2000/5760
Reprinted with permission from The Journal of Halacha and Contemporary Society Number XXIII
Halacha forbids removal of reproductive organs from humans or animals, whether male or female1 (though debate exists regarding whether removal from females constitutes biblical or rabbinic prohibition2). The Talmud (Sanhedrin 56b) records a dispute whether the Torah forbids non-Jews to remove reproductive organs (even from animals not owned by a Jew), and Rishonim differ regarding which opinion is accepted as normative.3 Bait Shmuel (Even Haezer 5:16) rules that this controversy has not been resolved, and when rendering Halachic decisions a rabbinic authority must consider the position that non-Jews are forbidden to remove reproductive organs. On the other hand, Aruch Hashulchan (Even Haezer 5:26) rules in accordance with what he perceives as the majority opinion that non-Jews are not commanded concerning this prohibition.
A difference between the two opinions is whether we are forbidden on a biblical or rabbinic level to instruct a non-Jew to remove the reproductive organs of an animal (see Shulchan Aruch Even Haezer 5:14 and comments of Chelkat Mechokeik and Bait Shmuel thereupon). If non-Jews are included in this command, then instructing a non-Jew to remove reproductive organs would be a biblical violation of -51* 3&9 -! ;;0 /,:&-, "do not put a stumbling block in front of the blind" (Leviticus 19:14), which prohibits enabling and encouraging others to sin.4 On the other hand, if non-Jews are not included in this commandment, then the prohibition involved in instructing a non-Jew to remove reproductive organs is the general rabbinic prohibition which forbids a Jew to instruct a non-Jew to perform an act forbidden by the Torah on behalf of a Jew.
A practical difference between these two opinions is whether one may instruct a non-Jewish veterinarian to remove an animal's reproductive organs in order to alleviate the animal's suffering due to sickness. Whereas one may not violate a biblical prohibition to alleviate an animal's suffering, it would appear that one may violate the rabbinic prohibition to ask a non-Jew to do what a Jew may not do in order to alleviate suffering.5 Since Bait Shmuel, considered to be one of the most authoritative commentaries on Even Haezer, rules that one must consider the opinion that asserts that non-Jews are forbidden to remove reproductive organs, and one should not ask a non-Jew to remove an animal's reproductive organs even to alleviate suffering.
Nevertheless, there are a number of possible solutions to this problem. Some of the most prominent Halachic authorities of the nineteenth century6 record (with varying degrees of approval) a common practice among observant Jews who owned animals for commercial purposes. This involved selling an animal to a non-Jew and instructing this non-Jew to ask another non-Jew to spay the animal. The purpose of this procedure is to create a situation of "aiding an aider" (Lifnei Delifnei Iver) - encouraging one person to encourage another to violate a Torah law - an act that is not a violation of -51* 3&9. It also creates a situation of "Amira Leamira Leakum" - instructing a non-Jew to instruct another non-Jew to perform an act a Jew may not do - which some authorities believe to be permissible.8 In addition, by transferring title of the animal to a non-Jew, one avoids the rabbinic penalty that requires one who has had his animal's reproductive organs removed to sell the creature.9
Although many contemporary Halachic authorities10 believe it inappropriate to utilize this procedure with household pets for purposes of convenience (e.g. to eliminate unwanted litters or to prevent the animal from trying to leave the house), it is quite possible that one may do so if it is necessary to alleviate an animal's suffering due to sickness. Aruch Hashulchan would very likely agree with this conclusion since he rules that non-Jews are not forbidden to remove reproductive organs. Bait Shmuel might also agree, since by using this procedure one may avoid violating -51* 3&9. In addition, there is greater room for leniency when a female pet is involved, since many authorities believe neutering a female to be a rabbinic prohibition, and a minority opinion (Taz Even Haezer 5:6) even believes that one is permitted to neuter a female animal if the procedure is performed for the creature's benefit.
A different solution to this problem has been offered by Rabbi I. Y. Unterman (Otzar Haposkim I, pp. 164-165). He describes a procedure of neutering, which he believes constitutes only a rabbinic prohibition since it does not involve direct removal of reproductive organs. Instead, the blood supply to the reproductive organs is eliminated, the reproductive organs begin to shrivel, and the animal is rendered sterile. Rabbi Unterman asserts that one who performs this procedure violates the prohibition indirectly (Grama), which is permitted on a Torah level and only forbidden by the rabbis. The authorities who rule that non-Jews are forbidden to neuter animals concede that non-Jews are forbidden only to perform biblically-forbidden acts of neutering. Rav Unterman argues that non-Jews are not required to follow rabbinic legislation, since unlike Jews they are not obligated to adhere to rabbinic rulings. According to this approach, one does not violate the prohibition of enabling another to sin if one instructs a non-Jew to perform this procedure. In addition, Rabbi Unterman writes that the prohibition to instruct a non-Jew to perform an act forbidden to a Jew does not apply to rabbinic prohibitions (other than the rabbinic prohibitions associated with the observance of Shabbat).11 Therefore, he rules that one may instruct a non-Jew to neuter an animal in this indirect manner.
However, Rabbi Unterman cautions against implementing his opinion until eminent Halachic authorities concur with this ruling. Hence, competent Halachic guidance must be sought regarding whether one may follow this ruling. The best solution to this problem seems to be the use of one of the many newly developed alternatives to castration and ovariohysterectomy which do not involve removal (direct or indirect) of reproductive organs.12 There appears to be no Halachic opposition to these methods since the animals are only rendered infertile. The prohibition of "Sirus" appears to apply only to the removal of reproductive organs and not to causing the animal to become infertile. One must consult a competent Halachic authority to ascertain the permissibility of any of these procedures.
Next week, God willing and Bli Neder, we will examine the issues relating to pets and Hilchot Shabbat.
1. Shulchan Aruch Even Haezer 5:11.
2. For a summary of this issue see Rabbi Moshe Feinstein, Igrot Moshe Even Haezer IV, 34 and Rabbi Joseph Ozarowski, "Tubal Ligation and Jewish Law: An Overview," Journal of Halacha and Contemporary Society VII, pp. 42‑52.
3. For a summary of the issue see Otzar Haposkim 5:76.
4. This prohibition applies even to enabling a non‑Jew to violate one of seven /7&; "1* 1(, see Pesachim 22b.
5. Shulchan Aruch Orach Chaim 305:20. Halacha permits one to instruct a non‑Jew to perform a biblically‑prohibited act on Shabbat to alleviate an animal's suffering. Accordingly, it seems logical that one may ask a non‑Jew to remove an animal's reproductive organs in order to alleviate the creature's suffering since the prohibition to remove reproductive organs is less severe than the prohibition to violate Shabbat (violation of Shabbat constitutes a capital crime and removal of reproductive organs does not).
6. Shoel Umeishiv 3:1:229; Chatam Sofer Choshen Mishpat 185; Haelef Lecha Shlomo Even Haezer 23; and Maharam Schick 11.
7. Avoda Zara 14a; Rama Even Haezer 5:14; Bait Shmuel 5:19; and Broyde and Herzberg, Journal of Halacha and Contemporary Society XIX p. 12.
8. Chavot Yair 53 and Mishna Berura 307:24.
9. Shulchan Aruch Even Haezer 5:14.
10. Communications from Rabbi J. David Bleich, Rabbi Reuven Feinstein, Rabbi Hershel Schachter, and Rabbi Moshe Tendler.
11. Rama Orach Chaim 468:1, Biur HaGra Orach Chaim 468:4, and Bait Ephraim Yoreh Deah number 62.
12. See, for example, McRae, G.I., et. al. "Long‑term Reversible Suppression of Esfrus in Female Dogs with Nafarelin Acetate, a Potent LHRH agonist," Journal for Reproductive Fertility, (1985) 74 389‑397; and Olson, P.N., et. al. "A Need for Sterilization, Contraception, and Obortifacients: Unwanted Pets Part IV. Potential Methods of Controlling Reproduction," Compendium of Continuing Education, Vol 8, No.5, May 1986, 303‑307.