QUESTION

Washington, D.C.

A baby boy was born Wednesday night. Sunset was 8:04. The father initially thought he was born at 8:06, however, the birth certificate says 7:58. Does this qualify as a safeik?

ANSWER

In such a case we would follow the doctor’s recording of the time and rule that the birth occurred on Wednesday before sunset, and the brit will be on the following Wednesday.

To understand why, we have to consider two scenarios:

1. The most likely scenario is that the father’s time is not the moment of halakhic birth. According to halakha, the halakhic time of birth is when the majority of the baby’s head comes out – הוציא ראשו (Shulchan Arukh YD 262:4,6), which is defined as רב ראש – the majority of the head (Shulchan Arukh YD 194:10).  The obgyn records the time of birth after this, at the moment of full birth – when the entire body of the baby comes out, usually around five minutes later, often less, but sometimes even more. The father also almost definitely was timing from the moment of full birth.  In our case, the doctor’s time was 6 minutes before sunset, which would mean that the halakhic birth was probably around 9 minutes before sunset. The father’s time, in contrast, was 8:06, 2 minutes after sunset. However this was the time of full birth. It is totally reasonable that even according to this timing of full birth, the actual halakhic birth – הוציא רוב ראשו – was before 8:04, i.e., before sunset. So we have the doctor’s time which is definitely Wednesday, and the father’s time which can’t be factored in, since it is completely indeterminate when crowning was according to this timing, and just as likely that it was before sunset rather than after. Thus, the doctor’s time is the only one that matters, and according to it, the baby was born on Wednesday.[It is important to remember this distinction between the timing on the birth certificate – which is based on when the baby was fully born – and the halakhic time of birth, which is based on crowning. If the birth certificate reads 1 minute after sunset, the halakhic time of birth is likely before sunset.]
2. The unlikely scenario is that the father’s time is based on the moment of crowning, when halakhic birth is said to occur. To determine if this was the case, one should ask the father what event he was timing from. If he indeed says the crowning, then his timing of halakhic birth would be Bein HaShmashot between Wednesday and Thursday, resulting in a Thursday bris. This would contradict the doctor’s time of the birth, Wednesday, which would result in a Wednesday bris. Even in this scenario, we would rely on the doctor’s time for three reasons:
   • It is the doctor’s professional responsibility to record the time accurately, as opposed to the father who has no such responsibility and regardless is probably somewhat emotionally overwhelmed by all that is happening. (See Tosafot, Hullin, 97a, s.v. Samchinan; and YD 98, in Taz (#2) and Shach (#2).
   • According to Rav Moshe (Iggrot Moshe OC 4:62), one can assume, even for brit milah, that it is still day up until 9 minutes after sunset. According to this, the father’s time of 8:06, two minutes after sunset, would still be Wednesday day according to Rav Moshe.
   • Safeik Sefeika. According to the father it was Bein HaShemashot and according to the doctor it was definitely day. So, if the doctor is right, it is Wednesday. And even if the father is right, it might also still be Wednesday. So we should just conclude that it is Wednesday.

To summarize,  if the father counted from full birth, it would definitely be a Wednesday birth. If he counted from crowning, his count would indicate Bein HaShmashot, but we would nevertheless rule that the birth was Wednesday because: (a) the doctor’s recording of the time should be assumed to be the more accurate one; (b) Rav Moshe says 9 minutes after sunset is still day; and (3) Safeik sefeika.

Some poskim are not totally convinced by these three arguments and would rule that if the father indeed counted from birth (scenario 2), that we have to be concerned for this timing, and the brit should be done on Thursday. Their argument is that even if the actual date is Wednesday, one fulfils the mitzvah on Thursday, and thus we should play it safe and do it on Thursday. Although it is a brit shelo bizmano – a late brit, it is still kosher. Doing it on Wednesday, one the other hand, would not be kosher if the actual date is Thursday, as this would be an early brit, before day 8. These poskim might be hesitant to give weight to the argument of professional responsibility if the father’s testimony contradicts it, and are hesitant to rely on Rav Moshe which is based on a number of assumptions that are debatable, and upon whom we do not basically rely when it comes to timing a Shabbat brit milah. Likewise, the safeik sefeika argument can be debated since it is all really one question – משם אחד – is it day or night?

Nevertheless, in the balance, I believe for all the reasons cited above that we should follow the doctor’s timing and the bris should be done on Wednesday.