Halakhah sobre Génesis 9:6

The procedure for washing hands in the morning is as follows: take the vessel in your right hand and then place it in your left hand, and then first pour on the right hand; and then take the vessel in your right hand and pour upon the left hand. This procedure is repeated three times.⁶Others say that you should follow this procedure a fourth time. It is preferable to wash your hands until the wrist. However, in extreme circumstances it is sufficient to wash them until the knuckles. You should also wash your face in deference to the Creator, as it is said: "For in the image of God He created Man."⁷Genesis 9:6. You should also rinse your mouth because of the spittle in it, for you must pronounce the great Name [of God] in holiness and purity. After this dry your hands and be careful to dry your face well.

In the early days of in vitro fertilization a position similar to that advanced by Rabbi Waldenberg was presented by R. Judah Gershuni in the Tishri 5739 issue of Or ha-Mizraḥ.⁸This article is reprinted in Rabbi Gershuni’s Kol Ẓofayikh (Jerusalem, 5740), pp. 361–367. Rabbi Gershuni's argument is based upon a statement of Divrei Malki'el, IV, no. 107. There is a significant disagreement among rabbinic authorities with regard to whether a paternal relationship may occur as a result of artificial insemination or whether such a relationship can arise only as the result of a sexual act.⁹The primary source affirming a paternal relationship is Hagahot Semak, cited by Mishneh le-Melekh, Hilkhot Ishut 15:4; Baḥ, Yoreh De‘ah 195; and Bet Shmu’el, Even ha-Ezer 1:10. A similar view is expressed by Ḥelkat Meḥokek, Even ha-Ezer 1:8; Teshuvot Tashbaẓ, III, no. 263; Turei Even, Ḥaggigah 15a; Bnei Ahuvah, Hilkhot Ishut 15; Arukh la-Ner, Yevamot 10a; Mishneh le-Melekh, Hilkhot Issurei Bi’ah 17:13; She’ilat Ya‘aveẓ, II, no. 97; Maharam Shik al Taryag Miẓvot, no. 1; Teshuvot Divrei Malkiel, II, no.107; R. Shlomoh Zalman Auerbach, No‘am, I (5717), 155; R. Israel Ze’ev Mintzberg , No‘am, I, 129; R. Joshua Baumol, Teshuvot Emek Halakhah, I, no. 68; R. Avigdor Nebenzahl, Sefer Assia, V, 92–93; and R. Ovadiah Yosef, quoted by Moshe Drori, Teḥumin, I (5740), 287, and Abraham S. Abraham, Nishmat Avraham, Even ha-Ezer 1:5, sec. 3. An opposing view is expressed by Taz, Even ha-Ezer 1:8; Birkei Yosef, Even ha-Ezer 1:14; R. Ovadiah Hedaya, No‘am, I, 130–137; R. Moshe Aryeh Leib Shapiro, No‘am, I, 138–142; and R. Ben Zion Uziel, Mishpetei Uzi’el, Even ha-Ezer, no. 19, reprinted in Piskei Uzi’el (Jerusalem, 5737), pp. 282–283. Teshuvot Ḥelkat Ya‘akov, I, no. 24, regards the issue as a matter of doubt. Divrei Malki'el expresses tentative support for the latter position but does so on the basis of the novel view that "once the semen has been emitted and has warmth only because of the ministration of the physician and his skill with the pipette or due to the heat of the bath" a baby born as a result of that process is not regarded as the son of the donor. Although Divrei Malki'el stands virtually alone in developing this argument¹⁰In his previously cited article in Be-Shevilei ha-Refu’ah, p. 30, R. Moshe Sternbuch presents an argument quite similar to that advanced by Divrei Malki’el in rejecting a paternal relationship between the donor of the semen and the child born of subsequent in vitro fertilization even when the zygote is implanted in the donor’s wife. Rabbi Sternbuch argues that “the act of conception takes place in the sterile petri dish itself which acts to commence conception, to unite both of them (i.e., the ovum and the sperm) as in the womb. This is not in the manner of conception since another power is combined therein, that is, the petri dish.”
The effect of denying paternal identity, asserts Rabbi Sternbuch, is to prohibit in vitro fertilization entirely. Rabbinic authorities who permit ejaculation of semen by the husband for purposes of artificial insemination sanction that procedure only because it leads to procreation. However, if in vitro fertilization does not result in a father-child relationship it does not serve to fulfill the commandment to “be fruitful and multiply” and hence ejaculation of semen for purposes of in vitro procedures is not permissible. See sources cited supra, note 8. With regard to artificial insemination, some authorities, including Arukh la-Ner, Yevamot 10a, and Maharam Shik al Taryag Miẓvot, no. 1, maintain that, although the child is considered the son of the donor, the donor does not fulfill the precept of procreation because no sexual act is involved. Rabbi Gershuni, although he too denies that artificial insemination results in a paternal-filial relationship, nevertheless regards the procedure as permissible for a married couple. Rabbi Gershuni argues that although artificial insemination does not serve to fulfill the commandment to “be fruitful and multiply,” nevertheless, since the procedure results in procreation of the human species, it serves to fulfill the prophetic mandate “He created [the universe] not to be a waste, He formed it to be populated” (Isaiah 45:18) and hence ejaculation of semen for that purpose is not for naught.
For a vaguely similar reason Rabbi Sternbuch, p. 29, opines that destruction of an embryo fertilized outside of a woman’s body is not prohibited. He states that “…. the prohibition against abortion is in the woman’s uterus, for the [embryo] has the potential to develop and become complete in her womb and it is destroyed. But here, outside the womb, an additional operation is required to implant [the embryo] in the woman’s uterus and without this it will … of its own not reach completion….” Rabbi Sternbuch cites no sources in support of that distinction. A similar view is advanced, without elaboration or citation of sources, by R. Chaim David Halevy, Assia, vol. XII, no. 3–4 (Kislev 5750). One source that might be cited in support of such a conclusion is Teshuvot Ḥakham Ẓevi, no. 93. Citing Sanhedrin 57b, Ḥakham Ẓevi rules that destruction of a golem does not constitute an act of homicide and is not prohibited because its gestation is not in the form of a “man within a man,” as evidenced by the fact that the Gemara, Sanhedrin 65b, reports that Rabbi Zeira commanded a person created by utilization of Sefer Yeẓirah to return to dust. That statement, however, cannot be taken as definitive since Ḥakham Ẓevi concludes that a golem lacks status as a Jew or as a human being for other purposes as well. See also R. Joseph Rosen, Teshuvot Ẓofnat Pa‘aneaḥ (Jerusalem, 5728), II, no. 7. Genesis 9:6 is cited by the Gemara and rendered “Whosoever sheds the blood of a man within a man his blood shall be shed” in establishing feticide as a capital transgression in the Noahide Code. Accordingly, there would be strong grounds to assume that a Noahide does not incur capital punishment for destruction of an embryo fertilized in vitro, but not for support of the position that a person born of in vitro fertilization may be destroyed with impunity or even for the position that there is no halakhic consideration forbidding a Jew to destroy a developing embryo outside the human body. Moreover, Ramban, cited by Ran, Yoma 82a, and Rosh, Yoma 8:13, maintains that Sabbath restrictions and the like are suspended for the purpose of preserving the life of a fetus. Those comments clearly reflect the view that there is an obligation to preserve fetal life. Thus, there are no obvious grounds for assuming that nascent human life may be destroyed with impunity simply because it is not sheltered in its natural habitat, i.e., its development takes place outside the mother’s womb. R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, V, no. 47, expresses the opinion that Sabbath restrictions are not suspended for the preservation of a zygote that has as yet not been implanted in the gestational mother on the grounds that the vast majority of such zygotes are not viable but adds the cautionary note that the empirical situation, and hence the halakhic ruling, may change with advances in the development of reproductive knowledge and techniques. The clear implication of his position is that destruction of such nascent life cannot be countenanced. R. Mordecai Eliyahu, Teḥumin, XI (5750), states unequivocally that surplus ova may not be destroyed. For a further discussion of the propriety of destroying fertilized ova see this writer’s article, “Ethical Concerns in Artificial Procreation: A Jewish Perspective,” Publications de l’Academie du Royaume du Maroc, vol. X: Problèmes d’Éthique Engendrés par les Nouvelles Maîtrises de la Procréation Humaine (Agadir, 1986), pp. 143–145.
There are, however, strong reasons to assume that there is no prohibition against the destruction of a nonviable fetus, as is stated by Rabbi Sternbuch, loc. cit. See Abraham S. Abraham, Nishmat Avraham, Ḥoshen Mishpat 425:1, sec. 19, and R. Zalman Nechemiah Goldberg, Teḥumin, V, 250. Nevertheless, such a conclusion is contrary to the view expressed by R. Eleazar Fleckles, Teshuvah me-Ahavah, no. 53, with regard to a nonviable neonate. See also Teshuvot Radbaz, II, no. 695. and himself concludes that a child born of artificial insemination is indeed the child of the donor, Rabbi Gershuni observes that a fertilized zygote sustained in a petri dish by means of "artificial nutrition and blood serum" should not be regarded by Jewish law as the child of either parent. The earlier presented rebuttal of Rabbi Waldenberg's argument applies with equal force to that advanced by Rabbi Gershuni. Moreover, any cogency the argument may have with regard to establishment of a paternal relationship notwithstanding, if parturition, in and of itself, serves to establish a maternal relationship, the sources of antecedent nutrition of the fetus are totally irrelevant.

An offense not entailing statutory punishment is certainly not an anomaly. Many such prohibitions are known to be biblical in nature. Others are recognized as having been promulgated by the Sages in order to create a "fence" around the Torah or in order formally to prohibit conduct which could not be countenanced on ethical grounds. Under which category is the prohibition against feticide to be subsumed? Is this offense biblical or rabbinic in nature? At least three diverse lines of reasoning have been employed in establishing the biblical nature of the offense. Rabbi Chaim Ozer Grodzinski demonstrates that the remarks of Tosafot, taken in context, clearly indicate a biblical proscription rather than a rabbinic edict.⁵Teshuvot Aḥi‘ezer (Wilno, 5699) III, 65, sec. 14. Although not adduced by Aḥi‘ezer, there is ample evidence that the principle “Is there anything which is forbidden to a Noachide yet permitted to a Jew?” establishes a biblical prohibition. Tosafot, Ḥullin 33a, states explicitly with regard to ḥaẓi shi‘ur (which is forbidden to Noachides) that the principle “Is there anything which is forbidden to a Noachide yet permitted to a Jew?” is consistent only with the opinion of R. Yochanan, who deems ḥaẓi shi‘ur to be biblically forbidden and in contradiction to the opinion of Resh Lakish, who deems ḥaẓi shi‘ur to be rabbinically proscribed. Cf. R. Samuel Engel, Teshuvot Maharash (Varnov, 5696), V, no. 89, and R. Isaac Schorr, Teshuvot Koaḥ Shor (Kolomea 5648), no. 20, page 33b; see also Sedei Ḥemed, I, 175. Feticide, as Tosafot notes, is expressly forbidden under the statutes of the Noachide Code. The Noachide prohibition is derived by R. Ishmael (Sanhedrin 57b) from the wording of Genesis 9:6. Rendering this verse as "Whoso sheddeth the blood of man, within man shall his blood be shed" rather than "Whoso sheddeth the blood of man, by man [i.e., through a human court] shall his blood be shed." R. Ishmael queries, "Who is a man within a man? … A fetus within the womb of the mother." Tosafot deduces that this practice is prohibited to Jews as well by virtue of the talmudic principle, "Is there anything which is forbidden to a Noachide yet permitted to a Jew?" Application of this principle clearly establishes a biblical prohibition.

R. Meir Simchah of Dvinsk, in his biblical novellae, Meshekh Hokhmah, Exod. 35:2, offers an interesting scriptural foundation for this prohibition, demonstrating that, while not a penal crime, the killing of a fetus is punishable by "death at the hands of heaven." ⁶However, cf. R. Samuel Strashun, Mekorei ha-Rambam le-Rashash (Jerusalem, 1957), p. 45, who writes that although feticide is biblically forbidden “perhaps there is no punishment even ‘at the hands of heaven.’ ” He observes that Scripture invariably refers to capital punishment by employing the formula "mot yumat—he shall surely be put to death." The use of the single expression "yumat—he shall be put to death" as, for example, in Exodus 21:29, is understood in rabbinic exegesis as having reference to death at the hands of heaven. Thus, R. Meir Simchah argues, the verse "and he that smiteth a man shall be put to death—yumat" (Lev. 24:21) is not simply a reiteration of the penalty for homicide but refers to such destruction of life which is punishable only at the hands of heaven, i.e., the killing of a fetus. Reference to the fetus as "a man" poses no difficulty since the fetus is indeed described as "a man" in the above cited verse (Gen. 9:6) prescribing death for feticide under the Noachide Code.

However, this is the case only with regard to Jewish law as it applies to Jews. Judaism also posits a series of obligations binding upon non-Jews, viz., the "Seven Commandments of the Sons of Noah," sometimes known as the Noahide Code. Feticide is an even more serious offense in the Noahide Code than it is in Jewish law as applied to Jews. The prohibition against feticide as applied to non-Jews is derived from Genesis 9:6 which in talmudic exegesis is rendered as "He who sheds the life of a man within a man, his blood shall be shed." "Who is 'a man within a man?"' queries the Gemara, Sanhedrin 57b. The immediately ensuing response, "This is a fetus within its mother's innards," serves to establish, not only that feticide is forbidden to non-Jews, but that it constitutes a capital crime in the Noahide Code.

Noachides are specifically enjoined from destroying fetal life upon penalty of death (Sanhedrin 57b) on the basis of Genesis 9:6. This prohibition is recorded by Maimonides in his Mishneh Torah, Hilkhot Melakhim 9:4. Consequently, any aid extended to a gentile in the performance of an abortion is a violation of the precept "Thou shalt not place a stumbling block before the blind" (Lev. 19:14). This prohibition is clearly enunciated with regard to abortion of a fetus by R. Joseph Trani (Teshuvot Maharit, I, no. 97) and confirmed by his pupil, Rabbi Chaim Benevisti (Sheyarei Kenesset ha-Gedolah, Tur, Hoshen Mishpat, 425, no. 6). Maharit, however, notes that the Gemara (Avodah Zarah 6b) states that aid rendered to one transgressing a commandment is proscribed only if the sinner could not otherwise have fulfilled his desire. It is, for example, forbidden to bring a cup of wine to a Nazarite who is on the opposite side of the river and could not otherwise reach the wine; but if both the wine and the Nazarite are on the same side of the river and the Nazarite is capable of reaching the wine without assistance, any help extended does not fall under this prohibition. Such an act, while biblically permitted, is banned by rabbinic edict legislating against "aiding transgressors." Maharit denies the applicability of the edict to aid rendered non-Jewish transgressors. Accordingly, Maharit rules that assistance in the performance of an abortion under these circumstances is forbidden only if no other physician is available; if others are available it is to be considered analagous to the case of both the Nazarite and the wine standing "on the same side of the river." There are nevertheless many authorities who agree that the rabbinic prohibition against "aiding transgressors" which applies even when both are "on the same side of the river" extends to aiding Noachide transgressors as well.⁹⁰Cf. Sedei Ḥemed, II, 298. Furthermore, the author of Mishneh le-Melekh (Hilkhot Malveh ve-Loveh 4:2) argues that the availability and readiness of another individual to transport the wine over the river does not relieve the one who actually does so from culpability. The prohibition is deemed inoperative only if the transgression could be committed without "the placing of a stumbling block" by anyone else; when the transgression requires aid, the one who renders it is liable, according to this view, no matter how many others would have been willing to render similar aid.⁹¹Cf. Sedei Ḥemed, II, 303–304.

Minḥat Hinnukh cogently argues that the commandments expressed in Leviticus 19:16 and Deuteronomy 22:27 are incumbent only upon Jews and hence cannot establish obligations upon non-Jews who are bound only by the provisions of the Noachide Code. Minḥat Hinnukh does, however, adduce another source which serves as a basis for derivation of the "law of the pursuer" and which is applicable to Noachides as well. The Gemara, Sanhedrin 72b, cites the verse "Whosoever sheddeth the blood of man, by man shall his blood be shed" (Genesis 9:6) as granting dispensation to preserve the intended victim by eliminating the pursuer. The phrase "by man" is understood as calling for the shedding of blood "by any man," i.e., by persons witnessing the act, rather than as a reference to punitive measures to be undertaken subsequent to the act. Thus the Gemara understands the verse as referring, not to an act of homicide which has already been committed, but to the prevention of a would-be homicide. The verse, which was addressed to Noah, establishes a law not only for Jews, but for Noachides as well. The general principle is that any commandment given prior to Sinai is binding upon Noachides even subsequent to the Sinaitic revelation provided it has been reiterated at Sinai. The law of the pursuer is indeed repeated in Exodus 22:1. In the course of the same discussion, the Gemara, Sanhedrin 72b, states that the statute formulated in this passage, which provides that a thief who breaks into a dwelling during the night may be smitten without penalty, is based upon the assumption that the thief is intent not only upon larceny but will commit homicide as well if he meets resistance. Hence the thief is in effect a pursuer and may be put to death if necessary by virtue of the "law of the pursuit." Tosafot, Sanhedrin 72a, commenting on the redundancy of the multiple scriptural sources for the "law of pursuit" states that Exodus 22:1 serves only to establish a license for execution of the pursuer but does not make such a course of action obligatory. The obligation, according to Tosafot, is expressed solely in Deuteronomy 22:27. Minḥat Hinnukh assumes that Tosafot intends this comment to apply as well to the interpretation of Genesis 9:6, which presents the same difficulty. The phrase ba-adam damo yishafekh, according to Minḥat Hinnukh's understanding should thus be translated "by man may his blood be shed" and serves to grant permission to put the aggressor to death when necessary to preserve the life of the victim, but does not mandate such action.¹³R. Shlomoh Zevin, Le-Or ha-Halakhah, p. 17, argues against Minḥat Ḥin nukh’s position and maintains that Noachides are not merely permitted, but are obligated, to execute the pursuer in order to preserve the pursued. He argues that this is evident from the phrase “domo yishafekh” which he maintains must be translated “by man shall his blood be spilled.” It would, however, appear that the question raised by Tosafot, Sanhedrin 73a, s.v. af, with regard to the earlier cited verse which speaks of the ba ba-maḥteret applies with equal validity to this verse. It would appear that Tosafot’s statement that the verse establishes permission rather than obligation applies to the subsequently cited verse “ba-adam damo yishafekh” as well. Accordingly, concludes Minḥat Hinnukh, Noachides are justified not only in acting in self-defense but may eliminate a threat to the lives of others as well, even though, in contradistinction to Jews who are bound by Sinaitic revelation, they are under no obligation to do so.