Latest update: May 27th, 2013
The Sons Stirred Within Her
‘The Fetus Is A Limb Of Its Mother’
Many sugyos in our tractate involve the well-known difference of opinions as to whether “a fetus is a limb (yerech) of its mother” or a separate entity.
If a fetus is a separate entity, however, how is slaughtering a pregnant animal permitted? After all, we learned in Chullin that the Torah prohibits slaughtering a mother and its child on the same day (Vayikra 22:28). If a fetus is considered a limb of its mother, the question does not arise because then the slaughterer is only killing one animal. But if the fetus is a separate entity, isn’t the slaughterer violating the prohibition of oso v’es beno?
Life Or Limb
The Rambam seems to briefly address this question by writing, “It is permitted to slaughter a pregnant animal; the fetus is a limb of its mother” (Hilchos Shechitah 12:10). Two important conclusions seem to emerge from this ruling: 1) The halacha accords with the opinion that a fetus is a limb of its mother and 2) it is forbidden to slaughter a pregnant animal according to those who maintain that a fetus is a separate entity.
The problem is that neither of these two conclusions appear correct. First, the Rambam himself writes in another place that a fetus is not a limb of its mother (see Hilchos Isurei Mizbeiach 3:12 and Mahari Kurkus, ibid). And second, from the Gemara it seems evident that both opinions permit slaughtering a pregnant animal (Bava Kama 78b; see Responsa Beis Yitzchak, E.H. 1:54:7). The Rambam’s statement, then, seems doubly contradicted. Many poskim have tried to solve these contradictions, including the Chelkas Yoav who suggested a brilliant idea.
Oso V’es Bno
Why do those who maintain that a fetus is a separate entity allow slaughtering a pregnant animal? Because the entire argument regarding a fetus concerns a fetus that has actually been born. Once a calf is born, we discuss if its present status retroactively affects its previous status and gives it independent significance. But if it is never born, everyone agrees that the fetus was, and remains, a limb of its mother.
With this explanation, the Rambam’s statement is very simple. Since the fetus of a slaughtered pregnant animal will never be born, everyone agrees that it is a limb of its mother. Hence, the Rambam rules that the mother may be slaughtered. What about a fetus that is born? The Rambam does not discuss this case in this context (cited in Avnei Nezer, Y.D., 336:7; see also Chelkas Yoav, vol. II, p. 122, and Dovev Meisharim 1:26).
Why, though, does the Rambam issue a definitive ruling on slaughtering a pregnant animal when the Gemara never does? A few poskim offer a fascinating solution. The writings of the Geonim and Rishonim indicate that a serious disagreement took place between the Chachamim and the Karaites about slaughtering a pregnant animal. The Karaites contended that a fetus is considered “offspring” (beno), quoting the pasuk, “…and the sons (habanim) agitated inside her” (Bereishis 25:22). Hence, slaughtering a pregnant animal is forbidden due to the prohibition of oso v’es b’no. The Chachamim, however, led by Rabbi Meshulam bar Rabbi Klonimus (cited in HaEshkol, III, p. 70, and in the Albeck edition, II, p. 120, and ibid. in remark 3) rejected this opinion, arguing that the children whom Rivkah later bore are only called “sons” because of their future state.
No Separation Anxiety
The Rambam considered this argument when he wrote “It is permitted to slaughter a pregnant animal; a fetus is a limb of its mother.” The Rambam did not intend to rule on the famous dispute regarding the status of a fetus. Rather, he meant to rule like the Chachamim that neither of the two Talmudic opinions maintains that the fetus of a slaughtered pregnant mother is considered “offspring.” (See Beis Yitzchak, ibid; Ohr Sameiach on the Rambam, Hilchos Shechitah, ibid; Magiah on the ‘Itur, shaar 2, Hilchos Shechitah, 28; and Torah Sheleimah, Bereishis, 25:85.)
A Fetus Is An Eiver Of Its Mother
Indeed, in the original manuscripts of the Yad Hachazakah, the Rambam’s phrasing is “It is permitted to slaughter a pregnant animal; a fetus is an eiver (limb) of its mother.” The famous Talmudic disagreement is always framed as the question of whether “a fetus is a yerech of its mother.” Hence, it seems clear that the Rambam was simply refuting the Karaites’ opinion but had no intention of ruling on the famous Talmudic dispute whether a fetus is its mother yerech or not.
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About the Author: RABBI YAAKOV KLASS, rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn, is Torah Editor of The Jewish Press. He can be contacted at email@example.com. RABBI GERSHON TANNENBAUM, rav of Congregation Bnai Israel of Linden Heights, Boro Park, Brooklyn, is the Director of Igud HaRabbanim – The Rabbinical Alliance of America.
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