Areas – 2017

#echumin-Kaz Rabbi Dr. Michael Avraham

outline

A. 'Chaser' in an asymmetrical situation

1. From where did Dadma Didia blush?!
2. A fetus that impoverishes its mother
3. Give us one of you and we'll kill him.
4. Taking risks to save the life of another

B. Two people chasing each other

C. The way of behaving in a symmetrical situation

D. Lottery for souls

E. Volunteering for the surrender of the soul

F. Implied consent to the imposition of fate

G. An act of rescue is not murder.

H. Refraining from an act

I. Summary

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Siamese twins are a pair of babies who are born conjoined. Sometimes they share internal organs, and in many cases one of them has defective internal organs. It has happened before that Siamese twins survived and grew up together, but we are dealing here with a case where there is no chance that both of them will continue to live. The question is: is it permissible to separate them, thereby causing the death of one of them in order to save the other?

The question arises whether there is asymmetry between the two twins, and one of them is defined as a parasite with respect to his brother, or the chance of one living is greater than that of his brother, or whether there is complete symmetry.[1] Ostensibly, if the continuation of the connection means death for both, then in considerations of profit and loss (a teleological test, a test of results) it would be appropriate to save one of them, even at the expense of his brother's life. However, Torah morality is not solely teleological morality, and it does not depend only on the outcome of the act, but also on the evaluation of the act itself – and after all, this is an act of murder! On the other hand, refraining from any action will bring death to both, while the separation analysis will leave one of them alive. Is this refrain not an act of murder, even if it involves "retreating and not doing it"? However, even if the decision is to analyze and separate, in the case of symmetry, each of the brothers will be able to ask: Why did Dadma Didia blush, Tafi Madma Didia?! In what way is my brother better than me?

A. 'Chaser' in an asymmetrical situation

From where did Dadma Didia blush?!

The classic example of the law of "kill and not pass over" in bloodshed is a situation in which Reuben threatens Shimon to kill him if Shimon does not kill Levi. This is stated in the issue of Pesachim 25:2: "Why did you see that your brother was a fool, and why did he make a fool of himself?" This assumption presupposes that there is symmetry between Shimon and Levi; however, what is the law when it is clear that one of them is inferior to his companion? This is where the first and last ones disagreed.[2]

It seems clear that in the above classic case, Shimon is permitted and even commanded to kill Reuben, who threatened him, and this from the standpoint of a "pursuer," since in doing so he saves both his own life and the life of Levi. However, even then, Reuben could have raised the question: Why did Dadma Didachon (Shimon or Levi) blush so much like Didi's blood?! There are two possible explanations for this:

• A. Reuven, who caused the situation that has arisen and is to blame for it, must bear its consequences.
• B. Reuben, as a murderer, is sentenced to death,[3] And carrying out the punishment is the responsibility of the rescuer.

The difference between these two explanations exists when the persecutor is not guilty of persecution (such as when he is a rapist). In such a case, he is not liable to death, and therefore, according to the second explanation, he should not be killed; while according to the first explanation, it is possible (although not necessary) that he can be killed since he is in fact the one who created the situation, and therefore the price is imposed on him. Think about it, a person who went berserk (temporary insanity) and started shooting in all directions – can't we kill him as a 'persecutor', just because he is not responsible for his actions and is exempt from punishment?![4]

 A fetus that impoverishes its mother

The issue of the fetus endangering its mother's life serves to illuminate this dilemma.[5] It begins in Mishnah Eholot 7:6 (and in Tosefta Sof't Divmoth): "The woman who is having difficulty with a child - she cuts the child in her intestines and takes it out limb by limb, because her life precedes his life. Most of it comes out[6] – They do not touch him, they do not turn away a soul for a soul." Why does his life take precedence over his mother's life before he goes into the world? It turns out that this is because his mother's life has a higher value than his life, and he pays the price even though he certainly does not violate the prohibition against murder.[7] When most of it has already been released, then he is not condemned as a 'perpetrator', due to the equality between his life and the life of his mother.

However, the issue of the Gemara in Sanhedrin 62b, removes from this fetus, whether before its head comes out or after, its definition as a "pursuer." Rav Huna states there that "the pursuer is small - he can be saved with his life," and the Gemara concludes from this that, in Rav Huna's opinion, "a pursuer does not need warning, neither a great enemy nor a small enemy." But Rav Chisda challenges him with the tenet of Eholot "if its head comes out - they do not touch it, since one does not turn away a soul for another; and what is my mother? He is a pursuer!" And the Gemara's answer is: "Because I am innocent, I will not pursue her."

Ostensibly, the beginning of the Mishnah in Eholot constitutes evidence for Rabbi Huna's view, since the fetus is killed even though it is not possible to conceive. However, Rav Chisda questions Rav Huna specifically from the end of Mishnah Eholot, from which we see that there is no persecutory law against a child who has his head removed.

The answer "From heaven they pursued her" can be interpreted in three ways:

Something that is inherent in the nature of the world – the contractions and mutual pressure of childbirth – is not considered persecution; only man-made actions, actions that deviate from the nature of the world, can constitute persecution.

An intent to persecute is necessary in order to receive a persecutory judgment. "Mishmia ka radfu la" means that there is no intent to persecute here, but rather a natural process - "Mishmia".

In Yerushalmi, in the parallel issue (Shabbat Suf, Chapter 14 and Sanhedrin, Chapter 58, Chapter 9), it is Rabbi Jeremiah who brings evidence from a fetus whose head has emerged, and there the one who answers is actually Rabbi Chisda. According to him, a fetus is not considered to be pursuing its mother because "you do not know who is killing (pursuing) whom." In other words: such a situation is symmetrical, and each of them pursues the other, and therefore it is not permissible to kill the child when its head has emerged.[8]

The common thread between all these explanations is that the Gemara concludes that in such a situation the baby/fetus is not considered a persecutor. However, since the fetus is still in its mother's womb, this is a situation of asymmetry, and the mother's life is more important than the fetus's life, and therefore it is permissible to save the persecuted (the mother) with the soul of the persecutor (the fetus).

However, this is not what the Rambam says (Hebrew: Rotesh 1:9; also ruled in Shulchan Shulchan 55:2):

It is an unforgivable commandment not to spare the life of the pursuer. Therefore, the Sages taught that if the fetus is causing difficulty for the child, it is permissible to cut the fetus's throat, whether with a knife or by hand, because he is pursuing her to kill her. And if he has removed his head, he is not touched, for no soul is rejected for the sake of a soul, and this is the nature of the world.

The definition of the fetus, even while in its mother's womb, as a persecutor, shows that even in such a situation the law of 'persecution' applies. But if that is the case, what is the difference between a fetus that has not yet emerged from its mother's womb and a fetus that is still in its mother's womb, since either way it is a persecutor?[9]

It seems that even in the opinion of the Rambam, the fetus is not a real persecutor, but rather a "persecuter." In this state, when Mishma Ka radfu la, he persecutes against his will, or under natural circumstances, and therefore he is not a real persecutor but rather a "pursuer." In such a state, the permission to kill him is based on the lesser value of his life. The combination of the status of "pursuer" and his life, which is not worth the value of a whole person, is what permits killing him. However, if he removes his head, then his value as a person increases, and again, one soul is not rejected for another.[10]

It was found that according to the Maimonides' method, a persecutor in rape is a third situation, which is between a 'persecuter' and 'one who saves himself with the life of his friend,' and he is referred to by him as a 'persecuter.' In such a situation, it is permissible to kill only a fetus whose life has a lower value, but not a person whose life is fully valuable. On the other hand, a person is prohibited from saving himself with the life of his friend, whether a fetus or a whole person; whereas the law of a 'persecuter' permits killing both a fetus and a whole person.

However, one must ask, why is the situation in a fetus defined as "pursuing the devil," while it is simply that a person who is in a state of rage who shoots in all directions, who is certainly not punishable and is not responsible for his actions, would not be defined as such? It turns out that the distinction is that even if the person in a state of rage does not bear responsibility for his actions, he is nevertheless actively persecuting, and everyone has the right to defend themselves against him. In contrast, a fetus does not persecute at all (as stated above, "as a persecutor" and not "pursuing"), and therefore the act of persecution should not be attributed to him, but to a higher power.[11]

And yet we must ask: Why was the fetus defined by the Maimonides only as a "pursuer," while a minor who pursues a person to kill is considered by the halacha to be a real persecutor who is permitted to be killed – as the Maimonides says (Heb. Rotsech 1:6-7): "Even if the persecutor were a minor, all of Israel is commanded to save the persecuted from the persecutor, even with the life of the persecutor" – and isn't the minor not of sound mind?! This can be understood in two ways:

• A. The little one still has a mind, and it is enough to make him die to save the persecuted.
• B. The little one chose to pursue, and therefore, even though his mind is not complete, in any case the act done in his choice relates to him, and after all, it is like the aforementioned amok.[12]

From the halakha regarding the fetus in its mother's womb, we can learn that asymmetry alone is not enough to permit killing, and likewise that "pursuit" alone is not enough to permit it.

 Give us one of you and we'll kill him.

In the Tosefta (Terumoth Suf P"7), the halacha of gentiles who said to a group of people, "Give us one of you and we will kill him; if not, then we will kill you all," is presented, and the halacha is: "Even if they are all killed, they will not surrender a single soul from Israel. They will single out one person for them, such as Sheva ben Bakhri - they will surrender him, and they will not be killed." After its presentation in Yerushalmi Terumoth P"8, 54, Rabbi Yochanan and Reish Lakish disagreed - according to Rabbi Yochanan, when they single him out, they surrender him only if "he is liable to death like Sheva ben Bakhri," and according to Rabbi Yochanan, they surrender him "even though he is not liable to death like Sheva ben Bakhri."

The situation of the person who is liable to death, as Sheva ben Bakri, whose sacrifice is permitted, is similar to the situation of the fetus. The asymmetry in his case stems from two factors: (a) the Gentiles specifically singled him out; (b) he is liable to death. Therefore, he too, as a fetus, is judged as a "pursuer" (albeit against his will).

Maimonides (Halak Yesodei HaTorah 5:5) ruled that the Rabbis, and there he emphasized in a Mishnah, how did you think that "Mayi khatiz dadma didiya sumak tefi" is beneficial in not handing over to death the person who was singled out and named after him, since if he is not handed over, everyone will be killed. His excuse is that this reasoning is not the main reasoning for the law of "he shall be killed and not transgressed." This halakha was accepted by them, and it probably stems from the severity of the prohibition of murder.[13]

We noted above that in Judaism, the moral test is generally the determining factor, not the teleological (result test), and this explanation of the Mishnah coin fits this rule. However, the opinion of Rabbi Yochanan (which most of the early rabbis agree with, according to Beit Yosef Yod 3:16),[14] Apparently, it stems from this test – the lives of all members of the group are preferable to the life of the individual, even if he does not deserve death. This also emerges from the Mishnah's excuse for the difficulty of the Ksam, according to which an individual is not handed over to the Gentiles only if there is a possibility, even a remote one, that the entire group could have escaped from the Gentiles; however, in the absence of such a possibility, he is handed over.[15]

Taking risks to save the life of another

Another case of asymmetry is when a person is required to save his friend from certain danger, when he himself thereby enters into a certain danger. In the Mishnah (Hebrew: מרוצעת א:14) it is cited in the Maimonides glosses, which in Yerushalmi (Terumoth Suf 58) "concludes: Even if one enters into a doubt, one is obligated. And it seems that the reason is because He is certain, it is doubt."

The author of Havat-Yair (C. Kamo) proved from the Gemara BM 621, that two people were walking on a road, and one of them had a pitcher of water in his hand, that the priority of the owner of the pitcher (according to Rabbi Akiva) applies only if it is clear that dividing the water between the two will lead to the death of both of them; but when there is only doubt whether they will die – then Rabbi Akiva will admit that it is permissible for both of them to drink. You see, a person is obliged (or at least deserves) to put himself in danger in order to have a chance (not certain) of saving his friend. But this is still not similar to the halakha that the author of Hagat-Yair's glosses deduced from the Jerusalemite, since in the case of the author of Havat-Yair there is symmetry (both are in the same doubt of danger), while the Jerusalemite deals with certain salvation.

The poskim did not bring into the law the obligation to enter into danger in order to save from certain danger. The author of Or-Semach sees the law ruled by the Maimonides in Rottseh 7:8 as a law that contradicts this. In the clear Mishnah (Sh. 29:19) he ruled that "if there is danger to the rescuer, he is not obligated, he should put his life before the life of his companion."

The accuracy of the halakha of the years wandering in the desert, as the author of Havat-Yair is accurate, cannot place us on the clear halakha in the case of asymmetry, since it is not clear whether this issue (which is presented in the Babil of the Book of the Law 62:1) concerns an obligation, a permission, or a moral guidance (in the sense of appropriateness). According to the opinion of the Hazon-Ish (Homom Likutim 320) ben Petura prohibits the owner of the kiton from drinking all the water, and thereby saving his eternal life at the cost of the temporary life of his friend. According to this, also Rabbi Akiva, who states that "your life precedes the life of your friend," speaks of an obligation (the obligation of the owner of the kiton to save his own life) and not of a permission only. And according to this (since Rabbi Akiva's halakha is correct), a person is prohibited from giving up his life to save the life of another. If in doubt of danger we have seen that this is prohibited, much less in certain danger.[16]

B. Two people chasing each other

In Philadelphia, USA, in 1977, a pair of twins were born conjoined at the chest. One of them had a normal four-chambered heart; the other had a defective two-chambered heart (half a heart), and therefore she also had the healthy heart. It was clear that as conjoined twins, both would not be able to hold on, and that after separation, the one with the defective heart would not be able to hold on. The matter was discussed in court, where they likened the case to a mountain climber who lost his grip and got caught in a rope held by another mountain climber. Since this rope could not hold them both, it was clear that the climber with the more stable grip was allowed to cut the rope, thereby sending his friend to his death. Similarly, in the case of the Siamese twins, the court allowed the sister with the defective heart to be disconnected from her connection to her sister's healthy heart.

This case was also brought to the attention of Rabbi Moshe Feinstein, and after clarifying that there was asymmetry between the two sisters, he decided to perform the separation surgery, thereby saving the woman with the healthy heart at the cost of the life of the woman with the defective heart.[17] The thing should be likened to a person who is in a state of amok and is shooting in all directions, who can certainly save others at the cost of his own life, even though the sister with the defective heart is not committing an act of persecution, and seemingly from heaven is persecuting her sister.

On the other hand, the status of this sister is like a fetus that endangers its mother, who, as mentioned above, is considered a "chaser" (not a "chaser"), and after it has removed its head (and in our case, both of them have come out into the world), "one does not repel a soul for another." Rabbi Bleich also discussed this,[18] And he put forward the argument that since this is a case of mutual persecution, there is no longer a law of "persecutor." He provided evidence for this from the words of Rabbi Shlomo Eiger, whose words were cited in Rabbi Akiva Eiger's novellas to the 33b, which proves this precisely in the Gemara.

The correct interpretation is that of Rabbi Yonatan ben Shaul (Sanhedrin 1:1), who interprets the verse "And if there is no calamity, he shall be punished" (Exodus 21:22), from which it is clear that if there is a calamity, he is not punished, and even though he is a pursuer, in any case, since he can save him with one of his limbs, he is liable to death and is exempt from payments. Rabbi Eiger stressed this: And since this is a case of a pursuer ("in the commandments of death, the scripture speaks" - Ketuboth 33:1), and if so, he is liable to death even if there is no calamity. His justification is that the scripture "when they shall be punished" deals with two people who began their quarrel together, "and one came to kill the other and the other; and since each one did not have the same law regarding his fellow as the pursuer and was not permitted to kill him, then he is considered a permanent person" - that is, there is no law of "pursue" here.

However, in the case discussed by Rabbi Feinstein and Rabbi Bleich (who ultimately reached the same halachic conclusion in different ways), it is difficult to define the woman with a healthy heart as a persecutor, when her sister is nursing her life from her own heart. In this respect, there is an asymmetry here, which, as mentioned above, separates the discussion from the classic persecutor issue.

The analogy of the Siamese twins' case to the quarrel between the two people is also not perfect. If there is also no 'pursue' law in the case of the Siamese twins, then we must allow the case to unfold naturally; but then it is most likely that both of them will die. Whereas in the mitzvah of the two people, it must be assumed that each of the dalim is male, and only one of them will die. Therefore, in our discussion, it seems that even Rabbi Eiger would admit that one must intervene. Furthermore, the two people who are hawking on their own initiative can be considered to be persecuting each other, and thus the 'pursue' law will be taken away from them; since there is no act or initiative of persecution in the case of the two sisters.

It is more obvious to return to the principle we discussed above, in this case of the Siamese twins, that in the case of asymmetry, the one who created the situation, even if not through his fault or on purpose, must bear the price. Although we have already stated above that asymmetry alone is not enough to impose full responsibility on him, it must be added that here there is a case of 'as a pursuer.' And we have already seen that asymmetry added to the situation of 'as a pursuer' is sufficient according to the Maimonides and the Shulchan Arutz Sheva to permit intervention.

Rabbi Feinstein bases his teaching on the asymmetry alone, which arises because the owner of the defective heart is about to die in any case. He compares this to the law of the faction in which the Gentiles seek to kill one of their own, and single him out. However, we have already seen above that the asymmetry is not sufficient to permit killing, and only with the addition of another explanation (such as: 'as a persecutor' and not 'a persecutor') can it be permitted.

C. The way of behaving in a symmetrical situation

From Rabbi Feinstein's ruling, which is based on the asymmetric nature of the situation, it can be learned that in a symmetrical situation there is no permission to intervene. A symmetrical situation is a kind of problem that arises in the question of embryo dilution, when after fertilization, several embryos grow in the mother's womb, and it is necessary to lose some of them in order to allow the life of some of them. Although those who permit this rely mainly on the fact that killing embryos is not similar to killing whole human beings.[19]

Even in the case where the fetus has already emerged with its head, in which case it is said that one soul is not rejected for another, and this is apparently a symmetrical situation, some of the latter have argued that it is permissible to kill the fetus when its mother is at risk of dying, since the soul of a fetus that is considered a miscarriage and whose months have not yet expired is not equivalent to that of the mother.

A symmetrical situation can be found in Siamese twins, who together have only one healthy heart, and cannot be clearly attributed to either of them. If we had listened to the oleh of Rabbi Feinstein's reply, that in a symmetrical situation one does not reject a soul for a soul, we would have to completely refrain from intervening in this case. But in the context of the case law, this is not the case, and I will explain my words:

In a symmetrical situation, there are usually two people pursuing each other. Ostensibly, the determination not to intervene in this case is not a way of behaving in the first place, but rather stems from the inability to decide how to choose which of the two to harm. But in reality, there is a way to choose, and that is through a lottery. The lottery in this case does not only make it easier for us to choose whom to harm, but is based on mutual forgiveness that makes our intervention a way of behaving in the first place and not a choice, due to the lack of another way.

The problem with casting lots is that this action does not have the power to authorize murder, and after all, one of the twins will be killed. However, the symmetrical situation, in which each twin endangers the life of his brother, turns both of them into "persecutors." Since he is a "persecutor," his blood has been spared, as he is enslaved to saving his brother, and this act is not "murder," but rather saving a life. The lottery only decides which of the two to apply the law of persecutor, which exists here anyway.

Furthermore, in our case, both twins are facing certain death, and the only way for each of them to be saved is solely by consenting to fate (we will discuss this consent below). And would it occur to us that a person is forbidden from taking a fifty percent risk of death in order to save himself from certain death? And would we forbid a person who is in a burning house from jumping down out of a fifty percent fear that he might die? After all, if he stays in the house, he will certainly die! This is exactly the situation of the twins.

But now the question will still be asked: Why in the case of the Jerusalemite - let's take one of you and kill him, and they won't specify who they want to hand over - was the solution of fate not given, since there too, apparently, each member of the faction is persecuting his other members?

This can be answered on two levels, one above the other: First, there is no persecutory law, since none of them persecutes their friends. At most, this is a situation where one of them, by not being handed over to the Gentiles, prevents the salvation of his friends. He remains subject to the law of 'saving himself with the life of his friend,' but not the law of 'persecuting.' Since his blood was not permitted, it is forbidden to cast lots, since at most fate can constitute a criterion for choosing between those whose blood is permitted and not a reason that in itself permits the blood of someone.

However, another, much more plausible explanation can be offered here. It must be remembered that when we refrain from handing over one, then everyone will surely die, including that one himself. As mentioned, there is no logic in prohibiting a person in a burning house from jumping out because of the fear that he might die. If so, it would be inconceivable that we would prohibit each of them from agreeing to participate in a lottery that would determine who would be handed over and who would be saved. Therefore, such a lottery is not an act of murder but an act of rescue. Each of them is willing to enter the lottery in order to create a chance that he himself would be saved.

If so, how should we understand the Jerusalemi ruling? Ostensibly, there we forbid them from conducting such a lottery. But we must remember that this Jerusalemi ruling was stated in the context of the laws of Kiddush Hashem (and this is how it is also presented in the Rambam). It could be understood that the connection to Kiddush Hashem is only because there is an obligation here to die and not violate the prohibition of murder, but this understanding is exposed to all the difficulties we presented in the previous paragraphs. Therefore, we conclude that the entire prohibition of handing over one in order to save the other stems from the fact that it would be blasphemy to yield to such a demand of the Gentiles. For this reason, we reject all considerations of teleological expediency. In such a situation, we forbid a person from jumping out of a burning house.

However, it follows from this that if the threat does indeed come from an external and neutral cause (as in the case of Siamese twins), then it is certainly and simply permissible to draw lots and hand over one in order to save the rest. Why would they all die? We should note that this logical explanation was apparently implicitly assumed by all the poskim and the bearers of the tools who criticized the Maimonides and the Yerushalmi (the Kasam, the Laham, the Ramach, and others, whose words were cited above).[20] Our words are an appropriate, and even necessary, way out of this difficulty.

D. Lottery for souls

Fate is a legitimate thing in Halacha – according to which it is possible to divide a partnership and inheritance, reconcile between priests in work and in eating holy things; it is used in the sacredness of the Yom Kippur service. “He who transgresses fate is like transgressing the Ten Commandments” (Responsa Havat-Yair 366) and cf. in the Talmudic Encyclopedia under the heading ‘fate’. And yet, we are not permitted to determine the fate of everything. The author of Sefer Hasidim refers to this with the signs Teret and Tisha. In the latter sign, he states that in our time, fate should not be relied upon, and “a reference is not available for matters of wealth, and even less so for matters of souls who will not trust in fate… And even in matters of wealth, fate is not cast except when divided equally, but two pieces are not placed against one piece, for both are equal, and not a large piece against a small piece, but rather in an estimate of the value of knowledge, and since two goats were needed for Yom Kippur, they were equal in appearance and stature.”

The restrictions stated by the author of the Sefer Hasidim regarding casting lots in matters of property (absolute equality) are not sufficient, according to him, to allow the casting of lots in matters of life. In biblical times, such as in the days of Saul, matters of life were determined by lot (see Shem 14:24), but "there was an ark, and what was its entire judgment, and they knew in which matter to cast"; which is not the case today. Ostensibly, according to this, the decision as to which of the Siamese twins would pay with his life cannot be made by lot.

However, the examples discussed in the Book of Hasidim are a kind of Jonah example – “people who were crossing the sea and a stormy wind arose against them,” and the question is who should be thrown overboard. The danger is great, but it is not as certain as in the case of the two Siamese twins, whose lack of decision and inaction will certainly lead to the death of both. Furthermore, in a ship, there is no complete certainty that throwing one person overboard will save the entire ship. In contrast, in the case of the Siamese twins, it is clear that one of them can be saved at the cost of his brother’s life.

Evidence that in order to permit the casting of lots, complete certainty that its results will lead to the salvation of souls is necessary can be found in the difference between the two signs in the Book of Hasidim. In the first of these (Sixteenth Chapter) it is stated that "it is permissible to cast lots," while in the second (Sixteenth Chapter) the conclusion is that "it is not permissible to cast lots," and it is forbidden to "do as they did to the true dove." The difference is that in the first sign, the situation is that the ship in question is passing by "a storm wind that will break the ship or sink it... and the other ships are passing safely, and it is known that there is someone on the ship who is obligated." This is a divine indication that throwing one of them into the sea will save the entire ship, and this indication is what permits the casting of lots. This is not the case in the second sign, which is a ship that was hit by a storm wind, and there is no divine indication that throwing one into the sea will help save the rest (like the other ships passing safely). It is no wonder that in such a case there is no room for allowing fate to throw a person into the sea. There is no logical basis for this, and therefore it is a simple act of murder.[21]

In the absence of a clear indication, there is no permission to cast a fate, especially since there is no person whose blood is permitted as a 'pursuer.' However, with the Siamese twins - not only is there a clear indication that if they are not separated, neither will live, and not only is there a seer's opinion that separating and killing one will save the other (unlike Jonah's ship), but defining both as 'pursuers' permits the blood of both and allows the use of fate to decide which of the two to kill.

The author of Sefer Hasidim sees the casting of lots as a means of reference, and if so, one who relies on fate will be considered a usurper with regard to money, and a criminal if he commits a forbidden act (in our case: murder) if he acts accordingly. However, in our case, it is a matter of saving a life, and the act is not an act of murder. Therefore, even if there is some kind of prohibition on casting lots (and we do not see what kind of prohibition there could be here), then just as all the other prohibitions do not stand up to the protection of life, so is the prohibition on relying on fate. Accordingly, just ascommandment To violate Shabbat for the sake of saving lives, is how the mitzvah is commanded to cast lots in this case of the Siamese twins.

E. Volunteering for the surrender of the soul

As stated above, in the opinion of Rabbi Shlomo Eiger, if two people are pursuing each other, neither of them is considered a "pursuer." All that remains for each of them is to fulfill the mitzvah of saving the other. However, since saving the other involves the sacrifice of the life of the rescuer, he is not obligated to do so (as stated in the Mishnah-Berora 29:19), and perhaps there is even a prohibition in this matter.[22] Is it therefore forbidden for the owner of the tent who is walking with his companion in the desert and the tent is shared by both of them to give his share to his companion? It seems that this is permissible for him, since without this he himself is destined for death, and he is already a man of great worth.[23]

Ostensibly, the same is true of a faction that the Gentiles demand to hand over one of their own. Anyone who wishes to do so may volunteer and surrender to the Gentiles, and in doing so save the entire faction. After all, any argument in Jerusalem against handing over an individual to them is because "Whoever has seen the blood of his friend, let him blush, and let him blush," but a person may say to himself that the blood of his friend is like a blush, and volunteer and give up his own life for the sake of saving another. And evidence of this is the story of the martyrs of Lod, who, as explained in Rashi Ta'anit 18:2, cf. Lodakiyya, gave themselves up to death in order to save Israel from the Roman decree.

Why is this solution not offered in Jerusalem to the faction whose gentiles are requesting that one of them be handed over? It would be appropriate to say that in Jerusalem, only the possibility of coercion was discussed, with all the members of the faction forcing the individual, and this was ruled out; but the question of volunteering was not discussed at all.

But the path to the imposition of fate is still open. If a person is allowed to volunteer and give up his life, he is certainly also allowed to agree to the imposition of fate. Even if a person does not have control over his body, and is not allowed to take risks, he is nevertheless allowed to agree to the imposition of fate, because fate may be good to him and save his own life. Where until now his life was in danger, it is possible that fate will fall on his friend, and he will be saved. Even if by his consent he puts himself in danger lest he himself fall by fate, it turns out that a person is allowed to give up his temporary life for the possibility that his eternal life will be saved in this way.[24]

There is room for argument that it is impossible to force the members of the faction to cast lots among themselves, because no matter how the lot falls, the members of the faction will be found forcing one of them to give up his life for them, and May the front of the house of Dida blushes with the blood of Didya. Perhaps that is why the Yerushalmi, who deals with a situation of coercion, did not even suggest that they cast lots among themselves. However, as we saw above, the explanation in Yerushalmi is different (he deals with the laws of blasphemy, not the laws of Piku'n). Therefore, there is room for argument that there is even a possibility of forcing fate upon all the participants, since anyone who does not agree to fate is condemning everyone else (and himself) to death. This is like drilling a hole in his room in the ship in that well-known midrash.

F. Implied consent to the imposition of fate

Since our concern is with the separation of Siamese twins, it is generally not possible (unless they are adults) to obtain their consent to the casting of fate. First, it is said that seemingly we do not need their consent at all, since the doctor with the surgeon's scalpel in his hand is like a third person with a gift in his hand, which according to the Chazo"a (Hum Likutim 320) he is entitled to give to whomever he wishes, and before him also stands the path of deciding according to fate.

However, even if their consent were necessary (perhaps because the scalpel in the hand of the doctor, appointed by the public, is not like a knife owned by the holder), it appears that in this case there is implicit consent to the execution of the fate. The principle of implicit forgiveness can be learned from the issue of reimbursing a loss based on signs, regarding which the Gemara says (B.M. 27:2): "It is permissible for the owner of a loss to provide signs and weights; information is given to him, and he said: I am completely ignorant and do not know clear signs for it, and I ask you to provide clear signs for it and weigh it for it." Forgiveness for the loss on the part of its true owners (in the event that the loss is transferred to the wrong hands) is done in his name, and it appears that he cannot even say, "I cannot, in accordance with the sages' teachings," and all this because this is the only chance for him and for any other person to accept his loss. The same is true in the case of the Jerusalemite, where we insisted that there is a strong argument in favor of the possibility of imposing fate, since fate creates the only chance for each of them (including the one who opposes fate) to be saved.

As stated, in most cases, it is a matter of separating conjoined twins when they are small, and if so, one must ask: After all, are small children not exempt from forgiveness? However, in relation to this, the Gemara has already stated in Kiddushin 24:1, regarding the division of an inheritance, that the court has the power to appoint a guardian for small children, since the children are the 'fathers of orphans.' This law also gives the court the authority to cast lots among the small children, just as is done in the division of an inheritance.

Reliance on implicit forgiveness can only be in the case of symmetry between the two condemned. Then it must be assumed that each one forgives the risk of his life in exchange for his chance to win life. However, when there is asymmetry between them, such as when one of the Siamese twins has a defective heart, then one can no longer rely on forgiveness, but on the other hand, in this case, Rabbi Feinstein has already determined (as mentioned above in Chapter 2), that the one whose chances of life are less is considered to be pursuing his brother, and his brother can be saved with his life. This reliance is of course conditional on the fact that fate will be fair, so that each of the participants will have an equal chance of being saved. Here, this is not just a question of fairness, but it is a condition for implicit consent, which was only given with such knowledge.

G. An act of rescue is not murder.

As stated, casting the dice will inevitably result in the killing of one of the twins, and yet there does not seem to be a prohibition on casting the dice, since it is not an act of murder but an act of saving a life. The Hazon-Ish (Homo 35:25, and should be consulted in one) discusses a person who aimed an arrow that was supposed to hit many people in the direction of a single person, and he sided with saying that aiming the arrow is not an act of murder, since its purpose is to save lives.

The distinction between deflecting an arrow and handing a person over to the Gentiles in order to save the entire faction is, according to the Chazo'a, that deflecting an arrow is an act of salvation in its essence, except that as a result of it another person is harmed, while handing a person over to the Gentiles is an act of killing that will result in salvation for many for an external reason.

By the same token, separating Siamese twins is not an act of murder, God forbid, but rather an act of saving lives. And certainly, casting the fate before the separation surgery is also part of the act of saving, and not an act of killing.

H. Refraining from an act

Lest you say that the avoidance of handing over one of the factions to the Gentiles in order to save the whole stems from a lack of decision, which is followed by the decision to "go back and do nothing." This is also the practice with regard to money, where sometimes money that is in doubt is not divided, nor is it left in the hands of the holder, but "shall be laid up until Elijah comes." However, in the case of money, freezing the situation does not upset the balance between the parties, since from now on and forever the right of the true owner of the object still stands to bring evidence of its ownership. And even if the object is truly laid up until Elijah comes, this constitutes a punishment for the fraudster, as follows from the mishna of the Shab'am 7:1 and according to the Shach's Hom 6:10. In our discussion, if the separation analysis is delayed, there will again be no question of rectification; and likewise, neither of the twins can be blamed for the situation that has arisen, and therefore certainly neither of them deserves a fine.

Our discussion here suggests that even if the avoidance of delivering one of the twins stems from a preference for inaction ("remain and do not do anything"), then it can be justified on the grounds that the act of delivery is an act of killing, which must be avoided. However, as stated, surgery and separation are not acts of killing, but rather acts of salvation, and Chazal (Sotah 21:2) have already said that a foolish Hasid is one who refrains from an act of salvation due to other considerations, even if they are halakhic considerations. Avoiding the separation of the twins means imposing a death sentence on both parties.

I. Summary

• When the two conjoined babies are not in a symmetrical position, but rather the chances of one surviving exceed the chances of its sibling, separation is possible, even though one will die and its sibling will remain alive. The source of this is the law of the "pursuer" - which permits and even requires saving the life of the persecuted at the cost of the life of the persecutor.
• Our main innovation here was that even when the two twins are in a symmetrical state, they must be separated in order to save one of them. In order to choose who to keep alive and who to kill, a draw must be made between the two. This is permissible for several reasons:
  1. It is assumed that even the one who was sentenced to death waived his rights at the time of the casting of the lot, since at that moment the lottery created the only chance for him to remain alive. As we have seen, there is no reason to cast the lot in such a situation.
  2. Since this is a symmetrical situation, and since this is a clear act of saving a life, there is no murder – neither in the casting of fate nor in the separation analysis. If it were an act of murder, it might be forbidden, just as it is forbidden for a group of people who are required to deliver one of their own to death.

The most problematic source, which seemingly contradicts our conclusion, was the ruling of the Yerushalmi and the Rambam regarding 'Give us one of you.' It is clear from the words of the poskim that this source is what caused the poskim to follow such a puzzling path, prohibiting separation in the symmetrical case, even though in doing so we decree that both will die. As stated, this is equivalent to imposing a prohibition on a person jumping out of a burning house.

But in our discussion, it was clarified that the subject of the issue there is the laws of blasphemy and not the laws of fiqun, and thus the matters are properly reconciled, and all the difficulties disappear on their own. The solution that we proposed in Yerushalmi removes the constraint that led to this ruling, and in our opinion, it may pave the way for recognition of the halakhic obligation to separate the twins in order to save at least one of them.

[1]. Complete symmetry can also occur when one heart is located in one of them, as this heart serves both twins equally.

[2]. On this subject, see: Rabbi Yehuda Dick, 'Donating Organs from a Dying Person to Save Human Life', Asya 37-45 (14,1-2) Elul 599, pp. 48 – 58, chapters 7-8; Rabbi Dr. Mordechai Halperin, 'Is Heart Transplantation Permitted According to Halacha', Sefer Asya 5, pp. 55-79, chapters 5-8; my articles 'The Problem of the Relationship Between the General and the Individual and the Dilemma of a Defensive Wall', Tzohar 14, p. 61.

[3]. See: Novels of Maran Ri'z HaLevi on Maimonides, Rotesh 1:13; Afiki-Yam, Ch. 2, 34.

[4]. If this were complete insanity, then perhaps it is an asymmetry in the values of life, and the sane person's blood runs red.

[5]. See a discussion of this in the novellas of the author of 'Shiridei Esh', Sanhedrin 3:10, and in the commentary on Gechali Esh by HaR"a Weingort, ibid.

[6] In the Tosefta: “He took out his head,” and these are the words – in these two ways he is considered a newborn, and as explained in the chapter on the hardened beast.

[7]. Although the poskim disagreed on whether the difference is only in the punishment, or whether there is also a difference in the severity of the prohibition. See on this in the article by Rabbi Dr. Mordechai Halperin, 'Abortion – Legal, Moral and Halachic Aspects', Refuah va'Mishpat 27, 2002, at the beginning of Chapter 5. And see also Birkat-Kohen Sof'k Derchin.

[8]. There is room to identify the Yerushalmi method with one of the two answers in Babylon. From the reasons offered in Babylon, it follows that there is no defined persecutor here.

[9] It does not seem reasonable to distinguish between a fetus and a baby whose head has emerged with regard to the question of whether it is a persecutor or not – see the commentary of Rabbi Akiva Eiger on the Mishnah Eholot.

[10]. According to this, the Rambam interprets the Gemara as follows: The assumption was that the fetus was killed by the law of 'pursue.' However, because of this, the question arises: Why is the baby not killed when it has its head removed, since it is a pursue? The answer is that, like the fetus, it is not a pursue but rather a 'pursue,' as the Lord says: 'pursue.' Therefore, it is permissible to kill a fetus whose life is less valuable, but not one whose head has been removed.

[11]. It appears that in the case of a rapist (such as a rampage), only the permission to save the pursued would apply, but not the obligation to execute the pursuer with the death penalty. This may be the explanation for Maimonides' distinction between a fetus and one who has had his head cut off. When there is no death penalty, then the permission to save the pursued does not constitute a sufficient basis for the permission to kill an entire person for this purpose. Rabbi Chaim of Brisk explained this similarly in Chay' Ha-Gar'ach Ha-L' Rotsech 1:9.

[12]. Therefore, according to the majority of poskim (see: Sama 55:3, Minchat-Hinuch 55:2-3, Chai Reka A. Torah 33:2), there is no need to permit a great persecutor in order to permit killing him, since what is important to us is saving the persecuted, and not distinguishing whether the persecutor is accidental or intentional, which is the purpose of the warning.

[13]. And yet, if they single him out and he is guilty of death, like Sheva ben Bakri, it is permissible to kill him, for if he is guilty of death, and not even according to Torah law but according to royal law (as in the case of Sheva ben Bakri in 2 Samuel 20), it is not an act of murder; and just as the king or his executioner has permission to execute him, so too does every person. But if they only single him out and he is not guilty of death, it is forbidden to lay a hand on him, since the blood of others is not more red than his blood.

[14]. The B"H and the T"Z disagree with the Rema on the Jerusalem basis, that Elijah did not want to criticize Rabbi Yehoshua ben Levi because he did as Rabbi Yochanan did. However, Rabbi Yehuda Dick has already commented (see above, 2) that in Jerusalem it is a measure of chassidism.

[15] In the Tosefta version, the opinion of Rabbi Yehuda appears explicitly, which states the baraita in such a way that death is not certain.

[16]. Here is the place to mention, also as a reminder of souls, Lieutenant Colonel Roy Klein in the 1966 Lebanon War and the earlier case of Nathan Elbaz in 1974, who lay down on a grenade and exploded, thereby saving the lives of their comrades.

[17]. Rabbi Feinstein also used illustrative examples, and they are quite close to those of the American judge. The course of events was described in the Philadelphia Inquirer newspaper of October 6, 1977. This was followed by a concise review in the article by Rabbi Dr. Mordechai Halperin – Siamese Twins: Rav Feinstein's Ruling and the Subsequent Controversy, ASSAI – Vol. IV, No. 1 February 2001. Also see the article by Rabbi Prof. David Bleich – Tradition 31, No 1 (1996): 92-125. See also in the Ministry of Education's lesson plan: "The Story of Siamese Twins", and You Chose Life, Ministry of Education – Curriculum Division, 1999.

[18]. See the previous note.

[19]. On embryo dilution, see: Rabbi Yitzchak Zilberstein and Dr. Pinchas M. Osher, Asia 10, 68-62, (1989); Es Avraham, Neshat Avraham, 3rd ed., 551 (21); Rabbi Mordechai Eliyahu, Tecumin 11, pp. 273-274.

[20]. And yet, why do the poskim assume that the issue in Yerushalmi Terumot and Rambam deals with the laws of supervision of the N], and not with the laws of desecration and sanctification of the Lord?

[21]. On the halachic weight of fate, see Rabbi B.C. Krieger's book on the Book of Jonah...

[22]. For sources for this discussion, see the above-mentioned article (note 2) by Rabbi Dick, and the article by Rabbi Bleich, Tecumin 3, pp. 275 – 286.

[23]. In the case where the Gemara itself deals with this, this is not agreed upon, see Rabbi Dick (above) in chapter 5, and in Minchat-Chinuch, Jerusalem Institute edition, by C. Relz in the Mahadir's note 5.

[24]. As in the example of jumping from the burning house above, and as Rabbi Yehuda Dick concludes in his aforementioned article (Chapter 3).