The Status of a Fetus in Halacha: What is the Definition of Life? (Part 7)

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” and why one is allowed to kill a rodef.

Previously, we suggested three main approaches for why one is allowed to kill a rodef; we will now analyze these three approaches in greater depth:

1. Saving the Rodef from the Aveirah

Both Rashi and the Yad Ramah explicitly state that the reason we kill the rodef is to save the rodef from violating the aveirah or murder.

Rashi’s lashon is as follows:

רש"י מסכת סנהדרין דף עג עמוד א  

ואלו שמצילין אותן - מן העבירה.

בנפשן - ניתנו ליהרג לכל אדם כדי להצילן מן העבירה, ומקראי נפקי.

And the Yad Ramah’s lashon is as follows: 

יד רמ"ה מסכת סנהדרין דף עג עמוד א

ואלו שמצילין אותן מן העבירה בנפשן

A) Potential Proofs for this Shitah

There are several potential proofs for this shitah. One potential proof is the fact that the Mishnah says that "we save them by killing the rodef". It is very possible that the word “save” is referring to the rodef, and we are saving him from the aveirah of murder.

However, this is not such a strong proof, because this can just easily be referring to the nirdaf as well.

However, we could defend our initial premise by pointing out that the end of the Mishnah states that by the potential violation of Shabbos and Avodah Zarah, we do not save them (ain matzilin osan bi'nafshan); and in these cases, there is no nirdaf. (These are aveiros bein adam la’Makom: between one and Hashem.) Thus, in these cases, when the Mishnah says “save,” it is clearly referring to the person who is about to violate the aveirah, namely, the "rodef" of each case.[1]

Nevertheless, we can reject this proof as well. The Mishnah is split into two separate parts. Thus, it is possible that the beginning of the Mishnah is referring to saving the nirdaf (the recipient of the aveirah), while the end of the Mishnah is referring to saving the perpetrator (the rodef – who is about to violate the aveirah of avodah zarah and chilul Shabbos).

This could also be the underlying distinction between the first and second half of the Mishnah. When someone is a rodef and is about to hurt another person, we intervene to save the victim. However, when the rodef is trying to violate Shabbos or Avodah Zarah, since there is no human victim, we do not intervene to kill the rodef in to prevent the aveirah from taking place.

B) The Underlying Logic of this Approach

The underlying logic for this approach might be as follows: while life is infinitely valuable, there are some aveiros that are so severe and spiritually damaging that it would be better to die without violating it than to live and have violate it. And even though one would be chayiv missah if they successfully killed someone, and would then receive the death penalty as the onesh (consequence) for this aveirah, it is far better to die beforehand, and not have violated this aveirah, then to have perpetrated such a heinys crime and receive the death penalty as a kaparah (atonement).

Normally, we use the passuk of "V'chai bahem" (which means that you should live by the mitzvos, not die by them) to teach us that we can violate any aveirah to save our life. However, the Gemara (Sanhedrin 74a) teaches us that there are three main exceptions to this rule: murder, idolatry, and adultery. Among the explanations given for why murder is on this list is that murder is such a terrible aveirah that it is better to die without having committed such a terrible sin, than to live having done so.

As such, we are actually doing a chesed for the rodef by preventing him from spiritually destroying himself. The rodef now gets to die without the blemish of murder tainting his soul.

2. The Rodef is Chayiv Missah

Asserting that the rodef is chayiv missah for attempting to kill someone is a truly fascinating approach, especially given that the rodef has not actually committed the act of murder yet. Thus, we convicting him for an act that he is trying to perform, not one he has already succeeded in performing. Why is this the case? There are two main explanations we can suggest:

1) It is as if He Has Already Killed Him

According to this explanation, we would essentially be fast forwarding the "natural course" of events in order to see the natural outcome of the rodef’s current act. We are therefore able to define the rodef’s act as if it already completed (most probably for the sake of saving the nirdaf), and consequently, we can now execute the rodef.

A) Potential Proofs for this Shitah

The Gemara[2] states that when a rodef breaks keilim while chasing the nirdaf, he is pattur (from paying back the monetary damage) because he is "mischayiv bi'nafsho.” This sounds like the Gemara is using the concept of kim le b'd'rabah minei- that when one is chayiv for multiple onshim (punishments), they only receive the most severe of them. Thus, since he is chayiv missah (for murder), he is not chaiyv to pay for the monetary damage.

However, we can reject this proof for the following reasons:

• We can also interpret this Gemara (Sanhedrin 74a) to mean the following: the chiyuv missah is a result of the fact that you have to save the rodef from violating the Aveirah or save the nirdaf from being killed. Thus, the rodef receives a din missah, but not because we view it as if he actually violated the issur of retzicha.

• The fact that we are supposed to wound the rodef first, if possible, seems to imply that the rodef is not chayiv missah; because if he was chayiv missah, shouldn’t killing him should be our first option? However, this is not such a strong rejection, because we could argue that the only time he is really chayiv missah is when the only way we can stop him is by killing him. Furthermore, it is a tremendous chidush that the nirdaf or third-party bystanders are allowed to become vigilantes and carry out the law themselves, taking the law into their own hands. Normally, even if someone is chayiv missah, only Beis Din can enforce that din and execute the person. Thus, it makes sense that one would only be allowed to kill the rodef if killing him was the only means of preventing the act of murder.

2) The "Rishus Ha'Gavra (Evil Status of the Rodef) is the Michayiv (Source of his status)

Rav Yosef Dov Soloveichik suggested this approach,[3] and he explained as follows:

Normally, the reason one becomes chayiv missah is for the illicit act (the ma'asah aveirah) that they did. Thus, a rotzeach is chayiv missah for the act of killing someone, just like a ganav is punished for the act of stealing. Even if this person was previously a tzaddik, the act itself is what creates the chiyuv missah and his new status that goes along with it.

However, in certain cases, it's not the act that creates his status, but the person he has become; or more specifically, the person he currently is at the time the act is still being done. This principle can explain an entire host of topics that seem to fall into this same category, including:

1.  Ben Sorer U'Morer: The actions of the Ben Sorer U’Morer have started him down a path of no return, and turned him into a rasha.

2. Eideim Zomimim: when witnesses are caught to be lying (because other witnesses testified that these witnesses were in a different place at the time of their testimony), they are not chayiv for succeeding; they are only chayiv in beis din (shel matah) when they do not It is the attempt to attack the system of emes and beis din itself that creates their status, and that status creates the chiyuv.

3. Meisis: When someone tries to get someone else to serve avodah zarah, they are chayiv, even if they do not succeed. It is not the success of the act that creates their chiyuv, it is the very attempt to persuade someone perform the act of avodah zarah that creates it.

4. Zaken Mamrei: A zaken mamrei is one who goes against the majority ruling of Beis Din, because they believe their opinion to be the truth. Their act of personal ego threatens the fabric of the entire system of beis din, and it is this attempt to undermind the authority of Beis Din that creates their status of a zakein mamrei, regardless of whether they succeed. While the zakein mamrei might look like an admirable idealist, he's actually a danger to the system. At a certain point, when the system requires that he relent for the sake of a bigger picture, and he refuses to do so, it is revealed that it is not his conviction that drives him, but his ego. Yes, he is fighting for his ideals, but once he is unwilling to relent for the good of Klal Yisrael, we see his true colors, as well as his true intentions. And of course, he might not even know it; when he looks in the mirror, he might see a crusading idealist, but that is because he is enjoying being a maverick, and he is unable to see through an objective lens.

5. Rodef: The same is true of a rodef. Yes, he did not yet kill anyone. But, he is trying to kill someone, and that reveals that he has become an evil personal – at least at the current moment – and that warrants the death penalty.
   • If we can maim the rodef instead of killing him, should we? Yes, we would be chayiv to do so.
   • If he fails to kill to the nirdaf, is he still chayiv missah postfacto? No.

But within the boundaries of time that he is stil in the midst of trying to kill the nirdaf, the rodef receives this unique din gavra, and is thus chayiv missah.

3. Saving the Nirdaf

Many of the Rishonim and Achronim, including the Rambam[4], Yad Ramah[5], and Minchas Chinuch[6], seem to suggest that the only reason we are allowed to kill the rodef is to save the nirdaf (the victim being pursued). Defending this shitah is quite easy, as the Mishnah reads beautifully according to this opinion. The Mishnah would read as follows: "And these are the people who you can save (namely, the nirdaf) by taking their lives (namely, the rodef).

תלמוד בבלי מסכת סנהדרין דף עג עמוד א

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

The Big Question:

And yet, once we begin to break this down and analyze it, this shitah seems to be a very strange and unique. After all, the Gemara explicitly says that one is not allowed to kill someone in order to save a life (Sanhedrin 74a). If so, what changes in the case of a rodef, where both the nirdaf and an onlooking third party are now allowed to kill the rodef to save the nirdaf's life?

A Possible Explanation:

A major part of explaining this approach requires us to first understand why the Torah does not allow us to kill someone else in order to save a life.[7] There are three opinions mentioned in the Rishonim:

1. Chumras Ha’Aveirah: the aveirah is so severe. (Ramban)
2. You cannot play God and choose whose life is more valuable (Tosafos)[8]
3. All life is infinitely valuable, and therefore equally valuable, and therefore, you cannot play God and choose whose life is more valuable.[9]

Thus, in the case of rodef, we would have to explain each of these approaches as follows:

1. The aveirah is no longer so chamur, or perhaps, there is no longer an aveirah at all.
   • This could either be because the rodef essentially forfeits his right to life once he engages in the act of trying to kill the nirdaf, or because of a gzeiras ha'kasuv. The Gra’ch is mesupik between these two options.[10]

2. Hashem is telling us to choose the nirdaf's life; thus, we are not the ones playing God, as Hashem has already informed us how to act in this case.[11]

3. By trying to kill the nirdaf, the rodef's life is no longer equally valuable to the nirdaf's. Thus, to save the nirdaf, we can kill the rodef (if preventing the rodef in a less severe way is not possible).[12]

4. Combination of Chayiv Missah and Hatzalas Ha'Nirdaf

Another way of formulating the third option of hatzalas ha'nirdaf is to fundamentally connect it to the first option of chiyuv missah. The Rambam seems to imply that the essence of the Din Rodef is hatzalas ha'nirdaf. As such, this becomes our main focus, and ideally, we would simply stop the rodef in order to save the nirdaf, whether that means holding him back, injuring him, or cutting off a limb.

However, once it gets to the point where the only way to save the nirdaf is by killing the rodef, then the din of chiyuv missah takes hold, which allows us to kill the rodef in order to save the nirdaf's life. And the only reason this is so, even though the rodef did not yet kill the nirdaf, is because of the din of hatzlas ha'nirdaf; and the moment the rodef tried to kill the nirdaf, he forfeited his right to the claim of "who says your blood is redder" and "who are you to play God and decide who lives and who dies."

However, even when we are killing the rodef, and even if there is a din missah on the rodef, this only for the sake of saving the nirdaf. Which is why if the rodef fails to kill the nirdaf and goes back home, the din missah is no longer applicable and you would not be able to kill the rodef. It is only in the act of being a rodef, and in the timeframe of saving the nirdaf from the impending danger, that the rodef can be stopped at any cost necessary. Thus, the focus is always on saving the nirdaf, even if the means of doing so requires a status "chayiv missah" to be given to the rodef.[13] [14]

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

[1] The lashon of the Mishnah is 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.

[2] Sanhedrin 74a.

[3] In the name of his father.

[4] רמב"ם הלכות רוצח ושמירת הנפש פרק א הלכה ו

במה דברים אמורים בשעבר ועשה העון שחייב עליו מיתת בית דין, אבל הרודף אחר חבירו להרגו אפילו היה הרודף קטן הרי כל ישראל מצווין להציל הנרדף מיד הרודף ואפילו בנפשו של רודף.

[5] יד רמ"ה מסכת סנהדרין דף עג עמוד א

ואלו שמצילין אותן מיד רודפיהן בנפשם כלומר בנפשם של רודפים

[6] מנחת חינוך מצוה רצה-רצו

חזינן דהתירה התורה ש"ד מפני פ"נ היכי דהוי פושע כגון רודף וא"כ רציחה כזו התירה התורה מפני פ"נ כמו שאר עבירות

[7] This will be discussed in much greater depth in future chapters.

[8] According to this approach, there is a more valuable life, we just don't know which one it is. Thus, as humans, we can’t play God and choose who lives and who dies.

[9] This is another interpretation of Tosafos. According to this approach, all of life is equally valuable; thus, we can never sacrifice one life to save another.

[10] חידושי ר' חיים הלוי הלכות רוצח ושמירת הנפש פרק א .

וביאור דעת הרמב"ם בזה נראה, דהנה יסוד דין הריגת הרודף הלא הוא מדין הצלת הנרדף, ועיקרו הוא שנפש הרודף נדחה מפני פקוח נפשו של הנרדף, וכדתניא בסנהדרין דף ע"ד [ע"א] ריב"ש אומר רודף שהיה רודף אחר חברו להרגו ויכול להצילו באחד מאבריו ולא הציל נהרג עליו, הרי דכל ההריגה של רודף היא רק להציל את הנרדף, אלא דהלא בכל מקום אין דוחין נפש מפני נפש והכא ברודף הוי גזירת הכתוב דנפשו נדחה, והרי זהו הלאו שכתב הרמב"ם שלא לחוס על נפש הרודף, ר"ל דלא נדון בזה לומר שאין דוחין נפש מפני נפש, אלא כך הוא הגזירת הכתוב שנפש הרודף נדחה.

אלא דאכתי יש להסתפק, אם כל הגזירת הכתוב דרודף הוא רק בעצמו של הרודף שידחה בפני פקוח נפשו של הנרדף, אבל עיקר ההצלה של הנרדף היא משום דין פקוח נפש של כל התורה כולה, או דנימא דגם עיקר ההצלה של הנרדף היא מהך גזירת הכתוב של רודף, והוא דין הצלה בפני עצמו של נרדף, מלבד דין פקוח נפש של כל התורה, וצ"ע

[11] This could be due to the svara of either of the same two reasons mentioned above: either because the rodef forfeits his right to life once he engages in the act of trying to kill the nirdaf, or because of a gzeiras ha'kasuv.

[12] Again, this could be due to the svara of either of the same two reasons mentioned above: either because the rodef forfeits his right to life once he engages in the act of trying to kill the nirdaf, or because of a gzeiras ha'kasuv.

[13] The Imrei Moshe does not combine the din of Hatzalas Ha'Nirdaf and Chiyuv Missah, but thinks that they both apply as two separate heterim to kill the rodef. Thus, there would be some interesting nafka minah's, because even when one doesn’t apply, you can still use the other.

[14] This same analysis can be used to explain the sugya of Ben Sorer U'Morer. The reason the Ben Sorer U'Morer is sentenced to death could be because:

1- We are saving the child from the aveirah of killing people (since he will have to steal to support his addiction, he will end killing people during his armed robberies.)

2- He is chayuv Missah (We either consider it as if he already killed someone (he is responsible for what he will ultimately end up doing); or, it can work through rishus ha'gavra, where he is punished for already becoming a the type of person who would kill someone.)

3- Hatzalas Ha'Nirdaf (We are saving the people that the Ben Sorer U'Morer will eventually kill.)