QUESTION: While hiking in a public park, I came upon a bird’s nest with eggs. I do not recognize the bird and do not know if it is a kosher species. Is it appropriate to chase away the mother and take the eggs, since this might be a fulfillment of the mitzvah of shiluach haken? Or is it better to leave the bird alone?

ANSWER: The mitzvah of shiluach haken applies only to kosher birds. In this case, it would seem to be a safek (uncertain) mitzvah and therefore it would be better to do it. However, the Kuntres Vayaan Shmuel (vol. 7, p. 313) writes that unless you know that it is a kosher bird, you should leave the bird alone. He cites the Chasam Sofer (OC 100) who writes that if one does not need the eggs, one should not send away the mother and take the eggs since this is an act of cruelty, and causing the mother bird unnecessary pain is a violation of “tzaar baalei chaim.” Although many poskim disagree with the Chasam Sofer and write that the performance of the mitzvah overrides the concern of tzaar baalei chaim, in this case it does not. This is because this is certainly “tzaar baalei chaim,” but only an uncertain mitzvah of shiluach haken.

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The Gerald & Karin Feldhamer OU Kosher Halacha Yomis is dedicated to the memory of Rav Yisroel Belsky, zt"l, who served as halachic consultant for OU Kosher for more than 28 years; many of the responses in Halacha Yomis are based on the rulings of Rabbi Belsky. Subscribe to the Halacha Yomis daily email here.