Yevamot 8b ~ Ta’amei Hamitzvot in the British Medical Journal: The Deceased Wife’s Sister Controversy: Part II

Last time on Talmudology

In Jewish law, a man may marry his dead wife’s sister, but in Victorian Britain it remained against the law (unless you were a Duke). But many ignored the law, and there was a strong movement to change it. Here’s what happened next, but first a personal revelation...

My own great grandfather married his dead wife's sister!

It's true.  I have skin in this game.  I am the direct descendent of a man who married his dead wife's sister. My great-grandfather, Solomon Bograchov married, moved to London (from Odessa?) and had two children. But his wife died, and, so the story goes, he called for his wife's younger sister to come to London and marry him.  Which she did. They had three children, one of whom was Johnny, born in London in 1913. And Johnny was my zaide.

For clarity, not all family members are shown.  

Now back to our regularly scheduled programming

Hook's Church Dictionary vs the British Medical Journal on Ta'amei Hamitzvot

Hook’s Church Dictionary, first published in 1842, was a wildly successful reference manual for the clergy of the Church of England. But its 1887 fourteenth edition contained a controversial new entry. 

The new edition tackled the key social issue that we have already discussed: should the law be changed to allow a man to marry his deceased wife’s sister? Absolutely not, said Hook’s Church Dictionary. And it supported this opinion by comparing it with what we call Yibbum, that is, the act of levirate marriage, which "was not, properly speaking, permitted by the Jewish law at all." (This is partially true, since marrying a husband's brother was forbidden in Leviticus 18:16.) This prohibition "was a general moral law" and so applied to all mankind, and was only to be overridden in the special case of a married man who died without children. In this instance, The Bible (Deut. 25:5-10) requires levirate marriage so as to "protect those agrarian rights which were at the basis of the Hebrew system.” But at its core, the Bible’s prohibition against marrying a brother’s wife was precisely the same as the Church’s prohibition against a man marrying his deceased wife’s sister.  Precisely the same.  And what would happen if that Church prohibition would be changed? It would lead to the end of society as we know it. Really, I’m not making this up; that’s what it said:

“To legalize marriage with a deceased wife’s sister cannot possibly remain a solitary innovation. We shall have …taken the first step in a revolution of the whole of our domestic and much of our social life.”

Which brings us, at long last, to The British Medical Journal.

Writing in The Journal, an anonymous doctor -“a surgeon of twenty-five years standing” -challenged this entry in Hook's Church Dictionary, and he used the best science of his day to do so.  The reasons for God’s laws, wrote the surgeon,  “will be found closely connected with some physiological law…and …what profound knowledge was possessed by the framer of Mosaic law, because the facts upon which the opinion is based have only recently appeared in the annals of science. “

He stated that the science at the basis of the laws of Yibbum was the laws of heredity.  Since children inherit the “proclivities of their parents,” a marriage of close blood relatives (consanguine marriage) would concentrate any undesirable traits, and “cause the race to deteriorate.” But when a man marries his dead wife’s sister, he is not marrying a close relative. In fact, he not marrying a blood relative at all, and any offspring would not carry the concentrated negative traits of their parents.  As a consequence, these marriages should be permitted. (Remember that the author was writing some six decades before the discovery of DNA, and only a few years after Mendel’s (largely ignored) suggestion that there were recessive and dominant “factors” that carry hereditary characteristics.)

But when a man marries a woman who has fathered children with another husband, something else is at work, scientifically speaking. “The fact may be regarded as well established that…traces of the first child’s father are discoverable in all succeeding children of the same mother, whatever the direct paternity of these may be.”

Got that? When a man impregnates a women, some of his traits are carried to all the future children of that woman, regardless of who the next father may be.  It is for this reason that the Bible prohibited a man from marrying his dead bother’s wife - unless that brother had fathered no children. For if the deceased brother had fathered a child, his traits would be carried by his wife in all her future pregnancies.  If a man would then marry his widowed brother’s wife, she would pass on both his traits and those of her former husband in a concentrated form. The effect on heredity would be exactly the same as marrying a close blood relative, since the undesirable traits (this time from two brothers) would be mixed together and passed on.  

By the powers of this science, the surgeon then addressed the issue of the day. He argued that no such effect would occur if a man were allowed to marry his dead wife’s sister. “The father has no similar power of transmitting traces of his former wife to the children of her successor, for the diseases which are occasionally contracted by contagion are quite distinct from the collaterally inherited traits referred to.”

Ta’amei Hamitzvot in the BMJ

It’s all very neat and scientific. Levirate marriage was a special dispensation and when understood through the science of heredity, it made biological sense. Since the dead brother had fathered no children, his traits were not carried by his wife, and she could marry her brother-in-law without being worried that there would be a concentration of bad blood. This same cutting edge science also supported a change in the law that would allow a man to marry his dead wife’s sister.

“The effect produced upon the ovaries by impregnation is not only special upon the particular ovum which becomes developed into the particular child begotten, but general upon the entire mass of at least one, if not both…But where impregnation has failed to take place no such effects can follow....”

But we know that no such effect exists. Not remotely.  (And don’t write to me about infectious conditions; we’re not talking about those.)  Today, we know that the science in The BMJ was wrong. Which makes us question the nature of scientific knowledge itself.  It is, as this example shows,  unreliable.  What is true for science today turns out to be wrong tomorrow. And so, when the Torah and Jewish tradition faces a challenge from the scientific community, the correct response is to ignore the science, because hey, in a few years, there will be another scientific theory that comes along and replaces the one that is troubling to us. Right?

Find out in the next installment, on Talmudology. 

Yevamot 8b ~ Science, Torah, and The Deceased Wife’s Sister Controversy: Part I

For the last several pages, the Talmud has been analyzing one phrase in the Torah (Lev. 18:18):

וְאִשָּׁ֥ה אֶל־אֲחֹתָ֖הּ לֹ֣א תִקָּ֑ח לִצְרֹ֗ר לְגַלּ֧וֹת עֶרְוָתָ֛הּ עָלֶ֖יהָ בְּחַיֶּֽיהָ׃

Do not take [into your household as a wife] a woman as a rival to her sister and uncover her nakedness in the other’s lifetime.

The Talmud spends a total of twelve pages proving that this verse means that a man is forbidden to take his wife’s sister’s, even when she falls to him for levirate marriage (yibbum) following the death of her husband. This same verse was at the center of a fierce debate in Great Britain in the nineteenth century, which concerned the legality of a man marrying his dead wife’s sister. In telling the story of this debate, we will have to discuss what we mean when we say that science changes. We are also going to look at some Jewish skeptics of science, and their understandings and misunderstandings of the concept of a science that changes. 

We’re going to do this through the lens of Yevamot, and examine in some depth The British Medical Journal’s understanding of Ta’amei Hamitzvot, the reasons for the commandments in the Torah. We are going to dive deeply. So strap in. (Yes I know. Too many metaphors. Sorry.)

Background – Yevamot 8.

Let’s start by going back to that verse in Leviticus (18:18). The Torah states

וְאִשָּׁ֥ה אֶל־אֲחֹתָ֖הּ לֹ֣א תִקָּ֑ח לִצְרֹ֗ר לְגַלּ֧וֹת עֶרְוָתָ֛הּ עָלֶ֖יהָ בְּחַיֶּֽיהָ׃

Do not take [into your household as a wife] a woman as a rival to her sister and uncover her nakedness in the other’s lifetime.

Based on the word בחייה – “in the other’s lifetime”, the Talmud in today’s page of Talmud (8b) establishes that a man may marry his wife’s sister if, and only if, his wife had died. This is reflected in the Code of Jewish Law, the Shulchan Aruch, which ruled (as did Maimonides) that the prohibition against a man marrying his wife’s sister exists only while his wife is alive. On her death, a man may marry his deceased wife’s sister. 

שולחן ערוך אבן העזר הלכות אישות סימן טו סעיף כו 

אחות אשתו אסורה לו מן התורה כל זמן שאשתו קיימת לא שנא אם היא אחותה מן האב או מן האם ואפי' גירש את אשתו אבל לאחר מיתתה מותר באחותה וכל המגרש אפי' מחמת קול בעלמא נאסר בקרובותיה

His wife's sister is forbidden to him from the Torah, all the while his wife is alive; it makes no difference if (the sister) is paternal or maternal, or even if he has already divorced his wife. However, after her (his wife's) death, he may marry her sister.

Just to be clear – this is not the central focus of Yevamot, which is concerned with levirate marriage, when a man marries his dead brother’s widow. But it is very important since it will touch on issues central to science and Yevamot.  Let’s see how.  

Was Henry illegitimate?

The Duke of Beaufort by Henry Alken. From here.

The Jewish law allowing a man to marry his dead wife's sister was not followed in Victorian England. Quite the opposite - a marriage like this was forbidden. But a debate about this law began with a question about the the legitimacy the Duke of Beaufort. Henry Somerset (d. 1853) the seventh Duke of Beaufort, had married Georgina Fitzroy and had fathered two girls with her. But Georgina died in 1821, and the sad Duke then married her younger half-sister Emily, with whom he had a further six daughters, and a son. (I know this is beginning to sound like a complicated episode of Downton Abbey, but bear with me. It’s worth it.)  That son was Henry Charles FitzRoy Somerset (1824-1899), who later became the 8th Duke of Beaufort. But there was a problem. Perhaps Henry was not a legitimate heir to the House of Somerset, since he was the child of a union of a man and his wife’s sister (or in this case, half-sister.) If the old Duke’s marriage to his dead wife’s (half-) sister was prohibited, then Duke Henry was a bastard child and his inheritance would have to be passed on to other males in the family line. There was a lot at stake.

The solution came with the 1835 Act to render certain marriages valid and to alter the law with respect to certain voidable marriages, introduced by Lord Lyndhurst. This Act retrospectively made any marriage like the old Duke’s valid, but prohibited any such marriages from taking place in the future.  In this way, the present Henry, Duke of Beaufort, was not a bastard child after all; he could inherit the estate, and all was made good.

Except that it wasn’t. The Act did not settle matters at all, and ignited a debate in England that lasted seven decades. 

“In addition to regular parliamentary bills and debates, pamphlets, letters, treatises and statements from all sides were published steadily through this period; major journals carried articles from leading figures in the controversy…and at least five novels took marriage with a deceased wife’s sister as their explicit subject ”

— Wallace, Anne D. “On the Deceased Wife’s Sister Controversy, 1835-1907."

The Chief Rabbi and the Royal Commission

In 1842, and almost every year after that, the British Parliament debated whether to legalize the marriage between a man and his dead wife’s sister. Queen Victoria appointed a Commission to look into the whole thing, and look it did, producing a report of over 150 pages in 1848.  Buried in that report is a letter from the Chief Rabbi Nathan Adler, who made the Jewish position very clear.

“...the marriage of a widower with the sister of his deceased wife… is not only not considered as prohibited, but it is distinctly understood to be permitted, and on this point neither the Divine Law, nor the Rabbis, nor historical Judaism leave room for the least doubt.”

— Chief Rabbi Nathan Adler, Appendix to the Report of the Commissioners appointed to inquire into the state and operation of the Law of Marriage

It didn’t much matter. The law remained the law, though it seemed that the British public ignored their learned lawmakers.  In one 1849 parliamentary debate, it was estimated that there were some 13,000 such marriages. These marriages in turn produced about 40,000 children, all of whom were, by Victorian standards, bastards.

Things became especially heated in the late 1870s when some 3,000 farmers (all, apparently from Norfolk – what was happening in Norfolk?) signed a petition “praying for the legislation of marriage with a deceased wife’s sister.” And so, in May 1879, the Prince of Wales himself introduced a bill to legalize this marriage in Britain’s Parliamentary upper chamber, the House of Lords. Their lordships droned on, and on, and on (the transcript takes up some eight pages of single space font) until the measure was struck down in a vote: “Contents 81: Not-Contents 101”.

But even in England, things do change, and by the beginning of the twentieth century, Parliament was ready to legalize what many women were already doing with their dead sister’s husband. The Deceased Wife’s Sister’s Marriage Act of 1907 was passed, and British law finally caught up with that of the Talmud.

---

Next time:

The scientists weigh in on the Marriage Act as we look at The British Medical Journal and its understanding of Ta’amei Hamitzvot and Yibbum.

Happy Pi Day 2022, and Happy Birthday Albert Einstein

WHAT IS PI DAY, AND WHEN IS IT CELEBRATED?

From here.

Today, March 14, is celebrated as Pi Day by some of the mathematically inclined in the US. Why? Well, in most of the world, the date is written as day/month/year. So in Israel, all of Europe, Australia, South America and China, today's date, March 14th, would be written as 14/3. 

But not here in the US. Here, we write the date as month/day/year; it's a uniquely American way of doing things. (Like apple pie. And guns.) So today's date is 3/14. Which just happen to be the first few digits of pi, the ratio of the circumference of a circle to its diameter.

And that's why each year, some (particularly geeky) Americans celebrate Pi Day on March 14 (3/14). The year 2015 was Pi'ish than all others, since the entire date (when written the way we do in the US, 3/14/15) reflects five digits of pi, and not just the first three: 31415. Actually we got even more geeky: This day in 2015 at 9:26 and 53 seconds in the morning, the date and time, when written out, represented the first ten digits of Pi: 3141592653.

So that's why Pi Day is celebrated here in the US -  and probably not anywhere else. (It has even be recognized as such by a US Congressional Resolution. Really. I'm not making this up. And who says Congress doesn't get anything done?) 

PI IN THE BIBLE

In the ּBook of Kings (מלאכים א׳ 7:23) we read the following description of  a circular pool that was built by King Solomon. Read it carefully, then answer this question: What is the value of pi that the verse describes?

מלכים א פרק ז פסוק כג 

ויעש את הים מוצק עשר באמה משפתו עד שפתו עגל סביב וחמש באמה קומתו וקוה שלשים באמה יסב אתו סביב 

And he made a molten sea, ten amot from one brim to the other: it was round, and its height was five amot, and a circumference of thirty amot circled it.

Answer: The circumference was 30 amot and the diameter was 10 amot. Since pi is the ratio of the circumference of a circle to its diameter, pi in the Book of Kings is 30/10=3. Three - no more and no less.

There are lots of papers on the value of pi in the the Bible. Many of them mention an observation that seems to have been incorrectly attributed to the Vilna Gaon.  The verse we cited from מלאכים א׳ spells the word for line as קוה, but it is pronounced as though it were written קו.  (In דברי הימים ב׳ (II Chronicles 4:2) the identical verse spells the word for line as קו.)  The ratio of the numerical value (gematria) of the written word (כתיב) to the pronounced word (קרי) is 111/106.  Let's have the French mathematician Shlomo Belga pick up the story - in his paper (first published in the 1991 Proceedings of the 17th Canadian Congress of History and Philosophy of Mathematics, and recently updated), he gets rather excited about the whole gematria thing:

A mathematician called Andrew Simoson also addresses this large tub that is described in מלאכים א׳ and is often called Solomon's Sea. He doesn't buy the gematria, and wrote about it in The College Mathematics Journal.

A natural question with respect to this method is, why add, divide, and multiply the letters of the words? Perhaps an even more basic question is, why all the mystery in the first place? Furthermore, H. W. Guggenheimer, in his Mathematical Reviews...seriously doubts that the use of letters as numerals predates Alexandrian times; or if such is the case, the chronicler did not know the key. Moreover, even if this remarkable approximation to pi is more than coincidence, this explanation does not resolve the obvious measurement discrepancy - the 30-cubit circumference and the 10-cubit diameter. Finally, Deakin points out that if the deity truly is at work in this phenomenon of scripture revealing an accurate approximation ofpi... God would most surely have selected 355/113...as representative of pi...

Still, what stuck Simoson was that "...the chroniclers somehow decided that the diameter and girth measurements of Solomon's Sea were sufficiently striking to include in their narrative." (If you'd like another paper to read on this subject, try this one, published in B'Or Ha'Torah - the journal of "Science, Art & Modern Life in the Light of the Torah." You're welcome.)

PI IN THE TALMUD

The Talmud echoes the biblical value of pi in many places. For example:

תלמוד בבלי מסכת עירובין דף יד עמוד א 

כל שיש בהיקפו שלשה טפחים יש בו רחב טפח. מנא הני מילי? - אמר רבי יוחנן, אמר קרא : ויעש את הים מוצק עשר באמה משפתו עד שפתו עגל סביב וחמש באמה קומתו וקו שלשים באמה יסב אתו סביב 

"Whatever circle has a circumference of three tefachim must have a diameter of one tefach."  The problem is that as we've already noted, this value of pi=3 is not accurate. It deviates from the true value of pi (3.1415...) by about 5%. Tosafot is bothered by this too.

תוספות, עירובין יד א

והאיכא משהו. משמע שהחשבון מצומצם וכן בפ"ק דב"ב (ד' יד:) גבי שני טפחים שנשתיירו בארון ששם ספר תורה מונח שהיא בהיקפה ששה טפחים ופריך כיון דלאמצעיתו נגלל נפיש ליה משני טפחים וכן בתר הכי דמשני בספר דעזרה לתחלתו נגלל ופריך אכתי תרי בתרי היכי יתיב משמע דמצומצם לגמרי וקשיא דאין החשבון מדוקדק לפי חכמי המדות

Tosafos can't find a good answer, and concludes "this is difficult, because the result [that pi=3] is not precise, as demonstrated by those who understand geometry." 

PI IN THE RAMBAM

In his commentary on the Mishnah (Eruvin 1:5) Maimonides makes the following observation:

פירוש המשנה לרמב"ם מסכת עירובין פרק א משנה ה 

צריך אתה לדעת שיחס קוטר העיגול להקפו בלתי ידוע, ואי אפשר לדבר עליו לעולם בדיוק, ואין זה חסרון ידיעה מצדנו כמו שחושבים הסכלים, אלא שדבר זה מצד טבעו בלתי נודע ואין במציאותו שיודע. אבל אפשר לשערו בקירוב, וכבר עשו מומחי המהנדסים בזה חבורים, כלומר לידיעת יחס הקוטר להקיפו בקירוב ואופני ההוכחה עליו. והקירוב שמשתמשים בו אנשי המדע הוא יחס אחד לשלשה ושביעית, שכל עיגול שקוטרו אמה אחת הרי יש בהקיפו שלש אמות ושביעית אמה בקירוב. וכיון שזה לא יושג לגמרי אלא בקירוב תפשו הם בחשבון גדול ואמרו כל שיש בהקיפו שלשה טפחים יש בו רוחב טפח, והסתפקו בזה בכל המדידות שהוצרכו להן בכל התורה.

...The ratio of the diameter to the circumference of a circle is not known and will never be known precisely. This is not due to a lack on our part (as some fools think), but this number [pi] cannot be known because of its nature, and it is not in our ability to ever know it precisely. But it may be approximated ...to three and one-seventh. So any circle with a diameter of one has a circumference of approximately three and one-seventh. But because this ratio is not precise and is only an approximation, they [the rabbis of the Mishnah and Talmud] used a more general value and said that any circle with a circumference of three has a diameter of one, and they used this value in all their Torah calculations.

So what are we to make of all this? Did the rabbis of the Talmud get pi wrong, or were they just approximating pi for ease of use?  After considering evidence from elsewhere in the Mishnah (Ohalot 12:6 - I'll spare you the details), Judah Landa, in his book Torah and Science, has this to say:

We can only conclude that the rabbis of the Mishnah and Talmud, who lived about 2,000 years ago, believed that the value of pi was truly three. They did not use three merely for simplicity’s sake, nor did they think of three as an approximation for pi. On the other hand, rabbis who lived much later, such as the Rambam and Tosafot (who lived about 900 years ago), seem to be acutely aware of the gross innacuracies that results from using three for pi. Mathematicians have known that pi is greater than three for thousands of years. Archimedes, who lived about 2,200 years ago, narrowed the value of pi down to between 3 10/70 and 3 10/71 ! (Judah Landa. Torah and Science. Ktav Publishing House 1991. p.23.)

HAPPY BIRTHDAY, EINSTEIN

Today, March 14, is not only Pi Day. It is also the anniversary of the birthday of Albert Einstein, who was born on March 14, 1879. As I've noted elsewhere, Einstein was a prolific writer; one recent book (almost 600 pages long) claims to contain “roughly 1,600” Einstein quotes. So it's hard to chose one pithy quote of his on which to close.  So here are two.  Happy Pi Day, and happy birthday, Albert Einstein.

“As a human being, one has been endowed with just enough intelligence to be able to see clearly how utterly inadequate that intelligence is when confronted with what exists.”

— Letter to Queen Elisabeth of Belgium, September 1932

“One thing I have learned in a long life: That all our science, measured against reality, is primitive and childlike — and yet it is the most precious thing we have.”

— Banesh Hoffman. Albert Einstein: Creator and Rebel. Plume 1973

Yevamot 2 ~ Levirate Marriage Across Cultures

Over the next one hundred and twenty-one pages, we will be studying Yevamot. The tractate discusses levirate marriage, in which a man marries his deceased brother’s wife. Levirate marriage (from the Latin, levir, meaning a husband's brother) is only practiced when there had been no children from the union of the first brother and his wife. The Torah is very clear about the reason for the law:

וְהָיָ֗ה הַבְּכוֹר֙ אֲשֶׁ֣ר תֵּלֵ֔ד יָק֕וּם עַל־שֵׁ֥ם אָחִ֖יו הַמֵּ֑ת וְלֹֽא־יִמָּחֶ֥ה שְׁמ֖וֹ מִיִּשְׂרָאֵֽל׃

The first child that she bears shall be accounted to the dead brother, that his name may not be blotted out in Israel

Marc Chagall, Ruth at the Feet of Boaz, 1960. Lithograph, Musée Biblique Marc Chagall, France.

Levirate Marriage - it’s not just for the Jews

The custom of levirate marriage is hardly unique to Judaism, and forms of it are (or were) practiced in many other cultures. Here are just a few:

• In the Code of Hammurabi

According to the late scholar of Judaism Father Roland Guérin de Vaux (1903-1971), lots of cultures that predated or were contemporary with early Israelite culture also had a form of levirate marriage. Here is an excerpt from his book Ancient Israel:

• In Mongol Culture and in Yuan China

As Bettine Birge explained in her fascinating paper, in Mongol culture the rights to a woman’s person were were transferred to a groom's family in return for a payment. In addition, brides could also be obtained by capture, or by inheritance from an older male relative. She goes on to explain that this was the Mongol form of levirate marriage:

This background in important in understanding what happened in China, where the practice of levirate marriage was originally abhorred. Indeed, sexual relations between a widow and any of her husband's relatives was considered to be incest. However, during the Yuan dynasty of the thirteenth century, previous Chinese codes were abolished, and the ruler Kublai Khan decreed that any man had the right to take his father's wife or an older sister-in-law in levirate marriage.As Birge pointed out, Kubilai's decree was a sharp break with the policies of his government up to that time, and was inconsistent with his usual tolerance of indigenous customs. The whole thing was very confusing. “Over the next few years,” she wrote, “there was disagreement between different courts over the application of levirate law. Some lower courts continued to reject levirate marriage on the basis of Chinese laws, while official of the central long-standing government harshly enforced the 1271 edict.” In 1294 Kublai Khan died and was succeeded by his grandson Temur, who moved away from some of the policies of his zaide. As a result, new restrictions were placed on the rules of levirate marriage, and by 1330 all forms of the practice were outlawed for the Chinese, although by then there was already a trend moving in this direction.

“Among those for whom it is not their original custom, it is an offense for a man to take his elder sister-in-law or a son to take his father’s secondary wives in a levirate union.”

— 1330 Declaration of the Chinese Emperor Wen-tsung. Yuan-shih 33 p746.

• In Yoruba Culture

The Yoruba are a west African ethnic group, with members in Nigeria, Benin and Togo. According to Samson and Olesugun Olanisebe of the Department of Religious Studies at Obafemi Awolowo University in Nigeria, the Yoruba practice a form of levirate marriage. It goes like this:

After the death of her husband, the widow goes through the mourning period to sever the bond between her and her dead husband. The period of mourning is about 3 months during which the widows must stay indoors to observe the mourning rites. They are not allowed to do anything that will take them out, but they have to keep themselves occupied with domestic work…. widowhood practices amongst the Yoruba is performed for various reasons such as the protection of the woman from being harmed by the spirit of her dead husband, to prove the innocence of the woman as regards the death of the husband and for the family to ascertain if the woman has been pregnant before the death of her husband so that they may claim responsibility for the pregnancy.

After the mourning, the widow who is qualified for re-marriage within the family would be allowed to choose one of the younger brothers of her deceased husband. There are some criteria that the widow must meet before being allowed to re-marry. These include the fact that she must be young and active for procreation, she must not have been found active in any amoral acts and she should not have been having illicit affairs before the death of her husband. The brother that is to marry the widow must also meet certain criteria such as the fact that he must be of the same family of the dead person, he must be younger than the dead husband, the relationship with the dead husband must have been cordial whilst the latter was alive, there must not have been any reported case of an illicit affair with the widow before her husband’s death and he must not have been found to have any connection with the death of his brother…

The issue of widow’s inheritance or remarriage is a decision which, in Yorubaland, belongs solely to the woman. The woman may decide to accept or reject the position of taking another husband.

• In Zulu and in Dinka Culture

Levirate marriage is practiced by other ethnicities in Africa. In Zulu culture, “whenever a woman fails to give birth or is infertile, the husband’s family would find another woman who can produce children for the family, either through marriage or by using the infertile woman’s sister as surrogate.” And if a husband died before fathering a child “the levirate custom can be used to remedy the situation. Since it is culturally unacceptable for a man to die childless, if a man dies without a wife, the family would arrange a wife for one of his brothers on his behalf to perpetuate his name. The children born from such a union then belong to the deceased brother…in some Zambian communities, a levirate marriage is regarded as a form of sexual act of ritual cleansing for the widow who is to be inherited or wedded. ”

And among the Dinka, the largest ethnic group in Southern Sudan, levirate marriage is still practiced, “largely because the acquisition of many wives is important for the Dinka socioeconomic life style.” Here is how Stephanie Beswick described the custom:

In Dinka society a prospective husband pays bridewealth in cattle,often via a bidding system controlled by the prospective father-in- law. The highest bidder usually acquires the woman, and the bridewealth is made in a series of payments over an extended period of time.Under the system of levirate marriage, if a man dies before having paid all the bridewealth one of his brothers acquires the widow and continues making payments to the woman's family. Thus, a woman's procreative capabilities are never"wasted," and she is never without a husband to care for her and her children.

“Many wives shall bring forth many daughters, who shall be married in return for great numbers of cattle”

— Dinka saying, cited in Stephanie Beswick, "We Are Bought Like Clothes": The War over Polygyny and Levirate Marriage in South Sudan. Northeast African Studies, New Series, Vol. 8, No. 2 (2001), 37.

Posthumous Reproduction and Yibum in Modern Israel

As we have seen, levirate marriage crosses many different cultures and has been practiced for centuries. The levirate marriage Boaz performed with Ruth took place somewhere between 1,300 BCE and 1,100 BCE, which makes it at least three thousand years old. But there are very modern questions that surround this ancient custom. Here’s one: what happens if a married man died without children, but left frozen sperm that can impregnate his wife. If she conceives a child, is she still subject to the laws of yibum?

This case of posthumous reproduction was discussed in a paper by Avishalom Westreich published in the Journal of Law and the Biosciences in 2019. The paper (which won the prize for outstanding papers presented at the World Congress on Medical Law and Bioethics in 2018!) discusses how new technology affects religious laws and describes the Israeli debate over the posthumous sperm retrieval of fallen soldiers and their equivalents in the Jewish discussion of the early ‘forefather’ of this technology: levirate marriage. Westreich cited a responsum of the late Rabbi Zalman Nechemia Goldberg, who first framed his approach to the halakhic decision making process:

We note that according to Jewish law we need a reason to forbid, and without such a reason the natural situation is to permit. In this regard, relevant also is the fact that the Torah afforded great importance to the human desire to leave a name and remembrance in the world, as we can learn from the laws of levirate marriage.

Consequently, Rabbi Goldberg ruled that posthumous sperm retrieval should not be prohibited. Indeed it should be encouraged, because of “the natural desire for procreation, ‘to leave a name and remembrance’, which was the basis for the laws of levirate marriage.” In December 2016, the Israeli Supreme Court issued a decision which acknowledged that the right to procreate also applies to posthumous fertilization.

The question of whether the ensuing child would legally count as belonging to the deceased is the topic of halakhic debate. Rabbi Moshe Sternbuch thought it did not. “Where the fetus was conceived from sperm after the sperm-owner’s death, the sperm-owner cannot become his father, because it is impossible for a dead person to become a father.” Others, like the late Rabbi Shlomo Zalman Auerbach disagreed, and ruled that posthumous reproduction should be viewed as but a variant of the normal parent–child relationship. As such, it was subject to all the normal laws of inheritance, and should be viewed as complying with the religious commandment of ‘Be fruitful and multiply.’

Yevamot - a Sneak Preview

The tractate Yevamot, which we begin today, is full of fascinating material. Here on Talmudology will be discussing, among other things, the dangers of breastfeeding while pregnant, how Rava was the first person to report a scientific association between obesity and delayed puberty, how the Talmud thought that twins are formed, how to treat snake bites, and whether marriage can make you happier. And we will kick off with the debate in Victorian England about marrying a dead wife’s sister. So grab a Talmud and strap in. We are in for some treats.