5785/2025
Kol Torah is proud to present the arguments made by Torah Academy of Bergen County Talmidim in their victorious performance at the 2025 Lander College Model Beis Din competition.
Introduction
“The ethics and morals involved in this decision are too complex for me. I believe they are too complex for you as well. Therefore I referred it to an old rabbi on the Lower East Side of New York. He is a great scholar, a saintly individual. He knows how to answer such questions. When he tells me, I too will know.”
These words, referring to Rav Moshe Feinstein, were reportedly uttered in 1977 by none other than Dr. C. Everett Koop, then chief of surgery at Children’s Hospital in Philadelphia, who was later to become the surgeon general of the United States during the Reagan administration. He made this statement to his staff when deliberating the ethics of a morally wrenching dilemma. Conjoined twin girls who shared one heart were born to a Kollel family in Lakewood, New Jersey. The heart had six chambers (a heart normally has four chambers) and without surgical intervention both twins would die within a year since the abnormal heart was unable to sustain both babies. The only chance of even one twin surviving was to sacrifice one twin for the other to survive. The parents brought the babies for medical care to one of the world’s leading hospitals, Children’s Hospital in Philadelphia.
This situation posed a moral and legal dilemma that needed to be resolved in many venues. Dr. Koop sought and received legal immunity from being prosecuted for the murder of a twin. Catholic doctors and nurses sought the guidance of their theologians to permit their participation in the surgery. The parents of the twins would give their consent to the surgery only if Rav Moshe Feinstein permitted sacrificing one twin to save the other. When Dr. Koop, a deeply religious man who studied Bible every day, was challenged by his staff as to the morality of killing one baby to save another, he replied that Rav Feinstein would provide the necessary moral guidance in this most difficult situation.
In the end, Rav Moshe Feinstein permitted the surgery after considerable deliberation and even fasting over this weighty matter. He did not, however, issue a written explanation for his ruling. Moreover, other great Poskim such as Rav Yaakov Kaminetsky (as reported by Professor Zev Lev in Tradition Summer 1997 p. 80) disagreed with this ruling. A number of suggestions were offered to explain Rav Moshe’s decision but none was convincing. Finally, in the Fall 1996 issue of Tradition (pp. 106-110), Rav J. David Bleich offered a convincing explanation of this ruling based on another ruling of Rav Feinstein that appears in Teshuvot Igrot Moshe Y. D. 2:60.
Issue #1 - Ein Dochin Nefesh Mipnei Nefesh
Argument Against Killing Right-Side Twin to save the Left side twin –
Normally Halachah forbids sacrificing one life to save another. This principle is articulated by the Mishnah (Ohalot Ch. 7 Mishnah 6):
A woman whose life is endangered in hard labor is permitted to have the pregnancy terminated. However, once the head of the baby has emerged, one cannot touch it as we are forbidden to kill one individual to save another [Ein Dochin Nefesh Mipnei Nefesh].
This principle is reinforced by the Talmud Yerushalmi (Terumot 8:4) which states:
If a group of individuals on a journey encounter evildoers who say to them ‘Give us one member of your group or we shall kill the rest of you’ let them all be killed and not release even one Jewish soul [Afilu Kulan Neheragin Lo Yismasru Nefesh Achat B’Yisrael].
Accordingly, not only can we not kill an individual to save the life of another individual, but we also cannot even kill an individual even to save the lives of numerous people.
Argument For Killing the Right-Side Baby to Save the Left-Side Baby
A Possible Exception to the Rule
The Yerushalmi poses a serious question on this principle from the episode related in Shmuel II Ch. 20. The Navi records the story of a “wise woman (Ishah Chachamah) of the town of Avel Beit Ma’achah” who hands over the rebel Sheva ben Bichri to King David’s general Yoav ben Tzeruyah. She did so to spare the entire town from being destroyed for harboring Sheva ben Bichri. Rav Moshe Feinstein notes that the Navi supports the actions of this woman as it refers to her with the complimentary title “Ishah Chachama”. Accordingly, the Yerushalmi is puzzled why she is complimented when she sacrificed the life of one to save the lives of others.
The Yerushalmi cites two explanations for why the case of Sheva ben Bichri differs. Rabi Yochanan explains that Sheva differs because he was designated for death by Yoav ben Tzeruyah. Reish Lakish explains that the situation of Sheva is different because according to Halachah, Sheva deserved the death penalty, as one who rebels against the king may be put to death (Rambam Hilchot Melachim 3:8).
The Rishonim debate whose opinion should be followed. The Ran (Yoma 82b) and a group of Rishonim follows Rabi Yochanan. This is not surprising since, in general, we follow Rabi Yochanan over Reish Lakish (Rabi Yochanan is the rebbe and Reish Lakish is the Talmid). Surprisingly, the Rambam (Hilchot Yesodei HaTorah 5:5) codifies Reish Lakish. The Kesef Mishnah explains that since we are dealing with a matter of Nefashot (lives) the Rambam rules strictly (the Kesef Mishneh offers two other explanations for why the Rambam follows Reish Lakish). Rashi (Sanhedrin 72b s.v. Yatza Rosho) and the Rash (Terumot 8:12) cite both Rabi Yochanan and Reish Lakish’s approaches without indicating a preference for either opinion.
The Rama (Y. D. 157:1) and the Taz (ad. loc. 7) disagree as to whether we follow Rabi Yochanan or Reish Lakish. The Rama cites Rabi Yochanan as the primary opinion and Reish Lakish as the secondary opinion. The Taz follows Reish Lakish. He even cites his father-in-law the Bach who agrees. This is fairly remarkable since most often the Taz cites his father-in-law to disagree with him. Rav Bleich argues that this remains an unresolved matter as to whether we follow Rabi Yochanan or Reish Lakish since a definitive ruling does not emerge from the Shulchan Aruch and its primary commentaries. The Vilna Gaon (Yoreh Dei’ah 157:16) and Chochmat Adam (88:15), however, codify the Rama, presenting Rabi Yochanan as the primary opinion.
Following the Chochmat Adam – regarded as a Poseik Acharon (a later Posek having the final say) - one could argue that since the right-side twin had no chance of long-term survival it is regarded as “designated for death”. Thus, it is permitted to sacrifice this twin to save the other. Rashi explains Rabi Yochanan permitting sacrificing the designated one since it would die in any event. The same can be said about the right-side twin and thus it may be sacrificed to save the left-side twin.
Argument for Not Killing the Right-Side Twin to Save the Left-Side Twin
Rav Bleich rejects this approach arguing that we have no right to follow Rabi Yochanan’s opinion since the Shulchan Aruch and its primary commentaries leave the matter unresolved. Moreover, he argues that this designated for death refers to a situation as described by the Tanach and Gemara where Yoav Ben Tzeruyah designated Sheva ben Bichri and the case when a bandit singles out one member of the group for death. Moreover, Rav Bleich cites Rav Chaim Sofer, (Teshuvot Machaneh Chaim Choshen Mishpat, no. 50) who argues that "designation" is a factor only when it is within the power of the person specified for death to remove the danger to others by turning himself over to those demanding his life. It is not a factor, asserts Machaneh Chaim, when the danger arises because the victim is "pursued by Heaven," i.e., a natural process independent of human volition. In the former case, argues the Machaneh Chaim, the individual is regarded as a Rodef because he has the option of delivering himself to those seeking his death; in the case of the child emerging from the birth canal, there is no such option (based on Sanhedrin 72b).
Issue #2 - Conjoined Twins - One or Two Halachic Identities?
Argument Permitting Sacrificing the Right-Side Twin to Save the Left-Side Twin
Perhaps a solution to our dilemma lies in concluding that the conjoined twins are viewed as one individual. If we say that the twins share one Halachic identity then we can sacrifice one twin to save the other in the same way a surgeon is permitted to amputate a leg if necessary to save the person.
The question as to whether conjoined twins are viewed as one or two individuals is addressed by the Gemara (Menachot 37a).
Pleemo asked Rebbe [Rabi Yehuda HaNasi], “If a man has two heads, on which one should he place his tefillin (phylacteries)?” Rebbe said to him, “Either go into exile or you will be excommunicated!” (Rashi explains that Rebbe assumed the question was extremely irreverent and mocking.) Just then a man walked in and said to Rebbe Yehuda the Prince, “Our baby that was just born has two heads. How much do I have to give the Kohen (priest) for pidyon haben (redemption of the first-born – usually five silver pieces for a baby)?” A certain elderly man came and taught him, “You are obligated to give him ten silver pieces.”
This Gemara establishes only that the obligation of payment of the sum of five sela’im for Pidyon Haben is occasioned by the emergence of each head that "opens the womb" of the mother. In the birth of ordinary twins, as Rashi explains, it is "impossible" for both heads to present simultaneously. Hence, although there may be some doubt about which twin emerged first, there can be
only one first-born. However, in the delivery of conjoined twins, it is possible for both heads to present simultaneously. Accordingly, in instances in which the heads emerge first and both heads are delivered simultaneously, each of the heads "opens the womb. " Since the Torah establishes a requirement for redemption in the sum of "five shekels for the skull" (Chameishet Shekalim LaGulgolet, Bamidbar 3:47) the sum to be presented to the Kohen is doubled when both heads present simultaneously.
Rashi, Menachot 37a explaining why the baby with two heads differs from ordinary twins writes that the two-headed baby as “Chad Hu,” one entity. Describing the two-headed baby as “Chad Hu” seems to justify sacrificing the right-side “limb” to save the entire person.
Argument for Not Killing the Right-Side Twin to Save the Left-Side Twin
However, Tosafot (ad loc. s.v. Oh Kum) write, "In our world (BaOlam HaZeh) this does not exist," but cite a Midrashic narrative relating that Ashmedai, in the presence of Shlomo HaMelech, brought forth "from under the ground" a person having two heads. That man subsequently married and fathered children having two heads like himself as well as children having one head like his wife. When the time came to divide their inheritance, the two-headed children demanded a double portion of the (Yerusha) legacy. The case was brought before Shlomo HaMelech for adjudication.
Shlomo HaMelech's decision, cited from the same Midrashic source quoted by Tosafot, is presented by Shittah Mekubezet, ad locum. According to this Midrashic source, Shlomo HaMelech heated water, covered one of the heads, and then poured the scalding water on the other head. Both heads screamed in pain. Thereupon Shlomo HaMelech ruled, "It can be deduced that both heads have a single source and (the twins) should be deemed a single person."
Rav Bleich notes “Unlike Shlomo HaMelech's twins, the conjoined twins described in the medical literature would not both respond to pain stimuli applied to a single head. According to Shittah Mekubezet, such twins must be deemed to be separate persons, not only for purposes of inheritance, but for all other halakhic purposes as well. Moreover, conjoined twins, each endowed with a full complement of organs, are clearly separate individuals, regardless of whether they respond autonomously to pain stimuli. Accordingly, the twins are clearly viewed as two separate individuals. Even if one were to argue that “Ein Lemeidin Min HaAgadot” - Aggada does not serve as a legitimate Halachic source (Yerushalmi Pei’ah 2:4) - since the two girls are clearly two separate individuals, there is no doubt that they have two separate Halachic identities. In other words, Svara (straightforward reasoning) supports the conclusion articulated by the Midrash and enjoys Halachic validity.
Teshuvot Shevut Yaakov (1:4) notes that according to the Gemara, Eiruvin 18a, and according to one opinion recorded in Ketubot 8a, Adam and Chavah were created simultaneously as fully formed but conjoined individuals and only later were they separated דְּיוֹ פַּרְצוּף פָּנִים הָיָה לוֹ לְאָדָם הָרִאשׁוֹן. Shevut Yaakov further asserts that this Talmudic opinion concerning simultaneous creation of Adam and Eve establishes that twins united in such a manner are separate persons since the Torah refers to Adam and Chavah in their conjoined state in the plural: "Male and female did He create them (Zachar U’Nekeivah bara Otam). . . and He called their name Adam" (Breishit 5:2). Accordingly, Shevut Yaakov rules that twins conjoined in a like manner must be regarded as separate individuals for all purposes of Halacha.
Thus, Rav Bleich concludes that at most the right-side twin can be classified as a Tereifah (a person expected to die within twelve months; it is Biblically forbidden to kill a Tereifah but does not constitute a capital crime). However, it is not justified to kill this twin based on the argument that the twins constitute one Halachic entity.