Sources from essay by Rabbi Liz P.G. Hirsch in The Social Justice Torah Commentary
(5) When brothers dwell together and one of them dies and leaves no offspring, the wife of the deceased shall not be married to a stranger, outside the family. Her husband’s brother shall unite with her: he shall take her as his wife and perform the levir’s duty. (6) The first child that she bears shall be accounted to the dead brother, that his name may not be blotted out in Israel. (7) But if that party does not want to take his brother’s widow [to wife], his brother’s widow shall appear before the elders in the gate and declare, “My husband’s brother refuses to establish a name in Israel for his brother; he will not perform the duty of a levir.” (8) The elders of his town shall then summon him and talk to him. If he insists, saying, “I do not want to take her,” (9) his brother’s widow shall go up to him in the presence of the elders, pull the sandal off his foot, spit in his face, and make this declaration: Thus shall be done to the man who will not build up his brother’s house! (10) And he shall go in Israel by the name of “the family of the unsandaled one.”
According to Deuteronomy, the primary goal of levirate marriage is to provide the deceased with an heir. Deuteronomy focuses on the needs of the deceased, but levirate marriage may have fulfilled other needs within Israelite society. [One] beneficiary...would be the widow. While women could inherit their husband's estate in many parts of the ancient Near East, this was not the case in ancient Israel. A widow with children could expect her children to provide for her. If a man died childless, his estate reverted to his brother or other male kin; in these circumstances, a widow would be left with no source of support. Levirate marriage would ensure a childless widow a home and the possibility of children...While acknowledging the possibility that a man might see levirate as a burden, the Bible insinuates that childless widows saw levirate as a beneficial institution. In Deuteronomy 25, the widow's appearance before and declaration to the elders suggests that she desires the union. [Overall,] the widow has less to lose. Levirate allows her to remain in her husband's family, a family to which she may have grown accustomed and in which she may have found support and comfort. A childless widow was a vulnerable member of society, and levirate ensured a woman a home and the possibility of children.
-Rabbi Dr. Dvora Weisberg
(6) Judah got a wife for Er his first-born; her name was Tamar. (7) But Er, Judah’s first-born, was displeasing to יהוה, and יהוה took his life. (8) Then Judah said to Onan, “Join with your brother’s wife and do your duty. by her as a brother-in-law, and provide offspring for your brother.” (9) But Onan, knowing that the offspring would not count as his, let [the semen] go to waste whenever he joined with his brother’s wife, so as not to provide offspring for his brother. (10) What he did was displeasing to יהוה, who took his life also. (11) Then Judah said to his daughter-in-law Tamar, “Stay as a widow in your father’s house until my son Shelah grows up”—for he thought, “He too might die like his brothers.” So Tamar went to live in her father’s house. (12) A long time afterward, Shua’s daughter, the wife of Judah, died. When his period of mourning was over, Judah went up to Timnah to his sheepshearers, together with his friend Hirah the Adullamite. (13) And Tamar was told, “Your father-in-law is coming up to Timnah for the sheepshearing.” (14) So she took off her widow’s garb, covered her face with a veil, and, wrapping herself up, sat down at the entrance to Enaim, which is on the road to Timnah; for she saw that Shelah was grown up, yet she had not been given to him as wife. (15) When Judah saw her, he took her for a harlot; for she had covered her face. (16) So he turned aside to her by the road and said, “Here, let me sleep with you”—for he did not know that she was his daughter-in-law. “What,” she asked, “will you pay for sleeping with me?” (17) He replied, “I will send a kid from my flock.” But she said, “You must leave a pledge until you have sent it.” (18) And he said, “What pledge shall I give you?” She replied, “Your seal and cord, and the staff which you carry.” So he gave them to her and slept with her, and she conceived by him. (19) Then she went on her way. She took off her veil and again put on her widow’s garb. (20) Judah sent the kid by his friend the Adullamite, to redeem the pledge from the woman; but he could not find her. (21) He inquired of the council of that locale, “Where is the prostitute, the one at Enaim, by the road?” But they said, “There has been no prostitute here.” (22) So he returned to Judah and said, “I could not find her; moreover, the local council said: There has been no prostitute here.” (23) Judah said, “Let her keep them, lest we become a laughingstock. I did send her this kid, but you did not find her.” (24) About three months later, Judah was told, “Your daughter-in-law Tamar has played the harlot; in fact, she is pregnant from harlotry.” “Bring her out,” said Judah. “She should be burned!” (25) As she was being brought out, she sent this message to her father-in-law, “It’s by the man to whom these belong that I’m pregnant.” And she added, “Examine these: whose seal and cord and staff are these?” (26) Judah recognized them, and said, “She is more in the right than I, inasmuch as I did not give her to my son Shelah.” And he was not intimate with her again.
The midrash Breishit Rabbah imagines a prayer that Tamar offers prior to her action, hinting at her priorities and desires: "May it be Your will, Eternal my God, that I will not go out from this house empty." She prays that she will parent a child...Tamar gives birth to sons Perez and Zerah, ancestors of King David, emphasizing the significance of her parenthood and her place in Jewish history.
The practice of levirate marriage may initially strike moderns as morally offensive. However, we can at least understand the biblical formulation, which privileges the y'vamah, enabling her to parent children and protecting her social and economic security. Reproductive justice offers another opportunity to reexamine preconceived notions about reproductive freedom and sexual autonomy. As Loretta Ross and Rickie Solinger outline, "Reproductive justice is a contemporary framework for activism . . . [that] goes beyond the pro-choice/pro-life debate and has three primary principles: (1) the right to not have a child; (2) the right to have a child; and (3) the right to parent children in safe and healthy environments. In addition, reproductive justice demands sexual autonomy and gender freedom for every human being."
-Rabbi Liz P.G. Hirsch
The reproductive justice framework addsdepth and nuance to our understanding of levirate marriage. On the one hand, reproductive justice argues for sexual autonomy, which is inherently restricted in this system by preferencing either the deceased brother in the biblical text or the levir, the living brother, in the Rabbinic text. However, just as reproductive justice can expand a narrower framework of a reproductive rights, we can look beyond our initial distaste for archaic marital practices to understand levirate marriage's intended benefits for the widow. She may need access to her deceased husband's estate. She may even desire the right to have a child, as midrash imagines Tamar did. With a reproductive justice mindset, we can honor and elevate the pravers of biblical women-from our matriarchs Sarah and Rebekah to Tamar and Hannah-who sought divine intervention to enable them to bear children.
-Rabbi Liz P.G. Hirsch
Discussion Questions by Ariel Tovlev
What is levirate marriage? What are the benefits of a levirate marriage, and who receives them?
Reproductive justice is not only about the right not to have children, but also the right to have children. How does levirate marriage connect with this aspect of reproductive justice?
Rabbi Hirsch remarks how people of color, poor people, and/or disabled people are the most likely to face barriers to their ability to have kids. How can we fight for reproductive justice to help ensure all people have the right to raise a family?