Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat VaYechi

16 Tevet 5767

January 6, 2007

Vol.16 No.16

Sonograms and Kohanim's Wives - Part 2

by Rabbi Chaim Jachter

Introduction

Last week, we began discussing the question of whether wives of Kohanim must inquire as to the gender of their unborn child when they undergo their routine sonogram. We cited Rav Bleich's ruling that the inquiry must be made, and if the fetus is a boy, the wife must avoid contact with the dead. This possibly precludes visits to hospitals (except for when she gives birth if she feels it is safer to give birth at a hospital). We noted that Rav Zalman Nechemia Goldberg adopts a more lenient approach. We presented one major reason for leniency, and this week we shall conclude our discussion by presenting two other approaches to justify a lenient ruling.

Last week, we presented Rav Zalman Nechemia's defense of the integrity of the Sefeik Sefeika (double doubt) of the Rokeiach. The two doubts were that perhaps the fetus is female and thus not required to avoid contact with the dead, and even if it is male, perhaps it is not viable. We noted that in our case there is no requirement to investigate the situation in order to resolve the doubts that compose the Sefeik Sefeika. Thus, Rav Zalman Nechemia argues, there is no need to inquire as to the gender of the child (and the Kohen's wife is better off not knowing the gender). Recall from last week though, that Rav Bleich argues that since one of the prongs of the Rokeiach's Sefeik Sefeika can be resolved by the sonogram, one is required to investigate the matter in order to resolve the Safeik.

Justification #1 - Taharah Beluah

The Magen Avraham (343:2) wonders why the Rokeiach finds it necessary to construct a Sefeik Sefeika 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" (Beluah) in another item does not contract Tumah (impurity) from the item that surrounds it.

Thus, if someone swallows a Tahor ring and subsequently becomes Tamei, the ring remains Tahor, since the person shields it from the Tumah. Accordingly, the fetus should not become Tamei even if the mother becomes Tamei, since the mother shields the fetus that is Baluah within her from Tumah. The Magen Avraham concludes that he is unable to resolve his question.

The Radbaz (Chadashot number 200, cited in Pitchei Teshuva Y.D. 371:1; the Radbaz preceded the Magen Avraham by 150 years) also asks this question. He concludes that the Rokeiach must be speaking about a specific circumstance when a special justification is necessary, namely, when the woman is very close to giving birth and she needs to be in a place where there are dead bodies (such as a hospital or funeral home). In such circumstances, there is concern that the baby may suddenly emerge from the womb since the mother is close to term. Hence, the Rokeiach's Sefeik Sefeika is needed to justify such a visit in those circumstances.

The Netiv Chaim (printed in the standard editions of the Shulchan Aruch Orach Chaim 343) concurs with the Radbaz's approach. The Chatam Sofer (Teshuvot Y.D. 354) also concludes that the Rokeiach is relevant only at the time when the woman is ready to give birth. In fact, the Mishnah Berurah (343:3) codifies this approach to the Rokeiach's ruling. Indeed, Rav Shemuel Wosner (Teshuvot Sheivet HaLevi 2:205) endorses this reading of the Rokeiach, even though he notes that Rav Yaakov Emden (Teshuvot Yaavetz 2:177) disagrees. According to this approach, 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. Rav Zalman Nechemia Goldberg rules leniently based on the Mishnah Berurah's approach. The mother may, however, give birth in the hospital in order to minimize the danger to life during childbirth if she feels that this is the best option for her, as we discussed last week. Before birth is expected, though, Tumah is not a problem since the fetus is Beluah.

We should note that this is also justification for a Kohen to remain in his home with his wife if she has miscarried and the expired fetus will remain in her body for a short while until it is medically appropriate to remove. For further discussion of this point, see Rav Hershel Schachter's BeIkvei HaTzon pp. 234-235 footnote 7.

Objections to the Tumah Beluah Justification

This approach, however, is not shared by many Acharonim. Both Rav Elchanan Wasserman (Kovetz Shiurim 2:41) and Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:65:5-6) argue that although a male fetus is shielded from becoming Tamei because it is in its mother's womb, it nevertheless would be in violation of the prohibition of Kohanim coming in contact with the dead (recall from last week that we are forbidden from making even an infant Kohen come in contact with the dead). Rav Elchanan and Rav Chaim Ozer (who were brothers-in-law) argue that a Kohen is prohibited from having contact with the dead even if he does not become Tamei Meit. Conversely, according to this logic, a Kohen may become Tamei Meit as long as he is not considered to have come in contact with the dead.

Rav Hershel Schachter (BeIkvei HaTzon pages 232-238) vigorously supports this view and marshals many sources to prove its validity. Accordingly, it is not surprising that Rav Schachter is not inclined to rule leniently in accordance with the Mishnah Berurah's limitations of the Rokeiach. Moreover, he told me (in conversation) that the Radbaz's limitation of the Rokeiach's ruling does not seem to fit the straightforward reading of the words of the Rokeiach (Rav Wosner believes otherwise).

On the other hand, many Acharonim do not agree with this approach to the prohibition of Kohanim to come in contact with the dead. They believe that the prohibition is focused on Kohanim becoming Tamei Meit. Indeed, Rav Zalman Nechemia Goldberg concludes that Kohanim are prohibited to become Tamei Meit, based on Tosafot Ketubot 28b (s.v. Beit HaPras), who equate the prohibition of Kohanim becoming Tamei with the principle of Safeik Tumah BeReshut HaRabim Tahor (doubtful Tumah in a public place is Tahor). According to Rav Elchanan and Rav Chaim Ozer, it would have been forbidden for a Kohen to enter an area of doubtful Tumah in a public place despite the fact that the Kohen would be regarded as Tahor. The fact that Tosafot believe that a Kohen is permitted (in some circumstances) to enter a public area where there might be Tumat Meit 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 Miluim (82:1) also criticizes the approach of the Radbaz and Magen Avraham. He notes that only a foreign object in a body is considered Beluah and consequently does not contract Tumah from its host. He argues that a fetus is not "foreign," and is therefore not shielded by its mother from contracting Tumah As proof for his assertion, he cites the Gemara (Yevamot 78b) which teaches that the fetus of a non-Jewish woman who immerses in a Mikvah in order to convert to Judaism becomes Jewish along with its mother. The Gemara explains that the mother does not constitute a Chatzitzah (barrier) between the baby and the Mikvah water because "Haynu Revitei," this is the normal manner in which the fetus develops. The Avnei Miluim argues that just as the mother does not constitute a barrier in the context of immersion in a Mikvah, so too she does not serve as a barrier between her fetus and Tumah.

Rav Zalman Nechemia Goldberg, though, cites the Mishnah (Parah 3:2) that describes the extreme measures that were taken to insure that the individual who would draw the spring water for use in conjunction with the ashes of a Parah Adumah would not become Tamei. The Mishnah describes how women would come to specially designed (to avoid Tumah) homes in Yerushalayim where they would give birth and raise individuals who were guaranteed not to have become Tamei. Rav Zalman Nechemia notes that this Mishnah clearly indicates that the concern for Tumah begins only at birth, as the Mishnah does not say that the women would come to this type of home immediately after conception. We see from this Mishnah that the mother shields her fetus from Tumah because the fetus is Taharah Beluah. Rav Zalman Nechemia suggests that perhaps the Avnei Miluim believes that a fetus can become Tamei when it is in utero but loses the Tumah when born because it emerges as a new entity (see, however, Teshuvot Binyan Tzion HeChadashot number 96). Rav Zalman Nechemia notes that this answer is inadequate, since the Avnei Miluim (in his Ketzot HaChoshen 209:1) does not believe that a fetus emerges as a new entity at birth.

Moreover, Rav Shemuel Wosner (Teshuvot Sheivet HaLevi 2:205 and 6:175) notes that the Mishnah (Niddah 43b) 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 the potential to become Tamei. Rav Wosner seems to share Rav Zalman Nechemia's view that the prohibition for a Kohen to come in contact with the dead does not apply in a situation where the Kohen does not become Tamei. Indeed, Rav Wosner writes that a wife of a Kohen should not hesitate to give birth in a hospital despite the presence of Tumat Meit. Moreover, Rav Wosner clearly does not require a Kohen's wife to inquire as to the gender of her child when she undergoes a sonogram. It would seem that he would permit a Kohen's wife to visit a hospital or funeral home even when she is pregnant.

I would add that the fact that the Shulchan Aruch and Rama do not cite the Rokeiach might indicate that they do not subscribe to his basic assumption that a Kohen has the potential to become Tamei in utero. The Aruch HaShulchan also does not cite the Rokeiach at all. These authorities seem to believe that the entire issue is moot, since a fetus does not have the potential to become Tamei.

Justification #2 - Is a Fetus a Kohen?

Another explanation for the silence of the Shulchan Aruch and Rama on this matter might be the possibility that they do not share the Rokeiach's assumption that a son of a Kohen is considered a Kohen before he is born. Indeed, the Chatam Sofer (Teshuvot Y.D. 354) notes that the Gemara (Yevamot 67a) writes, "A fetus in the womb of a non-Kohen is not a Kohen (even if the father is a Kohen)." Moreover, reasons the Chatam Sofer, 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, so too the fetus is not forbidden to be in contact with the dead. The Minchat Chinuch (263:4) advances a similar idea. However, Rav Moshe Shternbuch (Teshuvot VeHanhagot 1:679) cites Rav Yitzchak Zev Soloveitchik (the Brisker Rav), who asserts that a son of a Kohen is classified as a Kohen even in utero. According to the Brisker Rav, the Gemara in Yevamot 67a should not be understood as an all-embracing statement, but rather as a rule that applies uniquely to the context of a Kohen's wife's permission to eat Terumah. The Rokeiach apparently shares this view.

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 male she must avoid contact with the dead except in case of danger to life (such as childbirth). However, Rav Zalman Nechemia Goldberg rules in accordance with the Mishnah Berurah that there is no concern for a Kohen's wife coming in contact with the dead until the time that she is ready to give birth, Rav Wosner appears to share this view. Rav Shternbuch is even more lenient, as he rules that even if the wife already knows that she is carrying a male child, she may come in contact with the dead until she is within a few days of birth. Even after this point, Rav Shterbuch is lenient in case of need.

The lenient approach is exceptionally well-founded on at least three considerations- the Rokeiach's Sefeik Sefeika, the idea that the mother shields the fetus from becoming Temei Meit, and the assertion that the fetus does not have the status of a Kohen. Rav Schachter, however, told me that he is not sure 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 among many communities that pregnant women not enter a cemetery. Rav Yehuda Amital (Rosh Yeshiva of Yeshivat Har Etzion) told me that this Minhag should be taken seriously.