Pro-life or Pro-choice: The Torah’s perspective on abortions of gentile fetuses-Part 1

Pro-life or pro-choice: The Torah’s perspective on abortions of gentile fetuses[1]

*It is important to note, that the below discussion is limited specifically to abortion of a fetus of a Gentile mother. The abortion of a fetus of a Jewish mother follows different bylaws, with many debates surrounding as to the exact view of the Torah on a Jewish fetus, and as to in which cases abortion is permitted, and hence no laws relevant to an abortion of a Jewish fetus should be derived from the below article. Furthermore, even regarding the abortion of a gentile fetus, the below is a general overview on the subject, and all 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.

A. Introduction:

One of the most heatedly debated subjects in American politics, which was recently highlighted with the revolutionary overturning of Roe versus Wade by the U.S Supreme court, is the subject of abortion rights and whether governments should be pro-life or pro-choice. Advocates of pro-life claim that life begins with conception and hence once a woman conceives, she no longer holds rights to cease the pregnancy, and kill her fetus, just like no mother or father has the right to kill their child or any other human being. On the other hand, advocates of pro-choice claim that life does not begin until actual birth, and hence a woman holds the right to cease a pregnancy for reasons that she sees fit. Between the two extremes are those who advocate for balanced abortion laws which regulate abortion to specific cases, such as to protect the life of the mother, or protect the child from a life of suffering in case of detected abnormalities in the fetus, or due to illegitimate pregnancies. Below, we will clarify the Torah’s perspective on this matter and as to whether the Torah views a fetus as a living being which is forbidden to be killed or aborted, or whether the Torah gives room for pro-choice, and the flexibility to abort due to reasons seen fit by the mother.

B. The general law:

Included in the seven noahide laws, which is biblically binding on all humanity, is a prohibition against murder.[2] Included in the Biblical prohibition of murder, is a prohibition against abortion of a fetus. Thus, according to Biblical law, a Gentile who aborts a fetus transgresses the prohibition against murder and is liable for capital punishment, as applies regarding each of the seven noahide laws.[3] The prohibition applies to both male and female gentiles.[4]

Accomplices to the abortion:[5] All accomplices to the murder would likewise be liable for capital punishment. [Accordingly, all parties associated with the facilitation of an abortion, could be held liable for capital punishment.]

Fetus of Jew versus gentile:[6] It is Biblically forbidden for a gentile to abort a fetus, whether it is the fetus of a Jewish woman or the fetus of a gentile woman.

Jewish versus gentile doctor:[7] The Biblical prohibition to abort a fetus of a gentile mother applies to both a Jew and gentile. Hence, it is Biblically forbidden a Jewish doctor or a gentile doctor to abort a gentile fetus.

Civil law: Even if civil law permits abortion, the Biblical prohibition against abortion remains in place.[8] Furthermore, according to Biblical Noahide law, all nations must establish court systems which enforce and prosecute transgressions of any of the seven Noahide laws, including abortion.[9]

Coming up in Part 2:

• For the sake of saving the life of the mother
• Stage of the pregnancy-Within the first 40 days from conception
• Illegitimate pregnancies:

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[1] See Encyclopedia Talmudit Erech Ben Noach p. 351; Encyclopedia Hilchatit Refuit Erech Hapalah p. 796

[2] See Rambam Melachim 9

[3] Rambam Hilchos Melachim 9:4; Rebbe Yishmael in Braisa Sanhedrin 57b; Bereishis Raba 34:6; All Poskim brought in coming footnotes who discuss the abortion prohibition; See Minchas Chinuch Mitzvah 296 who questions whether a fetus is considered a full-fledged human life and hence the prohibition is due to murder, or if it is a unique independent prohibition against killing fetuses, which has nothing to do with the murder prohibition; Koach Shur 20 rules like the second approach, that it is its own unique prohibition; See Chelkas Yoav Kuntrus Kava Dekushyasa 19 regarding how it was allowed for the Judges to put Tamar and her fetuses to death; See also Torah Sheleima Bereishis 38 end of Os 96

The source: This is learned from the verse in Bereishis [Bereishis 40:6] “Shafach Dam Ha’adam Ba’adam Damo Yishafeich/One who spills the blood of man within man, his blood shall be spilled.” Now, the Talmud states that this wording “man within man” mentioned in Scripture refers to a fetus. [Sanhedrin ibid and Rashi ibid]

Other opinions: Some Tanaim were of the opinion that the murder clause does not include fetuses and hence Gentiles are not liable for death for the killing of a fetus. [Tana Kama in Braisa Sanhedrin ibid, and Tana Divei Menashe] Practically, we rule like the first opinion. [Rambam ibid]

[4] Sanhedrin ibid

[5] Bereishis Raba 34

The source: This is learned from the verse in Bereishis “Shafach Dam Ha’adam Ba’adam Damo Yishafeich/One who spills the blood of man within man, his blood shall be spilled.” Now, the Talmud states that this wording “man within man” mentioned in Scripture comes to include a person who hires a murderer to also be liable for capital punishment. [Bereishis Raba 34]

[6] Maharit 1:97 and 99; Kneses Hagedola on Tur C.M. 425:6; Makor Chaim 15; Divrei Yissachar C.M. 168; Aryeh Divei Ilaiy Y.D. 19; Tzitz Eliezer 9:51 Shaar 3:1; Igros Moshe C.M. 2:73-8; Lev Aryeh 2:32; Kuntrus Hapardes Shanah 35 Tamuz 5721 p. 21

[7] See Poskim ibid in previous footnote

[8] Teshuvos Vehanhagos 2:735

[9] See Rambam Melachim 9:14