1) The Case Study
During the Holocaust, a Jewish doctor in the camps was asked to meet with the Nazi general. He was told to collect all the pregnant Jewish women, and bring them to the headquarter building, as “this camp is no place for a pregnant woman”. The doctor was assured that these women would be sent to a safer place, more fitting for small children. However, later that night, he saw every single one of these women being lined up, and sent into the gas chambers. Horrified, he confronted the general, and was overwhelmed when he simply smiled back at him, and shrugged his shoulders. From that day on, this doctor went around the camp every day, and whenever he found a pregnant woman, he would abort her fetus, attempting to save her life. Do you think this was the moral thing to do? Do you think this was halachically permissible? What would you have done if you were the doctor?
Take a second case: this time, the mother’s life is not in danger. Instead, the mother finds out that her fetus has Tay Sachs disease, a horrible condition, in which the child will only live 2 or 3 years before dying, with no chance of survival. During those years, the child will suffer immeasurably, and will also cause insurmountable emotional pain and anguish to his parents and family. In such a case, would it be halachically permissible to perform an abortion? Would this be any different from the first case?
2) The Questions
Let’s first analyze the different questions:
- What’s the status of a fetus? Is it a human being? Is it not a human being at all? Is it a partial human being? Does it depend on how old the fetus is?
- Is there an issur of performing an abortion? If so, what is the nature of that prohibition?
- Even if it is normally issur, are there any exceptions to the rule? Is it ever permissible?
3) The Nature of the Issur
The most important source in the Torah is the pasuk in Shemos (21:22), “If two people are fighting, and one is pushed into a pregnant woman, and she miscarries… he must pay the value of the fetus….”. If we thought that a fetus was a human being, then wouldn’t it be murder if you killed it? Yet, what’s the punishment for murder? Chiyuv missah! And yet, the Torah says that if someone kills a fetus, he is given a monetary punishment, but makes no mention of the words murder or chiyuv missah. So the question remains, what issur do you violate for aborting a fetus?
- Murder
According to R’ Moshe Feinstein (Iggros Moshe- Choshen Mishpat- 2:69), abortion still falls under the category of retzicha, murder. How then can we explain the fact that you aren’t chayiv missah for violating abortion? Well, not all acts of killing are punishable by death. For example, if you kill a treifah [someone who has a wound that will cause him to die within a year], you’re not chayiv missah. According to Tosfos (Niddah 44b), if you kill a goseis [someone who is on the verge of death, and can die at any given moment- see shabbos 151b] you also aren’t chayiv missah. The logic would be as follows: not all acts of murder are equally severe. If you kill a full human being, you are chayiv missah; but if you kill someone who isn’t fully alive, then while it’s still murder, you wouldn’t be punished as severely.
- Chavalah- Wounding
According to the Chavos Ya’ir (Siman 31), abortion violates the issur of chavalah. There are two ways of understanding this. The first is that you are wounding the mother by aborting her fetus. Either because you will likely wound her in the process, or, by definition, the fetus is considered to be a part of her, a limb (uber yerech imo), and therefore, by cutting off the fetus from the mother, you are cutting off her limb. The second possibility is that chavalah itself is a subcategory of murder. Thus, while the fetus might not be a full human being which warrants a full issur of murder, it’s at least enough of a living being to warrant the violation of chavalah.
- Shichvas Zerah- Wasting Seed
According to the Maharit (Shu”t- Chelek 1- Siman 97), abortion violates the issur of shichvas zerah. This is of course connected to how we understand the issur of shichvas zerah itself. According to those who think the issur is connected to the bitul aseh of the mitzvah of pru urevu (Tosfos) or the issur of murder (Rambam), then it makes sense that this problem can continue, even after the seed has formed into a fetus. However, according to those who hold that the issue is an inappropriate addiction to physical pleasure, then we can question whether the problem is only the act of wasting seed itself, or even wasting the seed at a later stage, once it has become a fetus.
- Stealing
According to R’ Shlomo Zalman Aurbach (as quoted in Nishmat Avraham) abortion violates the issur of stealing. The fetus belongs to the parents (and more specifically to the father- as seen in Baba Kama in the fifth perek). This also explains why the passuk describes the punishment for abortion as monetary compensation
- Only Issur Dirabanan
The Tzitz Eliezer (20:2) thinks that abortion is actually muttar di’oraisa, and is only issurdirabanan. He was therefore famous for giving many heterim for abortion throughout his lifetime.
4) When is Abortion Allowed?
- To Save the Mother
The mishna in Ohelos (7:6) says that if the mother’s life is in danger, then while the fetus is in-utero, you can abort it to save the mother’s life. However, once the fetus’ head or most of its body emerges from the womb, you can’t sacrifice it to save the mother, because we don’t choose one life over another.
If we think that abortion is only a normal issur or an issur dirabanan, then it makes perfect sense that you can violate it to save the life of the mother, since saving a life overrides all the issurim in the Torah except for the big three: murder, idolatry and idol worship (Sanhedrin 74a, Shabbos 25a, Yoma 82a). However, if abortion is an issur of murder, like according to R’ Moshe, then why can we abort the fetus to save the mother? We can’t kill one person to save another?
However, there are several solutions to this problem. First of all, we can suggest that since the fetus is not a full person, you can in fact sacrifice it to save a full life. Second of all, since the fetus’ life is completely dependent on the mother, perhaps this is a unique exception where the mother’s life does in fact supersede the life of her fetus. (According to this, you would only be able to sacrifice the fetus to save the life of its mother, but not someone else’s life.) There are other solutions as well, but they are beyond the scope of this article.
5) Returning to our original cases
It’s definitely possible that we would allow the doctor to perform an abortion to save the life of the mother, especially if we don’t think abortion violates the issur of murder.
When it comes to the case of tay sachs, however, it’s a bit more difficult, as the mother’s life isn’t in danger. However, according to the Tzitz Eliezer, since the issur is only Dirabanan, he would sometimes allow an abortion if it was a tzaruch gadol. According to R’ Moshe Feinstein however, since this is an issur di’oraisa of murder, he wouldn’t allow an abortion is such a case.
By Shmuel Reichman
