I. The Prohibition Against Abortion
Up to our contemporary period, nearly all rabbinic authorities prohibited abortions. However, today, when medical expertise has developed so that obstetricians can check by ultra-sound the proper development of the fetus during its prenatal stage and sometimes can foretell grave physical disorders, coronary or lack of limbs, or Down Syndrome, logic dictates that we revisit this prohibition to see if it still applies. Woe to those parents who beget a child with a serious medical problem. Their life becomes full of misery; the life of the newborn’s siblings is one of tension and aggravation. Above all, the life of the gravely sick newborn is one of continuous troubles such that he cannot live a happy, normal life. Would we say that the prohibition to abort fetuses is still applicable even in such cases?
Let us check the sources. The Talmud (Sanhedrin 57b) teaches that if the childbirth process is interrupted and the mother’s life is in danger, it is permissible to kill the fetus and remove his body piecemeal in order to rescue the mother’s life. However, we cannot prefer the mother’s life over the fetus’ if the fetus’ head has already exited the mother’s body. At that point, he is also a human being. We must wait to see who dies first, the mother or the infant. After that, we rescue the other party.
We learn from this passage that, up to the moment that the fetus emerges, he is not considered a separate individual. He only has as the status of an inner organ of the mother, just like her kidneys or liver. Therefore, if she needs life, we may destroy that limb. As Rashi comments there, that fetus has no soul. He only acquires a soul on birth.
The Rambam rules accordingly (Rotze’ach 1:9) and considers a fetus someone who is “pursuing” the mother, a euphemism for one person attempting to kill the other. Rambam’s point is that we may slay the child to rescue the mother.
The above is applicable if the mother’s life is endangered. If there is no deathly risk but just a matter of great distress, we turn to another case discussed by the Talmud. In the ancient period, if a person worshipped idols, he was put to death by the Bet Din. Of course, this would only happen after he was warned not to do so, notified of the death penalty involved, replied “I don’t care, I will do it anyway” and two witnesses testified to these facts. While this punishment was largely theoretical and unpracticed, our sages examined its parameters. They asked what would be the case if a pregnant woman was sentenced to be executed. Would we wait until after childbirth, in order to save the life of her fetus? We must remember that the Halacha permits one to transgress Shabbat prohibitions to rescue the life of a fetus!
The sages replied that when a person knows that within a short period of time he will be executed, he suffers the agony of anticipation (Innui Din). Therefore, although the person at hand is a great villain, willing to sin even at the expense of being killed, we must take into account her mental anguish and speedily execute her, even if doing so requires also killing the fetus (Arachin 7a). We must remember that this law applies even if the woman is at the end of her ninth month of pregnancy, imminently awaiting childbirth. A court still executes her and the child, and does not wait a single extra day. This is certain proof that abortions are not “murder”, as one prominent rabbi calls it. At most, it is a rabbinic prohibition that can be waived under proper conditions.
The source for the prohibition against abortion is in the Talmud (Sanhedrin 57b). God command Noah, “Only the blood of your own lives will I demand an account etc. He who spills human blood shall have his own blood spilled by man, for God made man with His own image” (Gen. 9:5). Rabbi Ishmael teaches from this verse that a Noahide (gentile) is to be given capital punishment even for killing a fetus.
We see that the Talmud refers specifically to a gentile perpetrator of this crime. What is the law pertaining to a Jewish perpetrator? Tosafot (Sanhedrin 59a) argue that the prohibition applies to a Jew too, since what is prohibited to a gentile cannot possibly be permitted to a Jew.
But this legal argument (leika mi-da’am) is at most a rabbinic stricture. Many rabbis attempted to explain the underlying rationale of the prohibition. Chavat Ya‘ir (no. 31) claims that the prohibition is included within the prohibition against masturbation, being more severe than that simple act. The Responsa of Maharit (I:97) calls this “Bal Tashchit“, wasting the natural process (Deut. 20:19; see Chinuch no. 529). However, Rambam (Melachim 6:10) says that except for destroying fruitful trees, all other kinds of “waste” are prohibited only rabbinically.
Other rabbis (Responsa Beit Shlomo, Choshen Mishpat no. 132) claims that abortions are sometimes a cause of unnecessary danger to the mother’s life, as sometimes occur, and are therefore prohibited. We see that these rabbis do not consider abortion as “murder”.
II. Great Sages
Rabbi Bachrach (Chavat Ya’ir, no. 31) was asked by a certain errant woman who sinned promiscuously, became pregnant and had regrets. Would she be permitted to abort? He cited the above mentioned Talmudic source (Arachin 7a) and permitted her to do so in order to save herself from a life of agony.
The famous Rabbi Ya’akov Emden (She‘ilat Ya’avetz I:43) was asked a similar question by a married woman who sinned promiscuously, and gave her a similar permit to terminate the fetus. However, he concluded his words with the cryptic statement, “Any wise person can understand that lechat‘chila it is prohibited to kill, although Bet Din does not administer capital punishment for killing fetuses”.
Rabbi Moshe Feinstein (Iggerot Moshe, Choshen Mishpat II:69 par. 2) claims that, with the above statement, Rabbi Emden recanted from the permit. But Rabbi Eliezer Waldenberg (Tzitz Eliezer IX:512 part 3) understood his words as teaching that if not for grave circumstances, one should not easily permit abortions for just any minor reason (such as financial distress of a woman seeking career advancement etc.).
So, too, Radvaz (Rabbi David ben Zimra, sixteenth century) in his Responsa (II:695) teaches that abortion is a rabbinic, not biblical, restriction since it appears “similar to murder”. In another instance, where a Kohen hit a pregnant woman and caused her to miscarry, Radvaz was asked whether the kohen is permitted to continue reciting the Priestly blessings during Prayer Service (Birkat Kohanim). A murderer is disqualified from Priestly service. Radvaz ruled that the kohen is permitted to continue since a fetus is not yet a soul (Responsa from Manuscript, published 1975, no. 22)
Closer to our day, Rabbi Joseph Chaim of Baghdad (the author of Ben Ish Chai), in his Responsa Rav Pe‘alim (I:Even Ha’ezer:4), was asked whether an errant woman who sinned and became pregnant could abort the fetus. He was careful to state that he does not wish to decide. However, he prudently says that the questioner should see the words of Rabbi Ya‘akov Emden (mentioned above). This is equivalent to saying that he concurs with the lenient opinion, although he is careful to avoid having it credited to him personally. He repeats this strategy in another responum (ibid., IV:Yoreh De’ah:14).
III. Recent Sages[A] Rabbi Ben-Zion Meir Chai Uzziel, the former Chief Rabbi of Israel, in his Responsa Mishpetei Uzziel (III:46, repeated in Piskei Uzziel Bishe’elot Ha-zeman pp. 268-269) was asked by a sick woman who feared becoming deaf in both of her ears due to childbirth. He permitted abortion, even though it was not a matter of life and death, relying on the above Talmudic passage (Arachin 7a). [B] Similarly, Rabbi Shaul Yisraeli (Amud Ha-yemini no. 32) was asked by a woman who took certain pills during pregnancy that might cause grave damage to the fetus and he permitted abortion. He claimed that the prohibition of abortion is either similar to “beating” a person (chavalah) or of Bal Tashchit. On both of these counts, a person may institute such self-inflicted damage if he decides it is for his (or her) benefit.
He further argues that even if not all of the fetuses are in such danger, but the obstetricians claim that a sizeable percentage born in such situations are damaged severely, this is enough to support performing abortion. He cites proof from Tosafot (Shabbat 50b) that some prohibitions may be lifted to avoid mental pain or embarrassment.[C] Rabbi Ya’akov Yechiel Weinberg (Seridei Eish III:127) was asked by a woman who was sick with German measles during her pregnancy. Her doctors advised that many such fetuses are born deaf or imbeciles or blind. He, too, permits abortion. [D] Rabbi Eliezer Yehuda Waldenberg (Tzitz Eliezer IX:51) goes to great length to proof the validity of the permit. However, he is only lenient until the conclusion of the seventh month of pregnancy. [E] Rabbi Ovadia Yosef (Yabia Omer IV:Even Ha’ezer:1) permits abortion (for suitable medical causes) up to the end of the third month of pregnancy. [F] Rabbi Levi Yitzhak Halperin, the head of the Institute for Science and Halacha (Jerusalem), in his Ma‘asei Choshev (III:pp. 135-143) discusses a new problem. Medical experience teaches that the newly born with several maladies will not live more than a few years. The question asked is may the parents perform abortions? He takes the lenient opinion, if a proficient rabbi is consulted in advance and consents.
It is well known that Rabbi Moshe Feinstein made a blanket statement prohibiting any and all abortions (except when the mother’s life is at risk). I discussed briefly in my Hebrew article on this subject the reasons why the other rabbis disagree with Rabbi Feinstein’s ruling (here (PDF), from Techumin 2005: link, see pp. 64-78).
My purpose in writing this present article is to inform all Jews that if the obstetricians notify parents of an imminent grave problem with the child, mental or physical, fully knowing of the great agony of raising a sick child, the parents may rely on the abovementioned Rabbis who permit abortions. In my opinion it is permitted until the child exits its head during childbirth (as the Rambam mentions this departure point)
We are taught by the Rambam (Mamrim, end of ch. 1) how to proceed when when we are faced with a dispute between two rabbis and do not how to decide: If the matter at hand is a biblical prohibition, we should take the stringent position. And if it is a rabbinical matter, we should adopt the lenient opinion.
This matter of abortion is a rabbinic prohibition. If the child to be born is apparently healthy and normal, abortion is absolutely prohibited. If not, it should be permitted.
This essay is adapted from a Hebrew article in Techumin 2005: link (PDF).