1) HALACHAH: MAY A WOMAN PERFORM A BRIS MILAH?

OPINIONS: The Gemara records an argument between Rav and Rebbi Yochanan regarding whether a woman may perform a Bris Milah. Rav says that a woman may not perform a Bris Milah, and Rebbi Yochanan says that she may. What is the Halachah?

(a) TOSFOS (DH Ishah) says that the Halachah follows Rav, and a woman may not perform a Bris Milah. Even though the general rule is that the Halachah follows the view of Rebbi Yochanan when he argues with Rav, that rule does not apply here, because the Gemara quotes a Beraisa in which Rebbi Yehudah ha'Nasi supports the view of Rav.

(b) Tosfos notes that the BEHAG rules like Rebbi Yochanan, that a woman may perform a Bris Milah.

HALACHAH: The SHULCHAN ARUCH (YD 284:1) rules like the Behag. However, the REMA there rules like the SEMAK and HAGAHOS MORDECHAI, and says that a woman should not perform a Bris Milah, and that the custom is to seek a male Mohel.

The SHACH questions the Rema's ruling. Even the Shulchan Aruch explicitly agrees that although a woman may perform a Bris Milah, one preferably should use a male Mohel (see BI'UR HA'GRA, who quotes this ruling in the name of the RIF and the ROSH). Where there is no male Mohel available, the Shulchan Aruch and Rema presumably would agree that one may use a woman Mohel. Moreover, it does not make sense to say that the "custom" is to wait for a man when one is not immediately available, as "customs" do not apply in uncommon situations.

What is the intention of the Rema?

The SEFER HA'MIKNAH in Kidushin (29a) explains that the Rema's intention is to address an entirely different issue. The Sefer ha'Miknah explains that the reason why the Shulchan Aruch rules that a woman should not perform Milah is that a woman cannot recite the Berachah on a Mitzvas Aseh sheha'Zeman Gerama, a Mitzvah limited to a specific time. However, the Rema himself maintains that a woman may recite a Berachah on a Mitzvas Aseh sheha'Zeman Gerama. Had the Rema here not said anything, one would have thought that a woman may perform Milah even l'Chatchilah, according to the Rema. The Rema therefore interjects with the opinion of the Semak and Hagahos Mordechai to teach that even according to the Ashkenazic custom that women recite Berachos on these Mitzvos, one still should seek out a man for Milah because we try to fulfill the opinions which rule like Rav, that a woman cannot do Milah.

The Sefer ha'Miknah comments, however, that he proposes this explanation only in order to answer the Rema. In truth, however, it seems that the Shulchan Aruch rules that a woman may recite the Berachah on Milah. (Y. MONTROSE)

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2) HALACHAH: RISKY SURGERY

OPINIONS: The Gemara quotes Rebbi Yochanan who says that one should not have an ordinary Nochri (who is not known to be a reputable doctor) treat him for an illness when the illness might be fatal, because of the suspicion that the Nochri might kill him. If one is certain that he will die soon unless he is cured of the illness, he may let a Nochri treat him.

The Gemara questions why treatment at the hands of a Nochri is permitted even in this case. By subjecting oneself to the whims of the Nochri, one may be forfeiting the little time left that he has to live. The Gemara answers that since the lack of treatment will provide the patient only with "Chayei Sha'ah" ("momentary life"), and if the treatment is successful he may gain many years of life, he may ignore the possibility that the Nochri seeks to slay him. (The contemporary Poskim disagree about whether or not this suspicion applies today.)

Based on this Gemara, the Poskim permit one to undergo a risky surgery. (In practice, a competent Halachic authority must be consulted in every situation.) When a person likely will die very soon, there is reason to permit a risky operation which may cause the death of the patient, thereby shortening his life even more. (See, for example, SHEVUS YAKOV 3:75 and TZITZ ELIEZER 4:13.) All of the Poskim point out that this is only permitted after both Poskim and medical experts have been consulted.

What is the Halachah when the question is not one of death, but one of pain? If someone, Chas v'Shalom, has an extremely painful condition which does not endanger his life, is he allowed to undergo a surgery which may kill him?

(a) The SHE'ARIM METZUYANIM B'HALACHAH (YD 190:4) writes that the custom is that people undergo operations even when their lives are not at risk and they seek only to remove pain. He maintains that even when there is no constant pain, and one's intent is only to be healed from a certain ailment which does not endanger his life, it is permitted. The Gemara in a number of places mentions the common (ancient) practice of bloodletting, even though bloodletting was a slightly risky procedure, it was common practice. The NISHMAS AVRAHAM (YD 155) records the words of RAV SHLOMO ZALMAN AUERBACH zt'l: "It is possible that whatever practice is treated lightly in people's eyes fits into the oft-quoted dictum, 'Shomer Pesa'im Hashem' -- 'Hashem protects the fools' (Tehilim 116:6)." It These sources apparently agree that since this is the prevalent practice, one is allowed to be lenient and undergo an operation which has an acceptable level of danger to most people.

The RAMBAN in TORAS HA'ADAM (see BEIS YOSEF YD 241) notes that most medicines have potentially fatal side effects, and nevertheless we do not worry about those small possibilities, since this is the way of medicine: what is beneficial to one part of the anatomy is often harmful to another part. Since the Torah allows one to be healed by a doctor, the Torah is not concerned with the slight risk of fatality involved in medical treatments.

(b) The MOR U'KETZI'AH (OC 328) is less enthusiastic about these type of procedures, even though they are often successful. He writes that although people do not protest these operations which save the patients from a life of pain, as long as they are not in danger of dying from the ailment that causes the pain, they should endure the pain and not take the chance of dying on the operating table.

The Nishmas Avraham (ibid.) quotes Rav Shlomo Zalman Auerbach zt'l who cites proof for the Mor u'Ketzi'ah's position from TOSFOS in Bava Kama (85a, DH she'Nisnah). Tosfos there asks why the Torah says "v'Rapo Yerapei" -- "and he will surely heal" (Shemos 21:19). Although the Gemara in Bava Kama explains that this verse gives permission for a doctor to heal, the word "v'Rapei" would have sufficed for this. Tosfos does not answer that the extra word teaches that one is permitted to perform an operation which endangers the patient's life even though he has no life-threatening condition. The fact that Tosfos does not give this answer shows that he apparently maintains that one may not perform such an operation.

In conclusion, since every case is unique, one must seek the guidance of a competent Halachic authority and consult with the appropriate medical experts before one makes any decision about surgery. (Y. MONTROSE)

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