OPINIONS: The Gemara concludes that "Tevilah b'Zemanah Mitzvah" -- whether Tevilah at the prescribed time is a Mitzvah -- is the subject of dispute. This dispute has very relevant ramifications in practice. For example, whether a woman must make every effort to immerse in a Mikvah at the earliest opportunity, even if she is not pressed to do so (such as when her husband is not in town), depends on whether "Tevilah b'Zemanah" is a Mitzvah or not. What is the Halachah?

(a) TOSFOS (DH u'Shema Minah) quotes RABEINU CHANANEL and RABEINU ELIYAHU HA'ZAKEN who rule that it is a Mitzvah to go to the Mikvah at the earliest possible time. This is also the opinion of RAV ACHAI GA'ON (She'ilta 96), the BEHAG, and others.

(b) Tosfos rejects this ruling and points out that that the prevalent custom is not be careful to go the Mikvah at the earliest opportunity. According to Torah law, a woman may immerse in the Mikvah at the conclusion of her seven-day period of Nidah. However, the Chachamim instituted that every woman observe seven clean days before immersing, even if she has a Veses Kavu'a. If the Halachah is "Tevilah b'Zemanah Mitzvah," then a woman should be required to immerse in the Mikvah as soon as the Torah allows her to, even though it will not permit her to her husband. Similarly, even if a woman knows that she is a Shomeres Yom k'Neged Yom according to Torah law, the Halachah today is that she does not immerse until she has counted seven clean days. It must be that the Halachah follows the opinion that Tevilah b'Zemanah is not a Mitzvah. This is also the opinion of the ME'IRI.

The BEIS YOSEF and BACH (YD 197) argue that this is not a strong proof against Rabeinu Chananel. Rabeinu Chananel did not mean that "Tevilah b'Zemanah Mitzvah" requires that a woman immerse in the Mikvah on those days. Once the Chachamim enacted those stringencies, the appropriate time -- "Tevilah b'Zemanah" -- for a woman to immerse became the time that the Chachamim enacted that she immerse. The Halachah of Tevilah b'Zemanah requires that she immerse at the earliest time that the Chachamim allow.

Nevertheless, the Beis Yosef and many others (see ARUCH HA'SHULCHAN) write that the custom follows the opinion of Tosfos. This is why women do not immerse unless it affects their husbands. When it does affect her husband (such as when he is in town), it is a Mitzvah for her to immerse at the earliest opportunity. The Beis Yosef cites support for this ruling from the Gemara in Eruvin (63b), which says that Yehoshua was held accountable for causing the Jewish men to abstain from being with their wives for one night.

The Beis Yosef adds that a woman who refrains from immersing in a Mikvah in order to persecute her husband sins. He quotes the Zohar that says that such a woman causes many evil things to happen to the world. However, when her husband gives permission, she is allowed to delay her immersion. (Y. MONTROSE)

QUESTION: The Mishnah teaches that a woman who miscarries within forty days of conception is not Tamei with Tum'as Leidah, because an embryo less than forty days old is not considered a child.

If an embryo less than forty days old is not considered a child, is it permissible to willfully abort such an embryo?

ANSWER: The Gemara in Sanhedrin (58a) states that a Nochri is Chayav Misah for killing a fetus, but a Jew is not Chayav Misah for killing a fetus. TOSFOS in Chulin (33a, DH Echad) points out that even though a Jew is not Chayav for aborting a fetus, he is forbidden from doing so. While it is not considered murder, a Jew is forbidden from actively preventing the birth of a Jew.

Moreover, the RAMBAN (cited by the RAN in Yoma 82a) quotes the BEHAG who rules that one is permitted to desecrate Shabbos in order to save the life of an embryo even less than forty days from conception. (The Ran there cites dissenting opinions.)

RAV MOSHE FEINSTEIN zt'l (Igros Moshe CM 2:69) concludes that if desecrating Shabbos in order to save an embryo less than forty days old is permitted, then aborting such an embryo must be forbidden. The fact that one may desecrate Shabbos to save the embryo indicates that it is considered a person, and thus killing it is forbidden. (See, however, TOSFOS in Nidah (44a, DH Ihu) who presents reasoning contrary to this logic, as Rav Moshe Feinstein points out.) (See Insights to Erchin 7:1 and Nidah 44:1.)

QUESTION: The Gemara teaches that an angel teaches the entire Torah to the fetus in the womb. When the child is born, an angel slaps its mouth and it forgets all of its learning.

What point is there in teaching the fetus the entire Torah if the fetus is going to forget it all at birth?

ANSWER: The VILNA GA'ON (in KOL ELIYAHU #240, and as quoted by the CHOCHMAS BETZALEL) explains the Gemara here based on the words of the ALSHICH. The Alshich explains that within the framework of nature it is impossible for a person to truly fathom the depths of the Torah. Man's existence in this world is physical, and his body is soiled with sin, while the Torah is sacred and spiritual. In order to make it possible for a Jew to transcend his earthly limitations, Hash-m brought the Neshamah of every Jew to Har Sinai at the time of the giving of the Torah. In that way, every Jew would have his own personal connection to the Torah. The Alshich explains that this is the meaning of the prayer we say at the end of every Shemoneh Esreh, "And give us our share in Your Torah." Each person has his own share in the Torah that his Neshamah received at Har Sinai.

The Vilna Ga'on adds that not only was it necessary for every Neshamah to be at Har Sinai, but every person needs to be taught the Torah while in a state of purity, as a fetus. He is then made to forget it in order to have to toil to regain it, and thereby to earn eternal reward.

The Gemara in Megilah (6b) quotes Rebbi Yitzchak who states that if a person says, "I have toiled [in learning Torah], but I have not found [success]," or "I have not toiled, but I have found [success]," do not believe him. If a person says, "I have toiled and I have found [success]," then believe him ("Yagati u'Matzasi, Ta'amin"). These two expressions, "Yagati" and "Matzasi," seem to be incompatible. One toils to attain something through his effort, while one finds something without effort. The Vilna Ga'on explains that since a person was taught the entire Torah in the womb without any effort on his part and then he was made to forget it all, his Torah learning is considered a lost item which he eventually can reclaim through his toil.

The Chochmas Betzalel adds that this is what David ha'Melech meant when he said, "Zemiros Hayu Li Chukecho b'Veis Megurai" -- "Your statutes were songs to me in my dwelling place" (Tehilim 119:54). David was referring to the period during which he learned Torah effortlessly in his mother's womb, "like a song."

QUESTION: The Gemara relates that an oath is imposed on every person before he is born. He is told, "You must be a Tzadik, not a Rasha; even if everyone tells you that you are a Tzadik, consider yourself a Rasha."

This seems to contradict the Mishnah in Avos (2:13) which states, "Do not view yourself as a Rasha." Why does the Gemara here teach that one should consider himself a Rasha? (SEFER HA'TANYA, ch. 1)

(a) RASHI in Avos explains that the Mishnah there means that one should not perform any act that he might regret later. Certainly, though, a person should consider himself a Rasha, so that he will constantly be striving to do Teshuvah.

(b) The BARTENURA explains that the Mishnah in Avos is instructing a person not to act like a Rasha in a specific manner -- by isolating himself and separating himself from the community.

(c) RABEINU YONAH answers based on the Gemara in Kidushin (end of 40a). The Gemara there says that a person should always view himself as though he has the same number of merits as he has sins. By performing even a single Mitzvah, he tips the scale in his favor, while by performing even a single sin, he tips the scale against him. The Gemara here in Nidah means that a person should always consider himself not yet a Tzadik and he should always strive to become better. The Mishnah in Avos teaches that a person should never think that he is so evil that he no longer can repent. The Sefer ha'Tanya (ch. 13) offers a similar answer and adds that the Gemara here does not say that a person should be "a Rasha" in his own eyes, but rather that he should be "like a Rasha" in his own eyes. He should realize that he still has potential to develop and to grow more in his Avodas Hash-m.

(d) The MAHARSHA explains that the Gemara here does not mean that a person should think that he is presently a sinner. It means that he should remember that he might be the Gilgul of a sinner. According to this understanding, the Gemara's statement does not contradict the Mishnah in Avos at all. The Mishnah there is discussing a person's present state of existence, and it means that one should not view himself in his present incarnation as an evildoer. (E. Chrysler)