Tuesday, October 15, 2013

Providing contraceptive information for unmarried patients

Next week, Gd-willing, I'll present a medical halachah shiur on "Enabling a Patient to Sin". I'm looking at dealing with three types of cases:

  • Indirect assistance, as in providing contraceptive information for unmarried patients;
  • Direct assistance, as in referring a patient for surgery (such as vasectomy or abortion) that is not halachically sanctioned;
  • Direct involvement in the sin, as in providing anesthesia during a surgery that is not halachically sanctioned.
After reviewing relevant halachic rulings, I think that the first tier of cases is permitted, provided that the information is available from other sources of equal quality and availability. The prohibition against causing others to stumble will not apply because other sources of quality information are readily available, and because one is not moving the actual transgression forward in any active way. Halachic sources include Rama Yoreh Deah 151:1, Ksav Sofer Yoreh Deah 83 and Tzitz Eliezer 19:33:1.

Nonetheless, I found the following position articulated at the website of the Association of Orthodox Jewish Scientists:


Question: Does halacha permit the orthodox Jewish physician to give contraceptive advice to and to prescribe contraceptive devices for unmarried girls?

Answer: Except under very exceptional circumstances, Judaism considers it immoral for the physician to give contraceptive advice to an unmarried girl.

Comment: The doctor must use judicious moral judgment in this sensitive area of human relations. Judaism deems it immoral to give contraceptive counsel to unmarried persons when such advice may serve to remove an important barrier to immoral conduct. When confronted with the mentally retarded patient or with people in whom self-discipline is lacking as determined by previous conduct, consultation with a religious guide should be undertaken to decide the proper course of action.
This Halacha Bulletin was written by Fred Rosner, MD, FACP and Rabbi Moshe D. Tendler, PhD and reviewed by HaRav Moshe Feinstein, zt"l.

I wonder what drives this position.

26 comments:

  1. will you be differentiating between lfnei iver and msayea?
    will you be dealing with physician liability?(i.e. patient asks about contraception and dr. refuses to discuss)
    KT
    Joel Rich

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  2. First of all: if it's two unrelated, unmarried non-Jews of the opposite gender, what's the prohibition anyhow?

    As for the AOJS statement:

    "when such advice may serve to remove an important barrier to immoral conduct."

    In what % of cases today will a doctor saying "I don't talk contraception" (or just choosing not to bring up contraception) cause a patient to engage in less "immoral conduct"? Maybe 40 years ago was different.

    I think the AOJS statement is wonderful in theory (putting aside liability questions) but doesn't address the cases that people are likely to see today.

    You could also observe that it says "immoral", not "prohibited." Misayea could be allowed if they can go elsewhere, but if there's no strong need for you to get involved (see RJ"R's note on professional liability), it may be "baal nefesh yachmir", or just generally distasteful.

    (The Birkei Yosef has a good kashya from the gemara in Nedarim -- is there only one firewood supplier in town? The answer could be indeed, "they could go elsewhere for their pagan supplies" is a valid halachic defense if necessary, but "they're not using these as pagan supplies" makes it not even distasteful.)

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    1. Indeed, I was thinking about their use of "immoral" vs "prohibited".

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  3. It's immoral to bear a degree responsibility for an unwanted child coming into the world.

    This approach is IMO heavily influenced by the evangelical Christian world.

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    1. I think this may be a cart/horse case; while it is true that Judaism permits abortion in cases where Christians won't, still, classic Jewish tradition is staunchly against most forms of contraception other than in life-saving cases.

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  4. I am puzzled. Contraception does not enable sin; it mitigates some of the physical consequences. Surely no one would say that a physician whose nonkosher eating patient is overweight should not counsel regarding weight loss and exercise (or treat for diabetes) because mitigating the consequences of eating too much treif food would only encourage the patient to eat more? Would we tell an electrician to leave dangerous wiring in the home of someone not shomer shabbat to discourge using electricity on shabbat? Isn't the idea of using the risk of STD and unwanted pregnancy to encourage chastity barbaric?

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    1. Should a doctor refuse to treat a nonobservant Jewish patient with anorexia, on the grounds that she/he would eat more nonkosher food? I guess that encouraging her to eat more could be excused as pikuach nefesh.

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    2. But there was a school of thinking in earlier centuries that held that providing contraception was somehow showing moral approbation of "sin", whether or not the sin was going to occur anyway. It was considered important to take a moral stand by withholding it. It's similar to today's religious opposition to gay marriage. Religious opponents of same-sex marriage concede that gay sex is going to occur anyway, but believe that society should not show approval by sanctioning marriage.

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    3. Mike, your comment raises such great questions.

      Should we withhold information about reproductive processes from Orthodox Jewish adolescents? We know that some small percentage will engage in promiscuous behavior, despite their religious upbringing. If we withhold this information, pregnancy, STD and emotional trauma are likely to occur for this group. Teaching about reproduction will mitigate the consequences of sins that are going to occur regardless of whether students receive this information or not.

      Schools are silent on the matter and would claim that this is the parents' responsibility. No one knows to what degree parents take responsibility for making sure that their adolescents are actually informed.

      In reality, both parents and schools act as if, if the matter is not raised, the behaviors will not exist.

      I'm also not convinced that raising the matter makes it more likely that the behaviors will occur, in adolescents who have no risk factors for promiscuity.

      Thoughts?

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    4. Dispensing information on contraception coveys approval in about the same way that putting seat belts in cars conveys approval of reckless driving. If it were up to me the day schools would provide clear information--I certainly made sure my kids had that. Unfortunately, that is no guarantee that they won't engage in risky (as well as sinful) behavior.

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    5. Mike and Tesyaa-
      I think the difference is that the contraception itself is viewed as sinful.

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    6. I understood the AOJS piece as thinking of the sex as the immoral act. What issur would an unmarried woman violate by taking the pill? Of course, as I have now listened to your shiur which was very good, BTW, prescribing the pill might be said to put one into your second category of directly furthering the sin, if taking the pill is one.

      What about when the contraceptive is prescribed for reasons other than BC? Sometimes girls who aren't sexual active are put on the pill to avoid other gynecological complications. Should a physician (or parent) be concerned that this might facilitate her becoming sexually active? What if the other complication is more painful than dangerous so that pikuach nefesh doesn't enter?

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  5. If we hold abortion and infanticide to be a whole lot worse than contraception, we should not be so quick to make contraception less available,

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    1. Orthodox Jews have become Catholics in their opposition to contraception.

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    2. Tesyaa-
      The opposition to contraception has always been in tradition. I think you are thinking of the blanket opposition to abortion.

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    3. As a practical matter, it is relatively easy to get a heter to use contraception (esp for a married couple who already has children); yet not easy to get a heter for abortion. So I don't understand what you are saying.

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    4. As far as I am aware, we have heterim for particular kinds of contraception in cases where pregnancy would pose a specific health risk to a mother because we cannot tell a couple to be abstinent, and we are more lenient if there are children already. How does that relate to the case at hand, of unmarried individuals?

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    5. In practice, the BC heter is given much more leniently. Many Orthodox rabbis will give a heter to a couple who want to space out their births, in the absence of a specific health risk. Many Orthodox rabbis give heterim (or gave, in the 1980s and earlier) for a married couple with no children when one partner is finishing an educational program. I know of these instances from direct personal experience or that of people close to me. I am wondering how the limited allowance for birth control you describe relates to practical application, which appears much more lenient. The Orthodox rabbi who gave the heterim I describe is an extremely respected, well-known posek.

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    6. Tesyaa-
      Do you know whether the posek involved addressed the question of which kind of BC?

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    7. Specific methods were discussed - I know he allowed at least two.

      Let me be clear that this extremely respected, well-known posek answered the sh'aylah we asked in a couple of minutes, with very little discussion of any tangential issues, as if he handled this routinely.

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    8. Tesyaa-
      What I am getting at is the point I alluded to a few posts above: The rules are different for different kinds of birth control. Hence my question.
      I would expect that he expressed a preference for the pill; possibly, he would have allowed a diaphragm in a case like wishing to space out births, provided that children were already present and there was a particular reason to space them out.

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    9. Your expectation is mostly in line with his actual responsa, except the reason for wanting to space out births was a vague "we need a break". No instructions whatsoever about how long BC was allowed or when the couple should be in contact to revisit the psak. A five minute conversation.

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  6. In " Talking About Intimacy and Sexuality: A Guide for Orthodox Jewish Parents" (Debow, KTAV, 2012, pgs. 196-197) there is a secction titled "Parentying Children Who Are Sexually Active". The author quotes a 2004 study in Journal of Adolescent Health that cognitive dissonance decreases the likelihood of religious teenagers using contraception. However, in Note 31, she quotes the recommendation in the name of two rabbonim that "while this is obviously not something we would advocate l'chatchila--in an ideal situation--, for safety reasons information must be presented to those who are sexually active".

    In a Torah In Motion talk titled " Educating Adolescents About Intimacy: Conflicts and Commitments"(1 hour 31 minutes in MP3, available online), Dr. Debow discusses this as well.

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  7. May I suggest -- you have pretty easy personal access to two of the three authorities quoted in the AOJS statement. Why not go directly to the source and ask?

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    1. Anonymous 9:54 PM-
      I would love to, but I don't have contact information for either of them. Do you?

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