Talmud - Bekhorot 42b בכורות מ״ב ב׳

ben Yehuda comes to say: A tumtum is not of uncertain status, but a distinct entity, and it is not sacred at all. The Gemara responds: No, everyone agrees with regard to the statement that a tumtum is a distinct entity that there is no doubt that this is incorrect. Where there is doubt is with regard to whether it is a male or a female.

In addition, in a case where the tumtum urinates from the place of the male sex organ, then everyone agrees that it is a male. When they disagree is in the case of a tumtum that urinates from the place of the female sex organ. One Sage, the Rabbis, holds that we are concerned that perhaps its male sex organ was inverted toward its female sex organ; therefore, it is of uncertain status. And one Sage, Rabbi Shimon ben Yehuda, holds that we are not concerned about this possibility; rather, it is definitely a female. And Rabbi Shimon ben Yehuda maintains in accordance with that which Rabbi Elazar ruled: With regard to a firstborn animal that urinates from the place where the female sex organ is found, it is non-sacred, as it is certainly a female.

Rabbi Yoḥanan wondered about this ruling of Rabbi Elazar: Who is the Sage who is not concerned about the opinion of the first tanna in the mishna and about the opinion of Rabbi Yishmael, who maintain that a tumtum is a case of uncertainty? The Gemara asks: And let Rabbi Yoḥanan also say: Who is this who is not concerned about the opinion of the latter Rabbis in the mishna, as Rav Ḥisda says: This dispute refers to a hermaphrodite; but with regard to a tumtum, everyone agrees that it is an uncertain case.

The Gemara explains that Rabbi Yoḥanan does not hold in accordance with that statement of Rav Ḥisda; rather, he maintains that according to the latter Rabbis a tumtum is a distinct entity. The Gemara asks: If Rabbi Yoḥanan does not hold in accordance with Rav Ḥisda, why did he wonder about Rabbi Elazar’s ruling? Let him say that Rabbi Elazar said his opinion in accordance with the opinion of the latter Rabbis. The Gemara answers: That is indeed what he is saying: Who is the Sage who leaves aside the opinion of two Sages, the first tanna and Rabbi Yishmael, and acts in accordance with one opinion, the latter Rabbis?

The Gemara asks: And Rabbi Elazar, in accordance with whose opinion does he hold? The Gemara answers that he holds in accordance with that which Reish Lakish says: The Sages said that the halakhic status of a tumtum is an uncertain case only with regard to a person, since the male sex organ and the female sex organ are in one place, i.e., a man and a woman urinate from the same area of the body. Since that area is concealed in the case of a tumtum, its status is uncertain. But with regard to a tumtum animal, there is no uncertainty whether it is a male or a female, as the genitals of a male and a female are not found in the same place. Rather, if it urinates from the place of the male sex organ, it is a male; if it urinates from the place of the female sex organ, it is a female.

Rav Oshaya objects to this: And let us be concerned that perhaps its male sex organ was turned round to the place of its female sex organ. Abaye said to him: In accordance with whose opinion do you raise this objection? Is it in accordance with the opinion of Rabbi Meir, who is concerned about the minority of cases? The halakha is not in accordance with the opinion of Rabbi Meir, and therefore one should follow the majority of animals, to whom this does not occur.

Abaye bar Avin and Rav Ḥananya bar Avin both say: You may even say that Rav Oshaya’s objection is in accordance with the opinion of the Rabbis, who are not concerned about a minority. The reason is that since in this case, the animal has changed in that it is different from typical animals, as it is a tumtum, perhaps it is also changed with regard to its male sex organ being inverted toward the female sex organ. If so, the Sages disagree with regard to this principle: There are those who say that since it has changed, it has changed, and there are those who say that the claim that since it has changed, it has changed is not accepted.

The Gemara suggests: Let us say that the question of whether an animal that has changed in one respect has changed in a different respect, or whether it has not changed, is the subject of a dispute between tanna’im. As it is taught in a baraita: With regard to a tumtum who betrothed a woman, the betrothal is considered a betrothal, due to uncertainty, as the tumtum might be a male; and similarly, if the tumtum was betrothed by a man, the betrothal is deemed a betrothal due to uncertainty, as the tumtum might be a female.

The baraita continues: And if the brother of the tumtum died childless, and there is no other brother who can perform levirate marriage with the widow, the tumtum performs ḥalitza, i.e., his brother’s widow removes his shoe, as the tumtum might be a male, and she would require ḥalitza to release her from the levirate bond. And if the tumtum died, one of the brothers of the tumtum performs ḥalitza with the wife of the tumtum, or enters into levirate marriage with the wife of the tumtum, in case the tumtum was a male. And it is taught in another baraita: The wife of a tumtum performs ḥalitza and does not enter into levirate marriage.

With regard to these two baraitot, the Sages assumed that everyone holds in accordance with the opinion of Rabbi Akiva, who says: A eunuch whose condition is caused naturally, i.e., one who was entirely lacking in sexual capacity from birth, does not perform ḥalitza and does not enter into levirate marriage with his sister-in-law, as he is not included in the mitzva of levirate marriage. Likewise, if he died his brothers do not perform ḥalitza with his wife, and they may not enter into levirate marriage with her, as she is forbidden to them as a brother’s wife who does not require levirate marriage.

Based on this assumption, the Gemara suggests: What, is it not that the two baraitot disagree about this, that the one who says that a tumtum performs ḥalitza and one of the brothers performs ḥalitza with the wife of the tumtum or enters into levirate marriage with the wife of the tumtum holds that we do not say that since this tumtum has changed from an average person, he might also have changed in that he is a eunuch whose condition is caused naturally, and therefore the brothers would be prohibited from entering into levirate marriage with the wife? Rather, if the tumtum is a male, it is assumed that he is capable of fathering children, and consequently his wife requires levirate marriage.

And the one who says that the wife of a tumtum performs ḥalitza and does not enter into levirate marriage maintains that we say that since this person has changed, he has changed, i.e., the possibility that he might be a eunuch whose condition is caused naturally is considered, and therefore his wife may not enter into levirate marriage.

The Gemara responds: No; everyone agrees that we say that since this person has changed, he has changed, and there is a concern that he might be a eunuch whose condition is caused naturally. Rather, the difference between the rulings is that this baraita, which permits the wife of the tumtum to enter levirate marriage, is in accordance with the opinion of Rabbi Eliezer, who disagrees with Rabbi Akiva and maintains that levirate marriage may be performed with the wife of a eunuch whose condition is caused naturally, and that baraita, which prohibits levirate marriage, is in accordance with the opinion of Rabbi Akiva, that the brothers of a eunuch whose condition is caused naturally do not enter into levirate marriage with the wife of the tumtum.

The Gemara asks: And who is the tanna who holds in accordance with the opinion of Rabbi Akiva that the wife of a eunuch whose condition is caused naturally does not require levirate marriage, and yet he maintains that the wife of a tumtum must perform ḥalitza? If we say it is Rabbi Yehuda, this cannot be, as in his opinion even if the genitals of a tumtum were revealed and he was found to be a male, he deems him like a definite eunuch whose condition is caused naturally, and therefore his wife does not require ḥalitza at all.

As we learned in a mishna (Yevamot 81a) that Rabbi Yehuda says: With regard to a tumtum who was torn open so that his genitals were exposed, and he was found to be a male, he must not perform ḥalitza, because he is treated like a eunuch whose condition is caused naturally. Just as this tumtum does not perform ḥalitza, so too, his widow does not require ḥalitza.

Rather, it is the opinion of Rabbi Yosei, son of Rabbi Yehuda, who maintains that if a tumtum was torn open and he was found to be a male, he is considered as a matter of uncertainty to be a eunuch whose condition is caused naturally, and consequently his wife requires ḥalitza. As it is taught in a baraita that Rabbi Yosei, son of Rabbi Yehuda, says: A tumtum does not perform ḥalitza with the wife of his late, childless brother if there are other brothers to perform ḥalitza, as perhaps the skin covering his genitals will be torn open and he will be found to be a eunuch whose condition is caused naturally, and the widow would not be released from the levirate bond by his ḥalitza. According to this opinion, it is not certain that a tumtum would be found to be a eunuch whose condition is caused naturally.

With regard to the opinion of Rabbi Yosei, son of Rabbi Yehuda, the Gemara asks: Why does this individual not perform ḥalitza due only to the possibility that he will be found to be a eunuch whose condition is caused naturally? Is that to say that every tumtum whose skin was torn is found to be a male and is not found to be a female? The Gemara explains that Rabbi Yosei, son of Rabbi Yehuda, said his opinion in the formulation of: Perhaps, which includes multiple uncertainties: A tumtum must not perform ḥalitza, as perhaps he will be torn open and found to be a female, who can certainly not perform ḥalitza.

Alternatively, if he is found to be a male, he may also not perform ḥalitza, since perhaps he will be found to be a eunuch whose condition is caused naturally. The Gemara asks: Since both Rabbi Yehuda and Rabbi Yosei, son of Rabbi Yehuda, agree that a tumtum may not perform ḥalitza for his brother’s wife, what is the practical difference between their opinions? Rava said:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Bechorot 42b examines the uncertain sex status of a tumtum firstborn animal, debating whether urination patterns determine its classification as male or female.