Peninei Halakha

03. Abortion for a Great Need

As we have seen, if a pregnancy endangers the mother’s life, she may abort (m. Ohalot 7:6). There are other scenarios in which the permissibility of an abortion is less clear, for example, in a case where the mother’s life is not at risk but carrying to term might lead her to go blind or deaf, or if prenatal testing shows that the fetus is ill and will live a life full of suffering. These questions have arisen in our era, now that medicine can tell us a great deal about the fetus.

This question is a matter of dispute among leading poskim. Those who are stringent maintain that the prohibition against abortion is an offshoot of the prohibition against murder. Although we have seen that a fetus is not yet considered a living human being, it is nevertheless developing into one and can already be considered alive to an extent. Therefore, one who destroys a fetus transgresses an offshoot of the prohibition against murder. Just as it is prohibited to perform euthanasia, so it is forbidden to perform an abortion. Only in a case where the pregnancy endangers the life of the mother is it permissible to destroy a fetus (R. Unterman, No’am 6). R. Moshe Feinstein goes so far as to say that since aborting a fetus is considered like murder, only when it is almost certain that the fetus will cause its mother’s death is abortion permitted in order to save her (Igrot Moshe, ḤM 2:69).

In contrast, many poskim maintain that the prohibition against abortion is not an offshoot of murder. Some say that abortion is forbidden because of ḥavala (the prohibition to cause bodily harm); just as it is forbidden for a person to cut off one of his limbs, so too it is forbidden to kill a fetus, which is a limb of its mother (Responsa Maharit 1:97; Amud Ha-yemini §32). Others say that abortion is forbidden because of hashḥata (wanton destruction), based on a fortiori reasoning: if it is a grave sin even to waste seed (hashḥatat zera), clearly it is forbidden to kill a fetus that has already begun to develop (Ḥavot Ya’ir §31). Others offer a conceptually similar rationale: we are commanded to be fruitful and multiply, so abortion is prohibited on the grounds that it prevents such growth and procreation (Mishpetei Uziel, ḤM 4:46). According to all of these opinions, since abortion does not constitute a form of murder – one of the most severe prohibitions – it is permissible to perform an abortion in very difficult circumstances, just as it is permissible to amputate a limb in order to preserve a patient’s overall health (Tzitz Eliezer 9:51:3:3).

Even though it emerges from the discussions in the Talmud, Rishonim, and Aḥaronim that the prohibition of abortion is not as severe as an offshoot of murder, many poskim nevertheless rule strictly: some because of the great value of life that exists in potential within the fetus, and others because they do not rely on the opinions of doctors. Practically speaking, even though there is a tendency to rule restrictively in cases of uncertainty vis-à-vis such weighty issues, in this case it is proper to rule leniently, because forbidding abortion in such cases can cause terrible suffering, both to the parents and to the unborn child. Families sometimes break apart under such strain. Therefore, under such extremely pressing circumstances, we can rely on the lenient opinions, as their position is better grounded in the sources. This is the inclination of my teachers, the heads of Yeshivat Merkaz Ha-Rav. Still, every such case must be carefully considered by a Torah scholar who understands the halakhic issue and has obtained the expert opinion of a God-fearing doctor.[4]

[4]. Those who adopt the stringent view reason that the prohibition of abortion for non-Jews is an offshoot of murder according to the plain meaning of the Talmud (Sanhedrin 57b):

Yishmael is quoted as saying: “[A non-Jew is put to death] even for [killing] a fetus.” Whence is this derived?… It says, “Whoever sheds the blood of a person in a person – his blood shall be shed.” Who is a person in a person? A fetus.

As we saw above, there is a general principle that “nothing is permitted to a Jew but prohibited to a non-Jew” (ibid. 59a). Thus, if a non-Jew is forbidden to abort because it is a type of murder, this applies to a Jew as well (R. Unterman, No’am 6; Igrot Moshe, ḤM 2:69). As discussed in n. 1, some also extrapolate from Rambam’s characterization of the fetus as a rodef (MT, Laws of a Murderer 1:9) that it would otherwise be considered an offshoot of murder. R. Menashe Klein rules this way (Mishneh Halakhot 6:204 and 9:328). See n. 1, where we present several explanations of Rambam that are at odds with this conclusion, so this ruling cannot be used as precedent for the restrictive approach. Some ruled in accordance with the restrictive approach due to the severity of the issue, not because they deemed abortion to be murder; these include R. Yosef Shalom Elyashiv and R. Shlomo Zalman Auerbach (Nishmat Avraham, ḤM 425:1:1). Rabbi Shmuel Wosner rejects the position of Igrot Moshe that abortion is a type of murder, but only permits abortion if the mother’s life is potentially at risk (Shevet Ha-Levi 7:208 and 9:266). Others added another consideration: it is problematic to rely on doctors’ recommendations in this area, because there are many cases of false positive diagnoses of defects and abnormalities. R. Ovadia Yosef is hesitant to permit abortion for this reason, as well as because of the possible Torah transgression involved (Yabi’a Omer, EH 4:1).

According to R. Moshe Feinstein, abortion is permitted only when the mother is in grave danger and will almost certainly die unless she aborts (Igrot Moshe, ḤM 2:69). However, it seems that most poskim who adopt the restrictive approach would permit an abortion if the woman’s life is at risk, even if it far from certain that she will die, as we cite in sections 5 and 12 in the name of R. Elyashiv and R. Auerbach regarding a woman whose mental health is in jeopardy. They ruled similarly about fetal reduction, as cited in section 14 and n. 13 below. Likewise, R. Yitzḥak Yaakov Weiss permitted abortion in a case where the pregnancy would have caused the mother to go blind, because the Sages say (Avoda Zara 28b) that danger to one’s eyes constitutes danger to one’s life (Minḥat Yitzḥak, Likutei Teshuvot §138).

In contrast, those who are permissive maintain that the fetus is not yet considered a living human being. As evidence they cite the mishna (Nidda 5:3) that implies that a fetus does not inherit and cannot become impure, and one who kills it is not liable to the death penalty, and the mishna that permits abortion during a difficult labor (Ohalot 7:6): “If a woman is suffering from a difficult labor, we cut up the fetus inside her and remove it limb by limb, because her life takes precedence over its life. Once it has mostly emerged, we do not touch it, for we do not discard one life for the sake of another.” Thus, until birth, a fetus is not considered a living human being. Another mishna states: “If a woman is about to be executed, they do not wait for her to give birth before carrying out the sentence” (m. Arakhin 1:4). The Talmud elaborates: “R. Yehuda says in the name of Shmuel: ‘A woman who is about to be executed is struck in the abdomen so that the fetus will die before the execution, and thus she will not be degraded’” (Arakhin 7a). Rashi explains: “If some life were to remain in the fetus, it will emerge after the mother’s death, which is degrading.” The mishna continues: “If the woman is already in labor, we wait for her to give birth before executing her.” The Talmud clarifies: “Why? Because once the fetus detaches (from the uterus), it is a separate corporate entity.” We see from Shmuel’s statement that even when a woman is at the end of her pregnancy and the fetus could easily be saved after her execution, it is permissible to kill the fetus first, simply to avoid the possible degradation of the mother’s corpse. This proves that the fetus is not considered a living human being in any way, as it can be actively killed even for a relatively minor need.

In practice, we find that some Aḥaronim permit abortion even in cases where the mother’s life is not in danger. In the past, most discussions of this issue were in the context of whether it was permissible to abort a mamzer. R. Yair Bacharach considers this question: On one hand, he writes that there are grounds to permit aborting a fetus known to be a mamzer. He bases this on the position of Tosafot to Nidda 44a. On the other hand, abortion might be prohibited because of hashḥata. If this is the case, perhaps the abortion of a mamzer should be prohibited in order to deter adultery and penalize sinners (Ḥavot Ya’ir §31). R. Yosef Ḥayim of Baghdad was asked whether a mamzer fetus could be aborted in the fifth month. He did not want to decide the case, but instead summarized various responsa for the inquirer. Reading between the lines, it seems that he was inclined to be lenient. He quoted Ḥavot Ya’ir, which permits when there is a great need. He also quoted Maharit, who prohibits abortion because of ḥavala, but permits it when there is a need (Responsa Maharit 1:97). Based on this, R. Yosef Ḥayim of Baghdad raised the possibility that “if having the baby will disgrace and shame the family, and constitute a desecration of God’s name, having an abortion is considered a great need” and is permissible (Rav Pe’alim, EH 1:4). R. Yaakov Emden permits the abortion of a mamzer since, in principle, a woman who committed adultery is liable to be put to death, in which case her fetus would clearly die as well. He also permits abortion when necessary for the mother’s health, even if the situation is not life-threatening (She’elat Ya’avetz 1:43).

All these responsa discuss a perfectly healthy fetus that could develop into a great Torah scholar, who is considered greater than an ignorant high priest (Horayot 13a). His only disadvantage would be in not being permitted to marry a Jewish-born woman. Yet many permit aborting even such a fetus. They would certainly permit aborting a fetus which, if born, would be incapable of caring for himself and whose life would be full of pain and suffering.

Several other Aḥaronim likewise permit abortion even when there is no danger to the mother’s life. For example, R. Shneur Zalman Fradkin of Lublin notes that there is disagreement about whether abortion is a Torah prohibition or a rabbinic one, but concludes that even if it is a Torah prohibition, abortion is permitted to protect the health and well-being of the mother, even if her life is not in danger (Responsa Torat Ḥesed, EH 42). R. Ben-Zion Meir Ḥai Uziel permitted an abortion for a woman who the doctors believed would become deaf if she were to carry her pregnancy to term. He considered avoiding deafness to be a great need, as losing her hearing is more degrading for her than it is for the executed woman in Arakhin 7a to lose her fetus (Mishpetei Uziel ḤM 4:46). R. Yeḥiel Yaakov Weinberg is also among those who are inclined to be lenient, since the majority of Rishonim do not believe that a fetus is considered a living human being (Seridei Esh, ḤM §162).

Some say that the entire prohibition of abortion is rabbinic. R. Fradkin explains this to be the opinion of Tosafot (to Nidda 44b), Ran, and Raavad. R. Waldenberg arrives at a similar conclusion, based on several Aḥaronim (Tzitz Eliezer 8:36). They apparently maintain that the principle under which “nothing is permitted to a Jew but prohibited to a non-Jew” is upheld even when the prohibition on non-Jews is from the Torah and the prohibition on Jews is rabbinic. In any case, if the prohibition of abortion for Jews is rabbinic, then clearly in cases of great need, it can be permitted.

In my opinion, it must be that the prohibition of abortion for non-Jews, like the prohibition for Jews, is not an offshoot of murder, but is forbidden as an act of injury (ḥavala, as Ḥavot Ya’ir maintains) or destruction (hashḥata, as Maharit argues). Even though the prohibition is derived from a verse dealing with murder (“Whoever sheds the blood of a person in a person”), this means that it is a safeguard against murder, but is itself an act of injury or destruction.

Waldenberg deals extensively with the issue of abortion and concludes, based on several basic principles, that abortion is permissible when there is a great need (Responsa Tzitz Eliezer 7:48; 8:36; 9:51:3; 14:100-101). My rabbi and teacher R. Shaul Yisraeli writes similarly in Amud Ha-yemini §32. R. Yisraeli was once consulted about a case where there was a 25 percent chance that the fetus was abnormal. R. Yisraeli could not bring himself to permit the abortion. However, R. Zvi Yehuda Kook, who heard about the intense worry and pain of the couple involved, permitted the abortion in practice, based on what R. Yisraeli had written. My rabbi and teacher R. Avraham Shapira was inclined to agree with R. Zvi Yehuda. (At first, he told me to broadcast on my Halakha Corner radio program that if a woman is carrying a fetus suffering from Down syndrome, the couple may present the question to a rabbi known to rule permissively in such a case. Later, I heard that he himself ruled permissively.)

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