First the disclaimer. I want to be absolutely clear about this. Although, this is certainly a matter that has crossed every Chasan's mind when he first learned Hilchos Niddah, but not for the reasons about to brought up here. It is a matter of extreme importance and I do not want to be misconstrued. I am not advocating overturning a matter that was decided by Chazal, especially one involving Issurei Kares.
That being said, I call attention to an article that appeared in today’s Ha’aretz.
Therein an Orthodox gynecologist, Dr. Daniel Rosenak, discusses very frankly a problem that exists in Klal Yisroel that can be directly attributed to Hichos Niddah as we practice it today. Unlike myself, he in fact does advocate “"rethinking" the rules of Niddah”. He doesn’t necessarily say we should be abrogating a 2000 year old Halacha L’Maaseh. But in dealing with this issue he brings up a very fundemental problem in Hilchos Niddah that impacts on na great number of women. Fully 25% of all infertility cases he sees are based on observance of a Chumra institued during the era of Chazal, namely the Shiva Nekiim... the seven days post menstruation required to wait before emersion in a Mikva in order to have Halachically permisible sexual relations.
Briefly stated, according to biblical law a woman is permitted to immerse herslf after only seven days from the onset of her menstrual cycle (Dam Niddah). But in cases of a flow of non menstrual blood (Dam Ziva) that is contiguous for three consecutive days she is biblically mandated to wait seven days after the flow of blood stops. Because of the complexities in our day of determining which type of blood flow a woman is actually experincing and the severity of transgressing Hilchos Niddah, Chazal mandated that all blood flows be treated as Ziva blood requiring seven “clean” days, to be observed after the Niddah blood flow stops. This tacks on at least five extra days that a husband and wife must wait before having sexaul relations beyond what the Torah madates. And the vast majority of blood flows in women is Dam Niddah, not, Dam Ziva.
What happens in a great number of infertitlity cases is that ovulation, the fetility period, takes place during these “extra” days and by the time of immersion, the fertility peiod has passed. Quoting Dr. Rosenak from the article:
“Through my work as a gynecologist, especially in the ultra-Orthodox and national religious communities, it transpires that more than one quarter of the infertility cases result from what is called 'halakhic infertility.' That means that tens of thousands of women go to the mikveh when their period of ovulation is past.”
Now it is true that there are Halachic ways to deal with the problem. But it doesn’t take a rocket scientist to realize that many of these Halachic solutions are fraught with problems of their own. Dr. Rosenak who was criticzed by at least one Posek said that hormone therapy is one such safe solution. But is it a truly safe and satisfactory solution? Dr. Rosenak doesn’t think so:
"These are matters of life and death!" he wrote. "I tremble every time I am forced to prescribe hormones for a woman who has no genuine medical problem. Perhaps the woman sitting opposite me has an undiscovered genetic predisposition to breast cancer? Perhaps, heaven forbid, she could have a stroke?"
As I said, I do not in any way support the notion that we can countermand a clear Halacha mandated by Chazal. But it does raise a serious question. At what point is a mandate of Chazal become so counterproductive that it requires re-thinking? Is it toally imposible? We know that changes have taken place in the past due to an “Eis Laasos”. Would this qualify? Should the Aseh of Pru U’rvu be Doche a D’Rabbanan, even one as severe as this? I don’t know. But is is a question well raised.
