MARK WASHOFSKY

10. Good discussions are provided in the works cited in notes 6 and 7. See especially Avraham, Nishmat Avraham, pp. 420ff. A most comprehensive and thorough survey of the sources is found in M. Stern, ed., HaRefu'ah le'Or HaHalakhah, Vol. 1, Jerusalem , 1980.

11. Hebrew rubo; other versions, particularly the Babylonian Talmud Sanhedrin 72b, read rosho,"its head." Maimonides reads the latter version; see Yad, Rotseah 1:9.

12. Hatra'ah, normally a prerequisite for capital punishment under the halakhah. Execution is permitted only if witnesses testify that the offender was warned prior to the act that his contemplated deed is punishable by death. Tosefta Sanh. 11:1; Sanh. 8b and 80b.

13. San. 72b, s.v. yatsa rosho.

14. Hiddushei HaRamban, Nidah 44b; Meiri , Beit HaBehirah, San. 72b; Tosafot Yom Tov and Tiferet Yisrael to M. Ohalot 7:6.

15. This has direct reference to the issue of"whose blood is redder?"; see Sanh. 74a and parallels, along with Rashi ad loc., s.v. sevara hu and ma'i hazit.

16. See also San. 84b and Nidah 44a-b, along with Tosafot, 44a, s.v. ihu: one who kills a day-old infant is guilty of murder, while one who kills a fetus, which is not a nefesh, is not guilty of that crime.

17. Yad, Hil. Rotseah 1:9.

18. See, for example, Sefer Me'irat Einayim to Hoshen Mishpat 425, no. 8, who turns interpretive somersaults in order to reconcile Maimonides (and the Shulhan Arukh, which repeats his ruling here) with the plain sense of the sugya. The phrase"this is the way of nature" comes to tell us that, although the fetus is not a rodef, it is still sacrificed on behalf of its mother, since prior to emergence it is not a nefesh.

19. This difficulty is raised by R. Yehezkel Landau, Resp. Noda Biy'hudah, 11, no. 59, end, and R. Akiva Eger , Hiddushim, M. Ohalot 7:6.

20. Arukh Hashulhan, Hoshen Mishpat 425, no. 7; Tiferet Yisrael, M. Ohalot 7:6.

21. Note that the Talmud never challenges the first clause of M. Ohalot 7:6: i.e., if the mother

is being"pursued from Heaven" and the fetus is not a rodef, why do we sacrifice it in utero in order to save her? Perhaps the Talmud fully accepts that the fetus is a pursuer. Why then do we not regard it a rodef upon emergence? The Talmud may follow the reasoning of the Talmud Y erushalmi, Sanhedrin 8:9, which explains that, upon parturition,"one does not know who is killing whom". That is, the case of difficult childbirth is properly viewed as one of aggression. Until the child's emergence, we are certain that it is the fetus--and not the mother--who is the aggressor. After that point, such a determination is impossible to make, and we may harm neither mother nor child to save the other.

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