Contemporary American Reform Responsa
16. WHEN IS ABORTION PERMITTED?
QUESTION: Assuming that abortion is halakhicallY permitted, is there a time span in which abortion may take place according to tradition? (Rabbi A. Klausner, Yonkers, NY)
ANSWER: Let us begin by looking at this assumption. There is currently considerable difference of opinion among Orthodox authorities about the permissibility of abortion as well as circumstances and time when it would be permitted. The laws have been analyzed by a growing number of scholars (V. Aptowitzer in the Jewish Quarterly Review [New Series], Vol. 15, pp. 83 ff; David M. Feldman, Birth Control in Jewish Law; Robert Kirschner, “The Halakhic Status of the Fetus with Respect to Abortion,” Conservative Judaism, Vol. 34, No. 6, pp. 3 ff; Solomon B. Freehof, “Abortion” in W. Jacob American Reform Responsa, #171; Noam, Vols. 6 and 7, etc.). The fetus is not considered to be a person (nefesh) until it is born. Up to that time it is considered a part of the mother’s body, although it does possess certain characteristics of a person and some status. During the first forty days after conception, it is considered “mere fluid” (Yeb. 69b; Nid. 3.7, 30b; M. Ker. 1.1).
The Jewish view of the nature of the fetus is based upon a statement in Exodus which dealt with a miscarriage caused by men fighting and pushing a pregnant woman. The individual responsible for the miscarriage was fined, but was not tried for murder (Ex. 21.22 f). We learn from the commentaries that payment was made for the loss of the fetus and for any injury done to the woman. Obviously no fatal injury occurred to her. This was the line of reasoning of the various codes (Yad Hil. Hovel Umazik 4.1; Shulhan Arukh Hoshen Mishpat 423.1; sekr Meirat Enayim Hoshen Mishpat 425.8). If this case had been considered as murder, the Biblical and rabbinic penalties for murder would have been invoked.
The second source on the nature of the fetus is found in the Mishnah, which stated that it was permissible to kill a fetus if a woman’s life is endangered by it during the process of giving birth. However, if a greater part of the fetus had emerged, or if the head had emerged, then the fetus possesses the status of a person and can not be dismembered, as one may not take one life in order to save another (M. Ohalot 7.6). This view considers the unemerged fetus entirely part of the woman’s body; as any of her limbs could be amputated to save her life, so may the fetus be destroyed. The same point of view was taken in another section of the Mishnah, which discussed the execution of a pregnant woman for a crime. The authorities would not wait for her to give birth even if that process had already begun (Arackh. 7a). The statement from Ohalot is contradicted by San. 72b and led to controversy in recent centuries (Akiba Eger and Tos. to M. Ohalot 7.6; Epstein, Aruk Hashulhan425.7, etc.)
A tosefot to another section simply stated that it was permissible to kill an unborn fetus; this passage, which stands in isolation, is taken seriously by some authorities, while others say that it represents an error (Nid. 44b) and is contradicted elsewhere (San. 59a; Hul. 33a).
The Mishnaic statement in Ohalot was based on two Biblical verses. In them the fetus was portrayed “in pursuit” (rodef) of the mother, and therefore, has endangered her life (Deut. 25.11 f; Lev. 19.16; Yad Hil. Rotzeah Ushemirat Hanefesh 1.9; Shulhan Arukh Hoshen Mishpat 425.2). Maimonides, who did recognize the fetus as possessing some status, and Caro were willing to use either drugs or surgery in order to save the life of the mother.
Modern rabbinic authorities have felt that the variety of attitudes toward the fetus and embryo in the Talmud also point to potential restrictions in the matter of abortion. When we review the discussion of fetus and embryo, as it arose in various situations, we see that it was not treated consistently. Different criteria were applied when dealing with slaves, the problems of animal sacrifice and issues of inheritance. No uniform definition from Talmudic sources can be achieved (see Robert Kirschner, op. cit.for a full discussion).
Some recent scholars have felt that only the argument of “pursuit” provides the proper basis for abortion when the mother’s life is endangered. They reason that although the fetus is not a person (nefesh), it still possesses a special status, and therefore, should not be treated as nothing or destroyed for no good reason (Jacob Emden, Responsa Sheelat Yavetz, 1.43; Yair Bacharach, Havat Yair, #31; Eliezer Waldenberg, Tzitz Eliezer, Vol. #273, 9; Noam Vol. 6, pp. 1 ff). Others have felt a fetus may be aborted whenever there is any danger to a mother, as the status of a newborn child less than full term is in doubt until thirty days have elapsed, although it is, of course, considered a nefesh (Maharam Schick, Responsa Yoreh Deah #155; David Hoffmann, Melamed LehoilYoreh Deah #69).
On the other hand, a line of reasoning which dealt with the mother’s psychological state has been based on Arakhin 7a; it would permit abortion for such reasons or for the anguish caused to the mother by a child’s potential deformity or other problems. So, Ben Zion Uziel permits abortion when deafness is indicated in the fetus (Mishpetei Uziel, Hoshen Mishpat, #46). Uziel Weinberg permits it when rubella occurs in early pregnancy (Seridei Esh III, No. 727). Eliezer Waldenberg does so for Tay Sachs disease and other serious abnormalities (Tzitz Eliezer, Vol. 9, #236).
Other traditional rabbis have been very reluctant to permit abortion on the grounds that one is not permitted to inflict a wound on one’s self (Joseph Trani, Responsa Maharit 1.99; Zweig, “Al Hapalah Melahutit,” Noam, Vol. 7, pp. 36 ff). Rabbi Unterman has argued against abortion as tradition permits the desecration of the shabbat in order to save an unborn fetus (Ramban to Nid. 44b); this would prove that the fetus possesses human status. An unborn child, although not yet a human being, is a potential human being, and abortion is “akin to murder”(I. Y. Unterman, ” Be-inyan Piquah Nefesh Shel Ubar”, Noam, Vol. 6, pp. 1 ff). Others have followed this line of reasoning. Unterman, however, also reluctantly permits abortion under some circumstances (Ibid. 52; Shevet Miyehudah, I, 29).
In summary, we see that there are some who agree with Rabbi Unterman and reluctantly permit abortion to save the mother’s life. Others permit abortion when the mother faces a wider array of life-threatening situations, such as potential suicides, insanity, etc. Both of these groups would permit abortion only for serious life threatening dangers.
Those authorities who do not consider abortion “akin to murder” are more lenient, but would not permit an abortion lightly either (Solomon Skola, Bet Shelomo, Hoshen Mishpat 132). They would permit it for rape (Yehuda Perlman, Responsa Or Gadol, #31) or to avoid undue pain (Jacob Emden, Sheelat Yavetz, #43), but not in the case of a woman who seeks an abortion after adultery (Yair Hayim Bachrach, Havot Yair, #31). This group also permits abortion when there is serious danger to the mother’s mental health (Mordechai Winkler, Levushei Mordekhai, Hoshen Mishpat #39), or when serious fetal impairment has been discovered in the first three months (Eliezer Waldenberg, Tzitz Eliezer, Vol. 9, #327).
We can see from the recent discussion that there is some hesitancy to permit abortion. A number of authorities readily permit it if the mother’s life has been endangered, or if there is potentially serious illness, either physical or psychological. Others are permissive in cases of incest or rape. A lesser number permit it when a seriously impaired fetus is known to exist – not for the sake of the fetus, but due to the anguish felt by the mother.
The Reform Movement has had a long history of liberalism on many social and family matters. We feel that the pattern of tradition, until the most recent generation, has demonstrated a liberal approach to abortion and has definitely permitted it in case of any danger to the life of the mother. That danger may be physical or psychological. When this occurs at any time during the pregnancy, we would not hesitate to permit an abortion. This would also include cases of incest and rape if the mother wishes to have an abortion.
Twentieth century medicine has brought a greater understanding of the fetus, and it is now possible to discover major problems in the fetus quite early in the pregnancy. Some genetic defects can be discovered shortly after conception and more research will make such techniques widely available. It is, of course, equally true that modern medicine has presented ways of keeping babies with very serious problems alive, frequently in a vegetative state, which brings great misery to the family involved. Such problems, as those caused by Tay Sachs and other degenerative or permanent conditions which seriously endanger the life of the child and potentially the mental health of the mother, are indications for permitting an abortion.
We agree with the traditional authorities that
abortions should be approached cautiously throughout the life of the fetus. Most authorities would be least hesitant during the first forty days of the fetus’ life (Yeb. 69b; Nid. 30b; M. Ker. 1.1; Shulhan Arukh Hoshen Mishpat, 210.2; Solomon Skola, Bet Shelomo, Hoshen Mishpat 132; Joseph Trani, Responsa Maharit, 1.99; Weinberg, Noam, 9, pp. 213 ff, etc.) Even the strict Unterman permits non-Jews to perform abortions within the forty day periods (Unterman, op. cit., pp. 8 ff).
From forty days until twenty-seven weeks, the fetus possesses some status, but its future remains doubtful (goses biydei adam; San. 78a; Nid. 44b and commentaries) as we are not sure of its viability. We must, therefore, be more certain of our grounds for abortion, but would still permit it.
It is clear from all of this that traditional authorities would be most lenient with abortions within the first forty days. After that time, there is a difference of opinion. Those who are within the broadest range of permissibility permit abortion at any time before birth, if there is a serious danger to the health of the mother or the child. We would be in agreement with that liberal stance. We do not encourage abortion, nor favor it for trivial reasons, or sanction it “on demand.”
If needed, please consult Abbreviations used in CCAR Responsa.