We are beginning the eighth chapter of Tractate Bechoros, and its subject is a completely new topic: a human firstborn, the firstborn son of a Jew. This firstborn involves two distinct matters:
A firstborn to the kohen: The obligation of redeeming the son. Just as we dealt with the redemption of a peter chamor and a firstborn kosher animal, so too we will now deal with a peter rechem in a human: the first child born to a Jewish mother, if it is a male, requires redemption with five selaim given to a kohen, and through this the baby is redeemed. A son who was not redeemed - there are no restrictions that take effect on him, but there is a mitzvah to perform the redemption.
A firstborn for inheritance: The right of the firstborn son to a double portion in the inheritance. A man who has three sons, for example, his estate is divided into four parts (three plus one). The firstborn takes two of them, and each of the other brothers takes one part - meaning that the firstborn receives twice as much as each of his brothers.
The roots of the mitzvah of redeeming the son are embedded in the Plague of the Firstborn in Egypt. Initially, the Jewish firstborns were the ones who performed the service, like the work of the kohanim. After the sin of the Golden Calf, the service was transferred to the kohanim, and the firstborn males who are not kohanim were exempted from it and replaced by the kohanim - and from here stems the obligation of redeeming the son.
The difference between the two matters:
The two topics are not related to each other whatsoever. "A firstborn to the kohen" refers to the firstborn of the woman - her first child, the peter rechem, which opens her womb. "A firstborn for inheritance" refers specifically to the firstborn of the man, and not of the woman. Therefore, if a man has two wives, the first child born to him is a firstborn for inheritance, whereas the firstborn of the second wife is not a firstborn for inheritance; however, regarding a firstborn to the kohen, there is potential with each of the wives: if the first child she gives birth to is a son, he must be redeemed, and the same applies to the second wife.
"Reishis ono" - the basis of a firstborn for inheritance:
The verse in the book of Devarim deals with a man who has two wives and prefers one over the other, and it establishes that he is not permitted to prefer the son of the beloved wife if the firstborn is the son of the hated wife: "But he shall acknowledge the firstborn, the son of the hated, by giving him a double portion, for he is the first of his strength; the right of the firstborn is his". If his firstborn is born to a wife who is not beloved to him, that child takes a double portion, "for he is the first of his strength (reishis ono)" - the beginning of his power and might, "the right of the firstborn is his" - he has the law of the firstborn.
The expression "reishis ono", which refers to the first child born to him, is a puzzling choice of words. Because of this, the Sages expound the word "ono" as also related to the word onen, a person who is in a state of aninus and is mourning for a relative who passed away. The meaning of the exposition: In order for the child to be fit for the law of a firstborn for inheritance and to take a double portion, he must be of the type of children that the father would mourn over - the first child that the father would mourn over, which in a normal situation is the very first child.
But suppose that the first child that this woman gave birth to was a stillborn. The Sages assess that a father does not mourn over a stillborn as someone who lost a child, and therefore the second child she gives birth to - the first one who is viable - will be a firstborn for inheritance and will take a double portion, even though he is not a firstborn to the kohen and does not require redemption, since the stillborn that preceded him is what opened her womb.
The simple cases are self-understood:
A son who is a firstborn to his father only, and the mother had a previous child: He takes a double portion and does not require redemption of the son.
A son who is a firstborn to his mother only, such as when the father has two wives: He requires redemption of the son and does not take a double portion.
A son who is a firstborn to both of his parents: He takes a double portion and requires redemption of the son.
A son who is not a firstborn to either of them: Neither of these apply to him.
However, the Mishnah does not discuss the simple cases, but rather jumps immediately into the deep water and brings unusual and atypical cases, which illustrate the halachos and the exemptions in both matters at once: who is entitled to a double portion in the inheritance, and who is obligated in the redemption of the son.
The language of the Mishnah:
"Yesh bechor lenachalah ve'eino bechor lakohen" - There is a son who is entitled to a double portion of the inheritance but is not obligated in pidyon haben.
"Bechor lakohen ve'eino bechor lenachalah" - And there is a son who is obligated in pidyon haben but is not entitled to a double portion.
"Bechor lenachalah ulkohen" - And there is a son who is entitled to a double portion and is also obligated in pidyon haben.
"Veyesh eino bechor lenachalah velo lakohen" - And there is a son who is not entitled to a double portion and is also not obligated in pidyon haben.
"Eizehu bechor lenachalah ve'eino bechor lakohen?" - Which is a firstborn for inheritance but not a firstborn for the kohen?
"Haba achar hanephalim sheyatza rosho chai" - A woman who gave birth to twins: The first, let us call him Reuven, brought his head out into the world and then drew it back in. He is a full-term, nine-month fetus, fully developed, but he was stillborn, and when his head emerged he was already dead. This is considered a peter rechem, since he opened the womb, but the father did not place his hopes in him and he is not the beginning of his strength. Therefore Shimon, who emerges after him, is the beginning of his strength, as the father views him as his first child, and he takes a double portion; and since he did not emerge first physically and did not open the womb, he is not a peter rechem and is not obligated in pidyon haben.
"Hamapeles sandal" - There were two fetuses in the womb, and one of them was crushed and did not survive, and this is the sandal. Its emergence is considered like the birth of a child and it is a peter rechem, but the father does not place his hopes in it and it is not the beginning of his strength.
"O shilya" - The amniotic sac, the structure that holds the baby in the body. The Sages said: There is no placenta without a fetus - if an amniotic sac and placenta developed, there was definitely a baby there. Therefore, even though no baby was seen and no fetus could be found, it is considered as though a child emerged and this is a peter rechem, and the one coming after it is exempt from pidyon haben, but it is certainly the beginning of his strength and he takes a double portion in the inheritance.
"Shafir merukam" - Shafir refers to a membrane that has something inside it, similar to the word shofar which has a casing and a hollow in its center, and like the 'shofar of an egg' taught in the Mishnah in Tractate Shabbos, which is like the shell of an egg. Merukam - that it began to take form, that flesh is developing inside the membrane. This is a fetus that did not survive, but it was past forty days from conception, and therefore it is considered a peter rechem; and even though the father has no emotional connection to it and it is not the beginning of his strength, the child that comes after it is the one entitled to a double portion.
Hayozei mechutach - A fetus that emerged with its limbs detached. It too is considered a peter rechem and is the first to open the womb, and therefore the child that comes after it does not require pidyon haben.
And the summary of these is: "Vehaba achareihem - bechor lenachalah ve'eino bechor lakohen". The second child is the beginning of his strength and takes a double portion, but the laws of pidyon haben do not apply to him.
A woman who miscarries a fetus that does not have human form:
A woman who miscarried, and what emerged from her bears no resemblance to a human, but rather looks like a species of animal or bird. The Tanna'im disagreed about this matter:
Rabbi Meir: This is considered a peter rechem. The very fact that it looks like this is enough for it to be considered a first emergence from the womb. His reasoning is that the verse used the term yetzirah (formation) regarding the formation of a fetus, and the Torah used that same term of formation in the Book of Genesis regarding those large creatures; therefore, he understands that their formation is close enough to that of a human, and this is considered a firstborn to exempt the one coming after it.
The Sages, and so is the halachah: It must have some resemblance to a human, even just part of its face, to be considered a human. If it has no resemblance to a human and looks like another creature, this is not a human birth and it is not considered a peter rechem.
One who did not have sons and married a woman who had already given birth:
A man who had no children and married a woman who had a child previously. The son born to them is a firstborn to his father and takes a double portion, and is not a firstborn for the kohen, since he is not his mother's first child and is not a peter rechem. The Mishnah introduces a novel concept: This is the law even if she gave birth to her first child while she was a Canaanite maidservant and was not Jewish at the time, and was later freed and married, or if she was a non-Jew when she gave birth to her first child and afterward converted, and when she became fully Jewish she married and bore him her second biological child. Even in such a case, the law remains the same: he is a firstborn for inheritance and is not a firstborn for the kohen.
The novelty in this matter is rooted in the fundamental rule that a convert is 'kekatan shenolad dami' - like a newly born child. According to this, there would be room to say that everything that happened prior to the conversion is not considered at all, since it is a completely new beginning, and thus the child born to her now, her second biological child, is her first birth as a Jewish woman, and he is the halachic peter rechem obligated in pidyon haben.
And indeed, this is the view of one of the Tanna'im: "Rabbi Yosei HaGelili omer: bechor lenachalah ulkohen" - Not only does the child take a double portion in the inheritance, but he is her first child as a Jewish woman and requires pidyon haben. His reasoning is that it is stated 'peter rechem beyisrael' (that opens the womb among the Children of Israel) - until it opens a womb among the Jewish people, and what happened before she became Jewish is not considered; and now that she is Jewish, this is the definitive opening.
It is worth noting an important side point: there is no verse in the Torah with the exact wording "peter rechem beyisrael" (the first issue of the womb in Israel). There are two other verses that are very similar: "peter kol rechem bivnei yisrael" and "peter rechem mibnei yisrael"; and Rabbi Yosi HaGelili encapsulates the point, that the main thing is that it is the first issue of the womb in Israel, the first birth as a Jewish mother, and whatever preceded it does not count.
The halachah does not follow his view. However, the Sages also agree with the principle that a convert is like a newborn child; but in their opinion, the very wording of the verse, which requires the first issue of the womb in Israel, is the novel teaching: if the first opening of her womb occurred when she was not part of Israel, she is exempt from then on forever. Thus, they too concede the concept that a convert is like a newborn child, but the verse teaches us that her second biological child does not count regarding pidyon haben.
"Eizehu bechor lachohen ve'eino bechor lenachalah?" - Which is a firstborn for the kohen but not a firstborn for inheritance?
"Mi shehayah lo banim venasa ishah shelo yaldah" - A man who already had sons, and married a woman who had never given birth before. The father's firstborn is from elsewhere, and therefore the mother's first child is obligated in pidyon haben but does not take a double portion.
"Nitgayerah keshehi me'uberet" - The couple were not Jewish when she became pregnant, and now she converted, and when the child is born he is Jewish. The novel point is: since at the time of birth she was Jewish, and this is the first issue of her womb and her first child, he is certainly obligated in the mitzvah of pidyon haben.
The rule is that an offspring conceived when the father is not yet Jewish is called "horato shelo bikdushah" - conceived not in a state of holiness, as the husband is not Jewish. In this situation, the father is not related to the son and there is no halachic connection between them, and therefore the son does not inherit his father. Even if the father subsequently converted and also became Jewish, that child who was conceived before he became Jewish is not entitled to inheritance at all - not to a double portion, which our Mishnah discusses, and not even to a regular portion.
From here arises the question: who is obligated to redeem the son in this case, where the woman and the man were not Jewish at the time of conception and were Jewish at the time of birth? The father is exempt, as he is not related to his son and there is no halachic connection between them, and this is not his son from a halachic standpoint. The mother is also exempt, as the mitzvah does not apply to a woman and she has no obligation to pay five sela'im to the kohen. The result is that the child himself, when he reaches the age of bar mitzvah, will redeem himself.
Another example of a case that involves an obligation for pidyon haben but no entitlement to a double portion: two babies who were switched at birth. There are two couples: one is a Yisrael and his wife, whose child is obligated in pidyon haben; whereas the second woman who gave birth alongside her is one of these:
Kohenet: She is the daughter of a kohen, or her husband is a kohen, and therefore her child does not require pidyon haben.
Leviyah: She is the daughter of a levi, or is married to a levi, and therefore her child is exempt from pidyon haben.
A woman who already gave birth: She had a child previously, and this is her second child, and therefore he is exempt from pidyon haben.
In all these cases, once the two babies were mixed up, neither of the children can come with a claim to the father or to the brothers and demand an inheritance, as he cannot prove that he is his son, and the burden of proof is on the one who seeks to extract property from his fellow. The burden of proof rests on them and they cannot bring it, and therefore they are entitled to nothing - not to a double portion and not even to a regular portion. But regarding pidyon haben, although the Yisrael father does not know which of the two children is his son, he knows that one of them is his son and that son requires redemption; therefore he will give five sela'im to the kohen and say: Whichever of the two sons is mine - that one I wish to redeem.
Another such case: a woman whose marriage ended, whether her husband divorced her or died, whom halachah requires to wait three months before remarrying, so that we will know with certainty to whom the child that is born belongs. This woman did not wait but remarried immediately, and nine months after the death or divorce of her first husband she had a child. We do not know if he was born at nine months and it is a regular birth from the first husband, or perhaps he is the son of the new, second husband and was born prematurely at seven months. Because of this, that child cannot claim an inheritance from either of the two men, as it is not known who his father is; but since it is clear that this is a first issue of the womb, the first child of this woman, he is obligated in pidyon haben.
All these cases are included in one rule: an obligation for pidyon haben - yes; an entitlement to inheritance and a double portion - no.
"Eizehu bechor lenachalah velachohen?" - Which is a firstborn for inheritance and for the kohen?
The base case is the standard and familiar one: a man and woman marry and their first child is born, and if it is a male - he requires pidyon haben and is the firstborn for inheritance. However, our Mishnah teaches that there are things that may have occurred beforehand which one might think exempt him, but they do not exempt him: various types of miscarriages, which are not considered a peter rechem.
It must be clarified: "Peter rechem," whose literal meaning is the opening of the womb, is not a simple mechanical opening. A woman who menstruates monthly, or who has had a device inserted into her womb, as well as an opening of the womb from below such as the opening of the cervix - these do not constitute a peter rechem. It is necessary that she give birth to an offspring of some kind, even if it is not viable, and this will be called a peter rechem. Our Mishnah lists things that a woman might miscarry, which are not considered the first emergence of an offspring that is considered a peter rechem:
"Hamapeles shafir malei dam, malei mayim, malei geninim" - a shafir is a membrane that holds something inside it, similar to the word shofar and the 'shofar of an egg' which is like an eggshell: an outer covering with something inside. We learned earlier that it must be merukam (formed), taking shape, connecting, and coalescing into a fetus; but here this is not the case: the sac is filled only with blood, like a sack of blood, or filled with water, which is a clear liquid, or filled with geninim - a multicolored substance, pieces and fragments of mixed tissue in different colors; and another explanation: thin shreds of tissue, long and thin worm-like pieces. In both explanations, there is no developing fetus here, and it does not count, but rather it is like a blood clot or something similar.
"O hamapeles kemin dagim vachagavim, shekatzim uramashim" - something emerged from her that bears no resemblance to a human. Earlier we learned that it does not count unless it has some resemblance to a human, and Rabbi Meir holds that something appearing like an animal counts; however, here even Rabbi Meir concedes that it does not count, for a technical reason: the verse uses the term "yetzirah" (formation), a sort of coming into being, regarding those more developed creatures, and not regarding these lesser swarming and creeping things and fishes, which are small and simple creatures like worms, fish, and the like. Therefore, these do not count according to everyone.
"Hamapeles yom arba'im" - a woman who miscarried on the fortieth day from conception, or earlier on the thirty-ninth day and the like, this is not considered a peter rechem.
It is worth noting: From a halachic perspective, we count from the day of conception, whereas women who measure the duration of their pregnancy today count from their last menstruation, and the difference between the two is about two weeks.
Therefore, "Vehaba achareihem - bechor lenachalah ulkohen" - when a healthy baby is born to the woman afterwards, he is a firstborn for both matters alike. He is the first of his father's strength, since the father does not mourn the loss of a non-viable miscarried fetus whereas he does mourn for this child, and therefore he takes a double portion; and he is also the first to be considered a peter rechem that opened the womb, and therefore requires pidyon haben.
In summary: In this chapter we learned about the two separate matters regarding a human firstborn: a firstborn for the kohen - the opening of the mother's womb, who requires redemption with five selas; and a firstborn for inheritance - the first of the father's strength, who takes a double portion. We discussed the four possibilities listed by the Mishnah and the exceptional cases in each of them: one born after miscarried fetuses, a sandal, an afterbirth, a formed shafir and one that emerges in pieces, as well as one who married a woman who already gave birth while a maidservant or a gentile - is a firstborn for inheritance but not a firstborn for the kohen; one who had sons and married a woman who had not given birth, one who converted while pregnant, babies that were mixed up, and a woman who did not wait three months - is a firstborn for the kohen and not a firstborn for inheritance; whereas a woman who miscarries a sac full of blood, water or geninim, something like fishes and grasshoppers, swarming and creeping things, or one who miscarries on the fortieth day - the one coming after them is a firstborn for inheritance and for the kohen.