Niddah 28a ~ Gender Determination

In the time of the Talmud and for centuries beyond, it was very important for a couple to produce male children. To this end, some rabbis suggested a technique to ensure that a boy was produced. We first read about it a couple of days ago, and here it is described in today’s page of Talmud:

נדה כח, א

וא"ר יצחק אשה מזרעת תחלה יולדת זכר איש מזריע תחלה יולדת נקבה

Rabbi Yitzchak said that if the woman emits seed first she gives birth to a male, and if the man emits seed first she gives birth to a female.

Today we will explore the topic of gender determination in the Talmud.

How to conceive a boy or a girl

In this tractate the statement about “emitting seed first” comes up several times, and in the name of a few different rabbis. And, as if emphasize its importance, the Talmud offers no fewer than four different supporting proofs for the principal. Here is the first, in the name of Rav Ami:

נדה לא, א

אמר רבי יצחק אמר רבי אמי אשה מזרעת תחילה יולדת זכר איש מזריע תחילה יולדת נקבה שנאמר (ויקרא יג, כט) אשה כי תזריע וילדה זכר 

Rabbi Yitzchak says that Rabbi Ami says:The sex of a fetus is determined at the moment of conception. If the woman emits seed first, she gives birth to a male, and if the man emits seed first, she gives birth to a female, as it is stated: “If a woman bears seed and gives birth to a male”(Leviticus 12:2). 

The suggestion from the verse is that “if a woman bears seed” first, then she will “give birth to a male.” A second proof text from the Torah is provided by Rabbi Tzadok, this time from the story of our matriarch Leah.

תנו רבנן בראשונה היו אומרים אשה מזרעת תחילה יולדת זכר איש מזריע תחלה יולדת נקבה ולא פירשו חכמים את הדבר עד שבא רבי צדוק ופירשו (בראשית מו, טו) אלה בני לאה אשר ילדה ליעקב בפדן ארם ואת דינה בתו תלה הזכרים בנקבות ונקבות בזכרים 

The Sages taught: At first, people would say that if the woman emits seed first she gives birth to a male, and if the man emits seed first, she gives birth to a female. But the Sages did not explain from which verse this matter is derived, until Rabbi Tzadok came and explained that it is derived from the following verse: “These are the sons of Leah, whom she bore to Jacob in Paddan Aram, with his daughter Dinah”(Genesis 46:15). From the fact that the verse attributes the males to the females, as the males are called: “The sons of Leah,” and it attributes the females to the males, in that Dinah is called: “His daughter,” it is derived that if the woman emits seed first she gives birth to a male, whereas if the man emits seed first, she bears a female.

בנדה לא ,א–ב

The Talmud brings a third proof text, this one from the Book of Chronicles:

ויהיו בני אולם אנשים גבורי חיל דורכי קשת ומרבים בנים ובני בנים וכי בידו של אדם להרבות בנים ובני בנים אלא מתוך שמשהין עצמן בבטן כדי שיזריעו נשותיהן תחלה שיהו בניהם זכרים מעלה עליהן הכתוב כאילו הם מרבים בנים ובני בנים והיינו דאמר רב קטינא יכולני לעשות כל בני זכרים 

“And the sons of Ulam were mighty men of valor, archers, and had many sons and sons’ sons”(I Chronicles 8:40). Is it in a person’s power to have many sons and sons’ sons? Rather, because they delay while lying on wives’ abdomen, initially refraining from emitting semen so that their wives will emit seed first, in order that their children will be male, the verse ascribes them credit as though they have many sons and sons’ sons. And this statement is the same as that which Rav Ketina said: I could have made all of my children males,by refraining from emitting seed until my wife emitted seed first. 

And finally, the fourth proof text. A later passage in this tractate (Niddah 70b-71a) cites a number of questions that the sages of Alexandria asked of Rabbi Yehoshua. One of them was how can a man ensure he has male children? Rabbi Yehoshua told them the man should do two things: marry a woman who is fit for him, and act modestly during sexual intercourse. Hold on, the sages of Alexandria replied. Many men have done that, and it didn’t help! Rabbi Yehoshua then qualified his answer, and explained that in addition to marrying an appropriate woman and being modest, a man needs to pray for a son. Rabbi Yehoshua then cited a proof text from Psalms (127:3):

הנה נחלת ה' בנים שכר פרי הבטן

Behold, children are a heritage of the Lord; the fruit of the womb is a reward

So far so good. To have male children a man needs to marry an appropriate wife, act modestly when he is intimate with her, and pray. But now the Talmud asks a question based on the proof text. What is the act for which the reward are children?

א"ר חמא ברבי חנינא בשכר שמשהין עצמן בבטן כדי שתזריע אשתו תחילה נותן לו הקב"ה שכר פרי הבטן

Rabbi Chama, son of Rabbi Chanina, says: In reward for men withholding their semen in their belly in order to allow their wives to emit seed first, the Holy One, Blessed be He, gives him the reward of the fruit of the womb, [that is, sons].

These are the four different proof texts from the Bible to support the claim that if a woman emits her seed first, she will give birth to a boy. Of course now we need to determine what, precisely, is meant by the phrase “if the woman emits seed first” (מזרעת תחילה).

Understanding THE PHRASE

(i) Ovulation

Perhaps it could refer to ovulation. This makes sense to us since we understand that fertilization requires two “seeds,” the egg, and sperm. But this would not have made sense to the rabbis of the Talmud. They, like everyone else at the time (and indeed until the beginning of the seventeenth century) had no concept of mammalian ovulation. In fact it was the blood that was lost at menstruation that was believed to be the mother’s contribution to her child’s formation, and not any eggs she may produce.

A classic example of this lack of understanding of ovulation is found in the early medieval commentary of Moses ben Nachman, known as Ramban (1194–1270) to Leviticus 12:2. Here is the key bit:

כי האשה אע"פ שיש לה ביצים כביצי זכר או שלא יעשה בהן זרע כלל או שאין הזרע ההוא נקפא ולא עושה דבר בעובר

For even though a woman has ovaries like the testes of a man, either they do not produce eggs at all, or else the egg jells and contributes nothing to the fetus.

(ii) Orgasm

The other possibility is that “emitting seed first” refers to orgasm. If you want to have a boy, the rabbis said, the husband should allow his wife to have an orgasm before himself. This interpretation is favored by the historian of all things medical and talmudic, Fred Rosner. Here is what he wrote in Medicine in the Bible and The Talmud (Ktav Publishing and Yeshiva University Press 1977, p175):

It seems obvious…that the meaning must be orgasm rather than ovulation, for otherwise it would not make sense to speak of the men restraining themselves during intercourse in order to allow their wives to “emit seed” first.

Theories of sex determination in Antiquity

In a fascinating paper in the Journal for the Study of Judaism, the scholar Pieter van Horst wrote “it is certain that ancient Greek concepts of embryogenesis influenced Jewish theories about the coming-into-being of a foetus.” So let’s look at some of those theories.

Aristotle (384–322 BCE) recorded the belief (with which he did not agree) that male offspring come from the right side of the male and females from the left side; an embryo that develops in the “right side” of the uterus (whatever that means) becomes male while that which develops in the left side becomes female. Aristotle himself believed that the mother’s contribution to the fetus was menstrual blood, and it had the same origin as male semen, although it was not as developed.

Another Greek, Empedocles (c. 494-434 BCE) thought that “heat” (whatever that means) gave rise to males and cold to females. But the view in the Talmud about editing seed first can be traced further back to another Greek, Democritus of Abdera (c. 460 - c. 370 BCE). Democritus believed that the gender depended on the parent whose semen predominated, “not the whole of the semen, but that which has come from the part by which male and female differ from one another.”

By the time we get to Galen, the Greek physician of the second century, there was an acknowledgement that the mother contributed her own seed, but, as van Horst notes the thought was that“…female sperm is by far less perfect, thinner, and colder than male sperm; it serves only as food for the male semen in its development into an embryo.

The material surveyed so far covers the period of roughly 500 B.C.E. to 200 C.E. It has shown us that throughout this period a theory about female semen had its place side by side with a theory that denied females a contribution to embryogenesis.
— Pieter W. van Horst. Bitenosh's Orgasm. Journal for the Study of Judaism 2012. 43: 613-628.

A new understanding of a Dead Sea Scroll

It is with this background that van Hort explains an enigmatic passage in one of the Dead Sea Scrolls (1QapGen2:9-15), known as the Genesis Apocryphon. It is one of the original Dead Sea Scrolls discovered by Bedouin shepherds in 1946 and now held at The Shrine of the Book in Jerusalem.The scroll recounts a discussion between Noah and his father Lemech, who was worried that Noah was not really his own progeny. “I thought in my heart” says Lemech, “that the conception was the work of the Watchers, and the pregnancy of the Holy Ones, and it belonged to the Nephilim.” He suspects that his wife Bitenosh has committed adultery.

Then Bitenosh, my wife, spoke to me very harshly... (9) and said: 'Oh my brother and lord, remember my sexual pleasure!... (10) in the heat of intercourse, and the gasping of my breath in my breast.'" …(14) Remember my sexual pleasure!... (15) that this seed comes from you, that this pregnancy comes from you…

How, asks van Horst, could Bitenosh think that a reference to the pleasure she experienced when being intimate with Lamech would allay his suspicion? And here is his fascinating solution:

That could only be a convincing argument if that pleasure entailed the conception of their child at the moment the two of them (and no one else) were together. Since the author implies that Bitenosh's argument did convince Lamech, he must have meant her reference to her pleasure to be a conclusive argument. So "pleasure" must here definitely be something much more specific than just the fact that Bitenosh had a pleasant time with Lamech when they begot Noab. That is to say, most probably Bitenosh here refers to her orgasm on that occasion. The fact that not only Lamech but also Bitenosh had an orgasm at that moment is taken as a proof that it is the two of them, together who begot the child. That can only be the case if the female orgasm is here regarded as the event during which she emitted her own seed into her womb where it mingled with Lamech's seed so as to form the beginning embryo. It is only a double-seed theory that can explain why Bitenosh here takes recourse to an appeal to her moment suprême (to which Lamech was witness!) as a cogent argument…

It is fascinating to see how an originally Greek scientific concept here serves to allay the anxious suspicions of a biblical hero.

Yes. It is.

It wasn’t until the invention of the microscope and the work of Antonie van Leeuwenhoek (1632-1723) and Reinier de Graaf (1641-1673), that we began to understand what was really going on. The former described seeing sperm in semen, and the latter dissected pregnant rabbits and described the development of the egg in the ovary. (Fun fact: in his honor, the structure within which the egg matures is known to this day as a Graafian follicle.)

Other ways to have a baby boy

The scholar Moses Gastner who died in 1939 was a lifelong collector of Hebrew manuscripts. These later became part of the collectionso of both the Rylands Library in Manchester and the British Library in London. Gastner also translated the siddur, wrote a history of the Bible, and led the Spanish and Portuguese Congregation in London. Among his many works was a little-known entry (“Birth, Jewish”) in the two-volume Encyclopædia of Religion and Ethics published in New York in 1908. In the entry Gastner included material from his the vast collection of medical and magical manuscripts. Here is one, which Gastner does not date: 

If a woman is anxious to get sons, she must ask a shepherd to get the after-birth of a cow, dry it, and pound it, and drink the powder in wine.

If dried cow after-birth did not suit your tastes, there was this: 

Make a decoration of bear’s or wolf’s meat as much as a bean. If the animal is male the child will be male, and if it is female, the woman will give birth to a daughter.

The Talmud (Niddah 31b) suggested another, perhaps more palatable method to guarantee a baby boy:

אמר רבא הרוצה לעשות כל בניו זכרים יבעול וישנה 

Rava said: One who wishes to make all of his children males should engage in intercourse with his wife and repeat the act.

It’s not a secret any more

At the conclusion of his article on sex determination in the Talmud, Rosner wrote that the Talmud 

emphatically states that if a woman emits her semen first, she will bear a male, and if the man emits his semen first, she will bear a female. We have yet to understand what the Talmud means. The secret of sex predetermination remains hidden.

But this is not correct. We certainly do understand what the Talmud meant, where that meaning came from and what became of it. What once was certainly a mystery (but not a secret) is now well understood. The gender of offspring is determined by chromosomes, and nothing else. 

What actually determines the gender of a fetus

A human egg or sperm each contain 23 chromosomes. All eggs carry an X chromosome; each sperm carries an X or a Y chromosome. If a sperm with an X chromosome fertilizes the egg, the fetus grows into an XX female. If a sperm with an Y chromosome fertilizes the egg, the fetus grows into an XY male. That’s it. Simple.

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Niddah 27a ~ Delayed Interval Twin Births and the Unlikely (But Plausible) Survival of Yehuda and Chizkiyya

Today the Talmud recounts the survival of twin boys, Yehuda and Chizkiyya. When I first read the story, I considered it to be entirely fanciful. It was impossible, so it seemed to me, to have actually occurred. Then I read the science, and I changed my mind. Let’s see if it changes yours.

נדה כז, א

א"ר אבין בר רב אדא אמר רב מנחם איש כפר שערים ואמרי לה בית שערים מעשה ונשתהה ולד אחד אחר חבירו ג' חדשים והרי הם יושבים לפנינו בבית המדרש ומאן נינהו יהודה וחזקיה בני רבי חייא

Twins image.jpg

Rabbi Avin bar Rav Adda says that Rav Menachem of the village of She’arim, and some say that he was from Beit She’arim, says: An incident occurred where one offspring remained in the womb after the other was born for three months, and both twins are sitting before us in the study hall. And who are they? They are Yehuda and Chizkiyya, the sons of Rabbi Chiyya.

Delayed Interval births - what you need to know

When you look at the medical literature, it turns out that there are many case reports of delayed-interval twin births. This is probably because the number of multiple pregnancies has increased due to the expansion of assisted reproductive technology. In nearly all, the first twin died soon after delivery because it is too premature to survive.

Here is just one example. Last year a group from the Department of Clinical and Experimental Medicine at the University of Pisa in Italy published a case report with a very lengthy title: Delayed delivery of the second twin: Case report and literature review of diamniotic dichorionic twin pregnancy with very early preterm premature rupture of membranes. A mother went into very early labor and delivered the first of two twins at about 26 weeks’ gestation. The second twin remained in her uterus, and was delivered 29 days later by cesarean section. The first very premature twin died, but happily the second survived and at 6-month follow-up, “no neurological, cardiac or other defects could be detected.”

A 2016 systematic review found 13 articles reporting a total of 128 cases of delayed-interval twin births. It reported that the second born twin had a significantly lower mortality risk compared to the first born (relative risk = 0.44, 95% confidence interval = 0.34 – 0.57, P<0.0001,) which makes sense since the second twin had the benefit of a longer period of uterine gestation.

Results of individual studies, mortality of the second born versus the first born. From Feys S. Jacquemyn Y. Delayed-interval delivery can save the second twin: evidence from a systematic review. Facts Views Vis Obgyn, 2016, 8 (4): 223-231.

Results of individual studies, mortality of the second born versus the first born. From Feys S. Jacquemyn Y. Delayed-interval delivery can save the second twin: evidence from a systematic review. Facts Views Vis Obgyn, 2016, 8 (4): 223-231.

Interval twin births - the world Record

There is even an official world record for delayed-interval twin births. According to Guinness World Records, the longest verified interval between the birth of twins is 87 days (and 1 hour 45 minutes). Twin girls Amy Ann and Kate Marie Elliot were born 87 days apart, at Waterford Regional Hospital in County Kilkenny, Ireland. Amy was born prematurely on 1 June 2012 and Kate followed on 27 August. Because Amy Ann was born at 09:16 and Kate Marie at 11:01, the exact interval is 87 days, 1 hour and 45 minutes. That’s just shy of three months. Just like the story in the Talmud.

Actually, there is a report that in 2018 this record was beaten, though I’d be careful about believing what you read in perhaps the smuttiest paper in Britain, The Sun. But here it is anyway. And note that the twins were born just over three months apart.

Mum Oxana went into labour initially at just 26 weeks pregnant and gave birth to Liana prematurely on November 17, 2018. She weighed just 2lbs. Three months later, she finally gave birth to Leonie - four days after her initial due date. A spokeswoman for Holweide hospital in Cologne said: "After the birth of the first twin, the cervix closed again and the unborn sister could remain in the womb.” As contractions ceased, doctors decided that Oxana could carry her second baby girl to term.

Maternity chief Dr Uwe Schellenberger said: "The conditions were very good as well due to the existing second placenta and we wanted to try to let the second child mature as long as possible in the womb." Leonie was born a total of 97 days difference with her twin sister Liana and was born weighing 8.1lbs. Dr Schellenberger said: "It's also a rare case for our maternity clinic, but it was not the first time that twins were born on different days at the Holweide hospital. "But the time difference of 97 days is unique for us and also special worldwide."

According to the hospital, the girls may have broken a world record. "Such a 'two-time twin birth' is very rare worldwide," the spokeswoman explained. "According to our own research, twins with a time difference of 87 days were born in Ireland in 2012." Liana spent her first few weeks in a neonatal care unit at the hospital where she stayed until she was strong enough to go home.Both girls now weigh around 12.5lbs and have developed well.The spokeswoman said that they've both been reunited at their family home and are set to grow up healthy.

What would it have taken for Yehuda and Chizkiyya to survive?

In its English translation, the Artscroll Talmud introduces this story calling it a “fantastic incident.” If by “fantastic” it means “based on fantasy” or “not real,” it is mistaken. If however, it means “so extreme as to challenge belief” well then it is correct. It is indeed an extremely unlikely story, but not an impossible one. Here is what it would take to have actually occurred.

  1. The first born twin would have had to be born at around six months gestation. Even today, with neonatal intensive care units, incubators, respirators, antibiotics and specialist staff, this is the very limit of survivability. The mortality rate in babies born between the 23rd and 25th week is 32%.

2. Next, the mother would have had to survive the preterm premature rupture of the amniotic membranes which carries a risk of 17-52% of introducing an intrauterine infection, and a risk of 4-22% of causing maternal sepsis.

3.Then the mother would have had to carry the second twin to a full-term birth, and that twin must survive.

4. Finally - and this is important - the Talmud lets us know that the boys were “sitting in the study hall.” In other words, they both had a fairly normal cognitive ability, which in very premature infants is often not the case.

Tosafot Agrees - it is really rare

The chances of all this happening are very low. In fact the medieval compendium of commentaries on the Talmud known as Tosafot makes this very point (Niddah 26b ד’ה ילדה):

ילדה ואח"כ הפילה שליא אפי' עד י' ימים אין חוששין לולד אחר. אע"ג דאמר לקמן דנשתהא הולד שלשה חדשים מ"מ לא שכיח וכל כמה דלא חזינן לא חיישינן

Even though the Talmud states that “one offspring remained in the womb after the other was born for three months,” this is not common. And when something is so rare that it almost never happens, it may [for practical purposes] be ignored.

But a very low likelihood of something happening does not make it impossible. The three month delay in the birth of the boys was indeed scientifically possible. I hope Yehuda and Chizzkiya realized just how lucky they were.

“We feel so blessed to be here,” their mother said. “The only thing that’s gotten me through this... is to say, ‘God is in control,’” she noted.
— Kristen Miiler, mother of twins born five and a half weeks apart. See "Doctors stunned by rare twins born more than five weeks apart." Washington Post April 7, 2016




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Niddah 25b ~ Four Cases of Torture & Coerced Testimony

In today’s page of Talmud there is a question about the ritual status of a gestational sac that was expelled by a woman who had a miscarriage. Mar Shmuel, (died circa 254CE) who was perhaps the most famous physician in the Talmud, issued a ruling that demonstrated his ability to date the age of a miscarriage to within a day.

נדה כה,ב

 והא ההוא שפירא דאתאי לקמיה דמר שמואל אמר הא בר ארבעין וחד יומא וחשיב מיומא דאזלא לטבילה עד ההוא יומא ולא הוה אלא ארבעין יומין ואמר להו האי בנדה בעל כפתיה ואודי שאני שמואל דרב גובריה

There was an incident involving a certain gestational sac that was brought before Mar Shmuel, and Shmuel said: This embryo is forty-one days old. And Shmuel subsequently calculated the amount of time that had passed from the day that the woman went to perform immersion in a ritual bath until that day, and it was only forty days.

And he said to the local court: This husband engaged in intercourse with his wife when she was a menstruating woman. They bound the husband and he confessed. Since Shmuel was so proficient in embryology, why was he unsure about the halakhic status of a gestational sac? The Gemara answers: Shmuel himself is different, as his strength, i.e., his proficiency, was great. His general ruling that the halakhic status of a gestational sac is uncertain applies to people who are not as proficient as he is. 

As a result of his calculation, Shmuel accused a man of having intercourse with his wife when she was ritually impure. He was bound and confessed, (though it is not clear who was ordering the binding).

Other cases of coerced Confessions

We have previously read of other examples in which torture (or according to some, the threat of torture) was used to obtain a confession of a crime. In the first two, Abaye suspected that bills of sale had been forged. "כפתיה ואודי" - Abaye  bound the suspects to a post, and they confessed. In the third case it was Rava who suspected that his own signature and that of the elderly Rav Acha bar Adda had been forged. Rava too, bound the suspect to a post, after which not only did the suspect confess to forging both signatures, but he went on to explain how he had forged that of the elderly Rav Acha, whose hands had a tremor. 

בבא בתרא קסז, א

 אנחי ידאי אמצרא ואמרי לה קם אזרנוקא וכתב

I placed my hands on the rope of a bridge while signing. Others say he stood on a skin bottle and signed.

Another case is found in the tractate Bava Metzia (24a). There, we read that Mar Zutra “The Pious”  had coerced a student to confess to his crime.

בבא מציעא כד, א

מר זוטרא חסידא אגניב ליה כסא דכספא מאושפיזא חזיא לההוא בר בי רב דמשי ידיה ונגיב בגלימא דחבריה אמר היינו האי דלא איכפת ליה אממונא דחבריה כפתיה ואודי

Mar Zutra the Pious was involved in an incident in which a silver cup was stolen from his host. Later, Mar Zutra saw a certain student wash his hands and dry them on his friend's garment. Mar Zutra said: "this is the one who stole the cup, for he has no consideration for his friend's property. Mar Zutra bound the student to a post and coerced him, and he confessed to the crime (Bava Metzia 24a).

He was bound and he confessed

Courtesy of Wikimedia.

Courtesy of Wikimedia.

The phrase that is used in all four cases is כפתיה ואודי "they bound him and he confessed." The root of the word to bind is כפת, which is used in rabbinic literature to mean to tie or to bind. Rabbi Asher ben Yechiel (Germany ~1250-1327), known as the Rosh, is certain that the suspect was tortured. In his commentary on the passage in Bava Metzia, he wrote וכפתיה בשוטי עד דאודי "he flogged him with rods until he confessed." (As in חושך שבטו שונא בנו ואהבו שחרו מוסר "spare the rod and spoil the child," from Proverbs 13:24.) Rabbi Betzalel ben Avraham Ashkenazi (Israel ~1520-1594) in his commentary to Bava Metzia called Shitah Mekubetzet agrees that coercion was used, although he is unsure if it was physical or psychological:

כפתוהו ואודי. יש מפרשים כפתוהו על העמוד והלקוהו בשוטים. ויש מפרשים כפתיה בדברים שנדוהו אם לא יודה האמת

Some explain that he was tied to post and flogged. Others explain that he was verbally coerced (and threatened with excommunication) until he confessed.

False Confessions

In a 2010 paper published in the Stanford Law Review, Brandon Garett notes that DNA testing has now exonerated over forty people who falsely confessed to rapes and murders. He wonders how an innocent person could convincingly confess to a crime he never committed. For example, in 1990  Jeffrey Deskovic a seventeen-year-old, was convicted of rape and murder. Deskovic was a classmate of the fifteen-year-old victim, had attended her wake, and was eager to help solve the crime. During one of several police interrogations he “supposedly drew an accurate diagram,” which depicted details concerning “three discrete crime scenes” which were not ever made public. "In his last statement, which ended with him in a fetal position and crying uncontrollably," wrote Garrett, "he reportedly told police that he had “hit her in the back of the head with a Gatoraid [sic] bottle that was lying on the path.” Police testified that, after hearing this, the next day they conducted a careful search and found a Gatorade bottle cap at the crime scene."

Scholars increasingly study the psychological techniques that can cause people to falsely confess and have documented how such techniques were used in instances of known false confessions.
— Garrett, B.L. The Substance of False Confessions. Stanford Law Review 2010. 62 (4): 1051-1119.

Deskovic was convicted of rape and murder and served more than fifteen years of a sentence of fifteen years to life. Then in 2006, new DNA testing not only excluded him, but also matched the profile of a murder convict who subsequently confessed and pleaded guilty. So how did Deskovic know all the details of the crime to which he confessed? Here is what the District Attorney noted in the post-exoneration inquiry:

...Given Deskovic’s innocence, two scenarios are possible: either the police (deliberately or inadvertently) communicated this information directly to Deskovic or their questioning at the high school and elsewhere caused this supposedly secret information to be widely known throughout the community.

Another paper, this time in the North Carolina Law Review, analyzed 125 cases of "proved interrogation-induced false confessions, which, the authors note with some pride, is "the largest cohort of interrogation-induces false confession cases ever identified and studied in the literature." It makes terrifying reading.  

It is of course really hard to study in the laboratory the psychological effects of torture and coercion and how they produce false confessions.  But scientists try anyway. For example, a very recent paper from a team from the New School for Sociological Research in New York and the University of California studied the effect of sleep deprivation on false confessions.  When compared to those who had rested, participants were over four times more likely to sign a false statement if they were deprived of one night's sleep.  In another recent peer-reviewed paper, (Constructing Rich False Memories of Committing Crime) psychologists used suggestive retrieval techniques on some rather nice Canadian undergraduates. They found that up to 70% of those interviewed 

were classified as having false memories of committing a crime (theft, assault, or assault with a weapon) that led to police contact in early adolescence and volunteered a detailed false account. These reported false memories of crime were similar to false memories of noncriminal events and to true memory accounts, having the same kinds of complex descriptive and multisensory components.

They continue: 

Our finding that young adults generated rich false memories of committing criminal acts during adolescence supports the notion that false confessions and gross confabulations can take place within interview settings. The Innocence Project has shown that about 25% of false convictions are attributable to faulty confession evidence...The kind of research presented here is essential in the quest to help prevent memory-related miscarriages of justice.

False Memories Become Real

In a recent article in The New Yorker, Rachel Aviv reported on the remarkable story of how DNA evidence exonerated six convicted killers. Despite this, two of them had detailed memories of the killing that they didn't commit. One was a woman named Ada Taylor who confessed to a woman’s murder in 1989 and for two decades believed that she was guilty.

She served more than nineteen years for the crime before she was pardoned. She was one of six people accused of the murder, five of whom took pleas; two had internalized their guilt so deeply that, even after being freed, they still had vivid memories of committing the crime. In no other case in the United States have false memories of guilt endured so long. The situation is a study in the malleability of memory: an implausible notion, doubted at first, grows into a firmly held belief that reshapes one’s autobiography and sense of identity.

Of course murder is not the same as forging a document, but the lesson for those in criminal justice is the same. People confess to all sorts of things - especially when they are coerced or tortured- and can even forge false memories of the crimes of which they were accused.  

Permitted Coercion in Jewish Law

In the Code of Jewish Law, the שולחן ערוך, the passage in Bava Basra is the basis for the legal right to extract a confession from a person suspected of forging business documents.

שולחן ערוך חושן משפט מב, ג

ואם צריך לכוף בעל השטר ולהכותו כדי שיודה יעשה כדי שיוציא הדין לאמיתו

If it is necessary, the owner of the document (who is suspected of forgery) may be beaten in order for him to confess and the truth to come out...

This certainly made me feel uncomfortable, but let's put this into some context. Torture has been a part of many judicial systems, and was a feature of  Roman law.  Perhaps most notoriously it was used by the Inquisition, after Pope Innocent IV issued a papal bill Ad extirpanda in 1252 which authorized its use by the Church.  Closer to home, the US has recently grappled with, and condemned cases in which the Central Intelligence Agency tortured prisoners, as the Senate Select Committee on Intelligence (partially) revealed in 2014. But among the thousands of legal decisions in the Babylonian Talmud, there are only four rabbis who are named as having tortured or coerced a suspect to confess. And that low number, though it is not zero, should provide us with some solace.  

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Niddah 24a ~ Halachic Reality and Anatomic Reality: Treif People and Treif Animals

In tomorrow’s page of Talmud we read of a dispute about survivability of an infant with a birth defect. According to Rav Zakkai, an infant lacking legs from the knees downward cannot live, and is classified as a treifah. Rav Yannai declared that such a child could live, but agreed that it is classified as a treifah. Rav Yannai believed that only a birth defect that included the urinary opening was severe enough to be incompatible with life. In both cases the child is declared a treifah, but what is in dispute is the prognosis of such a treifah.

נדה כד,א

בין רבי זכאי לרבי ינאי איכא בינייהו טרפה חיה מר סבר טרפה חיה ומר סבר טרפה אינה חיה

The difference between the opinion of Rabbi Zakkai and that of Rabbi Yannai is whether a tereifa [can survive beyond twelve months]. One sage, [Rabbi Yannai,] holds that a tereifah can survive [beyond twelve months. Therefore, although one whose legs were removed until above the knee has the status of a tereifa, if a woman discharges a fetus of this form she is impure. Only if the fetus lacks legs until his orifices is the woman pure, as such a person cannot survive.] And one sage, [Rabbi Zakkai], holds that a tereifah cannot survive [beyond twelve months]. …

Treifah Animals

We have previously met the concept of treifah when we studied Chullin and the laws of rural slaughter called shechitah. Here is a reminder, from the start of the third chapter of Chullin (42a) where we took a deep dive into animal anatomy.

Treif machinery.jpeg

אלו טרפות בבהמה נקובת הוושט ופסוקת הגרגרת ניקב קרום של מוח ניקב הלב לבית חללו נשברה השדרה ונפסק החוט שלה ניטל הכבד ולא נשתייר הימנו כלום הריאה שניקבה או שחסרה ר"ש אומר עד שתינקב לבית הסמפונות ניקבה הקבה ניקבה המרה ניקבו הדקין הכרס הפנימית שניקבה או שנקרע רוב החיצונה רבי יהודה אומר הגדולה טפח והקטנה ברובה המסס ובית הכוסות שניקבו לחוץ נפלה מן הגג נשתברו רוב צלעותיה ודרוסת הזאב רבי יהודה אומר דרוסת הזאב בדקה ודרוסת ארי בגסה דרוסת הנץ בעוף הדק ודרוסת הגס בעוף הגס זה הכלל כל שאין כמוה חיה טרפה

These wounds constitute tereifot in an animal,rendering them prohibited for consumption:

1. A perforated esophagus, where the perforation goes through the wall , 

2. or a cut trachea.

3. If the membrane of the brain was perforated, 

4. or if the heart was perforated to its chamber; 

5. if the spinal column was broken and its cord was cut; 

6. if the liver was removed and nothing remained of it…

7. a lung that was perforated

8. or a lung missing a piece….

9. If the abomasum was perforated

10. or the gallbladder was perforated, 

11. or the small intestines were perforated, it is a tereifa…

This is the principle: Any animal that was injured such that an animal in a similar condition could not live for an extended period is a treifa, the consumption of which is forbidden by Torah law. 

The original meaning of the term treif in the Torah is torn, and it describes a domestic animal that was attacked by a wild animal and suffered an injury that led to its death.

וְאַנְשֵׁי־קֹ֖דֶשׁ תִּהְי֣וּן לִ֑י וּבָשָׂ֨ר בַּשָּׂדֶ֤ה טְרֵפָה֙ לֹ֣א תֹאכֵ֔לוּ לַכֶּ֖לֶב תַּשְׁלִכ֥וּן אֹתֽוֹ׃
You will be holy people to Me: you must not eat flesh torn by beasts in the field; you shall cast it to the dogs.
— Exodus 22:30

But the rabbis of the Talmud greatly expanded this category - hence the list in this Mishnah in Chullin. Elsewhere in Chullin (57b) there is a dispute as to the prognosis of living animal that has been declared treif. According to Rav Hunna, if an animal is treif, by definition it cannot live for longer than a year (אמר רב הונא סימן לטרפה י"ב חדש). But there are other opinions. The great editor of the Mishnah, Rabbi Yehudah HaNassi held that a treifa is destined to die within 30 days, while a berasia states that a treif animal cannot give birth (leaving open the question about male animals).

“Jason Marcus, chef and owner of the new Traif restaurant on S. Fourth Street in Williamsburg, says the name is just cheeky, not a slap at his mostly Kosher eaters.”

“But [the name] really represents our philosophical view of how restaurants should be free of rules. We’re just people who live for good food.”

It is generally agreed upon that list in Chullin detailed the kinds of lesions that would be fatal within a year. And that’s when the problems begin. Some of them are certainly likely to be fatal. For example a perforated esophagus (נקובת הוושט) leads to mediastinitis, an inflammation of the chest cavity. And that is commonly fatal. If the animal swallows something sharp it can pierce not only the esophagus, but the membranes that surround the heart, called the pericardium. Way back in 1955 - at the start of the era of antibiotics - The Australian Veterinary Journal published a case series of twenty-one dairy cows that developed traumatic pericarditis. “Fifteen cases were treated with sulphonamide [an antibiotic] and six were not. ” The six animals untreated cows all died, and even among the cows treated with antibiotics, almost half died. So yes, some lesions recorded in the Mishanh (and later refined in the talmudic discussion which follows) are indeed fatal.

The Case of Serachot

But other lesions that render an animal treif are certainly not fatal. Take for example lung adhesions, called סרחות (serachot, or sircha in the singular), which are discussed elsewhere in the tractate Chullin (46b et. seq). These adhesions are fibrous tissues that may run between different lung lobes, or between the lungs and the rib cage. They are common and are caused by a number of conditions, including trauma or previous infections. Many kinds of serichot render an animal treif. But lung adhesions are certainly not lethal. Animals and humans live quite happily with them. In fact this doctor recently told me that the presence of lung adhesions does not prevent lungs from being donated and used for a lung transplant. Now, if they are used in that delicate situation, they most certainly do not have a fatal defect, or anything even close.

the case of the missing liver (and the missing heart)

Opening paragraph of the famous responsa on “the chicken that had no heart”. From שו׳ת חכם צבי, Amsterdam 1712.

Opening paragraph of the famous responsa on “the chicken that had no heart”. From שו׳ת חכם צבי, Amsterdam 1712.

Equally puzzling to the modern reader is the sixth category in the Mishna’s list: ניטל הכבד ולא נשתייר הימנו כלום - if the slaughtered animal was found to have no liver. Here’s the thing: an animal cannot live without a liver. If a healthy looking cow - or indeed any cow -was well enough to be slaughtered, it must have had a liver. So this is not an example of a treif animal - it’s an example of one that could not possibly have existed. But don’t take my word for it.

In 1709 the great rabbi of Hamburg, Zevi Ashkenazi, (better known as the Chacham Zevi, after the name of his responsa) was asked the following question. A young woman had opened a slaughtered chicken to remove the unwanted entrails, while her cat sat at her feet “waiting patiently for anything that may fall to the ground.” To her great surprise, the young woman found that the chicken did not have a heart, and so assumed the bird was treif. Not so, claimed her mother, who apparently owned the chicken. The cat must have eaten it, when it was thrown to the ground together with the entrails. The young women was however quite adamant, and insisted she had never fed anything that resembled a heart to the cat. The bird had been perfectly healthy before it was slaughtered, eating and drinking like any other healthy chicken, (וגם בעודנה בחיים חיותה היתה חזקה ובריאה ובכל כחה לאכול ולשתות). The question of the kashrut of the bird was brought to the local rabbis, who declared it to be treif, on the basis that while alive, it had no heart.

The Chacham Zevi was asked to weigh in on the matter. “It is absolutely clear to any person who has a wise heart” he wrote, apparently enjoying the play on words, “or who has a brain in his skull, that it is impossible for any creature to live for even a moment without a heart…Clearly, the heart fell out when the bird was opened, and that cat ate it…It is obvious that the chicken is permitted” Strike one for common sense. You would think. But not so fast. This answer of the Chacham Zevi engendered one of the great halachic disputes of the eighteenth century. In one corner, the Chacham, and in the other at least four leading rabbinic figures who vehemently opposed this ruling: Naphtali Katz of Frankfurt, Moses Rothenburg, David Oppenheim (who was the Chief Rabbi of Prague, no less) and Jonathan Eyebeschuetz (who spent much of his later life fighting halachic battles against Rabbi Yaakov Emden, who was the son of the Chacham Zevi). It got nasty, but that’s a story for another day.

Halachic Reality

No bird or animal can live without a heart, and none can do so without a liver. So there can be no case, like the one in the Mishnah, in which a healthy living animal was slaughtered and found to be without a liver.

Some of the categories of treifot overlap with conditions that are indeed incompatible with life. Others are perfectly innocuous and compatible with a long and healthy life. And a few make no sense given what we know about animal physiology. But none should be thought of as describing an anatomical reality. They describe instead a halachic reality, a reality that reflected a world some 1,500 years ago. And while our understanding of physiology has changed, these halachic classes remain a fixed part of Jewish tradition. Here is the great Maimonides, who was obviously troubled by the chasm that sometimes exists between halacha and facts.

רמב’ם משנה תורה הלכות שחיטה י, יג וְכֵן אֵלּוּ שֶׁמָּנוּ וְאָמְרוּ שֶׁהֵן טְרֵפָה אַף עַל פִּי שֶׁיֵּרָאֶה בְּדַרְכֵי הָרְפוּאָה שֶׁבְּיָדֵינוּ שֶׁמִּקְצָתָן אֵינָן מְמִיתִין וְאֶפְשָׁר שֶׁתִּחְיֶה מֵהֶן אֵין לְךָ אֶלָּא מַה שֶּׁמָּנוּ חֲכָמִים שֶׁנֶּאֱמַר (דברים יז יא)"עַל פִּי הַתּוֹרָה אֲשֶׁר יוֹרוּךָ

Each one of these lesions that were declared treif remain so even if modern medicine can demonstrate that some of them are not actually fatal, and that it is indeed possible to live despite them. Rather we must follow these rabbinic categories, as the Torah states“ You shall act in accordance with the instructions given you and the ruling handed down to you; [you must not deviate from the verdict that they announce to you either to the right or to the left.]

In more recent times, Rabbi Avrohom Yeshaya Karelitz, better known as the Chazon Ish, also addressed this question. “We see today” he wrote, “that very often surgeons operate on the abdomen of a person [with an injury like one found in a treif animal], and he is completely cured, and lives a long life.” But this does nothing to change the way we view the categories of treif. These depend solely on what was decided by the rabbis of the Talmud, and no modern findings can change them.

[Repost from here.]

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