Through what mechanism does an animal fetus become permitted via the mother animal’s shechitah?
The Achronim grapple with this question, which can help us understand a core halachah of the perek we began this week, “Beheimah HeMekasha.” The first Mishnah of the perek discusses the issue of a pregnant animal whose fetus put its limb outside of the womb before shechitah. It is a given in this Mishnah that if the entire fetus remained inside of the womb through the shechitah that the fetus—whether born dead or alive—would be permitted on the basis of the mother animal’s shechitah.
The Gemara on Monday’s daf (69a) provides a source for this law. The pasuk in parashas Re’eh uses the language of “animal … in an animal” in the context of the kosher animals. From this language, the Gemara expounds that even a fetus found in the womb of a slaughtered animal is permitted. What isn’t immediately clear is the mechanism through which the fetus becomes permitted. Is the Torah saying that on the basis of the mother’s ritual slaughtering the fetus is also considered to have been ritually slaughtered? Or is the Torah teaching us that the fetus doesn’t require shechitah at all since it is regarded as just another body part of the animal (akin to the concept of “the fetus is considered a leg of its mother”)?
The first approach would explain why a live fetus found inside of a slaughtered animal is permitted, but not why the halachah permits even a dead fetus. What’s more, as our perek unfolds, we learn that even the forbidden fat, forbidden sciatic nerve, and even a piece of the fetus that is severed while in utero become permitted on the basis of the mother’s shechitah. None of these laws can be explained according to the theory that the mother’s slaughtering results in the halachah that it’s as if the fetus was slaughtered.
On the other hand, as pointed out by the Asvan D’Oraisa (siman 14), the second approach fails to account for several indications which support the notion that through the mother’s slaughtering, the halachah considers the fetus as slaughtered. For one, the Gemara later states (74a, when considering the possibility that an actual in-utero slaughtering of the fetus would make it permitted): “The Torah gave the option of cutting either the mother’s simanim or the fetus’s simanim to permit the fetus.” In addition, Rashi (69a “It has no remedy”) explicitly endorses the first approach stating that via the mother’s slaughtering, the fetus is considered slaughtered. The Asvan D’Oraisa also brings several further compelling proofs.
The above leads us to the conclusion that two different things happen when a pregnant animal is slaughtered: (1) if a live fetus is present in the womb, it, too, is considered slaughtered; (2) additional elements found in the womb, such as a dead fetus and its cheilev, are exempted from shechitah on the basis that they are considered mere extensions of the mother animal. But, as pointed out by the Asvan D’Oraisa, it remains elusive where the notion of these two parallel mechanisms was derived from. For all the Torah said was that even “an animal inside of an (slaughtered) animal” is permitted. It would appear that the Torah either taught that the animal within is considered slaughtered or is exempt from slaughtering — but not both!
I would like to offer the suggestion that perhaps we do indeed see a basis for these dual mechanisms in the Gemara’s derashah. For after presenting the basic derashah that permits the fetus, the Gemara further expounds from the pasuk’s language that even if a piece of the fetus was cut off in utero before the shechitah, that too becomes permitted. This statement, it can be suggested, reveals the mechanism of exempting additional parts found in the womb (approach #2). The Gemara then makes a big deal of the fact that the Torah refers to the fetus as a “beheimah,” animal, pointing out that this indicates that the fetus retains an independent halachic identity (and should thus be subject to the law of temurah; see there further). This point, I’d like to suggest, reveals the other mechanism (approach #1). For if the Torah is classifying this fetus as a beheimah with its own identity, how can it be kosher unless it is considered slaughtered on the basis of the mother’s slaughtering?
Thus the derashah indeed reveals the co-existing mechanisms that operate to permit that which is found in the womb of a slaughtered animal.
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