Question:
We have received the following delicate and tragic inquiry:
"Two gentlemen -- the Assistant Chief of Physical Medicine at the Bronx VA Hospital and the Chief of the Division of Prosthetic Appliances for the New York area -- came to our office the other day requesting an authoritative statement of Jewish Law on a somewhat delicate matter which, because of the casualties of the World War, may involve several hundred veterans of all faiths, and concerning whom similar inquiry will be made to secure the ecclesiastical ruling of the Catholic and Protestant Church. The matter has to do with "Penile Prosthesis" and the question is this: Does Judaism sanction the employment (in the specific instances to be described) of a Prosthetic Penis or Wimpus -- also does it permit, when required, the use of an inflating instrument to cause erection?
The occasion of this question arises out of the marriage of a paraplegic and a normal woman. Due to his condition, the man is forever unable to have sexual intercourse. As a result of this, the wife asserts that she is losing her health and peace of mind. Otherwise husband and wife are compatible; they want to preserve the marriage. Seeking medical counsel, they were advised of the artificial means and instruments in connection with sexual intercourse. The doctors have sanctioned its use. But what about the religious aspects of the problem? Does Judaism sanction its use, especially when the husband is a war casualty -- the result of a wound while fighting for God and country.
Although the case involved is that of a paraplegic, they want the ruling also in similar cases, such as the use of an inflating instrument to cause erection when the penis has been injured.
We reverently refer this problem to you for your consideration. We would request your advice not only as regards this couple but also as regards the general question - viz: Is it ever permitted, assuming that medical sanction has been sought and given, to use a "Prosthetic Penis."
The Doctor added, by way of parenthesis, that paraplegics are not always and necessarily incapacitated in this way. This question refers only to those who are.
Answer:
Two chief questions are involved in this inquiry. Are the wounded veterans referred to here subject to the law based upon Deuteronomy 23:2, namely that the P'zua Daka and the Krus Shofcha may not marry Jewesses, and if already married, must they divorce their wives? Second, if they may marry or remain married, does Jewish law permit them to use the various artificial devices for sexual relationships referred to in the letter?
The status of the mutilated and the paraplegic (i.e., paralyzed) veterans can best be understood if we arrive at the basic intention of the law in this matter. This intention becomes clear as we follow the law in its development.
The law begins with the verse in Deuteronomy 23:2, which merely states that a person mutilated as the verse described may not "enter into the congregation of the Lord." This simple statement is elaborated in the Mishnah, M.Yevamos VIII,1, where a distinction is immediately made between those whose body is incomplete through natural causes, birth, etc. (Soris Chamo) and those castrated artificially (Soris Odom). The former, those naturally incomplete (Soris Chamo), are permitted to marry. It is only those artificially castrated who are forbidden. It is clear, then,that the intention of the law is to abolish in Israel the widespread ancient custom of the creating of eunuchs, although included among those forbidden are those who are castrated by accident, such as being pierced by a thorn, etc. The Talmud carries the discussion further, dealing chiefly with the amount of mutilation and the type of wounds which would exclude a man from the right to marry.
The chief dispute in the later Hallacha on this question is based upon a disagreement between Rashi and Maimonides. Rashi says that a Soris Chamo, a natural eunuch, who is permitted to marry, is only one who is born incomplete or has been made so by natural causes as thunder and lightning. Whereas Maimonides (Issure Biah, XVI,9) says that anyone who is made incomplete by sickness and furthermore even if the sickness requires surgical removal of certain parts, since the cause of removal is the sickness, which is a natural one, such a person too, even though surgeons have amputated the parts, is to be considered a Soris Chamo and is permitted to marry.
Along the line of this disagreement, all later authorities range themselves. Thus Ezekiel Katzenellenbogen, rabbi of Altoona, takes the liberal view of Maimonides, and Jacob Emden, refuting him, takes the stricter view of Rashi (see Iggereth Bikkoreth). Also, Moses Sofer (Chassam Sofer, E.H.14) takes the strict view of Rashi although at the end of his responsum he declares himself willing to make a more liberal decision if others will agree with him; while Ezekiel Landau (Noda b'Yehuda II,6) follows the more generous view of Maimonides. The tendency of the recent Hallacha is towards Maimonides, namely, the more generous view. Thus the long and complete discussion in Aruch Ha Schulchan E.H.5, and Dov Weidenfeld in "Dover Mesharim" No.34.
In our case, therefore, we are amply justified in following the liberal opinion of Maimonides and to say, first of all, that the paraplegics who, due to wounds, have now a general paralysis of the lower body are Soris Chamo and also that there is always a likelihood that they may be restored to health, a consideration which the law frequently keeps in mind. As for those actually mutilated, it depends on the degree of mutilation; there are some for whom no permission to marry has been found in the law, but in general it is well to follow the point of view expressed by Ezekiel Landau, that it is a mitzvah to seek to find permission (a Heter) so that a man shall not be without a wife and fall into evil thoughts. In general we must bear in mind that the clear intention of the law was to abolish conscious mutilation of human beings.
As for the second part of the question, as to whether the husband may make use of the various artificial instruments described, there is no specific discussion of such objects in the law. But the general principle is that any type of sexual relationship between man and wife is permitted. See b. Nedarim 20b, "Kol ma sheodom rotze laasos b' ishto oseh, k'darko v'shelo k'darko." This is codified in the law in Maimonides, Issur Biah XVI, 9, and the Ramah to E.H. 25, 2. Even the restriction"Bilvad shelo yotzi shichvas zera l'vatoloh" is not strictly held to.
See the opinion of Rabbi Yitzchok, Tos. 2, Yevamos, 34b, and quoted in the Tur (E.H. 25). Therefore, we may say that the methods created by modern science to enable these paraplegic and mutilated men to maintain family life are not objectionable to Jewish law.