Yevamot 64

Significantly, the Rambam (Ishut 15:7) formulates this halacha with even stronger language than the Mishna, stating that: ‘If a man marries a woman and they remain together for ten years but they do not have a child, then she (i.e. his wife) should leave (with a divorce) and he should pay her [the money due her from her] ketubah… [and] if he does not desire to divorce her, he should be compelled to do so’, and as is often the case, the Shulchan Aruch (Even HaEzer 154:10) codifies this law while repeating the words of the Rambam.

From here it would seem that this law is very clear, and in fact, there have been instances when I have heard people – i.e. those with a profound lack of sensitivity who feel that it is appropriate to mention this law within the earshot of those who have painfully struggled to have children – repeat this law with great confidence as if there is nothing more to say about it.

However, far too often we think we know what the right ‘thing’ to do is because we are aware of one ‘thing’. But in this case, our mere awareness of this Mishna and Rambam and ruling in the Shulchan Aruch does not necessarily suggest that this is what everyone should do (although there have certainly been many over the years who have followed this advice). This is because halacha, especially when it comes to the personal, is not merely about the halacha as written in text. Instead, it is also about the application of text to context, which means that the situation and circumstance of the people involved may lend itself to not following this law.

While this should be obvious to us in all situations, it is essential that we are cognizant of this fact with respect to such delicate matters as fertility and childbirth, and this is powerfully reflected in the responsum of Rabbi Elchanan Printz addressing a couple who adore each other, who have unfortunately been unsuccessful in natural conception, and who have attempted various fertility treatments but so far with no luck (see Avnei Derech Vol. 12 No. 208). Yet it is the final lines of this responsum, where Rabbi Printz cites Rabbi Shlomo Zalman Auerbach (Ma’adanei Shlomo pp. 325-326), where this point is most powerfully expressed.

Rabbi Auerbach was asked why many people do not follow this law notwithstanding the seemingly unambiguous language of the Gemara, Rambam and Shulchan Aruch. In his reply he offered one answer relating to the duty of having children, yet it was his second answer that particularly spoke to me when he said: ‘even though there is a mitzvah of having children, the pain felt…if they divorce may be, [in such a situation], comparable to death, and [we should not forget that] the Torah prohibits us from murder… so though it is true that there is a mitzvah of having children, it is nevertheless prohibited to cause anguish and pain that may, [for some], be like a form of death.’

Rabbi Auerbach does not suggest that the law is never relevant. But what he stresses is that it does not exist in a vacuum, and that oftentimes other needs, desires and sensitivities can, and should, overrule this particular law.

What we learn from here, as well as many other examples that I have mentioned over the years, is that it is at times careless, and in some instances even dangerous, to speak of ‘the’ halacha – especially when discussing personal and delicate matters – as if there is only one singular path that should be followed in all cases. True, this is ‘the’ halacha as written, but as I wrote above, ‘halacha, especially when it comes to the personal, is not merely about the halacha as written in text. Instead, it is also about the application of text to context, which means that the situation and circumstance of the people involved may lend itself to not following this law.’