Rabbi Moshe Taub
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For thousands of years, people born without the ability to hear were often erroneously consigned to mentalinstitutions. It was not until a few hundred years ago that sign language and other techniques were developed to communicate with such people and even teach them how to speak so that they could make themselves understood.
The Gemara (Chagiga 3a; Yevamot 113a) rules that a cheresh – which here, and almost everywhere else in the Talmud, refers to one who can neither hear nor speak (Chagiga 2b) – is exempt from all mitzvot.1
This dichotomy, between the unchanging halachot relating to chershitn and the advancing pedagogic skills of specialists in the fields of oralism (spoken language) and manualism (sign language) has, over the past few decades, been exponentially magnified by the tremendous technological advances in modern-day hearing aids and cochlear implants. Consequently, many poskim (major halachic decisors) have addressed the question of whether and to what extent the status of deaf persons who now exhibit understanding and can communicate with others should be modified from the
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See Iggerot Moshe Yore/i Deah 4:49:2 where he briefly states that such a resh sluld nevertheles&seek to fulfill nutzvot for’ tt is not appropriate one to permit an action for himself with the excuse that the Torah allows it.”
way they were categorized in the days of the Gemara?2
~The goal of this article is to present the many views found in the poskim concerning deafness in the modem age?3
Deafness – General Halachot
About one in one thousand children are born deaf.’ Infants and adults can also develop deafness due to illness (e.g.
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2. We should note that we find earlier indications of sign language and lip reading in the Talmud. See Gittin 59a in the Mishnah and Yevainot 112b regarding hand signaling (“remiza”) by and to deaf individuals; in Chagiga 3a we are taught regarding some form of lip reading. See also Tosephta Terutnot 1:2 where it is taught that the deaf sons of the second-generation niishnaic sage R. Yochanan Ben Gudgada were charged with all the ta/tarot (purifications) of Jerusalem. Such responsibility could have only come about through some sort of communication and special education; Sota 13a teaches us that Chushim the son of Dan was deaf and yet he was able to communicate.
3. Indeed, the Minchat Chinuch (21:10) remarks that a monograph on the laws for the deaf is needed. See also Maasth Cheresh, a 12-page sefer on this topic published by R. Yehuda Leibish Broth in the mid 19th century..
4. It is estimated that genetics plays a role in about 30-50% of childhood deafness cases, and it can be determined if one’s deafness is due to a genetic marker or not (“Understanding the Genetics of Deafness” by Harvard Medical School of Hereditary Deafness). I contacted Dr. Rehm, the author of this review, and she further explained that there is still much being discovered regarding the role that genetics plays in deafness. Chazal allude to the role genetics can play in causing deafness, in Chagiga 3a: “Two mutes living in Rebbe’s area who were either the grandchildren or nephews of Rabbi Yochanan Ben Gudgada would make sure to sit in front of Rebbe when he would enter the study-hall to lecture…..This is the same Rabbi Yochanan Ben Gudgada mentioned above (Tosephta Terumot, 1) whose sons were deaf, suggesting either remarkable coincidence or an allusion to genetics playing a role in
muteness was likely related to severe cases of hardness-of-hearing as the Gemara itself seems to indicate when it informs us that his nephews would make sure to sit in front of Rebbe when he would teach, which, if they were simply mute, would not be an understandable action, and certainly would not warrant being a detail mentioned in the Gemara (cf. Ein Yaakov and B ‘Einei Yitzchak ad bc and Ma/tarsha to Eruvin 13a who offer different solutions to this problem).
meningitis). There is no halachic distinction between conductive deafness (where the inner ear works, yet, for a host of possible reasons, the Sound is not able to travel through the ear canal) and sensorineural hearing loss (where the inner ear, the cochlea, is unable to perform its function of discerning sounds by sending messaging to the brain).
While the scriptural source for the ruling that a cheresh is exempt from all mitzvot is unclear, the Chatam Sofer on Even HaEzer 2:2 posits that it is a Halacha I’Moshe M’Sinai (a fiat, something taught to Moshe Rabbenu at Mount Sinai, which is accepted without scriptural source). See Minchat Shiomo 1:34 who also discusses what possible source chazal (the early rabbis, a term usually reserved for rabbis from the time of the Talmud) had for this law,5 and where he also seeks to explain how this halacha (that a deaf-mute is exempt from mitzvot) might today go through a radical change – if chazal had been aware of our ability to train deaf-mutes äo that they could understand things the way other people do.
According to some, this status of_a cheresh as exempt from mitzvah observance applies equally to one born deaf (congenital) as well as one who developed deafness and muteness later in life (Maaseh Cheresh); others disagree,6 and are therefore more lenient regarding one who was at one time able to hear or speak.’
From the straightforward reading of the Gemara (Chagiga ad bc; Yevamot 113-114; Shavuot 42a) one can infer that this exemptive status of the archetypal deaf-mute is causative in
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5. That this law is a direct mesora (tradition, and in this case – as Chatam Safer argued – Oral Law) would be challenged by the views of R. Eliezer, and more so R. Yehudah, who argue on it, see Tosephta Terumot 1:1, 1:2.
6. Pri Megadirn, kollelet 2:4-7; shu’tMima’qnjakirn 3:2; Sdei Chernid #103.
7. See also Nishmat Avraham, Artscroll edition, volume 1 pages 27, 28 with footnotes. See Sdei Chemed, Ma’arechet 8, ida! 103.
nature and not intrinsic.’ What this means is that it is precisely dj4e to deafness and lack of communicational aptitude that a deaf person’s development becomes arrested, which then leads to a deficiency in the rational agility and mental maturity that would be necessary to bind one to the Torah’s many obligations (even its negative laws; see Yevamot 114b). Rabbi Moshe Feinstein further explains communication as being the key to intellectual growth and development, and a deaf-mute who, perforce, cannot communicate, has to be viewed as unique within the confines of halacha proper.’
Thus, this that a cheresh refers to one who is both deaf and mute is not due to two unrelated conditions (deafness and muteness) having coincidentally struck the same individual, rather it is precisely because one is (born) deaf that he would never learn how to speak or communicate.’°
In fact the biblical term for deafness – the root CH’R’SH – is often used to connote silence as well (e.g. Shmot 14:14, inter alia). The Radak (Sefer HaShorashini, column 239) explains that this word’s true meaning is indeed “deaf(ness)”, and it is used sometimes to mean “silence” merely to allude to the fact that one who is silent is acting as a deaf person would since, typically, they are fated to silence.
Based on the above rationale, it is easily understood why one who is a medaber (can speak but is deaf) or a shomea (hears but can’t speak) is obligated in all mitzvot (Shuichan Aruch 55:8). Having only the skill of writing, however, would not transform one who is a deaf-mute into a rnedaber (Tur, Even Haezer. siman 120:5,121:6; see Gittin 71ä with Rashash).’11 This is certainly true regarding one who was born deaf.12
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8. See Rashi ibid, s.v ‘cheW that such a cheresh is not a bar-daat (of common intelligence) see Iggerot Moshe, Even Haezer 3:33
9. Ibid.
10. Ray miBartenurah; Rarnbam, Peirush HarniEhnayot, Terumot 1:2. 17. Rema, Even Haezer 1:6.
11. As quoted by Dr. Steinberg in Encyclopedia Refit vol.2, footnote 58.
12. Based on Gitlin 71a. See Encyclopedia Tairnudit, erech ‘chEresh’, column
It is critical to point out that a Jewish cheresh – which rarely, if at all, exists today in the classic deaf-mute form -. is still an equal member of the Jewish nation – e.g., one desecrates Shabbat to save them,3 and the Torah warns us to not curse them.”Other such examples include the ruling by some that a kohen (priest) who is a true dheresh is still entitled to the special honors due to kohanim,15 and the view that we do not stop a cheresh from donning tefihlin.16 Furthermore, one fulfills the
mitzvah of procreation through a deaf child.”
One modern expert on issues of medical halacha argues that the above laws notwithstanding, one cannot feed a true cheresh non-kosher food or assist him in performing other sins.”18
Shomea, Medaber, and Pikeach
As stated, a mute who is not deaf (shomea) is halachically viewed as a pikeach (a person of common intelligence, capable), and would therefore be obligated in all mitzvot. The same applies to one who is deaf but can speak (inedaber) (except possibly mitzvot that are dependent -on shinia (listening), e.g. rnegilla).
Communication being the reason for a cheresh ‘s unique status in halacha, one can make the cogent argument that in modern times when even the most severely deaf-mute is taught some form of communication, their status might well be changed to that of a medaber and they could then be viewed
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496 and footnotes 30-37.
13. Minchat Chinuch, 39.
14. Vayikra 19:14.
15. Michat Chinuch 269:3.
16. Mishnah Berurah, siman 37:12. See also shu’t Tzitz Eliezer, 15:32:2. Cf. Magen Avraham, siman 282:6 and Hagahot Rav Akiva Eiger ad Locum.
17. Rema, Even Haezer 1:6.
18. Dr. Steinberg, op.cit., column 540 in the name of the Pri Megadim, kollet 2:1. See also Meggid Mishneh, Hilchot Shabbat 20:7.
as no different from that of the average Jew, in that he would ‘be obligated in virtually all mitzvot.1 This would seem to be true whether or not their hearing devices give them perfect hearing, and even if they do not have perfect speech. The same may be argued even concerning a cheresh who can communicate using only sign language. If true, many supplemental questions would arise, e.g. theft being counted for a minyan, and regarding hearing devices themselves and if they are viewed as affecting true halachic hearing (shmia) for mitzvot.
The major poskim of the late 20th century all discuss this issue: Rabbi Moshe Feinstein (Even Haezer 3:33, etc.); Rabbi Shlomo Zalman Auerbach (Minchat Shlomo 1:34, etc.); Rabbi Eliezer Waldenberg (Shu’t Tzitz Eliezer, 15:46, etc.); Rabbi Yitzchak Yaakov Weiss (Minchat Yitzchak 2:113, etc.). We shall first marshal their views and later seek to apply them to common cases.
Hearing Aids vs. Cochlear Implants
Before discussing the views of the poskim, it is important to clarify that the term “hearing aid” that will be referenced when discussing the various responsa literature is simply a reflection of the terminology used by the poskiin. Cochlear Implants (referred to in this article as CI), which are a fairly new invention, would probably be no different, from a halachic standpoint, than standard hearing aids.
Some do argue that CI should be viewed as halachically more lenient than a standard hearing aid in two areas: 1) Shabbat: Because a standard hearing aid is similar to a microphone (it is, in essence, a mini microphone), the same Shabbat concerns should apply to both. It has therefore been argued that at least concerning the Shabbat issue of hashma ‘at kol (producing sounds)’ which is one of the concerns regarding microphones on Shabbat, CI should not be affected, for Cl works through sending audible pulses to the brain and not through amplified sounds. 2) Fulfilling a mitzvah dependent on hearing (e.g. megilla) – there is much debate whether such mitzvot can be fulfilled through a microphone (and hearing aids) (see next section), and here too some argue that Cl “…may…” …may…” be a non-issue due, again, to the fact that CI is not a microphone. 21
It would seem, however, that both of these points may be moot, based on faulty assumptions. As for the point made regarding hashma’at kol, Rabbi Moshe Feinstein (Iggerot Moshe Orach Chaim 2:85, s.v. vhenay hataam) has already ruled that this is of no concern even for hearing aids because, although essentially a microphone, the sound produced by a hearin aid is not meant for nor can it be heard by others (the rabim).22
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19. Lord Jakobowitz, writing in his groundbreaking Jewish Medical Ethics (p. 336, footnote 180), states, “The legal disabilities of the deaf and dumb are entirely due to the mental dementia resulting from their inability to communicate audibly with their environment. But in view of the modern advancement in the treatment of such cases, it has been suggested that their religious and legal status may now be modified…”
20. This is a rabbinical prohibition relating to performing an act on Shabbat whose result produces sound in a permissible way or method (i.e., a radio set on a timer to go on/off) when that act would typically be achieved – when performed on non-Shabbat or festival days – in a manner that would be forbidden on Shabbat due to the fear that some may come to believe that a violation was performed; see Shabbat iS and Orach Chaim siinan 252.
21. See Torat HaCheresh [a focus on using hearing devices on Shabbat], page 5, by-R.-Mordechai Shuchatowit2~ published by NCSY in 2002 for their deaf youth division. See also Techumin 5764, Dr. Brema.
22 An additional factor to consider is that our acceptance of this rabbinic decree of hashma’at kol is debated and is not codified as an absolute. Indeed the Rema in siman 252:5 only brings this decree as a “yeish oinrim” (some say) and states, “such is the custom [to be stringent]”. Furthermore, in siman 244:6 the Rema rules that in cases of great need or financial loss we follow the lenient view. This would seem to be the case all the more so regarding one who needs to rely on this view so that he could hear! See footnote 52
Furthermore, regarding both points 1 and 2, which seek to distinguish between hearing aids and CI because the latter works without a microphone – this is a non-starter due to the fact that Cl does work through a microphone? While it is true that hearing aids simply amplify sounds so as to be audible to a damaged ear, Cl also begins its process with a microphone. It is only after the sound is first picked up by a microphone that the speech processor organizes the sounds, the transmitter and stimulator transforms these sounds to impulses, and finally the electric array gathers these and sends them to the various areas of the auditory nerve. 23
If anything, one could argue that Cl should be viewed as a greater halachic concern than hearing aids regarding mitzvot that rely on hearing, for while both begin as microphones (that
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regarding how the Rema chose when to rule leniently when there are a number of views. Cf. Cra sirnan 252 who is more stringent regarding this debated decree, See Blur Halacha s.v. ‘v’hachi noheg’.
23, See Tradition, Spring 2009, “Survey of Recent Halakhic Literature” by Rabbi Bleich, where he briefly discusses the question of a halachic distinction between CI and standard hearing aids. He quotes, and then disagrees with, the view of Dr. Israel Brema (op. cit.) who argues, like Rabbi Shucatowitz above, that because Cl works without a microphone it should be more effective halachically. Rabbi Bleich in his dissent does not mention that in fact Cl does begin its process with amplified sound. Indeed Rabbi Bleich writes, “The crucial Halachik difference between a hearing aid and a cochlear implant is that the latter does not transform electrical current into amplified sound waves”. It is my contention that both he and Dr. Brema are factually incorrect. I sent my language used above (“Cl also begins its process with a microphone. It is only after the sound is first picked up by a microphone that the speech processor organizes the sounds, the ‘transmitter and stimulator transforms these sounds to impulses, and finally the electric nerve”) to Dr. Ross of the University of Connecticut, an eminent expert ih this field, who replied: “You are quite correct; aCT and a HA both require microphones in order to begin the electronic processing. Your wording is absolutely accurate. Both, also, eventually engage the auditory nerve (albeit differently) to transmit electronic nerve impulses to and through the brain.”
convert sound into electric signals, see Minchat Shloino 1:9)24 only Cl reverse engineers these signals and then rearranges them, which means that a Cl takes sound one step further away from the original speaker when compared to a standard hearing aid!
Nevertheless, based on the leniency of Rabbi Tzvi Pesach Frank (see next section) that “all sounds are kosher”, and Rabbi Feinstein’s argument (see next section) that even natural sound waves are manipulated before reaching one’s ears, it would seem that all hearing devices may be treated equally, and that once one is hearing only a shadow of the first sound, it is irrelevant how many steps removed it is; however, further halachic clarification is required regarding this last point.
With the above in mind, let us look to some of the responsa literature that discuss’ modern day deafness, both in generalities and specific cases; We will further seek to apply them to common cases in the section that follows it.
Iggerot Moshe
Rabbi Moshe Feinstein rules that someone who was born a cheresh (deaf-mute) but later had a hearing aid attached which permits him to hear and which allows him to communicate with others, would have the status of a pikeach (of common intelligence) and be obligated in mitzvot like any other Jew?5
What makes this particular responsum so fascinating is that although he advances such a pragmatic halachic view when discussing modem-day chershim, he nevertheless goes on to explain that one’s ability to hear through an electrical device
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24. It should be noted that, today, there are several different types of microphones, some of which, like fiber optic microphones, compare little to the classic devices. Research needs to be done to see if Rabbi Shiomo Zalman Auerbach’s analysis (in Minchat Shiomo) would apply in these cases as well.
25. Even Haezer, 303; written in 1971, a fact that will become important in a forthcoming paragraph.
does not transform one into a shomea (one who can hear), but rather transforms him into a medcther (one who can speak). Rabbi Feinstein draws a distinction between electronic hearing aids and the crude mechanical hearing aid that the Pri Chodesh26 ruled would transform a cheresh into a shomea, for the latter still allowed one to hear the original voice or sound.
It would appear then that Rabbi Feinstein is suggesting a, somewhat complicated halachic structure: modern electrical devices allows one to “hear” – although not “halachic hearing” – through which a cheresh would learn how to converse with others, and it is the lack of being able to converse with others which is at the heart of a cheresh’s halachic disability – which, once removed, would make him a medaber. This ruling applies even if one’s speech can be difficult, but not impossible, to understand.27 Such an individual would be viewed as no different than the average Jew. 5
– This ruling of Rabbi Feinstein, where he states that electrically amplified sounds are not viewed as shmia (hearing), would seem to contradict an earlier responsum of his where he was asked regarding hearing the megilla, or other obligations dependent on hearing, through a microphone.29 There he argues that since even regarding regular speech the vibrating waves /air that enter the listener’s ear are in fact unique and different than the vibrating waves/air that were used when the words were first spoken, the sound modified through a microphone should be viewed as no different halachically than natural sound waves themselves, and one can, then, fulfill such mitzvot through it. He ends there by
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26. Even Haezer, 121.
27. Ad locum.
28. Rabbi Feinstein however does rule, in accordance with Rambam (Hi/chat Mechirah 29:22), that although viewed as a medaber and obligated in mitzvot, he does not have the ability to sell land.
29. Iggerot Moshe Orach CS/rn 2:105. See also Iggerot Moshe 4:91:4, where he permits listening to havdala over a telephone in cases of need.
stating that while one should not protest those who follow this ruling, he is reluctant to have this leniency acted upon.
It seems puzzling, however, that in the teshuva mentioned earlier, which apparently Was written years later,’ he maintains an opposite approach, arguing strongly against a hearing aid being seen as halachic shmia with not even a hint of an allowance or mention of his previous lenient approach comparing such audibility to sound waves.
Furthermore, in 1980 Rabbi Feinstein was again asked about hearing the inegilla through a microphone, and he then reiterated his inclination to be lenient – although he was slightly more hesitant
