I have reviewed over the past weeks the discussions relating to the laws of BP, and with Gd’s help have arrived at a clear understanding of these matters.

 

Firstly, the foundations of this law must be explained.

*  what makes the BP permitted for consumption in spite of it not being Shechted;

*  what makes its Cheilev fats [forbidden in all other cows sheep and goats] permitted;

*  what makes its Gid [sciatic nerve, prohibited in all other animals] permitted;

*  what makes the progeny permitted as BP;

*  and most surprisingly, what makes the BP exempt from the prohibitions of Kilayim and Revia [the prohibition of harnessing two beasts of differing species and the prohibition of using animals in a perverse fashion] at least according to some opinions.

 

It is absolutely clear and beyond argument that it is insufficient to argue that since the foetus comes from the slaughtered mother, it too must be deemed to be slaughtered. If we were to Shecht a bull and a cow and immediately perform medical procedures to ensure their survival and then mate those animals, it is simply not credible to argue that the baby born of such a union would be deemed to be already Shechted and and therefore fit for immediate consumption.

 

Neither could we reasonably suggest that the Cheilev and Gid of this baby be permitted. Besides, such an argument fails to explain how the future generations of BP exhibit the identical qualities of their parents.

 

So we have no logical Halachic structure that permits us to understand how BP works.

 

It therefore appears in my humble opinion, that the Torah is disclosing that the BP is a new entity. Just as the mother becomes a ‘food’ following its Shechitah when it is found to be free of Tereifah blemishes, so too all that is within it including the foetus [כל אשר בבהמה תאכלו] is also deemed to now be ‘food’. The meaning of the פסוק is accordingly quite elegant - “Whatever is within the animal that has become a food through Shechitah is also deemed to be a food”. ‘Food’ -

• does not require Shechitah,

• has no prohibited Cheilev or Gid and

• is not prohibited as Kilayim or Reviah.

 

We may characterise this as UchLa DeIfris - during Shabbos we are not permitted to squeeze juice from a fruit as a drink but we may squeeze a fruit to extract its juice to flavour a salad or any solid food. Halahca defines this as being equivalent to cutting off a slice of the fruit, UchLa DeIfris.

 

So too, this BP has a new identity - ‘food’ and as such it has no Cheilev or Gid, is not disqualified as a Tereifah, and produces progeny in its own image, ‘food’. If however the mother is Shechted but found to be a Tereifah, then she does not become a ‘food’ and there is no law of BP applicable to the foetus found within it.

 

Now we will define the status of the live, non-fully gestated foetus - the LB8.

 

*  The ShA YD 15 explains that a fully gestated baby may be Shechted on the same day it is born.

*  If we are unsure if it is fully gestated, then we must wait for 8 days before being permitted to Shecht it since it may be a non-fully-gestated baby which cannot be Shechted, as per the Mishnah Chullin 72b.

*  Implied in the words of the ShA is the ruling that a foetus born as a certain non-fully-gestated, will never become an animal that can be Shechted no matter how long it lives.
8 days serves only to clarify a doubtful case, not a case in which the baby is certainly not fully-gestated.

This can be explained in the following manner: The Acharonim [from memory the Kovetz Shiurim, Reb Elchonon Wasserman] explain that the Torah employs the notion of Rov [majority] not to verify the actual facts but to guide us in how to deal with various circumstances. For example, a man with two wives, one of whom is expecting his first child, dies. If this expectant mother suffers a miscarriage, then this man’s wives may not marry until the deceased husband’s brother marries one of the wives [levirate marriage] or releases them via Chalitza.

 

We however permit the wives to remarry even before the baby is born and known to be viable, based upon the principle of Rov, most pregnant women deliver a viable baby. Clearly we are not establishing facts, we are merely indicating an approach based upon reasonable expectations.

 

We apply the same framework to baby animals.

*  As per the Mishnah Chullin 72b and ShA YD 15 all non-fully-gestated animals cannot be Shechted. This is founded upon the fact that most although not all non-fully-gestated animals do not survive. Here we see the Halacha is not founded upon facts [does the animal live or not] but upon an approach that is founded upon reasonable expectations.

 

[MGR: I disagree with this analysis; the Mishnah, Rashi, RaMBaM (שאר אבות הטומאות ב:ו - מצא בה בן ח' חי ... אין שחיטתו מטהרתו מידי נבילה לפי שאין למינו שחיטה) and other Rishonim all classify this non-fully-gestated as not being categorised as Bakar or Tzon i.e. it is not an animal. It cannot be Shechted (in the context of the Mishnah - Shechting this animal is equivalent to Shechting a horse, neither have any association with Shechiath) because it has no Simanim, only Bakar and Tzon have Simanim]

 

*  We also refer to Rov for guidance when we are unsure if an animal is fully or not fully gestated, the Rov being that most babies are born fully gestated. However this Rov is not a compelling Rov and therefore requires support from other factors i.e. that it lives for 8 days. Thus the Mechaber YD 15 rules that a baby of unknown gestation, can be Halachically deemed fully-gestated if it survives for 8 days. Again, we are not establishing a fact that this is a fully-gestated baby but only following the rule of how to deal with this situation, in spite of the facts possibly being to the contrary.

 

*  When the circumstances indicate that the baby is fully gestated, although there is a possibility that it is not, we nevertheless permit Shechting it the same day it is born, again based upon a Rov but this Rov is compelling. Once again, we are not stating a fact but following a Halachic guideline.

 

We can now explain why the Rama differentiates his ruling between YD Siman 13 where the baby is found within the Shechted mother, meaning there is no birth and Siman 15 where the baby is born from a live mother.

 

Where there is a birth, we have a Rov, although not a compelling Rov, that most babies are born fully-gestated. Accordingly, where some doubt exists, we require that the baby live for 8 days after which we can Halachically deem the animal to be fully-gestated and Shechtable.

 

However, where the mother has not given birth nor has she experienced the normal birth contractions, but the baby was found in the dead mother, the Rama rules that this baby can never be deemed to be a fully-gestated baby notwithstanding it living 8 days or even 8 years.

 

An animal that has initiated normal birth contractions and due to various considerations a cesarean cut is made to extract the baby, may well be considered amongst the Rov that are born fully-gestated.

 

In conclusion we can assert with confidence that a live BP found as a definite non-fully-gestated baby, is fully, permanently permitted including its Cheilev fats and its Gid, even according to the RaMBaM who prohibits the Cheilev of a fully-gestated BP by Torah Law.