The Status of a Fetus in Halacha: What is the Definition of Life? (Part 8)

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 suggest several nafka minos regarding these three approaches:

Nafka Minos

Now that we have developed a spectrum of perspectives regarding the din of rodef, we can discuss some potentially important nafkah minos:

1. Safek Rodef

One of the most important questions to assess regarding a rodef is the case of a safek (doubt).  What if we are not sure someone is a rodef?

For example, what if the security force at an airport identifies a possible terrorist, but they are not positive. If they decide to neutralize this person and he turns out to be an innocent civilian, they will have killed an innocent person.  But if they do not act, and this person turns out to be a terrorist, their inaction will have caused an innocent group of civilians to die.

In a similar vein, what if you are 100% positive that someone is a rodef, but you are not sure he is going to succeed in killing the nirdaf? Does that impact the heter or chiyuv to kill the rodef?

This would likely depend on how we understand the din of rodef:

A) Chayiv Missah

If the reason the rodef is chayiv missah is because we consider it as if he already performed the act of murder, then one could argue that in a case of a safek, perhaps the rodef would not be chayiv missah – since perhaps he will not succeed.

However, if the chiyuv missah is not because of the likelihood of success, but because of the rishus ha'gavra, due to his decision to engage in this horrible act, then even in the case of a safek, the din of chiyuv missah would likely apply.

B) Saving the Rodef from the Aveirah

If the reason we kill a rodef is to prevent him from violating the aveirah of murder, then it is possible that this would still apply, even if it is only a safek. The more we think it is essential to save the rodef from the aveirah, but more active we will be in intervening to save him, even if it is only a safek.

C) Saving the Nirdaf

If the entire din of rodef is about saving the nirdaf, then it should not matter if there is a safek about the rodef's success. In general, we treat safek sakanas nefashos (where we are uncertain that the person's life is in danger) the same way we treat vadai sakanas nefashos (where we are certain that the person's life is in danger).

And even if the only reason we are able to save the nirdaf with the life of the rodef is because of the fact that the rodef is trying to kill the nirdaf, it is likely due to the rishus ha'gavra and the nature of the situation that we are allowed to kill the rodef, not the probability that he will succeed. 

Shitos

1) You Can Kill a Safek Rodef

The Minchas Chinuch[1] equates the din of killing a rodef with the general rule of hatzalas nefashos. As such, according to the Minchas Chinuch's logic, this din should apply to a safek rodef, just like all other cases of hatzalas nefashos.

The Ran[2] as well applies the din of hatzalas nefashos. He suggests that the passuk of Loh Sa'amod Al Dam Rei'echa comes to teach us that even when there is a safek, one must save the life of someone who is in danger; and the Ran applies this principle to the case of Rodef, assuming that the reason we can kill a rodef to save the nirdaf is because of Loh Sa'amod and hatzalas nefashos.[3]

2) You Cannot Kill a Safek Rodef

In the Ran's original assumption (hava aminah), he seems to imply that only would only be able to kill a rodef if it was a vadai. There is room to claim that even in the maskana (conclusion), the Ran maintains this perspective.[4]

Rav Moshe Feinstein[5] suggests that one can only kill a rodef if he is k'ein vadai she'hu rodef - almost certainly a rodef. In other words, while we don't need it to be 100% vadai, a safek would not suffice. We need it to be as close to vadai as possible.

2. Intent (Kavanah)

Another fundamental nafka minah is whether one needs to have kavanah (intent) in order to be categorized as a rodef. For example, if a situation arises where a person's presence is causing someone else's life to be in danger, but they have no intent to cause that danger, would that person be considered a rodef?

For example, as we mentioned above, what if there is a situation where someone has no intent whatsoever, but they are still endangering someone else's life. Is that person a rodef? To illustrate, in the case of a fetus that is endangering its mother's life, the fetus is the cause of danger, but it has no intent whatsoever. In such a case, would we classify the fetus as rodef?

Alternatively, what if the potential rodef has intent to do a specific action, but has no intent for the danger that would result from their actions? For example, let's say someone is about to accidently detonate a bomb that will kill an entire group of people located in the vicinity. Unfortunately, this person is located far away from you, so you cannot warn them or deter them from detonating the bomb; thus, the only way to avoid everyone’s impending death would be to shoot him from a distance. Is this person considered a rodef, even though he has no intention of killing everyone? He has full intent to do the action, but has no intent to create the negative result. This is slightly different from the case of the fetus, since the fetus has no conscious intent whatsoever; it is the existence of the fetus alone that is the source of danger.

Let us take this a step further: What if the person has full intent to not only take the action, but also cause the harmful result. However, in this case, the person has the wrong information, so he thinks that he is doing something good, when in fact, he is about to do something very bad. For example, what if a pilot is about to shoot a group of soldiers, thinking that they are enemy troops, when they are in fact they are friendlies. However, this pilot's radio is broken, so no one can contact him and tell him that he is about to shoot his own men. Would he be considered a rodef, allowing us to shoot down his plane to save all the innocent men he is about to kill? Or, would we say that since he thinks these are enemy soldiers, he doesn’t have the necessary evil intention required to categorize him as a rodef?

Again, this would depend on how we understand the din of rodef:

A) Chayiv Missah

If the din of a rodef is that he is chayiv missah, then this would not apply in a case without intent, because one would not be chayiv missah if they killed someone without intent. And even if the chiyuv missah stems from the rishus ha'gavra, and not the act of killing itself, there would be no rishus ha'gavra in a case without intent.

B) Saving the Rodef from the Aveirah

If the only reason we kill a rodef is to save him from violating the aveirah of murder, then it is possible that this would still apply, even if the rodef has no intent; this would depend on whether there is a still an issur of retzicha is a case where someone murders a person without kavanah.

If there is no issur of retzichah in such a case, then the din of rodef would surely not apply, and we would not be able to kill the rodef. However, if there is still a an issur of retzichah in such a case, but just lower-level issur that is not deserving of the death penalty, then it is possible that the din of rodef would still apply. And yet, it is also possible that since this is a lower level issur – since there's no intent – it would therefore not qualify as the type of issur that is chamur enough for us to kill him for in order to prevent him from violating it.

C) Saving the Nirdaf

If the entire din of rodef is about saving the life of the nirdaf, then it should not matter whether the rodef has intent.

However, if the only reason we are able to save the nirdaf with the life of the rodef is due to the fact that the rodef is trying to kill the nirdaf (and perhaps this itself creates the chiyuv missah on the rodef), then in this case, since there is no intent and no rishus ha'gavra, perhaps it would not qualify as the type of case where we are allowed to kill the rodef.

Sources

The Rama[6] and the Vilna Gaon[7] imply that a rodef does not require intent, implying that the din of rodef is hatzalas ha'nirdaf. As we will soon discuss, the Rambam[8] suggests that in a case where a fetus is endangering its mother, the fetus has the status of a rodef; this implies in the view of the Rambam, a rodef does not require intent. (We will soon analyze this Rambam in much greater detail.)

3. Grama

Another important question to assess is the case of a grama (indirect causation). When it comes to the category of rodef, how direct does the danger need to be in order to satisfy the requirement of "causing danger?" If the potential rodef is indirectly causing harm to the nirdaf, would this qualify as a rodef and allow us to kill him to save the nirdaf?

For example, in the Holocaust, there was a famous and tragic story: A family was hiding in a bunker, when they heard the Nazis approaching their location. Suddenly, their 1-year-old baby began screaming at the top of its lungs, causing them all to panic. Without thinking, the father cupped his hand over the baby’s mouth, and muffled out the baby's shrieks. Unfortunately, the baby couldn't breathe and passed away, but everyone else in the bunker was able to survive. After the war, the father asked a Rav the following halachic question: he explained to the Rav that he was a kohen, and as such, the halacha is that if a kohen murders someone, he would not be allowed to duchen. He asked the Rav if this act during the Holocaust was considered murder; if we consider the baby to have been a rodef, then perhaps it wasn't considered a violation of murder, and he would thus still be allowed to duchen?

It is important to note that in this case, not only didn't the baby have any intention to cause any harm to those in the bunker, but the baby was not even the direct cause of danger; the Nazis were. The baby would only have potentially caused the Nazis to discover their hiding place and catch them. Thus, this not only lacks intent, but also lacks direction causation. As such, would the baby be considered a rodef?

Nowadays, there are similar cases where a pregnant mother needs chemotherapy to survive. In many cases, the doctors state that if the mother gets chemotherapy to save her own life, it will cause the fetus to die. But if she doesn’t get it, she will die. Thus, in such a case, would the fetus be considered a rodef? Even though it might seem as if the fetus is "causing" danger to the mother, it is actually the cancer that is causing the mother danger. (It is the need to not have the chemotherapy – in order to save the fetus – that is causing the mother harm, not the fetus itself.) Thus, the fetus not only has no ill intent, but it is not even directing causing the mother any danger. As such, would the baby be considered a rodef?

Again, the answer to these questions would depend on how we understand the din of both grama and rodef.

Regarding the din of grama, the question is essentially as follows: "What affect does indirect causation have on the halachic status of the ma'asah aveirah (action of performing a sin)?"

There are a few options:

1. It is not considered to be an action at all, and thus there is no aveirah.

2. It is considered to be an action, but it is not considered to be an aveirah.

3. It is considered to be an action, and it is also considered to be an aveirah, but the severity of the aveirah is not as severe, since the act is indirect.[9]

Now, applying this to the case of a rodef, this would depend on how we understand the din of rodef.

A) Chayiv Missah

If the din of a rodef being chayiv missah is because we consider it as if he already performed the act of murder, then in a case of a grama, the rodef would most probably not be chayiv missah, since a grama affects the severity of the act/aveirah.  And even if the chiyuv missah stems from the rishus ha'gavra, and not the act of killing itself, there would likely be no rishus ha'gavra in a case of grama.

B) Saving the Rodef from the Aveirah

If the reason we kill a rodef is to prevent him from violating the aveirah of murder, then it is possible that this would still apply, even if it is a grama, because it would depend on whether there is a still an issur of retzicha for a case of murder via grama.

If there is no issur at all, then it would surely not apply.

However, if there is an issur of retzichah, even if it is on a lower level, perhaps the din of rodef would still apply. Nevertheless, it could be that if the issur of retzichah is on a lower level, then it would not qualify as the type of issur that is chamur enough for us to kill the rodef in order to prevent him from violating it.

C) Saving the Nirdaf

If the entire din of rodef is about saving the nirdaf, then it might not matter how direct the rodef's action is.

However, if the only reason we are allowed to save the nirdaf with the life of the rodef is because of the fact that the rodef is trying to kill the nirdaf (and perhaps this itself creates the chiyuv missah on the rodef), it is possible that in this case, since it is only a gramra there is likely no rishus ha'gavra, it would not qualify as the type of case where we are allowed to kill the rodef in order to save the nirdaf.

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

[1] מנחת חינוך מצוה רצה-רצו

ואני מסופק אם רשאים להרוג הרודף אחר ספק נפש כגון אסופי שנמצא והוא מחצה על מחצה דודאי ההורגו אינו נהרג עליו אם רשאים אנחנו להרוג הרודף אחריו להרגו.

ונ"ל פשוט דמבואר ביומא דר' ישמעאל יליף דפ"נ דוחה שבת מבא במחתרת מה זה שספק בא על ממון וס' נפשות ורציחה גורם לשכינה שתסתלק מישראל ניתן להצילו בנפשו ק"ו כו' אם כן רואים אנו דאפי' ס' רודף מותר להורגו אם כן ה"נ. ואף דלמסקנא דחי לה דשאני מחתרת דחזקה כו' ואשכחן ודאי ספק מנלן אם כן נראה דהתירה התורה להורגו דוקא בודאי ז"א דבאמת דלא מוכח מכאן ספק אבל לפי המסקנא דשמואל יליף מוחי בהם דאף ס' פ"נ דוחה שבת אם כן כיון דחזינן אף דש"ד אינו נדחה אף מפני ודאי פ"נ מ"מ ברודף דניתן להצילו מפני פ"נ 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 ואם כן אפי' ספק פ"נ כיון דהוא פושע גילתה התורה דש"ד כי האי נדחה א"כ שוב אין חילוק בין ודאי פ"נ או ספק פ"נ

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

ואם תאמר וכיון שמצוה הוא להרוג הרודף כדי שיציל הנרדף למה לי קרא דלא תעמוד על דם רעך פשיטא דהוא מצווה לטרוח בהצלתו כגון טובע בנהר או ליסטים באים עליו.

י"ל דמקרא דניתן להצילו בנפשו לא שמעינן אלא במי שברור לו כשמש שהוא רוצ' להרגו ובכה"ג במי שברור לו כשמש שיטבע בנהר אם לא יצילוהו הוא דמחייב להצילו אבל על ספק לא שמעינן מידי משום הכי אתא קרא דלא תעמו' על דם רעך לומר שהוא מצוו' לטרוח בו אף על הספק

[3] Rav Wosner (Shut Ha'Levi 5:193) appears to hold of this shitah as well:

שו"ת שבט הלוי ה:קצג

[4] However, it seems likelier that the Ran rejects this in his maskana, as we suggested above.

[5] אגרות משה חו"מ ב:סט

[6] רמ"א סע' א- חו"מ ס' תכה

מי שמסכן רבים, כגון שעוסק בזיופים במקום שהמלכיות מקפידות דינו כרודף ומותר למסרו למלכות

[7] ביאור הגר"א ס"ק יא:

מי שמכסן רבים- אע"פ שאין כוונתו לסכן.

[8] רמב"ם הלכות רוצח ושמירת הנפש פרק א הלכה ח/ט

אחד מבושיו, ואחד כל דבר שיש בו סכנת נפשות, אחד האיש שאחז את האשה, ענין הכתוב שכל החושב להכות חבירו הכייה הממיתה אותו מצילין את הנרדף בכפו של רודף, ואם אינן יכולין מצילין אותו אף בנפשו, שנ' ב לא תחוס עינך.

הרי זו מצות לא תעשה שלא לחוס על נפש הרודף. לפיכך הורו חכמים שהעוברה שהיא מקשה לילד מותר לחתוך העובר במיעיה בין בסם בין ביד מפני שהוא כרודף אחריה להורגה, ואם משהוציא ראשו אין נוגעין בו שאין דוחין נפש מפני נפש וזהו טבעו של עולם

[9] A similar breakdown applies to the sugya of oneis, where these three approaches would apply in a similar way as well.