Rabbi Jachter's Halacha Files
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A Student Publication of the Isaac and Mara Benmergui Torah Academy of Bergen County

Parshat Vayetzei            11 Kislev 5763               November 16, 2002            Vol.12 No.6

The Yichud Prohibition- Part One:
To Whom Does It Apply?
by Rabbi Howard Jachter

Introduction
It is quite challenging to abide by the Yichud restrictions.  This prohibition restricts a man and a woman from being secluded unless they are married or very close relatives.  Abiding by this Halacha is, however, an essential component in maintaining a Torah lifestyle and Kedushat Yisrael (the holiness of the Jewish People).  In this issue and the next, we will discuss the parameters of this prohibition and how we abide by this prohibition in the modern context. 

The Source of the Prohibition
The Gemara (Kiddushin 80b) notes that the Torah (Devarim 13:7) hints at the prohibition for a man and a woman to be secluded unless they are married or very close relatives.  The Rishonim debate whether this is a Torah level or a rabbinic level prohibition.  For a list of these Rishonim, see the Encyclopedia Talmudit 23:634-635.  The Bait Shmuel (Even Haezer 22:1) cites this debate but does not decide which view is accepted.  The Aruch Hashulchan (E.H. 22:2), however, rules that it is a Torah level prohibition.  The Gemara (Sanhedrin 21b) that states that Yichud is a Torah level prohibition appears to clearly support this view (though one could argue that the Gemara means that there is a basis for this prohibition in the Torah).  Rav Yitzchak Elchanan Spektor (Teshuvot Ein Yitzchak 1: E.H.8:4) notes, however, that even those Rishonim who believe that this prohibition is only rabbinic in nature agree that it is a very stringent prohibition, especially since this is a restriction that predates the time of David Hamelech and has a basis in the Torah.
The original Torah prohibition includes only a man’s seclusion with a woman defined as an “Erva” in the Torah, such as a married Jewish woman.  David Hamelech added the prohibition to engage in Yichud with an unmarried Jewish woman (Sanhedrin 21).  Later, Shammai and Hillel prohibited seclusion even with a non-Jewish woman (Avoda Zara 36b).  The Acharonim debate whether an unmarried woman who is a Nidda is included in the original prohibition or is part of the decree of King David (see Teshuvot Tzitz Eliezer 6:40:8:8 for a discussion of the issue).  The Aruch Hashulchan (E.H. 22:1) rules that that type of woman is included in the original prohibition.  The Mishna Berura (75:17) seems to agree.

Who is Excluded for the Prohibition?
The Gemara (Kiddushin 80b) states that the Yichud prohibition does not apply to a man and his mother.  In fact, the Gemara (Kiddushin 81b) states that a man is permitted to dwell in the same house with his mother or his daughter even if no one else lives there.  Rashi (ad. loc. s.v. Vedar) explains that the Yetzer Hara is not interested in such a case, as the Gemara (Sanhedrin 64a) records that the Anshei Knesset Hagedola convinced Hashem with their Tefilot to curtail the Yetzer Hara for incest.

Yichud with Adopted Prohibition
Contemporary Poskim debate whether adoptive parents are prohibited to be secluded with their opposite sex children who were adopted at a very young age.  Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H.4:64:2), Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 6:40:21), and Rav Chaim David Halevi (Teshuvot Asei Lecha Rav 3:39) all rule that adoptive parents are permitted to engage in Yichud with their adopted children since the Yetzer Hara is not interested in such situations.  Rav Ovadia Yosef (see Yalkut Yosef, Kitzur Shulchan Aruch p.975) is essentially lenient about this issue, though he believes that it is preferable to adopt a girl so that the wife who is home most of the time can shield her husband from Yichud.
Rav Moshe seeks to prove his lenient ruling from the Gemara (Sotah 43) that forbids children who are not biologically related but were raised in the same home to marry each other.  The Gemara explains that such a relationship is rabbinically prohibited because it appears that siblings are marrying.  Rav Moshe reasons that had the opposite sex parents been avoiding Yichud with their adopted children then it should be obvious to all that they were adopted and the marriage should be permitted.  Rather, Rav Moshe concludes, we may infer from the Gemara that adoptive parents treat their adoptive children like biological parents do, and do not avoid Yichud with the children, and can hug and kiss their children.  Indeed, Rav Waldenburg notes that the common practice among even very pious individuals is to be lenient about this matter.  See Nishmat Avraham (5:132-133), though, for Dr. Abraham S. Abraham’s rebuttal of Rav Moshe’s proof and Rav Shlomo Zalman Auerbach and Rav Yosef Shalom Eliashiv’s agreement with Dr. Abraham.
Rav Nachum Rabinovitch (the prominent Rosh Yeshiva of the Yeshivat Hesder of Maaleh Adumim) is cited in Techumin 10:317 by Rav Azariah Berzon as agreeing with the aforementioned Poskim who permit adoptive parents to have Yichud with their adoptive children.  Rav Rabinovitch notes that Jews have adopted children since time immemorial.  The Gemara (Sanhedrin 19b) even states that one who raises an orphan in his home is as if he birthed the child.  Rav Rabinovitch argues that had Yichud been prohibited in the adoption situation, why are the Gemara and the voluminous writings of subsequent generations silent about this issue.  He concludes that we may infer from this silence permission for Yichud in such cases.
Rav Waldenburg, though, restricts his lenient approach to a case where a girl was adopted before the age of three and a boy who was adopted before the age of nine.  Rav Moshe also writes that his leniency does not apply to an adoptive father and daughter if the wife has died. 
Many Poskim strongly dispute these lenient rulings.  The Lubavitcher Rebbe zt”l (in a letter printed in the Otzar Haposkim 9:130) vigorously argues that Yichud is forbidden in the adoptive situation.  He believes that the Gemara’s permission to have Yichud with a child is limited to a biological child and parent.  He insists that in earlier generations, adoptive parents adhered to the Yichud restrictions regarding the adopted child.  In fact, he urges that his position on this matter be publicized.  Indeed, the Otzar Haposkim (9:132) records that Rav Dov Ber Weidenfeld (the Chebiner Rav, author of Teshuvot Doveiv Meisharim), Rav Yaakov Kanievsky (the Steipler Gaon), and Rav Ezra Ettiah (an important mid-twentieth century Sephardic Halachic authority) agree with the Lubavitcher Rebbe on this matter.  Similarly, the Chazon Ish (cited in Dvar Halacha 7:20) and Rav Shmuel Wosner (Teshuvot Shevet Halevi 6:196) subscribe to the strict ruling on this matter.  Obviously, anyone to whom this issue is relevant should consult his Rav for a ruling.

Sister
The Gemara (Kiddushin 81b) teaches, “A man is permitted to be secluded with his sister and to dwell with his mother or daughter.”  The Gemara implies that one is not permitted to dwell permanently with his sister.  Indeed, the Bait Shmuel 22:1 and Chelkat Mechokeik 22:1 (the two premier commentaries to Shulchan Aruch Even Haezer) codify the rule that a brother is permitted to temporarily engage in Yichud with his sister.  Accordingly, a brother and a sister may not dwell together in an apartment or house for an extended period.
The Gemara and classical codes, however, do not precisely define what is temporary Yichud.  Rav Meir Arik (Teshuvot Imrei Yosher 2:43) permits Yichud with a brother for up to thirty days.  Indeed, we find in the Gemara that thirty days constitutes a type of permanence in a number of contexts.  For example, one who rents a home in Chutz Laaretz for less than thirty days is not required to affix Mezuzot to the dwelling (Menachot 44a).  Another example is that we assume that one does not rent a dwelling for less than thirty days (see Rosh Hashana 7b).  Finally, if one commits to be a Nazir but does not specify a time, he is a Nazir for thirty days (Nazir 5a).  Rav Hershel Schachter (in a Shiur he delivered at Yeshiva University) ruled that one may follow this ruling of the Imrei Yosher. 
Other Poskim disagree with the Imrei Yosher.  The Encyclopedia Talmudit (23:668) cites Tzuf Devash who forbids Yichud between a brother and sister for more than two days.  Rav Moshe Feinstein (Teshuvot Igrot Moshe 4:64:3) presents an interesting approach to this question.  He writes that there is no specific timeframe regarding this issue.  He writes that Yichud in this case is permissible as long as it is in the manner of a guest staying at a host.  Thus, a brother should not stay at his sister’s apartment for longer than a guest would stay at her apartment.  Rav Moshe notes that this is subjective and varies from society to society.  The beauty of this approach is that it fits with the fact that the Gemara and classic codes do not present a specific timeframe regarding this issue.  In practice, one should ask his Rav regarding which position he should follow. 

Age
The Yichud prohibition begins for a girl at age three and a boy at age nine (Shulchan Aruch 22:11).  This issue must be addressed in the context of babysitting.  One should consult his Rav for guidance. 
The Rambam (Hilchot Issurei Biah 22:1) and Shulchan Aruch (Even Haezer 22:1) specifically mention that the prohibition of Yichud applies to an older individual as well.  Teshuvot Divrei Malkiel (4:102) and the Chazon Ish (cited in Dvar Halacha addendum to page 19) write that this applies even to an exceptionally older individual.  This ruling is supported by the Gemara (Kiddushin 81b) that relates how an exceptionally older gentleman acted inappropriately in this area.  However, Rav Moshe (Teshuvot Igrot Moshe E.H.4:65:10) and Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 6:40:22) rule that if a doctor confirms that the older individual is no longer capable of violating the Torah in this area, then the Yichud prohibition does not apply.  Indeed, the Rambam (ad. loc.) writes the reason for the Yichud prohibition is that it may lead to promiscuity.  Accordingly, when this concern is not relevant then the Yichud restriction should not apply.  See, however, Nishmat Avraham (3:98-99) where Rav Shlomo Zalman Auerbach expresses serious reservations about this leniency, in light of the aforementioned Gemara in Kiddushin 81b and other sources.

A Married Couple
Yichud is permissible for a married couple, even at a time when they must separate, if the couple has lived together at least once (Sanhedrin 37a and Shulchan Aruch ad. loc.).  While Yichud protects unmarried people from sin, the special separations that couples observe while the couple is forbidden to each other protects the couple from sin (Rosh Kitzur Hilchot Nidda and Aruch Hashulchan, Yoreh Deah 195:5).

Conclusion
The prohibition of Yichud certainly runs counter to the prevailing secular culture.  A skeptic might dismiss this prohibition as “making a big deal out of nothing.”  However, it is the key to maintaining the integrity of Am Yisrael and keeping our lifestyle both healthy and holy.  Next week, we shall explore some of the exceptions to the Yichud prohibition.
 

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