ABORTION AND LIVE FETUS STUDY
Since the Supreme Court recently made a decision with regard to abortion, and since, also, there is legislation pending on the question, the Central Conference is considering issuing a statement on this question, as other religious bodies have already done. Specifically, two questions need to be answered: Is there any relation between Jewish tradition on this question and the Supreme Court decision, which makes a distinction between the first three months of pregnancy, the second trimester and the third? Second, what is the attitude of Jewish tradition as to the rights of the fetus if it has been extracted from the womb in a living state? (Asked by Rabbi Paul Gorin, Canton, Ohio.)
THE QUESTION OF ABORTION has been discussed twice before the Conference, once by Dr. Jacob Z. Lauterbach, and the second time by myself. Dr. Lauterbach’s responsum is, I think, in the Yearbook. My responsum is in Recent Reform Responsa, #4 1 . However, although the matter has already been discussed twice for the Conference, new social conditions have developed, and new governmental decisions have and will be issued. Therefore, there is some need for a rediscussion of the question.
As for the permissibility of abortion, the question revolves around the status of the unborn fetus. Is it a person, as, for example, the Catholic Church would insist, or is it just a part of the mother’s body? The almost complete consensus of the classic Jewish tradition is that the unborn fetus is not a person (nefesh). This conclusion is based mainly upon two situations in the law. First, the law of Scripture (Exodus 21:22) that if a man strikes a pregnant woman and thus destroys the child, he must pay damges to the husband. But has he not killed the fetus? Is this not murder? How, then, can the law let him off merely with paying a fine? Clearly, then, the unborn child is not deemed to be a person (nefesh). This law is codified in Shulchan Aruch, Choshen Mishpot 423; and in the classic commentary to Choshen Mishpot 425, Joshua Falk, in his M’iras Enoyim (end of his sec. 8), says simply: “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 into the light of the world is not to be described as a nefesh. ”
The second basis for this principle in the law is based on the Mishnah, Oholos 7:6, and codified in the Shulchan Aruch, Choshen Mishpot 425:2, namely, that if the birth is difficult and the mother seems likely to die, one may destroy the child in order to save the mother. Of course, if the child puts out from the mother’s body as much as its forehead, it is already a nefesh, and the law is that one may not set aside (dochin) one nefesh in favor of another.
Since, therefore, the child is not a nefesh, abortion becomes basically permissible. Of course one may not destroy the unborn child without adequate reason, such as the health of the mother. But just as the mother, to save her life, may, if need be, sacrifice a finger or an arm or a leg, so she may sacrifice the unborn fetus if her health requires it, since the fetus is called “the leg or the thigh of the mother” (uber yerech imo; Chullin 58a).
The situation was summed up best by the late Sephardic Chief Rabbi of Israel, Ben Zion Uziel, in his Mishp’tey Uziel, III, 46 and 47. I quote his statement from Recent Reform Responsa, p. 193. Uziel concluded as follows: “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 Uziel reckons with the statement of the Tosfos to Chullin 33a that a Jew is not permitted (lo shari) to destroy a fetus, although such an act is not to be considered murder. He says that 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 fetus is not an independent nefesh, but is only a part of the mother, there is no sin in destroying it for her sake.
It must be stated that there are some authorities who are reluctant to permit abortion unless it is extremely necessary. This reluctance is due, often, to the fear that the operation itself might be harmful to the mother.
So far we have discussed the general question of abortion much as it has been discussed in the two previous responsa mentioned. Now, specifically, as to the relationship of Jewish tradition to the trimester rule set down by the Supreme Court of the United States, namely, that abortion should be most readily permitted in the first three months, less readily in the second three months, etc.:
Jewish tradition makes no time division within the period of the nine months of pregnancy, except for the following: The first forty days of pregnancy are deemed the least important. The fetus is considered hardly to have developed, to have any form at all. This is based upon the Mishnah in Nidda, 3:7, namely, that a woman who has a miscarriage within the forty days of her pregnancy does not need the period of purification that is needed after the birth of a child. For the whole remainder of the period of pregnancy the child is still not a nefesh, even up to the time of giving birth. This can be seen from the fact that until the child actually puts out its forehead, it may still be destroyed to save the life of the mother.
The second question is with regard to whether scientific experiments may be made upon a fetus that is delivered from its mother’s body alive. The status of the fetus (nefel) is discussed considerably in the law, but the discussion deals almost exclusively with the question of burial and mourning. Does this fetus need all the burial and mourning rites? The answer is no, as far as mourning is concerned, though burial is, of course, required when it dies. But while it is alive it certainly may not be put to death, as can be seen from the law that if it so much as puts its forehead out, then even if it endangers its mother’s life at birth, we may not put it to death. How much the more must it be spared if it has not endangered its mother’s life at its birth. Of course there are ways of studying the fetus today, even while it is in the mother’s womb. These studies, chemical and x ray, that do not hurt child or mother and can be of great benefit to both are permitted, but anything that would destroy the life of the fetus after it is born and is no longer a danger to the mother would, of course, be prohibited.