New York – Today’s DAF: (Bava basra 140b) When Men May Not Be Men

New York – Our daf (Bava basra 140b) discusses the status of a Tumtum vis avis his other brothers and sisters when it comes to a inheritance. When
there is a larger estate the males push the Tumtum to the sisters; when there is a smaller estate the sisters push the Tumtum to the brothers.

We have learned, of course, that when the estate is smaller the daughters get more than the son.

A few years ago, a case appeared before Rav Elyashiv told to this author by Rav Yitzchok Zilberstein Shlita, his son-in-law. A frum man had been raised properly in the traditions of Yiddishkeit. When he hit forty, he had to do some genetic testing and according to the genetic tests – from the chromosomal perspective – he was a woman. What was he to do? Should he continue putting on Tefillin? May he still be counted as the asarah Rishonim? Nafshoh besheailaso..

The answer was as follows: There are a number of positions as to the halachic status of an androgynous. The Raavad holds that an androgynous is a briah mipnei atzmo – a third type – different than female or male. The combination of these shitos could be a considered a sfek sfaikah – a double doubt. Even though the Shach in YD Siman 110 holds that a sfek sfaikah has to be reversible – many achronim disagree with this Shach.

Rav Elyashiv ruled that he may continue leading his life like a man and he may be counted in a minyan. In regard to what the person’s status is regarding our Mishna, it would seem to this author that he would have the same status as the Tumtum in our Mishna. The reason is that to be motzi mammon, stronger chazakos need to be used and we cannot be motzi mammon based on a sfek sfaikah.