The Halakhic and Ethical Issues Regarding Early Ovulation and Conception

The Halakhic and Ethical Issues Regarding Early Ovulation and Conception

Liat Greenwood

Introduction to the problem

V’el isha b’nidat tumata lo tikrav l’galot ervata.

“To a woman in the niddah state of ritual impurity, you may not come near to uncover her nakedness.” (Leviticus 18:19)

The sages explain that a woman enters the status of a niddah with the release of uterine blood; as a result, she becomes Temeah, ritually impure, and may not cohabit with her husband. In Torah times, the woman would have been able to change her status to that of Tehorah, ritually pure, by immersing in the Mikveh, a ritual bath, after seven days. She could then resume intimate relations with her spouse.

With the arrival of the Israelite nation in their homeland and the rise of the rabbinic leadership, the timing by which a woman achieved the status of Tehorah underwent a significant transformation. The rabbis mandated that a woman would be considered a niddah for the first four to five days of her menstrual cycle (four according to the tradition of the Sephardic Jews–from Arab and Spanish lands– and five according to the Ashkenazic Jews – from the remainder of Europe). But in addition, she would now be considered a niddah for the following “seven blood-free days” as well (at a minimum, a total of eleven days for Sephardic women and twelve days for Ashkenazic women).[1] These laws remain in effect to this day and an observant Jewish woman is bound to adhere to them.[2] Though the extension of the niddah status by several days was ultimately rabbinic in origin, modern Orthodoxy holds that this extension has the same weight and force as the original Torah injunction.

How does this work from a practical standpoint in modern times? During the seven blood-free days, a woman must have no physical evidence of uterine bleeding. In the afternoon at the conclusion of her actual bleeding (a minimum of four or five days, as determined by the woman’s origin and family tradition), she performs an internal vaginal check using a white cloth. She then visually inspects the cloth to ensure that there are no traces of red stain. If she determines that the cloth is free of this residue, she may begin counting her seven blood-free days; this initial examination is known as a hefsek tahara. During the successive week, she performs the same internal check, which is now known as a bedikah, on a daily basis to ensure that her status is unchanged from the moment of her hefsek tahara. Under normal circumstances, a rabbi is not consulted in these matters, and the woman relies on her own sense of integrity to declare that she has completed her seven blood-free days. Following her last bedikah, she is permitted to visit the mikveh and is encouraged to resume intimacy with her husband.

The connection between these seven blood-free days and fertility may not be apparent to those without an understanding of female physiology. But if a woman generally ovulates during her seven blood-free days, it is likely that she will be unable to conceive during intercourse. This condition is known in the Modern Orthodox and Ultra-Orthodox communities as “early ovulation” and the result is called “Halakhic Infertility,” that is, infertility that is a direct outcome from the practice of halakha, Jewish law. According to a recent study in 2012 by a group of gynecologists in Israel, 21% of women (who observe the laws of niddah) reported that ovulation occurred on average 24 hours or more before their mikveh immersion.[3] This means that they were halakhically infertile since they were prohibited to their husbands at the time they would have been able to conceive. Infertility, resulting from early ovulation combined with adherence to the laws of niddah (i.e., ovulation before immersion in the mikveh and resumption of sexual relations), creates a number of dilemmas, both ethical and halakhic in nature.

Physiology of Ovulation and Conception

The female reproductive system's primary organs are the ovaries. The two ovaries are located on the lateral walls of the pelvis, and are attached to either side of the uterus or womb by the ovarian ligaments. The ovaries are responsible for creating the ova (the female gametes or eggs). They also release the female hormones estrogens and progesterone, which help regulate the menstrual and fertility cycle, among other functions. An external view of an ovary shows that it is relatively small (about the size of an almond) and spherical. An internal view of an ovary shows many sac-like structures called ovarian follicles, each containing an immature ovum called an oocyte, engulfed in a layer of cells, called follicle cells. Each ovarian follicle goes through stages of growth while the egg is maturing. The follicle expands outwards creating open space between the maturing egg and the cell layer. This space is called the antrum and is filled with liquid. When the ovarian follicle reaches the stage where the antrum is fully developed, it is called the vesicular or Graafian follicle; after this point, the ovum is mature and ready to be sent out from the ovary into the fallopian tubes in the process called ovulation.

In the general population of women, ovulation occurs on average every 28 days--towards the end of the proliferative stage--around days 6-14 of a woman's cycle (counted from the first day of menstruation). After ovulation occurs, the mature ovum will live for up to 24 hours before disintegrating. Once it is destroyed, conception cannot occur until the woman ovulates again during her next cycle. If a Jewish woman ovulates regularly during any of the first six blood-free days (i.e., before she has immersed)--equivalent to the proliferative stage of an average woman's cycle--then, she will be unable to conceive during intercourse, as there is no egg present to fertilize. Using advances in modern medicine and technology, and by turning to leniencies in Jewish Law, our sages have devised ways to combat the problem of halakhic infertility.

The Niddah Status – Historical Overview

Ve'ishah k-tihiyeh zavah dam yihiyeh zavah bivsarah shivat yamim tihiyeh veniddatah vechol-hanogeyah bah yitmah ad-ha’arev

“And when a woman has a discharge and the discharge of her flesh is blood, she will be a zavah for seven days, and everyone who touches her will be ritually impure until the evening.” (Leviticus 15:19)

The Torah mandates that a woman who has expelled uterine blood is not permitted to engage in sexual relations with her husband for a seven-day period, beginning with the onset of bleeding. The punishment for transgressing this commandment is severe – that of Karet, spiritual excommunication -- as ritual purity is at stake. But the Torah also speaks about another status which is historically relevant, as it relates to the ultimate expansion of the seven-day waiting period to the current minimum of eleven or twelve days. The Torah introduces the concept of a zavah, a woman who encounters uterine bleeding at a time outside of her expected menstrual period. According to the Torah, a zavah must count seven blood-free days following the cessation of her flow before she can become tehorah and is permitted to her husband. In practice, however, women were unable to distinguish between the laws of the zavah and niddah. Therefore, in order to ensure that they were not transgressing a Torah commandment, and were at risk for the punishment of Karet, Jewish women started to observe their own stringencies. The practice became widespread to consider all uterine bleeding as rendering them zavah -- and not niddah -- thus requiring them to count seven blood-free days only after all uterine bleeding had ended. This is known as Takanat Rebbi Zeira, the ordinance of Rabbi Zeira, and is recounted in the Talmud as follows:

Amar Rabbi Zeira: B’not yisrael hechmiro al aztman, she’afilo ra’ot tipat dam chardal – yoshevet aleyha shiva neki’im

Rabbi Zeira said: the daughters of Israel accepted a stringency on themselves, that even if she saw only a drop of blood the size of a mustard seed, she would sit on it for seven blood-free days.[4]

In Jewish law, it is customary that a chumra (stringency) created or codified by the sages of previous generations takes on the status of Torah law.

It is clear that with Takanat Rebbi Zeira, a woman now needed to wait until the conclusion of her uterine bleeding before performing a hefsek tahara and beginning the count of the seven blood-free days. But how did the rabbis determine that a woman needed to wait at least four of five days before starting the count? What would happen in the case of a woman whose bleeding lasted only three days? The rabbis added an additional day (or two, depending on regional differences) because of the possibility that the woman and her husband had sexual relations just prior to the onset of her niddah status. They feared that her seven days would be tainted by the expulsion of semen, which would cause further impurity forcing her to start a recount.[5]

The extension of the counting period by this many days may overlap with ovulation. Hence, a direct result of Takanat Rebbi Zeira is that there are women who will become Halakhically Infertile. That is, they will not be able to conceive naturally during the time that they are permitted to their husbands.

Halakhic (Jewish Law) Solutions

If a women suspects that she ovulates during the period in which she is halakhically prohibited to her husband, she should confirm that this is, in fact, the case by performing a test with an ovulation kit (available over-the-counter at pharmacies). Once confirmed, she should ensure that she is counting her seven blood-free days correctly, before considering any other halakhic or medical interventions. She may only be menstruating for the minimum four or five days (according to her family tradition), but think that she is menstruating for longer, especially if her hefsek tahara is questionable. The woman would need to submit her hefsek tahara cloth to a rabbinic authority to confirm whether or not she has identified her status correctly. If she has misunderstood the colors on the hefsek tahara, then she will be encouraged to consult with a rabbi during the next cycle, so that she can attend mikveh at the earliest possible opportunity and not delay unnecessarily. If she is counting her days properly, then halakhic leniencies can be taken. If an Ashkenazic woman is only menstruating for four actual days, many rabbis will allow her to perform a hefsek tahara at that time (as is the Sephardic custom).[6] She would still wait her seven blood-free days, but they would be pushed forward so she could potentially ovulate after her mikveh visit (or no more than 24 hours beforehand). According to mainstream Orthodox view, if none of the above works, and she wants to have children while still observing Jewish law, she has to proceed with medical intervention.[7]

Medical Interventions

Clomid

The drug most commonly recommended by doctors for the problem of halakhic infertility is Citamine Citrate (more commonly known by the brand name Clomid). Clomid is a non-steroidal ovulatory stimulant. It interacts with estrogen-receptor-containing tissues (i.e., the hypothalamus, pituitary, ovary, endometrium, vagina, and cervix). The cost for the drug over one cycle appears to run between $10-$100, depending on dosage, with an average cost of approximately $40.[8]

Citamine Citrate must be prescribed by a doctor due to its potential side effects, as explained in the Physician’s Drug Reference[9]. 1.5% of women taking Clomid reported blurring and/or other issues with their eyesight. In fact, a woman taking Clomid is advised not to drive or use machinery. For women with careers requiring perfect vision, for example--a surgeon, Clomid may not be an acceptable means to solve Halakhic infertility. 5.5% of women reported having abdominal and/or pelvic pain and distension and bloating. And the risk of multiple pregnancies was 7.98%, higher than with than regular conception (directly due to overstimulation in the ovaries). In addition to these risks, 13.6% of women reported ovarian enlargement, 10.4% reported vasomotor flushes, 2.2% reported nausea and or vomiting, 2.1% reported breast discomfort, 1.3% reported moderate to severe headaches, and 2.1% reported abnormal uterine bleeding (which would defeat the purpose of using this particular drug for the purpose of halakhic infertility).

When taking Clomid, a woman is at risk for Ovarian Hyperstimulation Syndrome (OHSS). The risk of OHSS is higher in women under the age of 30. OHSS is a serious medical disorder that can progress very rapidly. OHSS causes a build-up of fluid leading to ovarian enlargement, gastrointestinal symptoms, ascites (fluid in the peritoneal cavity), dyspnea (shortness of breath), oliguria (a low output of urine), and pleural effusion (fluid in the lungs). If used for more than one cycle, taking Clomid may increase the risk of developing an ovarian tumor. According to a study conducted between 1965-1985, Clomiphene Citrate used for one cycle increased the risk of uterine cancer by 1.79%.[10] Finally, there have been no studies to show how Clomid reacts with other drugs.

There is also the possibility that a woman will not be allowed to take Clomid due to medical contraindications. A woman cannot take Clomid if she is prone to abnormal ovarian cysts, which occur in 67% of women. Additionally, she may not take Clomid if her estrogen levels are too low, or if she has a history of liver disease, thyroid problems, or adrenal dysfunction.

Intrauterine Insemination (IUI)

Intrauterine Insemination, known more commonly asIUI, is a relatively safe medical procedure (it is a type of Artificial Insemination, AI), which takes place while a woman is ovulating. The IUI procedure takes around twenty minutes and costs between $500 and $1,000.[11] Women under 35 years of age have a 10% to 20% chance of getting pregnant after one IUIcycle. Women between the ages of 35 and 40 have a 10% chance, and women over the age of 40 have only a 5% chance of getting pregnant after one cycle ofIUI. [12]