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Nidah 30

  1. ABORTING A FETUS THAT IS LESS THAN 40 DAYS OLD. HALACHACH: The Gemara (Sanhedrin 58) rules that Bnei Noach may be killed for killing Uvrim (abortion), while Bnei Yisroel are not Chayav for killing Uvrin. Tosfos (Chulin 33 DH Echod) points out that even though Bnei Yisroel are not killed for abortion, nevertheless it is forbidden to practice abortion.

    Our Mishnah rules that if a woman aborted within forty days of conception, she is not Te'mei'ah Leidah. Since a less than forty day old fetus is not considered a child, is it permissible to abort a fetus less than forty days old?

    The RAMBAN (quoted by the RAN, Yoma 82) quotes the B"HAG that it is permitted to be Mechalel Shabbos in order to save the life of a fetus *even less than 40 days from conception* (see the RAN for other opinions). Rav MOSHE FEINSTEIN (Igros Moshe Choshen Mishpot 2:69) concludes if it is permissible to be Mechalel Shabbos in order to save a less than 40 day old fetus, it must be forbidden to abort such a fetus. It cannot be possible that we could be Mechalel Shabbos to save the life of a child which we would be allowed to kill . ( TOSFOS Nidah 44 DH Ihu seems to reason contrary to this, see Igros Moshe ad loc.)


    • Question: The Gemara tells us that an angel teaches the fetus the entire Torah. When it is born, an angel smacks it on its mouth and it forgets all of its learning. What point is there in teaching the fetus the entire Torah if it is going to be made to forget it when it is born?

      The VILNA GAON (Kol Eliyahu #240; quoted also by the Chochmas Betzalel) explains based on the Alshich, that within the framework of nature it is impossible for a man of flesh and blood to truly fathom the spiritual depths of the Torah, Man is physical and dirtied with sin and the Torah is sacred and spiritual. The Alshich explains that this is why every Jew's Neshamah was at Har Sinai; in order that each would have their own direct connection to the Torah. The Gaon adds that not only was it necessary for each Neshamah to be at Har Sinai, but each person had to be taught the Torah while in a state of purity (i.e. as a fetus) and then made to forget it in order not to have to learn it from the start.

      The Gemara (Megillah 6) writes that if a person says he toiled in Torah and found it, you may believe him. (Yagati u'Matzati Ta'amin). The two expressions seem to be a contradiction in terms; one toils to attain something through his effort, while a Metziah (lost article) is something found without effort. The Gaon explains that this is precisely the point. A person once was taught effortlessly the entire Torah, yet he spends his life toiling to reclaim his Torah.

      The CHOCHMAS BETZALEL adds that this is what Dovid ha'Melech meant when he said "Zmiros Hayu Li Chukecho b'Veis Megurai." Dovid was referring to the period during which he learned Torah effortlessly in his mother's womb, "like a song."

    • Question: An unborn baby commits himself by oath that he will be a Tzadik. He is told that even if the entire world tells him that he is a Tzadik, he must nevertheless view himself as evil.

      How can this be resolved with the Mishnah in Pirkei Avos (2:13) which concludes "Al Ti'he'ye Rasha Bifnei Atzmecha" (literally, "Do not see yourself as an evildoer)? (SEFER TANYA, beginning of Ch. 1)

    • Answer:
      1. RASHI (Pirkei Avos) explains that the Mishnah in Avos means, do not perform any deed which you would later regret having done. If so, the Mishnah and the Gemara are not talking about the same point.
      2. The BARTENURA explains that the Mishnah in Avos to be instructing a person not be a Rasha by being by himself (i.e., separating himself from the Tzibur).
      3. RABBEINU YONAH offers a compromise. The Gemara (Kiddushin 40) instructs that a person should always view himself as if all his actions are in the balance, half merits and half sins. If he performs even one Mitzvah he tips the scale of merits in his favor, if he performs even one sin he can achieve the opposite. The Gemara in Nidah is telling a person that he should always feel like he is not yet a Tzadik and he should always strive for more; the Mishnah is telling a person that he should never feel that he is so evil that he has passed the point of no return. The TANYA, Ch. 13, offers a similar answer, adding that our Gemara does not say a person should be a "Rasha" in his own eyes, but rather "like a Rasha" in his own eyes, i.e. he should realize that he has not yet perfected himself.
      4. The MAHARSHA explains that our Gemara does not mean that a person should think that he is presently a sinner. It means that he should bear in mind that he may be the Gilgul of a sinner. According to this reading, the Gemara's statement does not contradict the Mishnah in Avos at all, since that Mishnah is discussing a person's present situation. He should not see himself in his present incarnation as an evildoer (E.Chryzler).

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