by Rabbi Wayne Allen
May a local anesthetic be used prior to infant circumcision and, if so, should rabbis be encouraged to recommend its use?
The following responsum is reprinted from Tomeikh KaHalakhah volume 2. Tomeikh KaHalakhah is UTJ’s series of volumes of responsa (teshuvot) promulgated by the Union For Traditional Judaism’s Panel of Halakhic Inquiry.
While discussions about sexual relations and sexual conduct fill the pages of the Talmud, public discussions of such issues are unacceptable and may be counterproductive (See Hagigah llb). Nonetheless, our tradition regards the healthy and pleasurable sexual relations between husband and wife as expected, necessary, and sacred (See David Feldman, Marital Relations, Birth Control, and Abortion in Jewish Law, New York, 1968, pp. 92-103, and sources cited there). Thus, the writer of any response to this question is found in the unenviable position of “Woe unto me if I speak, woe unto me if I don’t speak” (Mishnah Kelim 17: 16). Nevertheless, it is Torah, and one must learn it (Berakhot 62a).
Based on the exegesis of Exodus 21: 10, the Rabbis conclude that the husband is bound by the religious duty to sexually satisfy his wife (Ketubot 47b-48a; Jerusalem Talmud, ibid. 5:8). This mitzvah is called’ onah. Tosafot (Ketubot 47b, s.v. in), in fact, emphasize the significance of this mitzvah by suggesting that the word’ onah, related to te’ anneh in Genesis 31 :50, signifies the pain endured by the wife when sexual pleasure is denied her by her husband. The Mishnah (Ketubot 5:6) even gives a schedule of the times a wife can expect her husband to be with her as an essential part of the marriage contract.
The husband’s obligation of’ onah is not merely defined by frequency. It is also defined by quality. The phrases the Talmud regularly alternates with devar mitzvah (commanded act) in describing the husband’s obligation to sexually satisfy his wife aresimhat ish to (his wife’s pleasure) and simhat’ onah (the pleasure of the conjugal duty). This suggests that the fact of marital intimacy is qualified by the simhah (joy or pleasure) that must characterize it. Here again the Rabbis find scriptural warrant for this idea, based on Deuteronomy 24:5 which affords one year’s draft deferment from the army to the newly married man who must “rejoice with his wife whom he has taken”. Using the same language, the Talmud (Pesahim 72b) states that “a man is required to give joy to his wife in the matter (of the conjugal duty) … ” to which RaShI adds: “even at times other than those indicated by the schedule” and “even during pregnancy” when only pleasure and no procrea- tion is involved.
The propriety of certain techniques used to bring pleasure, however, are subject to dispute. In the Talmud (Nedarim 20a-b) we learn that a certain Rabbi Yohanan ben Dahavai claimed by virtue of heavenly authority that children are born blind because the husband gazes at his wife’s genital area, born speechless because he kisses the genital area, and born lame because he “inverts the table”, i.e., intercourse in the dorsal or “retro” position. (See the two explanations of RaSh! ad locum and cf. the statement of Rabbi Yohanan near the beginning of tractate Kallah, Higger edition, 50b(2), where “acting like animals”, i.e., mounting from the rear, is appended to the phrase “invert the table.” See alsolulius Preuss,Biblical and Talmudic Medicine, trans. Dr. Fred Rosner, 1978, p. 293 who renders it “coitus recumbente viro“). This opinion, rejected by Rabbi Yohanan and the other sages of the Talmud (ibid.), is probably rooted in an old sexual taboo or in the avoidance of the range of sexual behavior practiced by Israel’s ancient neighbors. But the Talmud (Nedarim 20b) concludes that a man may do with his wife as he pleases, employing the graphic example of a piece of meat or fish which, if kosher, may be eaten in any desirable form. From this crucial Talmudic passage we learn that “unnatural” intercourse (bi’ ah shello’ kedarkah) is permitted, although with reser- vations. As Rabbi David Feldman, in his classic work on this theme (op. cit., p. 155ft) points out, the matter of unnatural intercourse reveals an interesting case history of tension between this legally permissive ruling and the moralistic tenden- cies of some prominent authorities who were uncomfortable with any unusual sexual behavior and could not bring themselves to accept so liberal a ruling, even in theory. Sometimes this tension is reflected in the same authority. Maimonides, for example, codifies the Talmudic conclusion (Laws of Forbidden Intercourse 21:9) yet adds a proviso that unnatural relations, while permitted, must not lead to semination. He similarly adds a cautionary moralistic addendum to his legal approval in his commentary to Mishnah Sanhedrin 7.4. “Despite the law,” he writes, “the pious distance themselves from such immoral conduct and deplore it.”
What is clear from the Talmud, at least for the legalists, is that cunnilingus, i.e., the oral stimulation of the clitoris, certainly suggested if not intended by the phrase “kissing that place” (see Preuss, op. cit., p. 293), is permitted. Yet the mystics and those that were influenced by them read the Talmud differently. They understood that Rabbi Yohanan rejected only one part of Rabbi Yohanan Ben Dahavai’s statement, namely the “inverting of the tables” but kissing the vagina is still prohibited (see Bet Shemuel, Even ha‘ Ezer 25:2, subparagraph 1).
With fellatio, i.e., the oral stimulation ofthe penis, there is a different problem altogether. The essential problem with fellatio is semination and what is conceptually called onanism based on the Biblical narrative in Genesis 38:8-10.
Although fraught with textual difficulties, (see Feldman, 148ff. for a full discussion), the Talmud (Yevamot 34b) sees the act of Er and Onan as one of unnatural intercourse in which the “seed was spilled” (hashhatat zera’). Thus the Tosafists (ibid., s.v. velo) were faced with the task of reconciling the leniency of the sages in Nedarim 20b, which permits unnatural intercourse, with what the sages themselves seem: to condemn in Yevamot as the act of Er and Onan. Rabbi Isaac offers two solutions. First, no semination was intended by the leniency in Nedarim, thus distinguishing it from the act of Er and Onan. The practical outcome would be that according to Rabbi Isaac, oral stimulation of the penis is permitted provided that no ejaculation takes place except vaginally.
Rabbi Isaac’s second solution is that semination is permitted provided the intent of the husband is unlike Er or Onan (Genesis 38) who either sought to preserve Tamar’s beauty by not marring her figure with pregnancy (Yevamot, loco cit. and Midrash haGadol on Genesis 38:7) or, alternatively, didn’t want the inconvenience of children (Rabbi Joseph Bekhor Shor, ad locum). However, if the husband’s intent is not that of Er and Onan, then unnatural relations are permitted, but only “once in a while” so that it does not become a habitual practice. This second solution affirms the permissiveness ofthe law and, practically speaking, means that even ejaculation in a non-procreative manner is permitted occasionally as part of the regular sexual relations of husband and wife. Thus, Rabbi Isaiah da Trani in his Talmudic commentary (TosafotRID to Yevamot 12b as cited in Feldman, op. cit., p. 162) writes:
And if you ask how sages permitted [unnatural intercourse, which in- volved] emission of seed like the act of Er and Onan, the answer is: What is the act of Er and Onan forbidden by the Torah? Wherever his intent is to avoid pregnancy so as not to mar her beauty and/or so as to not fulfill the mitzvah of procreation. But if the intent is to spare her physical hazard, then it is permitted. So also if he does so for his own pleasure but not to avoid pregnancy (for the above reasons) as implied in Nedarim 20b. Er and Onan, whose intent was to avoid pregnancy, sinned; but he whose intent is for pleasure, does not sin. For “a man may do with his wife what he will” and it is not called the destruction of seed. If it were, then he would not have been permitted to have relations with the minor, the pregnant, or the sterile woman.
It is the second solution of the Tosafist Rabbi Isaac that received the endorsement of the major codifiers. Rabbi Moses Isseries, in his gloss to the Shulhan Arukh (Even Ha’ Ezer 25:2) writes:
He can do as he wishes with his wife: he can have intercourse at any time he wishes (Ed. note: other than during niddah, when marital relations are forbidden); he can kiss any part of her body; and he can have intercourse both in the usual way and in an unusual way or on her limbs, provided that he does not spill his seed. Some are more lenient and rule that unnatural intercourse is permitted even if it involves a spilling of the seed provided that it is only done occasionally and he does not make a habit of it. Although all these are permitted, whoever sanctifies himself in that which is permitted to him is called holy.
Rabbi Joshua Falk (Drishah to the Tur, Even Ha’ Ezer 23: I), followed by Rabbi Naftali Tzvi Yehuda Berlin (Responsa M eshiv Davar, Yoreh De’ ah, no. 88) and even Rabbi Moshe Feinstein (ResponsaIggerot Moshe, Even Ha’ Ezer, no. 63), unequivocally states that unusual sexual relations, though irregular, still fall within the bounds of acceptable conjugal relations making hashhatat zera inapplicable. What may seem as scandalous is nothing other than a confirmation of what other authorities have already concluded (See Tur, Even ha’ Ezer 25 and Orah Hayyim 240; Rabbi Joseph Karo, Beit Yosef, ad locum, in the name of Rabbenu Asher; Rabbi Shlomo Luria, Yam Shel Shlomo, Yevamot 3:18; Rabbi Mordechai Jaffe, Levush, haButz veha’ Argaman 23:5 and 25:2; by implication in Rabbi Menahem Shneerson ofLubavitch, Responsa Tzemah Tzedek haHadashot, Even ha’ Ezer, no. 89; and especially Rabbi Elijah Halevi Shapiro of Prague, Sefer Elijah Rabbah, Orah Hayyim 240:10, even though he adds a concluding warning. But also see Otzar haPosekim, Even Ha’ Ezer 25:2 subparagraph 6 for the considerable authori- ties who are swayed by the moralists’ position and who have influenced the authors of some contemporary guidebooks on sexual relations. See, for example, Rabbi Avrohom Blumenkranz, Gefen Porioh, p. 147).
While Judaism maintains a code of sexual conduct that is not an emulation of the loose morals of contemporary society or a capitulation to the animal lusts of human beings, the tendency of our tradition is to consider acceptable unusual sexual techniques within the context of a loving relationship between husband and wife which enhance the pleasure that both may enjoy and that the husband is obliged to provide.
Rabbi Wayne Allen for the Panel of Halakhic Inquiry