Rabbi Kornfeld stated whilst answering a QUESTION that Rebbi Yochanan and Reish Lakish argue if Cheilev extracted from a living, nine-month-old (full term) that was still in the womb is Cheilev or not. Rebbi Yochanan maintains it is Assur and carries the penalty of Kares. The reason is since the foetus is full term.
Please assist me understand this, because the reason given, that it is full term seems to be incomplete - it is clear that if the foetus is dead then its Cheilev is Muttar even though it is fully gestated; similarly if it is alive but not fully gestated. Clearly the Cheilev only becomes Cheilev if a few conditions are met
1] the foetus is alive
2] the foetus is fully gestated
3] the Cheilev has been exposed LeAvir HaOlam
4] is not from a foetus found as a BP - meaning Yatza LeAvir HaOlam will not make it Cheilev UNLESS it MUST be from a living mother. See Rashi DH Avira Gorim - where he explains that unless it is taken from a living mother it is not deemed Yatza LeAvir - and that is why RYehudah permits the Cheilev of the BPeKuAh - not because of the Derasha [which Rashi DOES refer to when explaining the Lishnah Basra, and which Rabbi Kornfeld refers to when providing his answer] but because it is not deemed Yotza LeAvir, whereas the Cheilev plucked from the Ubbar is Cheilev because it is Yotza LeAvir.
It is noteworthy that Rashi 74a, DH Aval BeMeiEy Immo, makes a most astonishing observation - a beast [is not a beast and] cannot be Shechted unless it emerges from a LIVING MOTHER. This would support the proposition that point number [4] above should really be - it is Cheielv only if the Ubbar is born or found in a living Mother, which a BP is certainly not. Rashi makes the same observation at the end of the Mishnah 72b - Ben 8 Chai SheNoLad MiBeheimah Chaya.
Rabbi Kornfeld continues - ANSWER: RASHI (DH d'Hoshit) and TOSFOS (DH Rebbi Yochanan) explains that Rebbi Yehudah permits the Chelev of a living fetus only after the mother is slaughtered. When Shechitah is performed on the mother of the fetus, the Chelev of the fetus becomes permitted.
Would you agree to the suggestion that - the Cheilev is NOT Cheilev, because it has not satisfied the conditions listed above. We thereby avoid the difficult assertion that the Cheilev is Assur and then becomes Muttar with the Mother's Shechitah. Is it not far simpler to assert that it has never become Cheilev in the first place? and this perspective resolves Rabbi Kornfeld's question -
what difference does it make if the mother of the fetus is slaughtered? The Chelev remains Chelev and should be prohibited even when the mother is slaughtered!
Meir Rabi, Melbourne
1) Reb Meir, I do not understand what you mean when you write that it is clear that if the foetus is dead then its Chelev is Mutar even though it is fully gestated. How does this reconcile with what the Gemara stated immediately before; that if the baby was born dead, according to Rabbi Yochanan its chelev is forbidden just like an animal's chelev is forbidden? (even according to Reish Lakish the chelev is forbidden because it is a Nevelah, even though it is not forbidden as chelev- Rashi DH k'Chelev Chaya). Therefore I also question what you write that the chelev only becomes chelev if the foetus is alive.
2) In addition, I question what you write that the Chelev only becomes chelev if it has been exposed LeAvir HaOlam. My question is that the Gemara states, in the second Lashon; Ika d'Amri; that according to Rabbi Yochanan, if one extracted chelev from a 9-month old baby the chelev is forbidden because of "Chodashim"; because 9 months have been reached; even though one did not have "Avira"; the air of the world. Reish Lakish maintains that one also needs Avira, but according to R. Yochanan one is liable for chelev because of 9 months alone.
I am going at the moment, bs'd, to start off with your last comments, Reb Meir.
1) I suggest another reason why we do not have to say that that the Chalav is asur and then becomes Mutar with the mother's shechitah. This is because the Gemara 75a states "Af Kol Mutza Miklal Shalil"; there is no prohibition of chelev in a fetus. Rashi in the Mishnah 74a writes that this is the reason that if someone slaughters an animal and finds an 8 month baby inside; either alive or dead; or a dead 9-month old baby, the chelev of this fetus is permitted. In short, the chelev was never assur before the baby was born.
2) You also ask "what difference does it make if the mother of the fetus is slaughtered? The chelev remains chelev and should be prohibited even when the mother is slaughtered!"
The answer to this question is that we have a drasha "Kol Bibeheima Tocheilu"; if one slaughters the mother, everything found inside her is permitted.
Further comments:
1) I found that the Lechem Mishnah, on the Rambam Hilchos Ma'acholos Asuros 7:1, writes that according ot the first Lishna in Rabbi Yochanan, since Avira alone is effective to make the chelev forbiden, it follows that "months" are also effective alone in making the chelev forbidden. This is because it is a svara to say that "months" are stronger than Avira.
2) I will try and explain the above. In the first Lishna we discussed what the din is if the animal gave birth to a "nefel"; a stillborn. Rabbi Yochanan said that it's chelev is forbidden as chelev. So even though the baby is premature the chelev is still forbidden because the baby has entered the air of the world. If so, it would certainly seem that the chelev of a baby which has gone full term should be chelev, since this baby is better developed than the premature baby.
3) According to this, it is sufficient that one of the two conditons; (1) the fetus is fully gestated, or (2) the chelev has been exposed to the Avir HaOlam; is fulfilled in order to make the prohibition of chelev apply. One does not require both of these conditions.
A Kosher un Freilicher Pesach
Dovid Bloom