A Halachic Stringency Imposed by Technology?
Usually, technology improves our lives in both mundane and halachic matters. For example, the problem of agunot (women unable to remarry because it is not known if their husbands are dead or alive) has been dramatically ameliorated in our generation due to vastly improved communication technologies and DNA evidence.1See Gray Matter 2 pp.114-138 and our section about the admissibility of DNA evidence in beit din. However, the emergence of ultrasound testing of pregnant women as a standard procedure might impose some restrictions upon the wives of kohanim if it reveals to them that they are carrying a male child.
A few points need to be clarified before we begin our discussion. The Torah (Vayikra 21:1) forbids kohanim to come in contact with the dead. This restriction, however, applies only to male kohanim (Sotah 23b, cited by Rashi to Vayikra 21:1). Contact with the dead includes being in the same building as a dead body (Bemidbar 19:14). 2For a summary of whether this rule prohibits kohanim from entering hospitals, see Nishmat Avraham (2:209-210). For further discussion of this issue, see Techumin (19:323-334). Although children are not personally obligated to observe this restriction, adults cannot deliberately cause even the youngest of kohanim (even an infant) to come in contact with a dead body (Mishnah Berurah 343:3 and Aruch Hashulchan Y.D. 373:1).
Thus, a pregnant wife of a kohen who discovers that her child is male might be prohibited from even entering a funeral home or any other building containing a dead body, because she thereby causes her unborn male child to come in contact with the dead. In this chapter, we shall outline both the lenient and strict approaches to this issue, about which the poskim remain divided. Our discussion is based on essays by Rav J. David Bleich, (Tradition 39:2:90-96) and Rav Zalman Nechemia Goldberg (Ateret Shlomo pp. 33-39) and on a conversation with Rav Hershel Schachter. The discussion of this issue among the poskim is extraordinarily rich, touching on many fundamental principles and disputes regarding various aspects of the halachic process.
The S’feik S’feika Argument – the Rokei’ach
Traditionally, pregnant wives of kohanim did not have to be concerned about the possibility that they might be carrying a boy. The Rokei’ach (366) articulates a leniency based on the rule of s’feik s’feika (double doubt). Although normally one must rule strictly if there is a doubt regarding a Torah-level prohibition, one may be lenient if two aspects of the situation are uncertain. We have such a double uncertainty, argues the Rokei’ach, in the case of the kohen’s wife: first, the child might be a female, and second, even if the child is a male, it might be a neifel (a non-viable child), to whom the restrictions on contact with the dead do not apply. The Shach (Y.D. 371:1) cites the Rokei’ach as normative Halachah.3The Shulchan Aruch, Rama, and Aruch Hashulchan do not raise the question of a fetus coming in contact with the dead. We shall deal with this omission later in our discussion.
Accordingly, many question whether the Rokei’ach’s leniency still applies today, when women are able to discover the gender of their unborn children at their routine sonograms. Resolving the gender of the fetus might break the first prong of the s’feik s’feika. The applicability of the Rokei’ach’s explanation is the focus of much of the debate concerning this issue.
The Strict Approach – Rav J. David Bleich
Rav Bleich focuses on a debate amongst the poskim as to whether a s’feik s’feika remains in effect if the doubt can be resolved. The Rama (Y.D. 110:9) rules leniently, but the Shach (Y.D. 110 Klalei S’feik S’feika 35:66) notes that some are strict.4This question seems to hinge upon how one understands the role of s’feik s’feika. See Rav Yosef Dov Soloveitchik’s analysis cited by Rav Schachter in the Journal of Halacha and Contemporary Society 9:158. If one believes that we treat a case of s’feik s’feika as if the leniency is conclusively correct with no safeik at all, there is no need to investigate further about either safeik. If, however, a s’feik s’feika is treated as a doubt that is resolved leniently, there might be reason to investigate one or both of the doubts, if possible. The Shach concludes that one should be strict in a case in which it is easy for one to check and there is no expense involved in resolving the doubt. Thus, since it is easy (and involves no extra cost) for a pregnant wife of a kohen to inquire as to the gender of the fetus when she undergoes her routine sonogram, it would seem that she is obligated to make this inquiry and then to avoid contact with the dead if she finds that the fetus is male.
Nonetheless, the Teshuvot Noda Biy’hudah (Y.D. 43, cited in Pitchei Teshuvah Y.D. 110:35) writes that even the strict opinion would be lenient in a case where only one prong of the double doubt can be clarified. The Pitchei Teshuvah records that Rav Akiva Eiger (Teshuvot Rav Akiva Eiger 77) and the Maharshal (cited in Teshuvot Beit Yaakov 84) agree with this approach, and he cites no dissenting opinions.
Accordingly, since only one of the prongs of the Rokei’ach’s s’feik s’feika – the fetus’ gender – can be resolved by a sonogram, the s’feik s’feika remains in effect. Hence, the wives of kohanim should not inquire as to the gender of their unborn children, thus preserving the s’feik s’feika and obviating the need to avoid contact with the dead.
Rav Bleich notes, however, that some Acharonim, including the Pri Megadim (O.C. Eishel Avraham 343:2) and Gilyon Maharsha (Y.D. 371:1), challenge the validity of the s’feik s’feika presented by the Rokei’ach. They note that Tosafot (Ketubot 9a s.v. Ve’iba’it Eima)5Tosafot’s view is cited as normative by the Shach (Y.D. 110 Klalei S’feik s’feika 33) and the Aruch Hashulchan (Y.D. 110:115). rule that a doubt can be utilized to create a legitimate s’feik s’feika only if each side is a safeik hashakul (at least a fifty percent chance of occurrence). Accordingly, while the safeik as to the gender of the fetus is a safeik hashakul, since at least fifty percent of babies are female, the safeik as to whether the baby is a neifel is not, since nefalim comprise only a very small percentage of babies.
This leads the Chatam Sofer (Teshuvot Chatam Sofer Y.D. 354, referenced in Pitchei Teshuvah Y.D. 371:1) to reinterpret the reasoning of the Rokei’ach. The principle that permits pregnant wives of kohanim to come in contact with the dead, according to the Chatam Sofer’s reading, is not s’feik s’feika. Rather, it is rov (majority): since about fifty percent of fetuses will be girls and several more will be nefalim, there is no concern for contact with the dead regarding the majority of unborn children.
Rav Bleich notes that basing this lenient ruling on rov rather than on s’feik s’feika has major repercussions. Unlike a s’feik s’feika, which remains intact even if one of the prongs can be readily resolved, one cannot rely on rov to resolve a doubt if the doubt is readily resolved upon inspection.6Investigation is not necessary in cases of s’feik s’feika, even where it would be for rov, because s’feik s’feika is a more potent tool for resolving doubt (though there is much discussion of this point, summarized by the Aruch Hashulchan Y.D. 110:96-98). In a situation in which there is a very significant minority (mi’ut hamatzui) of cases that differ from the rov, rabbinic law requires one to investigate the situation if it is possible to do so (see Rashi to Chullin 12a s.v. Pesach and Ramban, Milchamot Hashem to Chullin 4a in the pages in the Rif). Though there is some dispute as to what constitutes a mi’ut hamatzui, it is generally accepted that more than ten percent is considered a mi’ut hamatzui. 7See Teshuvot Mishkenot Yaakov 1 Y.D. 17, Teshuvot Minchat Shlomo 2:61:1, and Rav Yosef Dov Soloveitchik (cited in Nefesh Harav p. 228). Rav J.David Bleich (Tradition 41:1:56) notes that ten percent is the most widely accepted standard for this matter, though he cites alternative views. Rav Mordechai Willig also mentioned ten percent in a shiur delivered to the Rabbinical Council of America.
For example, Rav Hershel Schachter told me that if most suit jackets do not contain sha’atnez (a forbidden wool and linen mixture), but more than ten percent do,8Rav Schachter noted that this percentage varies based on the price of the suit and the country in which it is manufactured. one would be required, on a rabbinic level, to inspect a suit jacket he has purchased to see if it contains sha’atnez.9Also see the last paragraph of Teshuvot Igrot Moshe Y.D. 1:72. In our case, Rav Bleich rules that since viable males constitute a very significant minority of unborn children, a kohen’s wife would be required by rabbinic law to inquire at her sonogram whether the fetus is male. If it is, she would be required to avoid contact with the dead.10Included in this requirement is avoiding awnings of a funeral home that hang over a sidewalk, trees that overhang from a cemetery onto a sidewalk or street, and museums that house dead bodies.
Rav Bleich does, however, permit the wife to give birth in a hospital (despite the possible presence of dead bodies) because of concern for pikuach nefesh (life-threatening danger). Rav Bleich notes that Halachah always regards childbirth as a situation that constitutes such a danger (see Shabbat 128b-129a), and he marshals many recent medical studies to prove that the danger is lessened when the birth takes place in a hospital. Although there are some studies that indicate that home births with a certified professional midwife might be as safe as hospital deliveries, every individual has the halachic right to choose which health care provider and service is the better option for him or her (Shemirat Shabbat K’hilchatah 32:38). Accordingly, even if the sonogram indicates that the fetus is a boy, the kohen’s wife may choose to give birth in a hospital if she believes that it is safer to do so there.
The Lenient View – Rav Zalman Nechemia Goldberg
There are, however, many reasons to adopt a lenient approach to our issue. First, it is possible to defend the integrity of the s’feik s’feika from the question of the Pri Megadim and Gilyon Maharsha. Rav Zalman Nechemia Goldberg notes that the Gemara (Yevamot 119a) constructs a similar s’feik s’feika, although it does not specifically mention the term, in the context of the halachot of yibum and chalitzah.
Some background is necessary to understand the Gemara’s case. If a man dies childless, the Torah (Devarim 25:4-11) obligates the brother of the deceased either to marry the widow (yibum) or participate in a ceremony in which he officially declines to marry her (chalitzah). If the deceased left offspring, however, there is no obligation for his brother to perform either yibum or chalitzah. The Mishnah (Yevamot 16:1) discusses a case where a woman’s husband died childless and the deceased husband did not have a brother, thus avoiding the requirement for yibum or chalitzah. However, the deceased husband’s mother remains alive in a distant land where the wife could not communicate with her. The Mishnah teaches that the wife need not be concerned that the mother gave birth to a male child who would be required to perform yibum or chalitzah because of what may be construed as a s’feik s’feika: “Perhaps she miscarried and perhaps she gave birth to a female.” It thus appears that such a s’feik s’feika is valid.11Alternatively, the Gemara’s case could be understood as employing the principle of rov, as we noted earlier from the Chatam Sofer. Rav Zalman Nechemia Goldberg, however, understands s’feik s’feika to be merely a more potent form of rov, and thus one cannot distinguish between the two, since they are identical concepts. For further discussion of this issue, see Aruch Hashulchan Y.D. 110:96-98.
Rav Zalman Nechemia also points out that the Rivash (372, cited by the Shev Shemateta 1:18) cites this passage as a contradiction to the aforementioned Tosafot in Ketubot. The Rivash distinguishes between the two cases, explaining that a safeik pertaining to a naturally occurring event can be marshaled to construct a s’feik s’feika even if it is not a safeik hashakul. Tosafot, on the other hand, address a case in which the s’feik s’feika is based on doubts regarding how a particular person behaved. Such a doubt, according to the Rivash, can be used to create a s’feik s’feika only if it is a safeik hashakul.
Accordingly, concludes Rav Zalman Nechemia, the s’feik s’feika of the Rokei’ach is legitimate, since both doubts relate to which naturally occurring event happened, even though one prong is not a safeik hashakul. Since the Rokei’ach’s s’feik s’feika stands, a kohen’s wife may rely on the opinions that one need not resolve a s’feik s’feika, and thus she need not ask about her child’s gender at her sonogram.
Support for the Lenient View – Tum’ah Belu’ah
The Magen Avraham (343:2) wonders why the Rokei’ach finds it necessary to construct a s’feik s’feika to permit pregnant wives of kohanim to come in contact with the dead. He notes that the Gemara (Chullin 71a) teaches that something that is “swallowed” (belu’ah) in another item does not contract tum’ah (ritual impurity) from the item that surrounds it. For instance, if someone swallows a tahor (ritually pure) ring and subsequently becomes tamei, the ring remains tahor, since the person shields it from the tum’ah. Accordingly, the fetus should not become tamei even if the mother does, since the mother shields the fetus that is balu’a within her from tum’ah. The Magen Avraham concludes that he is unable to resolve his question.
The Radbaz (Chadashot 200, cited in Pitchei Teshuvah Y.D. 371:1), writing 150 years before the Magen Avraham, also asks this question. He concludes that the Rokei’ach must be speaking about a particular situation that mandates relying on such a leniency – when the woman is very close to term, and may go into labor suddenly. Since the tum’ah belu’ah leniency would cease to apply the moment the baby is born, which could happen at any time, the Rokei’ach’s s’feik s’feika is needed to justify a non-emergency visit to a place with dead bodies.
The Netiv Chaim (printed in the standard editions of the Shulchan Aruch O.C. 343) concurs with the Radbaz’s approach, and both the Chatam Sofer (Teshuvot Chatam Sofer Y.D. 354) and the Mishnah Berurah (343:3) rule in accordance with this lenient interpretation of the Radbaz. Rav Shmuel Wosner (Teshuvot Sheivet Halevi 2:205) endorses this reading of the Rokei’ach, though he notes that Rav Yaakov Emden (Teshuvot Ya’avetz 2:177) disagrees. Rav Zalman Nechemia Goldberg, based on the Mishnah Berurah’s approach, likewise rules leniently.
According to this understanding, a kohen’s wife need not be concerned about coming in contact with the dead until it appears that she is about to give birth. Even after this point, the mother may give birth in a hospital in order to minimize the danger to life during childbirth, as we discussed above.12We should note that this argument also allows a kohen to remain at home with his wife if she has miscarried (heaven forfend), even if the expired fetus will remain in her body for a short while until it is medically appropriate to remove. This is because tum’ah belu’ah also prevents the “swallowed” tum’ah from spreading outside its “container.” See also Rav Hershel Schachter’s Be’ikvei Hatzon pp. 234-235 footnote 7.
Objections to the Tum’ah Belu’ah Justification
Many Acharonim challenge the validity of the tum’ah belu’ah justification. Both Rav Elchanan Wasserman (Kovetz Shiurim 2:41) and Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:65:5-6) argue that the fetus’ safety from tum’ah does not solve the entire problem, as they claim that a kohen is prohibited to have contact with the dead even if he does not become tamei meit (ritually impure through contact with the dead) thereby. Conversely, according to this logic, a kohen may become tamei meit even though he is not considered to have come in contact with the dead.
Rav Hershel Schachter (B’ikvei Hatzon pp. 232-238) vigorously supports this view and marshals many sources to prove its correctness.13For example, Rav Schachter notes that some authorities (cited and accepted by the Rama Y.D. 369:1) allow a kohen to touch metal that has come in contact with the dead, even though Halachah gives such metal the status of the dead itself (cherev harei hu k’chalal). See Tosafot (Nazir 54b s.v. Ta Shma). Accordingly, it is not surprising that he is inclined to reject the Mishnah Berurah’s ruling, which assumes that tum’ah belu’ah is sufficient cause for leniency. Moreover, he told me that the Radbaz’s entire limitation of the Rokei’ach’s explanation does not seem to fit the straightforward reading of the words of the Rokei’ach (Rav Wosner believes otherwise), which removes the issue of tum’ah belu’ah entirely.
On the other hand, many Acharonim dispute this understanding of the prohibition for kohanim to come in contact with the dead. They believe that the prohibition is indeed focused on contracting tum’at meit. Rav Zalman Nechemia Goldberg, for example, concludes this based on Tosafot (Ketubot 28b s.v. Beit Hapras), who apply the principle of sefeik tum’ah birshut harabim tahor (an item whose purity is in doubt in a public place is assumed to be tahor) to the kohanim’s prohibition. According to Rav Elchanan and Rav Chaim Ozer, it should be forbidden for a kohen to enter an area of doubtful tum’ah in a public place, since he might in fact be coming in contact with the dead despite remaining tahor. The fact that Tosafot believe that a kohen is permitted (in some circumstances) to enter such an area simply because he is not rendered tamei, even though he might come in contact with the dead, seems to demonstrate that Tosafot do not subscribe to Rav Elchanan and Rav Chaim Ozer’s approach.
The Avnei Milu’im (82:1) objects to the approach of the Radbaz and Magen Avraham for a different reason. Only a foreign object in a body is considered belu’ah and is protected from contracting tum’ah from its host. The Avnei Milu’im argues that a fetus is not “foreign,” and therefore is not shielded by its mother from contracting tum’ah. As proof for his assertion, he cites the Gemara’s (Yevamot 78a-b) ruling that when a pregnant non-Jewish woman immerses in a mikveh to convert to Judaism, the fetus becomes Jewish along with its mother. The Gemara explains that the mother does not constitute a chatzitzah (barrier) between the baby and the mikveh water because “haynu reviteih,” this is the normal manner in which the fetus develops. The Avnei Milu’im infers that just as the mother does not separate between her fetus and the mikveh water, she also does not serve as a barrier between her fetus and tum’ah.
Rav Zalman Nechemia Goldberg, though, cites the Mishnah’s (Parah 3:2) description of the extreme measures that were taken to ensure the tahorah of the individuals who drew water for the parah adumah (red heifer) ceremony.14The only way for a person to remove himself from the status of tum’at meit is to go through a process of purification (described in Bemidbar 19:1-22) involving the ashes of the parah adumah. The Mishnah describes how women would come to specially designed homes in Yerushalayim where they would give birth and raise children who were guaranteed not to have become tamei. This Mishnah, contends Rav Zalman Nechemia, clearly indicates that the concern for tum’ah begins only at birth, as the women would come to this type of home only to give birth, not immediately after conception. Apparently, the mother does shield her fetus from tum’ah, presumably because the fetus is tum’ah belu’ah.15This inference from the Gemara also is made by the Me’iri (Sukkah 21a). To defend the Avnei Milu’im, Rav Zalman Nechemia suggests that a fetus can become tamei in utero, but loses all tum’ah when born because it emerges as a new entity (see, however, Teshuvot Binyan Tzion Hachadashot 96). He notes, however, that this answer is inadequate for the Avnei Milu’im himself, who writes (Ketzot Hachoshen 209:1)16The author of the Avnei Milu’im, Rav Aryeh Leib ben Yosef Hakohen, also wrote the Ketzot Hachoshen. that a fetus does not emerge as a new entity at birth.
Moreover, Rav Shmuel Wosner (Teshuvot Sheivet Halevi 2:205 and 6:175) adds that the Mishnah (Niddah 5:3) describes how a baby on the day it is born has the potential to become tamei. This clearly indicates that before the baby is born it does not have this potential. Rav Wosner seems to share Rav Zalman Nechemia’s view that the prohibition for a kohen to come in contact with the dead applies only in a situation where the kohen becomes tamei. Indeed, he writes that a wife of a kohen should not hesitate to give birth in a hospital despite the presence of tum’at meit. It seems that Rav Wosner would not require a kohen’s wife to inquire as to the gender of her child when she undergoes a sonogram and that he would permit a kohen’s wife to visit a hospital or funeral home even when she is pregnant.
Surprisingly, the Shulchan Aruch and Rama do not mention the Rokei’ach’s comment at all. This omission might indicate that they disagree with his basic assumption that a kohen has the potential to become tamei in utero. The Aruch Hashulchan also does not cite the Rokei’ach at all. These authorities might believe that the entire issue is moot, since a fetus cannot become tamei.
Is a Fetus a Kohen?
Another possible explanation for the silence of the Shulchan Aruch and Rama on this matter is that they do not share the Rokei’ach’s assumption that a kohen’s son is considered a kohen before he is born. Indeed, the Chatam Sofer (Teshuvot Y.D. 354) proves this from an explicit comment of the Gemara (Yevamot 67a): “A fetus in the womb of a non-kohen is not a kohen (even if the father is a kohen).” The Chatam Sofer explains that since we rule that “Ubar yerech imo,” “A fetus is considered to be a limb of the mother,” the fetus has the same status as its mother. Thus, just as the unborn child’s mother (even if she is the daughter of a kohen) is not forbidden to come in contact with the dead, the fetus is also not forbidden to be in contact with the dead. The Minchat Chinuch (263:3) also suggests that the fetus does not have the status of a kohen.17The Teshuvot Binyan Tzion Hachadashot (96) argues that even if the fetus is permitted to become tamei, it will maintain that status after it is born, whereupon, if it is a male, it will violate the prohibition. The cogency of the argument may depend on the aforementioned dispute regarding whether a kohen may become tamei meit if he does not actually come in contact with the dead. However, Rav Moshe Shternbuch (Teshuvot V’hanhagot 1:679) cites Rav Yitzchak Zev Soloveitchik as asserting that a son of a kohen is classified as a kohen even in utero. According to Rav Soloveitchik, the Gemara cited by the Chatam Sofer should not be understood as an all-embracing statement, but rather as a rule that applies uniquely to the ability of a kohen’s wife to eat terumah (the Kohen’s tithe, which a non-Kohen is strictly forbidden to consume), the subject the Gemara there discusses. The Rokei’ach apparently shares this view, since he does not advance this argument to allow a kohen’s pregnant wife to come in contact with the dead.
Conclusion
Rav Bleich concludes that a kohen’s wife must inquire at a sonogram if her unborn child is a male, and if she discovers that it is, she must avoid contact with the dead unless this poses a danger to life (such as in childbirth). However, Rav Zalman Nechemia Goldberg rules in accordance with the Mishnah Berurah that a kohen’s wife need not be concerned about tum’at meit until she is ready to give birth, a view that Rav Wosner appears to share. Rav Shternbuch even allows a wife who already knows that her child is male to come in contact with the dead until within a few days of birth, at which point we must be concerned that she suddenly will go into labor. Even after this point, Rav Shternbuch is lenient in case of need.
The lenient approach is remarkably well-founded on at least three considerations: the Rokei’ach’s s’feik s’feika, the idea that the mother shields the fetus from becoming tamei meit, and the assertion that the fetus does not have the status of a kohen. Nevertheless, Rav Schachter informs me that he is not convinced of any of these lenient approaches. Thus, kohanim and their wives must consult their Rav for a ruling regarding this matter.
Postscript
We should note that there is a well-known custom in many communities, independent of the kohanim issue, for pregnant women not to enter cemeteries.