In the early twentieth century, Belgian colonists in the Congo noticed that the Congolese were careful to store elephant meat in papaya leaves. Intrigued, they found that the papaya leaves, besides protecting the meat, tenderized it. Laboratory analysis demonstrated that a particular enzyme, called papain, was the agent of the process.
Belgian companies were later built around processing and selling papain from Congolese papaya plantations. New applications were discovered and papain is now also used as a clarifying agent in beer, as a softener in biscuits, and as a digestive aid (dietary supplement companies sell encapsulated papain). Processed papain now comes not from the papaya leaves but from the peel of the papaya.
All of this would seem pretty innocuous from a kosher perspective except for the remarkable fact that the great majority of papaya is harvested from the first three years of the papaya tree’s lifetime (the tree grows astoundingly quickly – up to eight feet in its first year – and bears fruit within 10-12 months. It trebles its height in the next two years and, although it can eke out one or two more seasons of fruit, is typically abandoned or cut down after three years). The Torah (Vayikra, 19, 23) prohibits fruits borne to a tree in the first three years of its existence. Although the prohibition, as recorded in Chumash, is limited to Eretz Yisroel, Moshe Rabbenu also taught, orally, that Orlah applies outside of Eretz Yisroel as well. The Talmud (Kiddushin 39a) cites this teaching as a halacha l’Moshe m’sinai, which means that Moshe learned this also at Har Sinai, but was not instructed to write it down (see Shulchan Aruch Y.D. 294, 8).
The Torah prohibition recorded in Chumash, and applicable to Eretz Yisroel, is not simply duplicated, or extended, to chutz l’aretz. The Talmud notes a fundamental distinction between the two halachos: in Eretz Yisroel, safek orlah is prohibited. In chutz l’aretz, a safek is permitted.
There are two basic ways to define a safek in this case, and the distinction between them has ramifications for the kashrus status of papain.
One kind of safek is based on probability. Was a given papaya taken from the first three years of the tree’s existence, or not? The halacha in chutz L’aretz is that if there is any possibility that a given fruit came from a tree that was not orlah – that is, had matured beyond three years — then it is permitted. This is true even if, in any given crop, most of the trees are still within the first three years of their existence. Unless it’s certainly from a (halachically) immature tree – that is, one whose fruits are orlah — then we assume it’s from a mature one (Shulchan Aruch 294, 9; see also Teshuvos Shivos Tzion 49, cited in Pischei Teshuva, 294, 10).
A second kind of safek turns on whether a fruit is indeed a fruit. The prohibition of orlah is limited to fruits, and does not apply to vegetables. Even if a specimen was borne from a tree that we know for certain had been planted only two years ago, if we are not certain that it is really a fruit then the halacha is also that, in chutz l’aretz, it would be acceptable (see Teshuvos v’hanhagos, Rav Moshe Sternbuch, 3, 333, based on Berachos, 36a).
Let us assume, for the moment, that papaya is, halachically, a fruit. Operating with an understanding that
1. The economic life of the plant is 36 months
2. Trees are planted throughout the year and
3. A third of a crop is replanted every year (to sustain consistent income)
any given papaya sold from this field will nevertheless be acceptable. That is because a halachic “year” is not always 12 months. If a tree is planted before 16 Av, the first “year” is considered to have elapsed already on the first of Tishrei. Fruits grown after the 15th of Shevat two calendar years, or about thirty months, later (Y.D. 294, 5) are considered mature, and acceptable. Thus, a percentage of fruits, if only a minority, emerging from this crop can be assumed to have been picked after the trees have matured.
This line of reasoning permits a given papaya from such a crop, since any safek is already sufficient. Rabbi Eli Gersten pointed out however, that this safek may not apply to papain, which is a blend of the papaya in a crop. When papain is harvested, farmers methodically recover enzymes from all the papayas in a crop. The papain is collected and sent to a processing site to become blended and liquefied. Dr. Avraham Meyer, who visited the Congo several years ago, described the process as follows:
A bib is tied around the middle of a papaya tree. The outer skin of the papaya is lightly scratched (if too big a cut is made it will penetrate the skin and the fruit will rot). The process can be repeated 5 to 6 times before the fruit begins to over-ripen and needs picking. The liquid falls into the bib, dries and is collected and sent to the factory. Each “garden” so they call them) is scratched approximately every ten days to two weeks.
At the plant the latex is dumped into a mixer where the various latexes are reliquified and blended and then passed through a rough filter. The product is placed on trays stacked in wooden frames and dried in the wood fired air drier.
Thus papain creates a complexity not encountered with papaya: it is not a specific sample, but an aggregate, a lach b’lach taruvos of extracts. Chazal required that for such a taruvos to be acceptable, there must be 200 parts hetter to one part orlah (Rambam, Hil. Ma’achalos Asuros, 15, 13; Shach, Y.D. 98, 6).
Shulchan Aruch (294, 17) rules that wine prepared from grapes farmed and harvested in chutz l’aretz by gentiles is permitted, despite the fact that invariably there will be a fraction of immature vines in a crop, based on the notion that safek orlah in chutz l’aretz is acceptable. However, in that case the mixture, or wine production, is only taking place after the grapes have been brought to the Jewish vintner. Each grape, evaluated on its own, can be assumed to be acceptable. Here, the blend, or liquefaction, has already taken place before a p’sak is rendered on each individual extract of papain.
Radvaz (3, 551) rules that short of actually seeing a fruit removed from an immature tree, the fruit, in chutz l’aretz, would always be permitted. Thus, even if someone is selling fruit outside of a field which is completely immature, one can still assume that the fruit seller took the fruit from some other field. However if, by deduction, we still must assume that the fruit is orlah –even if we did not actually see it the picking – then we must resign ourselves to the presumption that the fruit is orlah.
The second type of safek addresses not only papaya, but papain as well.
How do we define a fruit? There is some discussion in poskim as to whether the parameters defined in hilchos berachos are exactly coterminous with that of orlah (Rav Mordechai Eliyahu, Techumin) in any event, they certainly provide a starting point.
When does one make a borei pri ha’eitz – as opposed to a borei pri ha’adamah? The Talmud (Berachos 40a) defines a tree as something that does not shed its trunk from year to year.
היכא מברכינן בורא פרי העץ היכא דכי שקלת ליה לפרי אתי גווזא והדר מפיק אבל היכא דכי שקלת ליה פירי ליתיה לגווזא דהדר מפיק לא מברכינן עליה בורא פרי העץ אלא בפה“א
If a tree trunk degenerates every year, or if it requires planting again, then halachically it is not a tree, and its “fruit” requires a borei pri ha’adamah. The papaya tree certainly meets this criterion. However, gedolei acharonim have cited various attributes that disqualify a specimen from being a tree. It cannot be a tree
• If it gives fruit within its first year, it cannot be a tree (Radvaz ad loc; also cited in Birchei Yosef, 294)
• If the fruit deteriorates after three years (Birchei Yosef)
• If the trunk is hollow (see Leket Kemach, 294)
• If the fruit comes from the trunk, and not branches (see Rav Mordechai Eliyahu, Techumim X)
Among the poskim who rule that papaya is a “vegetable”, even in Eretz Yisroel, are Ben Ish Chai (Rav Pa’aim, 2, 30) and Rav Ovadiah Yosef (Ye’chavah Da’as, 4,52).
However, Shevat Halevi (S”T, 6, 165) raises questions on their proofs. Rav Shternbuch also concludes that papaya seems to be, halachically, a tree fruit. If grown in Eretz Yisroel, he rules that one should prohibit papaya as orlah. However, in chutz L’aretz he is lenient, based on the fact that, ultimately, there is an authentic safek as to its status; also, whenever there is a difference of opinion about opinion, we are lenient in chutz l’aretz. Thus, if a person grew a papaya tree in his backyard in Be’er Sheva, the papaya from, say, the first year would be prohibited. But if the tree grew in Brooklyn, the papaya would be permitted. Rav Gedalia Dov Schwartz is also lenient in chutz l’aretz (x).
Rav Belsky concurred with this ruling.