The Status of a Fetus in Halacha: What is the Definition of Life? (Part 6)

To briefly review, the Rambam associates the fetus with a rodef when explaining why one is allowed to sacrifice a fetus in order to save the life of its mother. Thus, to explain the reasoning of the Rambam, we are now exploring the sugya of “rodef” (pursuer) and why one is allowed to kill a rodef.

Let us start with analyzing the Torah sources for why one is allowed to kill a rodef:

You Can Kill a Rodef to Save the Nirdaf

The Mishnah (Sanhedrin 73a) teaches us that we are allowed to kill a rodef, stating as follows:

תלמוד בבלי מסכת סנהדרין דף עג עמוד א

משנה. ואלו הן שמצילין אותן בנפשן: הרודף אחר חבירו להרגו, ואחר הזכר, ואחר הנערה המאורסה.

אבל הרודף אחר בהמה, והמחלל את השבת, ועובד עבודה זרה אין מצילין אותן בנפשן.

And these are the ones who are saved at the cost of their lives: One who pursues another to kill him….

It is important to note that the Mishnah uses the lashon (language) of "saving" when discussing the heter to kill the rodef. Who are we saving? Assumedly, this is referring to the nirdaf (the person being pursued), but this is not specified in the Mishnah.

Additionally, the Mishnah does not clarify whether we are "allowed" to kill the rodef or are "obligated" to do so. The Ran (Sanhedrin 73a)[1] explicitly states that we are obligated to kill the rodef, as it is a mitzvah.

However, one could easily argue that since this is a very strange and unique circumstance, with many competing factors and values at hand, perhaps there is only a heter to kill the rodef.

Furthermore, it is brought down, and quoted by the Rambam and others, that one must initially try to stop the rodef by any means other than killing him. Meaning, before killing him, you must first try to stop him by wounding him or debilitating him; killing him is only a last resort. Only if nothing else can stop the rodef are you allowed to kill him.

Clearly, killing a rodef is not only a complicated halacha, but only bidieved (a secondary choice). We are therefore left with a fundamental question:

Why are we allowed to, or supposed to, kill a rodef? In all other cases in the Torah, we do not allow someone to kill one person in order to save another. Granted, the rodef is trying to kill someone, but why does this warrant his murder? After all, he hasn't committed the crime yet?

As always, there are several different approaches to this question. Before analyzing the Rishonim and mekoros inside, we will first lay out the spectrum of possible approaches.

Outlining the Different Approaches for Why We Can Kill a Rodef:

 1) Saving the Rodef from the Aveirah

The first possible explanation is that we are doing an act of chesed on behalf of the rodef; essentially, we are saving him from himself. If we don't intervene, we would be allowing the rodef to violate one of worst sins imaginable: murder. Thus, by ending his life, we help him avoid this horrible fate. This also explains why we try to maim him without killing him, as the goal is not to kill him, but only to stop him from performing the aveirah of murder.

This is similar to the way many commentators understand the sugya of Ben Sorer U'Morer. We judge him based on his current trajectory (Nidan Al Sheim Sofo), and intervene to prevent this undesired outcome.

2) Chayiv Missah

Alternatively, it is possible that this is a unique case where the rodef is actually chayiv missah because he is trying to kill someone. Why? There are two possibilities:

1. We view it as if the rodef has already committed the murder – in which case he is chayiv missah for having already murdered this person.
2. Or, the very act of trying to kill someone is itself such a heinus act that it is deserving of the death penalty.

As such, we are not choosing one life over another; rather, by trying to kill the nirdaf, the rodef has forfeited his life and is chayiv missah. Granted, this is unique in that the rodef has not committed the actual aveirah of murder yet; however, in this case, his chiyuv missah is not generated from the "act" of murder, but rather, for being in the process of trying to execute a murder; thus, it is the "rishus ha'gavra" (the status of becoming an evil person) that creates the chiyuv missah, not the act of murder.

And again, if we are able to stop him by maiming him, that is still preferable, because this is not nearly as severe of a chiyuv missah as it would be if he had already committed the murder; and in the deepest sense, we don't want to kill him; it is only that if we are unable to stop him, that it then becomes a mitzvah to kill him.

3) Hatzalas Ha'Nirdaf: Saving the Victim

There is, however, a third way to explain the din of rodef: usually, we cannot kill one person to save another. However, through the din of rodef, the Torah is teaching us that when a person is trying to kill someone else, that person takes on the status of a rodef, and can now be killed. And even though we are normally not allowed to cannot kill one person to save another, there are two possible explanations for what changes in the case of a rodef:

1. The issur of murder disappears: since the rodef is attempting to murder someone, it is no longer considered an aveirah of murder to kill the rodef first.

2. The din of “mei chazis” no longer applies: normally, the reason we cannot kill one to save another is because "we don't know whose life is more valuable[2]. In other words, we can't play God. However, in this case of a rodef, there are two possible things that could change:
   • Hashem does value the victim's life more than the rodef’s life.
   • We still don't know whose life is more valuable, but by actively creating this dangerous situation, the rodef forfeits his right to the claim of "we don't know whose life is more valuable." Thus, saving the life of the nirdaf now takes precedence.

In our next article, we will continue to analyze this fascinating halachic topic.

[1] חידושי הר"ן מסכת סנהדרין דף עג עמוד א

וא"ת ולמה איצטרך לרוצח למילף מנערה מאורסה להצילו בנפשו ברוצח גופיה אית לן קרא בהדיא דניתן להצילו בנפשו דהיינו בא במחתרת דאמר רחמנא הבא להרגך השכם להורגו דאין לו דמים וילפינן לקמן והוכה ומת אפילו בכל אדם שיכולין להרוג הגנב כמו הבעל בית ואם כן הם מצילין הבעל הבית מיד הגנב בנפשו של גנב לפי שהוא רודף

. ויש לומר דמאי דרשינן והוכה בכל אדם היינו לומר שכל אדם יכולין להרגו אם ירצו כמו שנתן רשות לבעל הבית אבל אין בו חיוב מצוה להרגו אבל השתא דילפינן מנערה מאורסה אתא למצוה ממש לרודף אחר חבירו להרגו שמצוה להרוג הרודף ולהציל הנרדף

[2] The Gemara often uses the lashon of "mei chazis” when explaining this svara. The full phrase is: “Who says your blood is redder? Perhaps his blood is redder?”