64b----------------------------------------64b

2)

THE STATUS OF CHILDREN NOT CONCEIVED THROUGH BI'AH [lineage: artificial insemination]

(a)

Gemara

1.

(R. Chanina): If a Besulah did not see blood after the first Bi'ah, but saw after the second, she is Teme'ah;

2.

(Rav Asi): She is Tehorah. We assume that the first time, Hatiyah occurred (the Ever entered without breaking the Besulim), like Shmuel:

i.

(Shmuel): I could have many Bi'os (with a Besulah) without blood.

3.

R. Chanina is not concerned for this. Shmuel is an exception. Most men cannot do so.

4.

Chagigah 14b - Question: If a virgin became pregnant, is she permitted to a Kohen Gadol?

5.

Are we concerned lest someone skilled like Shmuel had Bi'ah with her without breaking the Besulim?

6.

Answer (Ben Zoma): This is not common. We are concerned (i.e. assume) that she became pregnant through (sitting on semen in) a bathhouse.

7.

Yevamos 37b (Beraisa - R. Elazar ben Yakov): "U'Mal'ah ha'Aretz Zimah" is when a man has Bi'ah with many women, and doesn't know which, or a woman has Bi'ah with many men, and is unsure from whom she became pregnant. A man might marry his daughter, or siblings might marry, and the world is full of Mamzerim!

8.

42a (Rav Nachman): "Lihyos Lecha l'Eilokim ul'Zar'acha Acharecha" - we require Havchanah (a woman must wait three months before remarrying) to distinguish between the seed of the first and second husbands.

9.

(Rava): This is a decree lest a man marry his paternal sister, do Yibum with his maternal brother's wife, lest his mother think that she is exempt from Yibum and Chalitzah, and lest his Yevamah remarry without Yibum or Chalitzah.

10.

Sotah 43b (R. Yitzchak): A stepsister who grew up in the same house as her stepbrothers may not marry any of them, since people think that they are siblings.

11.

Rejection: People will come to know that they are only step-siblings.

(b)

Rishonim

1.

Tosfos (Kidushin 4a DH Zera): Our Gemara asked for the source that Zera Pasul feeds Terumah, i.e. a Mamzer grandchild. It cannot refer to a Pasul child, since the Bi'ah disqualified her from Terumah!

2.

Maharil (Minhagim, Likutim 3): Ben Sira was born from Yirmeyah's semen. His daughter bathed after him in a bathhouse, absorbed his semen and gave birth. All testify to her great piety that she was not Mezanah, rather, she became pregnant through a bathhouse.

3.

Shiltei ha'Giborim (Shevu'os 3a, citing Maharam): Women are careful not lie on sheets on which other men lied, lest she become pregnant, like the case of Ben Sira. Why are not careful not to lie on sheets on which their husbands lied, lest she become pregnant and the child will be a Ben Nidah! He answered that since a Ben Nidah is Kosher for all laws, even though he is Pagum (spiritually blemished), we are not concerned.

i.

Minchas Yitzchak (4:5, Sof ha'Teshuvah): This connotes that if she became pregnant from another man, the child is truly Pasul, i.e. a Mamzer.

ii.

Mishneh l'Melech (Hilchos Ishus 15:4): Tosfos (Yevamos 55b DH Eino) says that according to the opinion that Ha'ara'ah is entrance of the crown, a woman cannot become pregnant merely through this. (The entire Ever must enter.) All the more so, a woman cannot become pregnant through a bathhouse!

iii.

Otzar ha'Poskim (EH 1:42, b'Hagahah): Bris Yakov (4) says that in a bathhouse, the water takes the semen deep inside, and enables pregnancy. Divrei Malkiel (4:107) proved from Tashbatz 3:263, Birkei Yosef 1, and Bnei Ahuvah that she can become pregnant. Ma'aseh Tuvya (3:84) says that contemporary doctors agree. However, it is rare, therefore Chazal and Meforshim did not establish teachings through such a case.

iv.

Note: If water can bring the semen to where it can impregnate, the same should apply if she bathed after just Ha'ara'ah! Bris Yakov must explain that Tosfos says that Ha'ara'ah cannot impregnate, for in such a case we do not attribute the pregnancy to the Bi'ah. The Mishneh l'Melech disagrees.

(c)

Poskim

1.

Bach and Taz (YD 195:5 DH Matzasi and 7, citing Hagahos Semak): R. Peretz permits a Nidah to lie on her husband's sheets, but not on another man's sheet, lest she become pregnant from his semen. We are not concerned lest she become pregnant with a Ben Nidah through her husband's seed, for there was no Bi'as Isur. The child is totally Kosher, even if she became pregnant through another man's seed, like Ben Sira. However, we are concerned for Havchanah, lest a man marry his paternal sister.

i.

Chelkas Mechokek (EH 1:8): It is not clear whether or not a man fulfills Peru u'Rvu with children born (not through Bi'ah, e.g.) from his semen left in a bathhouse. (It seems that he is Yotzei, for) Avodas ha'Kodesh calls Ben Sira the son of Yirmeyahu even though he was born in this way.

ii.

Birkei Yosef (EH 1:14): R. Peretz mentioned concern for marrying a sibling. Sha'arei Yeshu'ah (EH 1:2) derived that the child is attributed to his father in every respect, so the father fulfilled Peru u'Rvu. This is not an absolute proof. Perhaps R. Peretz means '(even here) we are concerned for Havchanah, which was decreed lest people marry siblings' (even though the concern for siblings applies only to conception through Bi'ah).

iii.

Beis Shmuel (1:10): The Bach (YD 195) brought from Semak that a woman should avoid sitting on another man's semen, lest a man marry his paternal sister. This implies that the child is considered his father's son, so he counts towards Peru u'Rvu.

iv.

Rebuttal (Taz 8): Perhaps we are only stringent to say that he is his son. In particular, one does not fulfill something that requires an action (the Mitzvas Aseh of Peru u'Rvu) when she became pregnant by herself.

v.

Note: Otzar ha'Poskim (42) says that this is from a Magihah. The Taz died before the Beis Shmuel was first printed!

vi.

She'alas Ya'avetz (97): Most Poskim rule that Mitzvos require intent. For Peru u'Rvu, we can say that intent for Bi'ah suffices, but not if she became pregnant through semen in a bathhouse, for the father did not engage in Bi'ah.

vii.

Otzar ha'Poskim (42): Bigdei Shesh (11) says that this is unlike a Nochri who had children and then converted. Even though he did not intend to serve Hash-m at the time, he intended to father children. Bar Livai (2:1) proved from Yevamos 69a that he is not child his son. The Gemara found Pasul seed that feeds Terumah only through grandchildren, but not through children, for the Bi'ah disqualified the mother (from Terumah). Also Tosfos says so. If a child conceived through a bathhouse has lineage from his father, he could feed his mother! Rather, there is no lineage.

viii.

Otzar ha'Poskim (42): Bar Livai and Zecher Chagigah (Chagigah 15) hold that such a child is a Mamzer, for it does not depend on Bi'as Isur.. This resolves the Turei Even's question. However, Minchas Yechi'el (3:47) and Menachem Meshiv (2:26) say that the child is Kosher, so there is no proof. Also, we can say that the Tana discussed the normal case in which Zera Pasul feeds, like the Aruch l'Ner (10a) said. Apei Zutrei says that he is his son only to be stringent. He forbids Yibum, but does not exempt from Chalitzah. If the only Yavam was born in this way from a different mother, whether or not he is considered the brother, he may marry the Yevamah.

ix.

Otzar ha'Poskim (42): If semen was injected into a woman, Emek Halachah (68) and Minchas Yitzchak say that even the Poskim who say that one does not fulfill Peru u'Rvu through a bathhouse, would say that here he fulfilled it, for he did an action. Levushei Mordechai (Sof 109) says that those who say that one does not fulfill Peru u'Rvu through a bathhouse, all the more so he does not fulfill it through artificial insemination. This is difficult. There is more reason to say that he fulfills it through artificial insemination! Zekan Aharon (2:97) says that one may rely on Poskim that one is Yotzei even through a bathhouse, and all the more so through artificial insemination. Tzitz Eliezer (3:28) leans to say that he was not Yotzei, for he did not put the semen in her. The doctor did so.

x.

Minchas Yitzchak (4:5): She may not lie on sheets that any man sat on, even a Nochri. Even though regarding a Nochri there is no concern for marrying siblings, the Birkei Yosef answered that we always require Havchanah, even when there is no concern for marrying siblings. Rashi (42a DH ul'Zar'acha) explains that the Shechinah dwells only on people of Vadai lineage. Alternatively, even if the father is a Nochri, we are concerned lest the child do Chalitzah (and she will think that this exempted her). There was a Hava Amina to be concerned for a Ben Nidah, even without Bi'as Isur, for the child is Pagum. All the more so we are concerned for a Ben Nochri!

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