Abortion

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In the torah it seems clear that there is some kind of prohibition on abortion,[1] but it is unclear as to what the prohibition it is.[2] Due to the dispute about why abortion is prohibited, there is also a debate about in which cases abortion is prohibited and in which it is permitted. Despite the fact that abortion is prohibited, in Halacha, as opposed to in Catholic and other Christian doctrines, all Poskim agree that abortion is permitted at least in one case. Please note, that while this article describes different opinions on when abortion is forbidden and when it is permitted, a layman should not make any decisions on his own in this serious matter, rather he should consult a Rav of eminent stature who is knowledge in this matter.[3]

What is the Prohibition?

  1. According to Rabbi Moshe Feinstein, abortion is considered murder. However, this murder does not come with a death penalty. There are some cases of murder when the murderer does not get the death penalty. One of these cases is someone who murders one who is terminally ill. [4]
  2. According to Rabbi Issar Unterman, abortion is considered אבזרייהו דרציחה akin to murder.[5]
  3. One possible prohibition could be that it is against the commandment of פרו ורבו. Part of the commandment is to allow every potential soul to come into being, and if one does abortion, they cannot do this. [6]
  4. Spilling the seed/Onanism. The fetus is more similar to the basic seed than to a human, so destroying the fetus would be like destroying the seed.[7]
  5. Aborting the fetus is injuring the mother (Chavalah). Exodus 21 says that if two men are fighting and hit a pregnant woman and there is no death, but the fetus is miscarried, then they have to pay a monetary payment. So the fetus is more a part of the mother than a separate life. [8]
  6. It’s a Rabbinical prohibition. There’s no clear prohibition in the Torah, so our only real sources are the rabbinical sources. [9]
  7. According to the Zohar, one who kills a fetus is guilty of destroying God’s handiwork. [10] it is unclear if this constitutes a different view of the technical prohibition, or if this is just a reasoning explaining the severity of abortion. A punishment unlike that for murder is detailed.

Practical Abortion Cases

  1. If the mother’s life is being directly threatened by the fetus, in the sense that if she does not abort, she will die, then it is permissible to abort the child. This is because we prioritize the life that is already living, rather than the one that has not been born yet. [11]
  2. When there is a special case where you are required to kill a fetus or be killed, there is a debate as to what we are allowed to do. In judaism there are three cases that we must die before doing including you must take your life before killing another human. In a case where you are being forced to kill a semi-human, is it allowed? There was a case during World War I in which a doctor was told to abort a baby carried by a mother that had been raped by a German officer. The German told the doctor to abort or be killed. In this kind of case there are two opinions. Rabbi Unterman states that since the prohibition is not murder, but akin to murder, you are allowed to kill the fetus. [12] Rabbi Moshe Feinstein disagrees and says that abortion is murder, but it is still unclear if you have to die rather than abort. [13]
  3. According to many poskim, you are allowed to abort before 40 days of gestation, because no organs or limbs have formed yet and the fetus is not considered alive. [14]
  4. When a fetus is tested and it is determined that it has a disability or deformity, many poskim [15] state that there is no allowance for abortion. Rabbi Waldenberg disagrees and rules that when the resulting child’s deformity will cause stress that the parents will not be able to handle, it is permitted to abort. Rabbi waldenberg says “ there is no greater pain than to have a child that will die and there is nothing you can do to fix it.” For most types of deformities, Rabbi Waldenberg permits abortion only until 3 months. If the child has Tay Sachs he allows abortions even up until 7 months.[16]
  5. An issue can also arise when the fetus in question would be born a Mamzer, a child from an illegitimate sexual relationship. Because of the adulterous affair the woman is deserving of the death penalty. Since the fetus is a part of the mother, and not it’s own entity, it too is technically liable for the death penalty and one can therefore, according to Rav Yaakov Emden, abort it. [17]
  6. A question arises if the mother will experience severe mental distress if the baby is born. Rabbi Waldenberg holds that abortion is not murder at all, and that mental distress can be equated with physical pain. Therefore, abortion would be allowed if one’s rabbi determines that the mental stress is the same as the physical would be. [18] Rabbi Unterman takes a similar approach to the issue. Rabbi Unterman does believe that abortion is considered akin to murder, and therefore cannot be allowed in cases of mental anguish. However, if the psychological distress that the mother would feel would cause suicidal tendencies, Rabbi Unterman would permit abortion. [19]

Sources

  1. Tosafot Sanhedrin 59a “Leka Midam” Since there is no prohibition a non jew has that a jew does not, we can derive it is forbidden for Jews as well.
  2. There seems to be a contradiction in two sources from the torah. In Bereshit Chapter 9, it says that abortion is prohibited for non jews, and one will receive the death penalty for killing a “man within a man.” Sanhedrin 57b. In Shemot Chapter 21, however, it says, if a Jew kills a fetus he is just liable a monetary punishment. Therefore, although there certainly is a prohibition, opinions vary widely as to what the prohibition is, see section “What is the Prohibition?” below.
  3. Rabbi Chaim Jachter quotes from Rabbi Aharon Lichtenstein that just like an ordinary physician wouldn't perform a complicated surgery such as a liver transplant, so too an ordinary Rabbi should not render an opinion on abortion, rather a Rabbi of eminent stature should render a decision.
  4. Iggros Moshe, Choshen Mishpat, Part 2, Chapter 69
  5. I.Y. Unterman, Noam VI (1963), 1-11 as cited in David Feldman, Birth Control In Jewish Law
  6. Yevamos 63b
  7. Talmud Bavli: Niddah 13a; Chavos Yair, Siman 31
  8. Exodus 21:22
  9. Sanhedrin עב; Tzitz Eliezer, Jerusalem, 1963, volume VII, number 48, p. 190.
  10. Hok L’Yisrael, Shemot for Monday, Zohar, Shemot 3b
  11. Mishna Ohelet Perek 7 Mishana 7
  12. I.Y. Unterman, Noam VI (1963), 1-11 as cited in David Feldman, Birth Control In Jewish Law.
  13. Iggros Moshe, Choshen Mishpat, Part 2, Chapter 69.
  14. Based on Yevamot 69b which refers to a pre 40 day fetus as “merely water”
  15. Iggros Moshe, Choshen Mishpat, Part 2, Chapter 69.
  16. Ẓiẓ Eliezer, 13:102; 14:101
  17. Sheelas Yaavetz Teshuvah 43, Rav Emden
  18. Ẓiẓ Eliezer, 13:102; 14:101
  19. “The Law of Pikkuah Nefesh and Its definition” in HaTorah V’HaM’dinah, IV (1952) 22 - 29 as cited in David Feldman, Birth Control In Jewish Law. Rabbi Unterman is basing his ruling on a ruling by a case where a where a rabbi was asked if a man could have non kosher soup to prevent him from going insane. Rabbi Israel Meir Mizrachi ruled that serious danger to one’s mental health is the same as a risk to one’s physical health. Resp. Pri HaAretz, Vol III (Jerusalem, 1899), Y.D., No. 2. This ruling was also applied to a specific situation that dealt with birth control, a situation more similar to abortion than non kosher soup. Resp. Binyan David, No. 68; Minhat Yitzchak, Vol. I, No. 115; and Igg’rot Mosheh, E.H., No. 65, would allow the contraceptive mokh when pregnancy would create a serious mental-health risk as cited in David Feldman, Birth Control In Jewish Law