A Woman who Gave Birth: Difference between revisions

Mishmeret Hatahara v. 2 p. 155 (Rabbi Moshe Karp, Kriyat Sefer) writes that today the minhag in his areas is to be lenient.</ref> Sephardim do not have to follow this minhag and even if they did they can do a hatarat nedarim.<ref>Taharat Habayit (v. 2 p. 28) shows that the primary minhag of Sephardim is to be lenient like Shulchan Aruch. He cites numerous sources to show that the poskim held that this minhag was weak and possibly based on the Karaites as the Rambam writes. Therefore, the Bet Yosef's opinion was unless we know that it was based on a practice to be strict on hilchot niddah, we can assume that it was a practice based on a mistake. In Baghdad, Egypt, and Tunisia the minhag was to be lenient. Even for Morocco and India where there was a minhag to be strict, Rav Ovadia holds that they don't need to uphold this minhag since we don't know that it began with rabbinic approvals and was completely accepted. Additionally even the Ben Ish Chai (Rav Paalim YD 2:23) writes that it wasn't an accepted minhag in Baghdad and even someone who has this minhag can nullify it with hatarat nedarim.</ref>

# If the woman already went to the mikveh and she is tahor, even though the gemara prohibits them to one another on the night of the 41st day for a baby boy and the 81st for a baby girl, today this prohibition doesn't apply since we are strict on dam tohar.<ref>The Gemara Pesachim 113b writes that a woman is forbidden to her husband the night of the 41st for a baby boy and 81st for a girl after having a baby. The Rashbam explains that since the Torah permits a couple to one another even if there is blood during the days of yemey tohar they forget when that period ends and be lenient about niddah blood even afterwards. Therefore, the rabbis said that they should refrain from one another the night of the end of that period so that they remember that there's a difference before and after. The Rosh 3:5 writes that this restriction only applies to those who are lenient about blood during yemey tohar. The Raavad [http://www.hebrewbooks.org/pdfpager.aspx?req=8785&st=&pgnum=61 (End of Shaar Tikkun Vestot p. 63)] agrees and rejects the opinion of the Bahag that this night is automatically forbidden like a veset. Taz 194:2 writes that since we are all strict about blood during yemey tohar today this halacha doesn't apply to us anymore and so Shulchan Aruch left it out. Badei Hashulchan 194:15 agrees but adds that a person who wants to be strict will be blessed.</ref>

==Miscarriages==

# A woman who miscarries a fetus that is less than 41 days old she is tameh like a niddah but doesn't have the regular tumah of birth, which for a girl is 14 days.<Ref>The Mishna Niddah 30a establishes that both for a boy and a girl a fetus less than 41 days old isn’t considered a birth for the purposes of making the mother tameh. The Rashba (Torat Habayit 28b) cites a dispute between the Raavad and the Baal Hameor whether we say that she is nonetheless tameh as a niddah since the uterus must have opened when she miscarried. The Rashba sides with the Raavad who is strict. The Shulchan Aruch YD 194:2 follows the opinion of the Raavad.</ref>

# There is a major dispute from when to count the 40 days. Some poskim write that we begin counting from when she last went to mikveh, while many others are concerned that perhaps the count should begin earlier and we wouldn’t know from when to begin. A rabbi must be consulted.<ref>The Pitchei Teshuva 194:3 cites the Avodat Hagershuni 21 as holding that we can count the period of 41 days from the last period since we know that if she was pregnant beforehand she wouldn’t have had her period. However, the Chavot Daat 194:2 argues that since halachically it is possible for a pregnant woman to see her period within the first trimester we can’t count the 40 days from the last period. The Sidrei Tahara 194:7 and Chatom Sofer 169 agree. Nodeh Beyehuda EH 69 agrees with the Chavot Daat that a woman can see period when she is pregnant. Chachmat Adam 115:20 and Shiurei Shevet Halevi (p. 244) side with the Avodat Hagershuni, however, the most achronim follow the Chavot Daat including the Aruch Hashulchan 194:24, Badei Hashulchan 194:28, Mishmeret Hatahara v. 2 p. 167, and Taharat Habayit v. 2 p. 49. </ref> If the couple had a test showing that they were not pregnant before the last tevilah, then according to some poskim they can count the 40 days from the last tevilah.<ref>Taharat Habayit v. 2 p. 49, Shiurei Shevet Halevi p. 244</ref>  

==Sources==

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