The Religious Consultation

1.) Warrants for an affirmative response:
The context of the normative readings that
have dominated the discourse

One can construct a credible case for an affirmative answer. Clearly,
the normative weight of contemporaries texts seem to point us in this
direction. First, the murders in the Holocaust reduced the entire Jewish
population by a third, a loss potentiated in every generation at an
exponential rate. Next, modernity and secularity claims many Jews each
generation. If a people might be eliminated, the special warrant for
continuance and creation of “new Jews” creates a strong moral appeal.
The tradition is strongly pronatalist: many of the essential rituals
mandate families in which to enact them, and there are specific
commandments about the necessity for a man to produce heirs. In fact, key
source texts clarify the actions that must be taken to assure the
continuance of lineage. The rules of leveriate marriage state that if a
man dies without having had a child, his widow can ask his surviving
brother to marry her. This allows her child to be counted, and to receive
the name and property as the child of the dead --clearly an overriding of
even the prohibition of incestual sexuality taken in a desperate,
emergent situation. One could argue that mandating children to "replace"
ones lost in the Shoah is an equivalent step, assuring that the many who
have died without children need to have some sacrifice by the living made
on their behalf. And one could argue that in a reparative justice sense,
Jews might be entitled with special rights, parallel to leveriate
entitlements for special considerations, granted from the world's global
community--as could other minorities persecuted and murdered and
endangered, i.e., the Roma, Native Americans, Armenians, etc.

2. Warrants against an affirmative answer:
a second look at the reading of tradition

But one can argue from the opposite position with equal justification,
and let me suggest that it this alternate, nuanced stance that is far
more consistent with both Jewish source texts and history. The argument
for this position proceeds as follows. Jews faced the issue of near
total annihilation at many times in history, in particular after the
destruction of the Second Temple, and have not used mere fertility as
device to increase the nation. If one looks carefully then at the
response after catastrophe, one can develop a richer response to our
currant situation.

What has been the response of tradition in all of these other historical
moments? Rather than calls for the physical “replacement” of the nation,
the text called for the development of innovations in ritual and in
education to maintain the constancy of Jewish life. Indeed, there are
scant textual accounts of women increasing their fertility after other
catastrophes, or being urged to do so. Women and men are urged to
continue to have families in situation of oppression, to be sure, as
noted in the Biblical text itself and the attendant midrash that describe
the birth of Moses to his enslaved parents even after the edict to kill
all sons is delivered. One can search in vain for a textual account of
enlarging families in the face of destruction. In fact, in the
quintessentially shaping catastrophe of the destruction of the Second
Temple, there is no such mandate. Here, where the risk of complete
extermination was even more valid than at any other time in Jewish
history , the rabbinical authorities did not enact emergency measures to
"make up" or attempt to "replace" Jews lost to Roman invasion. Rather,
they developed scholarly and communal leadership, and enhanced a system
of yeshivot or houses of study. In was here that the world was preserved,
via the creative act of polity-creating study, in which the canonical
texts were debated, and in which the speech act, the story, and the
debates set up the new normative universe. This collective, social and
textual response is key. In urging the renewal of study, the Torah and
its teaching are at the center of communal response, rather than the
cause and the biological quest of any individual or family. The world is
made for the “sake of the Torah” and the word precedes the physicality of
creation, an idea intricately discussed in the Talmud. Hence the
primary institutions that needed building were collective and communal in
nature: the house of study, the system of charity, and the educational
study accessible to all.

In reflection on this phenomena, Edward Feld comments:
To the question, “How did Jews respond to other catastrophe?” I would
answer, “not by having increasingly large numbers of children, but by
formulating a new interpretation of themselves in history and relation
to God. The sixty years between the destruction of the Temple and the Bar
Kochba revolution were among the most hermaneutically and legally
creative in Judaism’s history. The fabric of Jewish life was interwoven
with study, creative interpretation, and legal disquisition. Thus, when
the rabbis of the generation of Bar Kochba had to decide which were the
most central Jewish institutions to protect, the study and transmission
of Torah stood out as the essential instrument of religious
preservation.”

Such emphasis continued throughout the medieval period. Even at the
height of the fertility rate of Jews in Europe, the normal family size
was six--only slightly larger than other Europeans. Average birth
rates range between 5 and 8 for immigrant Jewish communities outside of
Europe, but only for a brief time, returning to smaller families along
with other ethnic groups as the society made the transitions that
adjusted to changing infant mortality. But despite pogroms, war, and
associated epidemics, the Jewish birth rate follows the general trends of
surrounding cultures—first rising in response to improved material
conditions, then falling in the face of improved childhood mortality. No
textual or historical evidence exists for a special distinction. In
fact, population increase is not seen as what makes Judaism relevant or
significant—on the contrary, it is the power of the text and the
transmission of the text that asserts continuity—no matter how small the
population.

Indeed, it is clear in general, from the legal (halachic) accounts that
the concerns of the text are specific and protective: 1.) To assure that
women are not required to have children, since childbirth is seen in the
Talmudic period as potentially life-threatening, and life-threatening
acts are as a rule never required 2.) But to assure that the temptation
for men to immerse oneself entirely in a life of study is avoided; so
that every man was married and in a family with children, but not to
require an unlimited, large family; 3.) But to allow for the pleasure of
non-reproductive sexuality after reproduction of two children--the
required number which, like for Adam and Eve, allows for human family to
continue. 4.) Finally, to allow both women and men to pursue, within
limits, options for family planning based on a complex assessment of
personal need and social context. The discursive method of Jewish ethical
reasoning follows from close analysis of key texts--but it is never a
history of unanimity--rather, it is a centuries long argument with
sharply disagreeing authorities making definitive and, in some cases,
contradictory statements. In thinking about the resources within the
tradition that allow us to understand how Jewish tradition understands
ethical questions, such as how to response to the continuing crisis of
the environment, let us turn to the development of the internal argument
of selected texts to illustrate both the mutability of the tradition and
the argumentative nature of the normative debate. Here, I want to briefly
reflect on three classic textual traditions that are used to rule on
matters of family planning. Since the historical account seems to
clearly suggest that Jews did in fact limit family size in concert with
other communal obligations for women, are there sources in the text that
speak for this? Can one find textual justification for this side of the
argument? Let us turn to the way traditional texts in two areas—birth
control and abortion--are used to mobilize normative action.
Birth Control: "Is a women commanded to propagate the race? "
The drama of the Biblical texts is the problem of infertility. The
promise that is the basis of the covenant itself is the repeated
assurance that the tribe of Abraham will be continued, made numerous, and
that the Jewish future and through it, the human future is safe. The key
text on the issue of family planning arises in a Yevamot, one of six
tractates or sections of the Mishnah, written in the earliest Talmudic
period (200 BCE.) In this passage, the rabbis begin by discussing the
problem of how to continue the line of a man who has died childless.
While his wife can remarry, his line will end, and the concern of the
Biblical text was to enact a system to avoid this-hence, the idea that
his closest biological kinsman will marry his widow, and she will claim
the children born as her dead husbands, entitled to his inheritance. The
Mishnaihic text deepens the question about the nature and meaning of the
obligation to have children: