Wednesday, December 15, 2010

Is Abortion Prohibited by Halacha?

My goal with this series is not to determine the permissibility of abortions in halacha.  Rather, I am going to take you on a journey of what is really a strange and unusual halachic topic.  I am going to show you how incredibly divergent and diverse the various halachic opinions regarding abortion are.  We will start with the most lenient opinion found among the rishonim, the rishonim who held that there simply is no issur of abortion at all.

The only Torah source that discusses abortion is in Sh'mos 21:22-23 where the Torah discusses a case where a man strikes a pregnant woman and causes her to miscarry.  Though it is clear that the man did something wrong by striking this woman, no direct inference can be made from this parsha regarding whether or not causing an abortion intentionally with maternal consent would be permitted or not.  The only two obvious conclusions that we can make from this parsha are as follows:

1) That the status of the fetus is clearly not the same as the status of an adult independent human being (if it were equal, then this would be a case of murder be'shogeg, not a monetary case)

2) That in some sense, the parents of this fetus suffered a significant loss which requires compensation by the responsible party.

Let me emphasize here that when the Torah was given there was no such thing as a safe medical procedure done with consent and anesthesia to voluntarily terminate a pregnancy.  This will be a very important point as we proceed with our analysis, and we will come back to this later.

In the gemara, we do have some references to the act of the intentional termination of a pregnancy.

The heter to intentionally kill an unborn child when it endangers the life of the mother is clearly written in a mishna in Oholot 7:6 and it is therefore an undisputed halacha among the poskim.  The reasoning is under dispute among the rishonim, but I will not get into that issue right now.  However, it is not incorrect to say that this halacha in Oholot is consistent with what we learned in the pasuk in shmos, that until a child is born, it does not have a status of human being on the same level as that of the mother.

We then have a famous gemara in Sanhedrin 57b where a baraita brings in the name of Rabbi Yishmael that a Ben Noach gets capital punishment if he intentionally causes an abortion, which he derives from a pasuk.  Rashi takes the simple understanding of the gemara that this prohibition applies only to a non-Jew, whereas for a Jew the prohibition of murder only applies to a baby once he/she is born.  Rashi supports this by bringing the mishna in Niddah 44a which says that one who kills even a one day old child is liable for capital punishment, (and presumably not before one day of life).  Tosfos there D'H Ihu assumes that it is muttar (a language which they repeat twice) to kill a fetus before it is born, and they therefore deal with the issue of how it could both be muttar to be mechalel shabbos to save a fetus on one hand, but muttar to kill the fetus on the other hand, but that is beyond the scope of this series.

So we have Tosfos telling us that it is muttar to intentionally abort a fetus, and their source is the mishna in Niddah.  The simple way to understand Tosfos is that the braita in Oholot was only the opinion of Rabbi Yishmael.  Indeed, the language would suggest that this is the case as it says, "Meshum Rabbi Yishmael Amru ..." so Tosfos is simply paskening like the Chachamim.  This is indeed the overwhelming opinion among the poskim, that Tosfos held that halacha lemaaseh, abortion is permitted both for Jews and for Gentiles (see Maharatz chayas in his comments on that page, Maleches shlomo, Yakhil Shlomo, Shut Toras Chessed, Beit shlomo, Tzitz Eliezer and more). The explanation for this opinion is a little less clear, but R' Chaim Ozer Grodzenski in Shut Achiezer 3, 65:14 explains that Tosfos is paskening like the Chachamim (this is also the explanation of many other acharonim, including Shut Toras Chessed, Even Haezer 42:5, and Tzitz Eliezer 14 siman 100:2).  There are other well known places where Tosfos contradicts this opinion and seems to hold that there is some level of prohibition with aborting a fetus, and the attempts to answer this stirah are many, but I don't have the place here to go into the details.  However, this is the clear opinion at least of this Tosfos.

Tosfos is not alone among the rishonim who held that abortion is muttar.  The Rosh, as brought in the Shita mekubetzes in Massechess Erechin 7a also agrees that abortion is muttar, and the Ran in Chiddushei HaRan Chullin 58a seems to agree as well.  The Achiezer that we brought before clearly lumps the opinions of the Ran and Tosfos together, as he brings the Ran as a shita who agrees with tosfos that there is no Torah prohibition against abortion.  Many poskim assume from the Ran that although there is no issur Torah there is an issur miderabbanan, but the Ran does not say that at all.  His words are as follows: (my translation) "[the reason why a pregnant woman who is liable for capital punishment] gets executed and we do not wait until she gives birth ... Is NOT because the child is only a part of the mother (ubbar yerekh Imo) , but it is because she is liable for the death penalty, and we do not delay her justice, and for the child we are not concerned because he has not yet come out into the outside world (yatzah l'avir ha'olam)".  Exactly how some authorities derive from here that the Ran held there was a rabbinic prohibition against abortion is something that has always eluded me, as the Ran is simply saying that we are not concerned about killing a fetus that hasn't yet been born.

Regardless, we will get to the opinion that abortion is assur midrabbanan and the true opinion of the Ran in a later post.  For now let it suffice to say that we have at least two major Rishonim (Tosfos and the Rosh), possibly three (if we add the Ran), that hold that abortion is muttar. Period.  We also must mention here that some acharonim felt that Tosfos only meant that it is muttar for a Jew, and that he really does pasken like Rabbi Yishmael, not like the Chachamim.

So this is opinion number one, the most lenient one.  In our next post, we will deal with the next opinion, one that is slightly more stringent, and the Rosh and the Ran will play an important role again.  Hang in there and you'll see what I mean.

1 comment:

  1. Abortion is a fascinating subject in Jewish law. It sits between the Catholic blanket prohibition and the secular free-for-all, while providing standards based on firm principles rather that "This is what I think" ones. It also involves so many areas of halacha including the laws of b'nei Noach. Kol hakavod on your series.