QUESTION: The Mishnah states that when a pregnant woman has been found guilty of a capital crime, she is taken to be executed immediately, and Beis Din does not wait until after she gives birth.

If an unborn baby is considered a living human being, then Beis Din should not be allowed to kill the fetus, even indirectly (through killing the mother). Why does Beis Din not wait until after the birth of the baby before executing the mother?

Moreover, the Gemara rules that when the mother is being taken out to be executed, she is beaten around her stomach so that the fetus will die because, as the Gemara explains, it would be an unwarranted disgrace to the woman for the baby to be born after her death (see Makos 22b). Why is Beis Din permitted to put an unborn baby to death merely in order to prevent the disgrace of another person?

ANSWER: RAV MOSHE FEINSTEIN zt'l in IGROS MOSHE (CM 2:69:3) explains that the Gemara here clearly states that the reason why the mother is executed before the baby is born is "Gufah Hi," the baby is part of her body. Since she has been sentenced to death, every part of her body is included in the death sentence. Accordingly, an unborn fetus is not viewed as an independent entity, separate from its mother, and the laws of Retzichah (murder) do not apply to it. (This does not necessary imply that, in practice, abortion is permitted, as there are a number of other factors involved in the issue of abortion.)

He adds that according to the Gemara's conclusion, the verse itself, "u'Mesu Gam Sheneihem" (Devarim 22:22), teaches that the death penalty of the mother extends to her unborn fetus. It is for this reason that Beis Din is permitted to terminate the fetus first in order to spare the mother further disgrace.

QUESTION: The Mishnah states that when a pregnant woman has been found guilty of a capital crime, she is taken to be executed immediately, and Beis Din does not wait until after she gives birth. However, if labor began before she was taken out to be executed, Beis Din must wait until after she gives birth in order to execute her. The Gemara explains that the reason is that once she has started labor, the baby is considered a separate entity ("Gufa Acharina") and, consequently, Beis Din may not kill the baby with the woman. The Gemara later (7b) mentions another Halachic consequence of the fact that the baby is an entity separate and apart from its mother from the time that labor begins. The Gemara teaches that once labor has begun, one is permitted to desecrate Shabbos in order to save the life of the fetus.

The Gemara here seems to contradict the Mishnah in Ohalos (7:6) that states that when a majority of [the head of] the baby has emerged, it is considered to have been born (at which time killing the baby is forbidden, even if its birth endangers the life of the mother). Before a majority emerges, however, it is not yet considered a person and it may be killed in order to save the mother's life. How is the Mishnah there to be reconciled with the Mishnah here, which teaches that once labor begins, even before any part of the baby emerges, the baby is considered to be a person separate from its mother?

(a) The Mishnah and Gemara here do not state that once labor has begun, the baby is considered an independent person. Rather, it is merely a separate body ("Guf"). That is, it is no longer part of the mother, but it is also not yet considered a living person. In the case in Ohalos, when the woman's life is in danger, if the head has not yet emerged the unborn baby may be killed in order to save the mother, because the fetus at that point is not yet considered an independent human life, even though it is a separate body. When the mother is being taken to be executed, the court may not kill the unborn baby with the mother if labor has begun, because it is considered a separate body and not part of the mother's body, and therefore the death sentence does not apply to it. (TOSFOS to Nidah 44a, DH Ihu, and SHITAH MEKUBETZES #5)

This distinction between the fetus being a separate body and being a separate person applies, however, only when the mother is still alive. If the mother dies in labor, then Shabbos may be violated in order to save the child's life (as the Gemara on 7b says). Since the mother has died, the fetus must be viewed as a living person on its own (since its life source no longer comes from its mother), and thus saving it is considered Piku'ach Nefesh. (TOSFOS ibid.)

(b) The Rishonim offer another answer. When labor has begun, the baby has the status of a "Safek Chai" -- there is a doubt about whether it will live or not. It is because of this doubt that Shabbos may be violated in order to save it ("Safek Piku'ach Nefesh Docheh Shabbos"), and why it may not be killed with its mother (since it might be a living person, it may not be killed out of doubt). However, when the mother's life is in danger, her certain life ("Vadai Chai") overrides the unborn baby's Safek life, and thus the unborn baby may be killed in order to save the mother's life. (Tosfos ibid.)

QUESTION: The Mishnah (7a) states that one is permitted to benefit from the hair of a woman who was executed (for transgressing a capital crime). The Gemara questions this from the Halachah that one is prohibited to benefit from any part of a dead body.

Rav answers that the Mishnah refers to the "hair extensions" of a dead woman (as RASHI explains (DH b'Pe'ah Nochris), artificial hair is tied to one's natural hair in order to make the natural hair look longer). When the woman said, before her execution, that her hair should be given to her daughter, her hair is considered to be detached before her death; when she dies, it is not part of her dead body, and one is permitted to benefit from it.

The Gemara asks that this explanation contradicts a question posed by Rebbi Yosi b'Rebbi Chanina with regard to a case of an Ir ha'Nidachas. The Gemara in Sanhedrin (112a) cites a Beraisa that states that the Tzadikim who lived in an Ir ha'Nidachas and who did not join in serving Avodah Zarah are permitted to leave. Their possessions, however, are gathered with the rest of the possessions of the residents of the city and burned. (Rebbi Shimon explains that the reason why their possessions are burned is that it was their possessions -- their desire for financial gain -- that led them to live in this city of evildoers, and therefore they are punished by having their possessions destroyed.) Rebbi Yosi b'Rebbi Chanina asked whether the hair of the righteous women is burned as well. Rava explains that Rebbi Yosi's question was whether or not their hair extensions is burned.

If the Mishnah here maintains that the hair extensions are considered part of the woman's body unless she specifies otherwise, then why did Rebbi Yosi have any question about whether hair extensions are part of the woman's body? They certainly are considered part of her body, and thus they are not burned with the possessions of the rest of the Ir ha'Nidachas! This is the question of the Gemara.

In his explanation of the basis for the Gemara's question, RASHI (DH Se'ar Nashim Tzadkaniyos) writes that the Tzadikim who lived in an Ir ha'Nidachas must leave the city "Arumim," unclad, implying that they must leave without any of their clothes. However, Rashi in Sanhedrin (112a, DH k'Gufah Dami) writes clearly that their clothes are not burned. Many Acharonim are bothered by this contradiction in Rashi. How is this contradiction in Rashi to be reconciled?

(a) The ARUCH LA'NER in Sanhedrin explains that Rashi, in both places, maintains that the clothing that the Tzadikim are wearing is not burned. When Rashi here says that they leave the city "Arumim," he is not using that term in the literal sense.

The CHIDA (in BA'ALEI BRIS AVRAHAM) proves that "Arumim" does not necessarily mean naked. The verse in Yeshayah (20:3) says that the servant of Yeshayah went "Arum v'Yachaf" -- "naked and barefoot" for three years. Rashi there explains that this means that he went with torn and worn clothes, but not that he wore no clothes at all. This is evident by the fact that the verse mentions that the servants were wearing a "Sak" (sackcloth).

(b) The BEIS YITZCHAK (OC 14) argues that if, according to Rashi's Girsa, the expression used is "Arumim," then it is to be understood literally because, otherwise, the Gemara would have said that they go out of the city "devoid of their possessions." The choice of this phrase indicates that they leave unclothed. It is possible that the Beis Yitzchak understands that Rashi had a different Girsa in the Gemara here in Erchin.

(c) The MINCHAS CHINUCH writes that the answer to this question depends on the argument between Rebbi Shimon and the Tana Kama in Sanhedrin. Rebbi Shimon expounds the reasoning of Mitzvos ("Doresh Ta'ama d'Kra") in order to determine the proper Halachah. Accordingly, even though their possessions caused the Tzadikim to live among evil neighbors, since they would be clothed wherever they would live, the clothes on their bodies are not included among the possessions which must be burned. According to the Tana Kama, the verse states that all of their possessions must be burned. This includes everything, including whatever clothes they might be wearing. (See also Insights to Sanhedrin 112:1.) (Y. MONTROSE)