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

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.

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.

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]

In part one on this subject, we explained the general biblical prohibition against aborting gentile fetuses, and that it is included in the murder prohibition which is listed as one of the seven noahide laws. We will now discuss if there are any case of exception to this rule:

For the sake of saving the life of the mother:[10] Some Poskim[11] question as to whether it is permitted to abort a fetus of a Gentile, in the event that the pregnancy poses a danger of life for the mother. Other Poskim[12] rule it is completely forbidden to be done. Other, Poskim[13], however, rule that it is permitted to be done. However, in a case of questionable danger for the mother, then some Poskim[14]  conclude that an abortion may not be performed.

Stage of the pregnancy-Within the first 40 days from conception:[15] 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 and therefore there is no liability of capital punishment for such an abortion. [Thus, there is strong room for leniency to permit abortions of gentile fetuses within the first 40 days of conception.[16]]

Illegitimate pregnancies: Some Poskim[17] rule that abortions are permitted by illegitimate pregnancies which result from a relationship that is Biblically forbidden [i.e. incest, adultery]. Other Poskim[18] rule that abortions are forbidden even in such a case. Seemingly, this debate is relevant also to a gentile fetus who was conceived due to forbidden relations [i.e. adultery, incest relations forbidden for gentiles[19]].[20] 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[21] 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.[22] 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[23] 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.[24] This especially applies to gentile fetus.[25] Nonetheless, some Poskim[26] 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:[27] 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.

[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

[10] See Nishmas Avraham C.M. 425 footnote 23; Minchas Avraham 42; Imrei Shefer 11; Teshuvos Vehanhagos 1:873

[11] Tosafus Sanhedrin 59a at first writes that its forbidden, and then concludes that it is possibly permitted

[12] Minchas Chinuch Mitzvah 296

[13] Mechzeh Avraham 2 Y.D. 19; Koch Shur 20

[14] Minchas Avraham ibid

[15] 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]

[16] Igros Moshe ibid

[17] 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

[18] 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

[19] See Rambam Melachim 9:4-7

[20] See Mishpitei Uziel ibid who applies the allowance also to gentiles; So can be proven from Maaseh Tamar

[21] 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

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

[23] 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

[24] 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.

[25] 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

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

[27] 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