Jewish Views on Abortion

(21) And all flesh that stirred on earth perished—birds, cattle, beasts, and all the things that swarmed upon the earth, and all mankind. (22) All in whose nostrils was the merest breath of life, all that was on dry land, died.

(22) When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. (23) But if other damage ensues, the penalty shall be life for life

(3) A baby one day old ... one who kills him is liable [for murder]; and he is thereby fully like a son-in-law to his father and to his mother and for all his relatives.

(6) A woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life. If most of it had come out (head) already they do not touch it because we do not push off one life for another.

MISHNA: In the case of a pregnant woman who is taken by the court to be executed, the court does not wait to execute her until she gives birth. Rather, she is killed immediately. But with regard to a woman taken to be executed who sat on the travailing chair [hamashber] in the throes of labor, the court waits to execute her until she gives birth...

GEMARA: Isn’t it obvious that the court executes the pregnant woman rather than waiting? After all, it is part of her body. The Gemara answers: It was necessary for the mishna to teach this, as it might enter your mind to say that since it is written: “And if men strive together, and hurt a woman with child, so that her offspring depart…he shall be fined, as the woman’s husband shall place upon him” (Exodus 21:22), the fetus is considered to be the property of the husband. If so, the court should wait until she gives birth before executing her, and not cause him to lose the fetus. Consequently, the mishna teaches us that the court does not take this factor into account. The Gemara asks: But why not say that indeed the court should delay her execution until she gives birth? Rabbi Abbahu says that Rabbi Yoḥanan says: The verse states: “If a man be found lying with a woman married to a husband, then they shall also both of them die, the man that lay with the woman, and the woman” (Deuteronomy 22:22). The amplifying term “both of them” serves to add her fetus, teaching that it dies together with her. The Gemara asks: But this phrase is required for the following halakha: Neither of the two adulterers mentioned in the verse is punished until both of them are equal, i.e., they have both reached majority. This is the statement of Rabbi Yoshiya. The Gemara answers: When you say that the child also dies, it is derived from the word “also,” whereas the halakha that they must be equal is learned from the term “both of them.” § The mishna teaches: With regard to a woman taken to be executed who sat on the travailing chair in the throes of labor, the court waits to execute her until she gives birth. The Gemara asks: What is the reason for delaying the execution in this case? The Gemara answers: Once the fetus uproots from its place and begins to leave the woman’s body, it is considered an independent body and may not be killed together with the mother. Rav Yehuda says that Shmuel says: In the case of a pregnant woman who is taken by the court to be executed, one strikes her opposite the womb, i.e., on the abdomen, so that the fetus dies first and so that she not suffer disgrace as a result of publicly bleeding from labor. The Gemara asks: Is this to say that according to Shmuel if a pregnant woman dies, she dies first, before the fetus? It is clear that this is Shmuel’s assumption, as he mandates killing the fetus before the mother, lest the live fetus bring about the onset of labor as a reaction to the woman’s death. Were the fetus to perish first, before the woman, there would be no need for this. But this is difficult, as we maintain that the fetus dies first. As we learned in a mishna (Nidda 43b–44a): A baby boy, one day old, inherits the estate of his relatives who died on the day of his birth, and if he dies, he bequeaths that inheritance to his relatives. And Rav Sheshet says: This mishna is teaching that a day-old child inherits his mother’s property when she died after he was born, to bequeath it to his heirs who are not the mother’s heirs, e.g., to his paternal brothers. The Gemara explains the difficulty: It is specifically in a case where the boy is one day old that he inherits and bequeaths, but a fetus who died while still in the womb does not inherit and bequeath. The reason is that we presume that the fetus died first, before its mother, and a son does not inherit through his mother while in the grave, in order to bequeath her property to his paternal brothers. The Gemara answers: This matter, i.e., the presumption that the fetus dies first, applies only in a case of natural death. In such a situation, since the fetus’s vitality is minimal, the Angel of Death’s drop of poison enters his body and cuts the two organs that must be severed in ritual slaughter, i.e., the windpipe and the gullet [simanim], thereby killing him before his mother. But in a case where the mother was killed, e.g., if she was executed, she dies first. The Gemara asks: Is it true that the fetus always dies first when the mother dies naturally? But there was an incident where the mother died naturally and the fetus made three spasmodic motions afterward. The Gemara answers: That is just as it is with the tail of the lizard, which jerks after being severed from the lizard; it is just a spasmodic motion, which does not indicate that it is still alive. § Rav Naḥman says that Shmuel says: In the case of a woman who sat on the travailing chair in the throes of labor, and died on Shabbat, one brings a knife, and tears open her abdomen, and removes the fetus, as it might still be alive, and it could be possible to save its life. The Gemara asks: But isn’t it obvious that this is permitted? After all, what is the person who cuts her abdomen doing?

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.

its head came out: With a women that is experiencing difficulty giving birth and is in [mortal] danger. And it is taught in the first section [of this teaching], "the midwife extends her hand and cuts it up and extracts [the pieces];" as the entire time that that it has not gone out into the air of the world, it is not [considered] a soul, and [so] it is possible to kill it and to save its mother. But when its head came out, we cannot touch it to kill it, as it is like a born [baby]; and we do not push off one soul for the sake of another. And if you will ask [from] the story of Sheva ben Bichri - [wherein it is written] (II Samuel 20:21), "behold, his head is sent to you" - they pushed off one life for the sake of another; there, it was because even if they had not delivered him, he would have been killed in the city when Yoav would have seized it, and they would have been killed with him. But if he would have [otherwise] been saved - even though they would have been killed - they would not have been allowed to deliver him [to Yoav] in order to save themselves. And also (another answer) is that it is because he was a rebel to the kingdom, and so is it explained in the Tosefta (of Terumah).

(6) Whether a man killed an adult or an infant of one day, male or female, he must be executed if he committed deliberate murder, or exiled if he killed unwittingly. And for a child that was born premature- If it was born in less than nine months, it is not viable until it lives thirty days. If it is killed within the thirty days, it is not considered murder.

(5) When a master composes a bill of release for his maid-servant who is pregnant, stating "You are free, but your child-to-be remains a slave," his words are binding. If, however, it states: "You remain a maid-servant, but your child-to-be is free," it is of no consequence. For this is as if he freed half of the maid-servant using a legal document.

(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.

...If the head comes out, you can't kill it

(6) Whoever sheds the blood of man, By man shall his blood be shed; For in His image Did God make man.

(4) A non-Jew who kills someone, even a fetus in its mother’s womb, is executed. Even if he kills someone who has an incurable, terminal illness, or tied someone up and placed him in front of a lion or he let him starve until he died is liable since he caused someone to die. Similarly, if he killed a Pursuer⁸⁸Someone who is chasing someone else for the purpose of killing him. when he could have saved his friend by merely injuring one of the Pursuer’s limbs, is also executed. This is not the case with a Jew.

(3) When an Israelite has relations with a daughter of a priest, we do not suspect that she became pregnant. Instead, she may immerse herself [in the mikveh] and partake [of terumah] in the evening. If she was married to an Israelite and her husband died, she may immerse herself and partake of terumah in the evening [and continue doing so] for 40 days. If her fetus is recognized [afterwards], retroactively, her [actions] are objectionable from the fortieth day onward. For, throughout the forty days, the embryo is not considered as a fetus, merely as water.