Halacha" and a popular weekly column "Revivim" in the Besheva newspaper. His books "The Laws of Prayer" "The Laws of Passover" and "Nation, Land, Army" are presently being translated into English. Other articles by Rabbi Melamed can be viewed at: www.yhb.org.il/1
The General Mitzvoth
In the last few months, I dealt with the importance of the mitzvoth ofpuru u’revu (‘be fruitful and multiply’) and marriage, and I will now clarify its criteria.
First and foremost, it should be understood that there is general mitzvah to have children, and the mitzvah is so great that our Sages said: “The world was created for the sake of reproduction” (Mishna Gittin 4:2), because this mitzvah gives parents the privilege of participating with God in the birth of a human being.
However, lacking binding criteria on how to fulfill this great mitzvah, it is liable to remain vague and leave many doubts. On the one hand, since with the birth of every child one fulfills a great mitzvah, perhaps it is enough to have just one child – as he alone is like an entire world. On the other hand, since the mitzvah is so great and important, maybe everyone should make an effort – even beyond their powers – to have as many children as possible, and to do so, get married at the youngest possible age, and shorten the period of breastfeeding in order to have as many children as possible. Consequently, it was necessary for halakha (Jewish law) to determine the criteria of the mitzvah.
The Obligatory Mitzvah from the Torah and from Our Sages
The Torah obligated each and every Jewish male to have one son and one daughter, similar to God’s original creation of Adam and Eve, as it is written: “God [thus] created man with His image. In the image of God, He created him, male and female He created them. God blessed them. God said to them, “Be fruitful and multiply. Fill the land and conquer it…” (Genesis 1:27-28).
Our Sages added as an obligatory mitzvah to have additional children for two reasons: 1) because of the tremendous importance of life, and 2) to ensure the fulfillment of the Torah obligation (Yevamot 62b). I will explain further:
The Tremendous Value of Life
The first reason is the immeasurable value of life revealed in each and every soul, as explained in the Torah that having a number of children is a mitzvah and a blessing, as God said to Adam and Eve: “Be fruitful and multiply. Fill the land and conquer it…” (Genesis 1:28).
The Torah also says: “God blessed Noah and his children. He said to them, “Be fruitful and multiply, and fill the earth” (Genesis 9:1).
God also blessed our Forefathers with the blessing of the multiplicity of children, and so did Moshe bless Israel: “May God, lord of your fathers, increase your numbers a thousand fold, and bless you as He promised” (Deuteronomy 1:11).
And Rambam (Maimonides) wrote: “Although a man has fulfilled the mitzvah of being fruitful and multiplying, he is bound by a rabbinic commandment not to refrain from being fruitful and multiplying as long as he is physically potent. For anyone who adds a soul to the Jewish people is considered as if he built an entire world” (Hilchot Ishut 15:16).
The second reason is that although someone was privileged to have a son and a daughter, he is still not guaranteed to merit being a partner in the general purpose of the mitzvah, specifically, that his family continues through his son and daughter, because, perhaps one of his children will die, or is infertile, or will remain a single all his life. This is what Rabbi Yehoshua said in the Talmud (Yevamot 62b): “If he had children in his youth, he should also have children in his old age; for it is written, ‘In the morning sow your seed, and at evening withhold not your hand, for you do not know which will prosper, this or that, or whether both alike will be good” (Ecclesiastes 11:6).
There is an opinion that for this reason, it is a mitzvah from the Torah for a man to have two sons and two daughters, so as to be certain he fulfills the mitzvah from the Torah (HaNatziv in ‘HaEmek Shay’ala’ 165, in the opinion of She’iltot).
However, the opinion of all the poskim (arbiters of Jewish law) is that according to the Torah, it is enough to have a son and a daughter, and even if they remain single all their lives, as long as they were alive after their father passed away, and neither of them was infertile, the father has fulfilled the mitzvah of puru u’revuru from the Torah.
However, if in the end they did not have children, then the purpose of the mitzvah was not fulfilled. Therefore, our Sages commanded that a man should have additional children, to ensure that his seed will continue through both his son and his daughter.
How Much of an Effort Must One Make?
Nevertheless, we still need to clarify how much of an effort one must make in order to have more children. Or in other words, what is the rabbinic obligation of the mitzvah?
Some poskim instructed that it is forbidden for a man to avoid having more children because he cannot educate them properly, or because of difficulties in making a living, because the rabbinic obligation of the mitzvah is to have as many children as possible, and only a major health problem can exempt a person from a rabbinic mitzvah (Rabbi Yosef Mesas in ‘Otzar HaMichtavim’, Section 3, 941; Yaskil Avdi, E.H. 2:6; Minchat Yitzchak, Section 3, 26:3; Chelkat Yaacov 3, 61). Their opinion is based on Sefer Chassidim (519), who wrote that a needy tzaddik (righteous person) should not avoid having more children claiming he does not know how he will provide for them, because “anyone who thinks in this manner is considered to be mechusar amana (a person who fails to honor his commitments).”
On the other hand, we find that due to various reasons, poskim permitted avoiding having more children, as Rema (Rabbi Moshe Isserles) wrote, that a man whose wife died and left him many children and is afraid that if he remarries and has more children there will be quarrels between them, he is permitted to marry a woman who cannot give birth (E.H. 1:8).
Similarly, other poskim wrote that owing to financial hardships, a person may avoid having additional children (A.H.S. 1:8, see Rambam, Hilchot Ishut 15:16). Some poskim learned from the deeds of Rabbi Chiya’s wife (Yevamot 65b), that through an act of grama (something that was caused by something else, but whose outcome is not guaranteed) by a woman, pregnancy can be prevented even without a strong reason (Iggrot Moshe, E.H., Section 4, 74, 1-2; Tzizt Eliezer, Section 9, 51:2; Risha, Kovetz Teshuvot 3, 174).
There is room to argue that these two differing opinions are not actually a great controversy, because even those poskim who are lenient would agree there is a mitzvah to have as many children as possible, and the stringent poskim would agree that according to halakha couples wishing to avoid pregnancy in a permitted way (pills or intrauterine device) are allowed, however, it is their custom to instruct students to act according to minhagei chassidut (a desire to fulfill the mitzvah maximalistically).
The Practical Halakha
In practice, it appears there are two levels in the rabbinic mitzvoth: the first level, which is mandatory and appropriate for all – a couple should have four or five children; the second level of having additional children – every couple according to their ability – is a mitzvah, but it is not obligatory.
Accordingly, ordinary parents who are not in particularly poor physical or mental health are obligated to fulfill the rabbinic mitzvah, and have four or five children. Afterwards, they should consider whether they have the strength to continue fulfilling the great mitzvah, and have more children.
For example, if they know that can raise more children and educate them in Torah, mitzvoth, and derech eretz (manners), it is a mitzvah for them to have as many additional children as possible. However, if they know that with additional children the burden will be too heavy for them to bear, and their lives will be accompanied by anger and irritability, it would be appropriate for them not to have more children, because although with each additional child they fulfill a mitzvah, conversely, their poor emotional condition will cause them to behave detrimentally, and this is liable to adversely affect the children’s education.
Not only that, but people who wish to invest their energies in other constructive channels, and by doing so will not be able to raise additional children, are also allowed to prevent pregnancy. The same is true for a woman who wishes to express her talents in a job that suits her, and if she has more children, she will be extremely frustrated. Also, poor people who feel it will be too difficult to raise more children without resorting to accepting charity, are allowed to prevent pregnancy after having four or five children.
All these considerations should be made together by both partners, and if there is a disagreement, they should come to a compromise, seeing as they are interdependent partners. It would also be proper for them to consult with a wise Torah scholar.
The Legal Proposal of Dr. Bakshi
After the Shalit deal, it was clear that the terrorists would make great efforts to kidnap more Jews, but in spite of the danger, the government decided to release 1,000 terrorists in exchange for Gilad Shalit. Following the recent abduction of the three youths, the government and the defense establishment searched for ways to make Hamas pay a heavy price.
As later revealed, it was MK Orit Struk who proposed arresting the Hamas leaders and terrorists released in the Shalit deal. But apparently, from a legal standpoint, it was impossible.
Two and a half years ago, when the Ministry of Justice was formulating the list of prisoners to be released, attorney Dr. Aviad Bakshi proposed to the then Director General of the Ministry of Justice, Guy Rotkof, to avoid granting the prisoners full pardons, but instead, to release them under the framework of administrative release, so they could be re-incarcerated in case another Israeli was kidnapped. His proposal was accepted in principle, although in different variation. Indeed, thanks to his proposal, the authorities were able to re-incarcerate some of those released in the Shalit deal last week, and ten were sentenced to life imprisonment.
The ‘Shiluvim’ Program
With great satisfaction, I can tell about our personal connection to the story.
Shortly after the founding of Yeshiva Har Bracha, a talented young student joined us, a graduate of the Beit El Yeshiva, and began teaching young students. In his heart, though, he harbored doubts about whether to devote his life to Torah study, or to combine Torah learning with law studies. We had many discussions, and it was not easy to forgo on such a promising scholar. But after realizing that his heart was more inclined towards law out of a sense of an idealistic mission, I encouraged him to do so.
He was one of the first students in the ‘Shiluvim’ program, in which graduates of Yeshiva Har Bracha combine academic studies with yeshiva learning. Rabbi Dr. Aviad Bakshi was the first graduate to receive a doctorate. Since then, he works diligently for the sake of revealing Torah values in the field of public law.
We were pleased to hear that he was the one who gave the Government of Israel the legal tool in the war against Hamas. The halakha which we learned in the yeshiva, that it is forbidden to ransom captives for more than their value – bore its first fruit.
This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew.