A Woman who Gave Birth
The Torah says that after giving birth to a baby boy the mother is tameh for seven days automatically. For a girl she is tameh for fourteen days. On a torah level after seven or fourteen days she can go to mikveh and begin a new period of time called ‘yemey tohar’. For the next thirty three days for a baby boy or sixty six days for a baby girl, any blood that a woman sees then is tahor. However, when a woman gives birth if she sees blood she is tameh as a zavah, as a result of Rabbi Zeira’s stringency. Once she is a zavah she remains tameh until she can get seven clean days. Furthermore, even if no blood came out when she gave birth she is rendered a zavah based on the principle that there must have been some blood if the uterus opened to give birth. Therefore, today all women who give birth are a niddah until they can have shiva nekiyim and go to the mikveh. These shiva nekiyim have to be free of any blood, whether they are in the first seven or fourteen days or afterwards.
Shiva Nekiyim after Giving Birth
- After giving birth, a woman is automatically tameh as a result of the birth and also as a result of the cervix opening. For the birth, for a baby boy a woman is tameh automatically (whether or not she sees blood during or after the birth) for 7 days and for a girl 14 days. As a result of the opening of the cervix, she is tameh and requires the regular process of waiting before the shiva nekiyim, the hefsek tahara, shiva nekiyim and mikveh.
- These 7 clean days can occur during the first 7 or 14 days or afterwards.
- For example, if a woman gave birth to a girl and got 7 clean days before she completed the 14 days of tumah from the birth, she still is tameh until the end of the 14 days and can go to mikveh the night of the 15th day. She doesn't need to do bedikot after her counting of the 7 clean days, though she should do a bedika before going to the mikveh.
- A women shouldn’t go to mikveh after giving birth until she is medically healthy enough.
- If a woman had shiva nekiyim and went to mikveh and then saw blood within the days of purity (33 for a boy and 66 for a girl), the minhag of all of klal yisrael is that we treat her as tameh like a niddah for all purposes.
- Sometimes there is still some relevance of dam tohar today when asking a shaylah to a rabbi.
- There was a practice that a woman wouldn’t go to the mikveh until she has seven clean days and also waited 40 days after having a boy or 80 days after having a girl. Today this minhag isn’t widespread. Sephardim do not have to follow this minhag and even if they did they can do a hatarat nedarim.
- If the woman already went to the mikveh and she is tahor, even though the gemara prohibits them to one another on the night of the 41st day for a baby boy and the 81st for a baby girl, today this prohibition doesn't apply since we are strict on dam tohar.
- If the amniotic sac comes out after a healthy birth up to 23 days after the birth (not including the day of the sac coming out) it isn't considered another birth, however, she is tameh as a result of it for 7 days. However, if it came out later it is considered another birth and she is tameh 14 days like she gave birth to a girl.
- A woman who miscarries a fetus that is less than 41 days old she is tameh like a niddah but doesn't have the regular tumah of birth, which for a girl is 14 days.
- There is a major dispute from when to count the 40 days. Some poskim write that we begin counting from when she last went to mikveh, while many others are concerned that perhaps the count should begin earlier and we wouldn’t know from when to begin. A rabbi must be consulted. If the couple had a test showing that they were not pregnant before the last tevilah, then according to some poskim they can count the 40 days from the last tevilah.
- A miscarriage where the fetus was more than 40 days old makes the woman tameh for 14 days automatically, irrelevant of its form, since it could be that the fetus was a girl. A rabbi should be consulted.
- If a woman miscarried and the amniotic sac came out after the birth it is considered another birth since it is unusual for the sac to come out afterwards if it is a miscarriage.
- If the amniotic sac came out before the birth, whether it is a healthy birth or a miscarriage, she is tameh immediately though as she gave birth.
- Vayikra 12:2-5. Based on the Mishna Niddah 30a, Bet Yosef 194:1 writes that it is obvious that even according to the opinion that it is possible for the uterus to open without blood agrees that a woman who gives birth is tameh.
- Rosh Niddah 4:2 writes that today all women who give birth are a zavah. The Tur 194:1 explains that since we hold that if the uterus opens it is impossible for blood not to come out and Rabbi Zeira's (Niddah 66a) stringency was to be strict about any blood that a woman sees to treat her like a zavah.
- Niddah 66a
- Tur 194:1, Shulchan Aruch YD 188:3
- Rambam (Isurei Biyah 4:6), Badei Hashulchan 194:1
- Rambam (Isurei Biyah 11:5), Rosh Niddah 4:2, Tur 194:1, Shulchan Aruch 194:1.
- Rava (Niddah 37a) holds that a woman who doesn't see blood during the first seven or fourteen days can count those for the shiva nekiyim. Abaye argues that the seven or fourteen days of tumah automatically don't count for the shiva nekiyim. Rabbenu Tam (cited by Tosfot s.v. Abaye) rules like Abaye. The Rosh (Niddah 4:1) writes that the Bahag, Rav Sadya Goan, Shiltot, Rabbenu Chananel, Rif, and Rashi side with Rava. He agrees with these geonim unlike the opinion of Rabbenu Tam. Shulchan Aruch 194:1 codifies the opinion of the Rosh.
- Shulchan Aruch YD 194:1. Badei Hashulchan 194:13 writes that after she finished her counting of the shiva nekiyim she doesn't need bedikot but lechatchila she should do one before going to the mikveh.
- Mishmeret Hatahara v. 2 p. 157 writes that a woman shouldn’t go to the mikveh after she gave birth before she is healthy enough to go, which the doctors usually say is 5 or 6 weeks.
- The Ramban (Hilchot Niddah 7:16-18) holds that this practice is based on the stringency of Rabbi Zeira that we treat all blood like tameh zavah blood. However, the Rosh (Niddah 4:2), Rambam (Isurei Biyah 11:5), Rif (cited by Hagahot Maimoniyot 11:1), and Shiltot (no. 85) and hold that the blood during yemey tohar is tahor from the gemara but it was a later geonic minhag to be strict in some places. In fact, the Rambam (Isurei Biyah 11:5-6) and Tur 194 write that in France and Germany the minhag was to be lenient. However, already from the times of the Agur (no. 1372 cited by Bet Yosef) he writes that he never heard of anyone being lenient about this. The Bet Yosef and Rama 194:1 write that the minhag of all klal yisrael today is to treat blood during the days of yemey tohar like tameh blood. Badei Hashulchan 194:1 agrees.
- Mishmeret Hatahara v. 2 p. 164 writes that if the woman already went to mikveh and the shaylah came up afterwards within the yemey tahara it is possible to use that fact as a factor to be lenient.
- If a woman went to mikveh and then felt blood during tashmish while she was still within the days of yemey tahara, the Nodeh Beyehuda 2:96 held that the man could leave with an erect ever, while Nachlat Tzvi argued. This dispute is cited in the Pitchei Teshuva 194:2 and Badei Hashulchan 194:22.
- The Rambam (Isurei Biyah 11:15) writes that the Kaarites had a practice to abstain from their wife the entire period of yemey tahara but it is incorrect. The Maharik 144 writes that those who have the practice and claim that it is based on a legitimate source they may keep their practice, otherwise it should be abolished. The Rivash 40 writes that if the minhag was really based on a rabbi who was strict so that the people don't come to be lenient about niddah it is legitimate, however, if it is based on a mistake that they think it is forbidden then we should abolish the minhag. The Bet Yosef 194:1 comments that the Rambam could agree with this but he assumed that it was more likely based on a mistake than a major stringency. Several explanations have been proposed for the minhag including the following:
- The Maharik suggested that the minhag is based on a stringency not to come to be lenient about hilchot Niddah. The Darkei Moshe cites the Maharil as agreeing with this reason. Levush 194:1 adds that since it is very common for a woman who gave birth to see blood during these days, there is a concern she'll see blood but not realize. He admits that this reason is weak since blood that they see during yemey tohar is really tahor.
- The Agudah (Pesachim 113b) writes that the minhag is based on the opinion of the Bahag so as not to forget that the night of the 41st and 81st day the couple is forbidden to each other, therefore, they didn't go to mikveh beforehand. The Bach 194:3 accepts this approach. Badei Hashulchan 194:16 explains that according to this explanation she may not go to mikveh before the night of the 42nd and 82nd.
- The Darkei Moshe 194:3 writes that the minhag is based on the opinion of Rabbenu Tam that whether or not she sees during the days of tumah they can't be counted for shiva nekiyim. Furthermore, as long as she hasn't gone to mikveh the days of yemey tohar also can't count for shiva nekiyim. According to Rabbenu Tam it is necessary to go to the mikveh twice, once to remove the tumah of birth and another to remove the tumah of zavah after shiva nekiyim. Since we don't go to mikveh twice for this purpose the minhag was to refrain from going to mikveh for 40 days for a boy and 80 days for a girl. In fact, according to this reason the minhag should be to go to the mikveh twice, but it is enough to be strict for the Rabbenu Tam in the main days of tumah and tahara. The Darkei Moshe concludes that it seems that according to this reason they should be strict to start the shiva nekiyim only after the 40 or 80 days. * Halacha: The Rama 194:1 writes that in a place where they have the minhag one shouldn't break the minhag, however, in places were they don't there's no reason to be strict. While the Bach 194:3 holds that it is forbidden to break this minhag in a place where they have it and someone who does will be punished, the Taz 194:3 argues that there's no good reason for the minhag, many people don't keep it, and there's no punishment for breaking the minhag. Badei Hashulchan 194:18 writes that many poskim rejected the minhag and so one shouldn't be strict unless one's parents were and even in such a case if a person's yetzer hara is great one can be lenient.
- Taharat Habayit (v. 2 p. 28) shows that the primary minhag of Sephardim is to be lenient like Shulchan Aruch. He cites numerous sources to show that the poskim held that this minhag was weak and possibly based on the Karaites as the Rambam writes. Therefore, the Bet Yosef's opinion was unless we know that it was based on a practice to be strict on hilchot niddah, we can assume that it was a practice based on a mistake. In Baghdad, Egypt, and Tunisia the minhag was to be lenient. Even for Morocco and India where there was a minhag to be strict, Rav Ovadia holds that they don't need to uphold this minhag since we don't know that it began with rabbinic approvals and was completely accepted. Additionally even the Ben Ish Chai (Rav Paalim YD 2:23) writes that it wasn't an accepted minhag in Baghdad and even someone who has this minhag can nullify it with hatarat nedarim.
- The Gemara Pesachim 113b writes that a woman is forbidden to her husband the night of the 41st for a baby boy and 81st for a girl after having a baby. The Rashbam explains that since the Torah permits a couple to one another even if there is blood during the days of yemey tohar they forget when that period ends and be lenient about niddah blood even afterwards. Therefore, the rabbis said that they should refrain from one another the night of the end of that period so that they remember that there's a difference before and after. The Rosh 3:5 writes that this restriction only applies to those who are lenient about blood during yemey tohar. The Raavad (End of Shaar Tikkun Vestot p. 63) agrees and rejects the opinion of the Bahag that this night is automatically forbidden like a veset. Taz 194:2 writes that since we are all strict about blood during yemey tohar today this halacha doesn't apply to us anymore and so Shulchan Aruch left it out. Badei Hashulchan 194:15 agrees but adds that a person who wants to be strict will be blessed.
- Shulchan Aruch YD 194:4, Badei Hashulchan 194:50
- The Mishna Niddah 30a establishes that both for a boy and a girl a fetus less than 41 days old isn’t considered a birth for the purposes of making the mother tameh. The Rashba (Torat Habayit 28b) cites a dispute between the Raavad and the Baal Hameor whether we say that she is nonetheless tameh as a niddah since the uterus must have opened when she miscarried. The Rashba sides with the Raavad who is strict. The Shulchan Aruch YD 194:2 follows the opinion of the Raavad.
- The Pitchei Teshuva 194:3 cites the Avodat Hagershuni 21 as holding that we can count the period of 41 days from the last period since we know that if she was pregnant beforehand she wouldn’t have had her period. However, the Chavot Daat 194:2 argues that since halachically it is possible for a pregnant woman to see her period within the first trimester we can’t count the 40 days from the last period. The Sidrei Tahara 194:7 and Chatom Sofer 169 agree. Nodeh Beyehuda EH 69 agrees with the Chavot Daat that a woman can see period when she is pregnant. Chachmat Adam 115:20 and Shiurei Shevet Halevi (p. 244) side with the Avodat Hagershuni, however, the most achronim follow the Chavot Daat including the Aruch Hashulchan 194:24, Badei Hashulchan 194:28, Mishmeret Hatahara v. 2 p. 167, and Taharat Habayit v. 2 p. 49.
- Taharat Habayit v. 2 p. 49, Shiurei Shevet Halevi p. 244
- The Mishna (Niddah 30a) establishes that only if the fetus has a form of a human is she tameh but if it is the form of an animal she is tahor. Many details are discussed in the gemara and rishonim (see Bet Yosef 194:2), however, practically the Raavad (Baalei Hanefesh p. 14) writes that today we aren’t experts in how to check what is the form of a human and we consider all fetuses after 40 days to make her tameh like a healthy birth. Rashba (Torat Habayit Hakatzar 27a) and Shulchan Aruch 194:3 agree. The Shach 194:3 even writes that today we aren’t experts to check if the fetus was a boy or girl to know if she is tameh 7 or 14 days and so we always consider her tameh for 14 days. Badei Hashulchan 194:43 codifies this as halacha and adds that we don’t rely on our evaluation about genders unless it is very visibly obvious.
- Shulchan Aruch YD 194:4
- Shulchan Aruch 194:5. If the amniotic sac came out attached to the fetus, see Badei Hashulchan 194:5 s.v. yatzah.