Question:
Does one need to calculate vestos from an early 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 (which is common after a miscarriage) one must observe the yemei tumah of a female (i.e. 14 days) because of the possibility that the foetus was female.
The Shulchan Aruch (Yoreh De’ah Siman 194 Se’if 2) rules that a lady who miscarries within 40 days [of conception] can be certain that the miscarried pregnancy does not have the Halachic status of an embryo. Therefore, there is no status of yoledes following this miscarriage and the lady is not mandated to wait 14 days of yemei tumah before tevila.
However, the Shulchan Aruch continues and rules that this lady is rendered a niddah even if she did not experience any bleeding. The Remo (ibid) explains that the miscarriage will inevitably render her a niddah because “it is impossible for the uterus to open (pesichas hakever) without inevitable uterine bleeding”.
This means that if any solid mass is expelled from the uterus, even if no bleeding is apparent, we assume that there was some unnoticed uterine bleeding, and the lady is subsequently a niddah. The Shulchan Aruch (Siman 186 Se’if 3) rules that the size of expelled matter that will cause “pesichas hakever” is the size of “a very thin reed”. It is clearly assumed that even an early miscarriage (i.e. within 40 days of conception) will cause the uterus to open to the extent where there will inevitably be uterine bleeding as a result of the opening.
Discussion: Having established that the status of a lady following an early miscarriage [i.e. within 40 days of conception] is that of a niddah and not a yoledes we now need to determine if there is any requirement to calculate vestos from the miscarriage itself:
Do we say that since a miscarriage within 40 days of conception does not have the Halachic status of a birth, we revert to the default position of calculating vestos from menstrual bleeding, or do we differentiate and say that since this uterine bleeding was clearly “induced” by the miscarriage it is illogical to calculate vestos from this uterine bleeding?
Rav Wosner in Shi’urei Shevet Halevi (Page 378) writes that a miscarriage that occurs within 40 days of conception is not subject to vestos, provided that the pregnancy was confirmed. A delayed period cannot be assumed to mean that there was previously a pregnancy and regular vestos should therefore be observed from this bleeding.
Conclusion: A miscarriage that occurs within 40 days of conception is not subject to vestos, provided that the pregnancy was confirmed. A delayed period cannot be assumed to mean that there was previously a pregnancy and regular vestos should therefore be observed from this period. |
