Pikuach Nefesh: Are We Always Allowed to Save a Life? (Part 5)

We will now continue to address a very important question: is it possible for there to be a case where we would not be able to use the source of V’Chai Bahem? Because, if such a case where to exist, then the only Torah source we would be able to utilize to justify the violation of an aveirah for the sake of pikuach nefesh would be Chaleil Alav Shabbos Achas.

We will therefore now continue to analyze several such cases where V’Chai Bahem would likely not apply, and as such, Chaleil Alav Shabbos Achas would therefore be our sole halachic source for allowing us to engage in pikuach nefesh.

1) Saving a Gentile on Shabbos

The Gemara in Yoma focused on teaching us that a Jew is allowed to override Shabbos in order to save the life of a fellow Jew. However, this leaves us with an unaddressed question: would a Jew we be allowed to override Shabbos in order to save the life of a Gentile?

This is a very complicated question. On the one hand, we would be inclined to say that since the value of life is so important, wouldn't Hashem want us to save all life – no matter the cost? On the other hand, the Gemara provides very specific sources for the heter of pushing aside Shabbos for the sake of pikuach nefesh. As such, the real question becomes: do these sources apply to Gentiles?

1. V’Chai Bahem

At first glance, it would seem quite difficult to apply the concept of V’Chai Bahem to Gentiles, since they were not commanded in the 613 mitzvos of Matan Torah, and they are definitely not commanded in the mitzvah of Shabbos.

The svara of V’Chai Bahem is as follows: "Hashem gave us these mitzvos to live by them, not to die by them. As such, if we have to violate one of these mitzvos to save a life, we are allowed to do so."

If this is the case, then it might seem that the svara of V’Chai Bahem would not apply to Gentiles, since they are not commanded in Shabbos or the 613 mitzvos; as such, the source of V’Chai Bahem was not given to them, and the pushing aside of Shabbos would not be justified.

However, if V’Chai Bahem was not simply a gift given to Klal Yisrael as a heter to save their own lives, but a revelation that Hashem does not want anyone to die because of the mitzvos, then there would be room to argue that one can push aside Shabbos to save a Gentile through the source of V’Chai Bahem.

2. Chaleil Alav Shabbos Achas:

Again, at first glance, it would seem impossible to apply the source of Chaleil Alav Shabbos Achas to Gentiles, as Gentiles are not chayav in the mitzvah of Shabbos. (Not only are they not obligated in keeping Shabbos, but they are not allowed to keep Shabbos.[1]) As such, the svara of "push aside one Shabbos so that they can keep many more Shabbasos" is completely inapplicable.

However, as we have seen, some understand the concept of Chaleil Alav Shabbos Achas as a more universal concept of "violate one aveirah to enable to fulfillment of many more mitzvos." Therefore, if we are able to universalize this concept, then the svara of Chaleil Alav Shabbos Achas might allow us to push aside Shabbos and save a Gentile on Shabbos, so that they can keep the Sheva Mitzvos Bnei Noach in the future.[2]

2) Moshe Rabbeinu Delaying His Son’s Bris Milah

The Gemara in Nedarim[3] states that the reason why Moshe Rabbeinu did not give his son a bris milah immediately, at the proper time, was because it would have been a sakanah (danger) to give his son a bris milah right before traveling.[4]

The Shitah Mekubetzes[5] asks an interesting question on this Gemara. If V’Chai Bahem was only given to Jews at Matan Torah, then it should only apply to Jews [after Matan Torah] and not to Bnei Noach. As such, where do we know that Moshe was allowed to push aside the mitzvah of bris millah in order to save a life?

This question has a few important assumptions:

1. Moshe (and Klal Yisrael) did not receive the status of Jews until Matan Torah.
2. Gentiles are not allowed to violate their mitzvos in order to save their lives
3. The mitzvah of Bris Milah – which was given to Klal Yisrael, starting with Avraham – would also be yehareig v'al ya'avor; meaning, one would have to give up their life rather than delay this mitzvah. 

While we could suggest that Moshe (and all of Klal Yisrael) already had the status of Jews before Matan Torah – which would allow Moshe to use the principle of V’Chai Bahem[6] – the Shitah Mekubetzes suggests two other possible answers:

1. Chaleil Alav Shabbos Achas:

The Shitah Mekubetzes suggests that the svara of Chaleil Alav Shabbos Achas is a universal svara, not limited to Shabbos. As such, he explains as follows: Because Hashem told Moshe to go down to Mitzrayim, Moshe needed to go right away. And since it would have been a sakanah to give his son a bris milah before they left, Moshe deduced that Hashem wanted him to temporarily push aside the mitzvah of bris milah so that his son would live to keep many more mitzvos in the future.[7]

2. Bris Milah is Different:

The Shitah Mekubetzes gives a second answer as well, suggesting that bris milah might be an exception to the rule. Normally, Bnei Noach have seven mitzvos, and the punishment for all seven is the death penalty. As we have already seen, it is possible that even for the sake of pikuach nefesh, Bnei Noach are not allowed to violate these seven mitzvos. However, since bris milah is not one of the shevah mitzvos Bnei Noach, but was given to Avraham and Klal Yisrael as one of their mitzvos – even before Matan Torah, perhaps the halacha is more lenient regarding this mitzvah, and Hashem would thus not require one to give up their life for it. Thus, perhaps it was only because the mitzvah in question was the mitzvah of bris milah that Moshe was allowed to push it aside in order to save his son's life.[8]

3) Ger She'Mal V'Lo Taval

If we assume – as the second approach of the Shitah Mekubetzes seems to suggest – that we cannot use the sources of V’Chai Bahem and Chaleil Alav Shabbos Achas for Gentiles, a fascinating question arises regarding the case of ger (convert) who is in the midst of their conversion process. The conversion process for a male has three main parts: Kabbalas Ol Mitzvos (accepting the responsibility of the mitzvos), Bris Milah (circumcision), and Tevilah (immersion in a mikvah).[9]

In a typical case of geirus for a male, after the bris milah has been completed, we wait a short period of time for the man to heal from the procedure of milah, and he then enters the mikvah to complete the geirus. However, since it can take some time for him to heal after the milah has been completed, a fundamental halachic question arises: when a person is still in the period of time between his milah and future tevilah – referred to as a ger she'mal vi'lo taval – what is his halachic status? While the Gemara[10] indicates that a conversation is not considered to be complete until the convert has also completed his tevilah, this still leaves us with some uncertainty about his status once the bris milah has already been performed. There seems to be several options to consider:

1. Is he still a Gentile?
2. Is he a Jew?
3. Is he a partial Jew?
4. Or is he stuck in limbo, where he is now neither a Jew nor a Gentile?

One major halachic question which can often come up in these cases is as follows: what should such a person should do if Shabbos falls out during this interim stage? This is an especially complicated scenario, because a Jew is not allowed to violate Shabbos, while a Gentile is not allowed to keep Shabbos. As such, there are several creative solutions that the poskim have come up with, trying to solve this dilemma.

Another fascinating question is whether a Jew is allowed to override Shabbos in order to save the life of a ger she'mal vi'lo taval? Can we use the sources of V’Chai Bahem or Chaleil Alav Shabbos Achas to save such a person’s life?

If this person is considered a Jew, and even if he is only a partial Jew, then V’Chai Bahem would likely apply to him. However, if he is still a Ben Noach, or if he left his status of a Ben Noach but has not yet entered into Klal Yisrael, then V’Chai Bahem might not apply.[11]

Regarding Chaleil Alav Shabbos Achas, if this person is a Jew, then the svara of Chaleil Alav Shabbos Achas would most definitely apply. However, if he is not yet a Jew, then in his current state, it would be assur for him to keep Shabbos. Consequently, perhaps we cannot use this svara yet?

However, in all likelihood, the svara of Chaleil Alav Shabbos Achas would still apply during this interim stage, even if he is not yet considered to be a Jew. Why? For a very simple reason: this person is in the midst of becoming a Jew. Thus, he has already committed to a future of keeping many more future Shabbasos, and this should certainly qualify as fulfillment of the svara of Chaleil Alav Shabbos Achas Kidei Lishmor Shabbasos Harbei. Even though his current halachic status might still limit our use of Chaleil Alav Shabbos Achas, if we focus on his future and potential, we can make a strong argument that the svara should fully apply.[12]

4) Pushing Aside Shabbos to Save Someone from Violating Aveiros

The Rishonim discuss the following case: what if a young child was kidnapped by someone who was intending to raise the child to live as a Gentile, living a life without Torah u'mitzvos. If this occurred on Shabbos, and the only way to rescue the child would be to push aside Shabbos, would we be allowed to push aside Shabbos to rescue this child? 

On the one hand, the physical wellbeing of the child was not in question; the kidnapper had no intention of physically harming the child. Thus, the normal use of V’Chai Bahem and Chaleil Alav Shabbos Achas would not seem to apply. On the other hand, if they do not push aside Shabbos, this child will end up living a life full of aveiros without any connection to Yahadus.

1.  Do we say that saving the spiritual future of this child is considered pikuach nefesh?
2.  Furthermore, does the svara of Chaleil Alav Shabbos Achas Kidei Lishmor Shabbasos Harbei extend to a case where the reason the person will not be keeping future Shabbasos is not because they will die, but because they will be led away from Yidishkeit and a life of Torah u’mitzvos?
3.  Finally, does the internal logic Chaleil Alav Shabbos Achas work in this case? Normally, the svara is as follows: we can push aside one aveirah so that this person can perform many more mitzvos in the future. In this case, however, the svara is very different: we want to push aside one aveirah so that this person will not violate many more aveiros in the future. Thus, the question becomes: can we violate an aveirah to prevent the violation of future aveiros? Normally, the halacha seems to be that we cannot violate one aveirah to prevent other aveiros.[13] In this case, however, the aveiros that will be violated in the future would not be the child's fault. Furthermore, we are not saving him from a single aveirah, or even many aveiros – but a lifetime of aveiros. Thus, perhaps even if it is normally not muttar to violate an issur to prevent another (bigger) issur, in this case it would be muttar because of the extenuating circumstances. Furthermore, while we are trying to protect this child from violating many future aveiros, we are also trying to enable the child to live of a life of many future mitzvos; thus, this is another reason that the svara of of Chaleil Alav Shabbos Achas Kidei Lishmor Shabbasos Harbei could potentially apply.

Another important point to address is the concept of hutrah vs. dechuyah. When we are allowed to push aside Shabbos to save a life, how do we view the act of pushing aside Shabbos? Chazal and the Rishonim[14] discuss the following two options:

1. One option is that the aveirah remains, and is therefore violated; but we are allowed to violate the aveirah because we are saving a life. This is what Chazal refer to as "dechuyah: the aveirah is pushed aside."
2. Another option is that no aveirah is bring violated, because when it comes to saving a life, Hashem wants us to engage in this act. Therefore, we are not going against Hashem's will when we save this person’s life, but rather, we are fulfilling Hashem's will. As such, there would be no violation of Shabbos at all. This is what Chazal refer to as "hutrah: the act is completely muttar."

Thus, if we maintained that chilul Shabbos for pikuach nefesh was hutrah, and we also maintained that this case of saving the kidnapped child qualified as pikuach nefesh, then we might be able to get out the problem of violating one aveirah to prevent future aveiros – since the concept of hutrah would enable us to avoid the violation of an aveirah.

The Rishonim and Achronim debate this issue as follows:

• Assur

The Rashba[15] maintains that one cannot violate Shabbos is such a case, because he holds (based on the Gemara in Shabbos 4a) that we cannot violate an aveirah to prevent others from violating aveiros.

• Muttar

The Beis Yosef[16], however, suggests that while this is sometimes true, it is not always true. The Beis Yosef therefore rules that since we are dealing with a case where by violating a single aveirah we can prevent someone from violating a davar gadol (or help them fulfill a mitzvah rabbah), it would be muttar to violate a smaller aveirah to achieve this; and in this case, by pushing aside one Shabbos we would be saving this child's entire religiosity and preventing a lifetime of aveiros.[17] 

The Shulchan Aruch[18] (written by the author of the Beis Yosef – Rav Yosef Kairo) rules that in this case, we are allowed to push aside Shabbos to save the child. The Magen Avraham[19] explains the svara of the Shulchan Aruch as follows: even though we cannot use the principle of V’Chai Bahem, we can still use the svara of Chaleil Alav Shabbos Achas: we are pushing aside one Shabbos so that this child can keep many more Shabbasos.

The Shulchan Aruch Ha'Rav[20] goes even further in his formulation, suggesting that saving a Jew's yiddishkeit qualifies as actual pikuach nefesh; thus, we would be allowed to push aside Shabbos to save this child using the normal principles of pikuach nefesh.[21]

[1] Sanhedrin 58b.

[2] Practically, according to halacha, you are definitely allowed to push aside Shabbos to save the life of a Gentile. Not only is it important to save all life, but if a Jew would not be allowed to save a Gentile on Shabbos, then Gentiles would return the favor and not save Jews on Shabbos. Thus, if a Jew would need an ambulance on Shabbos or would show up to a hospital on Shabbos, they would not get the care they need. As such, poskim have emphasized the absolute importance of saving Gentiles on Shabbos, because this is also a form of saving Jewish lives as well, in a more general, indirect way.

However, as we have shown above, there is also a potential way of using the sources of V’Chai Bahem and Chaleil Alav Shabbos Achas to justify pushing Shabbos aside to save the life of a Gentile.

[3] Nedarim 31b-32a.

[4] The Gemara continues by saying that the mistake Moshe made was that when they finished the journey, he delayed giving the bris milah once they had already arrived at the hotel: he first got occupied with their lodging and only then performed the bris milah.

[5]

שיטה מקובצת מסכת נדרים דף לא עמוד ב

אמול ואצא לדרך סכנה היא לתינוק. וכתיב וחי בהם ולא שימות בהם. ואף על פי שלא ניתנה תורה להתיר איסור במקום סכנה נראה לומר כן לחלל דבר אחד כדי לקיים מצות הרבה. ועוד שמצות מילה קלה מהריגת נפש דלא אמרינן אזהרתן זו היא מיתתן אלא בשבע מצות דידהו הילכך טוב לבטל מצות [מילה] ולא למול בסכנה. שיטה.

[6] We also mentioned above the possibility that if V’Chai Bahem was not simply a gift given to Klal Yisrael as a heter to save their own lives, but a revelation that Hashem does not want anyone to die because of the mitzvos, then there would be room to argue that the principle of V’Chai Bahgem can apply to Gentiles as well.

[7] It is also possible that Moshe and his son had a unique status of being somewhere in between the status of Jews and Gentiles. The status of Klal Yisrael from the time of the Avos until Matan Torah is an important sugya that requires much more analysis.

[8] Of course, it is also possible that while the punishment for all seven of the shevah mitzvos Bnei Noach is the death penalty, that is only in a normal case – when there was intent to violate the aveirah. If, however, the only reason someone violated the aveirah was in order to save a life, then perhaps this would be muttar and one would not have to give up their life for it. Essentially, this would depend on whether we can make a distinction between the punishment for an aveirah being missah and the requirement to proactively give up your life in order to prevent the violation of that aveirah. In a case of oneis, where the only way to survive (or save someone else’s life) is to violate the aveirah, the halacha would very likely be different. This, in turn, would depend on how we understand the halacha of oneis. Is an oneis defined as the lack of an action, an action – but not an aveirah, or an action and an aveirah – but no punishment. If we rule like the third option, then perhaps in a case where the aveirah is tremendously severe, then even if there was an oneis – there would still be a punishment of missah. This itself is a famous machlokes Rishonim.

[9] There used to also be a korban, but we do not have korbanos anymore. To understand how we can have a successful geirus without a korban requires a longer discussion, and the Rishonim discuss this in issue in great depth.

[10] Yevamos 46b

[11] As we have discussed above.

[12] One might ask: shouldn’t we apply the same logic when it comes to the question of saving a fetus as we do in the case of a ger shemal b’lo tavel? Thus, whatever the halacha is by a fetus should apply to a ger shemal v'lo taval as well. However, we can make a distinction between applying this svara to a fetus and applying it to a ger shemal v'lo taval for the following two reasons:

A fetus, while not yet born, is already a Jew; however, a ger shemal v'lo taval might not have the status of a Jew yet. Thus, we might argue that Chaleil Alav Shabbos Achas can apply to potential, but only if the present status meets certain qualifications – such as already being Jewish. [However, if we only focus on potential, or, if we think a ger shemal v'lo taval has already somewhat entered into Klal Yisrael, then we should be able to apply Chaleil Alav Shabbos Achas in this case as well.]

On the other hand, a a ger shemal v'lo taval has already entered into this world, and therefore already has a chezkas chaim; thus, even if we apply this svara to a ger shemal v'lo taval, we might be more hesitant to apply it to a fetus, as a fetus has not even entered this world yet – so the certainty that it will keep many more Shabbasos might not be as concrete, and might therefore limit our ability to apply the svara of Chaleil Alav Shabbos Achas.

[13] See Shabbos 4a. If one placed bread in an oven on Shabbos (which would violate an issur D'Oraisa), the Gemara states that one who sees the bread cannot take it out of the oven in order to prevent the original person from violating the issur D'Oraisa, even though taking it out would only violate an Issur Dirabanan. This seems to imply that we cannot violate lesser aveiros to prevent someone else from violating a larger aveirah.

However, it is important to note that the case of this Gemara is different from our case of the kidnapped child, for the following two reasons:

1- The aveirah being violated in the Gemara is only one larger issur, not many.

2- The initial aveirah being violated in the Gemara was done on purpose, not against their will.

[14] See Yoma 46b and commentaries there.

[15]

שו"ת הרשב"א ז:רסז

[16] בית יוסף או"ח ס' שו

[17] See Tosafos (Gitin 41b) for a similar svara of a "mitzvah rabbah" justifying the violation of a smaller aveirah.

[18]

שולחן ערוך אורח חיים הלכות שבת סימן שו סעיף יד

מי ששלחו לו (נו) שהוציאו בתו מביתו בשבת להוציאה מכלל ישראל, כח [יט] מצוה לשום לדרך פעמיו להשתדל בהצלתה; ויוצא אפילו (נז) כט חוץ לשלש פרסאות ואי לא בעי, כייפינן ליה

[19]

מגן אברהם סימן שו ס"ק כט

אפילו למ"ד דהוי דאורייתא שרי דלגבי שלא תמר ותעביד כל ימיה חילול שבת הוי זה איסורא זוטא דמוטב לחלל שבת א' כדי שתשמור שבתות הרבה

[20]

שולחן ערוך הרב אורח חיים סימן שו

סעיף כט

מי שנודע לו בשבת שהוציאו נכרים את בתו מביתו להוציאה מכלל ישראל מצוה לשום לדרך פעמיו להשתדל להצלתה ויצא אפילו חוץ לי"ב מיל ואפילו אם יצטרך לעשות מלאכה גמורה להצלתה ואפילו אםא הוא ספק אם יצילנה מפני שענין זה הוא כפיקוח נפש שמחללין השבת אפילו בספק הצלה שאין לך פיקוח נפש יותר מזה שלא תצא מכלל ישראל ותחלל שבתות כל ימיה ומוטב לחלל עליה שבת אחת משתחלל היא שבתות הרבה שמטעם זה ג"כ מחללין שבת בשביל פיקוח נפש שאמרה תורה חלל עליו שבת אחת כדי שישמור שבתות הרבה (ולפיכך אף אם הבת היא קטנה שאינה מחוייבת עדיין במצות יחלל עליה להצילה שלא תחלל שבתות הרבה כשתגדיל שמטעם זה מחללין שבת לפיקוח נפש הקטנים).

[21] It is quite possible that the Beis Yosef would agree with this svara as well.