5785/2025
Kol Torah is proud to present part two 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 #3 – Rodeif
Argument in Favor of Sacrificing the Right-Side Twin
Another circumstance in which Halachah permits (and even requires) killing one individual to save another, is a situation of Rodeif (Rambam Hilchot Rotzeiach U’Shmirat HaNefesh 1:9). One must kill an individual who is attempting to kill someone. Perhaps one twin can be construed as a Rodeif since she is threatening the life of her twin. Rav Huna (Sanhedrin 72b) states that a Katan can be classified as a Rodeif. The Rambam (ibid.) codifies that even a fetus potentially may be classified as a Rodeif even though it has no malicious intent.
Argument Against Sacrificing the Right-Side Twin
Nonetheless, the status of each twin as a Rodeif neutralizes the license to kill one to save the other. Rav Akiva Eiger (Ketubot 33b) states that Halachah forbids lethal intervention in a situation of mutual pursuers. For example, if one were witness to the duel between Aaron Burr and Alexander Hamilton one would be forbidden to kill one of them to save the life of the other. Similarly, since each of the two twins pursues the other’s life, the Halachah does not grant permission to kill one to save the other. This case is like the aforementioned Mishnah in Ohalot which forbids killing the baby to save the mother after the baby’s head has emerged from the birth canal. The Yerushalmi (Shabbat 14:4) explains “She’ein At Yodei’a Mi Horeig Et Mi, you cannot determine who is killing who.”
Argument in Favor of Sacrificing the Right-Side Twin
The Philadelphia Inquirer cited two analogies supposedly used by Rav Feinstein in reaching his decision to permit the surgery. The first is a case where two men jump from a burning airplane. The second man's parachute does not open and as he falls past the first man, he grabs his legs. If the first man's parachute cannot support both men, can he kick off the second man to save his own life? The answer is yes, because the second man is considered a pursuer (Rodeif) whose actions will result in killing the first man.
Argument Against Sacrificing the Right-Side Twin
Rav J. David Bleich writes that the concept of the pursuer here is not entirely analogous to the case of the conjoined twins. In the case of the parachutes, he writes, it is clear who is the pursuer and who is the pursued, but in the case of the twins, then-current medical experience showed that the twins were mutual pursuers, each one threatening the other. The law of the pursuer does not apply when two people pursue each other, and third-party intervention in such cases is not halachically justified. Unless it could be proven that the heart belonged exclusively to one of the twins and the other was a parasite (and therefore a pursuer), the dilemma could not be easily resolved. Rav Bleich insists that there is no way to prove that the heart belonged to either of the twins. Rather, he strongly argues that the heart was jointly “owned” by both twins.
Introduction to Rav Bleich’s Explanation of Rav Moshe’s Permitting the Sacrifice of the One Twin to Save the Other
Saving a Mother by Killing a Fetus
However, there is a situation in which Halachah permits killing one of two mutual pursuers to save the other. The aforementioned Mishnah in Ohalot states “A woman whose life is endangered in hard labor is permitted to have the pregnancy terminated”. Rambam (ad. loc.) explains that the fetus is like a Rodeif to the life of the mother. This interpretation is astounding (as noted by Rabi Akiva Eiger to Ohalot 7:6), since if the fetus is construed as a Rodeif, why is it forbidden to kill the baby to save the mother after it has emerged from her body?
Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 2:60) resolves the problem as follows. Rashi (Sanhedrin 72b s.v. Yatza Rosho) asserts that a fetus is considered only potential life (lav nefesh) until it emerges from its mother’s body. This manifests itself in Halachah’s exempting the murderer of a fetus from death (Shemot 21:22-23). Thus, explains Rav Feinstein, the mother and the fetus are mutual pursuers but “unequal pursuers”. The mother is pursuing only a potential life yet the fetus is pursuing one who is fully alive. Accordingly, the fetus is a qualitatively greater Rodeif than the mother. Therefore, Halachah sanctions destroying the fetus to save the life of the mother.
As recorded in the Talmud Yerushalmi, Terumot 8:10, if heathens designate an individual for execution and threaten to annihilate the entire company if that person is not delivered to them, Rabi Yochanan permits the threatened individuals to turn over the designated victim. Rashi, Sanhedrin 72b, s.v. Yatza Rosho, explains that, based upon the narrative concerning Sheva ben Bichri, Rabi Yochanan reasons that such an act is permissible because the designated individual is destined to perish in any event, either alone if delivered to those demanding his life or together with the entire company if that demand is not satisfied.
Rav Feinstein raises a serious question: It is indeed the case that the designated victim will surely die. However, if he is delivered to those intent on putting him to death, he will be killed immediately, but, if he is not delivered to them, he will survive for at least a brief period (Chayei Sha’ah) until the evildoers execute the entire company. Handing over Sheva ben Bichri to Yoav, the death of Sheva ben Bichri would have been similarly delayed at least until the siege of the city had accomplished its objective. Since hastening the death of even a dying patient (Goseis) is a capital crime, asks Rav Moshe, how could Rabi Yochanan permit hasten the demise of a designated victim?
Rav Moshe explains that the general rule is that if each of two individuals threatens the life of the other the law of pursuit does not apply. In cases of mutual pursuers, bystanders may not intervene because there is no reason to prefer one over the other in light of the presumption that both lives are equally "sweet." The Gemara, Sanhedrin 74a, establishes the rule that a person may not take the life of another even to save his own life based on the principle "How do you know that your life is sweeter than the life of your fellow?" (Mai Chazit DaDameich Sumak T’fei). However, argues Igerot Moshe, when one of the two individuals is engaged in an act of pursuit that is qualitatively greater than that engaged in by the second pursuer, the objection in the form of "How do you know that the life of one is sweeter than the life of the other?" is removed.
In the case discussed by the Talmud Yerushami, the putative victim is entirely innocent and is not at all engaged in an overt act of aggression. Nevertheless, the very existence of the designated victim poses a threat to others and hence is a "Rodeif." The situation depicted in the Talmud Yerushalmi, then, involves two pursuers: the victim who endangers those who continue to harbor him and the others who seek to deliver the designated victim to the heathens and who thereby themselves become the victim's pursuers. However, the nature of their pursuit is quite different from the "pursuit" of the designated victim. The victim, by his continued existence and presence among the members of the group threatens the normal longevity anticipation of those surrounding him; the others, in delivering the victim, jeopardize only the brief period (Chayyei Sha’ah) that the victim's life would have been prolonged until he is seized by those making the threat. Thus, argues Rav Moshe, Rabi Yochanan reasons that, although both parties are pursuers, the victim poses a threat to the others that is qualitatively greater than their threat to him. Elimination of the designated victim rather than allowing the others to be put to death results in a net gain in the qualitative category of life preserved, normal longevity anticipation as opposed to temporary prolongation of life.
In support, Rav Moshe cites the Talmud Yerushalmi, Shabbat 14:14. The Yerushalmi cites the statement of the Mishnah, Ohalot 7:6, "If the major portion (of the fetus) has emerged he may not be touched for one life may not be set aside on behalf of another." The Yerushalmi explains that, "You do not know who is killing whom," i.e., mother and child are mutual pursuers. Korban HaEdah and Pnei Mosheh, in their commentaries ad locum, amplify that comment in explaining that, since each is endangering the other, it is not possible to determine that the child is pursuing the mother, or vice versa, that the mother is pursuing the child. Accordingly, there are no grounds for intervention. Igerot Moshe further asserts that, in light of the Yerushalmi, the distinction drawn by the Gemara, Sanhedrin 72b, that in the case of the women in hard travail and the baby’s head has emerged "it is Heaven that pursues her," must be understood in an identical manner, i.e., as an assertion that since nature causes mother and child to become locked in mutual pursuit of one another, they must be regarded as mutual pursuers with the result that the law Rodeif becomes inoperative.
Igerot Moshe further maintains that Reish Lakish, who disagrees with R. Yochanan in maintaining that the specified victim may not be delivered to death even though he has been marked for death by the heathens and is destined to die in any event, does not challenge the basic thesis concerning relative degrees of pursuit. Reish Lakish, argues Iggerot Mosheh, maintains that a person cannot be deemed to be a pursuer simply because evildoers arbitrarily and capriciously seek his death and will cause others to perish to kill their intended victim as well.
Reish Lakish contends that the only pursuers are the heathens; the individual designated by them, who is entirely passive, is not a pursuer but a victim. Only when the individual identified for execution is culpable of the death penalty does Reish Lakish agree that he may be delivered to the heathens, i.e., only when he has committed an overt act that gave rise to the danger is he regarded as a pursuer. Consistent with that view, Igerot Moshe cites Taz, Yoreh Deah 157:8, in insisting that the act for which the heathens seek to punish the designated victim need not necessarily constitute a capital offense in Jewish law, but that any act sufficient to give offense to the heathens renders the individual a pursuer.
The case of a fetus threatening its mother in "hard travail" is significantly different from the case of an individual whom the heathens demand be delivered to them in that it is not simply the existence of the fetus that threatens the life of the mother but rather the activity of the fetus as it attempts to force its way through the birth canal that constitutes the source of danger. That activity is, of course, both natural and not by choice; however, as both the Talmud Yerushalmi and the Talmud Bavli, Sanhedrin 72b, conclude (in Rav Moshe’s view), the law of pursuit applies even to an unintentional pursuer.
Rav Bleich’s Explanation of Rav Moshe’s Psak
Rav Bleich argues that the same reasoning applies to the case of the conjoined baby sisters. The sisters were unequal pursuers since the right-side twin had no chance of survival for more than a year even if the left-side twin were to be sacrificed. The left-side twin, however, had a very reasonable chance of survival if the other twin were to be sacrificed. The right-side twin’s life expectancy is regarded as only Chayei Sha’ah and is viewed as a Tereifah while the right-side twin enjoyed the possibility of achieving a normal lifespan.
Thus, the baby twin girls could be construed as “unequal pursuers”, since the left-side baby pursues only Chayei Sha’ah whereas the right-side baby is pursuing one with a possibility to live a normal lifespan. It follows that the right-side twin is a qualitatively greater Rodef than the left-side twin and thus the right-side twin may be sacrificed to save the left-side baby. Thus, Rav Bleich offers a cogent explanation for Rav Moshe’s ruling. Just as Rav Moshe in 1935 (the aforementioned Igerot Moshe Y.D. 2:60) permitted the sacrifice of one shul to save the rest of the city’s shuls from the hands of the Soviet communist government, so too he permitted (or even required) the sacrifice of the right side twin to save the other twin.
The right-side twin’s functioning threatens the left-side twin (similar to the fetus threatening its mother) and thus actively pursuing the left-side twin and even Reish Lakish permits sacrificing the right-side twin since it is the greater Rodef.
Explanation of Rav Yaakov Kaminetzky’s Rejection of Rav Moshe’s Psak
One the other hand, Rav Yaakov Kaminetsky might have rejected the analogy between the situation of the twins and that of the pregnant woman because the inequality between fetus (Lav Nefesh) and mother (Nefesh) is far greater than the gap between the twins. The difference between the mother who is classified as alive and the fetus who constitutes only potential life is a qualitative and fundamental difference as opposed to the twins both of whom constituted a full life (although one is a Teriefah and the other is not) and thus are mutual Rodfim.
This approach is supported by Rav Akiva Eiger to Ohalot 7:6. Rav Akiva Eiger suggests that the Rambam distinguishes between a fetus and baby (after Yatza Rubo) is that a fetus is both a Rodef and Lav Nefesh. Both criteria must be fulfilled to permit sacrificing the fetus to save the mother. After Yatza Rubo, the baby is classified as a Nefesh and may not be killed despite its being a Rodef. According to Rav Akiva Eiger, the right-side twin is defined as a nefesh and may not be sacrificed despite its being Rodef the left-side twin.
This version of the Machloket between Rav Moshe and Rav Yaakov might hinge on a Machloket between the Minchat Chinuch and the Noda B’Yehuda. The Minchat Chinuch considers allowing the giving over a member of the threatened group who is a Tereifa to save the other members who are not. The Noda B’Yehuda disagrees.
Rav Kaminetzky could have also disagreed with Rav Moshe’s explanation of Reish Lakish’s opinion. He may believe that Reish Lakish requires the victim to be Chayav Mitah. Thus, Rav Moshe’s approach works only according to Rabi Yochanan. Rav Kaminetzky then might have agreed with Rav Bleich’s opinion that we have no basis upon which to follow Rabi Yochanan over Reish Lakish.
Finally, Rav Kaminetzky may follow the Rambam and the Shach that Lechatchilah Ein Morin Kein, as we shall explain in issue number seven. He also may not regard the right-side twin as a Tereifa as discussed in a later issue.