QUESTION: The Gemara concludes that Rebbi Yehoshua is in doubt about whether the presence of skin in a miscarriage is evidence of a child (when it is opaque inside the Shefir). Since he is in doubt, he rules stringently with regard to matters of Isur (Safek Isur l'Chumra), and he rules leniently with regard to monetary matters (Safek Mamon l'Kula). When the miscarriage was the first birth of a woman, the question involves a monetary doubt (must the father give five Shekalim to a Kohen), and thus the Halachah is lenient and does not require the father to pay money for the Pidyon of the son that is born afterwards. When the miscarriage was the first birth of an animal, the question involves a matter of Isur (is the second birth the real firstborn, and thus it is forbidden to work with and to shear), and thus the Halachah is stringent due to the doubt. Similarly, in the case of a woman who miscarries a Shefir, the woman has the status of a Safek Yoledes, and thus she has the maximum number of days of Yemei Tum'ah.

TOSFOS (DH Gabei) questions Rebbi Yehoshua's conclusion in the case of the birth that follows a Shefir of an animal. Just as a man is not required to perform Pidyon ha'Ben with the son born after a Shefir, a Yisrael should not be required to hand over the animal to a Kohen. Tosfos answers that the reason why the Yisrael must give the animal to a Kohen out of doubt is the concern that if the Yisrael would be permitted to keep the animal, the Yisrael might work with it and shear it. The requirement to be stringent in the case of a Safek Isur overrides the allowance to be lenient in the case of a Safek l'Kula.

The MAHARSHA questions Tosfos' explanation and the Gemara. The end of the Mishnah in Bechoros (19b, which the Gemara here cites) states the following rule: when a Bechor is deemed to be a Safek, the Yisrael is permitted to eat the animal after it becomes blemished with a Mum. The Mishnah does not say that the animal must be given to a Kohen out of doubt!

Moreover, the Gemara later (29a) discusses an animal that was known to be pregnant but now is not pregnant, and there is a doubt about what happened in the interim. The next offspring of the animal is deemed to be a Safek Bechor. RASHI there (DH Bechor mi'Safek) explains that the Halachah is that the Yisrael owner may eat the animal when it becomes blemished. Why, then, does the Gemara here say that a Safek Bechor must be taken out of the hands of the Yisrael and given to the Kohen?

(a) The RASHASH and the MAHARI SHAPIRA answer that the Gemara in Bechoros (20a) provides support for the explanation of Tosfos. The Mishnah there (19b) discusses the case of an animal that has a child that is a Safek Bechor, and it says that a Safek Bechor may be eaten by the owner when it becomes blemished. Rebbi Yishmael says that when a one-year-old goat gives birth, the child is certainly the firstborn because a goat cannot have two births within its first year. Rebbi Yishmael gives other age limits for other animals. The Gemara there (20a) quotes Rebbi Yehoshua who disagrees with Rebbi Yishmael and says that such age limits are not relevant, because the Halachah is that Tinuf (a discharge composed of dissolved particles of blood that comes out of an animal that had an early miscarriage) exempts the next birth from the laws of Bechorah. Accordingly, it could be that the one-year-old goat had Tinuf not long after it was born, and then it had another child within its first year. This means that the child to which it gave birth is a Safek Bechor, and the owner should be allowed to keep it.

The Gemara there clear refers to giving the animal to a Kohen. Rebbi Yehoshua there says only that Tinuf exempts an animal from being given to a Kohen. He does not mention that a dirty Shefir has the same status. This proves that the law of an ordinary Safek Bechor does not apply to a birth that follows a dirty Shefir, but rather such an animal must be given to a Kohen.

Why, though, may the owner keep the Safek Bechor in the case of Tinuf, but he may not keep the animal in the case of a dirty Shefir? What is the difference between these cases?

The Mahari Shapira explains that there is a difference between a Safek in Metzi'us (what actually happened) and a Safek in Din (what is the Halachah). In the case of Tinuf, there is a doubt about whether or not the Kohen has a right to the animal, since its mother might have had Tinuf before it was born. This is a doubt about what actually happened, a Safek in Metzi'us. In such a case, the normal principle of Safek Mamon l'Kula applies. In contrast, in the case of a dirty Shefir, the doubt is about what the Halachah is: does the birth of a dirty Shefir exempt the next birth from the laws of Bechor or not? In the case of such a doubt, the owner cannot be permitted to keep the animal, since he eventually will treat it like an ordinary animal. This is like an ordinary case of Safek Isur d'Oraisa, in which case one must conduct himself stringently.

(b) The CHOCHMAS BETZALEL proposes a novel approach. He answers that although Tosfos says that the animal is taken out of the Yisrael's hands, the Kohen does not keep the animal for himself. He merely watches it for the Yisrael until it becomes blemished, at which time he gives it back to the Yisrael to eat in accordance with the Mishnah in Bechoros (19b) quoted by the Maharsha.

Why should the Yisrael give the animal to the Kohen? The Kohen is also forbidden from working with the animal and shearing it until the animal becomes blemished! The Chochmas Betzalel answers that Kohanim are known to be "Zerizim," zealous in their performance of Mitzvos, and therefore they are less likely to derive benefit from the animal, especially when they know that it belongs to the Yisrael and not to them. (Y. MONTROSE)

QUESTION: The Gemara discusses the Torah law that a woman does not become Tamei when she sees blood during Yemei Tohar, the days of Taharah after giving birth. However, the Gemara relates that Rebbi Zeira said that women nowadays are especially stringent with regard to the laws of Nidah, and "they observe seven days of Tum'ah after seeing even a drop of blood like a mustard seed" (Berachos 31a, Nidah 66a).

Nowadays, when a woman sees blood during her Yemei Tohar after giving birth is she Tahor or is she considered Tamei as a stringency?

ANSWER: The RAMBAM (Hilchos Isurei Bi'ah 11:6) writes that the Ge'onim decreed that a woman should be considered Tamei when she sees even the smallest amount of blood during Yemei Tohar. He concludes (11:7) that, in practice, whether or not blood seen during Yemei Tohar makes a woman Tamei depends on the custom of the region. In France, the practice was to permit a woman to her husband if she saw blood during Yemei Tohar, while in other places they were stringent.

The REMA (YD 194:1) rules that the accepted custom is to follow the Chumra of the Ge'onim. The VILNA GA'ON quotes the RASHBA who explains that the Ge'onim prohibited a woman who saw blood during Yemei Tohar due to the possibility that her baby's head left the womb and entered the Prozdor (causing it to be considered "born" from a Halachic perspective) a few days before the birth, and therefore the Yemei Tohar may have started earlier and thus already ended.

According to the custom to consider a woman Tamei when she sees blood nowadays during Yemei Tohar, must a woman recite a blessing for her Tevilah when she immerses in a Mikvah after seeing blood during Yemei Tohar?

1. The DAGUL MEREVAVAH rules that when a woman immerses after her Yemei Tum'ah and then sees blood during her Yemei Taharah, although we are stringent and require that she count seven clean days like an ordinary Nidah, she should not recite a blessing when she goes to the Mikvah. Since her Tevilah is necessary only because of the custom to observe the Chumra of the Ge'onim, and it is not a Mitzvah d'Rabanan or d'Oraisa, no blessing is recited.

2. The TESHUVAH ME'AHAVAH (#68) writes that he discussed this question at length with his Rebbi, the NODA B'YEHUDAH, the author of Dagul Merevavah. He writes that his Rebbi came to no conclusive ruling as to whether the woman should recite a blessing.

3. The CHASAM SOFER (YD #191) rules that since the custom is to treat blood seen during Yemei Tohar as Dam Nidah, a woman should recite a blessing upon immersing for such Dam, in the same way that one recites blessings for other established customs, such as for Hallel on Rosh Chodesh. This appears to be the accepted practice.

OPINIONS: The Mishnah states that if a woman miscarried a Sandal (a crushed fetus), she is considered a Yoledes. The Gemara quotes a Beraisa that says that a Sandal was originally a proper fetus, but it became crushed by the development of another embryo in the womb.

The Gemara asks, what difference does it make whether a Sandal is considered a child? It is always born with another, viable child (which crushed it), and thus the mother is a Yoledes on account of the live child! The Gemara answers that, indeed, the status of the Sandal is not relevant in a case in which it is born with a girl. The birth of a girl requires that the mother observe more Yemei Tum'ah and Yemei Taharah than the birth of a boy. When a woman gives birth to a Sandal and to a girl, although there is a doubt about the gender of the Sandal, the woman is already required to observe the maximum number of Yemei Tum'ah and Taharah, and thus the status of the Sandal is not relevant. When the Mishnah discusses the status of a Sandal, it refers to a case in which the Sandal was born with a boy. The Mishnah is teaching that the mother must be stringent and observe the Yemei Tum'ah of a girl and the Yemei Taharah of a boy due to the doubt about the gender of the Sandal (see RASHI 24b, DH ha'Mapeles Sandal).

The Gemara asks that this is obvious; it is not necessary for the Mishnah to teach that the woman must be stringent in such a case. The Gemara answers that one might have assumed that since the first one who is Mazri'a determines the baby's gender, if one baby is a male then the Sandal must be male as well. The Mishnah teaches that one cannot make such an assumption; it is possible that both the man and the woman were Mazri'a at the same time, causing one boy and one girl to be conceived. Therefore, the woman must be stringent and observe the Yemei Tum'ah of a girl out of doubt that perhaps the Sandal was a girl.

There seems to be another, simple scenario in which the Sandal might be a girl. Perhaps initially only one baby was conceived -- a girl. That fetus was later turned into a Sandal by a second, later conception (of a boy)! Why does the Gemara not suggest this answer?

(a) RASHI (45a, DH Sandal) explains that it is possible for a Sandal to form when a woman conceives a second time while already pregnant, and the second embryo crushes the first, turning it into a Sandal. He states that this is the intention of the Gemara's statement (45a) that a pregnant woman is permitted to use a Moch to prevent the fetus that she is carrying from being crushed by a second conception.

How, though, does Rashi understand the Gemara later (27a) that explicitly states that a woman cannot become pregnant once and then become pregnant again at the same time that she is pregnant with the first fetus? Rashi apparently understands that this means only that she cannot become pregnant a second time and successfully carry both fetuses to term. She can conceive a second time, however, and in such a case the first fetus will be turned into a Sandal.

TOSFOS (DH Ka Mashma Lan) asks that this Gemara seems to present a difficulty for Rashi. The Gemara answers that if the seed and the egg arrived at the same time, it is possible that a boy will be born along with a female Sandal. According to Rashi, why does the Gemara need to give a seemingly exceptional case of the seed and egg arriving exactly at the same time, causing the creation of a boy and a girl? Why does the Gemara not give a more common case of a girl who was conceived, and a boy who was later conceived which turned the girl into a Sandal?

(b) Tosfos quotes RABEINU TAM who argues with Rashi. He says that a woman never becomes pregnant when she is already pregnant, not even in a way that would make the first fetus a Sandal.

How does Rabeinu Tam understand the Gemara later (45a) that implies that we are concerned that a pregnant woman's fetus might become a Sandal if she becomes pregnant again? As cited by Tosfos in Yevamos (12b, DH Shema), Rabeinu Tam explains that the concern is that the woman is already carrying twins. Since there is not much space in the womb, we must be concerned that any seed that enters the womb might crush one of the existing embryos and turn it into a Sandal. That seed itself, however, cannot develop into a child, as the Gemara later (27a) says (a woman cannot become pregnant a second time while already pregnant). Rabeinu Tam, as cited by Tosfos in Yevamos, indeed mentions the question of Tosfos here on Rashi as his primary support.

Tosfos suggests an answer for Rashi. The Gemara does not answer with the case of becoming pregnant a second time while already pregnant because it is obvious that in such a case it is possible for there to be a girl Sandal together with the boy, and the Mishnah would not be teaching anything new. The Gemara is saying that there is a case that is not so obvious -- that even when there was only one act of marital relations for the entire duration of the pregnancy, it is still possible that the Sandal is a girl and we do not say that if the baby is a boy then the Sandal also must be a boy. (Y. MONTROSE)