Sunday, January 30, 2011

Abortion as Chavallah of the Fetus

In our last post we discussed the suggestion of the Maharit that the reason for the prohibition against abortion is due to chavalah of the pregnant mother. That leads one to ask as follows: Is it possible that one may be prohibited from performing an abortion due to the chavalah of the fetus?

I have not been successful at finding a classical source that explains the prohibition of abortion in this way. However, a friend of mine sent me an article by HaRav Z.N. Goldberg Shlita that addresses this very issue. I don't know yet exactly where this article was published, but i promise to find out as soon as I can and will give you the reference as soon as I get it (I think it is from an edition of the journal Techumin).

HaRav ZN Goldberg has a very interesting analysis of this issue, and it is too long to go through all of it here. However, I will summarize his conclusion regarding this issue specifically. The gemara in Bava Kama 49a brings a machlokes between Rabbah and Rav Chisda regarding the obligation to pay the father of a fetus the "dmai velados". Recall the pasuk in the Torah that declares that when a person strikes a pregnant woman unintentionally and causes her fetus to abort, that he is obligated to pay the father d'mai velados - DMV - (money for the fetus). (You may recall that this was one of the Ramban's proofs that there was no issur of murder by a fetus). The issue that the gemara is dealing with is the statement of the mishna that if someone were to strike a convert who is pregnant and cause her fetus to abort, that he would not be obligated to pay DMV. Rabbah holds that this would only be true if the father (a convert as well) was alive at the time of the injury, but then the father died, then the guilty party would have no one to pay DMV, because the father owned the debt, and he has no legal inheritors, because the female convert does not inherit the male convert. However, if the male convert were already dead at the time of the injury, then she would get the DMV, because when the father dies, the right to collect for the fetus becomes hers.

Rav Chisda argues with Rabbah and says that the the fetus is not inherited back and forth like "packages" ("tzerari"). Rather, the Torah gives the right to the father to collect, and if there is no father, then there is no debt.

Rav ZN Goldberg explains the machloket as follows. There are two ways to look at the obligation to pay DMV. One way is to say that it is an obligation because one damaged the fetus. Since the fetus is no longer alive, the one who inherits the fetus is the father. If we look at it this way, then the mother would have no rights to collect this debt. That is because a woman does not inherit her child. This would explain the opinion of Rav Chisda.

The other way to look at this issue is to say that there really is no obligation incurred due to damaging a fetus. Just here there is a special "chiddush" ("novelty") that the Torah gives this special privilege to the father to collect money when the fetus is aborted. If it is a special chiddush, then it is indeed possible that the Torah transfers this chiddush to the mother when the father is no longer alive (he explains that this would either simply be a sevarah - a logical deduction - of Rabbah) or maybe because it is like hefker (property with no owner) and the woman therefore gets this privilege from hefker. This would explain the opinion of Rabbah.

The Rambam holds like Rabbah, that the mother collects the DMV. and the Rosh holds like Rav Chisda, that no one collects the DMV.

If Rav ZN Goldberg's analysis is correct, then the din of chavallah of a fetus would be dependent upon this machlokes Rishonim. According to the Rambam the laws of chavallah would not apply to a fetus, and according to the Rosh, the laws of chavallah would apply.

Although this is a really wonderful explanation of the sugyah, and learning through Rav ZN Goldberg's analysis is a breath of fresh "lomdishe" air, I am hard pressed to say that chavallah of the fetus is a real explanation for the prohibition against abortion. Since I have not found any other source that suggests this possibility, we are left with appreciating the beauty of HaRav Goldberg's analysis, but even he doesn't directly suggest that this is the only reason, or even the primary reason, for the abortion prohibition.

Furthermore, some acharonim explicitly rule out the possibility that there may be a prohibition of chavalah against the fetus.  The Shut Koach Shor in teshuvah 20 dismisses this possibility explicitly, and explains that the Chavalah explanation of the Maharit could only apply to the mother, and he suggests various proofs why there is no law of chavallah by a fetus. (see there for details).

In our next post we will discuss the possibility that abortions are prohibited due to stealing the property of the father, and also touch on the suggestion that maybe one is stealing from the fetus him/herself.

For those of you who might be getting a little dizzy from the incredible amount of information that we have been trying to digest together, let me summarize the five approaches that we have discussed so far regarding the prohibition (or permissibility) of abortions.  Again, we are moving from most lenient and moving towards more stringent.

  1. Tosfos - abortion is Muttar
  2. Ran and Rosh - abortion is muttar as long as you are not putting the mother in physical danger by terminating the pregnancy
  3. Ramban, Ramah, Behag - Abortion is a bad thing because we are preventing the existence of a future Human being and shomer Mitzvos, but it is still permitted to do in extenuating circumstances.
  4. Maharit - Abortion is assur because one is wounding, or causing a chavallah, in the pregnant mother.  According to this approach, abortions would be permitted for constructive purposes, in the same way that one is allowed to wound oneself for a constructive purpose.  Some would extend this even further and say that a woman can abort her own fetus, just as she is allowed to wound herself.
  5. Rav ZN Goldberg 's understanding of the Rambam - that abortion would be prohibited due to chavallah of the fetus (this would be an additonal reason for the prohibition, above whatever understanding you may have of the Rambam, and above other reasons suggested by HaRav Goldberg in other places. I am not claiming that HaRav Goldberg holds that this is the only reason why an abortion may be prohibited.  - see our lengthy discussion of the Rambam's opinion here)

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