Does the 30 Day Waiting Period Begin When the Baby was Born or When it Left the Incubator?
BY Rabbi Micha Cohn
[This article is for educational and enrichment purposes only, not a final halachic decision]
Incubator in Halacha (Pidyon Haben, Aveilus)
Q: A preterm infant spent a few months in an incubator. How does halacha view this time regarding pidyon haben? Does the 30 day waiting period before a pidyon haben can be done, begin from when the baby was born or from when it left the incubator and could function on its own? Similarly, in a situation where the child unfortunately did not survive, if the child lived 30 days from birth but not from leaving the incubator is the family obligated to sit shiva?
A: In both the laws of redeeming the first born, pidyon haben, and the laws of mourning, aveilus, a child must live for thirty days from birth to be obligated in pidyon haben and unfortunately if the child dies, to be considered viable and create an obligation to sit shiva. Until 30 days from birth halacha views the child as possibly a “nefel”, a fetus that is not viable. In a situation where the child spent much of the first thirty days in an incubator the question arises as to whether the time in the incubator can be counted as part of the thirty days to remove the concern of nefel?
One of the earlier discussions of this question is between a descendent of the Chasam Sofer, Rabbi Akiva Sofer, the last Rav of Pressberg, and the author of the Levushai Mordechai, one of the leading Hungarian halachic authorities at the time. Rabbi Sofer maintained that although the child needs the incubator to live, the child is not considered a “nefel”, and compares it to the case in Tractate Chullin where an artificial covering was made for an animal that had a hole in the windpipe and the Talmud seemingly held that the animal loses the status of a “treifa” and is kosher. Rabbi Sofer points out that although the animal needs the artificial covering to survive, once it has it, the animal is no longer considered a treifa. Similarly, a child who would not be able to survive after birth without the artificial conditions of the incubator is not considered a nefel since it is viable in the present situation.
The Levushai Mordechai, in his response to his colleage, Rabbi Sofer, questioned the comparison to the case of Chullin because in halachic terms a treifa, a person or animal that has a condition such as a hole in a major organ and cannot live for twelve months, is considered “more alive” than a nefel, a baby who is stillborn or cannot live for thirty days after birth. Therefore, it is possible that the Talmud only accepted artificial intervention with a treifa, not a nefel.
Since the days of Rabbi Sofer and the Levushai Mordechai there has been much discussion about the halachic status of an incubator both in the area of pidyon haben and the laws of aveilus (mourning). The focal point seems to be how to view the incubator. All agree that if a child is born but needs medicine to survive that from a halachic perspective the child is considered “born” and the thirty days begin immediately from birth. Many poskim view the incubator as being no different than medicine and consider the child to be “born” although it needs the incubator to live. They begin counting the thirty days from birth. Others argue that an incubator is much more than just medicine. It is a simulation of being in the mother and therefore we cannot begin to count the thirty days until it leaves the incubator.
A number of contemporary sources (Shevet Halevi, Emek Hatshuva, Minchas Shlomo, Yabia Omer) do not obligate the family to sit shiva for a child who did not live for thirty days after leaving the incubator, while with regards to pidyon haben Rav Moshe Sternbuch writes that it seems that common practice is to count the thirty days from birth and not from leaving the incubator.
There may be good reason for this difference. The obligation to sit shiva is Rabbinic and is governed by the rule “halacha kidiveri hameikil beaveilus” that in the laws of aveilus we follow the more lenient opinion. This is the basis why until thirty days we do not sit shiva because until that point there is a doubt if the child had the status of a nefel, and when we are in doubt with the laws of mourning we are lenient. Likewise, if the child was completely dependent on the incubator there is at least a doubt whether the child is viable, and therefore it is logical that the family can not be obligated to sit shiva.
On the other hand, while the thirty days of pidyon haben is derived from the concept of nefel, in actuality it is a Torah decree that pidyon haben cannot be done until thirty days, even if the child is full term and completely healthy. For this reason it is difficult to consider a child in an incubator as unborn, and it is logical to count the thirty days from birth. None the less, there is a concept that pidyon haben should only be done when it is clear that the infant is viable and therefore Rav Sternbuch suggests that while the counting of thirty days should start from birth, the pidyon haben itself should not be done until the baby leaves the incubator and is self-sufficient, albeit not for thirty days.
Sources: 1) Levushai Mordechai 4)Shevet Halevi III, Emek Hateshuva II, see Yabia Omer IX:YD #37 forextensive sources. 4)6) Teshuvos Vehanhagos III #330.
THE BAIS HAVAAD HALACHA CENTER
{Matzav.com Newscenter}
