Mrs. Kohen’s Dilemma

Although we consider all people to be Tamei Meis today, Kohanim are still prohibited from coming into contact with a Meis. In addition, a Kohen may not cause his son to become Tamei, even if he is a minor, even a one-day-old child, as stated by the Mishna Berura (Sha’ar haTziyun 343:6).

There is a fascinating discussion pertaining to the pregnant wife of a Kohen. Two questions are raised: First, may she enter a hospital in which Meisim are present (which renders the hospital an “Ohel haMeis” that transmits Tuma to those who go inside)? Second, may she give birth in a hospital under these conditions? As we will see, this question has taken an interesting turn due to the widespread use of ultrasound scans that reveal the gender of the baby.

The starting point of the discussion is a ruling of the Rokeach (8:366), cited by the Shach (Y.D. 371:1):

The Rokeach in Siman 315 rules that a pregnant wife of a Kohen may enter an Ohel haMeis for there is a double doubt (a “Sfek Sfeka”): Perhaps it is a Nefel (a non-viable fetus that will die within thirty days of birth), and perhaps it is a female.

In other words, since the fetus is not subject to the prohibition of Tumas Kohanim if it is either a Nefel or female, the expectant mother may enter an Ohel haMeis since both of those statuses are unknown.

The Rokeach implies that in the absence of a Sfek Sfeka,it would be prohibited for the mother to enter an Ohel haMeis as she would cause her fetus to contract Tuma. The Poskim strongly challenge this contention for several reasons. We will briefly outline their various questions, as summarized by haGaon Rav Asher Weiss Shlit”a (Minchas Asher, Shu”t 3:70):

1. The fetus is enveloped by its mother’s uterus. A Tahor item that is enveloped by something else (Tahara B’lua) should not contract Tuma from the outside. (Magen Avraham 343:2)
2. A fetus of an Eishes Kohen (who is not also a Bas Kohen) is considered a “Zar” (a non-Kohen) until its birth.^[1] The Isur of Tumas Kohanim therefore should not apply. (Tiferes l’Moshe, Y.D. ibid.)
3. A fetus is not considered a “Nefesh” – a fully-fledged person (as evident from the Mishna in Oholos 7:6). If so, it should not contract Tuma.^[2] (Minchas Asher)

There are several approaches to resolving these questions, the most accepted of which is the approach of the Radvaz (1:200), She’eilas Ya’avetz (2:177) and Hagahos Nesiv Chaim (on the Magen Avraham ibid.) They maintain that the Rokeach does not mean that the fetus may contract Tuma in utero, but that if the woman is close to term, we are concerned that she may suddenly give birth while in the Ohel haMeis and the fetus will become Tamei. Therefore, the only reason it is permissible for her to enter an Ohel haMeis is because of the Sfek Sfeka.

However, as stated, the Magen Avraham and other Poskim held that the Rokeach should be taken at face value (in which case a fetus can apparently contract Tuma in utero) and disagree with his position. There is thus a Machlokes between the Shach (who cites the Rokeach l’Halacha) and the Magen Avraham as to whether a pregnant Eishes Kohen may enter an Ohel haMeis when she is not close to term.

This question has practical ramifications today. According to the Shach, if an Eishes Kohen knew that she was pregnant with a male fetus, there would be no Sfek Sfeka to permit her to enter an Ohel haMeis.

The Sheyarei Keneses haGedola (Y.D. ibid.) attests that there were several places in which the custom was to be stringent in this matter. However, he asserts that it is a “Minhag Buros” (a foolish custom), for a fetus cannot contract Tuma. Yet, he cites R’ Azaria who ruled stringently due to the view of the Rokeach. He concludes that the custom to be stringent may just be Minhag Chasidus but it is permissible mei’Ikar haDin.

This is also the conclusion of many of the Poskim. Even if an Eishes Kohen knows she is carrying a male fetus, she may enter an Ohel haMeis in accordance with the view of the Poskim who disagree with the Rokeach (such as the Magen Avraham and Keneses haGedola cited above, as well as the Chochmas Adam and Derech haChaim). Moreover, it is not certain that the Rokeach meant that it would be prohibited without the Sfek Sfeka.

This conclusion is also reached by the Mishna Berura (343:3). After ruling that a Kohen is forbidden to cause his son to become Tamei, even if he is only a baby, the Mishna Berura adds:

Nevertheless, a pregnant Eishes Kohen who is near term may enter an Ohel haMeis. Though it appears that she will certainly give birth [there] and the child may be male, it is nevertheless permissible because of a Sfek Sfeka – perhaps it will be female and perhaps it will be a Nefel.

The Mishna Berura only invoked the leniency of the Sfek Sfeka in the case where the woman is close to term and will almost certainly give birth in the Ohel haMeis. It seems that if the concern of unexpected delivery was not present (e.g., if she was not close to term), it would be permissible to enter an Ohel haMeis even if she knows she is carrying a male. Therefore, today, where women generally have enough time following the onset of contractions to exit an Ohel haMeis, it is entirely permissible for them to enter an Ohel haMeis while pregnant (Minchas Asher ibid.)

The above discussion pertains to a pregnant Eishes Kohen. However, the permissibility of entering a hospital in order to deliver the baby would appear to be based on the Rokeach’s leniency, as implied by the Mishna Berura. Since she will certainly give birth on the premises, the only reason to permit it would be the Sfek Sfeka.

If so, an Eishes Kohen who knows that she is carrying a male fetus (and thus cannot rely upon the Sfek Sfeka of the Rokeach) should preferably select a birthing facility in which there are no Meisim. If that is not possible, she should ideally choose a hospital that is governed by Halacha and removes Meisim immediately to a different area so that the rest of the hospital ceases to be an Ohel haMeis.

This leads to another question. Is an Eishes Kohen obligated to undergo an ultrasound during pregnancy to determine the gender of her baby? If she is unaware of the gender, she can invoke the Sfek Sfeka of the Rokeach, but if she knows that she is carrying a male fetus, she would not be permitted to enter an Ohel haMeis. Is she obligated to investigate?

This question touches on an extremely weighty Halachic question. If a Sfek Sfeka exists, but it is possible to resolve one of the Sfekos, is a person obligated to investigate the matter in order to determine whether he may in fact continue to act leniently? In other words, can he rely on the Sfek Sfeka l’Kula even though he could clarify one of the Sfekos?

The Rashba (Chulin 53b) holds that one may not rely upon a Sfek Sfeka that can be clarified. However, the Terumos haDeshen (47) holds that it may be relied upon. The Rema (Y.D. 110) rules like the Terumos haDeshen, however, the Shach (ibid. Klalei Sfek Sfeka) cites the various opinions among the Rishonim and concludes:

Therefore, it appears that when it is possible to investigate – such as if the matter is in front of him and he will not incur a loss [by doing so] – he should investigate. However, if this is not the case, he does not need to be stringent.

In addition, there appears to be a contradiction in the Rashba. While in his Chiddushim to Maseches Chulin he states that one must investigate a Sfek Sfeka if possible (as cited above), in his Teshuvos (401) he appears to state the opposite. Some Acharonim maintain (see the Noda b’Yehuda, Kama, Y.D. 57) that the contradiction may be resolved by distinguishing between cases where there is a “Chezkas Isur” (an assumption of Isur prior to the rise of the Sfek Sfeka), where one would be obligated to investigate a Sfek Sfeka, and cases where there is no Chezkas Isur where one would not.

Some contemporary Poskim rule in accordance with the lenient position of the Rema, or at least like the Shach (whose position is somewhat of a compromise between the Rashba and Terumos haDeshen), and do not obligate an Eishes Kohen to determine the gender of the fetus.

Furthermore, an ultrasound will only clarify one of the two Sfekos – it cannot tell us if the fetus is a Nefel; but only if it is male or female. The Rashba only holds that one is obligated to investigate a Sfek Sfeka when it is possible to resolve both of the Sfekos, not just one of them (see the Noda b’Yehuda ibid. and Pischei Teshuva, Y.D. 110:35).

However, we should point out that the second Safek, namely, whether the fetus is a Nefel or not, is not a 50/50 Safek as the vast majority of fetuses today do not turn out to be Nefalim. (In fact, some question the Rokeach’s inclusion of this Safek in the Sfek Sfeka – see the Pri Megadim, O.C. 343, Eishel Avraham 2.) Therefore, it is very likely that there would be an obligation to determine the gender of the fetus and eliminate any doubt.

The conclusion of contemporary Poskim is that an Eishes Kohen should undergo an ultrasound to determine the gender of the fetus. The Nishmas Avraham wrote in an essay published in Moria:

I heard from my Rebbi, R’ Yehoshua Neuwirth zt”l, that the ruling that a woman should undergo an ultrasound scan is only true if she is not particular about giving birth under the care of a certain doctor in a certain hospital due to the fact that she trusts in his care (i.e., not due to financial considerations). Then it is permissible for her to go there to give birth even if she knows that her fetus is male and that they [the hospital] are not particular about the Halachos of Tumas Kohanim. Obviously, if an Eishes Kohen gives birth to a male in a hospital in which there is Tumas Meis (such as detached limbs), she is obligated – if there is no medical objection – to take her child from there as soon as his medical condition permits it.

I heard from R’ Elyashiv zt”l that it is clear that an Eishes Kohen should determine whether her fetus is male or female before entering an Ohel haMeis when she is close to term. If she finds that it is male, it is preferable that she go to give birth in a hospital where they are careful about the laws of Tumas Kohanim. But this is only true where she is able to choose between a hospital where they are careful about the laws of Tumas Kohanim and another hospital.

R’ Efrati Shlit”a wrote the following to me: Regarding the question posed to R’ Elyashiv, namely, is an Eishes Kohen obligated to undergo an ultrasound to determine the gender of her fetus? The following is what we heard from him on this matter: An Eishes Kohen should clarify the gender of her fetus close to term via ultrasound. If the fetus is male, she should preferably give birth in a hospital where there is no definite assumption of Tuma (for example, she should give preference to a hospital that is mostly used for births, and not one in which, statistically, somebody dies there each day. In addition, even if she needs to give birth in a regular hospital, she should prefer one where they are careful about the Halachos of Tumas Kohanim and remove those who pass away to another building immediately over one in which they do not do so or one whose mortuary is part of the same building complex.) This text was seen [and approved] by Rav Elyashiv.

However, the Sefer Toras haYoledes (57, footnote 2) states simply: “It is logical to say that she is not obligated to undergo an ultrasound test to clarify if the fetus is male.”

It would seem that everyone would agree that a person who refrains from performing ultrasounds during pregnancy for other reasons (we will not discuss the merits of this custom or the various arguments for and against it in this essay) should not be obligated to do so for the purposes of avoiding Tumas Kohanim. They may rely on those who hold that there is no obligation to do so, and on the Shach’s ruling that one is not obligated to incur a loss to do so (as they would consider this a “loss”).

Rav Moshe Shternbuch Shlit”a (Teshuvos v’Hanhagos 3:347) cites “Gedolei Hora’ah of Yerushalayim” that an Eishes Kohen should ensure to give birth in a facility in which Meisim are not commonly found. He then adds:

But if the woman prefers a certain hospital, even though “Yesuvei Da’ata” (calming a Yoledes) permits Chilul Shabbos – see Shabbos 128b – nevertheless, it all depends on the situation. We cannot consider every whim of a Yoledes to be justified for Yesuvei Da’ata and [therefore] permit all of the Issurim in the Torah.

It is likely that there is no dispute between Rav Shternbuch and Rav Neuwirth. Rav Shternbuch is likely referring to a case where the Yoledes prefers to give birth in another hospital for inconsequential reasons, in which case we would not consider her adhering to her wishes a valid reason to set aside Isurim in the name of Yesuvei Daata.

[1] See Yevamos 67a.

[2] [Editor’s note: Rav Asher elaborates that there are only three types of Tuma: Adam (a person), utensils, and food. If a fetus is not a Nefesh, then it cannot become Tamey with Tumas Adam, so what type of Tuma would it be?]