Rabbi Yosef SprungThe Gemara in Sanhedrin (78a) states:
The Rabbis taught: If ten people struck a man with ten sticks and he died, whether they struck him simultaneously or one after another, they are exempt. R’ Yehuda ben Besera says: If they struck him one after another, the last is liable because he hastened his death. R’ Yochanan said: Both derive their views from the same Pasuk: “If a man strikes any human life.” (Vayikra 24:17) The Rabbis interpret “any human life” to mean that the victim must still possess his full life, whereas R’ Yehuda ben Besera understands it to include even part of a living person. Rava said: All agree that one who kills a T’reifa is exempt, and all agree that one who kills a Goses Biydei Shamayim is liable. Their dispute concerns a Goses Biydei Adam. One opinion compares him to a T’reifa, while the other compares him to a Goses Biydei Shamayim. The opinion comparing him to a T’reifa reasons that a human act has already been performed upon him, unlike a Goses Biydei Shamayim. The opposing view distinguishes a T’reifa because its vital organs have been severed, whereas those of a Goses have not.
The Gemara concludes that one who kills a Goses Biydei Shamayim is liable according to all opinions, whereas with respect to a Goses Biydei Adam, there is a Machlokes.
This distinction is difficult to understand. Why does it matter whether the Goses’ condition was due to natural causes or the result of human action in terms of the final assailant’s liability? In both cases, the victim has already suffered an injury or condition that will soon prove fatal, and the final blow merely hastens the inevitable. If, according to the Rabbis, liability exists only when the victim still possesses the status of “an entire living person” (Kol Nefesh), what meaningful difference is there between these two states?
The Achronim (see, for example, Chasam Sofer Shu”t Y.D. 338) question the Rosh’s position based on this Gemara. The Rosh seems to indicate that a Goses Biydei Shamayim is considered so close to death that he is already treated as a corpse, and, therefore, a Kohen may not come into contact with him. By contrast, a Goses Biydei Adam, although he has the status of a Goses and is close to death, is not yet considered like a corpse.
However, this Gemara appears to imply the opposite: A Goses Biydei Shamayim is not considered dead, thus one who kills him is liable, whereas, at least according to the Rabbis, a Goses Biydei Adam is considered like a dead person, and one who kills him is exempt.
The Ramah explains the matter:
Everyone agrees that in the case of a Goses Biydei Shamayim, if someone comes and hastens his death, he is liable, because he removed the entirety of his remaining life. When the Pasuk excludes liability according to the Rabbis, it refers to a case where one person removed part of his life, and another removed the remainder. This is the meaning of the verse: “If a man strikes all life” – he is liable only when he takes the entire life, not when part was already taken by another. The dispute concerns only a Goses Biydei Adam, and the final attacker came and hastened his death. The Rabbis compare him to a T’reifa and therefore interpret “life” as meaning a complete life. R’ Yehuda ben Besera compares him to a Goses Biydei Shamayim, and therefore interprets “life” as even the smallest remaining portion of life.
According to this explanation, the distinction is not based on whether the person is considered dead or alive, but rather on how his state of Gesisa came about, whether through a physical action or through natural causes.
When he is a Goses Biydei Adam, his fatal injury is present, and it is that injury that will bring about his death. Therefore, he is comparable to a T’reifa. By contrast, in the case of a Goses Biydei Shamayim, although part of his life has been taken from him, the remaining life within him continues to exist. On the other hand, regarding his actual proximity to death, a Goses Biydei Shamayim is considered closer to death than a Goses Biydei Adam.
Nevertheless, this does not contradict our earlier explanation of the Rosh, because these are two different issues. Regarding the laws of murder, the primary question is whether there is already a cause that will inevitably lead to the death of the victim. However, regarding Tuma, the determining factor is his proximity to death, as defined by whether the terminal process leading to death has begun. If it has not begun, then even if his chances of survival are essentially the same as those of a Goses Biydei Adam, he does not have the status that causes Tuma.
It is noteworthy that in Yevamos (120b), the Gemara challenges the Mishna’s ruling that one cannot testify to a person’s death merely because he was found M’guyad (mortally wounded):
Does this imply that a M’guyad can survive? But we learned in a B’raisa: A person does not become impure until his soul departs, even if he is M’guyad or a Goses. [Granted,] he does not become Tamei, but [the B’raisa implies that] he cannot live!
Tosfos Yeshanim question how the Gemara can infer this. Even if it could be inferred that a M’guyad is certainly expected to die, it would not apply to a Goses – which is also mentioned in the B’raisa – given that a minority of Gosesim do, in fact, recover.
They answer:
A Goses is different. Even if he will ultimately survive, it is [still] necessary to teach that he does not convey Tuma. [The Chidush is that] although a Kohen is prohibited to touch him, as derived from ‘l’Heichalo’ in the third Perek of Nazir (43a), nevertheless, he does not convey Tuma. However, if a M’guyad would survive, there would be no need to teach that he does not convey Tuma.
In other words, a M’guyad must necessarily be closer to death than a Goses. For if there were a realistic possibility that he would recover, he would simply have the same status as a healthy person, and there would be no need for the B’raisa to teach us that he does not convey Tuma. On the other hand, a Goses is different, which is why a Kohen is warned not to touch him. Thus, even though he stands a chance of recovery, there would still be a need to teach us that he does not convey Tuma.[1]
[Editor’s note: The Din of M’guyad demonstrates that the Isur for a Kohen to come into contact with a dying person is not dependent upon his proximity to death, but whether he has become a Goses.]In any event, as mentioned in Part I of this essay, the Rosh is the only Rishon who makes the clear distinction between Goses Biydei Shamayim and Goses Biydei Adam. In contrast, Tosfos in Nazir (4b, s.v. Dilma), as well as the Rif (quoting Rashi) indicate that there is no such distinction, and that even contact with a Goses Biydei Adam is prohibited to a Kohen. This also appears to be the position of the Meiri (Nazir 43a), who states that the prohibition against coming into contact with a Goses is due to the Kohen profaning his priesthood by placing himself in a situation of possible Tuma. According to this reasoning, there is no difference between a Goses Biydei Adam and a Goses Biydei Shamayim. The Meiri explains l’Heichalo as referring to Chilul; i.e.,the Kohen profanes his priesthood by entering a situation of uncertainty. This explanation is also given by the Chochmas Adam (159:3).
Regarding the practical Halacha, there is a major Machlokes Rishonim as to the conclusion of the Sugya. Tosfos and the Rosh follow the B’hag’s position and rule stringently. (There is actually a Machlokes Rishonim as to the correct text in the B’hag. Tosfos, the Rosh, the Mordechai, and many others cite it as ruling stringently, whereas the Eshkol and Kol Bo hold that all of the B’hag, Sh’iltos, and Ritz Ge’us rule leniently.)
This stringent position is also the view of the Rosh (Hilchos Tuma), the Tur, Or Zarua (Avelus 426), the Mordechai (Mo’ed Katan 866), Hagahos Maimoni’os (1138), and the Roke’ach (315).
However, the Rambam (Hilchos Avel 4) omits this entire discussion, indicating that he does not adopt the stringent position regarding a Goses. Similarly, the Rif, in his Hilchos Tuma, simply states that a Goses is considered like a living person in every respect. The Nimukei Yosef explains that this includes the laws of Kohanim becoming impure. This is also the position of the Sma”g (234) and Eshkol (ibid.).
The basis for this Machlokes lies in the varying versions of the text of the Gemara. As mentioned, the Gemara raises a challenge from the Mishna in Ohalos (1:7):
“A person does not convey impurity until his soul departs, even if he is a Goses and even if he is M’guyad…”
Then it answers:
Regarding Tuma, this applies only until his soul departs; regarding the beginning [of the process of death] – it has already begun.
The Rishonim argue as to whether this line should appear in the text of the Gemara at all, and they also disagree regarding which Amoraim are the participants in the dispute reflected in the Sugya. See their respective discussions.
The Shulchan Aruch (Y.D. 370) rules:
One whose spine has been broken along with most of the flesh attached to it, and similarly one whose back has been torn open like a fish – even if he is still alive – is considered like dead and conveys Tuma. However, a Goses, one whose two Simanim [the trachea and esophagus] have been severed, or one who has suffered many wounds, does not convey Tuma until his soul departs. Nevertheless, it is forbidden to enter a house containing a Goses.
The Rema cites a lenient opinion: “and there are those who permit it,” but concludes, “It is preferable to be stringent.” This implies that the matter is not prohibited me’Ikar haDin. However, the Bach and Shach disagree with the Rema and rule that one must be stringent as a matter of actual Halacha, following the position of the Shulchan Aruch. This is because the Rosh and the Sma”g rule in accordance with the Yere’im and B’hag, who adopted the stringent position.
The Shach (Y.D. 339) cites the Ran as ruling leniently regarding a Goses, but notes that we rule stringently in Siman 370. Likewise, the Pischei Teshuva cites Achronim who took the Bach’s opinion into account, since many Rishonim maintain this view, and it is, after all, a possible Isur d’Oraisa. The Aruch haShulchan likewise writes that the practice followed the Bach’s ruling. The Shevet haLevi (3:164) also rules that in practice one should follow the Bach.
However, the Chayei Adam (32:9) rules that a Kohen may enter a house containing a Goses in order to recite Birchas Kohanim. His reasoning seems to be that the Rema considered the lenient position to be the basic Halacha. Similarly, the Chochmas Adam (159:3) asserts that it is good to be stringent, but elsewhere (151:13) explains that the prohibition applies only l’Chatchila, thus, he permits entering when there is a Mitzva d’Oraisa involved, even if it is only a Mitzva Kiyumis (voluntary).
With all of the above in mind, let us return to our question.
According to those who hold that the Gemara’s conclusion is that there is no Isur for a Kohen to come into contact with a Goses, our question falls away. However, since the Shulchan Aruch rules that there is an Isur, we must look further for leniency.
According to Tosfos’s explanation that there is a distinction between a Goses and someone who is merely “close to becoming a Goses,” it is clear that a Kohen need not be concerned about remaining near, or in the house of, a terminally ill patient, as long as the patient has not reached the stage of Gesisa. As mentioned, the Rosh also presented this approach in his first explanation, adding a distinction between two types of Goses. It appears, however, that he did not retract his original explanation. Moreover, it would seem logically straightforward that the prohibition extends only to the explicitly stated status, namely Gesisa, and not to anything less than that.
However, according to the Meiri and those Rishonim who interpret l’Heichalo as referring to entering a situation of uncertainty, there is room to consider that a terminally ill patient – who is in a fundamentally different state than an ordinary sick person, and certainly from a healthy person – may already have the status of a doubt that requires a Kohen to distance himself.
One could similarly speculate as to the position of the Levush who states (370:1):
A Kohen may not enter a house containing a Goses, because it is written l’Heichalo, meaning until the point he becomes ill and dies from it, that is, a Goses.
Does a terminally ill patient fall within this definition?
According to the second approach of the Rosh, which distinguishes between dying through natural causes and through human action based on the principle that “most Gosesim die,” there is likewise a need to clarify the status of someone whose death is imminent through natural causes but who has not yet entered the stage of Gesisa. Does the principle that the majority die apply to him as well, or does it apply only to actual Gosesim? Perhaps a patient who has not yet become a Goses is not included in this category at all, even if he is terminally ill and his life expectancy has been reduced to Chayei Sha’ah. After all, he is still fully alive at present, as is all of living humanity, even though everyone is ultimately destined to die.
The Divrei Malkiel (4:97) maintains that the prohibition applies only to an actual Goses. The Torah prohibited only a Goses, since he is considered a Chalal, one whose condition visibly indicates that he is in the process of dying.
The Divrei Malkiel appears to base his ruling on the Rosh’s words that the basis of the prohibition is the Goses’ status of Chalal, rather than the concept of Chilul (profanation of the Kehuna). Accordingly, he permitted a Kohen to enter a house containing an eight-month fetus (Nefel ben Chodesh) that was expected to die, as well as a T’reifa during the final day of its twelve-month period. He adds that this also appears to be the position of all the Poskim, since none mention that an eight-month fetus has the status of a Goses. Furthermore, this is the common practice: Kohanim distance themselves from a Goses, but they do not distance themselves from an eight-month fetus.
According to this reasoning, the prohibition applies only to a Goses and not to a terminally ill patient. This is also the position of R’ Moshe Sternbuch Shlit”a (Teshuvos v’Hanhagos 6:236). He further rules that in hospitals one need not be stringent except in the case of actual death, and not merely with Gosesim.
In the case under discussion, there is also a Mitzva involved – honoring one’s mother, as well as honoring one’s mother-in-law (see the Shulchan Aruch, Y.D. 374:6). This parallels the ruling of the Chayei Adam permitting a Kohen to enter the home of a Goses to perform the Mitzva of Birkas Kohanim.
Therefore, one may rely on the Chayei Adam to permit the Kohen’s terminally ill mother-in-law to move into his home. Although there is no room for the Chayei Adam’s leniency according to the Bach and Shach, his opinion can be combined with the approach of Tosfos and the Rosh mentioned above, according to which, before the onset of actual Gesisa, there is no Isur me’Ikar haDin.
Naturally, however, he must remain vigilant and take care to leave the house immediately once the patient enters the state of Gesisa.
We are grateful to Dr. Beth Popp for bringing this fascinating question to our attention. Dr. Popp is a Professor at the Icahn School of Medicine at Mount Sinai, specializing in Hospice and Palliative Medicine, and has been active in the field as a clinician and educator for three decades, having established and led palliative care programs at three New York City teaching hospitals. She has also devoted considerable effort to educating rabbinic leaders on the medical aspects of serious illness and end-of-life care, including the particular palliative care needs of the Orthodox Jewish community.
[1] One could speculate whether Tosfos Yeshanim’s intent is that a M’guyad truly has the same status as a Goses, even with regard to the prohibition for a Kohen to come into contact with him, or whether he agrees with the distinction of the Rosh.
Rabbi Yosef Sprung
