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QUESTION

My wife is intensely emotional and can have difficulty regulating her feelings. The easiest way to bring her back to a more calm state is with an embrace. We have maintained no touching during niddah despite the obvious challenges associated with it.

The pandemic has been difficult for our family and we have managed, but with very high stress levels. Recently, we have become financially responsible for a grandparent, which is will be a long-term challenge. I’m wondering how I can best help to keep my wife grounded in the practical considerations and decisions we have to make when I can’t touch her. In addition, my wife has a difficult relationship with other family members, which causes her much anxiety. Especially with the COVID pandemic, it has been especially isolating, not being able . Please help.

 

ANSWER

Thank you for the question. This is truly a challenging situation and I hope you have been able to manage as best as you can given the circumstances.

I think a good place to start regarding your question is my teshuva on a husband giving his wife supportive touch during childbirth. The key section is this:

Rema (Shulchan Arukh YD 195:16-17) rules that a husband can help his wife in such situations of serious illness when no other person can provide similar assistance.

When it comes to a man holding his wife’s hand or giving her a massage during childbirth, we are dealing with a situation of a life-threatening condition, as discussed last week.  If the wife prefers that her husband be the one to give her the massage, then he is doing something that no one else can do – giving her the comfort that his touch uniquely provides for her.  Some have argued that the fact that she wants her husband specifically to be the one to do it shows that the touch is not neutral, and hence sexual, and thus a Biblical violation.  This is clearly incorrect.  A spouse’s touch can be comforting, intimate, and calming without being sexual.  This is true even in the case of a massage provided during childbirth; such touch is not lustful or blatantly sexual in any way.  And the concern that in this situation such touch will lead to intercourse is minimal to non-existent.  Thus, in a similar case, Rabbi Ovadya Yosef rules that a husband is permitted to rub a medicinal salve into his wife’s skin, even in her private areas, as such touch is non-sexual and will not lead to intercourse.

Here is a more comprehensive analysis of the above:

1. Non-sexual touch (including supportive, etc.) is rabbinic, permitted in the case of choleh

a. There is a difference between supportive, comforting, even intimate touch on one side, and touch of a sexual nature on the other.

b. Rambam rules that sexual touch can be a de’orayta (for some this would be limited to touch that is immediately in the context of the sexual act, others would extend it further). Nevertheless, the supportive etc. touch is only rabbinic according to all opinions.

c. Rema (Shulchan Arukh YD 195:16) rules that touch is permitted in a medical context. This is consistent with the idea that rabbinic prohibitions are permitted in the case of choleh, as a general rule that we find by Shabbat, for example.

שו”ע – אשה חולה והיא נדה, אסור לבעלה ליגע בה כדי לשמשה, כגון להקימה ולהשכיבה ולסמכה
רמ”א – וי”א דאם אין לה מי שישמשנה, מותר בכל (הגהות ש”ד והגהות מרדכי פ”ק דשבת בשם הר”מ), וכן נוהגין אם צריכה הרבה לכך

d. Gra (Biur HaGra YD 195:21) explains clearly that the permission is based on the fact that the touch is not sexual and therefore only Rabbinic in nature – דהלאו הזה הוא דוקא אם מתכוין בשביל ערוה אבל בלא”ה אינו אלא מדרבנן

2. This applies even to a choleh that is not in any life-threatening danger.

a. Note that Rema does not say that this is limited to cases of pikuach nefesh. Simply that it is permissible if she is in great need of it – אם צריכה הרבה לכך

b. Some poskim argue that it requires real sakanah to permit. They point to Rema (Yoreh De’ah 195:17) who writes that it is permitted for her husband to take her pulse, if she is sick if there is “danger” in her illness.

c. Nevertheless, a good number of poskim explain that the requirement of “yeish sakanah” in the case of taking the pulse is either: (a) is not literal, (b) we rule against, or (c) is a special case –

(1) Tzemach Tzedek, Piskei Dinim (195:17) – states that taking the pulse won’t necessarily be able to detect the problem; even if he can, won’t necessary be able to know the proper treatment (remember the medicine of the time). It is only in such a questionable case that sakanah is the required threshold.

(2) Shut Beit She’arim (YD 174) – states that sakanah is required here because he is not focused on the effort of treatment, and thus there is a greater likelihood that it would lead to sex (more on the concern of actually leading to sex, below).

d. Poskim who permit in a case of a normal choleh, without danger, include:

(1) Radvaz (4:2), cited in Pitchei Teshuva YD (195:15) – ואפילו אם היא חולה שאב”ס נמי שרי רק לא ירחץ פנים ידיה ורגליה.. ואם א”א אלא ברחיצה ממש מותר

(2) Tzitz Eliezer (15:70.2)– ורק בגוונא שלא מתכוון ליהנות יש להקל אפי’ בחולה שאין בו סכנה אם אין לה מי שישמשנה

(3) Tashbatz (3:58.8) –ולפי הנרא’ אפשר להקל באיסורין דרבנן להתרפאות בהם שלא במקום סכנה כדמוכח בפ’ כל שעה (כ”ה ע”ב) וכל מה שאפשר להחמיר בזה הוא בדברים הנכנסים בגוף שאין מתרפאין בהם אלא במקום סכנה וכ”כ הרמב”ן ז”ל בס’ תורת האדם מ”מ אם אפשר על ידי אחרים לא נתיר איסורא דרבנן

(4) Zera Emet (116); Arukh HaShulchan, Yoreh De’ah (195:27); Ruach Chayim YD 195:7 (R. Hayim Falagi) – implicit (see Taharat HaBayit, 2, p. 223)

** As stated, the logic would dictate that this should apply even in the case without a sakanah, since the issue is only Rabbinic (see Tashbatz, above, who argues this point explicitly).

3. No other person is available to do this. Rema states that the husband can only do this if no other doctor is available. This criterion is understood by poskim quite narrowly. In our case, it is specifically the husband’s touch that is required.

a. Radvaz – If there is no other doctor with an equal degree of expertise the husband can do it.

b. Zera Emet (3:116) – in the case of taking pulse, this would exclude a doctor who isn’t as expert regarding בטבעה ומהותה – knowing how to “read” her.

4. Mitztaer – in pain / suffering – has the same permissions as non-life-threatening illness and includes cases of psychological and emotional distress.

a. By itself – see, for example, see Shulchan Arukh OC 328:35 and Mishnah Berurah 328:113; Shut BeTzeil HaChokhmah 5:9 and Chashukei Chemed on Yoma 78b (for these and additional sources, see attached sheet).

b. The possibility of exacerbating pre-existing health conditions could even make this sakanat nefashot, although that obviously depends on the case. See Shabbat 29b; Shulchan Arukh OC 330:1 and Mishnah Berurah 330:4; Iggrot Moshe EH 1:65; Hashukei Hemed, above.

5. There is also the factor of shalom bayit and kavod haberiyot in this case, each one of which has the power to override rabbinic restrictions

6. Degree of intimacy of touch needs to be addressed.

a. In addition to the assumption that even casual touch is a problem, the Rabbis explicitly forbade intimate, although non-sexual touch, regarding a husband and his wife is in niddah, specifically – washing his hands, face and feet. Thus, there is reason to be slightly more hesitant regarding intimate touch, although at the end of the day, this is still no more than a derabanan.

b. See in this regard Teshuvat Radvaz (4:2) who states that when necessary, the permission applies even to washing face, etc., that is, intimate touch. He is more hesitant here, but at the end of the day he allows it –

ואפילו אם היא חולה שאב”ס נמי שרי רק לא ירחץ פנים ידיה ורגליה.. ואם א”א אלא ברחיצה ממש מותר

c. Given that even in this case it is a derabanan, I would rule that intimate touch such as this is permitted במקום חולי

7. Touch that can lead to sex.

a. You will note that I all those cases, the context is one in which that there is no fear that such touch will lead to sex, although it might not be limited to this. Gra’s comment (#1d) would indicate that this is not a relevant factor.

b. For some poskim, however, it is, and this is true especially in a case where that is a genuine concern. One wants to permit such a case for the wife’s mental and psychological well-being, but one also does not want it to possibly lead to sex. And in some cases this is a heightened concern, as the psychological state might be more helped through greater intimacy.

8. Direct contact with skin.

a. The technical prohibition is skin-to-skin contact, although of course in practice we extend it beyond that.

b. There is thus more reason, in general, to permit when the contact is through a cloth, etc., and many poskim indicate that this should be done when possible.

c. I should also note that the use of a cloth or blanket or something to prevent skin to skin contact also serves to function as a heker and a way to address concerns of leading to sex.

Bottom-line:

* Given 1-4, my ruling is that intimate, supportive touch from the husband is permitted in cases of anguish, psychological or emotional distress and the like, especially in cases such as childbirth, where there is no possibility that it might lead to sex.

* I do not believe that #5 – intimate touch per se – is a problem when that is what is needed.

* I do think that #6 – the degree of intimacy (versus, say, supportive touch) – needs to be addressed.

* In particular, concern #7 – touch that can lead to sex – is a real one.

 

My psak would thus be as follows:

1. Any touch, embrace, etc. should be done through a sheet, etc. I also recommend giving a hug through with the husband wrapping his wife with a blanket and hugging her through that. As you mentioned, what is most needed here is an embrace, and a hug such as this can be very comforting and supportive.

2. Because this is through a blanket or sheet, in addition to addressing the technical issues of #8, it goes a long way to address concerns that it might lead to sex, as this serves as a significant heker.

3. In a case where it is believed that skin contact is required as well, this should be assessed directly with a Rav and a discussion of the specific circumstances. In all cases, it should only be considered in a context in which sex is not a possibility (or only a distant one). For example, if others are around, or in particular, in the living room and not in the bedroom, and with everyone’s clothes on. 

4. N.B.: We are dealing here with a special, exceptional case – high degree of stress, now suddenly exacerbated by the financial burden of being responsible for your mother/mother-in-law, the need to make weighty decisions relating to her care, and your wife’s pre-existing condition. Under normal circumstances, as you note, keeping the harhakot, “distancings,” of niddah can be quite challenging, but that is what is demanded of us. We are talking here specifically about an exceptional circumstance and one of serious emotional distress and mitzta’eir.