QUESTION: The Mishnah states that a one-day-old baby is able to inherit and bequeath to others. In the Gemara, Rav Sheshes explains that the Mishnah means that the baby can inherit from his mother and then pass the inheritance to his half-brothers from his father. RASHI (DH Nochel) explains that if his mother died on the day that he was born, the baby inherits from her, and then if he dies, his half-brothers (from the same father and a different mother) inherit from him the properties of his mother. If not for the baby, the mother's property would never have reached the half-brothers.

The Gemara says that this law applies only when the baby is at least one day old when he dies. It does not apply to an unborn fetus, because when a pregnant woman dies her fetus dies first and thus does not inherit from the mother.

TOSFOS (DH Ihu), in his second explanation, writes that although the Gemara in Chulin (38b) mentions a case in which an animal that was carrying a fetus died and the baby survived, in that case the birth process had already begun and the baby had started to exit the womb. In such a case, it is possible for the baby to survive after the mother dies. However, Tosfos continues and says that even though the baby can survive independent of the mother once she goes into labor, when the Mishnah here states that one who kills a one-day-old baby is liable for the death penalty, this does not apply to one who kills a baby before its head emerges from the womb (crowning), since the baby is considered a living person ("Nefesh") only after the head emerges (Sanhedrin 72b). Tosfos adds, however, that it is possible that if the mother has already died, one who kills the baby even before it has emerged might be liable for the death penalty, because the baby now possesses life independent of the mother; even though it is still inside the mother, the mother provides it with no life force and it is no different from being inside an inanimate box.

Tosfos proceeds to ask that if we follow the most lenient stance and rule that one is permitted to kill a fetus while it is inside the mother even though the mother has died and we do not consider the baby an independent, living being, then why is one permitted to desecrate Shabbos in order to save the life of a fetus? The Gemara in Erchin (7b) teaches that when a woman dies in childbirth, one may carry a scalpel through Reshus ha'Rabim on Shabbos in order to perform a Caesarian section to save the baby.

How can Tosfos suggest that there is an opinion that permits the killing of a fetus inside of its mother? The Gemara in Sanhedrin (57b) quotes Rebbi Yishmael who states that a Ben Noach who kills a fetus is Chayav Misah. Tosfos there (59a, DH Leika) points out that since there is a principle that there is nothing which is permitted to a Jew and prohibited to a Nochri, it must be that even though there is no Chiyuv Misah for a Jew who kills a fetus, it certainly is forbidden for a Jew to do so! How, then, can Tosfos here suggest that there is an opinion that permits a Jew to kill a fetus?

(a) RAV YAKOV EMDEN in HAGAHOS YA'AVETZ answers that it must be that when Tosfos discusses the opinion that one is permitted to kill a fetus, the words of Tosfos are Lav Davka, because there indeed is no such opinion that permits killing a fetus (without a strong reason, such as to save the life of the mother; see Sanhedrin 72b). Even though a Jew is not Chayav Misas Beis Din for such an act, he nevertheless is forbidden to do so.

(See also RAV MOSHE FEINSTEIN zt'l in IGROS MOSHE (CM 2:69, DH Harei) who writes that there is a printing error in Tosfos. Instead of the words "one is permitted" to kill a fetus, the words of Tosfos should read "one is exempt" for killing a fetus. The Igros Moshe infers from Tosfos in Sanhedrin (59a, DH Leika) that although one is not Chayav Misah for such an act, the killing of a fetus falls into the category of murder. This is also the understanding of the MESHECH CHOCHMAH (beginning of Parshas Vayakhel) who writes that according to Tosfos, one who kills a fetus is Chayav Misah bi'Yedei Shamayim. The Igros Moshe also infers from the words of the RAMBAM (Hilchos Rotze'ach 1:9) that the Rambam maintains that aborting a fetus is akin to murder.)

(b) The BEIS SHLOMO (CM #132) points out that Tosfos in Chulin (33a, DH Echad) states that a Jew is not allowed to kill a fetus (see also Tosfos in Sotah 26a, DH Me'uberes). The Beis Shlomo suggests that to understand the words of Tosfos here, one may suggest that Tosfos in Sanhedrin (59a) and in Chulin (33a) are following the view of Rebbi Yishmael who maintains that a Ben Noach is Chayav Misah for killing a fetus, and thus it follows that a Jew is also forbidden to kill a fetus. Tosfos here in Nidah, however, sides with the Tana Kama in Sanhedrin (57b) who argues with Rebbi Yishmael and maintains that a Ben Noach is not Chayav Misah for killing a fetus. According to the Tana Kama, it is possible that there is no prohibition whatsoever for a Nochri to kill a fetus, and thus there also is no prohibition for a Jew to kill a fetus.

QUESTIONS: The Mishnah states that a girl who is three years and one day old can become married through Bi'ah. RASHI (DH Miskadeshes) explains that her father's act of handing her over to the husband for Bi'ah effects the Kidushin. The Mishnah continues and says that if a girl who is three years and one day old becomes Mekudeshes to a man, and then another man has relations with her, he is Chayav Misah for transgressing the Isur of Eshes Ish. Rashi (DH v'Chayavin) explains that if her father receives money of Kidushin from the first man and then another man has relations with her, the second man is put to death, because relations with a girl three years and one day old is considered a valid act of Bi'ah.

Why does Rashi give two different explanations for the first and second cases of the Mishnah? In the first case of the Mishnah, Rashi explains that the father of the girl married her off by handing her over for Bi'ah. Why, in the second case of the Mishnah, does Rashi say that the father married her off by accepting money of Kidushin? (See also Rashi to Sanhedrin 55b, DH v'Chayavin.)

Also, why is it necessary for the second part of the Mishnah to say that the other man who has relations with her is Chayav Misah because she is an Eshes Ish? The Mishnah later teaches this when it says that if any man who is forbidden to her has relations with her, he is put to death for this act. (See Sanhedrin 55b, and Tosfos there, DH v'Chayavin.)

(a) The TOSFOS YOM TOV (end of DH v'Chayavin) explains why Rashi changes his explanation for how the girl became Mekudeshes. In the second case of the Mishnah, the manner in which the first man was Mekadesh the girl is not relevant; it matters only that he was Mekadesh her. Since the first manner of effecting Kidushin listed in the Mishnah in Kidushin (2a) is Kesef, Rashi explains that this is how the man was Mekadesh her in this case.

(b) The ARUCH LA'NER answers both questions with an ingenious solution, as follows. The Gemara in Kidushin (10a) discusses the verse (Devarim 22:24) that teaches that when another man has relations with a Besulah Me'urasah (a young woman who was betrothed), "both of them" ("Shneihem") must be put to death by Sekilah. Rebbi Yoshiya there explains that the word "Shneihem" teaches that in order to be Chayav Sekilah, "they must be equal." Rashi there explains that this means that both the man and the woman must be old enough to be subject to punishment in order to be Chayav, as opposed to a case in which an adult man has relations with a minor girl. The RITVA explains that this does not mean that if the girl is a minor, the man who sinned with her is exempt from punishment altogether, because the Mishnah here says that anyone who has relations with a minor girl is liable. Rather, Rashi means that if either of them is a minor, then the other one is not punished with Sekilah, as prescribed for one who sins with a Ne'arah ha'Me'urasah. Rather, the adult is punished with Chenek, the punishment for sinning with an Eshes Ish.

The Aruch la'Ner points out that this answers the second question. The Mishnah states that one who has relations with the young girl is Chayav for Eshes Ish, because the Mishnah is teaching the law of Rebbi Yoshiya, who says that since the girl is a minor the man is liable for Chenek, the punishment for sinning with an Eshes Ish. He is not punished with Sekilah, since that punishment applies only when both the man and the woman are old enough to be subject to punishment.

This also answers the first question. Rashi writes that the father received money for his daughter's Kidushin, and not that there was a Kidushin of Bi'ah, because had there been a Kidushin of Bi'ah, the girl would no longer be a Besulah! Consequently, even if she is an adult, a man who has relations with her would not be liable for Sekilah because the law of a Me'urasah no longer applies. The Mishnah is teaching that even though the girl is still only betrothed (an Arusah) and not yet fully married (a Nesu'ah), one who has relations with her is punished with Chenek (because she is a minor), the punishment for an Eshes Ish. He is not punished with Sekilah, because Sekilah for a Me'urasah applies only when both of them are liable, but not when one of them is exempt due to being a minor. (D. BLOOM)