RRR 188-193


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 doc tors, however, seem to doubt that this will happen. In other words, there are various opinions as to the prob ability of the child being born deformed. May she, according to Jewish law, or according to Reform re lation to Jewish law, have an abortion to terminate the pregnancy? (From Rabbi Sidney Brooks, Temple Israel, Omaha, Nebraska)

The Mishnah (Oholos V I I : 6) says that if a woman has great difficulty in giving birth to her child (and 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 (Chosen Mishpot 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 foetus in no way endangers the mother and, therefore, on the ground of the law in Chosen Mishpot 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 Mishnah Oholos, 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 foetus 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 conformity with this point of view in the law (codified in Chosen Mishpot 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 child unborn is not a nefesh in the sense that killing it would be a capital crime. Joshua Falk (sixteenth-seventeenth century), in his classic commentary,. ” M’iras Enoyim,” to the passage in Chosen Mishpot 425, end of his section 8, develops the opinion of Rashi and says clearly, “While the foetus is within the body of the mother it may be destroyed even though it is alive, for every foetus 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 the 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 foetus were considered a nefesh. Similarly, in Arakin 7a, if a pregnant woman is condemned to death, she was smitten in front of her body so that the child would die before she was executed. This, too, would indicate that no capital crime is committed in slaying unborn children. However, the cases stated above are mitigated by various arguments given in the literature, and the actual law is that a foetus may not be destroyed, as is seen in the following: The Talmud, in Sanhedrin 57 b , gives the opinion of Rabbi Ishmael that a hen Noach, i.e., a nonidolatrous non-Jew, is forbidden to destroy a foetus. It is a capital crime if he does it. The Tosfos to Chullin 33a says that this indicates that a Jew is not to be put to death (as a ben Noach is) if he destroys a foetus; nevertheless, continues the Tosfos, while it is not a capital crime for a Jew, it is still not permitted for him to do it.

There is a modem, scientific analysis of the law on this matter by V. Aptowitzer, in The Jewish Quarterly Review, new series, Vol. 15, p. 83 ff. 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, seventeenth century. In his responsum (“Chavos Yair” 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 comply. He discusses most of the material that I have mentioned above, and at first says that it would seem that a foetus is not really a nefesh and it might be permitted to destroy it, except that this would encourage immorality. But he concludes, from the discussion of the Tosfos to Chullin, that a Jew is not permitted to destroy a foetus, that it is forbidden for him to do so, even though he would not be convicted for it.

Yet in the next century the opposite opinion is voiced, and also by a great authority, namely Jacob Emden (“Yabetz” I,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 anyway. Then he adds boldly (though with some misgivings) that perhaps we may destroy a foetus even to save a mother excessive physical pain.

Solomon of Skola, in his Responsa, “Beth Sholomo” (Lemberg, 1878, Choshen Mishpot 132), says that if it is within the first forty days of the pregnancy, there is no possible objection to an abortion; but even if it is older, the danger to the mother’s life and health determines if an abortion may be performed. However, he hesitates on another ground entirely, namely, that the abortion itself is a danger. Now, he says, the doctors may say that the abortion is not dangerous, but the Halacha says it is dangerous, and we follow the Halacha. Of course, he continues, if she herself insists upon an abortion, that would tend to weigh in favor of it. But still he does not wish to decide.

Yechuthiel Teitelbaum, of Sziget, in his responsa, “Avne Zedek,” Lemberg, 1886, Choshen Mishpot 19, tells of the following case: A woman is six months pregnant and she is dangerously ill. The doctors say that the only chance she has for survival is to undergo an abortion. He quotes the statement of Joshua Falk that a foetus is not a nefesh and decides that an abortion is quite permissible. However, he is careful to add that this decision merely describes what the law is, i.e., l’Halacha, but he does not decide in favor of this as actual practice (l’maase). He then adds that we should not believe doctors who are exceedingly pessimistic; God may send the woman healing (i.e., without the abortion).

A more recent respondent is entirely negative. He is David Sperber, in his responsa, “Afra-casta de Oni” 169, published in Satu Mare, Rumania, 1940. The husband is epileptic; the wife is pregnant. The doctors advise abortion because the child will very likely be epileptic. Sperber quotes the discussion in the laws about whether epilepsy is ground for divorce. He cites them in order to indicate that none of the older opinions on the matter of divorce express any concern about the health of the children. He denies, then, that epilepsy is hereditary; otherwise it would be an element in the discussion as to whether epilepsy is ground for divorce. He is, however, confronted with the statement in the Talmud, b. Yevamoth 64 b , which forbids a man to wed a member of a family of epileptics, clearly indicating that the Talmud held that epilepsy is largely hereditary, which is exactly the opinion of modern doctors. But Sperber insists that the Talmud means that the family is just unlucky. From which he concludes that the child is not at all likely to be epileptic. Therefore, he says it is forbidden to destroy the foetus unless, of course, it endangers the mother.

A much more thorough, affirmative, and intelligent opinion is given by Ben Zion Uziel, the late Sephardic Chief Rabbi (in “Mishp’tey Uziel” III, 46 and 47). He concludes, after a general analysis of the subject, that an unborn foetus 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 foetus be destroyed for the mother’s benefit. Of course, he reckons with the statement of the Tosfos to Chullin 33c, that a Jew is not permitted (lo shart) to destroy a foetus, 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 a reason. 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 decided that since the foetus 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 considering, 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 opinions of Jacob Emden and Ben Zion Uziel against the earlier opinion of Yair Chaim Bachrach.

(Originally published in Central Conference of American Rabbis Yearbook, Vol. LXVIII, 1958.)