Saturday, January 29, 2011

Abortion as Chavalah - Wounding the Pregnant Mom

Now that we have placed the two big "conundrums" behind us, we can move on in our quest to describe and list the many reasons that have been proposed to explain why an abortion is prohibited.  We have so far described four opinions, and as promised , we will now move on to explain the opinion that holds that abortions are no more or no less prohibited than it would be to injure a fellow human being. 

There are two human beings that one is potentially damaging when one performs an abortion, the mother and the fetus.  We will first look at this from the perspective of the mother, and bring those opinions who hold that abortion is prohibited because we are damaging her.  In a future post we will discuss if the fetus is considered a person enough that there may be a prohibition against damaging him/her.

The primary source for this approach is the Maharit, though others have also taken this path (see shut Tzofnas Paneakh 1:59, and shut Ateret Chachamim EhE 1, and shut Aryeh D'bei Ilai here). The Maharit is one of the standard texts on this issue, and almost every halachic discussion of this topic deals with the teshuvos of the Maharit.

There are two teshuvos that are relevant, 1:97 and 1:99. There are many points that are difficult to explain, as he seems to contradict himself somewhat, and the acharonim try to reconcile the difficulties in various ways (for example, see Tzitz eliezer Vol. 9 Siman 51, perek 3 and many others), but as this is beyond our scope, I will avoid going into the nitty gritty details of how to reconcile the two teshuvos of the Maharit. Anyone interested in more on this matter, feel free to email me and i will gladly provide references and talk about it.

However, several things are clear from the Maharit. 1) That the fetus is not considered halachically a "nefesh" and thus the laws of murder do not apply 2) That the reason for the prohibition against abortion is because of chavallah - i.e. you are causing a wound in the pregnant woman 3) That as long as it is for the health benefit of the mother, an abortion is permitted.

This approach considers the fetus to be "yerekh Imo", "a limb of his mother" and thus it is prohibited to cut off the limb or damage it in any way. He has several proofs, one is the gemara in eruchin 7a which states that when a pregnant woman is condemned to death, that we strike her stomach to kill the fetus prior to carrying out her death sentence, in order to avoid the "nivul" or "grotesqueness" of the baby moving after her execution. This is a very gruesome subject, and difficult to discuss, but consider it similar to the interest of the courts in the US where the death sentence is carried out to make the execution as smooth as possible, without having unnecessary movement or disruption of the process which is horrible enough anyway.From here he proves that we can certainly abort a fetus in order to heal a woman who is alive and well and not about to be executed, though he then says that maybe this case is different because the fetus is going to die soon anyway.

He has other proofs as well, and he brings the second opinion of the Ramban that states that we can only violate the Shabbat for a baby after she is in labor and dies, for only after her death do we see the baby as a separate being who requires an intervention to save his/her life. However, as long as she is alive, the fetus is considered yerekh Imo.

Assuming that the reason for the prohibition of abortion was due to chavalah, as is the opinion of the Maharit and those who hold like him, we would have to conclude several things. Just as it would be muttar to make a chavalah for a constructive purpose (such as doing a surgical operation for a constructive purpose) so it would be muttar to perform an abortion for a constructive purpose. Exactly how far this hetter will go, is clearly a matter that is beyond the scope of this blog post, but it should be food for thought for all of you.

Interestingly, several acharonim take this a step further (see shut Seridei Aish Vol. 3 127:22 for one example). There are those who hold that there is no prohibition for a person to wound him/herself (RaMah and Meiri for example). According to the approach of the maharit then, according to theses rishonim, there would be no prohibition at all for a woman to take a medication that would cause her to abort. As she is permitted to wound herself. (this is not totally true though, for even according to the Meiri, there is still a rabbinic prohibition for a person wounding himself, but this is again getting beyond our scope of discussion).

So we now have a fifth reason for the prohibition, the "chavalat Ha"em" ("wounding the mother") explanation.

Next post we will discuss the issue of chavalah of the fetus, then we will move on to the explanations related to the monetary value of the fetus, or the fetus as property of the parents. Just to give you a hint of where else we will be heading, after we finish discussing all of the reasons that have been proposed for the prohibition, we will then spend some time talking about the different stages of fetal development, and how that might affect the halacha, and then we will be ready to sum everything up and discuss what this all means halacha lemaaseh and try to apply our rationalist approach.


  1. Any chance for a Hebrew Books link to the Maharit or at least what the Rashei Taivos stand for so we can find it ourselves?

  2. Unfortunately the Shut Maharit is not on Maharit stands for Moreinu Harav Yosef ben Moshe Trani.
    The best I can do is give you a link to the page in the Tzitz Eliezer who discusses the Maharot in length, and quotes almost all of the maharit word for word. Check Perek 3 in this link:

    Hope this helps!