by R. Gidon Rothstein
28 Shevat: Allowing A New Mother To Marry
The responsibilities of motherhood can create complications for that mother, as happened in Shu”t Yabia Omer 9 Even HaEzer 15, from 28 Shevat 5760 (2000). The Talmud prohibited mothers from remarrying within two years of giving birth, for fear the new marriage would interfere with nursing the baby, endangering that child’s health.
The woman in question had been divorced five years earlier, with a seven-year-old boy; orphaned from her parents, she had nowhere to go until a certain man took her in. As she phrases it in the question, “since I was living in his home, I got pregnant” (this is a first example of a deep passivity this woman seems to me to display; here, she makes it seem as if the man gave her a place to live and then the pregnancy sort of happened, as a natural consequence of living in the same apartment—she says “since I lived etzlo,” near him, not imo, with him; to me, she sounds as if they weren’t quite living together in the spousal sense, but they did have enough physical intimacy that she got pregnant. As I note the other examples, there’s a pathos and a warning in her inability or choice not to stand up for herself).
The man wanted her to abort the baby, and kicked her out when she insisted on carrying her daughter to term. He then went abroad. Now, she has met a young man under whose influence she has become religious, and the two want to get married (to me, much as I applaud her becoming more religious, the fact that she does it for a man is another example of her minimal sense of self).
The complication is the baby, since halacha requires her to wait until the baby is two.
She had nursed one day in the hospital, one day at home, and then the mother switched to formula because her son was jealous (it sounds odd that a twelve-year-old would be so upset by his mother’s nursing that she would stop; I think it’s possible the boy was seven at the time of the baby’s birth, but that’s not the easiest way to read the responsum. Here, too, the mother yields where she might have stood firm).
The baby’s thriving on formula, the boy has developed a good relationship with his potential stepfather, and is now learning in a Shas Talmud Torah in Ramleh (one of R. Ovadya Yosef’s many contributions to Sephardic life was having his political party set up a network of schools that educated many children who otherwise would not have known any Torah). The potential husband has undertaken full financial responsibility for both children.
(I think it bears constant repeating that R. Ovadya Yosef, like other respondents, does not react to or comment on this woman’s checkered past, about which he was not asked. What he has is a Jewish woman who wants to marry (in this case to an observant man, but he writes similar responsa to let woman marry or remarry in general), and it’s his role to ease her way. The koach de-hetera, the instinct to find ways to allow people’s preferred course, was strong in R. Ovadya and most other respondents I’ve encountered.)
R. Akiva Eiger on the Marriage Prospects of Nursing Single Mothers
The primary challenge to allowing this woman to marry is that Shulchan Aruch Even HaEzer 13;11 records the Rabbinic rule that a nursing mother cannot remarry until the baby is twenty-four months old. There was a debate among rishonim as to whether that applies to a woman who became pregnant out of wedlock; a divorcee is clearly considered meneket chavero, nursing for a man who is present and can object to the marriage.
He can insist she nurse the baby they bore together (and we worry the new husband will find ways to convince her to stop, endangering the baby). Hagahot Mordechai cited Rabbenu Peretz, who held that the rule did not apply to a baby conceived out of wedlock, since the father is presumably uninvolved, but notes that others disagreed, since the local court would/should intervene to protect the baby.
R. Akiva Eiger suggested the debate was about whether we consider a mother a meneket chaveiro when the father isn’t around or involved. He also thought it plausible to say that the Rabbis did not legislate for this unusual case (of a baby born out of wedlock, which was unusual in Talmudic times), since we generally assume that Chazal did not include milta de-lo shechicha, unusual cases, in their decrees.
Despite this room for leniency, he was uncomfortable ruling against the Shulchan Aruch, which explicitly includes cases where she’s already weaned the child, where she hired a nursemaid, or even if she swore publicly and irrevocably (al da’at rabim, a technical strengthening of the oath, making it less amenable to nullification). R. Akiva Eiger offered more ideas to combine to allow a lenient ruling, such as the fact that she had not yet started nursing (in his case), and/or that she take an inviolable oath that she is not going to change her mind and start nursing.
Unusual Cases and Rabbinic Decrees
R. Akiva Eiger’s suggestion that this case was unusual and therefore would not have been included in the original rule was not universally accepted. Many authorities (R. Ovadya here cites too many for me to name, so I’ll just lay out the two sides, and urge you to look at the original responsum to see all the rabbis who supported either side) noted that the Talmudic phrase is milta de-lo shechicha lo gazru rabbanan, the Rabbis did not include unusual cases in their decrees.
When they made ordinances, rules to make a better world but that were not meant to guard or protect existing Biblical commandments, those might indeed include unusual cases (such as a woman who gave birth out of wedlock, especially since the health of the baby was at stake). Others preceded R. Akiva Eiger in noting examples of such ordinances that explicitly left out unusual cases.
Chacham Zvi noted that halachah assumes that paying money for an item would, by Torah law, have itself created the acquisition (the simple act of paying for groceries makes them mine). A Rabbinic ordinance negated that, for fear that something would happen to the purchased items before delivery (a fire, let’s say, and the seller would not bother trying to save them, since they were no longer his). That ordinance does not include unusual cases.
Mishneh le-Melech offered another example, Rashba’s view that the rule that a teenager could not sell inherited property before the age of twenty applied only to inheritances from a father. Those from other relatives were rare, and the ordinance did not apply.
The Woman We’re Discussing
That debate was not one R. Ovadya Yosef was going to resolve, so that the fact that the child was born out of wedlock would not be enough to exempt her from this rule. That the mother had nursed for two days and then weaned the child helped her cause, especially since the girl was doing well after six months without nursing (which wasn’t a possibility up until formula came along). There’s no reason to think a court would force her to nurse now, especially since her milk’s dried up in the meantime.
Supporting that, Shu”t Beit Yitzchak ruled that a court could not coerce a woman who found nursing extremely painful to do so, would have to allow her to hire a nursemaid for the infant. Here, too, since she’s found a workable way to give the baby what she needs, there’s no reason to think we would insist on her nursing (and, by extension, on waiting to marry until the baby’s two).
This doesn’t quite fit Shulchan Aruch’s explicit insistence that she cannot remarry even if she’s weaned the baby or hired a nursemaid. R. Ovadya Yosef tries to get around that by pointing out rishonim who held that a divorcee can get remarried, since the father has to pay her to nurse his child. That turns her into sort of a paid nursemaid, and halachah does allow such women to marry. (Of course, Shulchan Aruch ruled against those views here, but R. Ovadya sees that as helping his cause nonetheless.)
The Advantages of Being at Risk
Further help is the view of Mahari HaCohen Rapaport, that in a time when authorities do not punish consensual sex between unmarried people, women have the status of a mufkeret, promiscuously available to whoever will take them in.
Rema in that chapter of Shulchan Aruch said that we allow a mufkeret to marry even while nursing, in the hope and expectation that her attachment to her husband will keep her from inappropriate liaisons. This woman’s history tells us that she’s exactly that kind of mufkeret, that when she’s without a husband she will make herself available to whoever will take her in. That should mean that we can allow her to marry this man.
If It’s Not For Your Own Good
R. Kook in Ezrat Kohen pointed out another avenue to leniency. This Rabbinic rule was intended to protect the infant, ensuring the mother would not abandon it for the sake of the new marriage. But the beneficiaries of such Rabbinic ordinances are generally allowed to forego them (that’s only for the beneficiaries, it’s not like we can discard whatever Rabbinic rules we don’t like).
In this case, it’s clearly in the baby’s best interest for her mother to marry a man she loves, who will support her and them in a steadier way than the mother herself could do on her own. When we feel confident that we know what the baby would say were she able to speak for herself, it creates an umdena and an anan sahadei, halachically valid presumptions that we can act on her behalf in ways we ordinarily would not.
Adding to that to an important extent (that’s R. Ovadya Yosef’s value judgment, not mine) is that this husband will support the older brother, who otherwise does not have a reliable support structure. Not to speak of the fact that the whole family is going to become observant in this new marriage.
His Obligation of Procreation
The prospective groom has not yet had children, which some authorities thought would be sufficient to set aside this Rabbinic ordinance (although Noda Bi-Yehuda did not, since he saw that as a Pandora’s box, tempting us to set aside other Rabbinic ordinances, such as secondary forms of incest, for the sake of procreation).
The closing [and, I think, clinching] point for R. Ovadya is that this woman is unable to nurse, and has been unable for several months already. Magen Avraham said, in a different context, that we need not be as stringent in cases where the original ordinance no longer applies (that still doesn’t explain why Shulchan Aruch explicitly included where the mother had weaned the baby, though we would assume that her milk had also dried).
Sum total, R. Ovadya Yosef thinks she can and should marry this man, since it will be best for all involved, and Chazal did not include such cases in that ordinance.