This question is asked by a number of Mefarshim:-

1) The Gemara here, end 60b, cites the Braisa where R. Yishmael ben Elisha said that ever since the wicked kingdom passed decrees to annul the Torah and Mitzvot, the Din should really be that we make a decree on ourselves not to marry and bear children.

How does this square with Gemara Sotah 12a where we learn that Amram; who was the greatest in his generation; divorced his wife when Pharoah said that all the sons should be thrown in the river. Everyone else followed his example and divorced their wives. Miriam said to her father Amram that his decree is worse than Pharoah's, because Pharoah's decree was only against the male children whilst Amram's decree was against the female children also.

Amram changed his mind and took his wife back, and everyone else followed him and returned their wives.

The question is:- since Amram agreed to his daughter that it is better to raise a family even though we do not know if the children will be able to live according to the Mitzvot of the Torah, why then did the Beit Din in the time of R. Yishmael ben Elisha not learn from Amram's conclusion? Why did they say that according to the Din we should make a decree not to marry?!

2) I can suggest an answer according to what I saw in the Hagadah of Pesach "Siach Yitzchak" (page 19a, on the part of the Hagadah which begins "And He saw our affliction; this is the separation of husband and wife") which is based on Gemara Berachos 10a. King Chizkiya saw that he would have unworthy sons so he did not marry. The Prophet Yeshayahu chastised him for this. He said that Chizkya should not pay attention to hidden matters which only Hash-m understands properly. Instead Chizkya should fulfil the Mitzvot of the Torah without trying to figure out what will be their end result. He should perform the Mitzvah of being fruitful and mulitplying. Chizkya did not know that the righteous King Yoshiyahu would also be from his descendants. A similar thing happened to the children of Yisrael in Egypt. They thought they were in a very lowly state and nothing good would come of them, but Hash-m knew that they would attain a great level of Propehcy; that even a simple maidservant would see at the Parting of the Yam Soof, what the Prophet Yechezkel did not merit to see.

We can say that when R. Yishmael ben Elisha here says that according to the "Din" we should make a decree not to marry, this does not actually mean that the Beit Din actually tried to make a decree, or even thought of doing so. Rather, the word "Din" means "according to logic". According to human logic, there is no point having children in such a situation. But the Halacha does not always follow people's logic. Rather, we have to carry out the Mitzvot of the Torah and Hash-m will help us so that things work out in the best pssoible way for us.

Dovid Bloom

1) There is a problem with the above answer; namely that the decree of R. Yishmael is cited by the practical Halachic authorities. The earliest source that I know for this is in one of the Rishonim, the Mordecai in Yevamos. This is printed at the back of the Gemara, after the Rif. It is at the end of #50 in the Mordecai. The issue is:- if a couple have been married for 10 years and are not able to have children, do we oblige them to divorce so that the husband can take a different wife and fulfil the Mitzvah of having children? One of the sources that Mordecai cites as support that we do not oblige them to divorce is our Gemara. He writes that since the Gemara says that we should really make a decree not to marry, at the very least we should not force a couple to divorce in such a case.

In addition, the Mordecai is cited on the page of the Shulchan Aruch Even Ha'Ezer in Beit Shmuel 1:6. This goes on what the Shulchan Aruch 1:3 writes that if a man does not want to get married, the Beit Din force him to do so. The Rema writes on this that nowadays the custom is not to force anyone on this. Beit Shmuel #6 cites Mordecai in the name of our Gemara as a source for this Halacha; that really Chazal should have made a Gezera not to marry at all, so at least we do not force people to marry. For the same reason, if a man who does not yet have children wants to marry a woman incapable of having children, or if a couple have been married 10 years without children, the Beit Din do not intervene.

This all contradicts what I wrote above that the Beit Din in the time of R. Yishmael ben Elisha never actually thought of making a decree against marriage. Rather, Mordecai understands our Gemara literally; that Chazal would really have wanted to make such a Gezera but the people could not live with such a Halacha.

2) I suggest a different answer to the original question. The difference between Miriam and R. Yishmael ben Elisha is what Miriam herself said that Pharoah did not make a decree on the girls. If Pharoah would have said that the girls should also be killed then Miriam would have agreed to everyone divorcing his wife (at least everyone who already had a boy and girl, as Tosfos here DH Din writes), but since the girls were not in danger Miriam said that the girls should at least be born. But she would have agreed to R. Yishmael ben Elisha's idea of making a Gezera in his times, since neither boys or girls would be able to keep the Mitzvot.

3) Spiritual danger is worse than physical danger:-

I saw a clear answer to this question in the sefer "Ha'air Eineinu" on Bava Basra, by Rav Eliezer Roth shlita (the son-in-law of Rav Yitzchak Zilberstein shlita).

He sees this answer in the words of Rashbam DH veNimtza, who writes that the seed of Avraham will cease "in a good way, and not through Akum, and Mitzvot will not be annuled any more".

The crucial point is that "Mitzvot will not be annuled any more". This was the difference between the decree of Pharoah and the decree of the Romans. Pharoah did not make a decree against Mitzvot; he made a decree on the bodies of the male children. The decree of the Romans was worse. They decreed that Jews should live without Mitzvot. To live without Mitzvot is worse than dying.

Therefore Miriam said that all the couples should remarry. The Egyptians might later on kill the boys but those still alive can still observe the Mitzvot. In the time of R. Yishmael it was worse. The Mitzvot were being annuled so it was worth making Gezera to prevent violation of Mitzvot.

4) The answer of the Chasam Sofer:-

This question is also mentioned in Chidushei Chasam Sofer here. He writes that his answer is in the way of drush.

Amram thought that he would divorce his wife and everyone would follow. That way there would be no Bnei Yisrael left, but since Hakadosh Baruch Hu has already sworn by His great Name that he will never destroy the seed of Israel, Amram knew that Hash-m would speedily bring salvation and the People of Israel would go free soon.

However, it did not quite work out like Amram thought. The Tzadikim all divorced their wives, but those in the generation on a lower spiritual level; who had less respect for Amram; did not follow his example. A situation arose where the people having children were the less desirable sorts. This was Miriam's protest to her father:- his Gezera was worse than Phroaah's because it meant that it was lowering the spiritual level of Bnei Yisrael.

R. Yishmael ben Elisha had the same thinking as Amram. He would make a Gezera to prevent children and this would speed up the redemption that Hash-m would send. R. Yishmael was not perturbed by Amram's bad experience; when the less positive people did not follow him; because he knew anyway that the public could not live with this decree.

5) R. Yishmael ben Elisha's decree was only on families who already had a boy and a girl:-

a) There is another obvious difference between Miriam's case and R. Yishmael ben Elisha's. This is based on Tosfos here DH Din.

Tosfos asks:- how could R. Yishmael go against an explicit commandment in the Torah (Bereshis 1:28) "Be fruitful and multiply"?! Tosfos answers that possibly R. Yishmael's decree would only have applied on those who had already fulfilled this Mitzvah, namely those who already had a boy and girl.

We should remember that when Amram left his wife Yocheved he also already had a boy and a girl; Aharon and Miriam. The problem was that everyone else followed Amram's example. This must have included many families who did not yet have a boy and a girl. They did not understand that the reason why Amram left Yocheved was because they already had Aharon and Miriam. This was what Miriam protested to her father; that because of what he had done a lot of families would never have children at all; not even girls who would not be thrown in the river.

If Amram would have been able to explain to the Bnei Yisrael that only families who already had a boy and girl should divorce, Miriam might not have protested, but the people did not appreciate this finer detail.

b) Now that we have seen the opinion of Tosfos, this makes a difference to my second reply. There I mentioned the opinion of the Mordecai who cites our Gemara as a source that the Beit Din do not intervene if someone, who does not yet have children, wants to marry a woman incapable of having children. Rema cites Mordecai as practical Halacha. However, the Vilna Gaon there, in Biur HaGra 1:10, disagrees with Rema. One of the reasons he does not accept the Rema's ruling is because Tosfos clearly disagrees with Mordecai.

When I wrote my second answer, I had not yet noticed that Tosfos disagrees with Mordecai. I wrote, in my first reply, that R. Yishmael did not actually want to make a decree, in practice, and I retracted from this because of the Mordecai. Now we see that according to Tosfos it was not actually a decree to have no children at all; merely not to have big families. So I may not have been so far off with my first answer, after all.

[ I may, in a further reply, cite the Aruch HaShulchan Even Ha'Ezer 1:1; that what R. Yishmael said was in the way of mourning for the situation of the Jewish people, so that we should pray for salvation, but he would not have actually made a decree. Bs'd, I think I was quite close to this with my first answer].

Summary:-

Pnei Shlomo (by the author of Kitzur Shulchan Aruch, in his chidushim on the Gemara here) asks this question and answers tersely "veYesh LeYashev"; "it is possible to resolve this question".

He does not explain how to answer the question but I think he is indicating that there are differences between the times of Amram and the times of R. Yishmael.

We can now summarize briefly, bs'd, the differences we have seen:-

1) In the time of R. Elisha the decree was to prevent Jews observing Mitzvot, which is worse than being thrown in the river.

2) The decree of the Romans was on males and females, whilst Pharoah's decree was only on males.

3) According to Tosfos, the Gezera that R. Yishmael wanted to make was only not to have more than a boy and a girl in a family, whilst the followers of Amram divorced their wives before they had any children at all.

4) I also suggested, in my first answer, that R. Yishmael did not actually intend to make such a Gezera, but rather said that, logically speaking, this is what one should do, but in reality Hash-m knows better than us what history holds in store. I now found, in Oruch HaShulchan, right at the beginning of Shulchan Aruch Even Ha'Ezer; which deals with the Halachos of marriage and divorce etc, and starts with the Mitzvah of being fruitful and multiplying; that he cites (1:1) our Gemara and writes

"what we find that Chazal say, that from the day that the decrees against the Torah increased, it would be fitting not to marry and bear children (end of "Chezkas HaBatim"); this is in the way of "Hisonenus" [this is an unusual word whose root is "Onen"; a mourner - DB]; that R. Yishamel was mourning the destruction of the Beis HaMikdahsh and the troubles that our enemies were bringing upon us, so that we should pray to Hash-m to save us".

Oruch HaShulchan is stressing, at the beginning of the section of his sefer that deals with the laws concerning bearing children, that we do not learn practical Halacha from our Gemara (with the possible exception; in periods when there is a decree against observing Mitzvot; of families who already have a boy or girl, as mentioned by Tosfos that he cites).

R. Yishmael stressed that the reason the Torah commands us to have children is so that the children will live according to the Torah, and this is what we pray for all the time.

Dovid Bloom