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Too Clever by Half: The Ben Pakuah and the Spirit of the Law Chulin 74
This daf discusses one of the stranger aspects of halacha, a kind of legal loophole of the laws of shechitta, a Ben Pakuah. A Ben Pakuah is a live fetus that is found within the mother after it is properly slaughtered. Because the mother was properly slaughtered, and this fetus was at that time subsumed within the mother, the slaughter also applies to the fetus. Therefore, ironically, even though this calf might be prancing about, in many respects it has the law of slaughtered meat. There are complications that relate to whether it would be considered like taking live flesh from this animal - is it a live animal or is it slaughtered, and what is the status of its fats and blood, and what happens if it mates with a regular animal and therefore the offspring is half slaughtered and half not slaughtered? All these are interesting cases. However, if a Ben Pakuah mates with another Ben Pakuah, that offspring will now be considered completely slaughtered and kosher without any further ritual necessary. Rabbinically, because of appearances, it may still require slaughtering, but that is only a technicality so as not to mislead people.
In modern times, a question has been raised if there is value in creating a herd of Ben Pakuah animals. The potential value for this would be that even if slaughtering is done, questions about if it’s fully Kosher, questions regarding if there are invalidations or diseases to prevent the animal’s consumption, could be technically superseded by the fact that this animal was already slaughtered generations ago. In that case, why not play it safe and create a new kind of reality. (By the way, in modern application, this may relate to vat grown meat, but that is for a different discussion.)
While a minority of poskim have advocated for this, the majority have rejected this proposal on a number of grounds, such as: (1) It will lead to forgetting the institution of shechitta and render certain laws obsolete. (2) It would unnecessarily abrogate the opportunity to fulfill the mitzvah of shechitta and recite the blessing of shechitta. (This can be seen as analogous to not wearing a four cornered garment, which technically exempts one from the mitzvah of tzitzis but is still frowned upon because, after all, an opportunity to perform a mitzvah is being neglected (Menachos 41a).) (3) It can lead to other kinds of halachic complications, because if a Ben Pakuah mates with a regular animal, that animal can never be made Kosher. It is suffering from having a half slaughtering, with one having been performed on the original ancestral animal, and now trying to perform another one. And half shechittas are not valid. Should such an animal escape the corral and mix with the other animals, since it is a significant creature, it can’t even be nullified one in 60, and it’s possible that an entire farm of animals would be rendered unkosher with no rectification possible. This is discussed in detail in a number of poskim, see (Shu”t Shevet Halevi YD 188, Shu”t Teshuvos Vhanhagos 7:147a, Minchas Asher 3:47.)
There is another idea which is not mentioned explicitly but on a meta level. Some things are just not meant to be done. We do not need to be too clever with solutions that, common sense-wise are not in the spirit of the Torah. I’ll give another example of this. There is a behind the scenes halachic debate about whether one should advise an unmarried couple, who are not fully religious and sexually active, to go to the Mikvah. The idea behind this is to minimize halachic damage, since at least they won’t violate niddah. The meta problem is that it is giving tacit rabbinic approval for immoral and improper behavior. So what is better, to minimize the actual sin, or big picture, to present to the couple the Torah expectation and wait until they are ready to fulfill it but not offer half solutions. On a practical level, many Mikvaos practice a “don’t ask, don't tell policy” but that is quite different than a rabbi offering sanction. Once again though, to be clear, these solutions are too clever and simply not the intention of the Torah. Technically one can argue on both of my points: this is not a feeling matter and you must argue solely from halachic logic and precedent. Perhaps. Yet some things don’t feel right and we know why, even if we cannot prove it. These two issues fit into that category. (For some sources on this, see Shu”t Rivash 425 and Shu”t Teshuvos Vhanhagos I:484.)
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Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation
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Rabbi Simcha Feuerman, Rabbi Simcha Feuerman, LCSW-R, LMFT, DHL is a psychotherapist who works with high conflict couples and families. He can be reached via email at simchafeuerman@gmail.com