Is milk kosher? I am not referring to some unmarked bottle of milk. We will have to save that for another article. Rather I am referring to chalav Yisrael milk with a reliable hashgacha. We certainly would like to believe that it is. However, the Gemara in Bechoros 6b doubted this very fact, and searched for a source to permit the dairy substance. The simple pshat in the Gemara is that milk should be considered an extract from a living animal, which is prohibited under the category of basar min hachai, which is forbidden. So, why is it permitted?
After refuting several attempted sources, the Gemara concludes with three sources. One famous pasuk the Gemara cites praises Eretz Yisrael as the land flowing of milk and honey. The Gemara observes that certainly the Torah would not have praised Eretz Yisrael with forbidden resources. Thus, concludes the Gemara, milk is indeed permitted. The Gemara also cites two other pesukim that also mention the use of milk indicating its permissibility.
The Shita Mekubetzes there asks why the Gemara did not cite a source to permit the consumption of milk from a pasuk in this week’s parsha. One of the things that Avraham served his three guests was milk. Certainly, Avraham would not have served his guests something that was not permitted. As the Gemaras in Kiddushin 82a and Yuma 28b both say that Avraham Avinu kept the entire Torah, even though it was not yet given. Why then did the Gemara not draw a proof to the permissibility of milk from this pasuk?
The Shita Mekubetzes answers that Avraham assumed that his guests were Bnei Noach, who are permitted to consume basar min hachai. Therefore we cannot extrapolate a proof that milk is permitted for us who are prohibited from consuming basar min hachai. Bnei Noach are only prohibited from consuming eiver min hachai – a complete limb detached from a live animal, if only a part of a limb or milk is detached from an animal it is not considered eiver min hachai, rather basar min hachai and bnei Noach are permitted to consume this.
The Rambam in Hilchos Melachim (9:10) rules that bnei Noach are forbidden to consume basar min hachai as well as eiver min hachai. Clearly, we cannot extend the answer of the Shita Mekubetzes to the Rambam. Thus the question remains, why did the Gemara not deduce from this episode that milk is permitted?
The Noda B’Yehuda (Tinyana Yoreh Deah 36) explains that in fact the Gemara did not entertain a possibility that milk would be prohibited as basar min hachai. The Noda B’Yehuda maintains that there is no thought that milk could be basar min hachai for it is not basar, a piece of meat. Rather, the Gemara questioned whether milk was prohibited under the prohibition of aino zavuach – eating from an animal that was not shechted. This prohibition definitely does not apply to bnei Noach. Therefore, we can suggest that the Rambam could answer in a similar fashion to the Shita Mekubetzes, namely that the perspective prohibition of milk would not have applied to bnei Noach. However, the Rambam will have to learn that the suggested prohibition was different, namely, the prohibition would have been aino zavuach, which does not apply to bnei Noach, instead of basar min hachai.
The answer of the Noda B’Yehuda may apply to the Rambam, however not all Rishonim agree to the prohibition of aino zavuach. We can introduce another explanation of the Gemara as to what the possible prohibition of milk would have been. Rav Akiva Eiger (Chullin 98b) explains that the Gemara was alluding to the prohibition of yotzei min ha’issur. Anything that comes out of something that is prohibited, is itself prohibited. For example, if a camel gives birth to a cow, that chews its cud and has split hooves, it will nonetheless be prohibited, for it came out of something prohibited. Therefore, since milk comes from a live animal, which is prohibited even for bnei Noach, the milk should have been prohibited as well.
However, even though the source where the milk came from is prohibited to bnei Noach, the milk would have been permitted to bnei Noach even in the thought that milk was prohibited to Bnei Yisrael. This is because the halacha that anything that comes out of something that is prohibited, is itself prohibited only applies to Bnei Yisrael.