An Argument With Karaites
‘A Fetus That Partially Left The Womb’
(Chullin 69a)
Our daf discusses a fetus that partially left the womb. Many sugyos in Mesechta Temurah mention the well-known difference of opinion on whether “a fetus is a thigh (yerech) of its mother” or a separate entity.
According to the opinion that a fetus is a separate body, how can one slaughter a pregnant animal considering that the Torah states, “It and its offspring you shall not slaughter on the same day” (Vayikra 22:28)? The Rambam seems to answer this question by writing (Hilchos Shechitah 12:10), “It is permitted to slaughter a pregnant animal; the fetus is a thigh of its mother.” In other words, according to the opinion that a fetus is a separate body, one, in fact, cannot slaughter a pregnant animal.
The problem is that the Rambam himself rules that a fetus is a separate entity (see Hilchos Isurei Mizbe’ach 3:12 and Mahari Kurkus, ibid). Furthermore, from the Gemara (Bava Kama 78b; see Responsa Beis Yitzchak, Even HaEzer 1:54, os 7), it is evident that slaughtering a pregnant animal is permissible according to all opinions.
A Never-Born Fetus Is Its Mother’s Limb
Rabbi Yechiel Yehoshua of Kintzk zt”l, author of Chelkas Yoav, suggested a brilliant solution to solve these problems:
The entire debate about the status of a fetus only concerns a fetus that was ultimately born. Once a calf is born, we discuss if it was previously considered independent. But if it is never born, everyone agrees that it was a thigh of its mother.
The Rambam’s statement now is very simple to understand. “It is permitted to slaughter a pregnant animal; the fetus is a thigh of its mother.” Since this fetus won’t be born, everyone agrees that it’s a thigh of its mother. What about a fetus that was born? The Rambam doesn’t address this case in this halacha (cited in Responsa Avnei Nezer, Yoreh De’ah 336:7; see also Responsa Chelkas Yoav, 2, p. 122, and Responsa Dovev Meisharim, 1:26).
‘…And The Sons Agitated Inside Her’
It still remains unclear why the Rambam rules that one may slaughter a pregnant animal, and gives a reason for this ruling, when the Mishnah and Gemara never mention it.
A few poskim offer a fascinating explanation. Writings of the Geonim and Rishonim indicate that a serious argument took place between the Chachamim and Karaites about slaughtering a pregnant animal. The Karaites contended that a fetus is considered a separate entity; that’s why Rivkah’s sons are already referred to as “sons” in her womb – “and the sons agitated inside her” (Bereishis 25:22). They therefore claimed that slaughtering a pregnant animal is forbidden because of the prohibition of “It and its offspring you shall not slaughter on the same day.”
The Chachamim, however, 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), disagreed and rejected their proof. The Torah refers to Rivkah’s children as “sons” even while they were in the womb only because they were later born.
The Rambam, of course, ruled like the Chachamim, and when he wrote, “It is permitted to slaughter a pregnant animal; a fetus is a thigh of its mother,” he didn’t mean to take a position on the classic Talmudic dispute. Rather, he meant to say that no one maintains that the fetus of a slaughtered mother is considered a separate entity since it never separated from 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 Ever of Its Mother
Interestingly, original manuscripts of the Yad Hachazakah state, “It is permitted to slaughter a pregnant animal; a fetus is an ever [limb, not thigh] of its mother.” He clearly, therefore, is not taking a stand on the classic dispute which always is formulated as “a fetus is [or is not] a yerech [thigh] of its mother.” Rather, he simply intends to refute the Karaites’ opinion that a fetus is considered “offspring” before it is born.