Tumat Kohanim in hospitals‏ (5776)

מרן הגאב"ד שליט"א


זֹאת הַתּוֹרָה אָדָם כִּי יָמוּת בְּאֹהֶל כָּל הַבָּא אֶל הָאֹהֶל וְכָל אֲשֶׁר בָּאֹהֶל יִטְמָא שִׁבְעַת יָמִים [במדבר יט' יד']

This is the teaching: When a man will die in a tent, all who come into the tent and all that is in the tent will become impure for seven days [Bamidbar 19:14]

Introductory Note

A Kohen is commanded not to become impure through the impurity of a corpse.[1] As the verse states[2], this impurity is not only contracted by direct contact. Even being under the same roof is enough to cause this impurity.[3] Furthermore, as long as there is an opening of a square handbreadth from the room where the corpse is present, then the impurity spreads to the next room, and if there is a similar opening in the next room it will again spread infinitely in a similar fashion.[4]  Furthermore, even if all doors are closed, if the corpse will eventually leave through a specific doorway then impurity spreads through that doorway.[5]

In this Shiur we shall discuss the specific question of a Kohen entering a hospital. Since in most major hospitals today there are regularly dead bodies, entering a hospital would seem to present a major issue. This question is all the more serious seeing as it is not just dead bodies that project impurity, but even a stillborn[6] or a whole amputated limb.[7] Especially in Israel, where most of the population is Jewish, this issue is even more serious. [8] We shall discuss some of the major grounds for leniency and weigh them as we progress through this Shiur.

[It should be clear from the outset that we are not discussing a case where a Kohen requires emergency treatment. Even a remote threat to one’s life permits the transgression of most prohibitions in the Torah. We are discussing the case of Kohen who wishes to enter the hospital for an elective procedure, or to visit a sick friend or family member for instance].

The Ra’avad’s Leniency

The Ra’avad writes[9] that a Kohen who has become impure is not forbidden from defiling himself again until he purifies himself.

According to this opinion, most Kohanim nowadays would not be forbidden to become impure, since most have been born in hospitals in which there are corpses present. Even if one goes to the Mikvah one will not be rid of the impurity, because one requires the ashes of the Red Heifer in order to purify oneself from impurity caused by the dead.[10]

Although the Mishnah LeMelech writes[11] that the Ra’avad is the sole source of this position, the Rosh[12] cites Rabbeinu Tam as having the same position. Furthermore, the Shiltei Giborim[13] says that the Halachos Gedolos holds the same. Finally, the Lechem Mishnah[14] writes that this is the opinion of Rashi.

However, the Rambam[15] and the Shulchan Oruch[16] are of the opinion that even after a Kohen is impure he is still forbidden to defile himself. This is the accepted ruling, and Acharonim[17] deal with a question whether we can utilise the opinion of the Ra’avad in certain circumstances.[18]

The Dogul Merivavah[19] initially writes that one may combine the opinion of the Ra’avad with another existing doubt.[20] However, he then retracts, and writes that it is possible that the intent of the Ra’avad is only that there is no lashes in such an instance, but there is still a prohibition. The Chasam Sofer[21] records that this was also the opinion of his Rebbe, Rav Nosson Adler, and that it was due to him that the Dogul Merivavah changed his opinion.

However, many Acharonim[22] interpreted the Ra’avad as meaning that there is no prohibition. According to this interpretation one can indeed combine the opinion of the Ra’avad with another doubt.

The Leniencies of the Shach

Even when we do not have two doubts, there can be room to rely on the opinion of the Ra’avad if the impurity is only Rabbinical. This is based on the principle[23] that we can go after the lenient opinion, even if it is a minority[24], in a case of a Rabbinical prohibition, if there is sufficient need. In which case is there only Rabbinical impurity?

The Shach writes[25] two major leniencies in this regard. Firstly, the Shach writes that the rule[26] that impurity spreads through an opening of a handbreadth is Rabbinical in nature. Secondly, the Shach writes that the rule[27] that impurity spreads through the doorway which the corpse will eventually leave is Rabbinical.

It emerges according to the Shach that as long as one is not present in the same room as the corpse there is no Torah impurity. Accordingly, a Kohen who enters a hospital-and is not in the same room as a corpse-is encountering a Rabbinical prohibition, and would therefore be able to rely on the opinion of the Ra’avad in a case of need.[28]

There is major discussion regarding the first leniency of the Shach. The Pnei Yehoshua[29] wrote that the Halacha is accordance with the Shach. However, the Magen Avraham[30] disagrees. This is also the opinion of the Chasam Sofer.[31]

The Chochmas Adam[32] writes that it is incorrect to interpret the Shach as saying that the rule of impurity spreading through a handbreadth is Rabbinical. Rather, says the Chochmas Adam, the Shach’s intent was only that the rule of impurity spreading through its eventual way of exit is Rabbinical. The Avnei Nezer[33] follows the opinion of the Chochmas Adam. However, this understanding of the Shach is very difficult in the words of the Shach, as the Chochmas Adam admits.

However, although there is much argument regarding the first leniency of the Shach, most Acharonim[34] accept the Shach’s second leniency.

Most of the time, the door of the room where a corpse is present is closed out of respect for the family. The same can be said regarding the surgical theatre in which the amputated limb or the stillborn baby is present. Since there is no opening of a handbreadth there is no Torah impurity even according to those that argue on the Shach’s first leniency. If there is a corpse, limb, or stillborn present, it would only be a question of Rabbinical impurity according to the Shach’s second leniency. If we utilise the principle that in case of need one may rely on a minority opinion in a case of Rabbinical prohibition then one may be able to rely on the Ra’avad to enter the hospital in a case of need.

The Leniency of a Public Domain

The Halacha[35] is that whenever there is a doubt regarding impurity in a public domain it is considered pure. The definition of “public domain” in this instance is not the same as Shabbos.[36] Rather, it is defined as a place which is used by the public.

According to this Halacha, since the hospital is a public place, and there is a doubt whether there is a corpse present in the hospital, we should declare the hospital pure and allow the Kohen to enter.

However, the Tzlach[37] argues that although indeed regarding the laws of impurity we may regard this instance as pure, however regarding the impurity of a Kohen this instance is a doubt concerning a Torah prohibition. As such, we shoulbd apply the principle[38] that whenever we have a case of doubt regarding a Torah prohibition we are strict, and the Kohen should be forbidden to enter the hospital.

In my opinion it seems that we can indeed apply the Halacha of a public domain to a Kohen. A Kohen only has a prohibition if there is impurity present. If we rule that there is no impurity in this place then there is no doubt present which would cause us to utilise the rule of being strict regarding a Torah prohibition.

However, this leniency is only relevant in a small hospital. In a large hospital-or even in a small hospital, if one will stay for a long time-one is faced with definite impurity. Accordingly, this leniency would not be relevant.

The Leniency of the Teshuras Shai

The Teshuras Shai[39] presents the following leniency regarding a Kohen who needs to enter a hospital: We have a principle[40] that we assume that people who were alive are still living. Therefore, says the Teshuras Shai, we can assume that there are no dead people in this building. And even though many people die in the hospital, the Teshuras Shai uses the following argument to dispel this issue: The Taz writes[41] in the name of the Maharshal[42] that if three insects are found in a fruit, one is only obligated to throw out the fruit if these insects naturally grow inside it. However, if the insects do not naturally grow inside this fruit, for example, if one finds three flies on the apple, then one does not have to discard the fruit. We can assume that they grew on their own accord. The Teshuras Shai argues that even though people die in the hospital, it is not due to anything in the hospital [except for rare occurrences].  We assume that they died on their own accord. Therefore the hospital is not to be considered a place of death even though many have died there.

This leniency is difficult to accept. Firstly, the principle of relying on a person’s previously known status of “alive” is only with regards to a specific person, circumstance, or event. For instance, the Halacha[43] is that a Kohen’s wife may eat Trumah. If a Kohen goes abroad, and we lost all contact with him and do not know whether he is alive or dead, his wife may assume that he is still alive and continue to eat Trumah. However, in our case we need to know if this building is impure. We cannot utilise this principle regarding the place.

The second part of the leniency is also difficult. As I have written[44], the entire concept that we can assume a given fact based around three times is only with regards to natural phenomena in which there is a related nature. If an ox gores three times, we assume that it is a wild ox. If two children die because of circumcision, we assume that there a nature of haemophilia in the family. Applying this logic to the case of three flies on a fruit, since we can indeed find a common phenomenon which links these flies-decay-therefore one would indeed be obligated to discard the fruit. However, there is no common linkage between three mosquitos on a fruit, and one would not be obligated to discard the fruit. The same applies with the hospital: There is no common link between three people dying in the hospital [unless there is an epidemic] and the hospital should not be considered a place of death. It is not because the cause of death lies outside the hospital, as the Teshuras Shai stated. Rather, it is because there is no common linkage between these deaths and the place.

The Leniency of a Rabbinical Impurity in a case of a Commandment

The final leniency which we shall mention is mentioned in the Gemara in Talmud Bavli Maseches Avodah Zarah[45]. A Kohen may be lenient regarding Rabbinical impurity if he needs to fulfil a Torah commandment. For example, if he needs to go learn Torah or get married and it is necessary to travel on a route which is Rabbinically impure he is permitted to travel.

According to this leniency, since, as mentioned above, in a hospital we are most of the time dealing with a case of Rabbinical impurity, therefore it should be permitted for a Kohen to enter a hospital in order to fulfil a commandment, for example, accompanying one’s wife, visiting one’s parents or teacher, or for an elective medical procedure if it is necessary for one’s health [even if it is not life-threatening].

Although the Yerushalmi writes[46] that one is even permitted to travel on a route which has a Torah impurity, most Acharonim[47] say that we rule in accordance with the Bavli, since we do not find such a parallel in Bavli.

 

 

In Summary

In a case of need[48]: Firstly, if one is in a small hospital, one can combine the doubt[49] of the existence of a corpse with the doubt of whether we rule in accordance to the Ra’avad in order to allow a Kohen’s entry. Secondly, even in a large hospital, we can utilise the second leniency of the Shach in order to classify the impurity as Rabbinical. This will firstly allow us to possibly rule in accordance to the Ra’avad, since we can rely on the lenient opinion when we have a Rabbinical prohibition. Furthermore, it will allow us to utilise the Gemara’s leniency regarding a case of fulfilling a Torah commandment.

Due to all the above reasons, in a case of need, for example, accompanying one’s wife, visiting one’s parents or teacher, or for an elective medical procedure if it is necessary for one’s health [even if it is not life-threatening], one may be lenient.


[1] Vayikra 21:1. [With some exceptions, see Vayikra 21:2-3]

[2] Bamidbar 19:14

[3] The exact laws of what constitutes “the same roof” and related laws is a major topic and is the source of much discussion in Mishnayos Ohalos.

[4] Rambam Hilchos Tumas Meis 14:1

[5] Mishnah Ohalos 7:3

[6] Rambam Hilchos Tumas Meis 2:1

[7] Ibid 2:3

[8] There is an argument whether we rule that a gentile corpse will cause impurity by being in the same room or not. According to those opinions that they does not cause impurity in a room there would not be a problem to enter most hospitals outside of Israel since it can be assumed that most of the patients are not Jewish. [It should be noted that the accepted ruling is that they do not cause impurity, see Yevamos 61a and Shulchan Oruch Yoreh De’ah 372:2. Therefore, it is much easier to be lenient in a case of need regarding a hospital outside of Israel]. However, all agree that a Jewish corpse does cause this type of impurity. Therefore, in Israel, where most of the population is Jewish, this issue is much more severe.

[9] Hasagos HaRa’avad Hilchos Nezirus 5:16 and Hasagos HaRa’avad Hilchos Evel 3:7

[10] Bamidbar 19:2-22

[11] Mishnah LeMelech Hilchos Evel 3:7

[12] Rosh on Halachos Ketanos Hilchos Tumah [found in the end of Menachos] d”h Lo Yitamoh Ve’eino Metamei Le’acheirim Imo

[13] Shiltei Giborim on Halachos Ketanos Hilchos Tumah [found in the end of Menachos], 1b [old Vilna] Os 4 d”h Smag Asin 231

[14] Lechem Mishnah Hilchos Nezirus 5:16 d”h Nitmah LeMeis

[15] Rambam Hilchos Evel 2:15 and ibid 3:7, and Rambam Hilchos Nazir 5:15-16

[16] Shulchan Oruch Yoreh De’ah 373:7

[17] See, for instance, Teshuvos Avnei Nezer Yoreh De’ah 1:466

[18] Either to rely on it in a case of Rabbinical impurity [see next section], or to combine it with another doubt [see footnote 20]. [The double doubt would be: 1) We do not know whether there is a corpse on this building. 2) But even if there is a corpse it could be that the Halacha is in accordance with the Ra’avad].

[19] Dogul Merivavah Yoreh De’ah 372:2

[20] [Ed. Note] We have a principle of Sfeik Sfeikah, a doubt within a doubt [see Kesubos 9a]. To put it very briefly, the principle is that when we have two connected Halachik bases for doubting the existence of the prohibition then there is no prohibition. [The reasoning behind this leniency is beyond the scope of this work]. For instance: There is a doubt whether the Halacha is in accordance with the opinion that the corpse of a gentile will cause impurity in a room. [See footnote 8]. But even if the Halacha would follow this opinion, there is still another doubt whether the Halacha follows the opinion of the Ra’avad, according to whom there would be no prohibition even if a gentile corpse causes impurity, since the person is already impure. Therefore, says the Dogul Merivavah, a Kohen would be permitted to be in the same room as the corpse. The Dogul Merivavah’s initial position was to allow the doubt of whether the Halacha is in accordance with the Ra’avad to be counted as a valid doubt.

[21] Teshuvos Chasam Sofer Yoreh De’ah 338

[22] Mishnah LeMelech Hilchos Nezirus 5:16, Teshuvos Rebbe Akiva Eiger Tinyana Siman 18

[23] Shach Klalei Hora’ah Os 2 [found in the end of Shulchan Oruch Yoreh De’ah 242]

[24] It is important to remember that, as mentioned above, the Ra’avad is not an individual opinion. Rashi and Rabbeinu Tam are of the same opinion.

[25] Shach Yoreh De’ah 372 Se’if Katan 2

[26] Rambam Hilchos Tumas Meis 14:1

[27] Mishna Ohalos 7:3

[28] Of course, this is only if we are to accept the Ra’avad to be saying that there is no prohibition. As mentioned above, according to Rav Nosson Adler and the Dogul Merivavah the Ra’avad does not say this.

[29] In the end of Nachal Eshkol Chelek 2 [Hilchos Tumas Kohanim] the Nachal Eshkol printed a response of the Pnei Yehoshua to a Halachik query.

[30] Magen Avraham Orach Chaim 311 Se’if Katan 14 and Orach Chaim 343 Se’if Katan 2

[31] Teshuvos Chasam Sofer Yoreh De’ah 339

[32] Chochmas Adam Klal 159:5

[33] Teshuvos Avnei Nezer Yoreh De’ah 1:468

[35] Rambam Hilchos Avos HaTumah 18:1

[36] Ibid 20:3

[38] Beitzah 3b

[39] Teshuvos Teshuras Shai 1:559

[40] Gittin 28a

[41] Taz Yoreh De’ah Siman 84 Se’if Katan 17

[42] Yam Shel Shlomo Chullin 3:100

[43] Kesubos 57b

[45] Avodah Zarah 13a, and quoted in Shulchan Oruch Yoreh De’ah 372:1

[46] Yerushalmi Brachos 3:1 [end of the Halacha]

[47] See the Pnei Moshe ibid d”h Hadah Amrah

[48] See above for the Rov’s examples of need.

[49] See footnote 20 for an elaboration of this concept