16 – Shilu’aḥ Ha-ken

01. The Scope of the Mitzva

If a person happens upon a bird’s nest and wishes to take the mother bird as she broods over her eggs or chicks, may not do so. The Torah forbids taking advantage of the mother’s devotion to her young as a means of capturing her. Instead, he must first drive her away from the nest until she flies off and no longer tries to return. Only then may he try to catch her as he would any other bird. Likewise, one may not take the chicks or eggs while the mother is brooding over them. Once he has driven the mother away beyond his reach, he may take the chicks or eggs. As it says: “If a bird’s nest happens to be before you along the way, in any tree or on the ground, with chicks or eggs, and the mother is brooding over the chicks or eggs, you may not take the mother together with the young. You shall surely send away the mother, and the young you may take for yourself, so that it will go well for you and you will live long” (Devarim 22:6–7).

The mitzva applies only to kosher birds — birds people normally eat. With a non-kosher bird, however, one may take the mother together with the eggs or chicks (SA YD 292:1). The mitzva is also limited to wild birds that do not belong to anyone, as implied by the verse’s phrase, “If a bird’s nest happens to be before you,” which refers to an ownerless place. If the nest is found on a person’s property, the prohibition does not apply, since the mother, eggs, and chicks belong to him, and he may take them whenever he wishes (Mishna, Ḥullin 138b). Thus, one who raises hens may remove a hen from her eggs, or take eggs or chicks from beneath a brooding hen. The same is true of doves in a person’s possession; he may take from them freely^[1]

If one violated this and took the mother while she was brooding or hovering over the chicks or eggs, he must set her free, thereby remedying the violation. If he slaughtered her, her meat remains permitted, but he is liable to lashes because the violation can no longer be remedied. The same applies if she died on her own: since he can no longer send her away and remedy the violation, he is liable to lashes (Ḥullin 141a; SA YD 292:6).^[2]

02. The Reasons Behind the Mitzva

One of the most beloved and profound areas of Torah study is ta’amei ha-mitzvot – the meaning and rationale of the commandments. This study is valuable in its own right, and it also helps a person identify with the mitzvot and want to fulfill them. At the same time, we must emphasize that we cannot fully know why God gave any particular mitzva. Human intellect is limited, and it cannot grasp the Creator’s thoughts or the full depth of the Torah’s intent. The explanations we offer are therefore insights into the mitzva, not claims to have uncovered its sole or ultimate purpose. For this reason, we do not derive halakhic conclusions from them.

Still, in one respect, it is better to fulfill the mitzvot simply because God commanded them, not because we understand their reasons. This is the greatness of a person of complete faith: he fulfills the words of his Creator even when the purpose of a command is beyond him. This was Israel’s glory at Sinai, when they declared, “We will do and we will listen” (Shemot 24:7). In their devotion to God, they accepted in advance whatever He would command, for no reason other than that it is His will. With this foundation in place, we may then delve into Torah and into the reasons behind the mitzvot, deepening the meaning and joy of their fulfillment.

Three main explanations have been offered for the mitzva of shilu’aḥ ha-ken.

The first is that the mitzva cultivates respect for the continuity of animal life. At the heart of every species’ survival is its ability to raise the next generation, and God therefore endowed the bird with a devoted instinct to care for its eggs and young. Taking the mother bird undermines her ability to produce further offspring, and in this sense it resembles uprooting a fruit tree, from which many fruits would otherwise grow (above, 13:1–3). One may pick a tree’s fruit, since the tree itself remains alive and can continue producing. Likewise, one may take the chicks or eggs, but only after sending away the mother, who is the source of future offspring. For this reason, the prohibition applies specifically to kosher wild birds. Birds raised in our possession do not raise the same concern, since we naturally ensure that they continue reproducing; nor does the concern apply to non-kosher birds, which we are unlikely to make great efforts to hunt in large numbers, since they are forbidden to us as food (based on Rabbeinu Baḥya and Sforno to Devarim 22:6).

The second explanation is that the mitzva trains us in compassion. We may not take advantage of the mother’s devotion to her young by capturing her while she remains with them. Instead, we must first send her away, and only once she has left the nest may we take the young. God gave the bird an instinct to guard and care for her eggs and chicks, expressing a deep concern for the next generation, to the point that she is prepared to risk her life for her offspring. It is not fitting for us to exploit this noble maternal devotion in order to catch the mother and eat her flesh (Ramban to Devarim 22:6; Sefer ha-Ḥinukh §545).

These reasons give depth to the reward the Torah promises to one who sends away the mother: “so that it will go well for you and you will live long.” Whoever cleaves to God’s attributes and shows compassion for animal species will merit that God have compassion on him, lengthen his days, and do good for him. The Sages added that in the merit of this mitzva, the childless are remembered and blessed with offspring: just as they honored the mother’s concern for her young, so too they will merit to raise children (Devarim Rabba 6:6).

A further explanation appears in the writings of the kabbalists, relating this mitzva to Israel’s exile and redemption. When a Jew sends the mother away from her young, and she cries out in distress, beating her wings over the loss of her chicks, Israel’s suffering comes before their Father in Heaven. Since the Shekhina went into exile and the Temple was destroyed, God’s children have been left in distress and captivity — like orphans stripped of their home. In this sense, shilu’aḥ ha-ken reflects the complexity of life in an unredeemed world. A person needs to eat and wants the bird, the chicks, and the eggs; at the same time, it is proper to have compassion for the mother caring for her young. Since not every value can be fully realized at once, a person might despair of living by ideals at all. The Torah therefore teaches us to act as well as possible within our imperfect reality: to send away the mother and take the young. When the Jewish people strive, even within the entanglements of this world and of exile, to guide their lives by Torah and morality, mercy is aroused on their behalf. They become worthy of redemption from the suffering and complications of exile, returning to Eretz Yisrael and rebuilding the Temple, where all ideals can be realized, every creature can live in the way most complete for it, and the entire world can be filled with consolation and joy.^[3]

03. Sending Away the Mother When the Chicks or Eggs Are Not Needed

The Sages derive from the verse, “If a bird’s nest happens to be before you,” that one need not search for a nest in order to fulfill this mitzva (Ḥullin 139b). A question nevertheless arises when someone does not want the chicks or eggs but comes across a bird’s nest: does he have a mitzva to send away the mother and take the chicks or eggs?

Many authorities maintain that the mitzva applies only when one actually wants the chicks or eggs; only then must he send away the mother before taking them. If he has no need for them, sending away the mother and taking the chicks is not a fulfillment of a mitzva. Accordingly, one should not do so since it causes needless animal suffering and destroys chicks or eggs for no reason.

Others maintain that whoever encounters a bird’s nest has a mitzva to send away the mother and take the young, even if he does not need them. Some kabbalists go further, maintaining that every Jew should seek out a bird’s nest in order to fulfill shilu’aḥ ha-ken at least once in his life. In their view, this does not violate bal tashḥit or tza’ar ba’alei ḥayim, since the act is done for the sake of a mitzva and therefore serves a human need.

In practice, the primary ruling follows the first view: if one does not want the chicks or eggs, he should not send away the mother, since doing so serves no mitzva purpose and involves tza’ar ba’alei ḥayim and bal tashḥit. One who nevertheless wishes to fulfill the mitzva according to the second view should drive the mother away without taking the chicks or eggs, either by shouting or by lightly tapping the nest. According to some authorities, once the mother has been driven away and the chicks or eggs are halakhically available to him, he has fulfilled the mitzva. This allows him to satisfy the second view without coming into conflict with the first (Ḥakham Tzvi §83; Shevet Yehuda YD 292; Or Sameaḥ, Laws of Yom Tov 3:8).^[4]

04. Practical Details

Since the mitzva of shilu’aḥ ha-ken applies only to kosher birds, one must be able to distinguish kosher birds from non-kosher ones. In practice, the kosher birds commonly found in in Eretz Yisrael are doves, turtledoves, and house sparrows.

It is also necessary to distinguish between male and female birds, since the mitzva applies only when the mother is brooding over her chicks. Among doves and turtledoves, the male sits on the nest for most of the day, while the mother generally does so from about five in the afternoon until seven in the morning. Sending her away during those hours fulfills the mitzva. By contrast, one who comes in the middle of the day will likely find the male on the nest, and sending him away before taking the chicks does not fulfill the mitzva. Among house sparrows, however, the male sits on the nest for only about two hours a day; he can be identified by the black patch on his chest.

If the nest was built in a person’s protected courtyard or on his roof, then once the mother has flown away, the courtyard acquires the eggs or chicks on his behalf, and there is no longer any mitzva to send her away. In such a situation, he can fulfill the mitzva only if, when the birds begin building the nest, he has in mind that he does not want to acquire the nest, eggs, or chicks.[5]

According to most authorities, one may send away the mother by driving her from the nest, either with a shout or by tapping the nest with one’s hand or a stick. Rambam maintains that the mitzva is fulfilled only if one takes hold of the mother by her wings and then sends her away (MT, Laws of Sheḥita 13:5). In practice, however, one should not attempt to fulfill Rambam’s view by taking hold of the mother, since some Rishonim may view taking her while she is still over the chicks or eggs as a violation of “You shall not take the mother together with the young,” even if she is released immediately afterward. One should therefore send her away by making noise or by tapping the nest.[6]