Among the many laws listed in Parashas Mishpatim, we learn of the case of a person who causes a woman to miscarry:
“If two men fight, and strike a pregnant woman, causing her to miscarry. If there is no fatal injury [to the woman], the person who hit her must pay a fine, as the woman’s husband shall impose on him; he shall pay as the judges determine. However, if there is a fatal injury [to the woman], then you must require life for life” (Shemos 21:22-23; the translation follows the interpretation of Rashi).
The mention of causing a miscarriage – in the biblical case albeit inadvertently – raises the issue of abortion in Torah law, on which we will reflect in the present article.
The issue of abortion is a charged topic, widely and often heatedly debated across the globe. The matter touches the core values of religion and civil society. Some stress the sanctity of life, and the concern for the right to life of the yet unborn. Others, however, consider government regulations on abortion as a violation of privacy, and a denial of a woman’s right to decide whether or not to see a pregnancy to term.
The two extremes of the spectrum are represented by the position of the Roman Catholic Church on the one hand, and of liberal pro-choice activists on the other. The former unconditionally prohibits abortion from the moment of conception, while the latter sees abortion as the right of every woman to make her own decision concerning her body.
This article will discuss the position of Torah law – halachah – concerning this delicate issue. As with many delicate issues, our purpose is not to reach clear-cut rulings for specific cases. Rather, we will seek to present the halachic sources and issues raised in the context of abortion, from Talmudic times to writings of contemporary authorities.
On the one hand, the Torah embraces the tremendous sanctity of life, certainly prohibiting the wanton destruction of a fetus. But on the other, Torah law also recognizes the necessity for abortion in certain cases, and does not ban it outright. This duality has raised much debate within the world of halachah as to when abortion is permitted, and when not. Needless to say, for practical cases a competent authority must always be consulted.
Prohibition against Abortion
Aborting an existing fetus is unequivocally prohibited. The Mishnah (Ohalos 7:6) reads: “If a woman suffers hard labor in travail, the child (fetus) must be cut up in her womb and brought out piecemeal, for her life takes precedence over its life. If its greater part has already come forth, it must not be touched, for the [claim of one] life cannot supersede [that of another] life.”
The first case mentioned in the Mishnah sanctions killing, on account of the danger posed to the mother’s life. The second case teaches that we cannot prefer the mother over the fetus once the fetus has already begun to exit the mother’s body (specifically, one the head has emerged).
Two clear inferences can be made from the passage. On the one hand, we learn that up to the moment the fetus emerges, he is not considered on equal footing with his mother. Rashi (Sanhedrin 72b) explains that “until he emerges into the world the fetus is not considered a living spirit, and therefore it is permitted to kill the fetus and to save the mother.” But on the other, we learn that it is only permitted to kill the fetus in order to save the mother. Barring this, doing so is not permitted.
The prohibition against abortion is made explicit in the Talmud (Sanhedrin 57b), with respect to non-Jews. The Gemara writes that a Noahide (non-Jew) is put to death even for the killing of a fetus, deriving this from the verse: “One who spills the blood of a person shall have his own blood spilled by another” (Bereishis 9:6). A possible literal reading of the words is that “one who spills the blood of a person inside another person is put to death,” implying the prohibition against abortion.
Although the reference is to non-Jews, a well-known Talmudic principle teaches that a prohibition for non-Jews applies equally to Jews. Clearly, then, the Talmud saw abortion as a prohibition.
Source of the Prohibition: Murder
What is the source for the prohibition against abortion?
Based on the above-mentioned Mishnah, and an accompanying Talmudic passage in Sanhedrin (72b), the Rambam writes as follows: “On this basis, our Sages ruled that when a woman suffers hard labor in travail, it is permitted to cut up the fetus in her womb, both by means of a knife or by means of drugs, because the fetus is considered to be chasing after the mother to kill her” (Hilchos Shemiras Ha-Guf 1:9).
RavMosheFeinstein (IggrosMoshe, Choshen Mishpat Vol. 2, no. 69) writes that by invoking the rationale of rodef – somebody chasing another person to kill him – the Rambam teaches that a fetus is in fact considered a living person. The only justification for killing him is that he has the status of a rodef; without this it would be forbidden to take his life.
RavMoshe thus writes that the prohibition against abortion derives from murder: “Abortion is forbidden as murder both for non-Jews and for Jews…. Therefore, the law is … that there is a complete prohibition of murder, derived from the verse “You shall not murder” (Shemos 20:13), even concerning a fetus. The only difference is that for a fetus the killer is not liable for the death penalty.”
The Obligation to Prolong Life
Another possible avenue for explaining the prohibition against abortion is the obligation to preserve life – even the “potential” life of a fetus.
We learn of this obligation from a Mishnah (Yoma 8:5), which instructs that “a pregnant women who smells food [and feels a strong craving to eat] – we feed it to her [on Yom Kippur] until her spirit is calmed.” HalachosGedolos (Chap. 13) explains that this is done out of concern for a miscarriage: We permit eating on Yom Kippur for the sake of preserving the fetus.
The Ramban (TorasHa-Adam) writes that the same will apply to violating Shabbos for the sake of preserving a fetus: “As far as the observance of mitzvos is concerned, we violate them for his sake, for the Torah tells us to violate one Shabbos [to save a person’s life] in order that he might observe many Shabbos days. Therefore, even for the sake of a fetus that is less that forty days post-conception, and as of yet has no life at all, we would violate the Shabbos [to save it] – in accordance with the author of HalachosGedolos.”
Rabbi Shmuel Wosner (Shevet Ha-Levi 7:208) adopts this reasoning to explain the prohibition against abortion, while stressing that the act is not considered murder: “It is obvious that since it is permitted according to Torah law to violate Shabbos in order to bring [a fetus] to [a man] obligated in mitzvos, it is all the more so forbidden to kill without reason. This falls short, however, of being considered murder.” According to the Shevet Ha-Levi, abortion is not murder, but it remains a Torah prohibition.
Other Approaches
RavYairChaimBachrach (Shut Chavas Yair no. 31) states that the prohibition against abortion is a corollary of spilling seed. Needlessly spilling seed, which is of course a lesser developed form of life that a fetus, is a severe prohibition. Likewise, he reasons, abortion is forbidden for it destroys the potential for life.
It is interesting that the majority of authorities who discuss the issue do not mention this idea. It is possible that they understood the prohibition of spilling seed as referring specifically to the action involved is so doing – though as the Chavas Yair expounds, some Talmudic passages suggest that the prohibition extends beyond the action itself.
Another suggestion is raised by the Maharit (Vol. 1, no. 97, based on Tosafos), who notes that the prohibition against abortion can actually derive from tort law: Causing an abortion is damaging (to the parents), and is therefore forbidden.
A further possibility, which is mentioned by the Beit Shlomo (Choshen Mishpat no. 132), is that abortions are sometimes a cause of unnecessary danger to the mother’s life. This provides an additional reason for prohibiting the procedure.
When is an Abortion Permitted – Mental Anguish?
We have seen that an abortion is permitted when it is required to save the life of the mother. Are there other circumstances in which it is permitted to perform an abortion?
The Gemara (Arachin 7a) discusses the case of a pregnant woman who was sentenced to be executed for idolatry. Should we wait until after childbirth before putting her to death, in order to save the life of her fetus? As we have seen, it is permitted to transgress Shabbos prohibitions to rescue the life of a fetus, and perhaps there should be a stay of execution for the same reason.
According to the Ran (Chullin 58a), the conclusion we execute her immediately, because of innui ha-din. When a person knows that within a short period of time he will be executed, he suffers the agony of anticipation (innui din). Therefore, we take into account the mental anguish of the mother, and speedily execute her, even if doing so requires also killing the fetus.
The Achiezer (Vol. 3, no. 65) notes the difficulty of this explanation (which is also found in Tosafos, Archin, and in the Rambam, Sanhedrin 12:4), and points out that according to this it appears that there is no Torah prohibition in performing an abortion.
However, the Gemara itself writes that the woman is executed because the fetus is a part of her own body (even citing a verse to the effect that the fetus is killed with her). Because the woman is punishable by death, the halachah decrees that the fetus is killed together with her.
Thus, although the rationale of innui ha-din might be a reason for not waiting until term and saving a potential life, we cannot deduce that mental anguish is sufficient reason for actually performing an abortion.
Abortion for the Sake of the Mother
A number of authorities raise the question of an errant woman who sinned promiscuously, became pregnant and had regrets. Is it permitted for her to abort? This question is discussed by the Chavas Yair (loc. cit.), by Rabbi Yaakov Emden (Shut Yaavatz, Vol. 1, no. 43), and by others – most recently (and at length) Rabbi Eliezer Waldenberg (Tzitz Eliezer Vol. 9, no. 51).
The conclusion of these halachic discussions is not entirely clear. The Chavas Yair points out that there is no room to distinguish between a fetus who is destined to be born a mamzer, and a regular child – whereas Rav Yaakov Emden does raise this as a possible distinction.
Both authorities lean initially towards permitted the abortion, but conclude with a warning against leniency (the Chavas Yair more clearly, and Rav Yaakov Emden somewhat cryptically). Later authorities offer different interpretations of the conclusive halachah on this question.
Rabbi Waldenberg suggests that the concept underlying the tendency of some authorities towards leniency as drawing from concern for the deep shame the mother will experience upon birth. He continues to write extensively on the question of whether it is permitted to perform an abortion for the mother’s sake where her life is not at risk, citing a number of authorities (including the Maharit, the Toras Chesed, and others) who are lenient in cases of medical concerns that do not involve danger of death.
At the same time, he also notes that several authorities consider abortion to be a form of murder – a position strongly adopted by Rav Moshe Feinstein, as noted above – and are thus lenient only where a mother’s life is endangered. Rabbi Waldenberg writes that that a halachic authority must also take these opinions into account.
Another point to note is that the trustworthiness of doctors cannot always be taken for granted. On occasion belief systems can influence a person’s professional counsel, and care should always be taken to ensure that one has all the available knowledge (see Shevet Ha-Levi, Vol. 7, no. 208, sec. 4; see also Yabia Omer, Vol. 4, Even Ha-Ezer 1).
Abortion in Cases of Birth Defects
Today, with the aid of advanced methods of prenatal diagnosis, it is possible to diagnose genetic disorders at an early stage of pregnancy. Is it permitted to abort in the knowledge that the baby will be handicapped, or even if he will have little chance of survival?
Once again, Rav Moshe Feinstein presents the stringent opinion, whereas Rabbi Waldenberg is more permissive.
According to Rav Moshe (Choshen Mishpat 2:69), “Even for children for whom the doctors predict a very short life span, such as those children who are born with Tay-Sachs, which can be diagnosed at the prenatal stage, it remains forbidden, since there is no danger to the mother and the infant is not a rodef. One cannot permit an abortion even though there is very great suffering involved…. It is incontrovertible and clear, as I have written… that abortion is forbidden as bona-fide murder, for any fetus, legitimate or mamzer, genetically complete or afflicted by Tay-Sachs – all are included in the prohibition according to Torah law.”
Rabbi Waldenberg (Vol. 13, no. 102, sec. 1), however, makes the distinction – which is suggested by certain authorities – between a fetus that has reach forty days after conception (others suggest a demarcation line of three months after conception), and a fetus later into pregnancy (see Chavas Yair, loc. cit., who rejects the distinction):
“Abortion within the first forty days of the pregnancy, and also before the fetus has completed three months, is far less severe than later on in the pregnancy. Therefore, it is possible to permit an abortion within this time period, as long as there are as of yet no fetal movements, if there is an established risk that the child will be deformed and suffer great pain.…
Regarding the termination of pregnancy due to detection of Tay-Sachs in the fetus: After seriously examining all the facts concerning this serious question, in my humble opinion, based on what I have already clarified concerning the termination of pregnancy in my work Tzitz Eliezer Vol. 9:51 (Section 3), it would be possible to permit performing an abortion up until the seventh month in this unique circumstance where the consequences of continuing the pregnancy are so severe. The abortion must be performed in a manner that involves no danger involved to the mother. From seven months and on the matter is much more severe.”
In this case, the teshuvah of Rav Moshe was actually written after that of Rabbi Waldenberg. Rav Moshe concludes with a direct reference: “I was greatly surprised to see a teshuvah, written by a rabbi in Israel to the director of the Shaarei Zeddek hospital, in which the author permits the abortion of a fetus diagnosed with Tat-Sachs even beyond three months after conception.… Yet the halachah is simple and clear as I have stated above, based on all of our Sages and previous authorities, in that there is no distinction between a regular infant and a mamzer, a healthy baby and one afflicted with Tay-Sachs – the prohibition against abortion, which is considered to be actual murder, applies to all equally. One should certainly not err in following the leniency of the noted rabbi.”
Israeli Law
Under Israeli law a termination committee approves abortions (sub-section 316a), in the following circumstances:
- The woman is younger than seventeen (the legal marriage age in Israel) or older than forty.
- The pregnancy was conceived under illegal circumstances, in an incestuous relationship, or outside of marriage.
- The fetus may have a physical or mental birth defect.
- Continued pregnancy may put the woman’s life in risk, or damage her physically or mentally.
In practice, most requests for abortion are granted, and leniency is shown especially under the clause for emotional or psychological damage to the pregnant woman. In addition, about half of all abortions are performed illegally in private doctors’ clinics without approval from a committee. Although women who get an illegal abortion face no criminal penalties, physicians who perform them can face a fine or up to five years’ imprisonment. As of today, there have been no known prosecutions of doctors for performing illegal abortions.
The legal criteria are, of course, far removed from any halachic position.
Conclusion
The abortion question has become far more complex today than in the past. This is due on the one hand to advanced imaging techniques that allow obstetricians a portal into fetal development even in the first trimester of pregnancy, and on the other to abortion techniques that reduce dangers to the mother to a minimum.
Living with a serious medical condition, physical or mental, can be hard and trying, both for the child and his parents. At the same time, it remains life – and can involve human fulfillment at the highest level.
The ethical issues involved in performing an abortion have been discussed and debated for decades and longer. Doubtless, they will continue to be debated for many decades to come. For us, Torah-true Jews, the guiding light – for profound ethical questions as well as day-to-day matters – is only Torah and halachah.
