Tuesday, 3 December 2013

JVO: Accidental Swallowing

Jewish Values Online (jewishvaluesonline.org) is a website that asks the Jewish view on a variety of issues, some specifically Jewish and some from the world around us -- and then presents answers from each of the dominations of Judaism. Nishmablog's Blogmaster Rabbi Wolpoe and Nishma's Founding Director, Rabbi Hecht, both serve as Orthodox members of their Panel of Scholars.

This post continues this series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.

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Question: If a medicine is applied to the skin near the mouth, and some is accidentally swallowed, is it a problem if the ingredients may not be kosher?

To properly answer your question, I really have to ask you what you mean by a problem. Are you asking if this person has committed a sin? Are you asking what someone should do in this type of situation? Are you asking if medicine has to be kosher? To be honest, it is very strange for me as a Rabbi to respond to a question framed in this manner. What people generally ask me regards their behaviour – what they should do given a certain set of facts. This may be your question as well; asking, through this word ‘problem’, what should be done in such circumstances. Framing the question in this way, though, does detract from what I believe should be the focus of following Torah guidelines – i.e. our behaviour.

Let us begin with the assumption that you are asking if the person in this case committed a sin. Sin within Halacha is somewhat similar to our criminal law system which generally demands mens rea, a certain type of criminal intent, for someone to be liable. This is not to say that this halachic concept of intent is fully similar to mens rea but it is clear that to commit a sin within the parameters of Halacha, there has to be a certain level in the intent or weakness in the concentration that surrounds an action.

One has clearly sinned if one does a forbidden act, with intent to do such an act, knowing that it is forbidden. That is referred to in the literature as meizid, intentional sin. One is also deemed to have sinned if one is negligent in his/her duty to ensure that he/she does not sin. This type of sin is referred to as shogeg, negligent sin. This case would seem to clearly not be a case of meizid, as the person did not intend to swallow something non-kosher (We will deal later with the question whether kashrut is even an issue in this case). Would this then be a case of shogeg? This would involve the question of whether the person took normative steps to ensure that he/she would not swallow the non-kosher item (if kashrut is an issue) given its proximity to the mouth. As this seems to involve medicine which a person would naturally try to avoid swallowing, and from your use of the word ‘accident’, we can perhaps assume that such steps were also taken – thus it was through no fault of the person that this non-kosher item was swallowed. In such cases, Halacha applies the term anoos, meaning non-responsible, and T.B, Nedarim 27a informs us that anoos Rachmana patur, that God does not hold an individual culpable for behaviour for which he/she had no control.

So if your question was whether this behaviour was a sin or not – still putting off the issue of kashrut itself -- it would seem most likely not, unless the person, knowing the item to be non-kosher and that there was a possibility of swallowing it, was sloppy in putting on the medicine and this resulted in the consumption. But, still, so what? So this happened? The real question, thus, should be what to do and the answer to this would be to do teshuva, repent. This would mean, in this case, to consider and regret what one did and, in such circumstances in the future, take steps to ensure that one is not similarly sloppy.

This is still only part of the necessary discussion. Your question also states that there may be non-kosher items in the medicine. This raises the question of how we are to approach items when the kashrut of the item is in question. The above discussion assumes we are dealing with an item that is not kosher. Your question concerns an item that is not definitely non-kosher. Does that change the response?

In addition, even if the item contained non-kosher items, does the issue of kashrut even apply in such circumstances, to this type of medicine? The kosher laws apply to foodstuffs and for something to be defined as not kosher it has to meet certain standards of being edible. Right from the beginning there would actually seem not to be an issue for we are talking about some type of lotion and not a food product. Assuming it not to be edible, the whole issue of kashrut would seem to not even apply. On the other hand, we should still note, there is a mandate also within the Halacha to take care of oneself (see Devarim 4:15) and thus, if this lotion applied on the skin could make someone ill, aside from a general health directive, there would also be a halachic directive to try and put on the lotion without consuming it for one could get sick thereby. Is there a problem? Yes and learn thereby to be more careful.

What about the question of whether there really was a non-kosher item in the item or not (assuming it to be food). Lack of surety regarding a substance can, at times, indeed lead to a distinction in the halachic conclusion. There are times when a substance for which one is unsure of the kashrut is to be treated exactly the same as if there was absolute knowledge that it was not kosher. There are other times, though, where a question of surety of substance can yield a different conclusion. The application of these laws, though, can be complicated so I won’t go further into this topic at this time; my purpose being to simply point out this issue.

There is, perhaps, one other concept I should also point out before concluding. While our case here did not involve a foodstuff, there is law involving food that has some application to the concepts we have discussed. From what I have presented, we can conclude that eating something not kosher is only a problem if done in a sinful manner, be it meizid or shogeg. The fact that one consumed something not kosher accidently is not a problem, i.e. the person has done nothing wrong. There is a question in the literature, though, regarding a Jewish baby nursing from a non-Jewish woman (with the assumption that she has eaten non-kosher food, albeit, as a non-Jew, she is permitted to do so) and/or a Jewish baby nursing from his/her mother after the mother ate, with halachic permission because of illness, something not kosher. Even though no sin would be involved in this, Rema, Shulchan Aruch, Yoreh De’ah 81:7 still states that this should still be avoided if possible as non-kosher items, even if consumed in a manner without sin, can still be detrimental to our souls. Thus, pursuant to this viewpoint, when it comes to issues of kashrut, our concern can even go beyond the issue of sin. Others, however, still disagree with Rema’s view and permit the nursing of a baby by a mother who, with permission, ate something not kosher for such an item is only detrimental if its consumption is done in sin. Further to our purposes, I would still like to point out that Rema is still dealing with a question of behaviour. What should a nursing mother do? You still don’t find a question of what to do with a baby who nursed from a non-Jewish woman.

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