Daily Halacha Wednesday: Abortion in Jewish law-The severity and cases of exception

Abortion of a Jewish fetus:^[1]

*It is important to note, that the below discussion is limited specifically to abortion of a fetus of a Jewish mother. The abortion of a fetus of a Gentile mother follows different bylaws, often being more stringent than that of a Jewish fetus, and hence no laws relevant to an abortion of a Gentile fetus should be derived from the below article. Furthermore, even regarding the abortion of a Jewish fetus, the below is a general overview on the subject, and all Jewish Mothers, Jewish doctors, or gentiles who have accepted to keep the seven Noahide laws, are to contact a Rav who is expert in these laws prior to performing an abortion r”l.

1. The general law:

Although there is major debate amongst the Poskim[2] as to the exact Halachic source[3], reason[4], and level of severity[5], of the act of abortion of a Jewish fetus, practically, there is consensus amongst almost all the Poskim that is forbidden to be done for one reason or another, and so is the final ruling of today’s Poskim that it constitutes a Biblical prohibition.[6] All in all, irrelevant of the technical legal debate, Judaism views abortions very seriously, considering it tantamount to murder[7], and hence is only permitted to be done in very limited situations, such as when the pregnancy poses a danger to the life of the mother.

1. Cases of possible exception:

Practically, whether an abortion may take place is depending on the following factors:

• The number of weeks of gestation [pregnancy] and if 40 days have already passed.
• How the pregnancy took place [i.e. rape versus under consent].
• If it is the result of forbidden relations [incest, adultery, out of wedlock].
• The mental state of the mother to be and if there is any serious risk to her mental or physical state.^[8]
• If there any blemishes or defects in the fetus.
• If the mother to be is Jewish or gentile.

For the sake of saving the life of the mother:^[9] It is permitted to abort a fetus of a Jewish woman in the event that the pregnancy poses a danger of life for the mother. However, in a case of questionable danger for the mother, then some Poskim^[10] conclude that an abortion may not be performed.

Stage of the pregnancy-Within the first 40 days from conception:^[11] A fetus within the first 40 days from conception is considered like mere fluids and hence an abortion which takes place within 40 days from conception is not included in the murder prohibition, although other lighter prohibitions may apply.

Illegitimate pregnancies: Some Poskim^[12] rule that abortions are permitted by illegitimate pregnancies which result from a relationship that is Biblically forbidden [i.e. incest, adultery]. Other Poskim^[13] rule that abortions are forbidden even in such a case. According to all opinions, the prohibition applies to pregnancies that occur out wedlock, or to teen pregnancies, whether consensual or not.

Fetal anomaly: Some Poskim^[14] raise the possibility of allowance to abort through medication, fetuses which contain detected anomalies which would cause the child to be dysfunctional and mentally incapacitated when born.^[15] Likewise, based on the same approach, a fetus which is detected to be deaf and mute would be allowed to be aborted. Nonetheless, the vast majority of Poskim^[16] completely reject this notion and rule that abortions are Biblically prohibited even to defected fetuses. Furthermore, even according to the former approach, it would only be allowed if the defect is certain, and only if the abortion is done through medication, and practically, even they conclude that it is not to be done.^[17] This especially applies to a gentile fetus.^[18] Nonetheless, some Poskim^[19] permit the abortion of fetuses which contain such abnormalities and defects that they will not be able to live at all once born, and hence they are not considered as a life even when they are in the womb.

The form of abortion-surgical versus medicinal:^[20] It is debatable whether the taking of an abortion pill is Biblically forbidden by a Jew or only Rabbinical. It is unclear if this debate applies likewise to a gentile fetus.

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[1] See Sanhedrin 57b and 72b; Ohalos 7:6; Erechin 7a; Tosafus Sanhedrin 59a, Nidda 44b; Rambam Rotzeiach 1:9; Melachim 9:4; Michaber C.M. 425:2; Smeh C.M. 425:8; Maharit 1:97 and 99; Chavos Yair 31; Sheilas Yaavetz 1:43; Beis Yehuda E.H. 14; Noda Beyehuda Tinyana C.M. 59; Panim Meiros 3:8; Toras Chesed Lublin E.H. 42:31-32; Meiy Nida Nidda ibid; Beis Yitzchak Y.D. 2:162; Peri Hadama 2:143; Rav Poalim E.H. 1:4; Mishpitei Uziel C.M. 3:47; Doveiv Meisharim 1:20; Tzafnas Paneiach 1:59; Igros Moshe C.M. 2:69; Yabia Omer E.H. 4:1; Tzitz Eliezer 8:36; 9:51; 14:100; 20:2; Mishneh Halachos 9:328-330; Koveitz Teshuvos C.M. 1:221; Nishmas Avraham C.M. 425 [summary on all above]; Madanei Shlomo p. 355; Encyclopedia Hilchatit Refuit Hapalah Vol. 2 p. 717, 737, 752-782-817; Igros Moshe C.M. 2:69; See Toras Hayoledes Chapter 66; Many Letters of Rebbe in Shulchan Menachem 6:4, brought in footnote below

[2] Poskim who rule the prohibition is Biblical: Toras Chesed ibid in opinion of Rambam; Moshav Zekeinim Shemos 21:22; Chikrei Lev O.C. 58; Maharam Shick Y.D. 155; Achiezer 3:65-14; Otzer Hamelech Tumas Meis 106; Or Sameiach Issurei Biyah 3:2; Meshech Chochma Parshas Vayakhel; Sdei Chemed Mareches Halef 252; Divrei Yissachar C.M. 168; Beis Yitzchak ibid; Binyan Dovid 47; Yabia Omer ibid; Igros Moshe ibid; Mishneh Halachos ibid; Many Poskim in Encyclopedia Hilchatit ibid footnote 186

Poskim who rule the prohibition is Rabbinical: Ran Chulin 58a; Toras Chesed ibid; Maharam Shick ibid; Achiezer 3:65-14 in opinion of Ran ibid; Shut Tzafnas Paneiach 59; Chaim Veshalom 1:40; Tzelusa Deavraham 60; Maharash Engel 5:89; 7:170; Beis Yehuda E.H. 14; Emunas Shmuel 14; Some Poskim in opinion of Tosafus Nidda [brought next]; Tzitz Eliezer 8:36 in opinion of Rambam; Encyclopedia Hilchatit ibid footnote 185

Poskim who rule the prohibition is not so severe: Tzeida Laderech Mishpatim; Maharit ibid; Mishpitei Uziel ibid, based on Sanhedrin 72b

Poskim who rule there is no prohibition: Tosafus Nidda 44b as understood by some Poskim [Maharitz Chayos Nidda ibid; Mileches Shlomo Nidda ibid; Yakhil Shlomo O.C. 330; Toras Chesed ibid; Tzitz Eliezer ibid] but dissented by other Poskim who learn that even according to Tosafus ibid, it is forbidden. [Chavos Yair ibid; Yaavetz ibid; Sheilas Yaavetz ibid; Meiy Nida ibid; Beis Yitzchak ibid; Peri Hadama ibid; Doveiv Meisharim ibid; Tzafnas Paneiach ibid; Igros Moshe ibid; Mishpitei Uziel ibid]

[3] There is no explicit verse in Scripture which mentions a prohibition against abortion. On the contrary, from Scripture alone one can erroneously deduce that he abortion of a fetus is not so severe as certainly not tantamount to murder. [See Shemos 21:22-23; Bava Kama 42a; Mechilta Derashbi Mishpatim 8] Likewise, there is no explicit statement found in the Talmud which prohibits the abortion of a Jewish fetus, even though it explicitly discusses a prohibition against aborting a gentile fetus due to the provision against murder found in the seven Noahide laws.

[4] See Encyclopedia Hilchatit ibid pp. 754-756 for various different reasons mentioned in the above Poskim for the prohibition: 1) Due to the biblical murder prohibition [this is the most accepted approach amongst today’s Poskim that abortion is tantamount to actual murder and is forbidden due to the murder prohibition]. 2) Due to that it damages the body or property of the woman. 3) due to a wasting seed. 4) due to entering the woman into danger. 5) as one prevents the fetus from becoming a Jew who will be observant in Torah and mitzvot. 6) due to desecration of God’s name being that even Gentiles prohibit it. 7) due to the prohibition of steeling, as one is considered to be stealing the life from the fetus.

[5] See previous footnotes that some Poskim rule the prohibition is Biblical while others rule it is rabbinical, and according to some, there is an opinion who holds that there is no prohibition at all

[6] Encyclopedia Hilchatit Refuit Hapalah Vol. 2 p. 752 “almost all of them agree that there is some level of prohibition against causing an abortion even though they dispute the exact essence and severity and reason behind the prohibition… [Furthermore] the most accepted approach amongst today’s Poskim is that abortion is tantamount to actual murder and is Biblically forbidden due to the murder prohibition”; Igros Kodesh 15:338; Many Letters of Rebbe in Shulchan Menachem 6:4, brought in footnote below

[7] See Encyclopedia Hilchatit ibid footnote 199-200; Likkutei Sichos 24:230 “The truth is that parents asking their daughter to commit abortion go through an abortion of a fetus is tantamount to them asking her daughter to kill her own child heaven forbid, and they the parents are asking to murder their own grandchild heaven forbid. For the remainder of all of their lives the trauma of what they have done will be engraved within their souls, and certainly they should negate this completely”; Areinu Niflaos p. 186 “This is not considered an abortion heaven forbid but rather the murder of the fetus. It goes without saying that the mother of the fetus or the father should not even entertain the idea of killing a fetus especially when it is theirs. Even if one considers himself a secular Jew it does not permit him heaven forbid to become a murder. Even the Nazis, may their names be obliterated, did not kill their own children but rather the children of the Jewish people.” Letter of 9^th Kisleiv 5745 “If there are people who will try to influence you to abort your fetus heaven forbid, you shall tell them that this is considered premeditated murder of a creature that does not yet have the ability to protect itself from those who want to kill him and the same God that formed the fetus is the God who created them sometime earlier and He sees and watches what they are doing.”

[8] See Encyclopedia Hilchatit Refuit Hapalah Vol. 2 p. 767

[9] Michaber C.M. 425:2; Rambam Rotzeiach 1:7; Mishneh Ohalos 7:6; See Encyclopedia Hilchatit Refuit Hapalah Vol. 2 p. 760-767

[10] Igros Moshe C.M. 2:69

[11] Beis Shlomo C.M. 132; Achiezer 3:65; Toras Chesed E.H. 42:33; Rav Unterman in Noam 6:1; Igros Moshe C.M. 2:69; Teshuvos Vehanhagos 2:735; See regarding even a Jewish fetus that it is permitted, or more lenient within the first 40 days: Chavos Yair 31; Seridei Eish 3:127; Tzafnas Paneiach 1:59; Rav Poalim 4:14; Rav S”ZA, brought in Mishmas Avraham 5:425

More than 40 days: Some Poskim rule that so long as the fetus is not fully developed, there is no liability for abortion. [Minchas Chinuch Mitzvah 34; Shut Tzafnas Paneiach Hashlama on vol. 4 on Rambam that the prohibition only applies once the mother is ready for birth; See Choveret Asia 45-46 p. 67 and Sefer Emek Habacha p. 94 who severely questions the assertion of the Tzafnas Paneiach] Some Poskim are lenient with abortions prior to the passing of three months of pregnancy. [Peri Hasadeh 4:50-5; Yabia Omer 4 E.H. 1]

[12] Sheilas Yaavetz 1:43; Rav Poalim E.H. 1:14 [unlike Y.D. 4:4]; Mishpitei Uziel C.M. 3:47; Shearim Hametzuyanim Behalacha 184:7 [?]; See Tzitz Eliezer 17:49-12 and 9:51

[13] Chavos Yair 31; Sefer Chassidim 1918; Yeshuos Malko on Rambam Shabbos chapter 2; Gidulei Tziyon 1:32; Lechem Hapanim Kuntrus Achron 19; Rav Poalim Y.D. 4:4; Igros Moshe C.M. 2:69; Mishneh Halachos 10:303; See Shevet Halevi 5:195

[14] Mishnas Avraham on Sefer Chassidim ibid; See Tzitz Eliezer 13:102 and Y.D. 27:7 regarding Jewish fetuses; See also Beahala Shel Torah 1:116

[15] The reason: As one is not liable for capital punishment for killing an insane person. [Mahariy Chagiz in Halachos Ketanos 37]

[16] Igros Moshe C.M. 2:71; Yaskil Avdi E.H. 6:85; Shevet Halevi 7:208; Nishmas Avraham C.M. 425:1; Mishneh Halachos 5:233; 6:14; 9:328-330; Teshuvos Vehanhagos 2:736

[17] See Mishnas Avraham ibid who says that not everyone agrees to the assertion of the Halachos Ketanos that one is not liable for capital punishment for killing an insane person, in addition to the fact that is not really possible to ever know one hundred percent that the child will be insane.

[18] As it is not clear if according to the Halachos Ketanos even a Gentile is exempt from killing a Shoteh and Cheresh, and on the contrary, from the fact that a gentile is liable for killing a Treifa, it would be implied that perhaps there also liable for killing a Shoteh and Cheresh. Vetzaruch Iyun

[19] Nishmas Avraham C.M. 425:1; Shevet Halevi 10:259-1

[20] See Mishnas Avraham on Sefer Chassidim ibid; Beis Yehuda E.H. 1:14; Chaim Veshalom 1:40; Chavos Yair 31; Sefas Hayam E.H. 14; Yabia Omer E.H. 4:1; Tzitz Eliezer 9:51 Shaar 3; 14:101-3