Unkosher Tefillin From A Kosher Animal
‘Shechitah Does Not Make The Meat Permissible’
(Bava Kamma 76b)
A bechor of a behemah tehorah owned by a Jew may not be slaughtered and eaten. When the Beth Hamikdash stood, it was sacrificed on the altar. Today it is not slaughtered, but it is also not permitted for consumption. It is only permitted if it has a birth defect or became maimed subsequent to its birth in a manner that would render it unfit for use as a sacrifice.
Biblically, one may derive benefit from a bechor even if it was intentionally maimed (see Shach, Yoreh Deah 313:2). The Sages, however, penalized an owner who maimed a bechor intentionally, not allowing him to benefit from it (Yoreh Deah, ibid., 1). The Sages also ruled that even a bechor with an obvious defect, such as a severed foot or a blind eye, should not be slaughtered unless three scholars who are conversant with the halachos of mummim rule that it no longer retains its original sanctity.
If the animal was slaughtered without its owner first obtaining the permission of mummim, our Sages imposed a penalty, forbidding him from benefiting from it (Yoreh Deah 310:1). Thus, this animal may not be benefited from according to biblical law (because it was slaughtered outside the Beth Hamikdash) and rabbinic law (because the Sages decreed that even a maimed bechor must be checked by a chacham before being slaughtered).
Short Supply
These halachos are particularly relevant today because based on a halacha leMoshe misinai, tefillin batim and straps may only be produced from the hide of a ritually pure animal (Orach Chayim 32:37). The supply of ritually pure hides from slaughterhouses in Eretz Yisrael that are careful not to slaughter bechorim, however, falls short of the demand. Poskim therefore have been asked whether one can use hides that might have come from bechorim for tefillin.
Rabbi Yosef Efrati, chairman of the beth medrash at the Institute for Agricultural Research According to Halacha, notes the severity of the problem: since cows give birth to an average of 3.3 calves, more than one-sixth of slaughtered animals, taking into account the male-female distribution, are bechorim.
Safek Bechor
Some poskim suggest permitting the use of hides from a safek bechor based on Tosafos (Bava Kamma 76a) (s.v. shechitah she’einah) who states that an animal slaughtered outside the Beth Hamikdash is unlike other pesulim in that it is no longer considered a korban. Therefore, the animal should lose its sanctity. It’s true that there still is a rabbinical prohibition against benefiting from it, but since it may no longer be a bechor now, there might be room for leniency based on the rule of safek d’rabannan lekula. Most poskim, though, do not permit relying on this reasoning (see Sdei Chemed VI, Ma’areches Bechor Beheimah, siman kattan 5; Responsa Meishiv Davar 74 Ve’ad).
Some poskim suggest we may use hides that might have come from a bechor because a law in Eretz Yisrael requires that every head of cattle must have a serial number hanging from a hole in its ear. In other words, there are no unblemished bechorim today. However, this heter might be inadequate since according to a halachic deliberation (which is outside the scope of this article), a small hole is not enough to render an animal unfit for sacrifice (Responsa Minchas Yitzchok 9:107).
A Solution
The Institute for Agricultural Research According to Halacha, which is supported by leading poskim, is working to reduce this problem as much as possible. Representatives of the Institute contact as many cattlemen as possible and try to convince them to sign a document that transfers to non-Jews ownership of the windpipe and esophagus of their animals that have not yet given birth (see Yoreh De’ah 320:6). These “bechorim” then will possess no kedushah since they belong to non-Jews.