OPINIONS: The Mishnah (28a) records a dispute between the Tana Kama and Rebbi Yosi about when a Nefel is considered to have been born. The Tana Kama maintains that if a Nefel is born "Mechutach," it is considered born when most of it emerges. If it is born "k'Tikuno," it is considered born when the head emerges. Rebbi Yosi argues that only if it comes out "k'Tikuno l'Chayim" is it considered born when the head emerges. The Gemara explains that "k'Tikuno l'Chayim" refers to a majority of the head.

If "k'Tikuno l'Chayim" means that a Nefel is considered born when the majority of the head emerges, in what case do Rebbi Yosi and the Tana Kama argue?

(a) Some Rishonim explain that Rebbi Yosi requires that more of the body emerge than the Tana Kama requires. RASHI (DH Ela Amar) explains that the Tana Kama maintains that when the head emerges, it is considered a birth even if the head is in pieces. Rebbi Yosi argues and maintains that the emergence of the head is considered a birth only when it is whole.

(b) TOSFOS (DH Michlal) quotes RABEINU CHANANEL who explains that Rebbi Yosi maintains that the emergence of the head is considered a birth only for a live baby, but not for a Nefel.

(c) Tosfos quotes another opinion that explains that Rebbi Yosi requires that less of the body emerge than the Tana Kama requires. Tosfos explains that the Tana Kama maintains that only the birth of the entire head is considered a Leidah, while Rebbi Yosi maintains that as long as most of the head has emerged, it is considered a Leidah.

(d) The RITVA (in the name of Tosfos) explains that even according to the Tana Kama the emergence of most of the head is considered a Leidah. According to Rebbi Yosi, even the emergence of the temples (or "Karnei ha'Rosh") is considered a Leidah.

QUESTION: The Gemara discusses the dispute between the Tana Kama and Rebbi Yosi about when a Nefel is considered to have been born (see previous Insight). The RAMBAM (Hilchos Isurei Bi'ah 10:6) writes, "If the unborn baby is born in pieces, then it is considered born only when most of it emerges. If the entire head emerges whole, then it is considered the same as the birth of most of the child's body, and the child is considered born." The Rambam's ruling is quoted by the SHULCHAN ARUCH (YD 194:10).

The Rambam seems to require that two conditions be met in order for the emergence of the Nefel to be considered a birth: the head must be whole (i.e. not in pieces), and the entire head must emerge and not just most of it.

What is the Rambam's source for these two conditions?

(a) The source for the Rambam's first condition seems to be as follows. The Rambam understands that according to the second version of Rebbi Yochanan's statement, Rebbi Yochanan rules that a Nefel is considered born with the emergence of the head only when the head is whole. When the head is in pieces, even Rebbi Yochanan agrees that the Nefel is not considered born with the emergence of the pieces of the head (this is in contrast to Rashi's understanding of the Gemara). The Rambam rules like Rebbi Yochanan according to the Gemara's second version of his statement. Therefore, the Rambam rules that the head must be whole in order for the Nefel to be considered born with the emergence of the head.

(b) The source for the Rambam's second condition is as follows. The Gemara explains that the emergence of the head is considered the birth of the Nefel, because it is the same as the emergence of "most of the limbs." If the head is considered like only most of the body and not like the entire body, then obviously the entire head must be born. If only most of the head emerges, this cannot be considered a Rov (majority) of the body.

QUESTION: The Mishnah states that if a woman miscarries and is unsure of the gender of the fetus, she must conduct herself with the stringencies of both the birth of a boy and the birth of a girl. RASHI (DH l'Zachar ul'Nekevah) explains that she must consider her first 14 days as Yemei Tum'ah as if she had a girl (in contrast to the 7 days of Yemei Tum'ah of a boy), and she observes only 26 days of Yemei Tohar (the 33 Yemei Tohar of a boy less the 7 days of Yemei Tum'ah that she observed for the possible birth of a girl).

The Mishnah continues and says that if she had a discharge and is unsure what it was, she must suspect that she is a Nidah as well. Rashi (DH l'Zachar ul'Nekevah ul'Nidah) explains that in this case she observes no Yemei Tohar at all, since she may simply have become a Nidah, who has no Yemei Tohar.

The TOSFEI HA'ROSH (DH Teshev; see also TOSFOS DH Teshev) asks that in this second case, the woman should not have to observe 14 Yemei Tum'ah as one who gives birth to a girl must observe, because there is a Sfek Sfeika that she is Tahor. The first Safek is that it is possible that her miscarriage did not qualify as a birth at all. The second Safek is that even if she did give birth, it is possible that she had a boy and she is Tamei for only one week. Accordingly, why should she need to observe two weeks of Yemei Tum'ah?

(a) TOSFOS and the TOSFEI HA'ROSH answer that the logic of the Sfek Sfeika in this case causes another leniency which contradicts the leniency of not having to observe a second week of Tum'ah. What is the Halachah in a case in which the woman saw blood on day 34 after birth, and again on day 41? According to the logic of the Sfek Sfeika, she should be Tahor: the first Safek is that it is possible that she did not give birth at all, and thus when she sees blood on day 41 her Veses from day 34 should be over and she should now be only a Shomeres Yom (who can become Tahor the next day as long as she does not see Dam again). The second Safek is that even if she did give birth, it is possible that she gave birth to a female, in which case both times that she saw blood (on day 34 and day 41) are included in her Yemei Tohar. Accordingly, she should be Tahor because of this Sfek Sfeika.

The Gemara later (30b), however, rules otherwise and says that we must suspect that the woman gave birth to a boy, in which case she must observe 7 Yemei Tum'ah and 33 Yemei Tohar. This means that when she sees Dam on day 41, we suspect that she is now a Nidah, and she must wait until day 48 to become Tahor. Why does the Gemara not say that this case is a Sfek Sfeika? It must be that a Sfek Sfeika cannot be applied in a case in which the Sfek Sfeika results in a contradictory leniency. That is, if -- in the case of the Gemara here -- we would eliminate the second week of Yemei Tum'ah due to the possibility that she was only a Nidah or that she gave birth to a boy, then we would not be able to say that she either did not give birth at all or that she gave birth to a girl in order to rule in the case of the Gemara later (30b) that she is Tahor after day 41. Since the application of a Sfek Sfeika in this case can cause situations of contradictory leniencies, the Gemara does not use it here at all.

Based on the words of Tosfos here, the TUREI EVEN explains a difficult Mishnah in Rosh Hashanah (29a). The Mishnah there states that a Tumtum cannot fulfill his obligation to blow the Shofar by listening to a Shofar blown by another Tumtum. The Turei Even asks that he should fulfill his obligation due to a Sfek Sfeika. If the Tumtum blowing the Shofar is a male, then he can blow for others. If the Tumtum is a female, then it is possible that the other Tumtum is also a female and fulfills her obligation by hearing another woman's Shofar-blowing. The Turei Even answers this question based on the words of Tosfos. If the Tumtum who blew the Shofar for the other Tumtum now wants to have a third Tumtum blow for him, in such a case (when the Mitzvah is one which a female cannot fulfill on behalf of a male) the same Sfek Sfeika should apply. However, if we apply the Sfek Sfeika in that case, then we are saying that when the Tumtum blows the Shofar for someone else we are considering the possibility that the Tumtum is a man, and when he wants someone else to blow the Shofar for him, we are assuming that the Tumtum is a woman. These are two contradictory leniencies that result from the Sfek Sfeika, and, therefore, the Sfek Sfeika does not apply. This explains why the Mishnah in Rosh Hashanah concludes that a Tumtum cannot fulfill the obligation of Shofar for another Tumtum. (Y. MONTROSE)

QUESTION: The Mishnah states that if a woman miscarries and is unsure of the gender of the fetus, she must conduct herself with the stringencies of both the birth of a boy and the birth of a girl. If she is unsure of whether it was a fetus or some other discharge, she must suspect that she is a Nidah in addition to the stringencies of the birth of a boy and the birth of a girl (see previous Insight).

Since the Mishnah's second case discusses a woman who does not even know if she miscarried a child, it seems that the Mishnah's first case discusses a woman who definitely miscarried a child, and she is merely unsure about whether it was male or female. This is the way RASHI (DH v'Ein Yadu'a Mahu) explains the Mishnah. Rashi explains that in the first case, even though the woman does not know whether the child was male or female, she knows for certain that it was a child.

However, the RAMBAM (Hilchos Isurei Bi'ah 10:19) seems to learn otherwise. He writes, "A woman who is pregnant and gives birth, and it is not known what she gave birth to -- for example, if she was crossing a river and miscarried into the river, or she miscarried it into a pit, or she miscarried it and it was torn up by an animal -- has the status of miscarrying and must observe [Yemei Tum'ah and Yemei Tohar] for a boy and for a girl. However, if she did not have the status of being pregnant and she had a discharge and is unsure what it was, she is a Safek Yoledes and must observe [Yemei Tum'ah and Yemei Tohar] for a boy, girl, and Nidah." The Rambam seems to be quoting the Mishnah, but he adds that in both cases the woman crossed a river and the thing that she miscarried is unidentifiable. How does the Rambam reach this conclusion?

ANSWER: The answer is simple. The Gemara quotes Rebbi Yehoshua ben Levi who says that a woman who crosses a river and miscarries something must bring a Korban Yoledes, because a majority (Rov) of women who are pregnant give birth to children. The Gemara asks that the second case of the Mishnah seems similar, and yet the Mishnah allows for the possibility that the woman did not give birth to a child. How is Rebbi Yehoshua ben Levi's statement reconcilable with the Mishnah? The Gemara answers that Rebbi Yehoshua ben Levi is discussing a case in which the woman was known to be pregnant, while the Mishnah (in the second case) is discussing a case in which the woman was not known to be pregnant (that is, she did not have a Halachic status of being pregnant). This is why, in the second case of the Mishnah, we must take into account the possibility that the woman is a Nidah.

The MAHARI SHAPIRA explains that the Rambam maintains that Rebbi Yehoshua ben Levi's case is actually the same as the first case of the Mishnah. (Y. MONTROSE)