"…you shall not defile yourselves with them, that you should be defiled by them" (Leviticus 11:43). A person must guard with much caution and alacrity against anything that possibly enters into the category of detestable [creatures], especially in these times when the atmosphere and terrestrial areas have all become polluted.
OR HA-HAYYIM, AD LOCUM
I. The Anisakis Problem and its Precursors
Fish has always been the food of choice for those concerned with matters of kashrut.1The Gemara, Bava Batra 75a, declares that in the eschatological era God will prepare a feast for the righteous at which the Leviathan will be served. R. Elijah Levita, known as R. Elijah Baḥur, Tishbi, s.v. Yukhnah, records a tradition to the effect that both the Leviathan and the shor ha-bar, a legendary wild ox, will be featured at this banquet. A folk witticism has it that the Leviathan will be available to those who will request fish since even then they will be unwilling to rely upon the kashrut of the meat. Unlike meat, that not only must be slaughtered, porged, soaked and salted in accordance with the myriad provisions of Halakhah, any fish having fins and scales may be consumed without further ado. Questions concerning the permissibility of fish which have become a staple in the diet of observant Jews are quite unsettling.
A vigorous debate has erupted among rabbinic authorities both in Israel and in the Diaspora regarding the permissibility of consuming fish known to be infested by a parasitic nematode known as Anisakis. Among the suspect species are wild salmon,2R. Moshe Mordecai Karp, Or Yisra’el, no. 54 (Tevet 5769), p. 63 and no. 56 (Tammuz 5769), p. 49, reports that wild salmon imported from Norway and Chile have not been found to be infested. Those salmon do, however, require examination for the presence of lice on the skin. cod, flounder, Alaskan sole,3Rabbi Karp, loc. cit., also reports that sole imported from Holland are free of infestation. halibut, pollack, red snapper, perch, Pacific sable, mackerel, blue whiting, herring and sardines imported from Norway and Scotland. The problem is limited to fish harvested in their natural habitats in which, in many cases, the Anisakis also thrives. Farmed fish present no problem since, due to the absence of the marine species in which Anisakis lay their eggs, Anisakis larvae have no opportunity to infest the waters in which farmed fish are raised. Farmed salmon is much less expensive, and hence more common, than wild salmon. The same is true of smoked and cured farmed salmon. However, for a number of reasons, canned salmon is usually of a wild salmon variety and have been found to be infested.4See R. Schneur Zalman Revach, Or Yisra’el, no. 56, p. 48.
By no means is this the first controversy of such nature in modern times. In recent decades there have been a number of contretemps centering upon parasites now commonly found in fish. The first such problem arose in 1978 with regard to the permissibility of sable5A similar problem was reported thereafter by R. Pesach Eliyahu Falk, Madrikh le-Bedikat Tola’im: Guide to the Inspection of Fruits and Vegetables for Insects (Gateshead, 5744), p. 92, with regard to cod, whiting and a number of other fish. As reported in “Advisory Pamphlet No. 29,” published by the British Ministry of Agriculture, fertilized eggs of parasites living in the stomach of seal pass into the sea with excreta of the seal. The eggs hatch into microscopic worms that are swallowed by a shrimp-like aquatic animal. Cod become infested by eating the shrimp-like organism or small fish containing the tiny worm. The life cycle of the organism is completed when the seal eats the infested cod. and a subsequent issue with regard to worms found in other fish, including Canadian whitefish, was debated in the late 1990s.6That problem involved a worm called Triaenophorus crassus and was quite similar to the problem involving the Anisakis. Triaenophorus thrive in the intestines of pike. The adult worm releases its eggs in the spring when the pike spawns and then dies. The microscopic eggs are released into the water by the pike. The eggs hatch into larvae known as coracidia and are covered by hair-like filaments that enable them to move in the water. Coracidia are microscopic and will perish within approximately two weeks unless consumed by another creature. Coracidia are eaten by zooplankton and evolve into a second larval stage called a procercoid. A procercoid can grow to a length of over 300 microns at which stage it is visible to a diligent observer. The procercoid will die in approximately one month unless the zooplankton is consumed by a fish.
When the zooplankton is eaten and digested by a whitefish the procercoid is released into the stomach of its host. Within hours it develops into a tiny microscopic worm. The infinitesimal worm releases enzymes that enable it to penetrate the stomach wall and embed itself in the muscle tissue of the whitefish. The whitefish reacts to the alien organism by encapsulating it within a small cyst within which the Triaenophorus crassus develops into a thin organism between four and fifteen inches in length. The worm can survive in that habitat for some three or four years but as the cyst gradually shrivels it will die without progeny. However, if the whitefish is eaten by a pike before the encysted worm dies, it will escape from the cyst and live to maturity within the viscera of the pike where it will spawn the following spring and restart the cycle. The problem was encountered when the cysts containing the worms were discovered in infested whitefish. Extensive analyses of the questions posed at those times are presented in various contributions to Or Yisra'el, no. 6 (Tevet 5757), "Kuntres ve-Yirdu be-Degat ha-Yam," pp. 137-250.
The facts surrounding the first of that series of controversies concerning parasites found in sable are described in detail by R. Samuel ha-Levi Woszner, Teshuot Shevet ha-Levi, IV, Yoreh De'ah, no. 83. As reported in the name of ichthyologists, the source of those parasites are sailfish. The parasites lay eggs in the sailfish which in turn excrete them into the ocean. The eggs (or probably larvae) are ingested by shrimp in whose intestines the parasites hatch. The shrimp, in turn, are eaten and digested by cod and sable. The parasites survive and infest the flesh of the sable.
In the earlier instances the matter was dismissed by most rabbinic scholars because of lack of empirical evidence that the parasites in question were of a category that is halakhicly forbidden.7See R. Moshe Viya, Bedikat ha-Mazon ke-Halakhah, 2nd ed. (Jerusalem, 5765), I, sha’ar sheni, chap. 3, note 22. See also idem, Or Yisra’el, no. 6 (Tevet 5757), p. 18 and R. Moshe Feinstein, cited by R. Shlomoh Gross, Mishneh Shlomoh, no. 31. Cf., however, R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, IV, no. 83, who at that time wrote that “it is impossible to resolve [the question] definitively until we know if there is support for that which these non-Jewish scientists are saying” and therefore tentatively forbade consumption of such fish. A succinct and much less tentative restrictive ruling was later published in Teshuvot Shevet ha-Levi, VII, no. 127, sec.3. Restrictive rulings were also issued by R. Yisra’el Dov Halberstam of Antwerp in an essay titled Kuntres Ve-Anokhi Tola’at, appended to his anonymously published monograph Yad le-Mikveh (n.p., 5754), as well as by R. Nathan Gestetner, Teshuvot Le-Horot Natan, IX, nos. 23-25, and R. Joseph David Weiss, dayyan of the Satmar community in Antwerp, Teshuvot Va-Ya’an David, I, no. 114. Rabbi Viya, Bedikat ha-Mazon, note 22, reports that in 1997 R. Joseph Shalom Eliashiv ruled against eating whitefish on the basis of scientific testimony demonstrating that the parasites originate outside the fish. A letter from a son of Shevet ha-Levi affirming that his father ruled against eating suspect fish is affixed to Ve-Anokhi Tola’at, p. 21. However, with regard to the current controversy concerning the Anisakis worm there is a plethora of evidence, both empirical and scientific, giving substance to the problem.8The statement signed by R. Israel Belsky, published in Hamodia, 28 Iyar 5771, p. D14, stating that the facts (meẓ’iut) have not changed is, at best, misleading. The facts may be the same but the evidence on the basis of which facts are established is indisputably different. R. Schneur Zalman Revach, head of the Machon le-Mizvot ha-Teluy'ot ba-Arez, was apparently the first to bring the Anisakis issue to the attention of rabbinic decisors. Rabbi Revach conducted a thorough investigation of the problem. He personally performed numerous examinations of infested fish and has observed the Anisakis in various stages of development. Detailed information derived from those investigations is presented by Rabbi Revach in his Tola'at Shani (Bet Uzi'el, 5767), II, Birurei Halakhah, chap. 5, reprinted in Or Yisra'el, no. 54 (Tevet 5769), pp. 34-41, and in subsequent contributions to that journal. An excellent and widely circulated, but regrettably unpublished, analysis of the problem has been authored by Rabbi Gershon Bess of Los Angeles. Many of the pertinent halakhic issues were earlier discussed by R. Yisra'el Dov Halberstam of Antwerp in Kuntres Ve-Anokhi Tola'at, included as an addendum to his anonymously published Yad Mikveh (n.p., 5754).
Fish infested by Anisakis parasites have been banned by virtually all recognized Israeli authorities, including R. Joseph Shalom Eliashiv,9See Or Yisra’el, no. 61 (Tishri 5771), p. 60. R. Nissim Karelitz,10Letter dated 7 Ḥeshvan 5770, published in Or Yisra’el, no. 61, p. 60. R. Samuel ha-Levi Woszner,11Letter dated 9 Iyar 5770, published in Or Yisra’el, ibid., p. 63, note 19. See also Or Yisra’el, no. 56, pp. 51 and 55. R. Chaim Kanievsky,12See Or Yisra’el, no. 60 (Tammuz 5770), p. 50. R. Moshe Sternbuch,13Loc. cit. R. Chaim Greineman14See Or Yisra’el, no. 54, pp. 40 and 54 as well as Or Yisra’el, no. 56, pp. 43 and 55. See also R. Schneur Zalman Revach, Tola’at Shani (Bet Uzi’el, 5767), II, 197 and 210. and R. Shlomoh Amar.15Letter of approbation published as the preface to Tola’at Shani, II, reprinted in Or Yisra’el, no. 54, p. 33. The most notable Israeli exception to this consensus is R. Moshe Landau of Bnei Brak.16See Pa’amei Ya’akov, Elul 5770. The ruling forbidding such parasites was affirmed in a statement dated 18 Iyar 5771 signed by Rabbis Eliashiv and Woszner as well as by R. Feivel Cohen, R. David Feinstein and R. Aaron Schechter and published in Hamodia, 28 Iyar 5771, p. D5 and in Yated Ne'eman, 5 Sivan 5771, p. 41. A number of American rabbinic personalities, primarily among those identified with the hasidic sector, including R. Yechezkel Roth, formerly a dayyan of the Satmar community, have ruled permissively.17See R. Yechezkel Roth, Or Yisra’el, no. 6, pp. 153-158, reprinted in idem, Emek ha-Teshuvah, IV, no. 57. That responsum was authored in 5757. However, his son, R. Moshe Roth, Or Yisra’el, no. 57 (Tishri 5770), pp. 148-154, reports that his father maintains that the arguments and conclusions pertain to the present problem as well. See also R. Asher Anshel Eckstein, a dayyan of the Belz community in the United States, Or Yisra’el, no. 54, pp. 60-62. Numerous articles representing both sides of the controversy were published in Or Yisra'el, no. 54 (Tevet 5769), pp. 18-56; no. 56 (Tammuz 5769), pp. 43-56; no. 57 (Tishri 5770), pp. 148-154; no. 58 (Tevet 5770), 146-152; no. 60 (Tammuz 5770), pp. 32-54; and no. 61 (Tishri 5771), pp. 15-72.
The life cycle of the Anisakis worm is quite remarkable. The cycle begins with mature worms present in marine mammals such as whales or dolphins. The worm deposits its eggs in the mammal. The marine mammal excretes unembryonated eggs which then slowly fall to the ocean floor. The Anisakis worms become embryonated in the water and larvae develop from the eggs. The free-swimming larvae are ingested by crustaceans, most significantly by krill, and mature within their host. The host is then consumed by a predator, e.g., a marine mammal, salmon or flounder, etc., that digests the host but not the Anisakis. The Anisakis then proceeds to encyst itself in the viscera of the host fish. Some of the parasites succeed in piercing through the walls of the visceral organs and migrate into the flesh of the fish.18See Leo M.L. Nollet and Fidel Toldra, Handbook of Seafood and Seafood Products Analysis (Boca Raton, 2010), p. 591. This occurs most frequently after the death of the host fish even though the fish is refrigerated. The parasites die only when the fish is frozen.19See Tola’at Shani, II, 192 and 198 and Ve-Anokhi Tola’at, p. 5. Parasites are killed when fish are frozen at -20° centigrade for 24 hours. See Robert E. Olson, “Marine Fish Parasites of Public Health Importance,” Seafood Quality Determination, ed. D.E. Kramer and J. Liston (Amsterdam, 1986), p. 339. See also Modern Food Microbiology, 7th edition., ed. by James M. Jay, Martin J. Loessner and David A. Golden (New York, 2005), p. 704.
In his unpublished essay, Rabbi Gershon Bess reports that worms have been found only in the intestines of a certain species of hake processed in Argentina whereas the flesh of the same fish processed in China is highly infested. In China, the fish are only partially eviscerated after being caught and are not kept in a cold state with the result that, as the fish warms, the worms migrate to the flesh.
Rabbi Bess further reports that an experiment was conducted by kashrut supervisors in Norway. Thousands of herring were frozen at -2° centigrade. Upon examination, no parasites were found in their flesh. Ten fish were left unfrozen and allowed to warm for a day after their capture. The flesh of nine of those ten herring were found to be infested with parasites.
Creatures lacking fins and scales "of all that swarms in the waters" (Leviticus 11:10) are biblically proscribed. Included in the prohibition against consuming such marine creatures are not only fish and crustaceans but also insects and the like whose natural habitat are "the seas and the rivers." Such creatures are forbidden even after having been ingested by a kosher fish but, as explained by the Gemara, Hullin 67b,20Actually, the Gemara discusses rules applying to animals but does not explicitly refer to fish. Tosafot, ad locum, state that the underlying principle applies equally to fish. similar organisms generated within an animal or the flesh of the fish are permitted. Accordingly, as recorded in Shulḥan Arukh, Yoreh De'ah 84:16, worms found within21R. Ephraim Zalman Margulies, Teshuvot Bet Efrayim,Yoreh De’ah, no. 25, writes that, even when found on the external surface of the entrails, such organisms are forbidden. See, infra, note 50 and accompanying text. the entrails22As understood by Rashi and Tosafot, the Gemara, Ḥullin 67b, indicates that such creatures are also forbidden when found in the liver or lungs of the animal or of the fish on the suspicion that they entered through the “nostrils.” Ḥiddushei R. Akiva Eger, ad locum, adds the phrase “or in the brain” reflecting the possibility that the worms might have entered through the nose and penetrated the cranial cavity. of a fish are forbidden because it is to be presumed23Pri Megadim, Siftei Da’at 84:43, indicates that such creatures are prohibited, not with certainty, but as a matter of doubt since their presence within the digestive organs strongly suggests that they originated outside the fish. This view was expressed much earlier by Issur ve-Hetter he-Arukh, sha’ar 41, sec. 15. The Gemara found no reason to assume that organisms found elsewhere within the fish originated outside the fish and hence, if found under the skin or in the flesh of the fish, they are permitted. The matter can best be categorized as an application of the principal “ka’an nimẓa ka’an ḥayah—what is found here was always here [and not elsewhere]” other than in situations in which there exists a rei’uta, or unusual factor, giving rise to suspicion of the contrary.
Consistent with that principle, Knesset ha-Gedolah, followed by Baḥ and Yam shel Shlomoh in his commentaries on Sefer ha-Terumot and on Ḥullin 3:104, concludes that worms are permitted only if found in a whole fish and upon examination it is ascertained that there is no lesion through which the worms might have entered. However, once the fish has been cut, any worms that are found are forbidden because of the fear that, in cutting the fish, they may have penetrated the flesh from the viscera. that they were earlier present in the water and were ingested by the fish, whereas such creatures, when found between the skin and flesh, or, according to most authorities,24See, however, Baḥ, Yoreh De’ah 84, Knesset ha-Gedolah, Yoreh De’ah 84:101 and Yam shel Shlomoh, Ḥullin 3:106, who permit such creatures only when found between the skin and the flesh. See infra, note 25. within the flesh of the fish itself,25Rashi identifies the “darni” explicitly permitted by the Gemara, Ḥullin 67b, as “worms found between the skin and the flesh.” Rashba, Torat ha-Bayit ha-Kaẓer, bayit slishi, sha’ar shlishi, adds the phrase “or in the flesh” and that emendation is incorporated by virtually all subsequent authorities. are permitted.26Nevertheless, when detached or separated from the fish, such worms are forbidden because of ma’arit ayin, i.e., because they appear to be forbidden creatures. Contrary to other authorities, Shakh, Yoreh De’ah 84:46, permits such creatures as long as they remain in the plate in which they are served but forbids them once they leave the plate for another surface. Cf., Pri Ḥadash, Yoreh De’ah 84:9 and Ḥokhmat Adam 38:29. Even if they develop within the fish while the fish is still alive, such creatures are regarded as having originated in the fish itself.27R. Hai Ga’on, She’iltot, Parashat Shemini, she’ilta 4, explains that, since such creatures are generated by the flesh of the fish or animal, they have the halakhic status of their progenitor.
It is generally presumed that the Gemara asserts that such creatures arise in the flesh of their host as a result of spontaneous generation. However, Rashi, Ḥullin 67b, defines the term “gavli” in the phrase mineih gavli as meaning “gadli,” i.e., “grow” or develop.” That understanding is entirely consistent with the notion that the parasites enter the flesh while yet microscopic in nature—and hence are accorded no halakhic cognizance—and later develop within the flesh. Since their existence is recognized only when they become visually perceivable within the flesh of the host, their halakhic identity is that of the host in which they “grow” or “develop.” See infra, note 57. As enunciated by the Gemara, the applicable principle is that creatures that grow from the flesh of a kosher fish or of an animal that has been slaughtered28Only worms generated in the flesh of an animal after it has been slaughtered are permitted; a worm generated in the flesh while the animal is yet alive is forbidden as “an organ torn from a living creature.” Since the worm enjoys independent animation, it is not rendered permissible by the slaughter of its host. Fish do not require slaughter and are not subject to the prohibition against an organ torn from a living creature. Hence, worms generated by the flesh of a fish, even when the fish is yet alive, are permitted. are entirely permissible.
Despite the relative clarity—in application, if not in theory–-of the principles governing the status of insects found in fish, a number of controversies arose in previous generations. Insects found on the surface of a fish are, quite understandably, presumed to have flourished in water rather than in the fish itself and hence are forbidden. R. Abraham Danzig, Hokhmat Adam 38:28, reports that, beginning in the spring and until the onset of winter, he "many times" observed the presence of worms in the mouths and ears of various species of fish, particularly hecht. During that season, rules Hokhmat Adam, fish must be examined for the presence of such worms. Hokhmat Adam further reports that, although they were not to be found in his own city of Vilna, in many locales, "fish lice" were also found to be present in the proximity of the fins and in the mouths of fish. The fish lice are described as "round as barley" with tiny black eyes placed close together. In Prague "everyone recognized them" and a well-known ban existed against consuming those fish without vigorous scraping in the area of the fins and the tail and examination behind the ears and mouth.
Nevertheless, R. Meir Arak, Teshuvot Imrei Yosher, II, no. 11, reports that, at least in some areas, many people ate carp regularly without performing such an examination despite the known presence of the lice described by Hokhmat Adam. In defending that practice, Imrei Yosher entertains the possibility that only worms found on the surface of the fish must be presumed to originate in the water that is the fish's habitat but that perhaps those found "under the scales" are more likely to be generated within the fish itself. Imrei Yosher concludes that there are grounds to permit eating such fish without examination but only if scientists will testify that the source of the worm is the flesh of the fish. Not surprisingly, there is no indication that such substantiation was forthcoming. R. Israel Jacob Klapholz, Admorei Belz, IV (Bnei Brak, 5736),118, reports that R. Aaron Rokeach refused to accept a lenient ruling reported in the name of R. Shalom Mordecai Schwadron (Maharsham) with regard to this matter and also rejected the expedient of removing the scales of the fish to examine for the presence of parasites. Moreover, when told that a respected personality, R. Saul Brock, had issued a permissive ruling, he responded to his informant by saying, "I appoint you my agent to ask him to retract his ruling."
II. The Anisakis in Light of Rambam's Stringent Ruling
Contradicting the majority of early-day authorities, Rambam, Hilkhot Ma'akhalot Assurot 2:17, rules that only worms generated in the rotting flesh of dead fish are permitted but those generated while the fish are still alive, even if the worms are found embedded in the flesh, are forbidden. As explained by Maggid Mishneh, ad locum, such worms are forbidden as a matter of doubt because of the possibility that they may have been ingested together with water and swallowed by the fish and later migrated into the flesh, whereas it is the nature of decaying tissue to generate worms.29Rambam clearly affirms the spontaneous generation of such worms. In his Sefer ha-Miẓvot, lo ta’aseh, no. 179, Rambam describes those who deny that phenomenon as “fools who have no knowledge of science.” See also Rambam, Commentary on the Mishnah, Shabbat 126b. Maggid Mishneh explains that the word "darni"30In explaining the similar position of Sefer ha-Terumot, Knesset ha-Gedolah, Yoreh De’ah 84:101, suggests that “darna” (plural, darni) is the name of a particular species that was known to the Sages to be generated by the flesh of an animal or fish but expresses uncertainty with regard to whether that statement is to be accepted paradigmatically as permitting other species regarding which that fact is not known with certainty. Migdal Oz, Hilkhot Ma’akhalot Assurot 2:17, declares that only the species known as darni are permitted. The identity of that species is unknown to us.
Teshuvot Shevet ha-Levi, IV, Yoreh De’ah, no. 83 and VII, no. 127, sec. 3, also asserts that “darna” is the name of a specific species but, unlike Migdal Oz, he regards it as a paradigm for all such species. Nevertheless, Shevet ha-Levi agrees that only creatures known with certainty to generate within the fish are permitted. See also, infra, note 57 and accompanying text.
Cf., an unpublished responsum authored by R. Pesach Eliyahu Falk, quoted by R. Levi Baum, Or Yisra’el, no. 60, p. 59, who cites Shabbat 54b, 70a and 102b in arguing that “darni” is a generic term for numerous species of worms. There is however, a variant reading in which the term “murani” (rather than “darni”) appears in the texts of Ḥullin 67b. Shulḥan Arukh, Yoreh De’ah 84:1, speaks of “worms” and hence certainly did not accept the notion that the provision is limited to a particular species. employed by the Gemara to denote permitted worms specifically refers to creatures generated in decaying flesh.31R. David Arama, in a gloss on Rambam, ad locum, published in the Shabbetai Frankel edition of the Mishneh Torah in the section titled Likkutim, explains Rambam’s position in a manner that renders forbidden even insects that are known with certainty to have been generated by the flesh of a live fish. Worms that develop in a fruit after it has been plucked are not deemed to be creatures that “creep on the earth” until they emerge from the fruit. However, if they develop while the fruit is still attached to the tree, which itself is rooted in the ground, the worms are prohibited. Similarly, asserts this authority, a fish while alive in water is “attached” to the water with the result that all insects that develop in a live fish, even if they are generated in the flesh of the fish, are forbidden because they “creep in the water,” i.e., in the fish that is regarded as attached to the water. (Cf., Yoreh De’ah 201:33 regarding ritual immersion.) Hence, only insects that develop in the flesh of the fish, i.e., after it has died, are permissible. That analysis of Rambam’s position is developed at length by R. Shlomoh Amar in his letter of approbation to Tola’at Shani, reprinted in Or Yisra’el, no. 54, pp. 30-32. According to Rambam, only creatures found in the decaying flesh of a dead organism are presumed to have been generated by that organism.32See the somewhat different explanation of Rambam offered by Teshuvot Shevet ha-Levi, IV, no. 83.
As understood by Maggid Mishneh, the controversy between Rambam and opposing authorities is limited in nature and involves no dispute with regard to any fundamental halakhic or scientific principle. All agree that organisms generated outside the animal or fish are forbidden and all accept both the principle of spontaneous generation or its equivalent and the principle that, when known to have been generated within an animal or fish, such organisms are permitted. The sole dispute is with regard to the presumption attendant upon organisms found embedded in the flesh of the animal or fish. Rambam maintains that the origin of such organisms is a matter of doubt and hence they are forbidden unless found in flesh that has begun to rot since only in that case may they be presumed to have been generated by the decaying flesh. Rambam's opponents rule that, when found in the flesh of the creature rather than in the creature's internal organs, it may be assumed that the organisms were generated within the flesh of the creature and hence are permitted.33See supra, note 23.
R. Ephraim Zalman Margulies, Teshuvot Bet Efrayim, Yoreh De'ah, no. 25, asserts that numerous early-day authorities, including Sefer ha-Terumot, no. 36; Sefer Mizvot Gadol, lo ta'aseh, no. 132; Sha'arei Dura, no. 54; and Rokeaḥ, concur in Rambam's opinion, and, for that reason, Bet Efrayim strongly leans toward ruling in accordance with Rambam's stringent view. Although Shulḥan Arukh accepts the permissive view of the many early-day authorities who disagree with Rambam, Shulḥan Arukh concludes his codification of that ruling by declaring, "There are those who forbid worms that are generated after slaughter." Be'er ha-Golah and Arukh ha-Shulḥan, ad locum, identify the anonymous authority cited by Shulḥan Arukh as Rambam. R. Moshe Mordechai Karp, in a brief monograph titled Le-Afrushei me-Issura: Be-Inyan Kashrut ha-Dagim (5770), cites Shakh, Yoreh De'ah 243: kizur klalei issur ve-hetter, sec. 5, and Kaf ha-Hayyim 243:164 who declare that whenever an authority is cited in that manner by Shulḥan Arukh, even though the normative rule is permissive, nevertheless, "a pious person should be stringent for himself." According to that view, all fish infested with parasites should be abjured even in the absence of positive evidence that the parasites are commonly imbibed by the fish from the water in which it swims. Thus, concludes Rabbi Karp, "a pious person" should abstain from eating Anisakis-infested fish regardless of how the controversy is resolved.
III. Anisakis and the Talmudic Presumption of Permissibility
The authorities who are unconcerned with regard to possible Anisakis infestation of commonly consumed fish do not accept Rambam's position. For the most part, they regard the principle formulated by the Gemara regarding spontaneous generation of insects in the flesh of fish as empirically correct, universal in nature and an irrebuttable presumption not subject to scientific challenge. They regard any challenge to that position as either bordering upon, or as actual, heresy. The many scholars who regard the problem in a serious light either maintain that the Gemara refers to a specifically named organism or do not regard the statement of the Gemara as universally applicable to all organisms and hence distinguish the Anisakis on either halakhic or empirical grounds. Some authorities declare that the principle of "nishtaneh ha-teva—nature has changed"34See, for example, Rabbi Halberstam, addenda to Ve-Anokhi Tola’at, p. 40 and Rabbi Revach, Or Yisra’el, no. 54, p. 39. is applicable and assert that, although spontaneous generation occurred in ancient times, it is no longer a reality or, alternatively, state simply that, although parasites such as Anisakis were rare in earlier ages, they have become much more common in our era.35Cf., R. Chaim ibn Attar, Or ha-Ḥayyim, Leviticus 11:43, who asserts that the incidence of “creeping things” has increased “in these times when the atmosphere and terrestrial areas have all become polluted.” Indeed, Shakh, Yoreh De'ah 84:22, states that frequency of infestation varies from place to place and from era to era.36Rabbi Halberstam, addenda to Ve-Anokhi Tola’at, p. 39, draws attention to two studies conducted in a fishing area north of Scotland, one in 1960 and one in 1972. The earlier study found an infestation rate of one and one-half percent, while the second revealed infestation in sixty percent of the fish examined. Rabbi Halberstam, addenda to Ve-Anokhi Tola'at, p. 39, attributes increased infestation in our day to present use of refrigeration enabling fish to be shipped long distances without being eviscerated.37See Allan Roepstorff, Horst Karl, Bouke Bloemsma et al., “Catch Handling and the Possible Migration of Anisakis Larvae in Herring, Clupea harengus,” Journal of Food Protection, vol. 56, no. 9 (Sept., 1993), p. 783. As noted earlier, migration of Anisakis from the intestine takes place after the death of the host.38See John W. Smith and R. Wootten, “Experimental Studies on the Migration of Anisakis Sp. Larvae (Nematoda: ascaradida) into the Flesh of Herring Clupea Harengus L.,” International Journal for Parasitology, vol. 5, no. 2 (April, 1975), pp. 133-136 and John W. Smith, “The Abundance of Anisakis simplex L.3 in the Body-cavity and Flesh of Marine Teleosts,” International Journal for Parasitology, vol. 14, no. 5 (Oct. 1984), pp. 491-495. Some scientists attribute proliferation of parasites to the warming of sea waters.39See Patricia Noguera, “Red Vent Syndrome in Wild Atlantic Salmon Salmo Salar in Scotland is Associated with Anisakis Simplex Sensu Stricto (Nematoda: Anisakidae),” Diseases of Aquatic Organisms, vol. 87, no. 3 (Dec. 3, 2009), pp. 199-215. Cf., sources cited by Harford Williams and Arlene Jones, Parasitic Worms of Fish, (London, 1994), p. 417. Accordingly, it is not surprising that changed empirical reality results in halakhic rulings differing from those applicable in circumstances that prevailed in earlier times.40For a fuller discussion of similar controversies in other contexts see chapter seven of this volume, pp. 210-217.
Rabbi Karp, Or Yisra'el no. 58, p. 147, and R. Moshe Eliezer Bloom, Or Yisra'el, no. 54, p. 20, cite numerous authorities, including Rabbenu Nissim, Rashba, Ran, Re'ah, Me'iri and Hagahot Asheri, who employ language indicating that the worms permitted by the Gemara are sanctioned only because, in the assumed circumstances, it is impossible that they might have spawned in water and subsequently have been swallowed by the fish. The Gemara declares that, were that the case, worms of the same species would also be found in the excretory organs. Thus, for example, Ran, Hullin 66b, writes, "Worms found in meat that could not possibly come from outside, but are generated from the meat, are permitted." Re'ah, loc. cit., similarly states that, "Worms found in meat in a place in which it is not possible41The notion of certainty voiced by these authorities must assuredly be understood not in the sense of logical certainty but as connoting the absence of any cogent reason for suspecting otherwise. See supra, note 23. The crucial point is that the cited statements unequivocally indicate that the rules established by the Gemara are not universal and do not apply when “certainty” is dispelled by contradictory evidence. that they came from outside" are permitted.42Cf., R. Moshe Roth, Or Yisra’el, no. 57 (Tishri 5770), pp. 153f., and R. Asher Anshel Eckstein, Or Yisra’el, no. 54, p. 61, who unconvincingly strain to interpret those authorities in a manner that renders their comments compatible with the position of other decisors. Cf., also, an unpublished responsum of Rabbi Falk cited in addenda to Ve-Anokhi Tola’at, p. 41, in which Rabbi Falk argues that these sources establish the opposite point, viz., that they declare that under no circumstances can worms found in the flesh of the fish be prohibited. His understanding leads to an argument quite similar to the argument made by other writers with regard to the terminology employed by Shulḥan Arukh 84:16. See infra, note 51 and accompanying text.
In their discussions, both Rabbi Karp and Rabbi Bloom (ibid., pp. 22-23) assert that parasites found in the flesh are permitted only because there is no evidence, and no reason to assume, that they migrated from the digestive tract. However, they cogently contend, when there are grounds to suspect otherwise, such organisms are prohibited. That view was previously formulated by R. Shlomoh Zalman Ehrenreich, Teshuvot Leḥem Shlomoh, Yoreh De'ah, no. 71, and by Rabbi Halberstam, Ve-Anokhi Tola'at, p. 7. Rabbi Karp notes that Baḥ, Yoreh De'ah 84; Knesset ha-Gedolah, Yoreh De'ah 84:101; and R. Shlomoh Luria, both in his glosses to Sha'arei Dura 47:3 and in Yam shel Shlomoh, Hullin 3:106, declare that only worms found in a previously uncut and uneviscerated fish are permitted because it is virtually impossible that the worms could have come from the water and penetrated that deeply into the fish whereas the provenance of worms found in an already opened or cut fish is indeterminable and hence such worms are forbidden. R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, IV, no. 83 and VII, no. 127, sec. 3, and R. Nathan Gestetner, Teshuvot Le-Horot Natan, IX, no. 25, similarly maintain that piscatorial organisms are permissible only when it can be determined with certainty that they were not ingested by the fish.43See infra, note 57 and accompanying text.
The identical argument is also advanced by R. Moshe Saul Klein, an associate of Rabbi Woszner, in a contribution to the symposium published in Or Yisra'el, no. 61, pp. 33-35. Rabbi Klein distinguishes the Anisakis from the worms permitted by the Sages. The permitted worms, he asserts, were sanctioned only because they are "certainly" generated within the flesh of the fish itself. Citing Teshuvot Bet Efrayim, Yoreh De'ah, no. 25, Rabbi Klein argues that such a conclusion is warranted only if evidenced by the absence of a perforation between the skeletal flesh and the internal portion of the fish through which a worm generated externally and swallowed by the fish might have migrated. According to Bet Efrayim, absence of such a perforation is required to confirm that the worm could not have bored its way through the intestinal wall. However, when Anisakis is found in the flesh, argues Rabbi Klein, absence of such a perforation is meaningless because that nematode is so tiny that any hole it created would not be of sufficient size to be perceived. As will be noted subsequently, actual presence of such holes is additional evidence of the worm's origin in the digestive tract.
IV. Parasites Found Both in the Flesh and in the Digestive Tract
Rabbi Karp makes one additional point. The Gemara speaks only of worms found in the digestive tract or in the flesh. However, all early-day authorities discuss the status of worms found either in the digestive tract, in the flesh or between the flesh and the skin. They do not directly address the situation in which the same species of worm or insect is found both in the digestive tract and in the flesh. The latter is virtually always the case with regard to Anisakis. As clearly expressed in numerous sources, worms found in the flesh are permitted because there is no reason to suspect that the worms originated outside the fish. Worms found in the digestive tract are always deemed to have come from outside the fish and to have been ingested by the fish. According to Rabbi Karp, if forbidden worms are indeed found in the digestive tract and other worms of the same species are also found in the flesh, there is certainly at least as much reason to assume that they penetrated the viscera and entered the flesh as there is to assume that they were generated within the flesh of the fish.44A direct association has been found between the number of parasites found in the viscera and the number found in the flesh, a fact that certainly suggests a common origin. See Smith and Wooten, “Experimental Studies” cited supra, note 38. Teshuvot Le-Horot Natan, IX, no. 24, sec. 12 and no. 25, reaches a similar conclusion.45That contention, however, is contradicted by one source. Hagahot Sha’arei Dura, Hilkhot Tola’im 47:2, describes certain worms that migrate from the flesh of the fish into the intestine and later return to the flesh of the fish. Hagahot Sha’arei Dura regards those worms as permissible “because it is obvious and known that such worms are generated in the flesh.” The implication is that, when found in the intestines as well as in the flesh, even the worms found in the intestine are permitted. Rabbi Halberstam, addenda to Ve-Anokhi Tola’at, p. 43, understands the reference to be to worms generally found to be in the flesh but only rarely in the intestines. That, he asserts, was accepted by Sha’arei Dura as evidence that even the worms found in the intestine originated in the flesh of the fish. Moreover, that statement is missing in many editions of Sha’arei Dura and is not quoted by later authorities who cite Sha’arei Dura. That is certainly the case in situations in which the worms are found in tissue immediately adjacent to the internal organs. Such a conclusion is even more compelling when, as is the case with regard to Anisakis, tiny holes in the intestinal wall can be observed upon examination.46See Tola’at Shani, II, 191. On page 96 of that work, Rabbi Revach reproduces a photograph clearly picturing such holes in the flesh of infested salmon. See also the photograph published in Parasitology International, described infra, note 53. Somewhat astonishingly, Rabbi Roth, cited supra, note 42, denies that, even if such perforations exist, the parasites are capable of passing through them.
In advancing an opposing position, R. Moshe Roth, Or Yisra'el, no. 57, pp. 151-153, contends that it is no more likely that worms penetrate from the digestive tract into the flesh than vice versa. Rabbi Roth asserts that the Sages assumed that such creatures, at least in a mature state, are not capable of piercing the walls of an organ in migrating from one site to another.47R. Joseph Mordecai Silver, Or Yisra’el, no. 54, pp.62ff. and no. 56, pp. 67f., concedes that parasites found in the flesh may have had their origin in the digestive tract but asserts that they migrate while yet subvisual eggs and hence are deemed to be the product of the flesh. That suggestion must be rejected in light of the evidence demonstrating that migration takes place after the death of the fish which would not allow sufficient time for the development of an egg into a mature parasite. Consequently, even if mature organisms are present in the viscera, any parasites found in the flesh of the fish, even if they are of the same species as those found in the viscera, must have developed within the flesh and hence, he declares, such creatures are permissible.48Rabbi Roth, Or Yisra’el, no. 57, p. 153, further asserts that any creature entering through the mouth of the fish will be digested by the fish. Accordingly, he understands the Gemara as postulating that worms found in the intestines either originate in the tissue of the intestine itself or, as stated by the Gemara, are imbibed “through the nostrils while the fish is asleep.” As will be shown later, that presumption is contrafactual and, moreover, there is no compelling reason to interpret the Gemara’s discussion in that manner. The authorities who rule permissively fail to address the status of an Anisakis found partially within the intestine and partially within the flesh.49See the distinction made in another context by R. Shalom Mordecai Schwadron, Da’at Torah, Yoreh De’ah 31:20, based upon the direction which the worm’s head faces.
Recognition of the ability of parasites to pierce the walls of the digestive tract is reflected in the fact that numerous authorities prohibit worms that are found between the digestive tract and surrounding muscle or skeletal tissue.50Those authorities clearly contradict the assertion of R. Israel Belsky concerning the status of worms found in the abdominal cavity as presented in his essay posted on http://www.zootorah.com/Rav_Belskys_Teshuva_about_worms_ in_fish.doc. Rabbi Belsky’s intemperate remarks concerning those who prohibit Anasakis contain the canard that the many eminent authorities who ruled permissively with regard to the same issue raised in the 1990s but more recently prohibited Anasakis did so because of misinformation now presented to them. As has been documented herein that is patently incorrect. The substantive points in that article have been discussed in the earlier published literature. The online article has now been published in Mesorah, no. 25 (Ḥeshvan, 5772), and in Rabbi Belsky’s Shulḥan ha-Levi (Modi’in Illit, 5771), Ḥelek Birurei Halakhah, no. 23. Among those are Teshuvot Bet Efrayim, Yoreh De'ah, no. 25, who forbids organisms found on the external surface of visceral organs; R. Yehudah Ayash, Leḥem Yehudah, Hilkhot Ma'akhalot Assurot 2:17, R. Chaim Pelaggi, Mo'ed le-Khol Hai 12:20 and Teshuvot Matteh Re'uven, no. 167, who declare that the entire abdominal cavity is included in the category of viscera; and R. Shlomoh Ganzfried, Kizur Shulḥan Arukh 46:43, who prohibits worms found on the internal fatty tissue of herring.
As noted earlier, the controversy actually hinges upon a contingency not addressed by the Gemara. The Gemara speaks of worms found within the digestive tract and other internal organs and of worms found in the flesh. The Gemara does not address the case of worms found simultaneously in the flesh and in internal organs. Assuming that organisms can penetrate the intestinal wall, their presence in the digestive tract compromises the presumption that identical organisms found in the flesh of the fish could not have been spawned outside the fish. Thus, as has been discussed earlier, the many authorities who refuse to sanction consumption of Anisakis-infested fish arrive at that position because they assume, as a matter of course, that all organisms present simultaneously in the viscera and the flesh are forbidden. Their opponents begin with a conflicting premise: they assume that organisms found in the flesh are permitted even when similar organisms are also present in the internal organs.
The assumption that organisms found in the flesh are always permitted and the antecedent premise that parasites cannot migrate from the viscera to the flesh are based upon a textual inference. Writing in 1957, R. Yechezkel Roth, Emek ha-Teshuvah, IV, no. 57, dismissed the possibility that parasites may penetrate the flesh of a fish on the basis of the blanket talmudic ruling declaring that all insects found in the flesh are permitted. In the immediately following responsum, no. 58, his son, R. Yitzchak Roth, presents a wide-ranging discussion of when such global talmudic statements may be regarded simply as generalizations admitting of at least rare exceptions and when they must be understood literally. Rabbi Roth asserts that there can be no universal statement of such nature that admits of an exception if erroneous application of the generalization would lead to transgression. Consequently, he concludes, the generalization could have been enunciated only if it is to be applied literally without exception.
That argument is misplaced for the simple reason that the alleged universal proposition is not talmudic in origin but is first formulated by Shulḥan Arukh, Yoreh De'ah 84:16. Moreover, as pointed out by R. Moshe Eliezer Bloom, Or Yisra'el, no. 56, p. 47, the citation of Shulḥan Arukh's statement is misconstrued.51In an earlier article, Or Yisra’el, no. 54, p. 25, Rabbi Bloom dismisses the argument based upon Shulḥan Arukh’s codification in the form of a universal rule with the comment that Shulḥan Arukh had no need to record the obvious point that the codified rule applies only in circumstances in which the underlying rationale pertains. Shulḥan Arukh rules, "All worms found in an animal, whether between the hide and the flesh or in its viscera, are forbidden. Those found in fish: in the viscera, they are forbidden; between the skin and the flesh or in the flesh, they are permitted." Shulḥan Arukh's global statement is made only with regard to animals. The word "kol," meaning "all," is noticeably absent in the portion of the ruling dealing with fish. It is certainly possible that the same generalization was intended; it is equally possible that it was not. The phraseology is simply ambiguous.
Shevet ha-Levi explains the terminology employed by Shulḥan Arukh in a somewhat different manner. Shevet ha-Levi perceives no contradiction whatsoever between scientific findings and the discussion of the Gemara, Hullin 67b. He cites Me'iri in asserting that "darna" permitted by the Gemara is the name of a particular species known to the Sages.52See supra, note 30. Since only that species is capable of generating worms in its flesh while yet alive, and since we cannot identify the darna, we must regard all fish infested by parasites as forbidden. Consequently, asserts Shevet ha-Levi, there is no controversy between Rambam and other early-day authorities, nor does Rambam contradict the Gemara in any way. Rambam, he explains, rules that worms found in a living fish are forbidden simply because we cannot identify the darna. Rambam does permit worms found in a dead fish but is careful to describe them as permissible when they "sprout before us" (hitli'ah le-faneinu) because only under those circumstances can worms be assumed to be generated by decaying tissue.
Shevet ha-Levi fully conceded that Tur and Shulḥan Arukh, in positing a general rule with regard to all marine species, disagree with regard to this point. Those authorities maintain that the rule is not limited to a specific species but is general in nature. However, Shevet ha-Levi asserts that the controversy is only with regard to the assumption that pertains in the generality of cases "but all agree that the opposite also exists," viz., species whose flesh certainly does not generate parasites and, consequently, any parasite found in such fish must have originated elsewhere. In his original discussion in 5751, Shevet ha-Levi ruled that, if the scientific evidence is corroborated, infested sable may not be consumed.
It seems to this writer that the assertion that parasites are capable of migrating from the internal organs to the flesh of the fish is supported by the discussion recorded by the Gemara, Hullin 67b. The Gemara begins its discussion by citing a dictum of Rav Shisha the son of Rav Idi to the effect that "kuki'ani" are forbidden because they originate outside the organism in which they are found. Rav Ashi rejects that view because, if that were the case, similar creatures should be found in the excretory organs as well. The Gemara later concludes that such creatures are forbidden because they might have entered through the nostrils while the animal was asleep. Hence, as both Rashi and Tosafot indicate, they are forbidden even if found in the liver or in the lungs and their absence in the excretory organs is of no significance. However, the Gemara, at the initial stage of its discussion, had no problem accepting the proposition that worms are forbidden—apparently at whatever site they may be found—provided they are also present in the viscera; an explanation of how such creatures found their way into the fish from outside the animal becomes necessary only if they are not also present in the excretory organs. That premise is not at all rejected. In a second version of that exchange recorded by the Gemara, Rav Shisha the son of Rav Idi declared "kuki'ani" to be permissible because they are generated by their host. To that assertion, Rav Ashi responded by saying, "Obviously, for, if they came from outside, they should be found in the excretory organs." Again, the clear inference is that, if the same species of insect is indeed found in the digestive system in addition to being found in the flesh, the creatures found in the flesh are also forbidden because of the strong possibility that they migrated to the flesh from the viscera.
It is at least theoretically possible to construct a crucial experiment having the potential to demonstrate that the hypothesis Rabbi Roth, Or Yisra'el, no. 57, p. 151, ascribes to the Sages, viz., that parasites cannot migrate from the viscera to the flesh, is fallacious. A quantity of farm-grown fish might be introduced into a tank of parasite-free water. It is probably possible to modify parasites genetically so that they acquire a distinctive color as has been done with various species of fish. Those genetically modified parasites would then be introduced into the tank. If, upon harvesting the fish, only such genetically modified parasites are found in the flesh of the fish, it would defy credulity to believe that those parasites arose from the flesh rather than from the water.53A less convincing form of this experiment has already been conducted. Rabbi Halberstam, Ve-Anokhi Tola’at, p. 18, reports that fish raised in water that did not harbor “shrimp,” as is generally the case with regard to fish raised in aqua culture, were found to be free of infestation. Those fish were then transferred to water in which shrimp made their habitat. A plethora of worms were subsequently found in those fish. See also Tola’at Shani, II, 192. Those who are unconvinced by that demonstration would presumably respond that, while parasites found in the digestive tract did indeed originate in the organisms upon which the fish feed, those found in the flesh were coincidentally produced by spontaneous generation. It would, however, be preposterous to attribute an identical genetic modification to mere coincidence.
A report of a similar scientific experiment appeared in Parasitology International. A quantity of hatchery-bred rainbow trout were placed in a tank. Anisakis larvae were embedded in feed pellets and fed to the trout orally immediately after preparation of the pellets. Other trout were fed larvae-free pellets as a control. The fish were maintained in the experimental tank for 35 days. During the balance of that period all trout were fed uncontaminated pellets. Fish were removed from the tank at 7, 14, 21, 28, and 35 days post-infestation. Worms were recovered both from the body cavity and muscle tissue at each of those times. Sections of body muscle were thinly sliced, pressed between two glass plates placed under a stereo-microscope and examined for the presence of larvae migrating into muscle tissue. Photographs were published showing a larva penetrating the hypaxial muscle in which the anterior end of the larva is wedged into the body muscle and the posterior end remains in the body cavity of the host fish. Also published is a picture of a histological section of infested muscles showing the presence of broken muscle tissue surrounding the Anisakis. No signs of infestation was found in the control group. See Karl Marx, A. Quiazon, Tomoyoshi Yoshinaga and Kazuo Ogawa, “Experimental Challenge of Anisakis simplex sensu strict and Anisakis pegreffi (Nemotada: Anisakidae) in Rainbow Trout and Olive Flounder,” Parasitology International (2011). Less dramatic, but far simpler and only slightly less convincing, would be an experiment requiring no more than a DNA analysis of the parasites introduced into the tank containing the fish and a subsequent DNA analysis of the parasites later found in the flesh of those fish. DNA evidence would serve to establish whether the parasites found in the flesh are genetically descended from the parasites originally placed in the water or whether they are indeed unrelated to those parasites.
V. Subvisual Organisms
As will subsequently be explained, subvisual organisms, i.e., creatures that cannot be perceived by the naked eye, are not prohibited.54See also this volume, pp. 203-217. Rejection of this basic premise is the central thesis of Rabbi Halberstam’s Kuntres Ayin Lo Ra’atah, also appended to his Yad le-Mikveh. Rabbi Halberstam’s view was earlier enunciated by Rabbi Abraham Jacob Zeleznick, Rosh Yeshiva of Yeshivat Eitz Chaim in Jerusalem, and originally published in a little-known Israeli journal. The letter is reprinted as an appendix to Ayin Lo Ra’atah, p. 36. In support of his position, Rabbi Halberstam, ibid, pp. 27-28, 31 and 44, cites terminology employed by Me’orei Or, cited by Darkei Teshuvah, Yoreh De’ah 84:59, and two works of R. Shlomoh Kluger, Teshuvot Tuv Ta’am va-Da’at, Mahadura Tinyana, Kuntres Aḥaron, no.53, and Ḥokhmat Shlomoh, Yoreh De’ah 84. [This writer has been unable to locate the source cited in Ḥokhmat Shlomoh.] He also draws a supporting inference from R. Jonathan Eibeschutz, Kereti u-Peleti, Peleti, Yoreh De’ah 100:4. Rabbi Halberstam, ibid., pp. 27f., distinguishes subvisual insects and the like from microscopic creatures found in air and water in declaring that the latter are incapable of independent locomotion. That assumption, however, is factually incorrect. Many microbes are capable of movement in their environment. Many possess a long, flexible, spiral-shaped structure known as a flagellum that pushes the microbe through its surrounding medium. See Varun Shastri, Microbes (Delhi, 2006), p. 2. It may be argued that parasites that enter the intestinal tract of the fish when they have not yet reached a state of development at which they are visible should be permitted even if they migrate to the flesh of the fish while yet in that early stage of development and grow in size. R. Pesach Eliyahu Falk, Madrikh le-Bedikat Tola'im: Guide to the Inspection of Fruits and Vegetables for Insects (Gateshead, 5744), p. 92, contends that, if no cognizance is taken of them in a subvisual state, their juridical identity is established at the time at which they do become perceivable. If so, their development within the fish should, arguably, give them the status of worms generated by the fish itself.55In an unpublished responsum, Rabbi Falk employs this thesis as a means of reconciling the statements of the Gemara with scientific rejection of spontaneous generation. According to Rabbi Falk, the Gemara, in speaking of worms being generated by the flesh of an animal, is actually referring to the genesis of halakhic recognition of their existence. See Ve-Anokhi Tola’at, p. 7. That analysis finds support in a comment of Rashi, Ḥullin 67b. See supra, note 27. Cf., however, infra, note 57. Accordingly, parasites known to have spawned outside of the fish are permitted when found in the flesh of the fish because they acquire the halakhic identity of the host fish at the time at which they become visible.56R. Moshe Viya, Or Yisra’el, no. 6, p. 180, reports that this view was endorsed by the late R. Shlomoh Zalman Auerbach and R. Ben-Zion Abba Sha’ul as well as by R. Nissim Karelitz and R. Ya’akov Fisher. Cf., the diametrically opposing view discussed infra, note 57.
If it is true that an organism acquires a halakhic identity only upon becoming visible and that this is the concept expressed in the principle mineih gavli, it should then be the case that such organisms are permitted even if found within the digestive organs. If so, the thesis might seem to be contradicted by the Gemara. Pri Megadim, Siftei Da’at 84:43, states that the Gemara forbids organisms found in the digestive tract, not because it assumes with certainty that they were generated externally and subsequently imbibed by the fish, but because, since that is a distinct possibility, they are forbidden because their status is doubtful. If so, the doubt is really a “double doubt” or sefek sefeika, and hence the organism should be permitted. The first doubt is whether the organisms were spawned outside the fish but imbibed while yet microscopic; the second doubt is whether those organisms were generated by the host itself and hence are entirely permissible. Since the Gemara explicitly prohibits such worms, it should then be concluded that the doubt predicated upon the possibility that external organisms reaching visual size are permitted was not considered precisely because such organisms are forbidden.
However, a sefek sefeika is not really present. The reason that a microscopic organism entering the fish is permissible is because it acquires halakhic identity only when becoming visible and hence is halakhically regarded as the product of its host. That is precisely the reason that creatures generated by the host itself are permitted. See supra, note 55. If so, the two doubts are shem ehad, i.e., really a single halakhic doubt that does not qualify as a sefek sefeika.
Nevertheless, it is not at all clear that this is so if the parasites develop in the intestinal tract before migrating to other parts of the fish. Worms found in the flesh are permitted because, since they feed upon the flesh, they are deemed to have been produced by the fish itself. Worms or parasites that develop in the intestinal tract presumably are nourished, not by the flesh of the fish, but by nutrients ingested by the fish and hence should have the same prohibited status as worms that originate outside the body of the fish.
More fundamentally, R. Nathan Gestetner, Le-Horot Natan, IX, no. 25, sec. 14, disputes the basic contention that the status of the parasite is determined by its location at the time it becomes visible. Le-Horot Natan asserts that, even if the parasite is subvisual at the time it migrates to the flesh of the fish, upon becoming visual it acquires the status of a prohibited creature. Le-Horot Natan argues that the reason certain worms are permitted is because, as stated by the Gemara, they are produced by the flesh of the fish. In effect, the worm and the fish are considered to be a single entity. Accordingly, although microscopic larvae are themselves not forbidden, the development of parasites from such larvae cannot be attributed to the flesh of the fish and it is only a worm whose genesis can be ascribed to the fish that may be deemed to have the status of the host. Hence, the genesis of the parasite must be ascribed to its actual progenitor even if in the earliest stage of its development it is infinitesimally small and hence not halakhically cognized.
In support of that thesis, Le-Horot Natan cites Hazon Ish, Yoreh De'ah 14:1, secs. 10 and 12, with regard to a parallel rule regarding the permissibility of creatures that spawn in "vessels." Hazon Ish comments that the rule applies "only when the hylic power of the water generates them." However, if an adult creature excreted eggs in the utensil, the organism that develops from such eggs is forbidden. That is so despite the fact that such individual eggs deposited in the utensil are certainly not visible to the naked eye.
A similar argument is advanced by Rabbi Klein, Or Yisra'el, no. 61, p. 35. Rabbi Klein asserts that the principle with regard to subvisual creatures is simply an expression of the principle "The Torah was not given to ministering angels" (Berakhot 28b) and means only that such an organism cannot be prohibited if it cannot be perceived, but does not imply that such existence is to be ignored. Accordingly, if such creatures are known to have "swarmed," even if such swarming took place while they were as yet not perceivable, those organisms are prohibited when they do become visible. Rabbi Klein reports that both R. Joseph Shalom Eliashiv and R. Samuel Woszner concur in that conclusion.
As evidence in support of that position, Rabbi Klein cites R. Jonathan Eibeschutz, Kereti u-Peleti, Peleti, Yoreh De'ah 84:5. Shulḥan Arukh, Yoreh De'ah 84:6, rules that a worm found in a fruit that has not been plucked, and hence is still attached to the ground, is forbidden provided that the worm has "crept" within the fruit. Since the fruit is still attached to the ground, the worm is regarded as having "swarmed" on the ground. Nevertheless, Shulḥan Arukh, loc. cit., rules that similar worms found under the skin of "beans and peas" are permitted because, due to the confining nature of the space in which they thrive, there is no room for them to "swarm."
Kereti u-Peleti explains that when such a worm comes into existence it is so infinitesimally small that "no eye can perceive it." At that early stage of its development the worm is capable of at least minimal movement within the host fruit. Hence, according to Kereti u-Peleti, locomotion by a "swarming creature" while it is yet subvisual renders the organism a prohibited creature when it does mature and becomes visible.57Rabbi Halberstam, Ayin Lo Ra’atah, pp. 23 and 35, maintains that a minuscule creature destined to mature to a recognizable state is forbidden while yet subvisual even according to the authorities who maintain that Halakhah does not take cognizance of subclinical entities or phenomena. Those authorities, he contends, would concede that subvisual parasites that are ingested are forbidden since they will eventually grow to a state in which they are readily perceivable. Hence, he argues, parasites spawned in water are always forbidden regardless of their size at the time of ingestion. Cf., however, Teshuvot Shevet ha-Levi, VII, no. 122. That is also the view of Rabbi Falk, Teshuvot Maḥazeh Eliyahu, no. 91, sec. 6, and of R. Moshe Sternbuch as recorded in a letter appended to Ve-Anokhi Tola’at, p. 20.
Rabbi Falk’s position, as expressed in Maḥazeh Eliyahu, can be understood as compatible with his earlier-cited explanation of why worms found in flesh are permissible only by positing the notion that, although the Torah does take cognizance of subvisual creatures that are destined to become visible, their halakhic status is determined by the nature of their subsequent visual state. If so, it does not necessarily follow that subvisual organisms spawned in water but which develop in the flesh of the fish are always forbidden as is contended by Rabbi Halberstam. Rather, if the parasite succeeds in migrating into the flesh while still in a subvisual state, its subsequent development is as a permitted creature nurtured by the flesh of a fish; hence, it was never destined to develop as a forbidden creature. Cf., Rabbi Silver, Or Yisra’el, no. 56, pp. 57f. However, if it is capable of migrating only after maturation, as is probably the case, it is forbidden as having already become a perceivable, forbidden creature in the intestines of the fish.
At issue is the nature of the principle that subclinical phenomena are to be disregarded. The concept can be understood in two distinct ways: 1) The Torah simply ignores any and all subclinical entities and phenomena and regards them as non-existent. That notion mirrors the reasoning of Resh Lakish, Yoma 73b, who maintains that a quantity of forbidden food less than the minimum for which statutory punishment is prescribed, is entirely permissible according to biblical law because, in effect, the Torah completely disregards its existence.58Rabbi Halberstam, Ayin Lo Ra’atah, pp. 27f., cites the comments of the Brisker Rav, R. Yitzchak Ze’ev Soloveitchik, Ḥiddushei Rabbeinu ha-Griz al ha-Torah (n.d.) and idem, Ḥiddushei Maran Riz ha-Levi al ha-Torah (Jerusalem, 5723), Exodus 12:2, in support of his position regarding recognition of the sub-visual state. Mekhilta 1:6, cited by Rashi, Exodus 12:2, reports that Moses was perplexed with regard to the precise time at which the new moon might be sanctified. God responded by showing him the nascent moon and declaring, “This is what you shall see and sanctify.” The Brisker Rav explains that, in replying to Moses, God announced a shi’ur, i.e., he specified the minimum arc that must be visible as a requirement for announcing the new month. That exchange, argues Rabbi Halberstam, presumes that Moses knew that the Torah generally does take cognizance of subvisual phenomena but that he was in doubt only with regard to the shi’ur for sanctification of the new moon.
That deduction is not at all warranted. As the Brisker Rav himself remarks, it would have been impossible to sanctify the new moon on the basis of sighting the moon before it becomes visible. Moses’ doubt was with regard to whether sanctification is contingent solely upon the astronomical phenomenon of the emergence of the new moon, in which case “sighting” is merely confirmatory evidence of the moon’s return to a particular point in its orbit, or whether the new month does not commence until a visible portion of the moon has emerged. When the new moon is sanctified on the basis of actual sighting, resolution of that question is of no consequence. However, when the new moon is sanctified on the basis of astronomical calculations—as was the method utilized by Hillel II in establishing a perpetual calendar—the question assumes profound significance: Is it the exposure of even a minuscule sliver of the nascent moon that should be calculated or is it the appearance, some six hours later, of a portion of the moon of sufficient size to be perceived on earth that must be calculated? God’s reply affirmed the latter to be the case. The Peirush (anonymous marginal commentary published in standard editions of the Mishneh Torah), Rambam, Hilkhot Kiddush ha-Ḥodesh 7:1, cites a commentary on Rosh ha-Shanah attributed to Rambam indicating that it is the time of possible visual appearance of the moon that must be calculated. That issue is in no way related to the general question of the halakhic status of subclinical phenomena or entities.
Nor can Mekhilta be cited as proof that events taking place in a subclinical state are not given cognizance even when their results later become perceivable. The fact that the non-perceived emergence of the nascent moon is of no import even though the moon subsequently becomes visible does not constitute evidence for that thesis. The response, “This is what you shall see and sanctify” establishes a shi’ur, namely, that the new month does not begin with the earliest emergence of the moon but commences only when a portion of the moon sufficient for it to be visible to the human eye actually emerges. 2) The phenomena are indeed recognized as real but, since the Torah was given to human beings rather than to angels, no mandate or stricture can be attendant upon such entities or phenomena59Cf., R. Ephraim Fishel Siegal, Or Yisra’el, no. 61, p. 69. There is actually a third possibility, viz., that “the Torah was not given to angels” means only that humans cannot be held accountable for what they cannot know, just as man cannot be held culpable in instances of force majeure, but, objectively speaking, such phenomena are regarded as existent. That formulation of the principle is quite correctly dismissed by R. Zevi Fried, Or Yisra’el, no. 61, p. 49 and by Rabbi Siegal, ibid., p. 68. unless and until there is perceivable evidence of such entity or occurrence.60It has been argued that genetic engineering involving the introduction of one or more genes from another citrus fruit into the seed of an etrog does not result in a halakhic murkav or hybrid because the foreign gene is microscopic at the time that genetic manipulation is undertaken. Kereti’s thesis raises the possibility that the etrog may indeed be pasul, or disqualified, if characteristics of the alien fruit become recognizable in the mature etrog. See this writer’s Bioethical Dilemmas (Southfield, Michigan, 2006), II, 213f. If all subvisual events are to be entirely ignored, the "creeping" of minuscule Anisakis is of no moment. If, however, subclinical phenomena are ignored only until there is clinical evidence of their occurrence, the "creeping" of the Anisakis, while yet microscopic, renders it a "swarming creature" at least at such time as it becomes visually perceivable.61A difficulty arises from the fact that fermentation of wine as detected by taste buds is evidence of the presence of yeast in the wine. There is no source indicating that wine is permitted only because it is explicitly sanctioned by Scripture. Cf., Ḥokhmat Adam, Binat Adam, no. 35. Yeast, however, are incapable of independent locomotion and hence are presumably not members of the prohibited class of “swarming creatures.” See Claudio Delfini and Joseph V. Formica, Wine Microbiology: Science and Technology (New York, 2001), p. 49.
An ostensively even stronger argument is formulated by Rabbi Halberstam, Ve-Anokhi Tola'at, p. 11, and by R. Ephraim Fishel Siegal, Or Yisra'el, no. 61, pp. 71-72. They contend that, even if minuscule creatures are not halakhically cognized, and, as Rabbi Falk argues, the species identity of such creatures is established at the time it becomes discernible to the naked eye, the Anisakis should nevertheless be forbidden. An Anisakis that reaches such a stage of development within crustaceans should be regarded either as a yozei of a forbidden fish62Cf., however, Ḥavvat Da’at 81:1, who maintains that there is no prohibition of yoẓei with regard to forbidden fish. See, however, Tosafot, Bekhorot 7b, s.v. rov dagim, who apparently espouse a contradictory view. See also Malbim on Leviticus 11:11. or as having acquired the identity of the species of fish of which its host is a member.63Rabbi Viya, Bedikat ha-Mazon, I, sha’ar sheni, chap. 3, note 22, rebuts that argument by citing Ḥavvat Da’at 81:2 who asserts that a fully-developed entity is not prohibited as yoẓei. However, Ḥavvat Da’at agrees that, by virtue of an entirely different scriptural derivation, identity as a member of a species is acquired by virtue of the species identity of the progenitor. If so, an organism juridically regarded as having been generated by a non-kosher creature should also acquire identity as a member of the species of its progenitor. Consistent with that assessment, Minḥat Hinnukh, no. 163, declares that, although worms that develop in the flesh of a dead animal are not prohibited as the yozei of a limb of a living animal, nevertheless, if the animal is a member of a non-kosher species, such worms are forbidden by virtue of the prohibition against eating the flesh of a non-kosher animal.64Cf., Ḥazon Ish, Yoreh De’ah 17:13. Ḥazon Ish asserts that worms that are not piresh are permissible because they are generated by a foodstuff whose identity they acquire. That view is entirely consistent with the position of R. Hai Ga’on cited supra, note 27. Ḥazon Ish, however, further declares that a worm that is not piresh is permissible only if it acquires the identity of a permissible foodstuff as evidenced by the fact that worms found in a living animal are not forbidden as ever min ha-ḥai. Hence, according to Ḥazon Ish, a worm generated by a non-kosher organism would always be treated as piresh. That ruling is recorded by Darkei Teshuvah 84:177.65See also the commentary of Malbim on Leviticus 11:11.
However, as stated earlier, worms that develop within flesh of the fish are regarded as the product of the fish because they are generated by, and feed upon, the flesh in which they are embedded. Parasites developing in the digestive tract of a non-kosher fish might be regarded as the product of partially digested food found within those organs, but not of the non-kosher fish or crustacean.
Moreover, and most significantly, it does not appear to be the case that the Anisakis are imbibed by krill only as subvisual larvae. The larvae are reported to be no smaller than 200 microns long and 14 microns wide.66See R. Zevi Fried, Or Yisra’el, no. 61, p. 54. See Jadwiga Grabda, “Studies on the Life Cycle and Morphogenesis of Anisakis simplex (Rudolphi, 1809) (Nematoda: Anisakidae) Cultured in vitro,” Acta Ichthyologica et Piscatoria, vol. 6, no. 1 (1976), pp. 133f., reports that Anisakis larvae when measured without their sheath are between 281 and 293 microns in length. The smallest reported measurements are 144 to 215 microns in length. See F. J. Adroher, D. Malagón, A. Valero et al., “In vitro Development of the Fish Parasite Hysterothylacium aduncum from the Third Larval Stage Recovered from a Host to the Third Larval Stage Hatched from the Egg,” Diseases of Aquatic Organisms, vol. 58 (Jan. 28, 2004), no. 1, p. 44. R. Moshe Viya, Bedikat Mazon ke-Halakhah, I, sha'ar sheni, chap. 2, note 6, reports that researchers in ophthalmology have established that an object five microns long and one-half micron wide can be seen at a distance of twenty-five centimeters by a person with normal vision.67See also the discussion of visibility to the naked eye, supra, pp. 210-217. It should also be noted that Anisakis as well as other parasites coil themselves within their host and thereby enhance perception of their width. If krill ingest already perceivable Anisakis,68Some researchers claim that smaller larvae perish within their hosts with the result that “only third-stage larvae longer than 4-5 mm would moult and survive in the final host.” See Marianne Kфie and H.P. Fagerholm “The Life Cycle of Contracaecum osculatum (Rudolphi, 1802) sensu stricto (Nematoda, Ascaridoidea, Anisakidae) in View of Experimental Infections,” Parasitology Research vol. 81, no. 6, (1995) p. 488. the argument for declaring such parasites permissible is entirely undermined.
VI. Scientific Evidence
The reasoning advanced by the Gemara, Hullin 67b, in permitting worms found between the skin and the flesh, viz., "they are generated from it," certainly appears to reflect reliance upon a notion of spontaneous generation. Whether that statement is to be understood literally and, if so, whether rejection of that concept by modern science has any bearing upon Halakhah, or whether the Gemara's statement should be understood as expressing a concept that is compatible with contemporary scientific theory are intriguing questions.69As noted earlier, scientific testimony not in contradiction to talmudic sources regarding the origin of various aquatic creatures was accepted by R. Meir Arak, Teshuvot Imrei Yosher, II, no. 11 and Ḥazon Ish, Yoreh De’ah 14:8. Resolution of those questions is, however, irrelevant to the points that have been made herein.70The same issues arise concerning the statement of the Gemara, Shabbat 107b, with regard to lice. For a discussion of those questions see chapter seven of this volume, pp. 222-228. In addition to possible resolutions of the issue of spontaneous generation discussed in that article R. David Sinzheim, noted for his role as president of the Sanhedrin convened by Napoleon, Minḥat Ani, ma’amar sheva ḥakirot, p. 111a, offers a rather implausible explanation of the concept “heinu reviteih” or “mineih gavli” employed by the Gemara with regard to organisms generated in stagnant water or in the flesh of animals and fish. Minḥat Ani suggests that those organisms are regarded as integral parts of their hosts because they cannot be nurtured in any other medium and hence members of those particular species are never found elsewhere. For that reason, he claims, worms found in cheese and fruit, for example, are readily recognized as different species. Those points are entirely compatible with even the most literal reading of the text and do not at all entail the slightest negation of any empirical presumption made by the Sages. Moreover, if the notion of spontaneous generation is rejected and the various theories advanced to reconcile the apparently contradictory talmudic statements with contemporary science are rejected, the resulting conclusion that, contra unequivocal dicta and precedents spanning more than two millennia, all worms and piscatorial parasites found in the flesh of fish are forbidden is compelled. To date, no rabbinic scholar has espoused such a conclusion with regard to piscatorial parasites.71See, however, R. Isaac Lampronti, Paḥad Yiẓḥak, erekh ẓeidah, with regard to the issue of kinim. To be sure, some protagonists in the modern-day controversies have been accused of harboring such predilections and certainly of rejecting talmudic teachings in favor of fidelity to science.72See, for example, R. Yekuti’el Yehudah Halberstam, the Klausenberger Rebbe, Or Yisra’el, no. 6, p. 136; R. Menasheh Klein, ibid., pp. 147ff.; R. Yechezkel Roth, ibid., p. 155, and idem, Emek ha-Teshuvah, IV, no. 57, s.v. ve-amrina; and R. Shlomoh Gross, Or Yisra’el, no. 6, p. 203. Those charges have been vigorously and vehemently denied. A fair reading of the published material exposes such charges as spurious. The authorities who prohibit consumption of fish infested with Anisakis assert simply that the Sages never claimed that all "creeping things" found in the flesh of animals or fish are spontaneously generated. Hence, in situations in which there is evidence to the contrary, such organisms must be regarded as forbidden.
Rabbi Revach strongly insists that his conclusions are in no way predicated upon reports of scientists who reject the possibility of spontaneous generation73See, in particular, Or Yisra’el, no. 54, p. 44, where Rabbi Revach describes parasites found encased in cysts within the flesh of the fish that are never found within internal organs. Rabbi Revach suggests that those organisms are the darni described by the Sages and are permissible. Indeed, Rabbi Revach, ibid., no. 56, p. 52, permits white organisms resembling grains of rice found in the flesh of “all species of sole” as conforming to the criteria for assuming that they are spontaneously generated by the fish. but are based upon his own observations of the Anisakis at various stages of development, many of which he has recorded photographically. Similarly, Rabbi Halberstam, Ve-Anokhi Tola'at, pp. 5-7, emphasizes that the available scientific information regarding Anisakis is not based upon denial of the possibility of spontaneous generation on the part of scientists but upon empirical observation. Unlike those of many parasites, the eggs of Anisakis do not survive within a predator; Anisakis survive within the body of their host only if imbibed as larvae. Hence it is not necessary to deny the phenomenon of spontaneous generation of other aquatic organisms while negating such a possibility with regard to Anisakis.
More significantly, Anisakis have never been observed in the flesh of a fish other than when Anisakis have also been found to be present in its digestive system. Since the Anisakis found in the digestive tract certainly originate outside of the fish, it is logical to conclude that creatures of the same species found in the flesh of the fish share a common origin and were also spawned outside the fish. Photographs have been taken showing individual Anisakis partially within the intestine and partially within the flesh of the host. That phenomenon establishes that, at least after the death of its host, the Anisakis is capable of migrating from the digestive tract into the flesh of the fish. Since that is a distinct possibility, even were Anisakis to be found solely in the flesh, it cannot be claimed with certainty that those organisms did not also migrate from the digestive tract.
Rabbi Roth, Or Yisra'el, no. 57, p. 151, counters that, on the basis of the statements of the Gemara, one must conclude that Anisakis never migrate from viscera to flesh and, accordingly, those found within internal organs are forbidden, whereas those found in the flesh of the same fish are permitted because they must have been generated by the flesh itself.
As recorded in Shevet ha-Levi, IV, Yoreh De'ah, no. 83, Rabbi Woszner's interlocutor, R. Shmu'el Shmelka Friedman, dayyan of the Pupa community and one of the halakhic authorities of the Central Congress of American Rabbis (Hitachdut ha-Rabbanim), advanced an interesting argument designed to render the scientific evidence moot. Rabbi Friedman assumed that larvae do not emerge from the eggs of the parasite until they are swallowed by shrimp. Since shrimp are swallowed whole by sable, the parasites never become organisms that "creep in the waters;" rather, their life cycle unfolds wholly within marine organisms.
Shevet ha-Levi regards that argument as unfounded. The same basic principles apply with regard to insect-infested fruit, i.e., an insect that develops wholly within a fruit is permissible but becomes forbidden when it emerges and "creeps upon the earth." The Gemara questions the permissibility of an insect that bores its way "from one date to another date," i.e., out of one plucked fruit and into another immediately touching fruit. In effect, the question is whether the insect is forbidden only if, at the minimum it becomes exposed to the atmosphere or whether it lacks the status of a creature that "creeps upon the earth" as long as it remains inside a fruit even if that particular fruit is not the organism's progenitor. The situation with regard to the parasite found in sable is the same: the parasite travels from one fish, viz., the shrimp, to another, viz., the sable, without exiting the body of a marine species.74Ḥazon Ish, Yoreh De’ah 14:3, asserts that the doubt expressed by the Gemara is only with regard to a worm that passes from one date to a second date that is in close proximity to the first. If, however, the second date is moved, the second date can no longer be regarded as the original, and hence natural, habitat of the worm. Rabbi Viya, op. cit., note 22, seems to suggest that, since the parasite ingested with krill will never return to its original situ, it must certainly be regarded as piresh, or as having removed itself from its place of origin. Presumably, that argument is based upon the fact that the krill is digested by its host and hence the parasite is “removed” from its original situ. However, that phenomenon certainly does not seem to constitute piresh on the part of the parasite. See infra, note 75. The question with regard to infested fruit is left unresolved by the Gemara. Since the status of such creatures remains doubtful, they are forbidden. The same principle, concludes Shevet ha-Levi, applies to marine parasites as well.75That argument is also advanced by Rabbi Halberstam, Ve-Anokhi Tola’at, pp. 10f. Rabbi Viya, loc. cit., finds reason to distinguish this case from that of a worm passing from one fruit to another. Unlike the worm which leaves its original habitat, the parasite does not initiate the change of situ but is merely within a marine creature swallowed by a larger fish. Hence the parasite has not separated itself from its natural habitat. Moreover, argues Shevet ha-Levi, the Gemara expresses doubt only with regard to a creature that passes (piresh) "from one date to another date" in which the host fruits share a common identity as members of a particular species. There is no indication of a similar doubt in a situation in which an already recognizable creature passes from one species to another,76Although Shevet ha-Levi does not cite a source, the position that an organism that passes from one species of fruit to another is prohibited as a matter of certainty was formulated by an early-day authority, R. Chaim ben Yitzchak, Teshuvot Or Zaru’a, no. 26. e.g., from a date to a fig or from a shrimp to a sable.77R. Ben-Zion Woszner, Or Yisra’el, no. 6, p. 170, suggests that the opposite is the case, i.e., that an organism that has been swallowed together with water by a fish is not to be considered as separated from its original situ. Rabbi Woszner compares that situation to that of an aquatic organism that comes to rest upon a foodstuff within the same water. An organism generated in stagnant water is permitted because it is deemed to have been generated by the water. That organism is regarded by Pri Megadim, Mishbeẓot Zahav 84:5, as possibly permissible because it may be deemed not to have been separated from its original habitat. Ḥazon Ish, Yoreh De’ah 14:3, similarly regards an aquatic organism arising in stagnant water that comes to rest upon a fish within the same body of water as not having been “separated” from its original aquatic habitat.
This writer finds the comparison elusive. The situations considered by Pri Megadim and Ḥazon Ish are ones in which the aquatic organism remains immersed in its original habitat, viz., in water; a parasite migrating from one fish to another is not in its original habitat just as a worm that passes from one date to another is no longer in its original habitat. Indeed, Ḥazon Ish explicitly states that an organism coming to rest upon a fish becomes forbidden once the fish is removed from the water.
Moreover, since the eggs hatch in the water to release free-swimming larvae,78See Ronald J. Roberts, Fish Pathology, 3rd ed. (London 2001), p. 264. the larvae consumed by the shrimp acquire the status of organisms that "swarm in the water" before being ingested by the shrimp. This factual consideration renders the exchange between Rabbi Friedman and Shevet ha-Levi entirely moot.
Rabbi Friedman further argued that, although the fertilized egg of a land creature is forbidden, the fertilized egg of an aquatic creature is not forbidden until the hatchling is exposed to the natural elements. Shevet ha-Levi counters that such considerations are germane only with regard to the status of the fertilized egg itself but that once larvae emerge from the egg their status is that of the species of which they are members.
VII. Eggs of Parasites
By far the most engaging—and most novel—argument in support of ignoring the newly-presented realia regarding the life cycle of the problematic Anisakis parasites is formulated by R. Moshe Landau, Chief Rabbi of Bnei Brak, in a contribution to the Elul 5770 issue of the Israeli Torah journal Pa'amei Ya'akov. Insofar as factual issues are concerned, Rabbi Landau dismisses the contention that delay in processing the fish experienced in contemporary circumstances allows the ingested larvae to mature, to migrate from the stomach and to penetrate the flesh of the fish whereas in earlier times fish were immediately eviscerated and the larvae disposed of together with the entrails. Rabbi Landau asserts that herring, one of the species subject to parasite infestation, were always salted for extended periods of time and that the fish were placed in salt without prior removal of internal organs because those organs enhance the taste of the herring.
Rabbi Landau's halakhic argument is based upon one salient point. The survival of the parasites in question is attributed to the manner in which they are transferred from one aquatic species to another. Larger fish prey upon smaller fish infested with live parasites. The parasites deposit eggs in the intestines of the predator. Those eggs are excreted by the larger fish together with a glob of nutrients needed to sustain the larvae upon hatching. The vast majority of those eggs fall to the floor of the ocean and are destroyed. A small percent of the eggs are consumed by krill and hatch within the krill. The krill are then consumed by larger kosher fish and the parasites make their way into the flesh of the fish brought to market. Rabbi Landau focuses upon the fact that the eggs, prior to hatching, do not have the power of locomotion and hence cannot be categorized as creatures that "creep in the water." His novel point is that the eggs of the parasite are not prohibited. Rabbi Landau notes that Sifra 4:12, as understood by Ra'avad, ad locum, establishes that secretions, skin and eggs of forbidden birds are prohibited on the basis of a pleonasm in the biblical text that records the biblical prohibition. But in a parallel statement, Sifra 4:8, according to Ra'avad, prohibits secretions of forbidden marine creatures lacking fins and scales but fails to include eggs within the ambit of that prohibition.
However, the statement of Sifra appears to be problematic. There is a general rule to the effect that any substance secreted by a forbidden creature (ha-yozei min ha-tame) is itself forbidden. If so, even absent a specific pleonasm, the eggs of all forbidden creatures, including eggs of marine parasites, would be forbidden. Rabbi Landau explains the need for a pleonasm as recorded in Sifra by citing Pri Hadash, Yoreh De'ah 103:1, and Teshuvot Ẓemaḥ Ẓedek, Yoreh De'ah, no. 63, sec. 3, who state that since insects and the like are repulsive they would not qualify as a "food" and hence would not be included in the category of forbidden species but for the fact that they are explicitly proscribed as a foodstuff despite their repugnance. That biblical prohibition, argues Rabbi Landau, applies only to the creeping creatures themselves. Since such creatures are inherently repugnant, the independent general prohibition against secretions emitted by forbidden creatures is not attendant upon creeping organisms. Hence, contends Rabbi Landau, since eggs are not enumerated by Sifra 4:8 as being explicitly prohibited, there is no basis to deem the eggs of insects and the like to be forbidden as the secretion of a forbidden creature.
Accordingly, argues Rabbi Landau, there is no reason to regard the parasites as forbidden until the eggs hatch as larvae and become organisms that "creep in the water." But, asserts Rabbi Landau, Anisakis larvae emerge only within the body of the host fish. Hence, concludes Rabbi Landau, since at no time in the course of their development did the parasites "creep in the water," there is no basis to prohibit them when found in kosher fish. The presence in the water of eggs from which the parasites develop is regarded by Rabbi Landau as inconsequential since the eggs are "disgusting" and hence are not a foodstuff.
R. Shmu'el Shmelka Friedman, Or Yisra'el, no. 61, p. 19, similarly asserts that a creature that has not actually "swarmed" in water is not forbidden. Rabbi Friedman regards the eggs of "creeping creatures" as permissible for a different reason. As explained in the Gemara, the eggs even of kosher fowl would be forbidden as yozei, i.e., as the product of a forbidden organ of a living creature, but for the fact that the Torah specifically permits consumption of eggs. As explained by Tosafot, Hullin 64a, the eggs of a member of a forbidden species would also have been included in that dispensation and are forbidden solely on the basis of a pleonasm. Since there is no similar pleonasm governing the status of eggs of insects, argues Rabbi Friedman, the prohibition of yozei does not apply; rather, the eggs of insects are included in the general exclusion of eggs from the prohibition of yozei.
However, the facts as presented in the scientific literature are somewhat at variance from the scenario described by Rabbi Landau. Rabbi Landau speaks of the deposit of "eggs" in the sea and the ingestion of the "eggs" of the parasite by krill. It appears that, as has been explained earlier, at least at the time of ingestion by krill, the nascent creatures are not eggs but have already hatched as larvae. Presumably, Rabbi Landau would counter that since larvae do not have the power of locomotion and do not "swarm in the water" their status is indistinguishable from the status of eggs. But that, too, is contrafactual. As noted earlier, larvae are animated and do propel themselves in the water. Indeed, some scientists theorize that it is the wriggling in the water that attracts the krill.
The novel points in Rabbi Landau's thesis are: 1) eggs of "swarming" creatures are not prohibited;79It should however be noted that Rambam enumerates the various species of forbidden creatures and the statutory punishment for consuming them in the first two chapters of Hilkhot Ma’akhalot Assurot. Included also, in Hilkhot Ma’akhalot Assurot 2:12, are swarming aquatic creatures. Thereupon, in Hilkhot Ma’akhalot Assurot 3:1, Rambam records the rule that “all food which is the product of any (emphasis added) of the forbidden species whose consumption is punished by flogging is likewise forbidden to be eaten on the basis of biblical law.” and 2) organisms not yet capable of independent locomotion are not "creeping things" and hence are no different from "eggs" for halakhic purposes.
There are yet other grounds to argue that larvae and "swarming creatures" hatched from eggs are not included in the category of yozei. The Gemara, Temurah 31a, declares that the prohibition of yozei is not attendant upon a bird hatched from an egg because the egg turns to mere "dust" before the embryo develops.80For an analysis of the apparently contradictory position of Tosafot, Ḥullin 62b, see this writer’s “The Problem of Identity in Rashi, Rambam and the Tosafists,” Tradition, vol. 41, no. 2 (Summer, 2008) pp. 30-42. The comment of Tosafot is germane only with regard to the question of species identity but not to the concept of yoẓei as the product of a forbidden substance. Rabbi Friedman’s discussion is somewhat puzzling. The same principle would apply to fish hatched from eggs.
Arguably, it is possible to accept Rabbi Landau's second assertion maintaining that the Anisakis is not forbidden because it does not "swarm in the water" and to apply it in practice without also accepting his primary thesis establishing that the restrictions regarding yozei do not apply to eggs or larvae of such species. Developing that argument, however, requires reformulating Rabbi Landau's thesis by predicating it upon an entirely different premise.
In comments published in Hiddushei ha-Graḥ al ha-Shas, ed. Y. Cohen (Jerusalem, 5729), Hullin 67a, the Brisker Rav, R. Yitzchak Ze'ev Soloveitchik, is quoted as espousing the position that, although identity as a member of a forbidden animal species is established by progenital relationship without regard to the presence or absence in the progeny of the anatomical criteria enumerated by Scripture, that is not the case with regard to sherazim or "swarming things." The Brisker Rav observes that Scripture neither names species forbidden as "creeping things" nor does it spell out identifying criteria. The prohibition is couched simply in the phrase "all swarming things that swarm upon the earth you shall not eat" (Leviticus 11:42). Accordingly, he argues, the fact that the organism "swarms" is the determining factor in establishing the prohibited nature of such a creature.81For further discussion of the Brisker Rav’s view see chapter seven of this volume, p. 221, note 34.
In establishing that thesis, the Brisker Rav cites an intriguing rule recorded by Rambam, Hilkhot Ma'akhalot Assurot 3:8. A single creature may be thrice prohibited, namely as 1) a swarming land creature, 2) a swarming aquatic creature and 3) a swarming flying creature. Since consumption of creatures that creep on land, swarm in water and those that fly are each prohibited by a separate negative commandment, Rambam, Hilkhot Ma'akhalot Assurot 2:23, rules that a person who consumes a land creature that reproduces in bodies of water and also sprouts wings is punished by having the statutory number of stripes administered three times. Rambam, Hilkhot Ma'akhalot Assurot 3:8, further rules that a person who consumes an unhatched bird incurs punishment for violation of the prohibition against consuming "winged swarming things that go upon all fours" (Leviticus 11:20). Even though, if eaten only upon hatching, punishment incurred in eating such a creature would be for consuming an "unclean bird," nevertheless, while yet in the egg, its appearance is that of a "swarming" creature and punishment is for consuming a "winged swarming thing."
Thus, although R. Chaim Soloveitchik is quoted as having famously declared, "A horse is a horse, not because it is a horse, but because its mother was a horse," nevertheless, a "swarming thing" is a "swarming thing" because it itself creeps and hence, arguably, only if it actually creeps. If so, as Rabbi Landau has argued, a creature acquires the status of one that "swarms in the water" only if it actually "swarms" in the water— but not if it "swarms" only within a host fish.
It is possible that the Brisker Rav would concede that the secretions— and even the eggs of—a creature that "swarms in the water" are forbidden as yozei, but would maintain that only when the egg metamorphasizes into an independently animated creature is its status dependent upon whether or not it "swarms." Alternatively, it is conceivable that the Brisker Rav might concur in the thesis that, in banning only a creature having the appearance of a "swarming thing," the Torah has obviated the stricture regarding yozei with regard to "swarming things." Of course, the objection that the larvae themselves, as distinct from eggs, are "swarming things" remains cogent.
Nevertheless, this conclusion, as well as that of Rabbi Landau, appears to be incorrect. In the above-cited ruling of Rambam, Hilkhot Ma'akhalot Assurot 3:8, regarding an unhatched embryo endowed with wings, Rambam rules that the unhatched embryo of a forbidden bird possessing wings is a sherez ha-of, i.e., a swarming bird-creature. That prohibition attaches to the unhatched creature despite the fact that its wings were never used and it never engaged in flight.82Rabbi Friedman does take note of Rambam’s ruling and somewhat implausibly distinguishes the two cases: In the case of the unhatched bird, the embryo, if left undisturbed, will hatch and actually fly; the Anisakis however, is destined to be ingested by a larger fish and will never actually “creep” in water. It might be countered that, despite the grammatical identity of the two phrases, the phrase "mi-kol sherez hamayim"(Leviticus 11:10) translates literally as "of all that swarms in water" while kol sherez ha-of (Leviticus 10:20) should be translated as "all of the swarming birds," i.e., creatures having capacity for flight but not necessarily creatures that have flown. More likely, in both the case of a sherez ha-of and in the case of a sherez ha-mayim, it is the "to'ar" (to use the terminology of the Brisker Rav), i.e., the appearance or physical characteristics of the creature that are determinative rather than the actual performance of the activity common to such creatures. Hence, any organism having the appearance of a creature that "swarms in water" would be prohibited even if that creature has not actually swarmed in water.
Moreover, the Gemara, in telling us that worms found between the skin and the flesh are permissible because they are generated by the fish itself, seems to negate the notion that only creatures that actually swarm in the water are forbidden. Were that the case, creatures originating within the fish itself would be permitted because of that reason—a reason more fundamental and more inclusive than the reason actually advanced by the Gemara, i.e., that they are generated from the flesh of the fish.83Cf., R. Ephraim Fishel Siegal, Or Yisra’el, no. 61, pp. 70-71.
VIII. Examination for Parasites
Despite his strong insistence that the creatures found in many species of fish are forbidden, Rabbi Karp, Or Yisra'el, no. 61, pp. 38-48, rules permissively with regard to consumption of herring without examination. Rabbi Karp reports that initial examination of sample quantities of herring yielded no parasites but that a second examination found thirty percent of whole herring to be infested. He quite plausibly attributes the disparity to the fact that the second examination was conducted by use of an electric light-box or blue light. That type of examination is not possible for the ordinary consumer.
The crucial consideration is that a clear majority of the fish in question are free of infestation. Nevertheless, presence of insects in a significant minority of fish, a mi'ut ha-mazui, does necessitate examination by virtue of rabbinic decree.84For a definition of “mi’ut ha-maẓui” see Bedikat ha-Mazon ke-Halakhah, I, 4:2, note 4 and this volume, supra, pp. 244-245, notes 70-72. In calculating the rate of infestation in food that constitutes the threshold level of mi’ut ha-maẓui, Teshuvot Ḥatam Sofer, Yoreh De’ah, no. 77, rules that the controlling factor is the number of fruit infested compared to the total of number of fruit rather than the number of infested receptacles versus the number of non-infested receptacles. Rabbi Karp, Or Yisra’el, no. 61, p. 47, reports that with regard to fish such as herring that are cut into pieces before serving, Rabbi Eliashiv stated that it is the number of pieces likely to be infested, rather than the number of fish that must be calculated. Rashba, Hullin 9b and Torat ha-Bayit he-Arukh, bayit sheni, sha'ar shlishi, followed by Pri Megadim, Yoreh De'ah 39:introduction, and idem, Siftei Da'at 39:2, explain that the Sages required such examination because failure to do so is comparable "to averting one's eyes from that which is forbidden." Despite the clear presence of infestation in a significant minority of fish, Rabbi Karp finds examination of the fish in question to be unnecessary for a number of reasons:
1. As has been shown earlier, insects found even in the intestines of a fish are forbidden only because of doubt with regard to their origin. Although this view is disputed by Mishkenot Ya'akov, Yoreh De'ah, no. 17, Teshuvot Bet Efrayim, Yoreh De'ah, no. 6, rules that there is no requirement to examine for the presence of something that is only doubtfully prohibited. R. Shalom Mordecai Schwadron, Da'at Torah, Yoreh De'ah 39:introduction, sec. 1 and Kanfei Yonah 31 concur in that opinion.85See additional sources cited by Darkei Teshuvah 39:3.
2. In line with Rashba's explanation that examination is required because failure to examine is tantamount to "averting one's eyes," Rabbi Karp contends that the concept of "a significant minority" applies only to a minority that, if actually present, is likely to be discerned in the normal course of eating the possibly infested foodstuff. The parasites within the fish in question, even if present, will never be perceived by a person eating the fish.
3. R. Shlomoh Kluger, Teshuvot Tuv Ta'am va-Da'at, Mahadura Tinyana, Kuntres Aḥaron, no. 53, maintains that since, as Rashba declares, the obligation to conduct an examination is because failure to do so is tantamount "to averting one's eyes," there is no obligation to search for such creatures with a magnifying glass even though, when discerned, they can be perceived with the naked eye.86See Darkei Teshuvah 39:24. His position is that, although averting one's eyes is forbidden, it is not necessary to actively enhance the possibility of discerning the presence of such creatures.
4. When examination for the presence of a mi'ut ha-mazui is not possible, no examination is required. Pri Megadim, Yoreh De'ah 39:introduction and Tevu'ot Shor 1:3, rule that examination that requires inordinate travail or inconvenience is similarly not required. Examination by means of a light-box or the like, argues Rabbi Karp, falls into that category.
Of course, none of those considerations apply in situations in which the majority of the suspected fish are known to be infested. Rabbi Karp, Or Yisra'el, no. 61, p. 47, considers such to be the case with regard to salmon and sole in particular.
R. Moshe Chaim Padwa of London, Or Yisra'el, no. 61, p. 15, finds grounds to permit eating doubtfully infested fish after they have been cooked. Taz, Yoreh De'ah 84:17, permitted consumption of baked foods containing raisins that might have been contaminated by ants on the basis of a sefek sefeika or "double doubt": 1) the presence of ants in the raisins was doubtful; 2) even if present, the ants may have been crushed in preparing the dough and hence been nullified in the much larger quantity of flour and other ingredients. However, Nekudat ha-Kesef, loc. cit., disagrees and maintains that a safek ha-ragil, i.e., doubt with regard to a forbidden substance the presence of which is "usual," does not qualify as a "doubt" for this purpose.87Cf., Ḥokhmat Adam, Binat Adam, secs. 33 and 35 and Teshuvot Ẓemaḥ Ẓedek, as cited by Darkei Teshuvah 84:123. As stated by Shakh, Yoreh De'ah 84:29, that is the case when infestation is known to have occurred in such environs. Pri Megadim, Mishbezot Zahav 84:16, comments that one should not protest if a lenient ruling has been issued in such a case in an instance of "great loss and enjoyment of Yom Tov."
IX. Concluding Observations
The Anisakis controversy is born of a confrontation between the principles governing nature accepted by the Sages and the conclusions of contemporary science. In other instances of such conflict, e.g., spontaneous generation of "kinim" versus sexual reproduction, methodology for resolving the confrontation requires that we either a) reject the findings of science as false;88See Teshuvot Rivash, no. 447; Sefer ha-Brit, I, ma’amar 14, chap. 8; and Kereti u-Peleti, Peleti,Yoreh De’ah 40:4. b) assert that Halakhah as transmitted by Moses at Sinai is predicated upon real or perceived reality at that time;89See Ḥazon Ish, Even ha-Ezer: Nashim 27:3. c) redefine the relevant talmudic statements as references to extinct or otherwise unobservable entities or phenomena; or d) redefine the talmudic concepts in a manner that renders them non-literal.
Application of these diverse methods to resolution of the Anisakis problem yields diverse results. The Gemara declares organisms found within the flesh of fish to be permissible because they are not generated outside the muscle tissue. That claim is difficult to maintain when identical organisms are also present in the digestive organs, particularly when the walls of those organs are punctured (presumably by the organisms present in the digestive tract) and the punctures are large enough to accommodate migration of those organisms. Nor is it possible to assert that the talmudic statements reflect the reality of antiquity since the talmudic discussion focuses on empirical evidence employed to determine whether the worms in question were generated outside the fish. Hence those who permit the Anisakis found in the flesh of fish are forced to ascribe the genesis of those organisms to spontaneous generation no matter how implausible that conclusion may be.
Assertion that nature has changed and that either present-day products of spontaneous generation constitute a null class or that they are unidentifiable by us would yield a diametrically opposed position. The result would be acceptance of the conclusion that all aquatic organisms presently found in any area of the fish are forbidden.
Those who forbid Anisakis and similar parasites but not other organisms assess the talmudic statements in one of two ways. Some limit the relevant talmudic presumption to organisms with regard to which there is no compelling evidence disproving the possibility of spontaneous generation and prohibit only species found both in the viscera and flesh but accept the talmudic statements as presumptive and hence controlling only where there is no compelling evidence to the contrary. They do not regard the relevant talmudic statements as universal and irrebuttable and, consequently, their conclusion prohibiting Anisakis and permitting other species is not inconsistent.
Other authorities redefine the underlying talmudic principle, not as enunciating a principle of spontaneous generation, but as a declaration that subvisual phenomena are to be disregarded. Upon redefinition of the principle, the application involves no inconsistency or difficulty whatsoever. Any and all organisms imbibed at a stage at which they can be perceived by the naked eye are forbidden. Those imbibed while not yet visible and found in the flesh of the fish, since they have no prior juridical identity, are treated as having been generated by the fish itself. Those found in the digestive tract, even if imbibed in a subvisual state, do not develop by parasitic feeding upon the flesh of the host but appropriate to themselves nutrients eaten by the fish that are found in the digestive organs and hence are treated no differently from organisms that feed in the water outside the fish.
In the opinion of this writer, the halakhic arguments of those who prohibit Anisakis-infested fish are compelling. Moreover, their resolution of the underlying confrontation serves to affirm the veracity of talmudic teaching without ignoring empirical reality and does so in a manner that is intellectually consistent.