The Permissive Point of View
אמנם נדון השואל בא"א שזנתה שאלה הגונה היא. וקרוב בעיני להתירה...וגם בעובר כשר הי' צד להקל לצורך גדול. כל כמה דלא עקר. אפי' אינו משום פקוח נפש אמו. אלא להציל לה מרעתו. שגורם לה כאב גדול וצ"ע.
Rabbi Jacob Emden Responsa She’elat Ya”vetz 1:43 (1739-1759)
The questioner asks about an adulterous married woman (who is pregnant) is a good question. It appears to me to permit her (to abort)...And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, as long as the fetus has not begun to emerge; even if the mother’s life is not in jeopardy, but only so as to save her from an evil associated with it that would cause her great pain…
Rabbi Yehudah ibn Ayyash of Algeirs, ‘She’eilot U’tshuvot’ Beit Yehudah, part “Even haEzer,” Siman 14, 1740.
I was asked and searched my heart/intellect to examine and explore what I had heard about a small group of women who become pregnant and do not want to give birth again, and who do not want to remain pregnant any more [once they had already conceived]. And some of these women, if they become pregnant while nursing [another child] and they suspect the ayin hara [evil eye] or danger of the new birth to the living child, and they make a medication and drugs that are known to them to terminate a child, and he will become a nefel– a nonviable fetus....Here [in the case of the women of this teshuva] there is suspicion about the pregnancy [and is potential for harm is acknowledged, and women are therefore permitted to ingest this medication]. Behold– we have before us exactly what everyone acknowledges [is an acceptable situation where an abortion would be permitted], to illustrate the danger to the [living] child, and [the mother] is permitted to drink an abortive drug, so it seems, according to my understanding of the issue.
I was asked and searched my heart/intellect to examine and explore what I had heard about a small group of women who become pregnant and do not want to give birth again, and who do not want to remain pregnant any more [once they had already conceived]. And some of these women, if they become pregnant while nursing [another child] and they suspect the ayin hara [evil eye] or danger of the new birth to the living child, and they make a medication and drugs that are known to them to terminate a child, and he will become a nefel– a nonviable fetus....Here [in the case of the women of this teshuva] there is suspicion about the pregnancy [and is potential for harm is acknowledged, and women are therefore permitted to ingest this medication]. Behold– we have before us exactly what everyone acknowledges [is an acceptable situation where an abortion would be permitted], to illustrate the danger to the [living] child, and [the mother] is permitted to drink an abortive drug, so it seems, according to my understanding of the issue.
Rabbi Mordechai Winkler, Levushei Mordekhai, Hoshen Mishpat 39 (1913)
Mental-health risk has been definitely equated with physical-health risk. This woman, in danger of losing her mental health unless the pregnancy is interrupted, would therefore accordingly qualify.
Mental-health risk has been definitely equated with physical-health risk. This woman, in danger of losing her mental health unless the pregnancy is interrupted, would therefore accordingly qualify.
Rabbi Ben Zion Chai Uziel, Responsa Mishaptei Uziel 4:46 (1947-1964)
It is clear that abortion is not permitted without reason. That would be destructive and frustrative of the possibility of life. But for a reason, even if it is a slim reason, such as to prevent disgrace, then we have precedent and authority to permit it.
It is clear that abortion is not permitted without reason. That would be destructive and frustrative of the possibility of life. But for a reason, even if it is a slim reason, such as to prevent disgrace, then we have precedent and authority to permit it.
כשנשקפת סכנה לאשה בהמשכת ההריון יש להתיר הפלת העובר בשופי. גם כשמצב בריאותה של האשה רופף מאד ולשם רפואתה או השקטת מכאוביה הגדולים דרוש לבצע הפלת העובר, אע“פ שאין סכנה ממשית, גם כן יש מקום להתיר לעשות זאת, וכפי ראות עיני המורה המצב שלפניו.
Rabbi Eliezer Waldenberg, Tzitz Eliezer 9:51.3 (1967)
If there is a danger to the mother from continuing the pregnancy, one should permit abortion without hesitation. Also, if her health is poor and to cure her or to relieve her from great pain it is necessary to abort the fetus, even if she is not in actual danger, there is room to permit it, based on the halachic authority’s evaluation of the situation.
Rabbi Kass Abelson, Proceedings of the Committee on Jewish Law and Standards, pp. 3-10 (1980-5)
There is clear precedent in the tradition...to permit abortion of a fetus to save a mother’s life, to safeguard her health, or even for “a very thin reason,” such as to spare her physical pain or mental anguish.
There is clear precedent in the tradition...to permit abortion of a fetus to save a mother’s life, to safeguard her health, or even for “a very thin reason,” such as to spare her physical pain or mental anguish.
Rabbi Aharon Lichtenstein, “Abortion: A Halakhic Perspective,” Tradition 25:4 (1991)
Here it is clear that saving a life is not the only sanction for permitting an abortion. This is evident from the Talmudic passage that permits a nursing mother to cohabitate using a mokh (a barrier of cotton or wool) to prevent pregnancy… Since this prohibition is waived to facilitate normal family relations (which is why the emission in this context is not “wasteful”), it would follow that other ethical and humane factors may also be taken into account. It would seem to me that issues such as kevod ha-beriyot (dignity of persons), shalom bayit (domestic peace) and tza’ar (pain), which all carry significant halakhic weight in other contexts, should be considered in making these decisions.
Here it is clear that saving a life is not the only sanction for permitting an abortion. This is evident from the Talmudic passage that permits a nursing mother to cohabitate using a mokh (a barrier of cotton or wool) to prevent pregnancy… Since this prohibition is waived to facilitate normal family relations (which is why the emission in this context is not “wasteful”), it would follow that other ethical and humane factors may also be taken into account. It would seem to me that issues such as kevod ha-beriyot (dignity of persons), shalom bayit (domestic peace) and tza’ar (pain), which all carry significant halakhic weight in other contexts, should be considered in making these decisions.
Putting on the Brakes
The Torah teaches us that every moment of life is intrinsically valuable; life itself is never futile. Rabbi Shlomo Zalman Auerbach, a leading halachic authority of the past generation, points out that we have no "yardstick" by which to measure value of life. Even for a deaf, demented elderly man, incapable of doing any mitzvot, we must violate the Shabbat to save his life.(Auerbach, Rav Shlomo Zalman, "Responsum Regarding a Very Sick Patient," Halacha U'Refuah, vol. 3, p. 60
Abortion of a Tay-Sachs Fetus
Aryeh Gurvich
The genetic syndrome Tay-Sachs, common among Ashkenazi Jews, renders ineffective an enzyme responsible for the breakdown of a certain fat in the brain and spinal chord. By the first few months of the child’s life, this fat accumulates to toxic levels, and symptoms including deteriorating motor function, seizures, and paralysis become apparent. Children with Tay-Sachs generally do not live past the age of four. If prenatal testing finds evidence of Tay-Sachs, the most desirable option seems to be to abort the pregnancy.
When the question of aborting a fetus determined to express Tay-Sachs was first raised in 1975, the test available to establish that diagnosis could only be done after the third month of pregnancy. This would mean missing a crucial deadline established by Halacha – after three months, abortion for reasons other than to save the mother (if delivering the fetus would place her life at risk) is prohibited. So does this unquestionably preclude a pregnancy with a Tay-Sachs fetus from being aborted?
Rabbi Eliezer Waldenberg, in his responsa Tzitz Eliezer,1 relied on some Rishonim who held that it is prohibited for a Jew to kill a fetus only on a D’Rabanan, rabbinic, level, as opposed to a biblical prohibition. In Israel, where most of the physicians are Jewish, this would be less of an issue. Another source for which he found support for permitting this case is a responsa of the Maharit,2 in which he ruled that it would even be permitted for a Jewish mother to have an abortion for reasons of health, even not in the face of life-threatening danger.
Based on these sources and others, Rav Waldenberg held that since there was no pain greater than the inevitable loss of the child, as well as the years of suffering for both the parents and the baby before that, there was room to apply the heter of the Maharit to abort when delivering the fetus would adversely affect the health of the mother.
Rabbi Moshe Feinstein wrote a lengthy essay in which he sharply challenged the ruling of Rav Waldenberg.3 He cites two major Rishonim that were of the opinion that abortion is, in fact, murder:
[Rav Moshe's Position]
One of the sources for the prohibition of abortion is a Tosfos in Sanhedrin4 that says that while a Jew is not administered capital punishment for killing a fetus, he is still prohibited against doing so. Rav Moshe understands this prohibition to be categorized as retzicha, or murder. There is also a Tosfos in Nida that has a discussion in which he says twice that killing the fetus before birth is totally permitted. But as was just mentioned, Tosfos in Sanhendrin wrote that killing a fetus is murder. So how could Tosfos suggest in Nida that killing a fetus is permitted?
So Rav Moshe posits that there must have been a copying mistake in the Tosfos. Rather, instead of “mutar”, or permitted, the text in Tosfos should have said “patur”, or exempt from punishment, yet still prohibited.
Rav Moshe then introduces the Rambam’s approach to abortion. For the Rambam, abortion is almost always prohibited – except when delivering the baby would endanger the mother’s life. The Rambam subsumes this exception within the laws of rodef,6 or one who pursues a potential victim with the intent to murder him. There is a mitzvah to prevent the pursuer from committing the murder, even if that would require killing him. In the middle of the discussion, the Rambam says that this is the reason why Chazal said that if a woman in labor runs the risk of death, the fetus should be aborted. Since the fetus is threatening her life, he has the status of rodef and must be killed so that she may live.
Rav Moshe writes that it is very clear from the Rambam that the fetus is aborted precisely because he is a rodef – and not because there is no prohibition of murder in killing the fetus. According to the Rambam, there is indeed a prohibition of murder in abortion, but the only reason we abort the fetus when it endangers the mother is because the mitzvah to save the life of the victim being pursued – in this case, the mother – supersedes this prohibition.
With regards to the Tzitz Eliezer’s source in the Maharit, Rav Moshe thought that particular responsa was falsified in his name, and finds strong proof in the words of the Maharit himself just two simanim previously, where he ruled on this exact issue to the contrary.
Rav Moshe ends by saying that since the fetus with Tay-Sachs does not pose a threat to the mother, he may not be aborted past three months because he cannot be defined as a Halachic rodef. This is the case even though the child will certainly die within a few years, and his death will cause much suffering to the parents. Furthermore, he cautions Torah-observant doctors against screening the fetus for the syndrome, since no good will come out of it, because they will be unable to abort the fetus and will cause grief to the parents for longer than necessary.
[Rav Waldenberg's position]
Rav Waldenberg later wrote a point-by-point rebuttal7 to Rav Moshe. He points out that the only incontrovertible conclusion from the Tosfos in Sanhedrin is that Jews are prohibited to kill a fetus as much as non-Jews are, and that there is no consensus among scholars as to whether Tosfos meant that the prohibition is biblical or rabbinic. With regards to the Tosfos in Nida, Rav Waldenberg was taken aback at how Rav Moshe “took the easy way out” and dismissed the proof there as a printing typo in the face of centuries of rabbinic literature that struggled to explain the text as is, some of which Rav Waldenberg references to. Rav Waldenberg also challenged Rav Moshe’s assessment of the Rambam, citing the Sema8, who maintained that the Rambam did not hold that killing the fetus is murder, as well as the Radvaz9 (who disagreed with the Rambam entirely on whether the baby is a rodef). Concerning the Maharit, Rav Waldenberg brought his own evidence to reaffirm the validity of that responsa, all the while criticizing Rav Moshe’s seemingly simplistic approach.
In the world of Halacha, generally speaking, what Rav Moshe had to say always carried tremendous weight, and many of his rulings have shaped our Halachic practice today. It would seem that the issue of abortion of Tay-Sachs fetuses would be no different. However, considering both Rav Waldenberg’s particular expertise in medical ethics, as well as his sound arguments, the discussion is far from closed, and experts of stature should be consulted on this still-controversial issue.
שו”ת ציץ אליעזר חלק יג סימן קב .1
שו”ת מהרי”ט חלק א סימן צט .2
תס”ט-ספר הזכרון למרן הגר”י אברמסקי זצ”ל, עמ’ תס”א .3
סנהדרין נט. תד”ה ליכא מידעם דלישראל שרי .4
נדה מד. תד”ה איהו .5
רוצח פרק א הל’ ט .6
שו”ת ציץ אליעזר חלק יד סימן ק .7
סמ”ע חו”מ ס’ תכה סק”ח .8
שו”ת רדב”ז חלק ב סימן תרצה .9
The genetic syndrome Tay-Sachs, common among Ashkenazi Jews, renders ineffective an enzyme responsible for the breakdown of a certain fat in the brain and spinal chord. By the first few months of the child’s life, this fat accumulates to toxic levels, and symptoms including deteriorating motor function, seizures, and paralysis become apparent. Children with Tay-Sachs generally do not live past the age of four. If prenatal testing finds evidence of Tay-Sachs, the most desirable option seems to be to abort the pregnancy.
When the question of aborting a fetus determined to express Tay-Sachs was first raised in 1975, the test available to establish that diagnosis could only be done after the third month of pregnancy. This would mean missing a crucial deadline established by Halacha – after three months, abortion for reasons other than to save the mother (if delivering the fetus would place her life at risk) is prohibited. So does this unquestionably preclude a pregnancy with a Tay-Sachs fetus from being aborted?
Rabbi Eliezer Waldenberg, in his responsa Tzitz Eliezer,1 relied on some Rishonim who held that it is prohibited for a Jew to kill a fetus only on a D’Rabanan, rabbinic, level, as opposed to a biblical prohibition. In Israel, where most of the physicians are Jewish, this would be less of an issue. Another source for which he found support for permitting this case is a responsa of the Maharit,2 in which he ruled that it would even be permitted for a Jewish mother to have an abortion for reasons of health, even not in the face of life-threatening danger.
Based on these sources and others, Rav Waldenberg held that since there was no pain greater than the inevitable loss of the child, as well as the years of suffering for both the parents and the baby before that, there was room to apply the heter of the Maharit to abort when delivering the fetus would adversely affect the health of the mother.
Rabbi Moshe Feinstein wrote a lengthy essay in which he sharply challenged the ruling of Rav Waldenberg.3 He cites two major Rishonim that were of the opinion that abortion is, in fact, murder:
[Rav Moshe's Position]
One of the sources for the prohibition of abortion is a Tosfos in Sanhedrin4 that says that while a Jew is not administered capital punishment for killing a fetus, he is still prohibited against doing so. Rav Moshe understands this prohibition to be categorized as retzicha, or murder. There is also a Tosfos in Nida that has a discussion in which he says twice that killing the fetus before birth is totally permitted. But as was just mentioned, Tosfos in Sanhendrin wrote that killing a fetus is murder. So how could Tosfos suggest in Nida that killing a fetus is permitted?
So Rav Moshe posits that there must have been a copying mistake in the Tosfos. Rather, instead of “mutar”, or permitted, the text in Tosfos should have said “patur”, or exempt from punishment, yet still prohibited.
Rav Moshe then introduces the Rambam’s approach to abortion. For the Rambam, abortion is almost always prohibited – except when delivering the baby would endanger the mother’s life. The Rambam subsumes this exception within the laws of rodef,6 or one who pursues a potential victim with the intent to murder him. There is a mitzvah to prevent the pursuer from committing the murder, even if that would require killing him. In the middle of the discussion, the Rambam says that this is the reason why Chazal said that if a woman in labor runs the risk of death, the fetus should be aborted. Since the fetus is threatening her life, he has the status of rodef and must be killed so that she may live.
Rav Moshe writes that it is very clear from the Rambam that the fetus is aborted precisely because he is a rodef – and not because there is no prohibition of murder in killing the fetus. According to the Rambam, there is indeed a prohibition of murder in abortion, but the only reason we abort the fetus when it endangers the mother is because the mitzvah to save the life of the victim being pursued – in this case, the mother – supersedes this prohibition.
With regards to the Tzitz Eliezer’s source in the Maharit, Rav Moshe thought that particular responsa was falsified in his name, and finds strong proof in the words of the Maharit himself just two simanim previously, where he ruled on this exact issue to the contrary.
Rav Moshe ends by saying that since the fetus with Tay-Sachs does not pose a threat to the mother, he may not be aborted past three months because he cannot be defined as a Halachic rodef. This is the case even though the child will certainly die within a few years, and his death will cause much suffering to the parents. Furthermore, he cautions Torah-observant doctors against screening the fetus for the syndrome, since no good will come out of it, because they will be unable to abort the fetus and will cause grief to the parents for longer than necessary.
[Rav Waldenberg's position]
Rav Waldenberg later wrote a point-by-point rebuttal7 to Rav Moshe. He points out that the only incontrovertible conclusion from the Tosfos in Sanhedrin is that Jews are prohibited to kill a fetus as much as non-Jews are, and that there is no consensus among scholars as to whether Tosfos meant that the prohibition is biblical or rabbinic. With regards to the Tosfos in Nida, Rav Waldenberg was taken aback at how Rav Moshe “took the easy way out” and dismissed the proof there as a printing typo in the face of centuries of rabbinic literature that struggled to explain the text as is, some of which Rav Waldenberg references to. Rav Waldenberg also challenged Rav Moshe’s assessment of the Rambam, citing the Sema8, who maintained that the Rambam did not hold that killing the fetus is murder, as well as the Radvaz9 (who disagreed with the Rambam entirely on whether the baby is a rodef). Concerning the Maharit, Rav Waldenberg brought his own evidence to reaffirm the validity of that responsa, all the while criticizing Rav Moshe’s seemingly simplistic approach.
In the world of Halacha, generally speaking, what Rav Moshe had to say always carried tremendous weight, and many of his rulings have shaped our Halachic practice today. It would seem that the issue of abortion of Tay-Sachs fetuses would be no different. However, considering both Rav Waldenberg’s particular expertise in medical ethics, as well as his sound arguments, the discussion is far from closed, and experts of stature should be consulted on this still-controversial issue.
שו”ת ציץ אליעזר חלק יג סימן קב .1
שו”ת מהרי”ט חלק א סימן צט .2
תס”ט-ספר הזכרון למרן הגר”י אברמסקי זצ”ל, עמ’ תס”א .3
סנהדרין נט. תד”ה ליכא מידעם דלישראל שרי .4
נדה מד. תד”ה איהו .5
רוצח פרק א הל’ ט .6
שו”ת ציץ אליעזר חלק יד סימן ק .7
סמ”ע חו”מ ס’ תכה סק”ח .8
שו”ת רדב”ז חלק ב סימן תרצה .9
Backing Up a Little Bit - Is Abortion Murder?
And the "Title to Life" Argument of Rabbi Dr. Immanuel Jacobovitz
And the "Title to Life" Argument of Rabbi Dr. Immanuel Jacobovitz
Rabbi Dr. Immanuel Jakobovits, Jewish Views on Abortion 1965
Out of the three million pregnancies that would probably be terminated every year, no more than 30,00042 would have resulted in deformed births, while the remaining 99 per cent would have been healthy children, had their mothers been allowed or forced to carry them to term. Subtract from this latter figure the number of mothers whose hazards would be minimized if they did not feel compelled to resort to clandestine operations, and one would still have only a relatively minute proportion of abortions that would be fully justified for the reasons advanced by the advocates of liberalization. Well over 95 per cent, if not 98 per cent, of all abortions would eliminate normal children of healthy mothers. In fact, as for the mothers, the increased recourse to abortion (even if performed by qualified physicians), far from reducing hazards, would increase them, since such operations leave at least five per cent of the women sterile,43 not to mention the rise in the resultant mortality rate. One can certainly ask if the extremely limited reduction in the number of malformed children and maternal mortality risks really justify the annual wholesale destruction of three million germinating, healthy lives, most of them potentially happy and useful citizens, especially in a country as under-populated as America (compared to Europe, for instance, which commands far fewer natural resources).
E. The Individual's Claim to Life These numerical facts alone make nonsense of the argument for more and easier abortions. But moral norms cannot be determined by numbers. In the Jewish view, "he who saves one life is as if he saved an entire world";44 one human life is as precious as a million lives, for each is infinite in value. Hence, even if the ratio were reversed, and there was only a one per cent chance that the child to be aborted would be normal - in fact the chances invariably exceed 50 per cent in any given case4 5- - the consideration for that one child in favor of life would outweigh any counter-indication for the other 99 per cent. But, in truth, such a counter-indication, too, is founded on fallacious premises. Assuming one were 100 per cent certain (perhaps by radiological evidence) that a child would be born deformed, could this affect its claim to life? Any line to be drawn between normal and abnormal beings determining their right to live would have to be altogether arbitrary. Would grave defect in one limb or in two limbs, or an anticipated sub-normal intelligence quotient of seventy-five or fifty make the capital difference between one who is entitled to live and one who is not? And if the absence of two limbs deprives a person of his claim to life, what about one who loses two limbs in an accident? By what moral reasoning can such a defect be a lesser cause for denying the right to live than a similar congenital abnormality? Surely life-and-death verdicts cannot be based on such tenuous distinctions.
Out of the three million pregnancies that would probably be terminated every year, no more than 30,00042 would have resulted in deformed births, while the remaining 99 per cent would have been healthy children, had their mothers been allowed or forced to carry them to term. Subtract from this latter figure the number of mothers whose hazards would be minimized if they did not feel compelled to resort to clandestine operations, and one would still have only a relatively minute proportion of abortions that would be fully justified for the reasons advanced by the advocates of liberalization. Well over 95 per cent, if not 98 per cent, of all abortions would eliminate normal children of healthy mothers. In fact, as for the mothers, the increased recourse to abortion (even if performed by qualified physicians), far from reducing hazards, would increase them, since such operations leave at least five per cent of the women sterile,43 not to mention the rise in the resultant mortality rate. One can certainly ask if the extremely limited reduction in the number of malformed children and maternal mortality risks really justify the annual wholesale destruction of three million germinating, healthy lives, most of them potentially happy and useful citizens, especially in a country as under-populated as America (compared to Europe, for instance, which commands far fewer natural resources).
E. The Individual's Claim to Life These numerical facts alone make nonsense of the argument for more and easier abortions. But moral norms cannot be determined by numbers. In the Jewish view, "he who saves one life is as if he saved an entire world";44 one human life is as precious as a million lives, for each is infinite in value. Hence, even if the ratio were reversed, and there was only a one per cent chance that the child to be aborted would be normal - in fact the chances invariably exceed 50 per cent in any given case4 5- - the consideration for that one child in favor of life would outweigh any counter-indication for the other 99 per cent. But, in truth, such a counter-indication, too, is founded on fallacious premises. Assuming one were 100 per cent certain (perhaps by radiological evidence) that a child would be born deformed, could this affect its claim to life? Any line to be drawn between normal and abnormal beings determining their right to live would have to be altogether arbitrary. Would grave defect in one limb or in two limbs, or an anticipated sub-normal intelligence quotient of seventy-five or fifty make the capital difference between one who is entitled to live and one who is not? And if the absence of two limbs deprives a person of his claim to life, what about one who loses two limbs in an accident? By what moral reasoning can such a defect be a lesser cause for denying the right to live than a similar congenital abnormality? Surely life-and-death verdicts cannot be based on such tenuous distinctions.
........G. Illegitimate Children Similar considerations apply to children conceived by rape. The circumstances of such a conception cannot have any bearing on the child's title to life, and in the absence of any well-grounded challenge to this title there cannot be any moral justification for an abortion. Once again, the burden rests with society to relieve an innocent mother (if she so desires) from the consequences of an unprovoked assault upon her virtue if the assailant cannot be found and forced to discharge this responsibility to his child. In the case of pregnancies resulting from incestuous, adulterous, or otherwise illegitimate relations (which the mother did not resist), there are additional considerations militating against any sanction of abortion. Jewish law not only puts an extreme penalty on incest and adultery, but also imposes fearful disabilities on the products of such unions. It brands these relations as capital crimes,4 " and it debars children born under these conditions from marriage with anyone except their like.47 (1) The Deterrent Effect.-Why exact such a price from innocent children for the sins of their parents? The answer is simple: to serve as a powerful deterrent to such hideous crimes. The wouldbe partners to any such illicit sexual relations are to be taught that their momentary pleasure would be fraught with the most disastrous consequences for any children they might conceive. Through this knowledge they are to recoil from the very thought of incest or adultery with the same horror as they would from contemplating murder as a means to enjoyment or personal benefit. Murder is comparatively rare in civilized society for the very reason that the dreadful consequences have evoked this horror of the crime in the public conscience. Incest and adultery, in the Jewish view, are no lesser crimes,48 and they require the same horror as an effective deterrent.
...Public Standards v. Individual Aberration In line with this reasoning, Jewish law never condones the relaxation of public moral standards for the sake of saving recalcitrant individuals from even mortal offenses. A celebrated Jewish sage and philosopher of the fifteenth century, in connection with a question submitted to his judgment, averred that it was always wrong for a community to acquiesce in the slightest evil, however much it was hoped thereby to prevent far worse excesses by individuals. The problem he faced arose out of a suggestion that brothels for single people be tolerated as long as such publicly controlled institutions would reduce or eliminate the capital crime of marital faithlessness then rampant. His unequivocal answer was: It is surely far better that individuals should commit the worst offenses and expose themselves to the gravest penalties than publicly to promote the slightest compromise with the moral law.
CONCLUSION This review may be fittingly concluded with a reference to the very first Jewish statement on deliberate abortion. Commenting on the Septuagint version of the above-quoted Exodus passage," the Alexandrian-Jewish philosopher, Philo, at the beginning of the Current Era declared that the attacker must die if the fruit he caused to be lost was already "shaped and all the limbs had their proper qualities, for that which answers to this description is a human being... like a statue lying in a studio requiring nothing more than to be conveyed outside."5" The legal conclusion of this statement, reflecting Hellenistic rather than Jewish influence, may vary from the letter of Jewish law; but its reasoning ceitainly echoes the spirit of Jewish law. The analogy may be more meaningful than Philo could have intended or foreseen. A classic statue by a supreme master is no less priceless for being made defective, even with an arm or a leg missing. The destruction of such a treasure can be warrante
The Committee on Jewish Law and Standards - Rabbinical Assembly
Abortion: The Jewish View, by Rabbi David Feldman, Proceedings of the Committee on Jewish Law and Standards, 1980-85
In the words of Rashi, only when the fetus "comes into the world" is it a "person." The basis, then, for denying capital crime status to feticide in Jewish law, even for those rabbis who may have wanted to rule otherwise....
Murder (of the innocent) is forbidden even to save life. But with abortion removed from the category of murder, then therapeutic abortion becomes permissible and, in fact, mandated.
...In analyzing such provisions, the Talmud suggested that the reason could well be that the fetus is in the category of an "aggressor"; its life is forfeit under the law which permits killing a "pursuer" in order to save the intended victim. The Talmud, however, dismisses this reasoning, since the fetus is an innocent being, and since one cannot know "who is pursuing whom"; the pursuit must therefore be deemed an "act of God," and this factor does not apply. In the Mishneh Torah, Maimonides also used the term "aggressor," but only figuratively; in truth he and his commentators concluded that the argument does not apply. It is either inapplicable or at best superfluous, because the fetus is not yet a person and murder is not involved...
Some commentators of the Mishneh Torah suggest that although abortion is not technically murder, it is still so grave an offense that Maimonides resorted to the aggressor argument in order to buttress the permission for abortion; its justification is that the fetus is at least like an aggressor. The subsequent rabbinic tradition seems to align itself either to the right, in the direction of Maimonides, or to the left, in the direction of Rashi.
The first approach can be identified especially with the late Chief Rabbi of Israel, Issar Unterman, who sees any abortion as "akin to homicide" and therefore allowable only in cases of corresponding gravity, such as saving the life of the mother. This approach then builds down from that strict position to embrace a broader interpretation of life-saving situations, which include a threat to her health, for example, as well as a threat to her life.
The second approach, associated with another former Chief Rabbi of Israel, Ben Zion Uziel, and others, assumes that no real prohibition against abortion exists and builds up from that lenient position to safeguard against indiscriminate abortion. This includes the example of Rabbi Yair Bachrach in the 17th century, whose classic responsum saw no legal bar to abortion, but would not permit it in the case before him. The case was one of a pregnancy conceived in adultery; the woman, in "deep remorse," wanted to destroy the fruit of her sin.
The author concludes by refusing to sanction the abortion, not on legal grounds but on sociological ones, as a safeguard against further immorality. Other authorities disagreed on this point, affirming the legal sanction of abortion for the woman's welfare, whether life or health, or even avoidance of "great pain."
The criterion in both approaches becomes maternal rather than fetal. The principle in Jewish law is tza'ar gufah kadim, that her welfare is primary. Rabbinic rulings on abortion are thus amenable to the following generalization: If a possibility or probability exists that a child may be born defective, and the mother seeks abortion on the grounds of pity for a child whose life would be less than normal, the rabbi would decline permission. Since we do not know for sure that it will be born defective, and since we do not know how bad such a defective life will be for the child, and since no permission exists in Jewish law to kill born defectives, permission on those grounds would be denied. If, however, an abortion for the same potentially deformed child were sought on the grounds that the possibility is causing severe anguish to the mother, permission would be granted.
...Implicit in the Mishnah above is the teaching that the rights of the fetus are secondary to the rights of the mother all the way up until the moment of birth. This principle is obscured by the current phrase, "right to life." In the context of abortion questions, the issue is not the right to life, which is very clear in Jewish law, but the right to be born, which is not as clear. The right to be born is relative; the right to life for existing persons is absolute. "Life" may begin before birth, but it is not the life of a human person; animal life, plant life or even pre-human life are not the same as human life. Rabbinic law has determined that human life begins with birth. This is neither a medical nor a court judgment, but a metaphysical one. In the Jewish system, human life in this sense begins with birth. Of course, potential life already partakes of the potential sacredness of actual life, since the latter can have its inception only through the former.
...Accordingly, abortion for "population control" is repugnant to the Jewish system. Abortion for economic reasons is also not admissible. Taking precaution by abortion or birth control against physical threat remains a mitzvah, but never to forestall financial difficulty. Material considerations are improper in this connection. In the Jewish community, today, with a conscious or unconscious drive to replenish ranks decimated by the Holocaust, contemporary rabbis invoke not the more lenient, but rather the more stringent responsa of the earlier authorities. The more permissive decisions, they point out, were in any case rendered against the background of far greater instinctive hesitation to resort to abortion. Against today's background of more casual abortion, rabbis are moving closer to the position associated with Maimonides and Unterman, allowing abortion only for the gravest of reasons.
In the words of Rashi, only when the fetus "comes into the world" is it a "person." The basis, then, for denying capital crime status to feticide in Jewish law, even for those rabbis who may have wanted to rule otherwise....
Murder (of the innocent) is forbidden even to save life. But with abortion removed from the category of murder, then therapeutic abortion becomes permissible and, in fact, mandated.
...In analyzing such provisions, the Talmud suggested that the reason could well be that the fetus is in the category of an "aggressor"; its life is forfeit under the law which permits killing a "pursuer" in order to save the intended victim. The Talmud, however, dismisses this reasoning, since the fetus is an innocent being, and since one cannot know "who is pursuing whom"; the pursuit must therefore be deemed an "act of God," and this factor does not apply. In the Mishneh Torah, Maimonides also used the term "aggressor," but only figuratively; in truth he and his commentators concluded that the argument does not apply. It is either inapplicable or at best superfluous, because the fetus is not yet a person and murder is not involved...
Some commentators of the Mishneh Torah suggest that although abortion is not technically murder, it is still so grave an offense that Maimonides resorted to the aggressor argument in order to buttress the permission for abortion; its justification is that the fetus is at least like an aggressor. The subsequent rabbinic tradition seems to align itself either to the right, in the direction of Maimonides, or to the left, in the direction of Rashi.
The first approach can be identified especially with the late Chief Rabbi of Israel, Issar Unterman, who sees any abortion as "akin to homicide" and therefore allowable only in cases of corresponding gravity, such as saving the life of the mother. This approach then builds down from that strict position to embrace a broader interpretation of life-saving situations, which include a threat to her health, for example, as well as a threat to her life.
The second approach, associated with another former Chief Rabbi of Israel, Ben Zion Uziel, and others, assumes that no real prohibition against abortion exists and builds up from that lenient position to safeguard against indiscriminate abortion. This includes the example of Rabbi Yair Bachrach in the 17th century, whose classic responsum saw no legal bar to abortion, but would not permit it in the case before him. The case was one of a pregnancy conceived in adultery; the woman, in "deep remorse," wanted to destroy the fruit of her sin.
The author concludes by refusing to sanction the abortion, not on legal grounds but on sociological ones, as a safeguard against further immorality. Other authorities disagreed on this point, affirming the legal sanction of abortion for the woman's welfare, whether life or health, or even avoidance of "great pain."
The criterion in both approaches becomes maternal rather than fetal. The principle in Jewish law is tza'ar gufah kadim, that her welfare is primary. Rabbinic rulings on abortion are thus amenable to the following generalization: If a possibility or probability exists that a child may be born defective, and the mother seeks abortion on the grounds of pity for a child whose life would be less than normal, the rabbi would decline permission. Since we do not know for sure that it will be born defective, and since we do not know how bad such a defective life will be for the child, and since no permission exists in Jewish law to kill born defectives, permission on those grounds would be denied. If, however, an abortion for the same potentially deformed child were sought on the grounds that the possibility is causing severe anguish to the mother, permission would be granted.
...Implicit in the Mishnah above is the teaching that the rights of the fetus are secondary to the rights of the mother all the way up until the moment of birth. This principle is obscured by the current phrase, "right to life." In the context of abortion questions, the issue is not the right to life, which is very clear in Jewish law, but the right to be born, which is not as clear. The right to be born is relative; the right to life for existing persons is absolute. "Life" may begin before birth, but it is not the life of a human person; animal life, plant life or even pre-human life are not the same as human life. Rabbinic law has determined that human life begins with birth. This is neither a medical nor a court judgment, but a metaphysical one. In the Jewish system, human life in this sense begins with birth. Of course, potential life already partakes of the potential sacredness of actual life, since the latter can have its inception only through the former.
...Accordingly, abortion for "population control" is repugnant to the Jewish system. Abortion for economic reasons is also not admissible. Taking precaution by abortion or birth control against physical threat remains a mitzvah, but never to forestall financial difficulty. Material considerations are improper in this connection. In the Jewish community, today, with a conscious or unconscious drive to replenish ranks decimated by the Holocaust, contemporary rabbis invoke not the more lenient, but rather the more stringent responsa of the earlier authorities. The more permissive decisions, they point out, were in any case rendered against the background of far greater instinctive hesitation to resort to abortion. Against today's background of more casual abortion, rabbis are moving closer to the position associated with Maimonides and Unterman, allowing abortion only for the gravest of reasons.
Permitted or Forbidden? Factors and Findings
ברור ופשוט הדבר בהלכה דישראל אינו נהרג על העוברין, ומלבד דעה יחידית סוברים הפוסקים שאיסור מיהא ישנו, אבל דעת הרבה מהפוסקים שהאיסור אינו אלא מדרבנן, או הוא רק משום גדר בנינו של עולם, אבל מחמת איבוד נפשות אין נדנוד כלל, ומשום כך מתיר בשו"ת מהרי"ט ט:צ"ז–צ"ט לסדר בישראלית הפלת ולד בכל היכא שהדבר נחוץ משום רפואת אמו, אפילו באין סיבה של פקו"נ לאם... ובכזאת, ויותר מזאת, צידד להתיר בהדיא בשו"ת שאילת יעב"ץ א:מג, וכותב בלשון: "וגם בעובר כשר יש צד להקל לצורך גדול כל כמה דלא עקר אפילו אינו משום פקוח נפש אמו, אלא להציל לה מרעתו שגורם לה כאב גדול." הרי בהדיא שדבר הצעת ההיתר בזה של היעב"ץ הוא אפילו כשליכא בכאן שאלת פקו"נ של האם, והמדובר רק כדי להצילה מכאב גדול שיש לה בגללו, ושבכלל יש להקל בזה לצורך גדול. וא"כ הגע בעצמך האם יש צורך, צער וכאב, יותר גדול מזה של נידוננו, אשר יגרם לאם בהולד לה יצור כזה, שכולו אומר יסורים ומכאובים ומיתתו בטוח במשך מספר שנים, ועיני ההורים רואות וכלות באין לאל ידם להושיע? )וברור שלא משנה ולא מפחית כלום באם הילוד הזה ילקח למוסד מיוחד ולא יתנו גישה להורים עד מותו (. ומתוסף לזה פיתולי היסורים והמכאובים של היילוד בעצמו... ויסורים וכאבים נפשיים המה במדה מרובה הרבה יותר גדולים ויותר מכאיבים מיסורים גופיים...
Rabbi Eliezer Waldenberg, Tzitz Eliezer 13:102 (1978)
It is clear and obvious as law that a Jew is not killed for a fetus. Aside from one view, the authorities rule that there is a prohibition, but many authorities believe that this prohibition is rabbinic, or it is under “building the world.” But there is no concern for destroying a life, and therefore Maharit 1:97-99 permits arrangement for a Jewish woman to abort a fetus where it is needed for the mother’s health, even without it being a matter of saving the mother’s life… And in such a case, and beyond this, Rabbi Yaakov Emden permitted, writing, “And even with a legitimate fetus, there is room to be lenient for great need, so long as it has not been uprooted [for birth], even without a need to save the mother’s life, but only to save her from her evil, which causes her great pain.” We see clearly that this permission of Rabbi Yaakov Emden is even when it is not a matter of saving the mother’s life, and it is only to save her from great pain because of the child, and that in general there is room to be lenient for great need. If so, ask yourself: Is there any need, pain or ache greater than in our case, which will cause the mother in birthing such a creation, whose whole existence is suffering and pain, and whose death is certain in a matter of years, and whose parents watch and deteriorate without any power to save? (And certainly, it would not change or reduce anything if the child would be taken to a special institution without access for the parents until his death). And added to this are the suffering and pain of the child himself… And suffering and emotional pain in great measure are greater and more painful than physical pain…