Permanent and Semi-Permanent Makeup - Cosmetic Tattooing - Part 3 by Rabbi Chaim Jachter
In the past two issues we have reviewed the propriety of semi-permanent and permanent cosmetic tattooing. We have sought to rigorously define the prohibition of K’tovet Ka’aka (tattooing) and review the contemporary response literature to see if this prohibition applies to cosmetic tattooing. We have devoted special attention to the responsa of Rav Natan Gestener (Tesuvot L’horot Natan) and Rav Feivel Shneebalg (Teshuvot Shraga HaMeir), two important contemporary Poskim, who address this issue in depth. Our two essays are available on our website www.koltorah.org.
Purpose of the Tattooing
The Mishnah (ad. loc.) records the opinion of Rabi Shimon that one is flogged for violating the prohibition of Kitovet Kaaka only if one tattoos the name of an idol on his skin. The Chachamim, however, disagree. The Rishonim disagree regarding which opinion is regarded as normative. Normally, the majority opinion is accepted as normative. However, the Gemara (ad. loc.) records a discussion of the opinion of Rabi Shimon, leading some Rishonim to conclude that Rabi Shimon’s opinion is the accepted one. The Beit Yosef (Y.D. 180 s.v. Sh’chayav) cites Rabbeinu Yerucham who cites conflicting opinions and concludes that the Halacha follows the view of the Chachamim. The Beit Yosef agrees, noting that this also appears to be the opinion of the Rambam.
The Rivan (Makkot 21a s.v. Uchtovet) writes that even Rabi Shimon agrees that it is prohibited to tattoo any writing even if it is not the name of an idol. The dispute between Rabi Shimon and the Chachamim is only whether one is flogged for such tattooing. The Rishonim seem to debate whether Rabi Shimon believes that it is a biblical or rabbinic prohibition to inscribe a tattoo that does not contain the name of an idol. For a summary of the opinions, see the Otzar Meforshei HaTalmud, Makkot p. 847 note 20.
It is possible, however, that one violates the prohibition of Kitovet Kaaka on a biblical level only if one’s intention is for idolatry, even according to the opinion of the Chachamim. Recall that the Rambam and Tur write that the reason for the Kitovet Kaaka prohibition is to avoid idolatry. Indeed, the Chatam Sofer (commentary to Gittin 20b s.v. Bichtovet) writes that one does not violate a biblical level prohibition if he tattoos his slave in order that he should not escape (the Shach, Y.D. 180:6, seems to support this view). Maharam Schick (commentary to the Sefer HaMitzvot, Mitzvah 254) and Teshuvot Shoel Umeishiv (2:1:49) agree with the Chatam Sofer.
The Aruch LaNer (commentary to Makkot 21a s.v. Gam Im), on the other hand, asserts that one violates a biblical prohibition even if one’s intention is not for Avodah Zarah (idolatry). The Aruch Laner and Rav Gestetner note that the Rambam and Shulchan Aruch seem to agree with this view, as they do not mention that one violates this prohibition only if his intention is for idolatry. Moreover, Rav Gestetner notes that Tosafot (Gittin 20b s.v. Bichtovet) clearly indicates that a biblical level prohibition is violated even if one’s intention is not for Avodah Zarah.
Rav Gestetner writes that normative Halacha undoubtedly forbids tattooing for non-idolatrous purposes, as the Rama (Y.D. 180:4) forbids branding one’s slave to avoid his escape. It seems from the Rama, however, that this is only prohibited on a rabbinic level. The Rama adds to the Shulchan Aruch’s statement that one who brands his slave to avoid his escape is “exempt,” saying that nonetheless Lechatchilah (initially) one should not engage in this activity. The Shulchan Aruch and Rama, generally speaking, do not address issues of when one deserves to be flogged, because these authorities address only questions that apply in pre-Messianic times (it is currently relevant, though, regarding the Hilchot Edut, see Shulchan Aruch Choshen Mishpat 34:2). Accordingly, it seems that the Shulchan Aruch and Rama imply with the words “exempt” and “Lechatchilah” that one who brands a slave to avoid the latter’s escape violates only a rabbinic prohibition. The reason why no biblical prohibition is violated, asserts the Chatam Sofer, is because there is no intention for idolatry.
See the Get Pashut (124:30) cited in the Minchat Chinuch (253:2) who offers a different explanation. He explains that one violates the prohibition of Kitovet Kaaka on a biblical level only if the purpose of the tattooing is for the writing to appear on one’s body. Thus, since the ultimate purpose of one who tattoos his slave is simply to deter the slave’s escape and not for the writing that appears on his body, no biblical prohibition is violated. The Get Pashut notes that this is similar to Shabbat where normative Halacha (see Mishnah Berurah 316:34) accepts the opinion of Rabi Shimon that one does not violate on a biblical level if his purpose is not for the resulting work (Melachah She’einah Tzerichah Ligufah).
See, however, the Minchat Chinuch and Rav Gestetner, who criticize the explanation of the Get Pashut. Rav Gestetner cites Acharonim (based on Tosafot Shabbat 75a s.v. Tfei) who note that the Melachah She’einah Tzerichah Ligufah exemption is unique to Shabbat. The Pnei Yehoshua (commentary to Shabbat 46b) argues that it does not even apply to Yom Tov. Thus it is a concept that is entirely irrelevant to the prohibition of Kitovet Kaaka.
These explanations impact the question of whether cosmetic tattooing constitutes a biblical or rabbinic prohibition. According to the Get Pashut’s explanation of the Shulchan Aruch and the Rama, cosmetic tattooing would constitute a biblical prohibition because one’s purpose is for the coloring to appear on his body (Rav Basri argues that cosmetic tattooing does not constitute a biblical prohibition because one’s purpose is for beauty and not for writing per se; Rav Gestetner disagrees with Rav Basri’s reasoning, arguing that the purpose is indeed specifically for the writing). However, according to the Chatam Sofer’s explanation of the Shulchan Aruch and the Rama, cosmetic tattooing violates only a rabbinic prohibition because one’s intention is not idolatrous.
Who Violates the Prohibition?
When precisely does one violate the prohibition of Kitovet Kaaka – by inscribing the tattoo or by permitting the tattoo to be inscribed on his body? In other words, when the Torah (Vayikra 19:28) states Kitovet Kaaka Lo Titnu Bachem, does it prohibit the act of inscribing the tattoo or does it prohibit one to allow a tattoo to be inscribed on his body? The Tosefta (Makkot 3:9) states that both aspects are included in the prohibition. Thus, both one who inscribes the tattoo and one who permits a tattoo to be made in his body violate the biblical prohibition.
The Rambam (ad. loc.), though, notes that the one who permits the tattoo to be inscribed on his body is punished with Malkot only if he actively assists the inscription of the tattoo. If he does not assist in this process, the Rambam writes “he is not flogged”. This is an application of the rule that one is flogged only if he violates a sin that involves an activity such as eating non-kosher or wearing Shaatnez. The Minchat Chinuch (253:4) writes, though, that one who allows a tattoo to be inscribed on his body nevertheless violates a biblical level prohibition even if he is not subject to Malkot because of his inactivity.
It is not clear whether the Shulchan Aruch agrees with this last point (recall that the Shulchan Aruch does not, generally speaking, address issues of Malkot, which are not administered today). The Shulchan Aruch (Y.D. 180:2) writes that one who permits a tattoo to be inscribed in his body is “Patur” if he did not assist in this event. Rav Shneebalg asserts that although one who has a cosmetic tattoo inscribed on his face does not assist in the process (an anesthetic is administered), nevertheless a biblical level prohibition is violated. It is possible, though, that the language of Patur in the Shulchan Aruch (in contradistinction to the language of “he is not flogged” in the Rambam) might imply that only a rabbinic prohibition is violated. Thus, it is possible that one who submits himself to cosmetic tattooing might violate only a rabbinic prohibition thereby.
It is important to note that the Yad Ketanah (commentary to the Rambam ad. loc., cited in the Frankel edition of the Rambam) notes that based on the Tosefta and Rambam, one violates the Kitovet Kaaka prohibition even if the individual who inscribes the tattoo is not Jewish. Thus, the problem of cosmetic tattooing is not mitigated by using a non-Jewish derma technician, since one is forbidden to have a tattoo inscribed in his body, regardless of who is performing the inscription.
We have been preoccupied with the question of whether cosmetic tattooing constitutes a biblical level prohibition or rabbinic level prohibition. Part of the reason is that there are exceptional circumstances where Halacha tolerates the violation of a rabbinic prohibition. The Gemara (Brachot 19b) states that for the sake of Kevod Habriyot (preserving human dignity) one may violate a rabbinic prohibition (Rav Daniel Feldman discusses this issue in depth in his The Right and the Good pp. 189-206).
Both Rav Basri and Rav Shneebalg are inclined to permit cosmetic tattooing in the case of Kevod Habriyot. Rav Basri permits surgeons to tattoo eyebrows on the forehead of a woman who had no eyebrows. Rav Shneebalg is inclined to permit cosmetic tattooing in a more common situation – scar removal. In this situation, a pigment that matches the color of human skin is injected beneath the scar, allowing that area to appear like the rest of the person’s skin. Interestingly, Rav Shneebalg writes in his first responsum (8:44) on this subject, “Perhaps one can permit this,” and in his second responsum (8:45, where he defends this suggestion from a critic), he writes, “Apparently one can permit this.” Thus his inclination towards leniency is more pronounced in his second responsum on this topic. Rav Gestetner does not examine this issue, but he might rule strictly, as he is inclined to categorize cosmetic tattooing as a biblical violation. Moreover, it is important to emphasize that only a Rav of considerable stature is authorized to rule regarding this matter.
Although I have not seen Poskim specifically address this issue, we must also consider the safety of cosmetic tattooing. Although it is currently considered safe, doctors might think otherwise in the years ahead. Recall our discussion regarding the permissibility of surgery to correct a disfigurement. Teshuvot Avnei Neizer in the early twentieth century prohibited it, urging the questioner not to rely on a doctor’s assurance of safety, whereas Teshuvot Chelkat Yaakov in the middle of the twentieth century permitted such surgery because its safety was proven over the previous few decades.
The Chelkat Yaakov’s leniency is based on the Gemara’s dictum that “once people commonly engage in a behavior [and it is proven to be reasonably safe] we are permitted to engage in this behavior.” It appears that this dictum also teaches us to avoid serving as the proverbial “guinea pig” for new procedures. Only after a behavior has proven to be safe over a considerable period of time and it becomes commonly accepted behavior, may we engage in such behavior. It is unwise to be part of the avant-garde regarding such matters, unless there is considerable need to do so.
Must One Remove a Cosmetic Tattoo?
The Torah prohibits applying a tattoo and allowing a tattoo to be applied to one’s body. Does the Torah also forbid maintaining a tattoo on one’s body when one has the ability to remove it (removing tattoos is a common procedure nowadays)? It seems from the Rambam and Shulchan Aruch that no such prohibition exists. However, it is possible that these authorities did not address this issue because in their time it was impossible to remove a tattoo. Thus, we must search the modern responsa literature for an answer.
Dayan Weisz (Teshuvot Minchat Yitzchak 3:11) discusses a case where someone had a disgraceful tattoo on his body (before he became observant) on the place where he should affix his Tefillin. Rav Weisz advises him to remove the tattoo but makes no mention of an obligation to remove the tattoo because of the Kitovet Kaaka prohibition. Furthermore, Rav Ephraim Oshry (the author of responsa from the Holocaust and its aftermath) strongly urges (Teshuvot Mee’ma’makim 4:22) Holocaust survivors not to remove the tattoos that the evil Nazis (Y’mach Sh’mam) branded on them. He writes that God forbid he should remove the tattoo, which should be viewed as a badge of honor by its bearer. Accordingly, there appears to be no obligation to remove a tattoo. Rav Eliyahu Bakshi-Doron (Techumin 22:387), however, recommends removing the tattoo to avoid the constant reminder of an earlier sin. He even permits, in certain circumstances, the removal of Hashem’s name that was [sinfully] tattooed on one’s body, even though it is ordinarily forbidden to erase Hashem’s name.
The near unanimous view of contemporary Poskim is to forbid permanent and semi-permanent makeup. Rav Wosner rules that it is forbidden, though it is not clear if he believes it to constitute a rabbinic or biblical level prohibition. In addition, it is not clear if Rav Wosner is addressing only permanent makeup or even semi-permanent makeup. Rav Gestener and Rav Shneebalg, however, unequivocally rule that even semi-permanent makeup is forbidden. Rav Gestetner is inclined to define it as a biblical level prohibition, whereas Rav Shneebalg is inclined to regard it as a rabbinic prohibition.
Rav Shraga notes that he posed this question to many leading Israeli Poskim and they all responded that even semi-permanent makeup is prohibited. These authorities include Rav Yosef Shalom Eliashiv, Rav Yaakov Fischer (the late head of the Beit Din of the Edah Chareidit), Rav Chaim Kanievsky, and Rav Ovadia Yosef. Rav Dovid Heber (of the Star-K in Baltimore) writes (p.49 of the 2004 informational guide to Passover and Cosmetics co-produced by the Star-K and Rav Gershon Bess) that he has consulted many Poskim who also rule strictly about this matter.
However, some Poskim are inclined to permit cosmetic tattooing in case of extraordinary need. Otherwise, it is difficult, as the Minchat Chinuch notes, to develop lenient approaches to this matter when the Rishonim and Shulchan Aruch seem to allow no exceptions to this prohibition (as emphasized by Rav Gestener in his responsum).
Two Final Thoughts
Rav Wosner also writes that cosmetic tattooing violates the spirit of Halacha. Elsewhere (Teshuvot Shevet HaLevi 6:33), Rav Wosner frowns upon women putting on an excessive amount of makeup. He notes that the Gemara (Shabbat 62b) asserts that a reason for the destruction of the Beit HaMikdash was the immoderate use of cosmetics. Rav Wosner argues that the same applies to cosmetic tattooing. The Torah emphasizes moderation as an important value as the Rambam teaches in Hilchot De’ot (chapters 1-3). Makeup for women can be appropriate if used in moderation, if a woman feels makeup is necessary for her in order to have a dignified appearance. However, inscribing makeup in one’s body is entirely out of proportion and immodest.
Moreover, the Torah concludes its prohibition of Kitovet Kaaka by adding “I am Hashem.” Besides the reasons we offered earlier for this phenomenon, we may suggest that Hashem wishes for us to internalize the fundamentally important idea that our bodies do not belong to us. Rather, they are on loan to us from Hashem in order to perform His Mitzvot. Thus, we are not permitted to do anything we choose to do with our bodies. Whereas moderate use of cosmetics is certainly acceptable, almost all the Poskim deem cosmetic tattooing to be inconsistent with technical Halacha as well as fundamental Torah values.