Talmudology on the Parsha, Vayishlach: Maternal Mortality

35:18 בראשית

In this week’s Torah there is a moving account of the postpartum death of Rachel.

וַיְהִ֥י בְהַקְשֹׁתָ֖הּ בְּלִדְתָּ֑הּ וַתֹּ֨אמֶר לָ֤הּ הַמְיַלֶּ֙דֶת֙ אַל־תִּ֣ירְאִ֔י כִּֽי־גַם־זֶ֥ה לָ֖ךְ בֵּֽן׃ וַיְהִ֞י בְּצֵ֤את נַפְשָׁהּ֙ כִּ֣י מֵ֔תָה וַתִּקְרָ֥א שְׁמ֖וֹ בֶּן־אוֹנִ֑י וְאָבִ֖יו קָֽרָא־ל֥וֹ בִנְיָמִֽין׃ וַתָּ֖מת רָחֵ֑ל וַתִּקָּבֵר֙ בְּדֶ֣רֶךְ אֶפְרָ֔תָה הִ֖וא בֵּ֥ית לָֽחֶם׃ וַיַּצֵּ֧ב יַעֲקֹ֛ב מַצֵּבָ֖ה עַל־קְבֻרָתָ֑הּ הִ֛וא מַצֶּ֥בֶת קְבֻֽרַת־רָחֵ֖ל עַד־הַיּֽוֹם׃

And it came to pass, when she was in hard labour, that the midwife said to her, Fear not; thou shalt have this son also.And as her soul was departing (for she died), she called his name Ben-oni: but his father called him Binyamin. And Rachel died, and was buried in the way to Efrat, which is Bethlehem.

Rachel died shortly after giving birth. In this, she was unique among the Four Mothers of the Jewish people. But even relatively recently, her death would certainly not have been unusual or unexpected.

MATERNAL DEATH RATES

Maternal deaths are defined as by the World Health Organization as the death of a woman whilst pregnant or within 42 days of delivery or termination of pregnancy, from any cause related to, or aggravated by pregnancy or its management, but excluding deaths from incidental or accidental causes. Worldwide, there are at least 287,000 such deaths each year. A recent study of maternal deaths in 115 countries noted that there are three main causes: Bleeding, high blood pressure (leading to complications like eclampsia) and infection.  Here in the US, maternal deaths are among the highest in the developed world. Each year, 700-900 women die from pregnancy or childbirth-related causes, or about 14 per 100,000 live births. By comparison, the rate in Israel is 5 deaths per 100,000 live births.

Semmelweiss and Dirty Hands

Tragic as each of these deaths are, it was once a lot worse, and in the nineteenth century doctors played a major role in causing maternal deaths.  In Vienna, Dr. Ignaz Semmelweiss (d. 1865) noted that the death rates in one maternity ward were three or four times higher than in a second ward. He suggested, after much sleuthing, that the cause was the dirty hands of medical students. These students came straight from performing autopsies to examining their pregnant and post-partum patients, with no hand washing in between. In an era before the germ theory of disease, his suggestion that something was carried on the hands of the medical students was widely ignored, but he instituted compulsory hand-washing anyway. And within a year the death rate dropped to zero.

From here.

Over the past century the maternal death rate in the US has declined by over 99%,That is the good news. But the US maternal death rate has actually been increasing over the last few years. In 2018 it was 17.4/100,000 births. In 2020 it had climbed to an astonishing 23.8/100,000 births, and is over twice that in Black mothers.

Maternal Mortality in High Income Countries. Deaths per 100,000 live births

The maternal mortality ratio is defined by the World Health Organization as the death of a woman while pregnant or within 42 days of termination of pregnancy, irrespective of the duration and site of the pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes. 2015 data for FRA; 2017 data for UK; 2018 data for NZ; 2019 data for SWIZ; 2020 data for AUS, CAN, GER, JAP, KOR, NETH, NOR, SWE, and US.

Data for all countries except US from OECD Health Statistics 2022. Data for US from Donna L. Hoyert, Maternal Mortality Rates in the United States, 2020 (National Center for Health Statistics, Feb. 2022).

Source: Munira Z. Gunja, Evan D. Gumas, and Reginald D. Williams II, “The U.S. Maternal Mortality Crisis Continues to Worsen: An International Comparison,” To the Point (blog), Commonwealth Fund, Dec. 1, 2022. https://doi.org/10.26099/8vem-fc65.

The racial disparities are startling.

From Fleszar LG, Bryant AS, Johnson CO, et al. Trends in State-Level Maternal Mortality by Racial and Ethnic Group in the United States. JAMA. 2023;330(1):52–61. doi:10.1001/jama.2023.9043

This week’s parsha is a reminder of the risks that are associated with childbirth, and how fortunate we are to have reduced them substantially. But there is still much more work to do.

אַחֵינוּ כָּל בֵּית יִשְׂרָאֵל

הַנְּתוּנִים בַּצָּרָה וּבַשִּׁבְיָה

הָעוֹמְדִים בֵּין בַּיָּם וּבֵין בַּיַּבָּשָׁה

הַמָּקוֹם יְרַחֵם עֲלֵיהֶם

וְיוֹצִיאֵם מִצָּרָה לִרְוָחָה

וּמֵאֲפֵלָה לְאוֹרָה

וּמִשִּׁעְבּוּד לִגְאֻלָּה

הָשָׁתָא בַּעֲגָלָא וּבִזְמַן קָרִיב

Bava Kamma 27 ~ Bizarre Talmudic Scenarios

On this page of Talmud we read of a very bizarre case:

בבא קמא כז, א

 אָמַר רַבָּה: נָפַל מִן הַגָּג וְנִתְקַע — חַיָּיב בְּאַרְבָּעָה דְּבָרִים, וּבִיבִמְתּוֹ לֹא קָנָה. בְּנֵזֶק, בְּצַעַר, בְּשֶׁבֶת, בְּרִפּוּי. אֲבָל בּוֹשֶׁת לָא מִיחַיַּיב, דְּאָמַר מָר: אֵין חַיָּיב עַל הַבּוֹשֶׁת עַד שֶׁיִּתְכַּוֵּון

Rabba said: One who fell from a roof and was inserted into a woman due to the force of his fall is liable to pay four of the five types of indemnity that must be paid by one who damaged another, and if she is his yevama he has not acquired her in this manner. He is liable to pay for injury, pain, loss of livelihood, and medical costs. However, he is not liable to pay for the shame he caused her, as the Master said: One is not liable to pay for shame unless he intends to humiliate his victim…

As weird Talmudic cases go, this is among the weirdest. It is entirely impossible, and not least because this would happen. Did the rabbis of the Talmud really believe that such a case could occur? To answer this, let’s consider come other rather implausible cases from across the Babylonian Talmud.

 The AMAZING Shechita Knife

We begin with a fanciful question that is somewhat analogous to falling intercourse case. What happens if a person throws a knife across the room, but in doing so the flying knife somehow manages to cut the neck of an animal in just the correct fashion to perform a kosher shechita (ritual slaughter). Is the meat of this slaughtered animal kosher?

חולין לא, א

דתני אושעיא זעירא דמן חבריא זרק סכין לנועצה בכותל והלכה ושחטה כדרכה ר' נתן מכשיר וחכמים פוסלים הוא תני לה והוא אמר לה הלכה כר' נתן

Oshaya, the youngest of the company of Sages, taught a baraita: If one threw a knife to embed it in the wall and in the course of its flight the knife went and slaughtered an animal in its proper manner, Rabbi Natan deems the slaughter valid and the Rabbis deem the slaughter not valid. Oshaya teaches the baraita and he says about it: The halakha is in accordance with the opinion of Rabbi Natan that there is no need for intent to perform a valid act of slaughter.

 The Fish That Pulled a Plough

The Bible (Deuteronomy 22:10) forbids a farmer to plough his land using an ox and a donkey together. While no reason for this law is given, we might suppose it has something to do with the concern that doing so might cause unnecessary pain to the smaller (or perhaps the larger?) animal. Regardless of the reason, later in our tractate the Talmud explains that this law applies to any kind of work and any two different species of animal. Then comes this fantastic question: “What is the law if someone pulls his wagon using a goat and a fish?” 

בבא קמא נה, א

בעי רחבה המנהיג בעיזא ושיבוטא מהו מי אמרינן כיון דעיזא לא נחית בים ושיבוטא לא סליק ליבשה לא כלום עביד או דלמא השתא מיהת קא מנהיג

The Sage Rachava raised a dilemma: With regard to one who drives a wagon on the seashore with a goat and a shibbuta, a certain species of fish, together, pulled by the goat on land and the fish at sea, what is the halakha? Has he violated the prohibition against performing labor with diverse kinds, in the same way that one does when plowing with an ox and a donkey together, or not?

This turned out to be such a hard question that the Talmud could not answer it. The Rosh concludes though that just to be sure, best not to hitch up your wagon to a fish, if you also intend for it to be pulled by a goat (ולא איפשיטא ואזלינן לחומרא). Don’t say you weren’t warned.

The Bird that built her nest on a person’s head

The Bible also demands that the mother bird must be shooed away before collecting the eggs upon which she is brooding. But what happens if a bird makes her nest in a person’s hair? Must this mother be driven away before her eggs are collected? (Chullin 139b)

חולין קלט, ב

אמרי ליה פפונאי לרב מתנה מצא קן בראשו של אדם מהו? אמר (שמואל ב טו, לב) ואדמה על ראשו

The residents of Pappunya said to Rav Mattana: If one found a nest on the head of a person, what is the halakha with regard to the mitzva of sending away the mother? Is the nest considered to be on the ground, such that one is obligated in the mitzva? Rav Mattana said to them that one is obligated in the mitzva in such a case because the verse states: “And earth upon his head” (II Samuel 15:32), rather than: Dirt upon his head, indicating that one’s head is considered like the ground. 

(And just to be clear - the Talmud is not discussing a case like this one, in which a woman allowed an abandoned fledgling to nest in her long har for 84 days, though it is, I will admit, a very touching story.)

One hypothetical too many

Sometimes, even bizarre questions can go too far. If a baby pigeon is found within 50 cubits of a coop, it is presumed to belong to the owner of that coop. If it is found further away than 50 cubits, it belongs to the finder. Ever keen to push the limits of rabbinic law, Rabbi Yirmiyah asked “if one foot of the pigeon is within the fifty cubits and one foot is outside, to whom does it belong?” This apparently was one question too many. The rabbis (rather unfairly in my opinion) expelled Rabbi Yirmiyah from the Yeshivah for asking it.

בבא בתרא כג, ב

בָּעֵי רַבִּי יִרְמְיָה רַגְלוֹ אַחַת בְּתוֹךְ חֲמִשִּׁים אַמָּה וְרַגְלוֹ אַחַת חוּץ מֵחֲמִשִּׁים אַמָּה מַהוּ וְעַל דָּא אַפְּקוּהוּ לְרַבִּי יִרְמְיָה מִבֵּי מִדְרְשָׁא

Rabbi Yirmeya raises a dilemma: If one leg of the chick was within fifty cubits of the dovecote, and one legwas beyond fifty cubits, what is the halakha? The Gemara comments: And it was for his question about this far-fetched scenario that they removed Rabbi Yirmeya from the study hall, as he was apparently wasting the Sages’ time. 

The Role of Bizarre cases

In a 2004 paper published in Thalia: Studies in Literary Humor, Hershey Friedman, a Professor of Business at Brooklyn College, suggested that “whether a situation is possible or not is immaterial when the Talmud is trying to establish legal principles.”  

Purely theoretical (at least in their days) cases are discussed because the sages felt that principles derived from these discussions would clarify the law and thus provide a more thorough understanding of it. Discussions of theoretical cases in the Talmud have allowed scholars of today to use the Talmudic logic and principles to solve current legal questions 

The theoretical questions make a legal point, and it is that legal point that is the real object of the discussion. Whether or not the case could actually happen is immaterial. Friedman also suggests that these unusual cases serve to keep the material interesting, and also act as brain teasers, which don’t necessarily make a legal point but serve to sharpen the minds of both the students and the teachers who ask them.

“There was a time, not many years ago, when a lawyer could feel reasonably confident as he approached oral argument in the United States
Supreme Court if he had thoroughly absorbed the record in his case and
had obtained a working knowledge of all relevant cases. No longer. Today, an advocate must, more than ever before, prepare himself for a
stream of hypothetical questions touching not only on his own case but on
a variety of unrelated facts and situations.”

— E. Barrett Prettyman Jr., The Supreme Court's Use of Hypothetical Questions at Oral Argument, 33 Cath. U. L. Rev. 555 (1984). 555.

 Hypothetical Cases in the US Legal System

It may help to understand the role that these weird cases have in the Talmud by understanding that hypothetical cases have an important role to play in many legal systems, including that of the United States. Consider this series of questions that were asked in the famous 1984 case of California vs Carney. Police officers entered a motor home without a search warrant, and found marijuana. The question before the court was whether this motor home was a more like a car, which should not require a search warrant, or more like a home, which would. There were various appeals, and the case ended up being heard in front of the US Supreme Court, which is where the following hypothetical questions were raised:

Q: Well, what if the vehicle is in one of these mobile home parks and hooked up to water and electricity but still has its wheels on?

Q: Suppose somebody drives a great big stretch Cadillac down and puts it in a parking lot, and pulls all the curtains around it, including the one over the windshield and around all the rest of them. Would that be a home?

Or how about this exchange back in 1982, (and the subject of which is once again a hot topic of debate in the US). In Board of Education v.Pico, the question before the Court was whether a public school board could remove books which it found to be objectionable from the shelves of junior and senior high school libraries, in order to promote the community's "moral, social, and political values." 

Q: Suppose they [the Board] barred the St. James version of the New Testament, and the Constitution of the United States, and the Declaration of Independence?

Q: Suppose some of these books were assigned as outside reading, and the children were told, you can get it in the public library?

Q. Suppose you had a book, counsel, that had been the subject of criminal proceedings, and conviction of someone in connection with that book had been sustained, a criminal conviction. Would you say that the book comes under this broad authority you suggest? 

(By the way, the Court, in a 5-to-4 decision, held that as centers for voluntary inquiry and the dissemination of information and ideas, school libraries enjoy a special affinity with the rights of free speech and press. Therefore, the School Board could not restrict the availability of books in its libraries simply because its members disagreed with their content. That might be useful to remember.)

There are many, many similar examples. Here is one of my favorites. It comes from United States v. Ross, in which the defendant’s lawyer argued that a small brown paper bag should not have been searched for narcotics because it was protected under the Fourth Ammendment, the right against unlawful search. Here is one of the hypotheticals:

Q: Suppose what they were hunting for was, say, a waffle iron, a stolen waffle iron, or something else that couldn't go in the paper bag. You might have probable cause to search the car for the waffle iron, but if you got to the paper bag, you wouldn't be searching it, would you?

Commenting on this case, the late American lawyer Elijah Barrett Prettyman Jr. (d. 2016) wrote that “one cannot help but be impressed with how far removed some hypotheticals are from the facts before the Court. In Ross, the brown paper bag case, one Justice had the police hunting for a waffle iron.”

Why we need Hypotheticals

Hypothetical cases are really important when the Supreme Court is trying to figure out the difficult cases that come before it. And they are all difficult cases, because if they were easy, the Supreme Court wouldn’t be considering them. The rabbis of the Talmud needed to do the same, which is why they often consider outlandish, implausible or downright fanciful cases to ponder.

The best way to think about these cases is to add in the following missing words: “Hypothetically, what would happen if…” Then, as if by magic, they cease to be silly and start to be really important.

Bava Kamma 24b ~ Dogs, Bites and Liabilities

בבא קמא כד, ב

ת"ש שיסה בו את הכלב ... פטור מאי לאו פטור משסה וחייב בעל כלב? לא אימא פטור אף משסה אמר רבא אם תמצי לומר המשסה כלבו של חבירו בחבירו חייב שיסהו הוא בעצמו פטור מאי טעמא כל המשנה ובא אחר ושינה בו פטור

Come an hear [a proof from a Mishnah in Sanhedrin]:

If one incited a dog [against another person]...he is not liable. Who is "not liable"? Does this mean that the inciter is not liable, but that the dog's owner is liable? No. Say that this Mishnah means that even the one who incites is not liable. Rava said the following: Even if you conclude that when a person incites a dog against his fellow, [that the owner is liable], if the victim incited the dog against himself, [and brought the attack upon himself, then in this case the dog's owner] is also not liable. What is the reason for Rava's ruling? Because whenever a person acts in an irregular way, and another person comes along and acts in an irregular way against him, [the second party] is not liable.

JEWS AND DOGS

From this passage in today's daf , we learn a couple of things about dogs in the period of the Mishnah. First, we learn that Jews, or those who interacted with Jews, kept them. And second, that some of them were very bad dogs.  

Jews and dogs don't traditionally get along. Later in our tractate, (Bava Kamma 83a,) Rabbi Eliezer does not mince his words: 

רבי אליעזר הגדול אומר: המגדל כלבים כמגדל חזירים .למאי נפקא מינה? למיקם עליה בארור

Rabbi Eliezer the Great said: Someone who breeds dogs is like someone who breeds pigs. What is the practical outcome of this comparison? To teach that those who breed dogs are cursed...

The American Veterinary Medical Association estimates that in the US there are about 48 million households that own almost 76 million dogs; that means over one-third of the households in the US own a dog.  In the UK, a 2007 study estimated that 31% of all households owned a dog. In 2019 in Israel, there are over 490,000 registered (and living) dogs. Given that there were about 2.67 million family units in the country at that time, this is about 1 dog for every five families. Oh, and by the way, here is another fun fact. The most popular dog names in Israel are Lula for females (with 4,706 female dogs answering this name) and Louis for males (4,601 dogs with this name).

BAD DOGS

Most dogs are wonderful pets, but a few are really bad. Every year, there are about 4.5 million dog bites in the US, of whom some 800,000 seek medical care. And, yes, it is true: Postal workers are especially vulnerable. Over 5,300 of them were attacked by dogs in 2022. In a 10 year period from 2000-2009, one paper identified 256 dog-bite related fatalities in the US. Of course that's a tiny number compared to the overall number of dogs owned, but that's still 256 too many; the tragedy is compounded when you read that over half the victims were less than ten years old. 

Partaken, GJ. et al. Co-occurrence of potentially preventable factors in 256 dog bite–related fatalities in the United States (2000–2009). Journal of the American Veterinary Medical Association 2013. 243:12: 1726-1736.

“Az a yid hot a hunt, iz oder der hunt keyn hunt nit, oder der yid iz keyn yid nit

If a Jew has a dog, either the dog is no dog, or the Jew is no Jew”

— — Sholem Aleichem. Rabtshik. Mayses far Yidishe Kinder. Ale Verk. Warsaw 1903

Although fatalities from dog bites are rare, dog bites are not. Over my career as an emergency physician I must have treated hundreds of patients with dog bites. And my experience is pretty typical. One recent study estimated that more than half the population in the US will be bitten by an animal at some time, and that dogs are responsible for 80-90% of these injuries. 

GOOD DOGS

Although Jews are thought not to have a historical affinity for dogs, one theologian has reassessed the evidence. In his 2008 paper Attitudes toward Dogs in Ancient Israel: A Reassessment, Geoffrey Miller suggests that in fact dogs were not shunned in Israelite society. He notes that the remains of over a thousand dogs were discovered in a dog cemetery near Ashkelon dating from about the 5th century BC. It was described as "by far the largest animal cemetery known in the ancient world" by Lawrence Stager who also pointed out that during this period, Ashkelon was a Phoenician city - not a Jewish one. Miller surveys several mentions of dogs in the Bible and the Book of Tobit, and concludes that at least some Israelites "valued dogs and did not view them as vile, contemptible creatures." Joshua Schwartz from Bar-Ilan University surveyed Dogs in Jewish Society in the Second Temple Period and in the Time of the Mishnah and Talmud (a study that marked "...the culmination of several years of study of the subject of dogs...").  He found that while "most of the Jewish sources from the Second Temple period and the time of the Mishnah and Talmud continue to maintain the negative attitude toward dogs expressed in the Biblical tradition" there were some important exceptions. There were sheep dogs (Gen. Rabbah 73:11) and hunting dogs (Josephus, Antiquities 4.206) and guard dogs (Pesahim 113a), and yes, even pet dogs (Tobit, 6:2), though Schwartz concedes that "it is improbable that dogs in Jewish society were the objects of the same degree of affection as they received in the Graeco-Roman world or the Persian world."

“A certain person invited a sage to his home, and [the householder] sat his dog next to him. [The sage] asked him, ‘How did I merit this insult?’ [The house-holder] responded, ‘My master, I am repaying him for his goodness. Kidnappers came to the town, one of them came and wanted to take my wife, and the dog ate his testicles.”

— PT Terumot 8:7

Liability for Dog Bites in the US

In contrast to the talmudic rule requiring three occurrences of goring or biting before an animal is considered "forewarned" and so liable to pay full damages, many states have a "one bite and you're out rule". But New York, for example has a law that has aspects of the talmudic category of mu'ad, at least according to this opinion:

New York Agriculture & Markets Code section 123 (part of the Laws of New York) addresses a dog owner's potential civil liability when the owner's dog injures another person. The statute covers both injuries caused by bites and non-bite injuries, like those suffered when a dog knocks a person to the ground. The statute states that the owner of a "dangerous dog" is liable if the dog causes injuries to another person, to livestock, or to another person's companion animal, like a disability service dog.

The statute defines a "dangerous dog" as one that:

 - attacks and either injures or kills a person, farm animal, or pet without justification, or

 - behaves in a way that causes a reasonable person to believe that the dog poses a "serious and unjustified imminent threat of serious physical injury or death."

However, the statute specifically states that a law enforcement dog carrying out its duties cannot be considered a "dangerous dog." 

Under New York's "dangerous dog" statute, a dog owner is "strictly liable" for all medical bills resulting from injuries caused by a "dangerous dog." This means that if the dog is found to be dangerous, the dog's owner must pay the injured person's medical bills (or bills for the treatment of injuries to livestock or pets) even if the dog's owner had taken reasonable precautions to control or restrain the dog. For other types of damages resulting from a dog bite or dog-related injury, the injured person must usually prove that the dog's owner was negligent. In other words, the injured person must show that the dog's owner failed to use reasonable care to prevent the injuries from occurring (failed to take reasonable steps to control or restrain the animal, in other words). For example, suppose that a dog slips out of its own yard, breaks down the neighbor's fence, and enters the neighbor's yard, where it bites the neighbor. While the injured neighbor may be able to recover the costs of medical care under New York's strict liability rule, the neighbor cannot recover the costs of replacing the broken fence unless the neighbor can show that the dog's owner failed to take reasonable steps to keep the dog in its own yard. 

The legal category of mu'ad - an animal (or more precisely here, a dog) that was forewarned as being a danger is clearly noted in New York Agriculture & Markets Code section 123. The law allows  charges to be filed if:
 - the dog was previously declared to be a "dangerous dog"
 - the owner negligently allows the dog to bite someone, and the injury suffered is a "serious injury."

If a "dangerous dog" overcomes an owner's attempts to restrain it and kills a person, the owner may also be charged with a misdemeanor. Any owner who faces a criminal charge relating to a dog bite might also face civil liability if the injured person decides to sue in civil court.

Here's how the lawyer Mary Randal explains the factors that courts take into account when deciding if a dog owner is liable for the damages of a pet. See how many times there is an echo to the talmudic concept of mu'ad:

Previous bites. This one is pretty easy. If a dog bites once, the owner will forevermore be on notice that the dog is dangerous. But even this is not as straightforward as it may appear; for example, at least one court has ruled that if a puppy nips someone, its owners are not necessarily on notice that the dog is dangerous. (Tessiero v. Conrad, 588 N.Y.S.2d 200 (App. Div. 1992).)

Barking at strangers. If a dog, usually kept in the house or a fenced yard, barks at strangers but has never threatened a person, its owners will probably not be liable if it bites someone. (See, for example, Slack v. Villari, 476 A.2d 227, cert. denied, 482 A.2d 502 (Md. 1984) and Collier v. Zambito, 1 N.Y.3d 444 (2004).)

Threatening people. A dog that often growls and snaps at people who come near it when out in public, but hasn't ever actually bitten someone, is a different case entirely. The dog's actions should put its owner on notice that the dog might bite someone. If the dog does bite, the owner will be liable. (See, for example, Fontecchio v. Esposito, 485 N.Y.S.2d 113 (1985).)

Jumping on people. The owner of a friendly, playful, and large dog, which is in the habit of jumping on house guests, will be liable if the exuberant dog knocks over a friend who comes to the door one day. The owner knew that the dog behaved this way and might injure someone because of its size.

Frightening people. If a dog likes to run along the fence that separates his yard from the sidewalk barking furiously, or chases pedestrians or bicyclists, the owner may be liable if the dog causes an injury. At least one court, however, has ruled that an owner wasn't responsible for foreseeing that a barking dog could frighten someone so much she would run into the street. (Nava v. McMillan, 123 Cal. App. 3d 262 (1981).)

Fighting with other dogs. If a dog that is gentle with people has a history of fights with other dogs, that's probably not enough to put the owner on notice that the dog might bite a person. Courts usually recognize that canine society has its own rules, and the way a dog behaves under them isn't a reliable predictor of how it will act toward humans. (As one court put it, the “question was the dog's propensity to attack a human. The canine code duello is something else. That involves the question of what constitutes a just cause for battle in the dog world, or what justifies a resort to arms, or rather to teeth, for redress.” (Fowler v. Helck, 278 Ky. 361 (1939).)

Fight training. If a dog has been trained to fight, a court will almost certainly conclude that the owner should have known that the dog is dangerous. (This conclusion is disputed by some people experienced with dogs used for fighting, who maintain that there is no connection between a dog's drive to fight other dogs and its aggression toward people. However, a dog that has been agitated and abused when used for fighting may be dangerous.)

Complaints about the dog. If neighbors or others complain to the owner that a dog has threatened or bitten someone, the owner would certainly be on notice that the dog is dangerous. But in one Alabama case, where a dog's owner had been scolded by a neighbor for having a dog that was a "nuisance," the court ruled that the owner did not have any knowledge that his dog was dangerous. (Rucker v. Goldstein, 497 So. 2d 491 (Ala. 1986).)

The dog's breed. Generally, courts don't consider dogs of certain breeds to be inherently dangerous. So if you have a German shepherd, a court probably won't conclude that you should have known, just because of the dog's breed, that it might injure someone. (See, for example, Roupp v. Conrad, 287 A.D.2d 937, 731 N.Y.S.2d 545 (2001).) But in some places, pit bulls and a few other breeds have been defined by law as dangerous dogs.

VERY GOOD DOGS

Whatever your feeling about dogs, lets's be sure to remember that they serve alongside soldiers in the IDF, where they save lives. In 1969, Motta Gur (yes, the same Mordechai "Motta" Gur who commanded the unit that liberated the Temple Mount in the Six Day War, and who uttered those immortal words "The Temple Mount is in our hands!" הר הבית בידינו‎,) wrote what was to become a series of children's books called Azit, the Canine Paratrooper (later turned into a popular feature film with the same title. It was once available on Netflix.  But IDF dogs don't just feature in fiction. They are a fact, and an amazing addition to the IDF, where they make up the Oketz unit.  Here's a news report (in Hebrew) about the amazing work these dogs - and their handlers- perform. And today, they are on the front lines of the fight against Hamas. These are very good dogs indeed.

Talmudology on the Parsha, Vayetze: Spotted Goats, Red Heifers, and a History of Maternal Imprinting

In this week’s parsha, Yaakov negotiates for some kind of payment for the many years that he worked for Lavan (Gen 30:25-43, 31:1-12). Yaakov suggests that he keep all the speckled goats, while Lavan would get to keep the plain ones.  Yaakov then took several wooden rods from which he peeled the bark, and left these now speckled rods in front of a water trough.   The female goats stared at the rods while they are drinking and mating, and this in turn caused them to give birth to speckled kids, all of which Yaakov got to keep.

בראשית 40:30–31

וַיֹּ֖אמֶר מָ֣ה אֶתֶּן־לָ֑ךְ וַיֹּ֤אמֶר יַעֲקֹב֙ לֹא־תִתֶּן־לִ֣י מְא֔וּמָה אִם־תַּֽעֲשֶׂה־לִּי֙ הַדָּבָ֣ר הַזֶּ֔ה אָשׁ֛וּבָה אֶרְעֶ֥ה צֹֽאנְךָ֖ אֶשְׁמֹֽר׃

אֶֽעֱבֹ֨ר בְּל־צֹֽאנְךָ֜ הַיּ֗וֹם הָסֵ֨ר מִשָּׁ֜ם כל־שֶׂ֣ה ׀ נָקֹ֣ד וְטָל֗וּא וְכל־שֶׂה־חוּם֙ בַּכְּשָׂבִ֔ים וְטָל֥וּא וְנָקֹ֖ד בָּעִזִּ֑ים וְהָיָ֖ה שְׂכָרִֽי׃

וְעָֽנְתָה־בִּ֤י צִדְקָתִי֙ בְּי֣וֹם מָחָ֔ר כִּֽי־תָב֥וֹא עַל־שְׂכָרִ֖י לְפָנֶ֑יךָ כֹּ֣ל אֲשֶׁר־אֵינֶ֩נּוּ֩ נָקֹ֨ד וְטָל֜וּא בָּֽעִזִּ֗ים וְחוּם֙ בַּכְּשָׂבִ֔ים גָּנ֥וּב ה֖וּא אִתִּֽי׃

וַיֹּ֥אמֶר לָבָ֖ן הֵ֑ן ל֖וּ יְהִ֥י כִדְבָרֶֽךָ׃

…

וַיִּֽקַּֽח־ל֣וֹ יַעֲקֹ֗ב מַקַּ֥ל לִבְנֶ֛ה לַ֖ח וְל֣וּז וְעַרְמ֑וֹן וַיְפַצֵּ֤ל בָּהֵן֙ פְּצָל֣וֹת לְבָנ֔וֹת מַחְשֹׂף֙ הַלָּבָ֔ן אֲשֶׁ֖ר עַל־הַמַּקְלֽוֹת׃

וַיַּצֵּ֗ג אֶת־הַמַּקְלוֹת֙ אֲשֶׁ֣ר פִּצֵּ֔ל בָּרְהָטִ֖ים בְּשִֽׁקְת֣וֹת הַמָּ֑יִם אֲשֶׁר֩ תָּבֹ֨אןָ הַצֹּ֤אן לִשְׁתּוֹת֙ לְנֹ֣כַח הַצֹּ֔אן וַיֵּחַ֖מְנָה בְּבֹאָ֥ן לִשְׁתּֽוֹת׃

וַיֶּחֱמ֥וּ הַצֹּ֖אן אֶל־הַמַּקְל֑וֹת וַתֵּלַ֣דְןָ הַצֹּ֔אן עֲקֻדִּ֥ים נְקֻדִּ֖ים וּטְלֻאִֽים׃

וְהַכְּשָׂבִים֮ הִפְרִ֣יד יַעֲקֹב֒ וַ֠יִּתֵּ֠ן פְּנֵ֨י הַצֹּ֧אן אֶל־עָקֹ֛ד וְכל־ח֖וּם בְּצֹ֣אן לָבָ֑ן וַיָּֽשֶׁת־ל֤וֹ עֲדָרִים֙ לְבַדּ֔וֹ וְלֹ֥א שָׁתָ֖ם עַל־צֹ֥אן לָבָֽן׃

And Lavan said, What shall I give thee? And Jacob said, Thou shalt not give me anything: if thou wilt do this thing for me, I will again feed and keep thy flock. I will pass through all thy flock today, removing from there all the speckled and spotted cattle, and all the brown ones among the sheep, and the spotted and speckled among the goats: and of such shall be my hire. So shall my righteousness answer for me in time to come, when thou shalt come to see my hire before thy face: every one that is not speckled and spotted among the goats, and brown among the sheep, that shall be counted stolen with me. And Lavan said, Behold, would it might be according to thy word

…

And Jacob took him rods of green poplar, and of the almond and plane tree; and peeled white streaks in them, and made the white appear which was in the rods. And he set the rods which he had peeled before the flocks in the gutters in the watering troughs when the flocks came to drink, that they should conceive when they came to drink.  And the flocks conceived before the rods, and brought forth cattle streaked, speckled, and spotted.  And Jacob separated the lambs, and set the faces of the flocks toward the streaked and all the brown in the flock of Lavan; and he put his own flocks by themselves, and put them not to Lavan’s cattle.

Was Jacob the first geneticist? (Um, no)

In trying to explain what was happening here, the botanist Yehudah Felix published the following guide, showing the likely coloring of the successive generations of Jacob’s breeding program.

In the same article, (Techumin 1982: 3, 461-472) Felix suggests that Gregor Mendel (1822-1884) was not the first to discover the rules of heredity. Instead, he claimed, it was Jacob, as described in this week’s parsha. You can make of this what you will, but there is no doubt that this chapter in Genesis is not describing a program to breed speckled goats based on any understanding of what today we call Mendelian inheritance. Instead, it describes another way to guarantee offspring of a certain color or trait. It was the belief that what a mother sees during conception and gestation will affect her offspring, and it is called maternal imprinting or psychic maternal impressions, or mental influence, or maternal imagination, or (my favorite) maternal fancy. Once you first read about it, maternal imprinting begins to turn up in all kinds of places in the Midrash and Talmud, and beyond. Let’s take a look at a few of them.

Maternal imprinting in jewish sources

Perhaps the most famous story of maternal imprinting in the Talmud is that of Rabbi Yochanan (~180-279 CE) who would regularly sit in front of the mikveh (ritual bath). He did this so that women leaving there would see him, and be blessed with sons as handsome as he was.

בבא מציעא פד, א

ר' יוחנן הוה אזיל ויתיב אשערי טבילה אמר כי סלקן בנות ישראל מטבילת מצוה לפגעו בי כי היכי דלהוו להו בני שפירי כוותי גמירי אורייתא כוותי

Rabbi Yochanan would go and sit by the entrance to the ritual bath. He said to himself: When Jewish women come up from their immersion [after their menstruation,] they should see me first so that they have beautiful children like me, and sons learned in Torah like me. 

Elswhere, Rabbi Akiva used maternal imprinting to save a king from a rather embarrassing situation:

מדרש תנחומא נשה, ז

מַעֲשֶׂה בְּמֶלֶךְ הָעַרְבִים שֶׁשָּׁאַל אֶת רַבִּי עֲקִיבָא, אֲנִי כּוּשִׁי וְאִשְׁתִּי כּוּשִׁית וְיָלְדָה לִי בֵּן לָבָן, הוֹרְגָהּ אֲנִי, שֶׁזָּנְתָה תַּחְתַּי. אָמַר לוֹ: צוּרוֹת בֵּיתְךָ שְׁחֹרוֹת אוֹ לְבָנוֹת. אָמַר לוֹ: לְבָנוֹת. אָמַר לוֹ: כְּשֶׁהָיִיתָ עוֹסֵק עִמָּהּ, עֵינֶיהָ נָתְנָה בְּצוּרוֹת לְבָנוֹת וְיָלְדָה כַּיּוֹצֵא בָּהֶם. וְאִם תָּמֵהַּ אַתָּה בַּדָּבָר, לְמַד מִן צֹאנוֹ שֶׁל יַעֲקֹב, שֶׁמִּן הַמַּקְלוֹת הָיוּ מִתְיַחֲמוֹת, שֶׁנֶּאֱמַר: וְיִחֲמוּ הַצֹּאן אֶל הַמַּקְלוֹת (בראשית ל, לט). וְהוֹדָה מֶלֶךְ הָעַרְבִים וְשִׁבַּח לְרַבִּי עֲקִיבָא

A king of Arabia once asked Rabbi Akiva, “I am black and my wife is black, yet she gave birth to a white child. Shall I have her executed for infidelity?” Rabbi Akiva responded by inquiring if the statues in his house where white or black. He said to Rabbi Akiva that they were white.  Rabbi Akiva explained to the king that during conception his wife's eyes were fixed on the white statues and so she bore a white child...the king agreed and praised Rabbi Akiva

And in this sad story, Jewish children were the object upon which Roman men would gaze in order to produce handsome offspring.

גיטין נח, א

מֵעִיקָּרָא, חֲשִׁיבִי דְרוֹמָאֵי הֲווֹ נָקְטִי בִּלְיוֹנָא דְגוּשְׁפַּנְקָא, וּמְשַׁמְּשִׁי עַרְסַיְיהוּ; מִכָּאן וְאֵילָךְ, מַיְיתוּ בְּנֵי יִשְׂרָאֵל וְאָסְרִי בְּכַרְעֵי דְּפוּרַיְיהוּ, וּמְשַׁמְּשִׁי

Initially the noblemen of Rome would keep an image imprinted on a seal by their beds and engage in sexual intercourse opposite that image, so that they would beget children of similar beauty. From this point forward, from the time of the Great Revolt, they would bring Jewish children, tie them to the foot of their beds, and engage in sexual intercourse across from them, because they were so handsome.

According to Rashi, these seals had images of beautiful people on them, and the hope was that the mother would become pregnant while looking at them:

בליוני דגושפנקי - צורות נאות שבחותמיהן כדי שתתעברנה כנגדן

All this is rather, strange, but not to a person who believed in maternal imprinting. Now of course neither you nor I believe in such things, but pretty much everyone in the ancient and pre-modern world did. Including Jacob.

Let’s take a deeper look at the topic. It involves a red cow.

From here.

How to make a Red Heifer

The Parah Adumah, the red heifer, was used in several ceremonies in the Temple. It was, however, a rare animal. In the Talmud (Avodah Zarah 24a) there is a detailed discussion as to whether a red heifer born to an idol-worshipper could be used. The concern was that the heifer, or one of its ancestors, might have been used by the idol-worshipper for beastiality. Should this have happened, it was forbidden to use the red heifer as a sacrifice. The Talmud relates that in fact an idol-worshipper called Daba ben Natina had sold a red heifer to his Jewish neighbors. To insure that the heifer's mother had not been the object of beastiality, the pregnant cow had been watched "משעה שנוצרה" – from the moment it was impregnated. Then comes an obvious question: how could anyone be sure that the cow was indeed pregnant with a red calf which would warrant safeguarding her? Perhaps the calf  would be born another color? 

Here is the answer: "כוס אדום מעבירין לפניה בשעה שעולה עליה זכר" -"while the mother was copulating, the farmer would show her a red cup." That would insure that she would give birth to a little red calf that would grow into a bigger red heifer. 

“The history of the belief in maternal impressions is one of great antiquity...it is also one of practically world-wide distribution. [It can be found in] such far apart lands as India, China, South America, Western Asia and East Africa..the Esquimaux, the Loango negros, and the old Japanese.”

— John William Ballantyne. Teratogenesis: an Inquiry into the Causes of Monstrosities. Edinburgh, Oliver & Boyd 1897. 24

The earliest mention of maternal imprinting is the story in this week’s parsha of Yaakov and his division of the goats he watched for his uncle Lavan (Gen 30:25-43, 31:1-12).  Yaakov took several wooden rods from which he peeled the bark, and left these now speckled rods in front of a water trough.   The female goats stared at the rods while they are drinking and mating, and this in turn caused them to give birth to speckled kids, all of which Yaakov got to keep. That's how maternal imprinting works.  

Maternal Imprinting in Greek Thought, and Beyond

In 1998 Professors Wendy Doniger and Gregory Spinner published perhaps the most comprehensive review of imprinting, in a paper titled Misconceptions: Female Imaginations and Male Fantasies in Parental Imprinting. They noted Empedocles, who lived in the fifth century BCE, wrote that 

the fetuses are shaped by the imagination of the women around the time of conception. For often women have fallen in love with statues of men, and with images, and have produced offspring which resemble them.

Soranus of Ephesus, another Greek physician who lived in Rome and Alexandria (and who was a contemporary of Rabbi Yochanan) firmly believed in imprinting, both for animal husbandry and in humans:

Some women, seeing monkeys during intercourse, have borne children resembling monkeys. The tyrant of the Cyprians, who was misshapen, compelled his wife to look at beautiful statues during intercourse and became the father of well-shaped children; and horse-breeders, during covering, place noble horses in front of the mares.

Let's jump forward a millennium.   In 1282 it was reported that an infant was born with hair and claws like a bear. The Pope at the time "straightway ordered the destruction of all pictures of bears in Rome." This story is from John Ballantyne, a Scottish physician who in 1897 published Teratogenesis: an Inquiry into the Causes of Monstrosities. According to Ballantyne, in the seventeenth century, the belief in maternal impressions "reigned supreme."  Here is another example of the kind of thing it led to:

And then things get even weirder:

In 1726 the matter of maternal impressions was brought still more prominently before the profession and the public in England in connexion [sic] with the notorious case of an "Extraordinary Delivery of Rabbets" which was alleged to have occurred in the case of Maria Tofts of Godlyman in Surrey; she had a great longing for 'Rabbets"in early pregnancy.

Pregnancy and the fetus

Maternal imprinting is a rather extreme form of what we all know to be true; that what happens to a pregnant mother affects the fetus she is carrying. Here are two of the countless examples of this.  If a mother drinks enough alcohol while pregnant, the fetus will be born with Fetal Alcohol Syndrome. This syndrome includes facial abnormalities, growth delays, abnormal development of organs, and reduced immunity.  If a mother is infected with measles (rubella) early in pregnancy, the baby will likely be born with congenital rubella syndrome, which includes cataracts, congenital heart disease and brain damage.  But these examples do not imply that a woman who eats eggs will have children with large eyes or that a woman who eats an esrog will have fragrant children, as the Talmud (Ketuvot 60b) declares. Some things a pregnant mother does will have a huge effect on the fetus she carries. Some won't have any affect at all.  

John Ballantyne, the Scottish physician concluded his book noting, as we have, that of course there are some things a mother does that will affect fetal outcome. "To this extent" he wrote, "I believe in the old doctrine of maternal impressions; this is, I think, one grain of truth in an immense mass of fiction and accidental coincidence."

It's not the red cup after all

Let’s return to the red heifer. It would seem that all you needed to produce a Parah Adumah was to place a red cup next to the mating cattle.  So why didn't every farmer use the red cup protocol to breed a red heifer? After all, these animals commanded fantastic prices because of their rarity. The answer offered by the Talmud is that the red cup protocol only worked with a herd of cattle that were known (במוחזקת) to produce red heifers.  Without that breeding history, the red cup protocol was useless. So this really wasn't about the red cup. It was about the genes, and that's the kind of parental imprinting that really does work.

“A surprising large number of people, in different cultures and over many centuries, have believed that a woman who imagines or sees someone other than her sexual partner at the moment of conception may imprint that image upon her child- thus predetermining its appearance, character or both.”

— Doniger W. Spinner G. Female Imaginations and Male Fantasies in Parental Imprinting. Daedalus 127 (1), No. 1, Science in Culture (Winter, 1998). 97-129

אַחֵינוּ כָּל בֵּית יִשְׂרָאֵל

הַנְּתוּנִים בַּצָּרָה וּבַשִּׁבְיָה

הָעוֹמְדִים בֵּין בַּיָּם וּבֵין בַּיַּבָּשָׁה

הַמָּקוֹם יְרַחֵם עֲלֵיהֶם

וְיוֹצִיאֵם מִצָּרָה לִרְוָחָה

וּמֵאֲפֵלָה לְאוֹרָה

וּמִשִּׁעְבּוּד לִגְאֻלָּה

הָשָׁתָא בַּעֲגָלָא וּבִזְמַן קָרִיב

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[Special thanks to Rabbi Dr. Eddie Reichman, medical historian and Talmudology reader who has been researching maternal imprinting for years, and was kind enough to share his material.]