More Reflections on Abortion

Abortion, as such, is not discussed in the Tanakh. Explanations  as to why it is not legislated or commented are at best speculative. The biblical world was much more concerned with the survival of its members, rather than with the willful termination of its unborn. Archaeological evidence suggests that in ancient Israel the infant mortality rate was about 50%.

Discussions concerning abortion are ancient indeed. The Torah imposes a fine on the assailant for causing abortion of a woman’s fetus in the course of a quarrel, and the penalty of death if the woman’s dies as a result of the assailant’s attack. “When two people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe” (Exod. 21:22-23).

Ancient Discussions

If the Code of Hammurabi is of any indication, the Torah had in mind only financial damages but did not advocate the death penalty for the death of the fetus—regardless how premature or maturely it was. In Section 209: Hammurabi writes, “If a man strike a free woman and cause her fruit to depart, he shall pay ten shekels of silver for her fruit.”

Perceptions regarding the status of the embryo changed centuries later during the days of Greek culture. A new interpretation was introduced that radically transformed our understanding of the biblical text. According to the ancient Greek translation of the Scriptures, the Septuagint, the Torah decreed that under certain circumstances, the death of the fetus could be imposed for causing an abortion:

ἐὰν δὲ ἐξεικονισμένον ἦν δώσει ψυχὴν ἀντὶ ψυχῆς

[And if two men strive and smite a woman with child; and her child be born imperfectly formed, he shall be forced to pay a penalty: as the woman’s husband may lay upon him, he shall pay with a valuation.] But if it be perfectly formed, he shall give life for life . . . (Exod. 21:22)

Philo of Alexandria comments on this passage of the Septuagint, “But if anyone has a contest with a woman who is pregnant, and strike her a blow on her belly, and she miscarry, if the child which was conceived within her is still unfashioned and unformed, he shall be punished by a fine, both for the assault which he committed and also because he has prevented nature, who was fashioning and preparing that most excellent of all creatures, a human being, from bringing him into existence. But if the child which was conceived had assumed a distinct shape in all its parts, having received all its proper connective and distinctive qualities, he shall die; for such a creature as that is a man, whom he has slain while still in the workshop of nature, who had not thought it as yet a proper time to produce him to the light, but had kept him like a statue lying in a sculptor’s workshop, requiring nothing more than to be released and sent out into the world.[1]

Philo juxtaposes abortion with the ancient practice of exposure. He writes: “On account of this commandment he also adds another proposition of greater importance, in which the exposure of infants is forbidden, which has become a very ordinary piece of wickedness among other nations by reason of their natural inhumanity . . .”

Josephus also regards abortion as morally akin to murder.[2] Nevertheless, in practice, he followed rabbinical tradition, “He that kicks a woman with a child, so that the woman miscarry, let him pay a fine in money, as the judges shall  determine, as having diminishing the multitude by the destruction of what was in her womb.”[3]

Josephus and Philo may have been of the opinion that the assailant had to pay two fines, one to the husband, and the second fine to charity for depriving the human race of one less person. It is also possible the Hellenistic understanding did run contrary to what later became Talmudic Halacha. Nevertheless, it does reflect the disdain Jews have had throughout history concerning abortion—at least as a method of birth-control. Given the high degree of infant-mortality, this reaction was quite understandable.

Unlike the Septuagint, Talmudic scholars maintained that the word אָסוֹן (´äsôn) “harm” refers to the woman and not to the fetus, since the scriptural injunction, “He who fatally strikes a man shall be put to death” (Exo. 21:12), did not apply to the killing of a fetus.[4] Ancient rabbis did not consider abortion a sin unless the fetus was viable בן קיימא  (ben keyama)—still and all, if the infant was so much as only  one day old , his killer is guilty of murder (Niddah. 5:3).[5]

According to the view of R. Ishmael, only a Gentile, to whom some of the basic transgressions applied with greater stringency, incurred the death penalty for causing the loss of the fetus (Sanhedrin 57b). Though abortion was frowned upon in the ancient world, it did not constitute murder.[6] In one well known Responsa of R. Yosef Trani (14th century), the author argued against a Jew assisting in an abortion, because it “places a stumbling block before the blind (Lev. 19:14).” This Halachic attitude did not apply to therapeutic abortion.

All this doesn’t necessarily mean that the rabbis had a permissive attitude concerning abortion. Clearly, it wasn’t. Thus we find in one medieval Midrashic work that Israel is praised because in spite of Pharaoh’s genocidal decree, in Egypt, “Every boy that is born you shall throw into the Nile,  (Exod. 1:22), “Not one Israelite woman so much as harmed her foetus, much less after its birth. By virtue of their reverence for life, Israel merited the exodus” (Zohar II 3b).

Abortion is permitted if the fetus endangers the mother’s life. The Mishnah reads: “When a woman travails to give birth [and it is feared she may die], one may sever the fetus from her womb and extract it, member by member, for her life takes precedence over his”[7 This is the case only as long as the foetus has not emerged into the world, when it is not a life at all and “it may be killed and the mother saved.”[8] Once the birthing process has begun,  if the greater part of the fetus has emerged into the world-either its head only, or its breach—it may not be touched, even if it endangers the mother’s life  אין דוחין נפש מפני נפש (ein dohin nefesh mi-penei nefesh) “one may not discard one life to save another.”

In another passage of the Talmud, a newborn child is not considered to be viable, until it has lived for 30 days![9] How do we reconcile this passage with the above?

Back to the Future: Contemporary Perspectives

Rav Ben Tsion Uziel, the late Chief Sephardic Rabbi, observes in his Responsa, “When a child dies within 30 days, it is considered as if it was a stillborn and is not mourned for like a person who has died. It becomes evident only in retrospect, that it was stillborn [nofale] and that the period of its life was only a continuation of the mother’s vitality. Since there was no way to ascertain whether the foetus was indeed stillborn or not, it is not a crime one can be executed for because of doubt. Nevertheless, it is certainly prohibited to kill it because of doubt.”[10] This passage of Ben Uziel does have ramifications to another area of Halacha pertaining to discontinuing life-support mechanisms for a  seriously impaired newborn baby. A more contemporary  scholar, Rav Abraham Steinberg, notes “when in doubt, it is better to error in favor of life.”

Just to digress, it is interesting to note  that in a similar way, Christian theologian Augustine raised a key question in his own time, as it is now, was “at what time the infant begins to live in the womb; whether life exists in a latent form before it manifests itself in the motions of the living being.” Augustine admits that he cannot assuredly say at exactly what point human life begins. He seriously questions whether any human has the power to decisively say. Nevertheless, he asserts that anyone who looked at the cut-up remains of an aborted baby would have to recognize that this had been a human life. Although Augustine apparently had a firm belief that a developing foetus participates in human life, he argues equally strongly here that a conclusive proof is outside our human ability. There is some leniency if for example, the abortion will save the mother from an  illness deriving from an inflammation not connected with the pregnancy, or a poisonous fever . . . in these cases the fetus is not [per se] the cause of her illness.”[11]

Among modern Halachic authorities, psychological reasons are also a factor to allow abortions. The great 18th century Halachic giant,  Rabbi Yaakov  Emden, permitted abortion “as long as the foetus has not emerged from the womb, even if not in order to save the mother’s life, but only to save her from the harassment and great pain which the foetus causes her.[12]

One early 20th century scholar, Rav Ben Tsion Uziel, rules in favor of allowing an abortion in order to save the mother’s hearing, even though her life was not endangered. Disgrace and the quality of life are a very important factor to take into consideration when deciding whether one is undergo an abortion.[13] In the case of pregnancy resulting from incest, or any adulterous union, the 18th century savant, R. Yaakov Emden, permitted abortion so that the stigma of bastardy be attached to her offspring.[14]

With regard to the dreaded Tay-Sachs disease, Rav Eliezer Waldenberg permits the abortion, since as he writes in his Responsa: “One should permit abortion as soon as it becomes obvious from the results of the test that the child is indeed, a Tay-Sach’s baby will be born—even until the seventh month of pregnancy. If we are able to permit abortion according to the Halacha because of great need and because of pain and anguish, it seems reasonable that this is the classic case for extending such permission. And it is irrelevant in what way pain and suffering is expressed; whether it be physical or psychological—It is all the same. Indeed, psychological suffering in many ways in greater than the bodily suffering.”[15]

R. Eliezer Waldenberg also notes that whenever possible, all such abortions should be performed within the first forty days of the pregnancy or at least within the first three months.[16] Pope Gregory XIII [1572-85) expresses a similar view, and wrote that an embryo less than forty days was not yet considered human. Incidentally,  it was only in 1869, Pope Pius IX who along with this doctrine of infallibility, decreed that the destruction of an embryo—even to save the mother’s life — was a mortal sin that merited excommunication from the Church.[17]

Many Orthodox scholars differ and are of the view that Jewish law prohibits abortion when its sole justification is to prevent the birth of a physically deformed or retarded baby. Likewise, abortion—on demand—purely for the convenience of the mother or even society is considered morally repugnant.”[18]

Suffice it to say as in any Halachic matter, there is no carte blanche answer for every conceivable case in Halacha—especially with regard to abortion.  Every case must be determined by its own unique circumstances. A competent rabbi should be able to help guide any person who is wrestling with this important decision. There is no one answer for such a complex issue as abortion.

[1] Special Laws: 3:18 (108-109)

[2] Contra Apion II 25 (202).

[3] Antiquities IV 8, 33.

[4] Cf. Mekhilta., Mishpatim, 8; Targ. Yer. Exo. 21:22–23; T.B. Bava Kama 42a.

[5] Cf. see T.B. Sanhedrin. 84b and T.B. Niddah. 44b; see Rashi; ad loc.

[6] Tosfot., T.B. Sanhedrin. 59a; T.B. Chullin. 33a.

[7] Meiri notes, so long as it has not taken its first breath of air Mishnah Ohalot. 7:6.

[8] Cf. Yad Rama’s comments on Rashi Sanh. 72b and Maimonides, MT Hilchot Rotzeach 1:9.

[9] T.B. Niddah 44b.

[10] Mishpatei Uziel 3:46.

[11] Cf. Pahad Yizhak, s.v. Nefalim.

[12] Cf. She’elat Yavez 1:43.

[13] Cf. Mispatei Uziel 3:46.

[14] She’elat Yavez, loc. cit., s.v. Yuhasin.

[15] Tzitz Eliezer 13:102.

[16] Tzitz Eliezer 9:51.

[17] Note: the American College of Obstetricians and Gynecologists has defined abortion as the expulsion or extraction of all (complete) or any part (incomplete) of the placenta or membranes, with or without an abortion before the 20th week (before 134 days) of gestation.

[18] Immanual Jacobowitz, Jewish Medical Ethics (New York: Bloch Publishers, 1968, 1975,  407)

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