Chavurah Masarti

Lynchburg, VA                  Founded on 2 Cheshvan, 5766 

Abortion and Halacha

This Rabbinical opinion was developed by Michael Gillette and it represents a trans-denominational perspective.  Readers who identify with a particular Jewish movement or congregation should consider their local Rabbi as the appropriate authority.

Chaverim,
  Subsequent to our Torah study discussion  on Samson, specifically with regard to the beginning of Judges chapter 13, I reviewed my sources on Jewish bioethics and confirmed the information that I shared.  Here are some of the key points and I would be happy to share my sources with any of you who want to dig deeper.
 
1) Some sources indicate that prior to forty days of gestation, the fetus is "nothing but fluid" and has no legal standing at all.  This could have interesting impact on the stem cell debate.
2) After forty days all sources are unanimous that the fetus has some moral standing, but that it continues to be considered a part of the mother until birth.  If it is destroyed in a criminal attack on the mother for instance, she is due damages but the assailant is not considered to have committed a capital crime.  Also, if a woman who is pregnant commits a capital crime, she may be put to death even if she is pregnant.  One interesting talmudic source for this is the law that if a person buys livestock and it turns out to be pregnant, the fetus also belongs to the purchaser since fetuses are parts of their mothers.
3)  All sources agree that if the mother's life is at risk, an abortion is not only permissible but possibly obligatory.  The Talmud explicitly states that the fetus may be cut into pieces if this is necessary to save the life of the mother.  The description in Tractate Oholot is as gruesome as the recent Supreme Court document.  The primary basis for allowing abortions for maternal indications is that the fetus, by posing a risk to the mother, takes on the status of a 'rodef' (pursuer) and the mother's right to self defense then becomes operative.
4) All sources agree that even potential risks to the mother's life justify abortion, although there is some disagreement regarding risks that are short of life-threatening.  Most sources agree that serious harm, including psychological harm, justifies abortion, and that this is even clearer early in pregnancy (prior to forty days).  A test case of this took place in Israel where the Chief Rabbi sanctioned an abortion to prevent deafness in the mother. 
5) A fetus is considered a "nefesh" at the time of birth which is defined as when the head is delivered or, in the case of a breach presentation, when the "greater portion" is delivered.  Notice the similarity to the recent US Supreme Court decision.  It is also important to note that Jewish sources don't really engage in "ensoulment" talk as do some Christian sources.  The term "nefesh" connotes the moral category of "personhood" as opposed to the biological category of "human", but it doesn't seem to indicate a moment at which a soul enters a person.  The best example of 'ensoulment' in Judaism is the description of the creation of Adam.  In Genesis, Adam becomes alive when G-d breathes into him "the breath of life".  The implication is that if there is a single moment at which life begins, it is when the first breath is taken.  This corresponds to the halachic definition of death, which is when spontaneous respiration ceases.  It is important to stress, however, that the fetus has a nebulous status in Jewish law.  It isn't worth nothing, but it isn't a full-fledged person either.
6) Maimonides states that if a baby is killed after a full term pregnancy, it is murder.  However, if the baby is premature, it isn't murder to kill it until it lives outside of the mother for thirty days.  The baby is not considered viable until a month has past (which corresponds to the time frame within which a redemption in the form of the pidyun ha-ben takes place).
7) Most sources indicate that at least after forty days of gestation, abortion for fetal indications is not permissible.  One exception to this is likely to be a scenario where a fetus is known to have a condition such that it will not survive for thirty days post-partem.
8)  All sources concur that while abortion ought not to be taken lightly, it is not equivalent to murder and that it can be justified. Fetuses are considered "people in progress" and they do have some claim to protection due to their potentiality.  Nevertheless, abortions are justified in many circumstances, including those that will cause great mental anguish to the mother.
 
 
Relevant Sources:
Biblical Passages:
Exodus 21:22-23
Talmudic Passages:
Sanhedrin 72b
Yevamot 69b
Niddah 30b
Shabbat 135b

The debate about the sale of cattle is spread among several tractates including: Baba Kama 93b et. ceq. and Baba Bathra 78b

Mishnah:

Oholot 7:6

Arachin 1:4

Terumot 8:12

 
Additional Passages:
Mishneh Torah, Hilchot Issurey Biyah 10:3
Shulchan Aruch, Choshen Mishpat 425:2

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