Question: Must a baal t’shuvah perform hatafas dam bris (drawing of new blood) where his initial milah was performed by a mohel who was not shomer Torah u’mitzvos?
Short Answer: While subject to a dispute between the contemporary poskim, the majority opinion appears to be to not require hatafas dam bris, although it is certainly virtuous if the baal t’shuvah wants to perform the hatafas dam bris.
I. The Akum Surgeon
The Gemara (Avodah Zarah 27a) rules that a milah performed by an akum is not valid. Two sources are suggested for this law: the pasuk of “v’ata es brisi tishmor” and “himol yimol.”
The Shulchan Aruch (Yoreh Dei’ah 264:1) codifies this Gemara and rules that a milah performed by an akum is not valid. The Shulchan Aruch adds, however, that if such a milah is performed, the baby does not need hatafas dam bris by a proper mohel. The B’eir HaGolah explains that the source of this leniency is based on a Rabbeinu Manoach that milah does need “lishmah.” The Taz (ibid, 3) agrees.
On the other hand, the Rama (ibid) cites the Tur in the name of the S’mag who rules that the baby does need hatafas dam bris. The Rama notes that this is the prevailing custom. The Vilna Gaon (ibid) provides support for this opinion based on the language of the Gemara – “pasul” – implying that hatafas dam bris is required.
II. The Rama’s Extension
The Rama, however, adds another point. A mohel who is a heretic who challenges the entire Torah, or even if he merely challenges the mitzvah of Milah, is the same as an akum and thus, according to the Rama, any milah performed by such a mohel would require hatafas dam bris.
Rabbi Akiva Eiger and the Vilna Gaon challenge this Rama based on Tosafos. Tosafos (Avodah Zarah ibid) suggests that a possible ramification between the two sources forbidding an akum to be a mohel is whether a heretic may serve as a mohel. According to the source “v’atah es brisi tishmor” he would be forbidden, as a heretic is not included in the covenant, while according to the pasuk of “himol yimol” he would be permitted, as a heretic is someone who at least has a milah on his own body (even if he thinks that others should not receive one). Tosafos then concludes that really according to both sources, a heretic can perform a milah as he is included in the covenant because if he wants, he can always choose to follow the mitzvah of Milah. Notably, Rabbi Akiva Eiger even suggests that the Rama agrees to his understanding, and only ruled that an akum requires hatafas dam bris. A heretic may ideally not be able to perform a milah, but if he does, hatafas dam bris is not required.
III. Practically Speaking
The contemporary poskim apply this machlokes between the Rama and Rabbi Akiva Eiger/Vilna Gaon to our situation where a non-shomer Torah u’mitzvos performed the initial milah on a abal t’shuvah. See sefer P’sakim U’T’shuvos (264:3).
The Minchas Yitzchak (4:101) cites the Avnei Tzedek who notes that we should follow the strict opinion in this machlokes about a d’Oraisa law. Nevertheless, the Minchas Yitzchak concludes that there is room to be lenient with a baal t’shuvah to encourage him to join the fold (“takanas ha’shavim”) and especially if there is any chance that hatafas dam bris will endanger him.
The Sheivet HaLevi (5:146 and 8:216) likewise is lenient, based on the ruling of Rabbi Akiva Eiger, as well as the fact that the irreligious nowadays do not necessarily get the status of heretics. Moreover, there is a Shaagas Aryeh (cited in the Pischei T’shuvah on Yoreh Dei’ah 264:6) who rules that hatafas dam bris is not necessary even when an akum performs a milah. Indeed, the T’shuvos V’Hanhagos (1:471) bases his lenient ruling on the fact that the irreligious nowadays are mostly ignorant and not heretics, removing them from the ruling of the Rama.
Similarly, Rav Y.S. Elyashiv (cited in Milas Shlomo, 12:9:64) ruled that hatafas dam bris is not necessary, based on Rabbi Akiva Eiger, who was later than the Rama. Notably, Rav Elyashiv allows the baal t’shuvah to have hatafas dam bris performed if he wants (it is not “chovel”), but it is not at all required. The Milas Shlomo adds that this was also the ruling of Rav S.Z. Auerbach zt”l.
On the other hand, the Milas Shlomo (ibid) cites Rabbi C.P. Scheinberg zt”l and Rabbi Dovid Feinstein shlita who suggest that hatafas dam bris be performed based on the simple understanding of the Rama. The P’sakim U’T’shuvos (ibid) suggests that this was the opinion of Rav Moshe Feinstein zt”l (Igros Moshe, Yoreh Dei’ah 2:78) as well, as he only ruled that no brachah was to be made on the hatafas dam bris, implying though that hatafas dam bris was indeed necessary.
NEXT WEEK’S TOPIC: When should the father recite the b’rachah of “L’hachniso bivriso shel Avraham Avinu”?