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Parshat Mishpatim          26 Shevat 5765             February 5, 2005             Vol.14 No.20


<<Part 1<<

Permanent and Semi-Permanent Makeup - Cosmetic Tattooing - Part 2
by Rabbi Chaim Jachter

Introduction
In our previous issue we began to discuss the permissibility of semi-permanent make-up. This procedure essentially tattoos lipstick or other cosmetics that will last approximately three years. Our discussion has been focused on a number of Teshuvot that were written on this topic, especially the rulings of the Teshuvot L’horot Natan (Rav Gestetner) and Teshuvot Shraga Hameir (Rav Shneebalg). We have been presenting their in-depth analysis of the prohibition of K’tovet Ka’aka (tattooing) and exploring whether this prohibition applies to semi-permanent make-up. If you missed last week’s article, it is available on our website, www.koltorah.org.

The Order of the Process
The Mishnah (ad. loc.) states that one receives Malkot (flogging) only if one both scratches the skin and inserts the dye. In cosmetic tattooing, first a cut is made and then the dye is inserted. However, the Rivan (ad. loc. s.v. K’tovet) describes the process of Kitovet Kaaka as first writing and then making a tear in the skin. The Rambam (ad. loc.), on the other hand, describes Kitovet Kaaka as first tearing the skin and subsequently inserting the dye. Might the status of cosmetic tattooing hinge on this dispute between the Rambam and Rivan?
The Bach (Y.D. 180 s.v. V’hoo Sh’koteiv), however, argues that there is no dispute here between Rashi and the Rivan. The Rivan merely is following the order as it is found in the term Kitovet Kaaka – writing and cutting – and the Rambam describes the process as it is normally conducted – cutting and then writing. Although the Shulchan Aruch (Y.D. 180:1) describes Kitovet Kaaka as first cutting the skin and subsequently inserting the dye, the Shach (Y.D. 180:1) indicates that one violates the biblical prohibition even if the order is reversed (see the Minchat Chinuch 253:1, who interprets the Shach in this manner and cites authorities who argue that the biblical prohibition applies only if one first cuts and then inserts the dye). Rav Gestetner adds that one also violates the biblical prohibition even if the writing and cutting occur simultaneously (Rav Gestetner understands that this is what occurs during cosmetic tattooing).

What Must Be Written?
Teshuvot Me’il Tzedaka 31 (cited in the Pitchei Teshuva Y.D. 180:1) asks whether one must write letters in order to violate the prohibition of Kitovet Kaaka or if any marking constitutes a violation. He also suggests that one violates only a rabbinic prohibition by creating a marking without writing. Acharonim (such as the Minchat Chinuch and the contemporary Poskim who address the issue of cosmetic tattooing) note that the Rishonim had already disputed this matter.
The Smak (72), Rabbeinu Peretz (cited in the Smak), Orchot Chaim (22:4) and the Chinuch (253) seem to believe that one violates this prohibition only if he tattoos letters into his skin. This approach might be based on the reason offered by the Rishonim (Rambam, ad. loc., and Tur, Y.D. 180) for the prohibition of Kitovet Kaaka, that the practice of idolaters was to tattoo the name of their god into their skin. They wished to communicate that they are committed slaves to that particular god. Interestingly, Rav Wosner suggests that Hashem hints at this reason in the Torah by stating “I am Hashem” after presenting the Kitovet Kaaka prohibition, thus suggesting that Kitovet Kaaka contradicts one’s commitment to Hashem. Accordingly, a number of Rishonim believe that one violates Kitovet Kaaka only with writing, since one thereby expresses his commitment to idolatry. Rav Basri asserts that the majority of Rishonim and classic Acharonim believe that one does not violate Kitovet Kaaka if he does not write letters.
On the other hand, the Minchat Chinuch (253:3) observes that the majority of Rishonim believe that one violates Kitovet Kaaka even if he does not write letters. Among the Rishonim who explicitly state that writing is not necessary are the Raavad (Torat Kohanim, Kedoshim 76) and the Rash Mishantz (ad. loc.). Rav Gestetner argues that the Rambam (ad. loc.) and Shulchan Aruch (ad. loc.) appear to indicate that one violates Kitovet Kaaka even if one does not inscribe letters, as these authorities make no mention of this requirement.
Rav Shneebalg asserts that all the Rishonim would agree that one at least violates a rabbinic prohibition even if one does not write letters. A proof of this is the fact that the Gemara suggests that placing stove ashes on a wound might be prohibited because the resultant scab resembles a tattoo. The scab obviously does not appear in the form of a letter. Nonetheless, the Me’il Tzedakah suggests that the ashes constitute a problem because the scab appears like a letter. According to this suggestion, there is not even a rabbinic prohibition violated if no letters are written.
Rav Basri, Rav Gestetner and Rav Shneelbalg agree that according to the strict opinion among the Rishonim and Acharonim, any form that is imprinted on the body is included in the prohibition. Thus, imprinting color onto one’s skin is included in the prohibition according to the strict opinion either biblically or rabbinically.
However, Rav Avigdor Nebentzahl (the Rav of Jerusalem’s Old City, cited in Techumin 18:113) seems to argue that the strict opinion prohibits only imprinting a picture or figure on one’s body, such as an anchor or a heart. By contrast, imprinting color is not viewed by Halacha as writing and thus seems not to be Kitovet Kaaka. Indeed, in the context of Hilchot Shabbat, writing letters and drawing pictures are included in the same Av Melachah (one of the thirty-nine categories of prohibited Shabbat activity, see Rambam Hilchot Shabbat 12:9-17). On the other hand, coloring a surface is defined as Tzovei’a (coloring), which is an entirely separate and distinct Av Melachah. The Torah prohibits Kitovet (writing) and not coloring. Accordingly, Rav Nebentzahl is inclined to permit semi-permanent cosmetics based on a combination of two lenient factors: no writing is involved, and it is not permanent.
Accordingly, contemporary authorities argue as to whether inscribing dye in one’s skin is included in the parameters of the Kitovet Kaaka prohibition. A proof of the stricter opinion might be drawn from the Rambam and Shulchan Aruch who not only do not mention a requirement for writing letters to violate the prohibition, but also make no mention of a requirement for a picture or figure to be drawn. They simply mention that this prohibition is violated when one injects dye beneath the skin. Another proof that the categories regarding Shabbat are not relevant to the Halachot of Kitovet Kaaka, is the Sefer HaChinuch’s ruling (ad. loc.) that Beit Din punishes someone for tattooing even one letter, unlike Shabbat where Beit Din does not punish for writing less than two letters. Accordingly, the distinction between writing and coloring that is made in the context of Hilchot Shabbat seems to be irrelevant to the prohibition of Kitovet Kaaka.
It seems interesting that Rav Wosner forbids cosmetic tattooing because of “Srach Issur Kitovet Kaaka,” possibly translated as “because it will habituate one to Kitovet Kaaka” (see the term “Srach” used in Chullin 106a). Rav Wosner might be implying that even if cosmetic tattooing is not exactly like tattooing (perhaps because of Rav Nebentzahl’s reasoning), it is nevertheless forbidden because it resembles Kitovet Kaaka. Tosafot (Gittin 20b s.v. Bichtovet) teach that Chazal forbade acts that resemble Kitovet Kaaka, such as making permanent markings on the skin without cutting the skin. Thus, even were Rav Nebentzahl’s argument to be correct, it still does not suffice to permit cosmetic tattooing. However, it might bolster the argument that it is only a violation of a rabbinic law.

Next Week IY”H and B”N we will continue our discussion by dealing with how this issue relates to the purpose of the tattooing as well as who violates the tattooing.

 

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