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his crime, should not deprive him of the possibility of fulfilling the
mitzvah of procreation, because a person should not be penalized by
being prevented from fulfilling mitzvos.

Even if facilitating the prisoner’s seclusion [with his wife] involves
spending public money it seems logical that this should not be a con-
sideration, and he should be enabled to fulfill his mitzvah. The Biur
Halachah (656, s.v. afilu) writes that a person who has no money must
go from door to door collecting money to buy tefillin and that the
community must provide him with the means of doing so because of
the obligation of tzedakah. In our case too, the public must undertake
the expenses of enabling him to fulfill the mitzvah, by virtue of their
tzedakah obligations.

Although a murderer who killed unintentionally, who is punished
with exile to a city of refuge, probably has to refrain from the mitzvah
of ascent to the Beis Hamikdash on festivals and we are undisturbed
by this nullification of a positive precept, it is different there because
this is what the Torah commands – that he remain in the city of ref-
uge and not leave it – and this is not similar to our case.

However, a heartless prisoner who, in beis din’s view, ought to be
isolated from society similar to the Torah’s command [concerning a
leper],“He shall dwell alone, outside his tent” (Vayikra 13:46), should
not be allowed visits from his wife in order to fulfill the mitzvah of
procreation because he is a criminal whose punishment is isolation
and he is therefore an annuss in regard to fulfilling the mitzvah. This
is not the case with a murderer whose has been sentenced to death,
whose death will expiate his sins – that is his punishment and he
is undeserving of additional punishment – therefore he should be
allowed to fulfill the mitzvah of procreation for he will anyway be
receiving his punishment in full4.

It’s true that we learn in Arachin (7a) and in the Rambam (Hilchos
Sanhedrin 12,4): “Once the verdict [of death] is finalized he should
not be kept waiting but should be executed on that same day,” imply-

4. See further discussion of this topic earlier, in siman 225,‘Releasing a Prisoner to
Enable him to Fulfill the Mitzvah of Procreation.’

96 1 Medical-Halachic Responsa of Rav Zilberstein