It’s for the Birds

The Mitzvah of Shiluach Hakein

Question #1: Required???

“Must I physically send away the mother bird? I am
squeamish!”

Question #2: Keep the Babies

“Must I take the young to fulfill the mitzvah?”

Question #3: Educated!

“I am so excited about the opportunity to fulfill this
special mitzvah, with all its rewards, but I want to make sure I do it
properly. Can you please enlighten me?”

Well known and poorly understood

This week’s parsha includes the laws of a mitzvah,
or more accurately, two mitzvos that are both well-known and yet poorly
understood. The Torah teaches that when we happen to find a nest of birds, we
are to send away the mother and keep the young; that is, either the baby birds
or the eggs. An entire chapter of Mishnah and Gemara, the twelfth
and last perek of Chullin, is devoted to understanding this mitzvah,
which actually involves two mitzvos, a lo saaseh, a prohibition
against taking the mother, and a mitzvas aseih, a positive mitzvah
to send away the mother. At the same time, the Torah itself teaches of a very
specific reward gained by someone who observes this mitzvah. We will
therefore begin the study of this fascinating mitzvah in this article.

Let us rephrase briefly the first two of our opening
questions:

1. Should I find such a nest, may I simply ignore it and
continue on my way, or is doing so ignoring a requirement to fulfill a mitzvah?

2. “Must I take the young to fulfill the mitzvah?”
When I send away the mother bird, am I required to keep the young, or, at
least, to physically lift up the eggs or baby birds, thereby taking possession
of them? Or have I completed the performance of the mitzvah simply by
sending away the mother?

Introduction

At this point, we should read the words of the Torah very
carefully, because answering some of our questions will depend on properly
understanding these words.

Ki yikarei kan tzipor lefanecha baderech, bechol eitz oh
al ha’aretz, efrochim oh beitzim, veha’eim rovetzes al ha’efrochim oh al
habeitzim, lo sikach ha’eim al habanim. Shalei’ach teshalach es ha’eim, ve’es
habanim tikach loch, lemaan yitav loch veha’archata yamim.“If a
bird’s nest, containing either chicks or eggs, happens to be before you on the
road, whether it (the nest) is in a tree or on the ground, and the mother is
nesting upon the chicks or upon the eggs, you shall not take the mother
from/with the offspring. (I will explain shortly why I left the translation
this way.) You shall certainly send away the mother and take the young for
yourself, so that it will be good for you, and you shall lengthen your days” (Devorim
22:6-7).

Off the derech

Several points in these pesukim are uncertain. The
Torah states that the nest must be on the derech, which means on the way
or road. Why does the Torah need to tell you that it was on the road? Does this
mitzvah not apply if the mother bird is off the derech?

The Gemara first suggests that the Torah is teaching
that there is no mitzvah of shiluach hakein if the bird built her
nest on the water. However, the Gemara demonstrates that this halacha
is inaccurate — a waterway is also called a derech, and, should one
find a nest on a waterway, the mitzvah of shiluach hakein
applies.

So, what case is exempt, because mommy bird is “off the
derech”? The Gemara concludes that there is no mitzvah
of shiluach hakein should the nest be on your property, since this is
not called “on the way,” which implies an ownerless area (Chullin 139b).
The Mishnah states that geese or chickens that set up their nests in an
orchard are included in the mitzvah of shiluach hakein, whereas
there is no requirement to send away the mother goose or hen if she set up her
nest in the house. The Mishnah’s term “chickens that set up their nests
in an orchard” means that they have run away from the owner’s jurisdiction.
However, if the chickens or geese are “rebellious,” occasionally wandering
beyond the confines of their usual home, but still returning to the owner’s
barn for nesting, they are still considered “owned.” Similarly, the laws of shiluach
hakein apply to an ownerless bird that nests on your property (Shulchan
Aruch, Yoreh Deah 292:2).

Late poskim explain that you are exempt from
performing the mitzvah on birds that could easily become yours, even if
at the moment they are not your property. Without delving into the halachic
analysis entailed, they conclude that the mitzvah of shiluach hakein
does not apply to chickens and similar domesticated species, unless this particular
bird refuses to be domesticated (Shu”t Imrei Yosher #158; Minchas
Shelomoh 2:97:26).

On the other hand, the mitzvah does apply, in
general, to doves and pigeons, which, even when kept in dovecotes, are not as
domesticated as chickens. However, one is exempt from performing the mitzvah
of shiluach hakein in the case of homing pigeons, which accept human
domination. This means that someone can remove chickens or homing pigeons
roosting on a nest and bring them to the shocheit.

Mommy or daddy

There are species of birds in which the father roosts on the
nest, or the two parents take turns. In this instance, does the mitzvah
apply, regardless as to which parent is on the nest, or is the mitzvah
gender-specific, applying only if the mother bird is on the nest? This question
is debated in the Mishnah and discussed in the Gemara. Normative halacha
rules that the mitzvah applies only if mother bird is on the nest. This
conclusion is implied by the posuk when it says veha’eim rovetzes,
“and the mother is nesting.”

Therefore, in order to fulfill the mitzvah of shiluach
hakein, one must first determine that the nesting bird is, indeed, the
mother. One does not require a DNA test to verify these facts – usually a bit
of observation will show you whether one bird or two are nesting.

This question is germane to pigeons, who present the most
common contemporary application of shiluach hakein, since
non-domesticated ones often create their nests near or in human habitation.
Pigeons, which are loyal to their mates for life, take turns roosting on the
nest. Usually, the daddy bird takes day shift and mommy does the night shift.
(During their time off, each parent goes out to earn a living. Not many
social-life options in a full nest.)

There are several halachic ramifications to this
social knowledge of pigeon family structure, of which I will share two. Should
someone be interested in harvesting both a pigeon parent and its eggs or young,
he can determine which parent is male, and then, at the appropriate time, seize
daddy bird and the young at the same time without violating any prohibition of
the Torah.

A second ramification applies to someone eager to fulfill
the mitzvah of shiluach hakein. Before sending away the nesting
bird, one should determine whether, at the moment, mommy or daddy is roosting
there. If it is daddy, no mitzvah is fulfilled by sending him away, even
if you are a father’s rights activist.

From or with?

Allow me to return to the laws that we derive from
understanding the posuk. The Torah writes, lo sikach ha’eim al
habanim, which can be translated and explained in more than one way. It
could mean that you should not take the mommy from the young, which
would mean that the prohibition is taking the mother, even should you leave the
offspring, which is the way Rashi explains the verse (as explained by Maharal;
note that Mizrachi seems to have understood Rashi differently).
On the other hand, the Rambam (Sefer Hamitzvos, Lo Saaseh #306)
translates the phrase ha’eim al habanim as with the young,
meaning that one violates the lo saaseh prohibition only if one takes
both mother and offspring. Should someone take the mother and not the
offspring, in the Rambam’s opinion, he violated the mitzvas aseih
commanding him to send away the mother, but not the lo saaseh. According
to Rashi, this person also violated the lo saaseh. Thus, we see
that a halachic difference can hinge on how you translate the
preposition al.

Earlier in this article, I translated this passage as “You
shall not take the mother from/with the young.” This was in order to avoid
biasing someone from translating the posuk in a way that supports either
side of the dispute between rishonim.

Required???

Our opening question was: “Must I physically send away the
mother bird? I am squeamish!” Or, as I explained it: Should I find such a nest,
may I simply ignore it and continue on my way, or would I thereby be ignoring a
requirement to fulfill a mitzvah?

To explain this a bit better: The Torah includes mitzvos
that I am required to observe, such asputting on tefillin and
eating matzoh on Pesach. Shiluach hakein is certainly not
such a mitzvah, since it depends upon circumstance and applies only when
I find a nest. However, among mitzvos of the Torah that are
non-obligatory, there are different levels of requirement. Some mitzvos
are simply a matir, they permit me to do something, but I have no
obligation to do them, whereas others become obligatory when certain
circumstances apply.

Some examples will make our explanation clearer. Here is an
example of a mitzvah that is not required: shechitah. I am not
required to walk down the street looking for animals to shecht. Even if
I am a shocheit and someone asks me to shecht for them, it is not
a requirement. The mitzvah is simply: If you want to eat meat, the
animal must be shechted in a specific way. If one does not shecht
it correctly, one may not eat the meat.

This type of mitzvah is a matir. There is no
requirement to observe the mitzvah, but if I want to gain a certain
benefit, the Torah provides me with specific instruction how to permit it.

If we understand shiluach hakein to be a matir,
then what the Torah instructed is that if I find a nesting bird, I may not take
both the young and their mother for my purposes. If I want to take the young, I
must first send away the mother. (By the way, it is forbidden to take the
mother, even if I do not want to take the young.)

Required

There is another way to understand shiluach hakein,
which holds that this mitzvah is not a matir, but a requirement,
should I encounter the appropriate situation. I will explain the second
approach by comparison to a different mitzvah.

One of the Torah’s mitzvos is to return lost objects.
There is no requirement for me to try to find lost objects in order to return
them to their owner. However, once I see a lost object, I am required to
retrieve the item and return it. If one understands that the mitzvah of shiluach
hakein is comparable to hashavas aveidah, then, although I am not
required to go looking for nesting birds, should I find one, I am required to
send away the mother.

Based on Talmudic sources, early acharonim discuss
whether shiluach hakein should be considered a matir or a
requirement. If it is a matir, then our squeamish questioner is not
required to fulfill the mitzvah. However, if it is a requirement, then
it is a mitzvah that must be fulfilled. Halachically, it will be
approximately equivalent to living in a house and not putting mezuzos on
the doors.

Shalei’ach

The question is how one explains the words of the posuk,
which says Shalei’ach teshalach es ha’eim, “You shall certainly send
away the mother.” Here are two ways:

There is no requirement to send away the mother, but should
I happen upon a nest and want to eat the mother bird, the young, or both, I may
not take the mother, but must send her away. The act of sending away the mother
permits me to keep the young, should I want to take them. According to this
approach, the mitzvah of shiluach hakein is similar to shechitah.
There is no requirement to shecht, but should I want to eat meat, this
is the way to do so.

On the other hand, perhaps the mitzvah of shiluach
hakein is similar to the mitzvah of hashavas aveidah. This
would mean that should I find a nest, I am now required to send away the
mother.

Among the early acharonim, we find a responsum from
the Chavos Ya’ir (#67) discussing this issue. To quote the Chavos
Yair: “I was asked: if someone comes across a nest while he is walking
through a field, is he required to send away the mother, or may he just
continue on his way without doing anything?”

The Chavos Yair analyzes several passages of the Gemara
in his attempt to prove which approach is correct. Based on his analysis of
several texts of Chazal, he concludes that shiluach hakein is
like hashavas aveidah, and, should one find a nest that meets the halachic
requirements, there is an obligation to send away the mother, even though one
has no interest in the young. This position is also accepted by several other
prominent, later poskim (Shu”t Chacham Zvi #83; Rabbi Akiva
Eiger to Yoreh Deah 292:1; Aruch Hashulchan, Yoreh De’ah
292:1-2).

On the other hand, there are several prominent poskim who
dispute this ruling, concluding that shiluach hakein is a matir, like
shechitah (Sefer Hamitzvos Hakatzar [of the Chofetz Chayim]
Mitzvos Aseh #74; Chazon Ish (Yoreh De’ah 175:2); Shu”t
Avnei  Neizer, Orach Chayim #48; Minchas Shelomoh 2:5:4 [5760
edition].

Keep the babies

Our second question that I quoted above was: “Must I take
the young to fulfill the mitzvah?” I explained that the question is:
When I send away the mother bird, am I required to keep the young, or, at
least, to physically lift up the eggs or baby birds, thereby taking possession
of them? Or have I completed the performance of the mitzvah simply by
sending away the mother?

This is another halachic question that is dependent
on the translation of a word of the posuk: The Torah says “You shall
certainly send away the mother and take the young for yourself.” Does the Torah
mean that you may take the young for yourself or that you are
required to take the young? According to the second approach, the mitzvah
is fulfilled only if one picks up the eggs or baby birds. If one does not pick
them up, one has not fulfilled the mitzvah. According to the first
approach, the mitzvah is fulfilled by sending away the mother. Once one
has sent her away and fulfilled the mitzvah, one may pick up the eggs, should
one want them, or leave them as is.

Again, the correct interpretation depends on a proper
understanding of the posuk.

The Torah states, ve’es habanim tikach loch, “And
take the young for yourself.” Is this part of the requirement of the mitzvah?
In other words, did the Torah command that we perform two steps, send away the
mother and take the young? Or, more simply, the Torah instructed that once you
sent away the mother, you are permitted to keep the young for yourself.

This question is discussed by a prominent, early acharon,
the Chacham Tzvi (Shu”t Chacham Tzvi #83). To quote him: “That
which you asked me: One who sends away both the mother and the offspring, did
he fulfill the mitzvah of shiluach hakein? Do we say that the
words of the Torah, send away the mother and keep the young, must be
fulfilled literally to fulfill the mitzvah, or not? You wrote me that
the great scholars of Lublin were uncertain about this.”

The Chacham Tzvi rallies source material from the Gemara
that the mitzvah is to send away the mother, and one fulfills the mitzvah,
even if one does not take the young. Therefore, taking the young is not a
requirement for the fulfillment of the mitzvah, but presents an option
for the individual performing the mitzvah.  He compares this to the
words of the Torah, “Six days shall you work, and do all your melacha.”
Clearly, the Torah is not requiring one to work, but limiting one’s work time
to six days of the seven-day week. Similarly, shiluach hakein should be
understood that should you want to take the young, you may do so only after
sending away the mother, but there is no requirement to take the young. Put in
other terms, sending away the mother is a matir that permits taking the
young, similar to shechitah being the matir permitting one to
consume the meat. Just as shechitah does not require that someone eat
the meat, so too, it is not required to take the young, and one fulfills the mitzvah
without taking them.

Other acharonim disagree, demonstrating from the Zohar
that one is supposed to take the offspring (Beis Lechem Yehudah).
The Aruch Hashulchan (Yoreh Deah 292:3-4) concludes, like the Chacham
Tzvi, that there is no requirement to take the offspring. Nevertheless,
since the posuk implies that one should, and there is evidence of this
approach from some rishonim, the Aruch Hashulchan concludes that
the proper approach is to make a kinyan on the young, such as by lifting
them up. Furthermore, he notes that, according to the reason for the mitzvah
of shiluach hakein proposed by many early authorities, which I hope to
discuss in a future article, one should take the young.

Conclusion

The mitzvah we have just studied teaches that although we
may eat kosher birds, we are prohibited to take a mother bird when she is in
her nest tending to her young. In explanation of the reason for this mitzvah,
Rav Hirsch sees a lesson to be learned regarding the sacred role of motherhood.
To quote him: “The respect that a nation accords to the woman’s calling is a
reliable barometer of that nation’s moral level… the paramount importance the
Torah attaches to the woman’s activities… traces even into the sphere of animal
life. It assures protection for a mother bird while she is engaged in her
activity as a mother and it demands that everyone… should demonstrate through
his actions this appreciation of the female as she carries out her task.”