American Reform Responsa
(Vol. LXVIII, 1958, pp. 120-122)
QUESTION: A young woman has contracted German measles in the third month of her pregnancy. Her doctor says that her sickness creates the possibility that the child, if born, may be deformed in body or mind. Some doctors, however, seem to doubt that this will happen. In other words, there are various opinions as to the probability of the child being born deformed. May she, according to Jewish law, or to Reform interpretation of Jewish law, have an abortion done to terminate the pregnancy?
ANSWER: The Mishna (Oholot VII.6) says that if a woman has great difficulty in giving birth to her child (and if it seems as if she cannot survive), it is permitted to destroy the child to save her life. This permission to destroy a child to save the life of a mother is cited in all the codes and is finally fixed as law in the Shulchan Aruch(Choshen Mishpat 425.2). This permission to destroy the child is only given in the case where it is necessary to save the mother. The law continues and says that if the child puts out its head or most of its body, it may no longer be killed to save the mother, since we do not “push aside one life for another.” Therefore, this legal permission to destroy the child cannot be relevant in the case mentioned, in which the fetus in no way endangers the mother, and, therefore, on the ground of the law in Choshen Mishpat there is no basis as yet to terminate the pregnancy.
However, Rashi to B. Sanhedrin 72b–where the law of the destruction of the child is cited from the Mishna Oholot–feels it necessary to explain why the child must be spared if it puts forth its head and yet may be killed if it does not. His explanation (which is cited in later discussions) is of some relevance to our problem. He says that as long as it does not go forth “into the air of the world” it is not considered a nefesh and, therefore, may be slain to save the mother. From this we might conclude that an unborn fetus or infant is not considered a being, and may, if necessary, be destroyed. Yet even so, in this case, the permission is given only to save the mother.
Still, Rashi by his explanation raises the possibility that we need not be too strict about saving an unborn child. In fact, there is some assistance to this point of view from the law (codified in Choshen Mishpat 423), that if a man happens to strike a pregnant woman and the child is destroyed, he has to pay money damages for the harm to the mother and the loss of the child. But why should he not be guilty of a capital crime, having killed the child? Evidently one would conclude that the unborn child is not a nefesh in the sense that killing it would be a capital crime. Joshua Falk (16th-17th century), in his classic commentary Me-irat Einayim to the passage in Choshen Mishpat 425 (end of his section 8), develops the opinion of Rashi and says clearly, “While the fetus is within the body of the mother it may be destroyed even though it is alive, for every fetus that does not come out or has not come out into the light of the world is not described as a nefesh.” He proves this from the case of a man who strikes a pregnant woman and destroys her unborn child. The man must pay damages, but is not deemed a murderer, which he would be if the fetus were considered a nefesh. Similarly, in Arachin 7a, if a pregnant woman was condemned to death, she was smitten in front of her body so that the child should die before she was executed. This, too, would indicate that it is at least no capital crime to slay unborn children. However, the cases mentioned above are mitigated by various arguments given in the literature, and the actual law is that a fetus may not be destroyed, as is seen in the following: The Talmud, in Sanhedrin 57b, gives the opinion of Rabbi Ishmael that a Ben Noach (i.e., a non-idolatrous non-Jew) is forbidden to destroy a fetus. It is a capital crime if he does it. The Tosafot to Chulin 33a say that this indicates that a Jew is not to be put to death (as a Ben Noach is) if he destroys a fetus; nevertheless, continue the Tosafot, while it is not a capital crime for a Jew, it is still not permitted for him to do so.
There is a modern, scientific analysis of the law in this matter by Aptowitzer, in the Jewish Quarterly Review, New Series, volume 15, pp. 83ff. However, it is rather remarkable that the whole question of abortion is not discussed very much in actual cases in the traditional law. As a matter of fact, I found at first only three responsa which discuss it fully. There are others which I found later. The first responsum is by a great authority, Yair Chaim Bachrach, of Worms, 17th century. In his responsum (Chavat Ya-ir, #31) he was asked the following question: A married woman confessed to adultery, and, finding herself pregnant, asked for an abortion. Bachrach was asked whether it is permissible by Jewish law to do so. He discusses most of the material that I have mentioned above, and at first says that it would seem that a fetus is not really a nefesh and it might be permitted to destroy it, except that this would encourage immorality. But he continues, from the discussion of the Tosafotin Chulin, that a Jew is not permitted (even though he would not be convicted) to destroy a fetus, that it is forbidden for him to do so.
Yet in the next century the opposite opinion is voiced, and also by a great authority, namely Jacob Emden (Ya-avetsI, 43). He is asked concerning a pregnant adulteress whether she may have an abortion. He decides affirmatively, on the rather curious ground that if we were still under our Sanhedrin and could inflict capital punishment, such a woman would be condemned to death and her child would die with her anyhow. Then he adds boldly (though with some misgivings) that perhaps we may destroy a fetus even to save a mother excessive physical pain.
A much more thorough affirmative opinion is given by Ben Zion Uziel, the late Sephardic Chief Rabbi (in Mishpetei Uzi-el III, 46 and 47). He concludes, after a general analysis of the subject, that an unborn fetus is actually not a nefesh at all and has no independent life. It is part of its mother, and just as a person may sacrifice a limb to be cured of a worse sickness, so may this fetus be destroyed for the mother’s benefit. Of course, he reckons with the statement of the Tosafot in Chulin 33a that a Jew is not permitted (la shari) to destroy a fetus, although such an act is not to be considered murder. Uziel says that, of course, one may not destroy it. One may not destroy anything without purpose. But if there is a worthwhile purpose, it may be done. The specific case before him concerned a woman who was threatened with permanent deafness if she went through with the pregnancy. Uziel decides that since the fetus is not an independent nefesh but is only part of the mother, there is no sin in destroying it for her sake.
In the case which you are discussing, I would, therefore, say that since there is strong preponderance of medical opinion that the child will be born imperfect physically and even mentally, then for the mother’s sake (i.e., her mental anguish now and in the future) she may sacrifice this part of herself. This decision thus follows the opinion of Jacob Emden and Ben Zion Uziel against the earlier opinion of Yair Chaim Bachrach.
Solomon B. Freehof
S.B. Freehof, “Abortion,” Recent Reform Responsa, pp. 188ff; “Abortion and Live Foetus Study,” Reform Responsa for Our Time,pp. 256ff.
“Resolution,” CCAR Yearbook, vol. 67, 1967, p. 103. “Resolution,” Union of American Hebrew Congregations,1967, p. 77.
“Resolution,” National Federation of Temple Sisterhoods, 1965.
If needed, please consult Abbreviations used in CCAR Responsa.