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1 SuMMaRy and Conclusions and void retroactively? Answers the Gemara: “We say that she was
If the hospital takes all necessary measures to prevent the staff from
becoming infected with AIDS, there is no justification for the anger
of the medical staff. The public should compensate the physicians and
staff with an appropriate salary for caring for these patients.
214 1 Medical-HalacHic Responsa of Rav ZilbeRstein
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7
now cured of her infertility, and restored to health.” Rashi (s.v. matkif)
explains that, “Certainly we cannot nullify the divorce, because we tell
him, ‘You divorced her because of a doubt [if she could bear children]
and you did not care about her but said to yourself: ‘I will be divorced’,
because this would be the way to get rid of her,’ and now, she has been
healed of her infertility and restored to health.”
The Ritva adds (ibid., s.v. ibaya lehu) that we can ask (based on
maseches Gittin 46b): Why, if a man divorces his wife because of
masculine characteristics of her pelvic structure, her voice and other
signs, he can never take her back? Rashi explains that this is so that if
later she develops signs of feminimity and has children from a second
marriage, he cannot claim that the divorce is null and void. After all,
he was aware that divorce for this reason is irretractable, and he di-
vorced her nonetheless. The question we can ask is: Why would there
even be a possibility of retroactively nullifying the divorce? Should
we not view this in light of what Rashi (above) wrote about a woman
who one presumed is not able to have children?
The Ritva answers that when a woman develops signs of mascu-
linity, indicating infertility, and her husband says: “I am divorcing you
because of your infertility,” we assume that that is the real reason he
is divorcing her. Therefore, when it turns out that she is not infertile,
the divorce could be retroactively nullified, were it not that beis din
told him to divorce her without any conditions attached. However,
in a case where she did not have any signs but he presumes that she
cannot bear children, he does not have any proof that this is really so.
Perhaps he is not worthy of having children from her? This shows us
that in truth, he divorced her for no real reason, based on a presump-
tion, and therefore he cannot invalidate the divorce retroactively.
The Divrei Malkiel (Part 1 #86) sums this up as follows:
If he divorces her for not bearing children after ten years
and she married another man and gave birth, he cannot
invalidate the divorce and say ‘Had I known she could bear
children I would not have divorced her’, because when he
Divorce due to erroneous medical information 2 20818_efi-ab - 20818_efi-ab | 7 - A | 18-08-20 | 13:29:02 | SR:-- | Cyan 20818_efi-ab - 20818_efi-ab | 7 - A | 18-08-20 | 13:29:02 | SR:-- | Magenta 20818_efi-ab - 20818_efi-a
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