More Discussions for this daf
1. Baby born after 8 Months 2. Birth Yotzai Dophen 3. Hatafat Dam Brit
4. 8 month birth 5. Status of a "Nefel" 8-month-old baby that was not expected to live 6. Safek 7- or 8-month baby
7. Eight-month Babies and Modern Science 8. A Fetus At Eight Months 9. ברש"י בסוף עמוד א'

y.y.f asked:

I came in late to a gemara shiur & the gemara mentioned a "nefel" & if the now live nefel was not expected to survive past the shabbos, it had a status of muktzah & the mother couldnt move it. (unless to aid the mother, release of milk) (something like that)

My halachic question is-

If a nefel is born & not expected to survive through even the shabbos & chaz vasholom a fire occurred in the house on that shabbos & the nefel was all by itself, could yiddin transgress laws of shabbos in order to save it? I asked a Rav who was not so certain, since in a sense the nefel never had the status of a living thing, unlike a very sick person (goses) who a person can not touch or do anything that may shorten the life for even a second.

y.y.f, BKLYN, USA

The Kollel replies:

1. I think the Gemara to which you refer to is Shabbos 135a, which states that an 8-month (pre-term) baby is considered "like a stone" (i.e. it is Muktzeh), and one may not move it on Shabbos, but the mother may bend over it and nurse it because of her surplus milk which may otherwise cause her danger.

2. However, I would point out that this question does not depend on whether the baby is expected to survive throughout the Shabbos, but rather the definition of a Nefel is given in the Gemara in Shabbos (end of 135b) where Raban Shimon ben Gamliel states that if the newborn baby survives for 30 days, this proves it is not a Nefel. This implies that even if the 8-month baby could survive for 29 days but no more, it would still be considered a Nefel.

3. Yes, there is a distinction between a Goses and a Nefel which never possessed the status of a living being. (A source for this distinction can be seen in Shulchan Aruch OC 320:7, which states that if there was a doubt about whether the baby was born after 7 months (in which case it is viable, as we will learn soon that in the times of the Gemara a 7- or 9-month baby was viable, and only the 8-month baby could not live) or after 8 months, one may not desecrate Shabbos to save it unless its hair and fingernails are fully developed (which would prove that it is a healthy 7-month baby which simply remained too long inside the womb). The Mishnah Berurah (320:29) explains that although there is a general rule that "Safek Nefashos l'Hakel" -- we are lenient in matters of life and death and permit desecration of Shabbos even when there is only a doubt whether this will lead to the saving of life), in this case we do not know whether the baby was ever a viable being since it was not full-term. The case of a baby which is certainly an 8-month pre-term baby is more clearcut, because it certainly was never a being with a possibility of survival.)

4. However, it should be made clear that the phenomenon of the 8-month pre-term baby which existed in those days does not exist any more. The Chazon Ish (YD 155:4) writes, "Some people mistakenly think that a baby born before 9 months is considered a Nefel and despair of it and do not make an effort to heal it. This is a mistake, because if the hair and fingernails are complete, one must try to treat it, and one must desecrate Shabbos to heal it. There are many cases nowadays where 8-month babies live and are healthy."

This is an example of the concept (which is mentioned occasionally in the Poskim) of "Nishtanu ha'Teva'im" -- the natural reality of certain matters has changed since the time of the Gemara, and therefore the Halachah accomodates those changes accordingly.

5. There might exist nowadays the phenomenon of the Nefel. This may occur in the case of a baby which, according to the doctors' assessment, had no prospect of surviving for 30 days from the time it was born. This might occur in cases of extremely premature babies, or in cases of babies born with severe brain damage at or before birth. It goes without saying that in practice, a competent Rav must be consulted.

Kesivah v'Chasimah Tovah,

Dovid Bloom