Page 68 - EFI-RAV ZILBERSTIN_VOL 8.EFI-RAV ZILBERSTIN_VOL 8.1A

Pg: 68 - 3-Front 21-10-31

it to be so, shall we rule thus in practice, introducing a new stringen-
cy? And even though Tosfos’s question [in regard to yibum, as posed
by the Av Beis Din of Tartakove] remains standing like a wall, there is
an answer to every question etc. The final word is that this woman is
permitted to remarry without chalitzah, even a kohen, and there need
be no concern whatsoever.”

Before his retraction, the Noda B’yehudah established two nov-
el principles: 1. Dying “without a child”, which imposes the need
for either chalitzah or yibum can apply even if there is a son in the
world who is considered the son of the deceased. 2. Dying “without a
child” means that at the time of death no fertilization had yet taken
place, even though a child would eventually result. Which of these
principles did the Noda B’yehudah retract from? Did he retract only
from the second principle [that a woman who is fertilized after her
husband’s death requires chalitzah because at the time of his death he
was “without a child”] because once she has received her husband’s
sperm, even though fertilization doesn’t take place in his lifetime, she
is considered pregnant [provided a child is eventually born] since
the process is already underway and will unfold by itself? In the very
same way that a woman whose husband dies leaving her pregnant is
absolved from chalitzah because it is considered that“he has a child,” a
man who leaves his wife with sperm in her womb, even if fertilization
has not yet taken place, it is considered that “he has a child.”

In our case however, where the husband died leaving behind sperm
in a test tube, it cannot be considered that “he has a child” since the
process by which the deceased will have a descendent has not yet
started and still requires that further action be taken.

See the Shulchan Aruch (Yoreh De’ah 31:2) where it says: “An
animal that has water in its head surrounding the brain membranes
(meninges) is a terefah because of its ultimate fate, for the water will
certainly perforate the membranes.” The Chasam Sofer asks why this
should be, since we rule like the Sages who argue with Rabbi Shimon
and say that whatever is ready for sprinkling is not considered to
have already been sprinkled (Bava Kama 76b) [i.e. sacrificial blood
that is ready for sprinkling on the mizbei’ach is not considered to

52 1 Medical-Halachic Responsa of Rav Zilberstein