Daf Yomi

An Argument with Karaites

“A Fetus that Partially Left the Womb”

(Chulin 69a)

Our daf discusses a fetus that partially left the womb. Many sugyos in Masechet Temurah involve the well-known difference of opinions as to whether “a fetus is a limb (yerech) of its mother.” In other words, is the fetus considered part of its mother, or is it a separate entity?

The question which every student may ask is: If a fetus is not a limb of its mother but is regarded as a separate body, how are we allowed to slaughter a pregnant animal? After all, we learned (infra Perek Oso v’es Beno, Chulin) about the Torah’s prohibition of “Oso v’es beno”(Vayikra 22:28): “It and its offspring you shall not slaughter on the same day.” If a fetus is a limb of its mother, we have only one animal; since the fetus is not its offspring but is like one of its limbs, we don’t have an issue of Oso v’es beno. But if a fetus is not a limb of its mother, surely it is beno, its offspring. In that case, slaughtering the mother, which involves slaughtering the mother and the fetus, should be forbidden. Why, then, is there no prohibition of “it and its offspring” when slaughtering a pregnant animal?

Indeed, none other than Rambam relates to this serious question in brief (Hilchos Shechitah 12:10): “It is permitted to slaughter a pregnant animal; the fetus is a limb of its mother.” Apparently, two important conclusions result from Rambam’s ruling: (1) The halacha is according to those who hold that a fetus is a limb of its mother, for if not so, Rambam would not base the permission to slaughter a pregnant animal on this opinion; (2) according to those who maintain that a fetus is not a limb of its mother, it is forbidden to slaughter a pregnant animal.

The trouble is that these two conclusions are explicitly contradicted. Indeed, Rambam himself adopts the halacha that a fetus is not a limb of its mother. (See Rambam, Hilchos Isurei Mizbe’ach 3:12 and Mahari Kurkus, ibid.) Second, in the Gemara (Bava Kama 78b; see Responsa Beis Yitzchak, Even HaEzer 1:54, os 7), it is evident that according to all opinions, it is permissible to slaughter a pregnant animal, even according to those who hold that a fetus is not a limb of its mother. Rambam’s statement, then, seems doubly contradicted.

Many poskim tried to solve Rambam’s statement, including Rabbi Yechiel Yehoshua of Kintzk, zt”l, author of Chelkas Yoav, who suggested the following brilliant idea.

Some Contend a Never-Born Fetus Is Its Mother’s Limb

Why do those who hold that a fetus is not a limb of its mother allow slaughtering a pregnant animal? Because the whole difference of opinion focuses on a fetus that has been born! In other words, once a calf is born, we discuss whether its present state influences its previous state and gives that independent significance. But if it is never born, all agree that it was and remains a limb of its mother. In this light, Rambam’s statement is very simple: “It is permitted to slaughter a pregnant animal; a fetus is a limb of its mother.” As this fetus will not be born, all agree that it is defined as a limb of its mother and not as its offspring, and therefore the mother may be slaughtered.

What about a fetus that was born? Was it previously a limb of its mother? Rambam did not relate to such a case in thishalacha (cited in Responsa Avnei Nezer, Yoreh De’ah 336, s.k. 7; see ibid. as to what he asks about this opinion, and see Responsa Chelkas Yoav, 2, p. 122, and Responsa Dovev Meisharim, 1:26).

“…And the Sons Agitated Inside Her”

True, we have correctly understood that Rambam’s halachos do not contradict each other, but the question is still asked as to why Rambam saw fit to rule a halacha never mentioned in the Mishna or Gemara. After all, there is no discussion as to whether we are allowed to slaughter a pregnant animal.

A few poskim found a fascinating solution. The writings of the Geonim and Rishonim indicate that a serious dispute took place between the Chachamim and the Karaites about slaughtering a pregnant animal. The Karaites contended that a fetus is considered offspring (“beno”) and even proved that from what is stated about Rivkah Imenu: “…and the sons (“habanim”) agitated inside her” (Bereishis 25:22). They therefore claimed that it is forbidden to slaughter a pregnant animal because of the prohibition of “it and its offspring.” On the other hand, the Chachamim, led by Rabbi Meshulam bar Rabbi Klonimus (cited in HaEshkol 3, p. 70, and in the Albeck edition, II, p. 120, and ibid. in remark 3) rejected this opinion because a fetus is not considered offspring, while the Torah wrote that the sons whom Rivkah later bore were only called “sons” while in utero because of their future birth.

Rambam considered this argument when he wrote that “[i]t is permitted to slaughter a pregnant animal; a fetus is a limb of its mother.” Rambam did not intend to relate to the difference of opinion as to whether a fetus is a limb of its mother, but rather meant to say that no one maintains that the fetus of a slaughtered mother is considered “offspring” since it never separated from its mother. For that purpose, Rambam used the phrase borrowed from the well-known controversy – “a fetus is a limb of its mother” (see Beis Yitzchak, ibid; Or Sameiach on the Rambam, Hilchos Shechitah, ibid; Magiah on the ‘Itur, sha’ar 2, Hilchos Shechitah, 28; and Torah Sheleimah, Bereishis, Ch. 25, os 85).

A Fetus Is an Eiver of Its Mother

Indeed, it is interesting to discover that in the original manuscripts of the Yad Hachazakah, Rambam’s phrasing is “It is permitted to slaughter a pregnant animal; a fetus is an eiver [limb] of its mother.” He did not use the terminology of those who held that view, as they referred to the fetus as a “yerech” [lit. thigh] of its mother. This is because his intention was simply to refute the Karaites’ opinion that a fetus is considered offspring before its birth.