1) HALACHAH: MAY A JEWISH DOCTOR DESECRATE SHABBOS OUT OF CONCERN FOR "EIVAH"?

OPINIONS: Rav Yosef wanted to rule that a Jewish doctor may help a Nochri woman give birth on Shabbos for pay, due to concern for "Eivah," enmity. (The doctor's refusal to provide his services would cause the Nochrim to hate the Jews.) Abaye said that there is no such leniency, since the doctor simply may tell the Nochrim, "We desecrate Shabbos only for those who observe Shabbos. For you who do not observe Shabbos, we do not desecrate Shabbos."

TOSFOS (DH Savar Rav Yosef) questions this dialogue. What was Rav Yosef's basis to assume that a concern for Eivah permits one to transgress a Torah prohibition? In this case, the Torah prohibition is Gozez, shearing, a forbidden Melachah on Shabbos (107b). Even Abaye, who disagreed with Rav Yosef, argued only that there is no Eivah, and therefore no leniency, but he did not argue that Eivah is not grounds for leniency.

Tosfos answers that it the Gemara must be discussing a case in which the woman is already sitting on the birthing stone and is at an advanced stage in the birthing process. In such a situation, there is no Torah prohibition of Gozez, because Gozez applies only when the doctor actively makes the baby come out. (See also Tosfos' second explanation.)

Tosfos concludes in accordance with his assertion that avoiding Eivah does not permit one to transgress a Torah prohibition on Shabbos. Is this the Halachah?

(a) The MISHNAH BERURAH (OC 330:8) strongly censures the doctors of his day for precisely this sin. He writes that almost all doctors today, even the more religious ones, are Shabbos desecrators. Every Shabbos, a doctor drives long distances to heal Nochrim, he writes prescriptions and grinds medicines for them, with no Halachic basis on which to rely. The Mishnah Berurah explains that even if one suggests that concern for Eivah permits the transgression of a Rabbinic prohibition (which, he says, is not so clear), everyone agrees that there certainly is no basis for leniency with regard to a Torah prohibition.

(b) RAV MOSHE FEINSTEIN zt'l (in IGROS MOSHE OC 4:79) does not understand the Mishnah Berurah's ruling. Eivah refers to a concern that the Nochrim will hate the Jews as a result of the Jews' actions. In the cases described by the Mishnah Berurah, had the doctors refused to help the Nochrim, they might have been killed or badly beaten. This is not Eivah. This is "Sakanah Gedolah" -- a grave danger! Rav Moshe asserts that this was true especially in Russia, where there often was only one doctor in an extremely large area. If a doctor would not have agreed to treat a critically-ill patient, the doctor's life definitely would have been in danger. Moreover, the Russian authorities would not have provided protection for the doctors or punished the aggressors. Rav Moshe concludes that nowadays, such a case is also considered a case of Sakanah Gedolah anywhere in the world. Since the media publicizes incidents such as this, it is possible that a Jewish doctor's failure to treat a Nochri on Shabbos will become widely known and result in severe repercussions for the Jews. He therefore permits a doctor who is in a hospital to treat Nochrim there, even when he has to do a Torah prohibition. Rav Moshe says that this is the position of the CHASAM SOFER (YD 131), who rules that Eivah with a risk of Sakanas Nefashos overrides even a Torah prohibition.

Nevertheless, Rav Moshe establishes guidelines for how a doctor should avoid having to work in a hospital (in America) on Shabbos. Among these guidelines are:

1. A doctor should close his office entirely on Shabbos so that he will not be available to the (Nochri) public.

2. Only his office number, not his home phone number, should be listed in the telephone directory.

3. He should not be on call (from the hospital) on Shabbos, which includes not carrying a beeper. Other doctors should do the work on Shabbos, even if it means asking other doctors to take his place in the rotation on Shabbos and he will take theirs on another day. (Rav Moshe adds that this applies even when the other doctors are Jewish but not observant, and they will be working on Shabbos. It is still better that they work on Shabbos and not he, because they probably would transgress just as many, if not more, Melachos at home, with no allowance of Eivah whatsoever.)

4. If there are so many Nochrim in his area who know where he lives and they will constantly ask him for help on Shabbos, he should go away for Shabbos where they will not find him. (Y. MONTROSE)

26b----------------------------------------26b

2) HALACHAH: MAY A JEW PERFORM A CIRCUMCISION ON A NOCHRI?

OPINIONS: The Beraisa says that a Jew may perform a Bris Milah on a Nochri in order to make him into a Ger Tzedek. The Gemara says that this implies that a Jew may not give a Nochri a Milah if it is in order to remove a worm from that area, because of the Halachah of "Lo Ma'alin v'Lo Moridin."

What is the Halachah in the case of a Nochri who has no infection or health concern, but simply wants a Milah because he likes the idea of having one. Is a Jew allowed to perform a Milah on such a Nochri?

(a) The REMA (YD 283:5) rules that a Jew may not perform a Milah on a Nochri: "It is forbidden to perform a Milah on a Nochri when it is not for Gerus, even during the week."

(b) The SHACH (ibid.) has great difficulty in understanding the Rema. He quotes RASHI (DH la'Afukei) who explains that the reason why one may not perform Milah on a Nochri who has a health condition in that area is the Halachah of "Lo Ma'alin v'Lo Moridin." This clearly implies that if the problem would not be one of "Lo Ma'alin," it would be permitted. This is stated even more explicitly by TOSFOS (DH la'Afukei). Tosfos follows Rashi's approach, and apparently even had a text of Rashi in which Rashi writes that if the Jew would charge for the procedure, it would be permitted due to Eivah. Tosfos cites the Gemara in Gitin (70a) which says that Rav Simi bar Ashi healed a Nochri, which presumably means that he took money for his services. Alternatively, Tosfos explains, Rav Simi bar Ashi performed his services gratis in order to gain medical experience, which is also permitted (since the Jew is gaining from the experience). The Shach cites other sources that prove that there are many reasons to permit a Jew to perform a Milah on a Nochri.

Why, then, does the Rema rule that one is forbidden from performing a Milah on a Nochri when it is not for the sake of Gerus? The Shach proposes that the Rema relies on what he writes later (YD 288:9), that whenever one is permitted to heal a Nochri, one is permitted to perform a Milah on a Nochri. Since one is permitted to heal a Nochri for pay, one also is permitted to perform Milah on a Nochri. The Shach asks, however, that the TAZ (YD 283:3) explains that the reason why one may not perform Milah on a Nochri is that in the merit of Bris Milah, Avraham Avinu protects the person from descending to Gehinom (Eruvin 19a). A Jew who gives a Nochri a Bris Milah nullifies this special sign of Bris as belonging specifically to the Jewish people, the descendants of Avraham Avinu. The reasoning of the Taz implies that it is forbidden to perform a Milah on a Nochri even for health purposes. This, however, contradicts the ruling of the Rishonim.

The TESHUVOS ME'IL TZEDAKAH (#14) gives two answers for the Taz:

1. The Taz does not mean that giving a Milah to a Nochri is forbidden even for pay. The leniency of Eivah permits it in such a case. Rather, he means that when there is no leniency of Eivah, and there is no health concern, a Jew is forbidden to perform Milah on a Nochri because he thereby nullifies this important and exclusive sign of a Jew.

2. The Me'il Tzedakah suggests that it is possible that a Nochri will seek to disguise himself as a Jew in order to infiltrate a group of Jews. (See Menachos 43a, where the Gemara describes a similar reason for why one should not sell a pair of Tzitzis to a Nochri.) However, if he asks to have a Milah because he has an infection, there is no concern that his motive is to disguise himself as a Jew. (Y. MONTROSE)

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