Emor, Vayikra 22:24. Ube'artzechem Lo Sa'asu. Spaying Pets. Part I

My Chavrusa told me a remarkable story. He knows a talmid chacham, a musmach who was a practicing Rav for several years, who then went to medical school and became a doctor. He told my chavrusa that he had a nice surgical practice that included the performance of vasectomies. One day, he said, he came across a halacha that he simply had never known-- that performing an elective vasectomy is a Mitzvah! Unfortunately, it is a Mitzvas Lo Sa'aseh, not a Mitzvas Asei. In all his years in Yeshiva, and despite his Semicha studies, he simply had never learned this halacha.

This law is derived from the passuk in Parshas Emor, Vayikra 22:24. The Torah lists various blemishes which disqualify animals from use as Korbanot. Among these blemishes is a list of disfigurements or removal of the genital organs. The passuk ends with the words "ube'artzechem lo sa'asu," which, Chazal teach us, means that it forbidden to remove or destroy or render non-functional the genital organs of any creature, from insect to human. I was surprised that the sugya of Chardal in Bava Basra 80, which refers to this halacha, escaped this person's notice, or at least I was surprised until a very close relative, who shall remain nameless, mentioned that he, at the age of thirty, has yet to learn Maseches Bava Basra. (But he knows dinei Taharas Hamishpacha ten times better than I do.) No doubt, our scholarly bretheren are familiar with this law, probably not from the Gemara, but rather from Josephus' The Antiquities of the Jews (Chapter 8, Section 40), where he discusses Jewish disgust with the practice, and describes it as an affront to God's will.  (See text of Josephus at end of this post.)

It goes without saying that the halacha has a vast body of qualifications and specifications which might have strict or lenient application. The point is that one must be aware of the halacha. Castrating (sirus) a calf is biblically prohibited. Sirus of dogs is prohibited; Sirus of goldfish is prohibited; sirus of bumblebees is prohibited; for all I know, sirus of the copepods in the tapwater you New Yorkers drink is prohibited; and telling a non-Jew to do it for you is assur as well, albeit miderabanan.

Recently, ordinances have been proposed or passed in Los Angeles and Chicago which require all owners of dogs and cats to spay or neuter their pets, or face fines up to $500. Certified Breeders are exempt; Orthodox Jews are not. A brief has been filed in support of a legal challange to the ordinance in LA, claiming that the ordinance impedes the practice of religion for Jews(here and here ) This is a Bubbeh maiseh, of course; Jews can avoid the conflict by not owning a dog or a cat, or they can buy them fixed.

Others have defended the practice by quoting Harav Amar, the Rishon Letzion, as having said that having a non-Jewish vet spay the animal is allowed because it helps to avoid tzaar ba'alei chaim. This is at best a half truth, possibly a total fabrication, but most likely just a misunderstanding. But at least the halacha is getting some press.

One of my favorite halachos is the rule that one is allowed to cut off the comb of a rooster, although this renders him impotent (Shabbos 110b). The reason this is allowed is because this has no physical effect on the generative organs, but, as Rashi there explains, only throws the rooster into mourning for his lost glory-- מתאבל על כבודו שאבד. It is like taking the car away from a teenager.

There is a related halacha involving men: the Torah states that a Jewish man who suffers certain genital disfigurements is prohibited from marrying certain women. This is known as the halacha of Petzu'ah Dakkah. In cases of prostate surgery, which often involves the severing of the vas deferens, which is a part of the shvilei hazerah, the issue arises as to whether the surgery will render the patient a Petzu'ah Dakkah. However, the normative halacha follows the Chazon Ish and Rabbi Feinstein, who held that although severing the vas deferens in the scrotum would render a man a Petzu'ah Dakkah, since prostate surgery is only within the abdomen, it does not render the man a Petzu'ah Dakkah. This is a purely halachic distinction: there is no biological difference where the vas is severed. Still, the halachic leniency has been generally accepted.

Many people (some of whom have published articles under this misapprehension) have mistakenly connected the Petzu'ah Dakkah leniency to elective vasectomy, and have assumed that since internal ligation or severing does not create Petzu'ah Dakkah, this act is also not prohibited mi'deoraysa under the Issur of Sirus, of Be'artzechem lo sa'asu kein. The Aruch Hashulchan EH 5:24 states explicitly that this is WRONG WRONG WRONG. They are different issurim with different rules. Methods that are allowed under the former may be prohibited under the latter. The reason "kos shel ikrin," hormonal castration, is only a rabbinic prohibition, is that it does not generate immediate gross physical change in the reproductive organs. But it is clear that internal severing or ligation of reproductive organs, while perhaps not covered by the rule of Petzu'ah Dakkah, is prohibited under the rule of Be'artzechem. Mi'deoraysa. And like all isurim de'oraysa, is only permitted in very limited circumstances.

Among the issues that must be considered:
1. Does the issur min hatorah of Sirus apply to females? This issue is relevant for women who wish to do a hysterectomy; if it is an issur derabanan, avoidance of pain would be a mattir. If it is de'oraysa, only piku'ach nefesh is mattir. The Gaon holds that it is de'oraysa. Most current poskim (e.g. Reb Moshe) hold it is an issur de'rabanan and is allowed in cases of great need. The Taz (EH 5:6), a minority opinion, allows neutering of females when done for their benefit.

2. Are non-jews prohibited from doing Sirus? (This is Rav Chidka's shittah in Bava Metzia 90b. Rav Chidka's shittos, by the way, are always fascinating. He is the Tanna that holds that you need to eat four meals on Shabbas, and he says that your own Neshama will testify against you at the final judgment.) If the issur applies to non-Jews, asking a non-Jew to do it would be Lifnei Iveir. The Beis Shmuel (EH 5:16) considers this a safek de'oraysa. The Aruch Hashulchan (EH 5:26) and the Chasam Sofer (Teshuvos CM 185) hold that Sirus is not a Noahide proscription.

3. Even assuming that non-Jews are not prohibited from doing Sirus, a Jew is not allowed to ask a non-Jew to do what he himself may not do. Most people are familiar with this issur derabanan in hilchos Shabbas. In fact, however, it applies to all issurim. If non-Jews have no personal issur (see #2), and the problem is only amira le'akum, there are those who allow a double amira le'akum: telling A to tell B to do it. (Sho'eil U'meishiv 3:1:229, Chasam Sofer CM 185.)
And since Amira Le'Akum is derabanan, it might be muttar where the animal is in pain.

4. Rav Unterman (Otzar Haposkim I Pps 164-165) suggests a procedure which cuts the blood supply to the reproductive organs. This would be a grama, and therefore assur mi'derabanan for Jews, but would be allowed for non-Jews. Rav Unterman, however, stated this as a personal opinion, and warned that he would not make a final decision until his method was sanctioned by other poskim.

5. There are some poskim (see #3) that say that even if we accept the Beis Shmuel, and rule that non-Jews are biblically prohibited from doing Sirus, one may sell his animal to a non-Jew, and instruct that non-Jew, A, to instruct another person, B, to do the sirus. If the idea that Lifnei Iver does not apply by Lifnei De'lifnei does not appeal to you, then this hetter won't help much.

So, the bottom line is that you have the Taz in #1, you have the Aruch Hashulchan and Chasam Sofer in #2, you have the Sho'eil U'meishiv 3:1:229 in #3, you have Rav Unterman's angiostasis in #4, and you have the lifnei de'lifnei people in #3 and 5.

So, what to do?

Well, if you decide your shailos like many people do,

,

or you consult and rely on Harav

,


then go ahead and rely on the mattirim. If, on the other hand, you take a safeik issur de'oraysa seriously, you'll have to find a competent Yarei Shamayim Poseik and ask him what to do, and let the burden fall on his shoulders.

NOTE:  Text of Josephus, Chapter 8 section 40, taken from Project Gutenberg:
40. Let those that have made themselves eunuchs be had in detestation; and do you avoid any conversation with them who have deprived themselves of their manhood, and of that fruit of generation which God has given to men for the increase of their kind: let such be driven away, as if they had killed their children, since they beforehand have lost what should procure them; for evident it is, that while their soul is become effeminate, they have withal transfused that effeminacy to their body also. In like manner do you treat all that is of a monstrous nature when it is looked on; nor is it lawful to geld men or any other animals.
The translator of this section comments:
[ This law against castration, even of brutes, is said to be so rigorous elsewhere, as to inflict death on him that does it which seems only a Pharisaical interpretation in the days of Josephus of that law, Leviticus 21:20, and 22:24: only we may hence observe, that the Jews could then have no oxen which are gelded, but only bulls and cows, in Judea.]

UPDATE 2023: I came across this, from the Star K. Very helpful.

HALACHOS OF PET NEUTERING

By: Rabbi Mordechai Frankel

INSIGHTS FROM THE INSTITUTE PET CARE PETS

February 2021

Q: May one ask a vet to spay a pet?

A: I frequently get asked this question. People who have pets often prefer to have them neutered, as this makes the animals more docile. However, there are serious halachic issues associated with this. Poskim differentiate between whether a male or female animal is being neutered. The neutering of a male animal is known as castration, whereas neutering a female animal is called spaying.

The Torah (Vayikra 22:24) states that castrating men and male animals is forbidden. This prohibition is known as sirus.1 It is also forbidden to remove a woman and female animal’s reproductive organs. The Gr”a is of the opinion that this is a Torah prohibition. The Taz, however, feels that causing a female animal to become infertile is permitted. According to the Taz, the reason it is forbidden to remove a female animal’s reproductive organs is solely due to tzaar baalei chayim (causing an animal pain).2

[Of course, it is medically possible to cause a woman to become infertile without removing any organs, and the Poskim discuss whether and when a woman is allowed to do so. That topic is beyond the scope of this article.3]

The Gemara quotes an opinion that the prohibition against castrating male animals applies to both Jews and non-Jews. According to this view, a non-Jew is not allowed to castrate his own animal.4 The Gemara brings an opposing opinion that a non-Jew is commanded to keep only the sheva mitzvos benei Noach but is permitted to castrate an animal. That opinion agrees, however, that a Jew who owns an animal cannot instruct a non-Jew to castrate it for him.5

The Shulchan Aruch paskens this latter way, and states that it is forbidden to instruct a non-Jew to castrate a Jew’s animal, but it is permitted for a non-Jew to castrate his own animal. The Rema adds that according to this opinion a Jew may sell an animal to a non-Jew even if he knows that the non-Jew will castrate it. The Rema, however, states that others pasken like the first opinion in the Gemara that it is forbidden for a non-Jew to castrate his own animal. The Rema adds that according to this viewpoint it is forbidden to sell an animal to a non-Jew if it is certain that he will castrate it, as doing so would transgress the prohibition of lifnei iver (causing someone else to sin). The Rema concludes that even this opinion would allow the sale to the non-Jew if he will not be castrating the animal himself. This is because the Jewish seller does not transgress the prohibition of livnei iver if the non-Jewish buyer employs a third party to perform the castration.6

Thus, there is a machlokes as to whether a non-Jew may castrate a male animal. We can now address the question of spaying female animals. Is a non-Jew allowed to spay a female animal by removing its reproductive organs? According to the first opinion in the Rema that a non-Jew is allowed to castrate a male animal, he would also be permitted to spay a female. According to the second opinion in the Rema that a non-Jew is forbidden to castrate a male animal, it is debatable whether he is also forbidden to spay a female. According to the Gr”a that removing a female’s reproductive organs is a Torah prohibition, it would be forbidden. However, according to the Taz that the concern is that of tzaar baalei chayim, it would be permitted for the non-Jew to do so.

Rabbi Heinemann shlit”a once asked Rav Moshe Feinstein zt”l whether a person is allowed to have a non-Jewish vet spay a Jew’s female animal. Rav Moshe paskened that a Jew should not instruct a vet to spay his animal. However, Rav Moshe said that the Jew could tell the vet that he personally is halachically forbidden to spay his animal and would, therefore, like to transfer ownership of the animal and sell it to the vet. After the vet spays the animal, the Jew may then buy it back. This is halachically permitted because of a sfek sfeika – two areas of doubt. First, it is questionable as to whether a non-Jew is commanded to avoid sirus. Second, it is questionable as to whether the prohibition of sirus applies to a female animal.7

Rabbi Heinemann says that the Jew can imply that he may want to buy back the animal after the procedure is performed, but he should not state so explicitly. The Jew may also give the vet some money before the sale, knowing that the vet will use that money to buy the animal from him. For example, the Jew can give the vet a present of $10 and then have the vet buy the animal for $10. After the spaying, a procedure for which the vet generally charges $100, the Jew may buy back the animal from the vet for $100. Better still is to transfer ownership of the animal to the receptionist or some other non-Jew and have him or her get the vet to spay the animal. This procedure may be used only in order to spay a female animal but may not be used in order to castrate a male animal.8

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1. רמב”ם פט”ז מהל’ איסורי ביאה הל’ ב

2. שו”ע אהע”ז סי’ ה סעי’ יא וט”ז שם ס”ק ו וגר”א שם ס”ק כה

3. עי’ בשו”ע שם סעי’ יב שמותר לאשה לשתות כוס של עקרין, ועי’ בח”מ וב”ש וט”ז ופ”ת שם ובשו”ת אג”מ אהע”ז ח”א סי’ יג וסי’ סג וח”ד סי’ לד.

4. סנהדרין דף נו ע”ב ודף נז ע”א

5. ב”מ דף צ ע”א וע”ב

6. שו”ע ורמ”א שם סעי’ יד, ועי’ בב”ש שם ס”ק טז שהוא ספיקא דדינא.

7. שמעתי ממו”ר ר’ היינעמאן שליט”א. והישראל לא יצוה את העכו”ם להדיא לסרס את הבהמה אע”פ שהוא של העכו”ם, ואף שהשו”ע הנ”ל כתב שאסור לומר לעכו”ם לסרס בהמה שלנו ומשמע שלסרס בהמה של עכו”ם מותר, עי’ בתוס’ ב”מ דף צ ע”א ד”ה חסום שלדעת הר”י אסור.

8. שמעתי ממו”ר ר’ היינעמאן שליט”א. ואף שהרמ”א התיר לומר לעכו”ם אחד להגיד לעכו”ם שני אף לגבי סירוס זכרים, מ”מ כאן שהוא דרך הערמה יש להחמיר. ואף שלצורך פרנסה מצינו היתר כה”ג אף בדרך הערמה, מ”מ שלא לצורך פרנסה נראה לו שאין להתיר. ועי’ באוצר הפסוקים אהע”ז סי’ ה ס”ק פה מה שהביא בזה משו”ת שואל ומשיב מהדורא תליתאי ח”א סי’ רכט ושו”ת חתם סופר חו”מ סי’ קפה ושו”ת האלף לך שלמה אהע”ז סי’ כג ושו”ת מהר”ם שיק סי’ יא.