Q&A: Another Man’s Pregnant Woman and Nursing Woman
Another Man’s Pregnant Woman and Nursing Woman
Question
Hello and blessings,
Regarding the prohibition against marrying another man’s pregnant woman, there are two main reasons: to distinguish who the father is, and to prevent the fetus from becoming flattened like a sandal.
Regarding the prohibition against marrying another man’s nursing woman, the main reason is to prevent harm to the baby from the loss of milk.
The question is: since today we know that intercourse does not cause a fetus to become flattened, and since we can determine who the father is with a simple DNA test, and since today formula is available everywhere, is there not room to say that this enactment, which was meant to protect the fetus/baby, no longer protects him and on the contrary actually harms him? After all, it prevents him from having a potential father, and not only that, it also prevents his mother from being loved and happy (which would generally have a very positive effect on the baby or fetus and his health). Especially since, after all, we live in a world where a typical woman is a fully independent person and is not subordinate to a husband or afraid to sue or anything of that sort.
Answer
Absolutely. The same is true regarding the waiting period of distinction in general. This is a case where the reason is clear and known, and the Rosh wrote in a responsum that in such a case there is no need for a formal count to permit it.
Discussion on Answer
When the reason is not straightforward.
By the way, the Rosh writes this as well in his Tosafot to Bava Metzia 90 regarding the reason of a verse in Torah-level law.
So according to this, why don’t we go back to reading the Megillah on the Sabbath, or sounding the shofar on the Sabbath? After all, nowadays there is no concern that one might come to violate the prohibition of carrying (at least in a place with an eruv).
Likewise regarding hand-washing before the meal, its reason seems clear and no longer applicable (as an extension of terumah).
I addressed this in my article on repealing enactments nowadays. In short, there is no orderly and unequivocal doctrine here. It is a consideration that combines how clear the reason is (which is the Rosh’s position, and it is not certain that this is agreed upon. But when the reason is written explicitly, some later authorities wrote that there everyone agrees changes can be made), together with the harm that may be caused by not changing the situation, the degree of agreement among today’s sages, the question whether the matter is private or public, and more.
Maybe I didn’t sharpen the answer I gave above enough. What I wrote is that it is appropriate to change this nowadays, and still I am not sure that I alone can change it. It is reasonable to make this conditional on the agreement of a significant group of the sages of our time, since it still goes against the rules. Perhaps if there is great need and this has already been done, there is room to be lenient on that basis.
In particular, if you adopt the “freezing” approach that I discussed in that article, it is clear that not every halakhic decisor or sage can decide to temporarily freeze a halakha. That requires consensus, even if not a Sanhedrin.
Now each of the examples you raised has to be discussed separately. In the case of the shofar, for example, the Jerusalem Talmud holds that this is a Torah law and not a decree, and in my article on sounding the shofar I showed that this is how the Babylonian Talmud should also be understood. So you see that sometimes the reason that seems right to you is not the correct one. The question of when this is self-evident is a complicated one (and that is another reason broad agreement is needed).
It sounds like there are indeed authorities who permit it (I didn’t check in Otzar HaPoskim, but the continuation of the responsum here on the next page says: “And what follows from this is that even according to the view of those who are stringent regarding another man’s pregnant woman, where she is not promiscuous, they would agree to be lenient where she is promiscuous”…)
https://www.hebrewbooks.org/pdfpager.aspx?req=21372&st=&pgnum=251&hilite=
So what is the meaning of “when the reason is annulled, the enactment is not annulled”?