Question:Regarding yemei tumah following a miscarriage are the 40 days counted from the last tevila? And therefore, if there were less than 40 days between the tevila and the miscarriage can she be tovel immediately upon completion of shivoh nekiyim even if this is within 14 days of the miscarriage? Introduction: A miscarriage that occurs after 40 days from conception is from a Halachic perspective classified a leidah (birth) and consequently is subject to the same halochos of tumah that govern a birth; namely, that following the birth of a male there are 7 days of tumah, which irrespective of bleeding render the lady a niddah min hatorah and following the birth of a female there are 14 days of tumah which irrespective of bleeding render the lady a niddah min hatorah. These days of tumas yoledes are clearly set out by the Torah in the beginning of Parshas Tazria, and a yoledes cannot tovel until after the yemei tumah. Were she to be tovel during the yemei tumah the tevila is not valid and needs to be repeated after the yemei tumah. In a situation where it is not possible to discern if the foetus was male or female one must observe the yemei tumah of a female (i.e. 14 days) because the foetus may have been female. The status of yoledes and the dinim of yemei tumah are only applicable following a 40-day gestation. A miscarriage within 40 days of conception does not have the Halachic status of a birth, subsequently there are no yemei tumah following such a miscarriage, although she will be rendered a niddah and there will be regular shivoh nekiyim as per every niddah (Shulchan Aruch Siman 194 Se’if 2). Yemei tumah are particularly relevant following an early miscarriage (after 40 days since conception), where it may be possible to complete shivoh nekiyim within 14 days of the miscarriage. In such a situation, one cannot be tovel within 14 days of the miscarriage, and if one would be tovel within these 14 days the tevila is ineffective, the lady remains a niddoh min hatorah and needs to return and be tovel after 14 days following the miscarriage. Discussion: It appears from Rashi (Niddoh 30a) that the 40 days of gestation are calculated from the previous tevila, and that one does not need to be concerned that the lady was pregnant prior to the last tevila. The logic behind this is that a pregnant lady is not expected to menstruate; therefore, the last opportunity that she could have become pregnant is after the most recent tevila, and the 40 days are calculated from this. Many other Poskim (Kreisi u’Pleisi, Noda Biyehuda, Sidrei Tahara, Chavos Da’as and Chasam Sofer all quoted in the Pischei Teshuva ibid) write that since it is clear in the Gemoro and Shulchan Aruch (Siman 189 Se’if 34) that a lady is not considered mesulekes until she reaches the stage of “hukar uboroh” (three months of pregnancy), it is clear that a pregnant lady (in the first few months of pregnancy) is expected to menstruate. Consequently, she may have menstruated after becoming pregnant and we certainly cannot assume that the last opportunity that she could have become pregnant is after the most recent tevila. Rav Wosner in Shi’urei Shevet Halevi (Siman 194) quotes the aforementioned opinions and writes that nowadays where the norm is that regular menstruation does not occur during the first three months of pregnancy, if a lady experienced regular menstruation she does not have to be choshesh that she is pregnant and can therefore count the 40 days from the tevila. However, if she only saw a kesem or slight bleeding she cannot count the 40 days from the last tevila (because she could already be pregnant). Conclusion: For a miscarriage to have the status of a birth there needs to have elapsed 40 days since conception. There is a machlokes among the Poskim if it is possible to calculate the 40 days from the last tevila (based on the assumption that a pregnant lady will not menstruate) or if one has to be choshesh that the lady was already pregnant prior to the previous tevila. The conclusion of Rav Wosner is that nowadays where the norm is that regular menstruation does not occur during the first three months of pregnancy, if a lady experienced regular menstruation she does not have to be choshesh that she is pregnant and can count the 40 days from the tevila. However, if she only saw a kesem or slight bleeding she cannot count the 40 days from the last tevila (because she could already be pregnant). |
Niddoh
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