וא"ל אנטונינוס לרבי נשמה מאימתי ניתנה באדם משעת פקידה או משעת יצירה א"ל משעת יצירה א"ל אפשר חתיכה של בשר עומדת שלשה ימים בלא מלח ואינה מסרחת אלא משעת פקידה אמר רבי דבר זה למדני אנטונינוס ומקרא מסייעו שנאמר (איוב י, יב) ופקודתך שמרה רוחי
And Antoninos said to Rabbi Yehuda HaNasi: From when is the soul placed in a person? Is it from the moment of conception or from the moment of the formation of the embryo, forty days after conception? Rabbi Yehuda HaNasi said to him: It is from the moment of the formation of the embryo. Antoninos said to him: That is inconceivable. Is it possible that a piece of meat could stand for even three days without salt as a preservative and would not rot? The embryo could not exist for forty days without a soul. Rather, the soul is placed in man from the moment of conception. Rabbi Yehuda HaNasi said: Antoninos taught me this matter, and there is a verse that supports him, as it is stated: “And Your Providence [pekudatekha] has preserved my spirit” (Job 10:12) indicating that it is from the moment of conception [pekida] that the soul is preserved within a person.
ואי מיעברא עד ארבעים מיא בעלמא היא
And if she is pregnant, until forty days from conception the fetus is merely water.
Can you deduce from these verses that a fetus is not considered a nefesh? _____________________________________________________________________
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אשכח ר' יעקב בר אחא דהוה כתיב בספר אגדתא דבי רב בן נח נהרג בדיין א' ובעד אחד שלא בהתראה מפי איש ולא מפי אשה ואפילו קרוב משום רבי ישמעאל אמרו אף על העוברין.... מאי טעמיה דרבי ישמעאל דכתיב (בראשית ט, ו) שופך דם האדם באדם דמו ישפך איזהו אדם שהוא באדם הוי אומר זה עובר שבמעי אמו
Rabbi Ya’akov bar Aḥa found that it was written in a book of Aggadot in the study hall of Rav: Contrary to the halakha with regard to a Jew, a descendant of Noah is executed on the basis of the verdict of even one judge, and by the testimony of even one witness, and without being given forewarning before committing the transgression. He can be judged or testified against only by the mouth of a man and not by the mouth of a woman; but even a relative may judge his case or testify against him. The Sages said in the name of Rabbi Yishmael that a descendant of Noah is executed even for killing fetuses..... What is the reason for the opinion of Rabbi Yishmael? The Gemara answers: It is derived from that which is written: “One who sheds the blood of a person, by a person [ba’adam] his blood shall be shed” (Genesis 9:6). The word ba’adam literally means: In a person, and is interpreted homiletically: What is a person that is in a person? You must say: This is a fetus that is in its mother’s womb.
(ד) בֶּן נֹחַ שֶׁהָרַג נֶפֶשׁ אֲפִלּוּ עֵבָּר בִּמְעֵי אִמּוֹ נֶהֱרָג עָלָיו.
(4) A non-Jew who kills someone, even a fetus in its mother’s womb, is executed.
According to this Rambam, would the Alabama abortion law make sense? Explain. ______________________________________________________________________
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ליכא מידעם דלישראל שרי ולעובד כוכבים אסור
There is nothing that is permitted to a Jew and forbidden to a gentile.
What is the exact prohibition of Abortion?
A) Mizrachi- Murder
B) Maharam Schick-Pseudo Murder (Avizrayu)
C) Chavas Yair-Wasting seed
D) Maharit- Wounding (Chavalah)
(ו) הָאִשָּׁה שֶׁהִיא מַקְשָׁה לֵילֵד, מְחַתְּכִין אֶת הַוָּלָד בְּמֵעֶיהָ וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נָפֶשׁ:
(6) If a woman is having trouble giving birth, they cut up the child in her womb and brings it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out, one may not touch it, for one may not set aside one person's life for that of another.
(ט) אַף זוֹ מִצְוַת לֹא תַּעֲשֶׂה שֶׁלֹּא לָחוּס עַל נֶפֶשׁ הָרוֹדֵף. לְפִיכָךְ הוֹרוּ חֲכָמִים שֶׁהָעֻבָּרָה שֶׁהִיא מַקְשָׁה לֵילֵד מֻתָּר לַחְתֹּךְ הָעֵבָּר בְּמֵעֶיהָ בֵּין בְּסַם בֵּין בְּיָד מִפְּנֵי שֶׁהוּא כְּרוֹדֵף אַחֲרֶיהָ לְהָרְגָהּ. וְאִם מִשֶּׁהוֹצִיא רֹאשׁוֹ אֵין נוֹגְעִין בּוֹ שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נֶפֶשׁ וְזֶהוּ טִבְעוֹ שֶׁל עוֹלָם:
(9) This, indeed, is one of the negative mitzvot - not to take pity on the life of a rodef. On this basis, our Sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether with a knife or with drugs. For the fetus is considered a rodef of its mother. If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.
This article was reprinted from Aish.com
The traditional Jewish view does not fit conveniently into the major "camps" in the current debate.
As abortion resurfaces as a political issue in the upcoming U.S. presidential election, it is worthwhile to investigate the Jewish approach to the issue. The traditional Jewish view of abortion does not fit conveniently into any of the major "camps" in the current American abortion debate. We neither ban abortion completely, nor do we allow indiscriminate abortion "on demand."
A woman may feel that until the fetus is born, it is a part of her body, and therefore she retains the right to abort an unwanted pregnancy. Does Judaism recognize a right to "choose" abortion? In what situations does Jewish law sanction abortion?
To gain a clear understanding of when abortion is permitted (or even required) and when it is forbidden requires an appreciation of certain nuances of halacha (Jewish law) which govern the status of the fetus.1
The easiest way to conceptualize a fetus in halacha is to imagine it as a full-fledged human being – but not quite.2 In most circumstances, the fetus is treated like any other "person." Generally, one may not deliberately harm a fetus. But while it would seem obvious that Judaism holds accountable one who purposefully causes a woman to miscarry, sanctions are even placed upon one who strikes a pregnant woman causing an unintentional miscarriage.3 That is not to say that all rabbinical authorities consider abortion to be murder. The fact that the Torah requires a monetary payment for causing a miscarriage is interpreted by some Rabbis to indicate that abortion is not a capital crime4 and by others as merely indicating that one is not executed for performing an abortion, even though it is a type of murder.5 There is even disagreement regarding whether the prohibition of abortion is Biblical or Rabbinic. Nevertheless, it is universally agreed that the fetus will become a full-fledged human being and there must be a very compelling reason to allow for abortion.
In general, abortion is permitted only if there is direct threat to the mother.
As a general rule, abortion in Judaism is permitted only if there is a direct threat to the life of the mother by carrying the fetus to term or through the act of childbirth. In such a circumstance, the baby is considered tantamount to a rodef, a pursuer6 after the mother with the intent to kill her. Nevertheless, as explained in the Mishna,7 if it would be possible to save the mother by maiming the fetus, such as by amputating a limb, abortion would be forbidden. Despite the classification of the fetus as a pursuer, once the baby's head or most of its body has been delivered, the baby's life is considered equal to the mother's, and we may not choose one life over another, because it is considered as though they are both pursuing each other.
It is important to point out that the reason that the life of the fetus is subordinate to the mother is because the fetus is the cause of the mother's life-threatening condition, whether directly (e.g. due to toxemia, placenta previa, or breach position) or indirectly (e.g. exacerbation of underlying diabetes, kidney disease, or hypertension).8 A fetus may not be aborted to save the life of any other person whose life is not directly threatened by the fetus, such as use of fetal organs for transplant.
Judaism recognizes psychiatric as well as physical factors in evaluating the potential threat that the fetus poses to the mother. However, the danger posed by the fetus (whether physical or emotional) must be both probable and substantial to justify abortion.9 The degree of mental illness that must be present to justify termination of a pregnancy has been widely debated by rabbinic scholars,10 without a clear consensus of opinion regarding the exact criteria for permitting abortion in such instances.11 Nevertheless, all agree that were a pregnancy to cause a woman to become truly suicidal, there would be grounds for abortion.12 However, several modern rabbinical experts ruled that since pregnancy-induced and post-partum depressions are treatable, abortion is not warranted.13
As a rule, Jewish law does not assign relative values to different lives. Therefore, almost most major poskim (Rabbis qualified to decide matters of Jewish law) forbid abortion in cases of abnormalities or deformities found in a fetus. Rabbi Moshe Feinstein, one the greatest poskim of the past century, rules that even amniocentesis is forbidden if it is performed only to evaluate for birth defects for which the parents might request an abortion. Nevertheless, a test may be performed if a permitted action may result, such as performance of amniocentesis or drawing alpha-fetoprotein levels for improved peripartum or postpartum medical management.
While most poskim forbid abortion for "defective" fetuses, Rabbi Eliezar Yehuda Waldenberg is a notable exception. Rabbi Waldenberg allows first trimester abortion of a fetus that would be born with a deformity that would cause it to suffer, and termination of a fetus with a lethal fetal defect such as Tay Sachs up to the seventh month of gestation.14 The rabbinic experts also discuss the permissibility of abortion for mothers with German measles and babies with prenatal confirmed Down syndrome.
There is a difference of opinion regarding abortion for adultery or in other cases of impregnation from a relationship with someone Biblically forbidden. In cases of rape and incest, a key issue would be the emotional toll exacted from the mother in carrying the fetus to term. In cases of rape, Rabbi Shlomo Zalman Aurbach allows the woman to use methods which prevent pregnancy after intercourse.15 The same analysis used in other cases of emotional harm might be applied here. Cases of adultery interject additional considerations into the debate, with rulings ranging from prohibition to it being a mitzvah to abort.16
I have attempted to distill the essence of the traditional Jewish approach to abortion. Nevertheless, every woman's case is unique and special, and the parameters determining the permissibility of abortion within halacha are subtle and complex. It is crucial to remember that when faced with an actual patient, a competent halachic authority must be consulted in every case.
1 While there is debate among the Rabbis whether abortion is a Biblical or Rabbinical prohibition, all agree on the fundamental concept that fundamentally, abortion is only permitted to protect the life of the mother or in other extraordinary situations. Jewish law does not sanction abortion on demand without a pressing reason.
2 Igros Moshe, Choshen Mishpat II: 69B.
3 Shulchan Aruch, Choshen Mishpat, 423:1
4 Ashkenazi, Rabbi Yehuda, Be'er Hetiv, Choshen Mishpat 425:2
5 Igros Moshe, ibid
6 Maimonides, Mishneh Torah, Laws of Murder 1:9; Talmud Sanhedrin 72B
7 Oholos 7:6
8 See Steinberg, Dr. Abraham; Encyclopedia of Jewish Medical Ethics, "Abortion and Miscarriage," for an extensive discussion of the maternal indications for abortion.
9 Igros Moshe, ibid
10 See Encyclopedia of Jewish Medical Ethics. P. 10, for references.
11 See Spero, Moshe, Judaism and Psychology, pp. 168-180.
12 Zilberstein, Rabbi Yitzchak, Emek Halacha, Assia, Vol. 1, 1986, pp. 205-209.
13 Rabbi Shlomo Zalman Aurbach and Rabbi Yehoshua Neuwirth cited in English Nishmat Avraham, Choshen Mishpat, 425:11, p. 288.
14 Tzitz Eliezer, Volume 13:102.
15 Rabbi Shlomo Zalman Aurbach and Rabbi Yehoshua Neuwirth cited in English Nishmat Avraham, Choshen Mishpat, 425:23, p. 294.
16 See excellent chapter in English Nishmat Avraham, Choshen Mishpat, 425 by Dr. Abraham Abraham, particularly p. 293.