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A number of reasons are given for sending away the mother bird before taking her eggs/young. The Rambam says it is for the mercy on the mother bird. The Ramban says it is to perfect our own mercy.

Contemporary halachos seem to ignore the spirit of this mitzva. From Star-K:

Once the mother bird has flown away, one must take the eggs or chicks. Even if the mother bird is watching, one still fulfills the mitzvah. To perform a halachic acquisition, they should be lifted to a height of three tefachim (about 12 inches). Upon completion of the mitzvah, one may put back the eggs or chicks and need not keep them.

After one takes the eggs or chicks, they may be declared hefker by the one who acquired them and then returned to the nest. After the mother bird returns, another person may fulfill the mitzvah. In this way, the same nest may be used over and over again.

The structure of sending the mother bird away without needing the eggs (and returning it to send the mother away again) seems antithetical to both reasons stated above. A footnote to the latter paragraph drives this contradiction home:

If the eggs cool down too many times, they may no longer be viable (University of Arkansas Division of Agriculture). The mitzvah is not fulfilled on non-viable eggs.

Does the halacha go by a different reasoning? Do we ignore any reasons when performing the mitzva (as in Brachos 5:3)? Is the Star-K promoting structure over spirit?

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    Related: judaism.stackexchange.com/questions/1120/… – WAF Jun 15 '11 at 2:29
  • @WAF, thanks, I didn't notice that. – YDK Jun 15 '11 at 5:52
  • @Yirmiyahu quotes a Pischei Teshuva/Chavos Yair that brings a machlokes in this and paskens that you don't need to take the eggs/young. This is backed by the Aruch haShulchan who goes through a similar back and forth, paskening that it's a gezeiras hamelech. This other approach is alluded to in the Moreh where the Rambam brings the Mishna in brachos and concludes that we don't pasken like that shittah. – YDK Jun 15 '11 at 16:13
  • I'm positive iv'e seen a Teshuvas Chasam sofer on this (can't remember where). he says that indeed according to the Rambam there would be no point in chasing away the mother, but that there is a place for this custom in the Zohar. – Bach Jun 23 '17 at 1:45
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Common, common misunderstanding.

It's not:

Don't make the mother bird feel bad to see her eggs taken away.

It is, instead:

Maternal instinct prevents the mother from fleeing when a predator approaches the eggs. Don't take advantage of that maternal instinct and take the mother too.

(Heard from my father in the name of R' Yaakov Weinberg zt'l; observing the Rambam adds the line "and the mother can't run away")

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    The Rambam seems to say that the best case scenario is that you won't take the eggs/young at all, but if you do, at least the mother shouldn't be affected by the sight: hebrewbooks.org/pdfpager.aspx?req=9463&st=&pgnum=120 – YDK Jun 15 '11 at 16:08
  • I totally agree with YDK that the simple reading of the Rambam yields such an understanding (contrary to your statement that this is a common misunderstanding or misreading of the Rambam). – Bach Jun 23 '17 at 1:48

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