5785/2025
Kol Torah is proud to present part three of the arguments made by Torah Academy of Bergen County Talmidim in their victorious performance at the 2025 Lander College Model Beis Din competition.
Issue #4- Rabi Akiva Eiger and Teshuvot Panim Me’irot
Argument in Favor of Sacrificing the Right-Side Twin
Rav Akiva Eiger (to Ohalot 7:6) cites Teshuvot Panim Me’irot who suggests that Ein Dochin Nefesh Mipnei Nefesh applies only when one of the two endangered people would survive in any event. However, if both would die absent intervention, then it might be permissible to kill one to save the other. Similarly, the Chazon Ish suggested that it is permissible to deflect an arrow to kill one person instead of it progressing to a crowd of people where it would kill a large group of people. According to this suggestion, it is permissible to kill the right-side twin to save the left-side twin since both would have perished if left alone.
Argument Against Sacrificing the Right-Side Twin
However, as Rav Bleich notes, this is insufficient basis to act, since both the Panim Me’irot and Rav Akiva Eiger conclude “Tzarich L’Hityasheiv BaDavar”, the matter requires further deliberation.
Argument in Favor of Sacrificing the Right-Side Twin
However, it is possible that Rav Moshe felt that he resolved that which Rav Akiva Eiger and the Teshuvot Panim Me’irot were unsure. Perhaps Rav Moshe understood Rabi Akiva’s rejecting Ben Petura’s “Mutav Sheyamutu Sheneihem, better they both die,” instead saying “Chayecha Kodemin L’Chayei Chaveircha” principle as teaching that we must act to maximize the amount of life saved. On the other hand, one may easily distinguish between Rabi Akiva’s Shev V’al Ta’aseh (passively withholding water from one’s travel companion) and the Panim Me’irot/Rav Akiva Eiger’s Kum VaAseih (actively killing the baby to save the mother if both would die anyway).
One could possibly support this from the permission the Torah grants a king to lead his people to war, even though it inevitably leads to loss of life. How could the Torah permit a king to cause the deaths of some citizens? Apparently, the Torah sanctions the community leader to cause the deaths of the few to save the lives of the many. The case of the heathen who demands the life of an individual is different since we are unable to decide which individual to hand over to the enemy.
Argument Against Sacrificing the Right-Side Twin
One could counter, though, that the king is only responsible for indirectly killing those of his soldiers who eventually perish in battle. Moreover, a king is recognized and authorized as such by his constituency to make such decisions. On the other hand, who is recognized and authorized to sacrifice one to save the other?
The Safek about the Panim Me’irot
The Panim Me’irot is grounded in Sanhedrin 74a that the reason we may not kill one to save oneself is because of “Mai Chazit.” Moreover, based on “Mai Chazit”, the Ramach (cited by the Kesef Mishneh to the Rambam (Hilchot Yesodei Torah 5:5), says the Talmud Bavli does not accept the Yerushalmi that we may not kill the one to save the many. However, Kesef Mishna rejects the Ramach arguing that Mai Chazit does apply even in the Yerushalmi’s case, and even suggests that the prohibition to kill one to save the other might apply even if Mai Chazit does not apply.
3 Nafka Minot between Rav Bleich and Panim Me’irot explanation of Rav Moshe
Rav Aryeh Leibowitz sets forth a Nafkah Minah between Rav Bleich’s explanation and the Panim Me’irot explanation of Rav Moshe: would he have condoned the surgery if the conjoined twins were determined to be capable of surviving as conjoined only until age six, the left-side twin has the ability to live longer life expectancy and the surgery can be done only before the babies will reach the age of one. According to Rav Bleich’s approach, the surgery would not be condoned since the right-side twin in this scenario is not defined as a Tereifah. According to the Panim Me’irot approach, even this scenario is permitted since it would serve to maximize the preservation of life.
A possible second Nafka Minah between could be the following tragic scenario that occurred in Tyre, Lebanon in the early 1980’s. A large building, where many Israeli soldiers were located, collapsed killing many but leaving some victims trapped but still alive. There was a larger group who remained alive on lower floors and a smaller group who remained alive on the upper floors. Israeli experts were faced with the dilemma of choosing to save the smaller groups on the upper floors and then not reaching the victims on the lower floors in time to save them. Alternatively, they could destroy the upper floors (and thereby killing those trapped there) and be able to reach those on the lower floor in time to save them. The Israel police asked Rav Yisraeli his opinion and he ruled (Techumin 4:143) “It is absolutely forbidden to save even the many and the prominent, when saving them requires the killing (even the indirect killing) of someone who otherwise would not be killed”. The Israeli police saved the few on the top floor but sadly were not able to reach those on the bottom floor in time to save their lives.
If Rav Moshe’s ruling regarding the conjoined twins constituted a resolution of the possibility suggested by Panim Me’irot and Rav Akiva Eiger in favor of maximizing the saving of life, then Rav Moshe might have condoned destroying the top floor to save more people. Similarly, according to this possibility, Rav Moshe may have permitted the shooting down of a hijacked commercial airliner with many passengers to spare many more lives on the ground.
Issue #5 - Is the right-side twin a Treifah?
Argument in Favor of Sacrificing the Right-Side Twin
The assumption that an infant lacking a heart or possessing a congenitally malformed heart is a treifah requires clarification. A source for that position is the eighteenth-century ruling of Rav Yonatan Eibeschutz in a controversy between himself and Rav Zevi Ashkenazi (the Chacham Zvi). A young woman soaked and salted a chicken, did not find a heart. She consulted R. Zevi Ashkenazi who, as recorded in his Teshuvot Chacham Zvi, nos. 74, 76 and 77, ruled that the animal was kosher. Chacham Zvi reasoned that, since it is impossible to survive without a heart for even a brief period, it must be assumed that the chicken, which had thrived and developed in a normal manner, must indeed have been endowed with a heart. The absence of a heart, declared the Chacham Zvi, must assuredly be attributed to the predatory nature of a cat which must have been in close proximity. Not content with simply ruling regarding the case presented to him, Chacham Zvi further announced that "even if witnesses will come and testify that they saw with open eyes that nothing was removed from the body of the chicken, their testimony is certainly false for it is contrary to reality." In sharp disagreement, Rav Yonatan Eibeschutz, Kereti u-Peteti 40:4, declared that the testimony of credible witnesses cannot be dismissed peremptorily but rather "it must be assumed that there was some piece (of tissue) which does not appear as a heart but which is designed to fulfill the functions of the heart, but yet the chicken is treifah since it is not a normal heart." Thus, Kereti u-Peleti regards an animal born with an anomalous heart to be a treifah because it lacks a normal heart.
Argument Against Sacrificing the Right-Side Twin
However, the Chazon Ish, Yoreh Deah 4:14, disagrees with Kereti u-Peleti in arguing that the chicken thus described is kosher. The Chazon Ish argues that, although the heart’s removal does render the animal a treifah, there is no source for a ruling that an anomaly of the heart similarly renders the animal a treifah. Moreover, there is no indication that Kereti u-Peleti would regard a six-chamber heart in the same light as a mere piece of tissue that fulfills the functions of a heart.
The dispute between the Chazon Ish and Kereti u-Peleti occurs in the context of the status of an animal. The Rambam, Hilchot Rotzei’ah 2:8, asserts that the talmudic list of the various Treifot is exhaustive. However, insofar as human Treifot are concerned, Rambam asserts that, in every era, the particular anomalies or traumas that render a human being a treifah are to be assessed following the medical knowledge of the day. Thus, the Rambam rules that a human being is not to be considered a Treifah (and his murderer must be executed) unless "it is known with certainty that this (person) is a Treifah and the physicians declare that this wound has no cure in a human being or he will die as a result of it unless something else kills him (sooner)." Rambam's categorical statement regarding medical assessment of human Treifot indicates both that a wound or anomaly that would render an animal a treifah does not necessarily render a human being a treifah and also that a wound that will cause death in man renders a human being a treifah even though, regarding animals, it is not one of the enumerated Treifot.
There are many Rishonim who disagree with Rambam's position and maintain that the determination of status as a treifah in humans is no different from determining that status in animals. Nevertheless, Rav Bleich concludes that the Rambam's position together with the Kereti u-Peleti regarding anomalies of the heart might provide a Poseik with ample grounds for a determination that a child born with such a cardiac anomaly is a treifah.
Issue #6 - Rav Dov Povarsky of the Ponovitz Yeshiva – Ben Chet vs. Treifah
Argument in Favor of Sacrificing the Right-Side Twin
Rav Dov Povarsky makes the astounding argument that the right-side twin is not only a Treifah but a “Neifel”. The Gemara (Shabbat 135a) regards a “Ben Chet” (a baby born after only eight months of gestation; it is an example of a Neifel) as “a stone” and thus not alive. בֶּן שְׁמוֹנָה — הֲרֵי הוּא כְּאֶבֶן, וְאָסוּר לְטַלְטְלוֹ. Rav Povarsky argues that one may sacrifice the right-side twin since it is not considered to be alive according to the Halacha.
Argument in Favor of Sacrificing the Right-Side Twin
Rav Bleich rejects Rav Povarsky’s approach arguing that the right-side twin is not a Neifel since it has lived more than thirty days. At most, it is a Treifah.
Issue #7 - Lechatchilah Ein Morin Kein
The Rambam (Hilchot Yesodei HaTorah 5:5) notes that even if the designated person satisfies the requirement of deserving to die, similar to Sheva Ben Bichri, nonetheless “Lechatchilah Ein Morin Kein”, initially this instruction is not conveyed to them. The basis for the Rambam is the following story related by the Talmud Yerushalmi:
A man named Ula Bar Kushav was sought by the Roman authorities for some unnamed crime. He fled to Lod, then (the early third century CE) an important city in Judea with a large Jewish population. The Romans surrounded the city and demanded that the Jewish community turn over Bar Kushav. If he were not turned over, the Romans would raze the entire city.
The leading rabbinic authority in the city at the time was Rabi Yehoshua ben Levi, known both as a halachic expert and as a mystic. Following Rabi Yochanan, he sought out Bar Kushav, “placated him, and turned him in,” thereby saving his city and its thousands of Jewish inhabitants.
Rabi Yehoshua ben Levi had been accustomed to receiving regular visits from the Eliyahu HaNavi, but in the wake of this incident, the visits ceased. Rabi Yehoshua imposed upon himself several fasts to induce Eliyahu to reappear to him. Eliyahu HaNavi reappeared, but just to say: “You expect me to reveal myself to a Moseir (informer)?” Rabi Yehoshua ben Levi replied that he had complied with rabbinic law. Eliyahu replies “But is that the law of a chasid?”
The aforementioned Bi’ur HaGra notes that this Yerushalmi is the basis for the Rambam codifying Reish Lakish over Rabi Yochanan. The Gra challenges this since Eliyahu HaNavi merely states that this is not Mishnat Chasidim, the actions proper for a spiritually high-level individual. However, the essential Halacha follows Rabi Yochanan. Moreover, Ein Lemeidin Min HaAgadot (Yerushalmi, Pei’ah 2:4), Aggadic episodes do not constitute an authoritative source.
Rav Yaakov Kaminetzky could respond to Rav Moshe that he never should have instructed the family to consent to this surgery, following the Rambam. Rav Moshe could respond that the Rama, Gra, and Taz do not cite this episode in the Yerushalmi and do not say Lechatchilah Ein Morin Kein. Rav Yaakov, though, could note that both the Shach (Yoreh Dei’ah 157:15) and the aforementioned Chochmat Adam (a Poseik Acharon, as mentioned earlier) do codify the Rambam that Lechatchilah Ein Morin Kein.
Summary:
Arguments in Favor of Sacrificing the Right-Side Twin
Chad Nefesh
Ran, Primary View in the Rama, Gra, Chochmat Adam paskin like Rabi Yochanan and the right-side twin destined to die in any event=designated.
Rav Bleich’s Greater Rodeif explanation of Rav Moshe, assuming the right-side twin is a Treifah.
Rav Moshe based on the Panim Me’irot – Preserving life – like Rabi Akiva, not Ben Petura
Ra’ayah from a Melech to Panim Me’irot
Rav Povarsky’s Explanation of Rav Moshe – Ben Chet
Halacha V’Ein Morin Kein is not brought by the Rama, Taz, and Gra.
Arguments Against Sacrificing the Right-Side Twin
Midrash presented in the Tosafot and Shitah Mekubetzet – not Chad Nefesh
Rambam, View cited in the Rama, Taz, and Bach – Paskin Like Reish Lakish
Rav Kaminetzky’s rejection of Rav Moshe – right-side baby not a Treifah, Treifah and non-Treifah individuals are mutual Rodfim, baby not Chayav Mita.
Panim Me’irot is unsure of his position.
Melech going to war is different (authorized and indirect).
Rav Bleich’s Rejection of Rav Povarsky – Neifel vs. Treifah.
Halacha V’Ein Morin Kein paskined by the Rambam, Shach, and Chochmat Adam.