By Rabbi Yair Hoffman

We live in a time of amazing medical feats. Today, when there is a problem with the development of a fetus, there is an option to do fetal surgery.

Fetal surgery is done when the fetus is not expected to live long enough to make it through to delivery or to live long after birth unless fetal surgery is performed. For instance, if a fetus has a severe form of congenital diaphragmatic hernia, in which the liver is located in the chest and lung development is severely restricted, fetal surgery is done to lessen the severity of the problem and permit the baby to live to birth to undergo further corrective surgery.

Fetal surgery can be done in various ways. Fetoscopic surgery uses a fiberoptic scope to enter the uterus through small surgical openings. The aim is to correct congenital malformations (birth defects) without major incisions and without removing the fetus from the womb. This is generally less traumatic than open fetal surgery and reduces the chances of preterm (premature) labor.

Open fetal surgery requires a hysterotomy (opening of the uterus). The fetus is partially removed from the uterus so that the area of the fetus to be operated on is exposed. After surgery, the fetus is returned to the uterus and the uterus is closed.

Surgery on the fetus may be done on the fetus after a Cesarean section, but before the cord is cut, so that the fetus is sustained by the mother’s placenta and does not have to breathe on its own. This method, known as an EXIT (ex utero intrapartum treatment) is employed when the fetus suffers from a congenital defect that blocks the airway. By the time the cord is cut and the baby has to breath, he or she has a clear airway.

Halachic Questions

Aside from all the risks and benefits of emerging surgical technologies and procedures, there are halachic questions that arise from open fetal surgery. When is the baby’s actual birthday? Is it the first time he was born or the second time?

If the child is a baby boy, and his second birth was natural, do we require a pidyon ha’ben? Do we do it right away because of the concept of zerizim makdimim l’mitzvos? Or do we wait to make sure that we do it 30 days after the second birthday? When is the child’s bar or bas mitzvah?

Rav Yitzchok Zilberstein (Vavei HaAmudim Vol. 65 #7) ruled that it depends if the fetus is viable when he or she is first removed from the womb. If the baby can survive, even if it must be placed within an incubator, then its birthday is the first time it emerged from the womb. If it would not have been able to survive, then it is the second time.

There is a fascinating Gemara in Bechoros 46b that discusses the case of twins born in the eighth month. If Baby A stuck its head out first but then was pushed back in or went back in himself, and then Baby B emerged, Baby A is still considered the firstborn son.

Rav Zilberstein notes that if the baby might have survived in an incubator but the doctors placed it back into the mother’s womb because it was preferable, there would be a doubt about the birthday. He draws a distinction between the case of the Gemara and the current issue under discussion.

Pidyon Ha’ben

It would seem to this author that in the case of doubt that is mentioned by Rav Zilberstein, one should not perform a pidyon ha’ben, even without a blessing on the first day that it is born the second time, even though there is the concept of “Mitzvah ha’ba b’yadcha al tachmitzenah — once a mitzvah comes to your hand do not let it get stale.” Later on, one can do the mitzvah fully, so one should wait. Also, we generally wait 30 days to ensure that the baby is viable, so then certainly the same would be true here.

When Does the Child Qualify as a Bar Mitzvah?

One should avoid fulfilling Torah mitzvos for others until the second birthday after the bar mitzvah has clearly passed. This should be no different than someone who was barely bar mitzvahed and did not necessarily bring signs of maturity.

How is a newly bar mitzvahed boy different from an adult? The general rule of thumb is that we should not rely upon a newly bar mitzvahed boy to fulfill a biblical mitzvah for others. For example: A boy after bar mitzvah may recite Kiddush for his mother or sisters on Shabbos morning. He should not do so on Friday night. On Friday night, the obligation to recite the Kiddush is biblical. The words “Zachor es Yom haShabbos l’kadsho” teach us this according to the Biur Halachah (O.C. 271). On Shabbos morning, the obligation is rabbinic. The Mishnah Berurah (on S.A. O.C. 271:2) rules that while a newly bar mitzvahed boy should not be motzi others for Friday-night Kiddush, he may do so for Shabbos-morning Kiddush because it is d’rabbanan.

What about yom tov Kiddush at night? Since some poskim rule that this, too, is biblical in origin, it is perhaps best to be stringent. Certainly, the yom tov daytime Kiddush is only rabbinic and that would be permitted according to all authorities.

Since this case of the double birth is a safek, a doubt, then for rabbinic mitzvos we can be lenient and rely on the concept of safeik d’rabbanan l’kulah.


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