Unkosher Tefillin From A Kosher Animal!
‘Shechita Does Not Permit the Meat’
(Bava Kamma 76b)
When a behema tehora (a ritually clean animal) owned by a Jew gives birth to a bechor (a firstborn male), it may not be slaughtered and eaten. During the time of the Beis HaMikdash, the bechorim were sacrificed on the altar. Today it is only permitted to use a firstborn animal if it has a birth defect or became maimed subsequent to its birth in a manner that renders 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), but in such cases the Sages penalized the owner (this penalty would not apply to his son who inherits him), not allowing him any benefit unless the animal was maimed without human intervention (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 (blemishes) rule that it no longer retains its original sanctity. Where the animal was slaughtered without its owner first obtaining a dispensation, our Sages imposed a penalty forbidding the owner any benefit from it (Yoreh Deah 310:1). Accordingly, in the case where an unblemished bechor was slaughtered, both the Torah and the Sages forbade gaining benefit from it. According to the Torah, it is like any other sacrifice slaughtered outside the Beis HaMikdash, which carries a prohibition against deriving benefit, while according to the Sages it is forbidden because they decreed that even a maimed bechor must be checked by a chacham before being slaughtered.
Short Supply
These halachos are particularly relevant today. Based on a Halacha Lemoshe Misinai, tefillin batim (boxes) and straps may only be produced from the hide of a ritually pure animal (O.C. 32:37). Batim makers actually use the skin of heads of cattle, but the supply of ritually pure hides from slaughter houses in Eretz Yisrael that are careful not to slaughter bechorim, falls short of the demand. The poskim were therefore asked whether it would be allowable to use hides that questionably might have come from bechorim.
Rabbi Yosef Efrati, chairman of the beis medrash at the Institute for Agricultural Research According to Halacha, further noted the severity of the problem: Since cows give birth to an average of 3.3 calves, more than one-sixth of the animals slaughtered, taking into account the male-female distribution, are bechorim.
Safek Bechor
Some poskim suggested permitting the use of hides from a safek bechor based on Tosafos (Bava Kamma 76a) (s.v. shechitah she’einah), who state that an animal slaughtered outside the Beis HaMikdash is unlike other pesulim – ritual flaws – in that it is no longer considered a korban (sacrifice); therefore, they reason that if a bechor is slaughtered, although it would be in violation of the prohibition, the animal should also lose its sanctity as a korban since there is no greater flaw, in this case the improper slaughter. (However, if we rule that the bechor retains its sanctity, the halacha would require that a stringent approach be followed in cases of doubt regarding Torah prohibitions.) In terms of the remaining rabbinical prohibition against deriving benefit from it, since it may or may not be a bechor, it would seem that there might be reason for leniency based on the rule safek d’rabannan lekula. However, most poskim do not permit relying on this reasoning (see Sdei Chemed VI, Ma’areches Bechor Beheimah, siman kattan 5; Responsa Meishiv Davar 74 Ve’ad).
One of the reasons presented in favor of the use of such hides is based on a national law in Eretz Yisrael. Every head of cattle must have a serial number hanging from a hole in its ear, meaning there are no unblemished bechorim today. However, this heter might be inadequate as well, since according to a halachic deliberation (which is outside the scope of this article), a small hole is not enough to render it unfit for sacrifice (Responsa Minchas Yitzchok 9:107).
A Solution
Indeed, when a G-d-fearing Jew buys tefillin, in addition to many other factors, he should verify that the hide used for the tefillin and straps are not from a forbidden bechor. Today, 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). Thus such “bechorim” will have no kedusha since they belong to non-Jews.
