Too Clever by Half: The Ben Pakuah and the Spirit of the Law Chulin 72-74

Chulin 72 — “Labor of Love”

Our Gemara on Amud Aleph discusses Torah and rabbinic rulings regarding the circumstances that a midwife would be rendered impure should she come in contact with a dead fetus while it is still within the mother. Technically speaking, according to Torah law, so long as it is within the mother, it does not radiate the impurity of a corpse. However, since it is sometimes difficult to ascertain the moment of birth, there is a rabbinic ruling that the midwife will contract this impurity, even if she contacts the dead fetus within the womb.

However, the Gemara questions this logic:

“If so, the Sages should also decree that the woman herself, who is carrying the fetus, is impure, since she also might not notice that the fetus’s head emerged. The Gemara explains: A woman accurately senses with regard to her own body whether the head of the fetus had emerged. The Gemara asks: But then she would have said this to the midwife. Why is there a need for a decree? The Gemara answers: Since the mother is distracted by the pain of childbirth, she does not have the presence of mind to warn the midwife.”

The throes of childbirth represent a different mode of awareness and coping than typical. We do not expect a woman in that state to be a reliable informant for others; she is deeply engaged in her own internal process.

The experience of childbirth is powerful and personal, and for a long time has been under assault by the medical community with a particular agenda. From a young age, people are exposed in the media to supposedly agonizing travails of labor. The power of suggestion lets every woman know that childbirth is a medically complex procedure that can only be performed by the great Doctors within the medical establishment. While of course there is more than a grain of truth to that, because labor complications can be life-threatening, at the same time many of the medical procedures are self-fulfilling prophecies.

For example, there is a debate about whether fetal monitoring is a good thing or not. On the one hand, in the rare instance where the fetus is in distress, monitoring the heartbeat can make the difference between saving its life or not. On the other hand, there are many false positives with the readings, which indicate problems with the heartbeat, but might just be due to the ordinary vicissitudes of labor, and the inability of the equipment to properly detect under the circumstances. This leads to an increased medicalization and enactment of procedures, such as C-sections and other interventions.

Likewise, while labor can be painful and epidurals, no doubt, relieve that pain, they may also subdue and slow down the labor process to the point where unfortunately a C-section and other interventions are required. There is a study regarding subjective experiences of labor pain, relative to personal narratives and expectations, and a sense of empowerment by the woman prior and during the labor. That is to say, pain is a relative experience. While pain is real, it might be magnified when there are feelings of panic and mitigated when there is a sense of autonomy, acceptance and mindfulness. (For more on this study, see Midwifery 30 (2014) 1029–1035, “Women’s experiences of labour pain and the role of the mind: An exploratory study.” Whitburn, Jones, Davey, and Small.)

In reaction to this, many women are choosing home birthing, which of course brings its own risks. The point that I wish to make is not necessarily to advise one way or the other, but to signal that there is a bias promoted by a particular agenda. Doctors and hospitals will not get sued for “playing it safe” and using fetal monitors and/or jumping to relieve pain through epidurals, and/or moving towards a C-section. However, they will get sued, if in a much less likely scenario, something does go wrong during labor, and the mother or child are mortally wounded. The financial incentive is clearly in the direction of medical intervention, indeed over-reactive intervention, because there is rarely any penalty for that.

That is on the medical and statistical side of things. However, on the individual consumer end, there is less education and more propaganda promoting medical interventions than a belief that overall, it is a natural experience which is not necessarily traumatic and no worse or better than other developmental difficulties, and part of human experience. Learning how to walk and teething must be very difficult and painful experiences for the baby and yet they are key to development, and possibly even empowering as the young child learns how to do it, or cope with it. We don’t tranquilize or medicalize these things. Similarly, nobody is going to say that labor isn’t painful or difficult. However, if in context, it is seen as a normal and healthy process, it may not require the degree of medical intervention and interference that becomes a solution to its own manufactured problems.

Be a wise consumer and do research beyond what the algorithm allows you to do. Recently, myself and a colleague were having a debate about the efficacy of a particular treatment modality. We both used Google and remarkably got different results. Google fed me results that were biased toward my opinion, and my colleague was given different results, citing different literature, that was biased toward that colleague’s opinion. This is not a unique circumstance, others report this as well. Therefore if you are going to study a phenomenon and be an educated consumer, find ways to get past the algorithm that’s feeding you data within your own echo chamber so you can make a truly informed and balanced decision.

Chulin 73 — “Doubles or Nothing: The Twofold Nature of Shabbos”

Our Gemara on Amud Aleph discusses a halachically sophisticated approach toward materials. There is an idea, which comes up various times in Halacha regarding something that is bound toward separation, and there’s nothing holding it back. In such a scenario, it may already be seen in certain circumstances as separated.

In our Gemara’s case, there is a discussion of immersing a utensil with a long handle that is meant to be cut off. There is an argument that since this part is going to be cut off, it is already seen as removed and not a barrier. The particulars are debated by rishonim and have many implications in practical Halacha such as if hair or fingernails that are to be removed present a barrier right now to immersion or not. Regardless, the Gemara asserts that with certain materials, there is a unanimous opinion that they are considered separated immediately. For example, food which is meant to be cut up and divided is already considered separate, even when in contact with its parts.

There is also a practical halachic manifestation of this regarding the requirement that on Shabbos a blessing is to be recited on two whole loaves. What if one loaf has a portion that is completely charred? Right now, it is still attached and so technically the loaf is whole. However, since that part is to be detached, since it is nonconsumable and charred, perhaps the loaf is not considered whole. This is debated halachically, see Mishna Berurah (274:2) and Shaarei Teshuva (ibid 274:1). In general, many seemingly irrelevant and technical aspects of halachic discussion in the Gemara which seem to be anachronistic often end up being used as precedent for much more practical and everyday situations.

While on this topic, let us take a closer look at this requirement for a double loaf (Lechem Mishne). The source is a Gemara (Shabbos 117a):

“On shabbos a person is obligated to break bread in his meal over two loaves of bread, as it is written: ‘And it happened on the sixth day, they collected double the bread, two omer for each one’ (Exodus 16:22).”

It would seem that the requirement of two loaves is to memorialize and relive the experience of the double portion of Manna in the wilderness. Going deeper, the experience of the double portion in the wilderness has its own implications of the state of mind and experience of Shabbos. The preparations must be done the day before, and then experience the benefit on Shabbos. This is symbolic of having completed all work prior to Shabbos, and now after adequately preparing, being able to enter into the meditative and tranquil state of Shabbos.

Yet, there is a question here. The Manna was collected on Friday. If so, there ought to be an obligation specifically on Friday to prepare the two loaves. We don’t find that mentioned anywhere. The simple answer is that on a practical level, the hustle and bustle of everyday life does not allow for that focus. So, while technically the double loaves commemorate the fact that they came on Friday, we do not enact it specifically on Friday, but rather reflect on it over Shabbos by making the blessing over the double loaves.

It is interesting that the section of the Gemara that is immediately prior to the description of the double loaves talks about the importance of preparing for Shabbos on Friday. It states, “A person should always rise early on Friday in order to prepare all of the expenditures for shabbos, as it is written with regard to the collection of the Manna: ‘And it shall be on the sixth day, and they will prepare that which they have brought’ (Exodus 16:5), indicating that the children of Israel would begin preparing the food for shabbos immediately upon collecting the manna in the morning.”

If not an actual requirement to prepare the double loaves on Friday, it does show a connection between the two ideas of preparing for Shabbos in advance and the double loaves on Shabbos.

Midrash Tehilim (92) notices that there are a number of doubles that occur on Shabbos. There are the double loaves, but there are also the two lambs brought as a sacrifice, the dual words Zachor and Shamor used in the first and second description of the Ten Commandments, implying equal importance of preserving the Shabbos and actively commemorating it (Shavuos 20b), and a few other doubles cited in that Midrash. The Maharal (Gur Aryeh, Devarim 5:12) notes that this duality represents something about the essence of Shabbos. It is an integration of the material and the physical, an experience of the world to come being brought down into the present world. When we present these double loaves at our table, we are also experiencing the integration of the divine non-material non-physical world being brought into our physical world. The essence of Shabbos represented by the cessation of human labor and activity is in order to cultivate and channel a supernatural state that is about the world to come. It is a world where we do not have to engage in the physical and is purely experienced by the intellect and soul. However, in this world, it always is a duality. There always has to be the labor and preparation prior in order to achieve that state. While the seventh day may be the most important and maybe the pinnacle, we must have the six days first.

Chulin 74 — “Too Clever by Half: The Ben Pakuah and the Spirit of the Law”

This daf discusses one of the stranger aspects of halacha, a kind of legal loophole of the laws of shechitta, a Ben Pakuah. A Ben Pakuah is a live fetus that is found within the mother after it is properly slaughtered. Because the mother was properly slaughtered, and this fetus was at that time subsumed within the mother, the slaughter also applies to the fetus. Therefore, ironically, even though this calf might be prancing about, in many respects it has the law of slaughtered meat. There are complications that relate to whether it would be considered like taking live flesh from this animal – is it a live animal or is it slaughtered, and what is the status of its fats and blood, and what happens if it mates with a regular animal and therefore the offspring is half slaughtered and half not slaughtered? All these are interesting cases. However, if a Ben Pakuah mates with another Ben Pakuah, that offspring will now be considered completely slaughtered and kosher without any further ritual necessary. Rabbinically, because of appearances, it may still require slaughtering, but that is only a technicality so as not to mislead people.

In modern times, a question has been raised if there is value in creating a herd of Ben Pakuah animals. The potential value for this would be that even if slaughtering is done, questions about if it’s fully Kosher, questions regarding if there are invalidations or diseases to prevent the animal’s consumption, could be technically superseded by the fact that this animal was already slaughtered generations ago. In that case, why not play it safe and create a new kind of reality. (By the way, in modern application, this may relate to vat grown meat, but that is for a different discussion.)

While a minority of poskim have advocated for this, the majority have rejected this proposal on a number of grounds, such as: (1) It will lead to forgetting the institution of shechitta and render certain laws obsolete. (2) It would unnecessarily abrogate the opportunity to fulfill the mitzvah of shechitta and recite the blessing of shechitta. (This can be seen as analogous to not wearing a four cornered garment, which technically exempts one from the mitzvah of tzitzis but is still frowned upon because, after all, an opportunity to perform a mitzvah is being neglected (Menachos 41a).) (3) It can lead to other kinds of halachic complications, because if a Ben Pakuah mates with a regular animal, that animal can never be made Kosher. It is suffering from having a half slaughtering, with one having been performed on the original ancestral animal, and now trying to perform another one. And half shechittas are not valid. Should such an animal escape the corral and mix with the other animals, since it is a significant creature, it can’t even be nullified one in 60, and it’s possible that an entire farm of animals would be rendered unkosher with no rectification possible. This is discussed in detail in a number of poskim, see (Shu”t Shevet Halevi YD 188, Shu”t Teshuvos Vhanhagos 7:147a, Minchas Asher 3:47.)

There is another idea which is not mentioned explicitly but on a meta level. Some things are just not meant to be done. We do not need to be too clever with solutions that, common sense-wise are not in the spirit of the Torah. I’ll give another example of this. There is a behind the scenes halachic debate about whether one should advise an unmarried couple, who are not fully religious and sexually active, to go to the Mikvah. The idea behind this is to minimize halachic damage, since at least they won’t violate niddah. The meta problem is that it is giving tacit rabbinic approval for immoral and improper behavior. So what is better, to minimize the actual sin, or big picture, to present to the couple the Torah expectation and wait until they are ready to fulfill it but not offer half solutions. On a practical level, many Mikvaos practice a “don’t ask, don’t tell policy” but that is quite different than a rabbi offering sanction. Once again though, to be clear, these solutions are too clever and simply not the intention of the Torah. Technically one can argue on both of my points: this is not a feeling matter and you must argue solely from halachic logic and precedent. Perhaps. Yet some things don’t feel right and we know why, even if we cannot prove it. These two issues fit into that category. (For some sources on this, see Shu”t Rivash 425 and Shu”t Teshuvos Vhanhagos I:484.)