Sunday, January 16, 2011

The First Conundrum - the Stirah (contradiction) in Tosfos

I simply cannot discuss the various opinions regarding the laws of abortion in the rishonim without at least addressing two Talmudic conundrums which appear all over the acharonim who discuss abortion. The first is the famous "stirah (contradiction) in Tosfos" and the second is the opinion of the Rambam with regard to abortion. Today we will deal with the first conundrum.

We have referred numerous times to Tosfos' opinion that abortions are muttar (permitted). I cannot honestly discuss tosfos' opinion without devoting some time to the famous "stirah" (contradiction) in Tosfos to which hundreds of pages have been devoted throughout the sifrei acharonim. I must apologize that for obvious reasons, this is not the place to go through every single possible derekh (approach) that has been suggested as a possible solution to this stirah, but I must at least mention the primary ways that the acharonim have tried to answer this problem. First, here is the question:

The gemara in Sanhedrin 59a mentions the following rule "Lekah Mid'am D'L'Yisrael Shari, Ule'akum assur" (there is no action that is permitted for a Jew, but prohibited for a gentile). Whether or not this rule is accepted as practical halacha will be discussed in more detail later, but there is one obvious problem with this rule, and that is the laws of abortion. Tosfos there DH "Leka Mid'am" questions this rule from the gemara in Sanhedrin 57b which seemed to infer that only a gentile is liable for capital punishment for killing a fetus, but not a Jew. Tosfos there has two answers this question as follows, that although a Jew may not be liable for capital punishment, it is still prohibited for him to kill a fetus. Tosfos then asks why it would be permitted for a Jew to kill a fetus when the mother's life is threatened, which he then explains is true clearly because he is saving her life, and he suggests that this would apply to a gentile physician as well.

On the surface, this seems to contradict what we have been saying all along was the opinion of Tosfos that abortion is permitted, and openly contradicts the Tosfos in Niddah that we have been quoting.

In order to explain this, let me summarize some of the many approaches to this problem that have been suggested by the acharonim.

The simplest and most obvious approach is to point out that Tosfos is only asking this question according to Rabbi Yishmael. In other words, the rule of "Lekah Mid'am" seems to contradict the opinion of Rabbi Yishmael that abortion is prohibited for a gentile, but not a Jew. However, since we have pointed out that we do not rule according to rabbi yishmael, the practical halacha would be that abortion is permitted, and that explains tosfos in Niddah. This is indeed the approach of many acharonim (tzitz eliezer, achiezer, toras chessed and others).

The second approach, which is the approach of the majority of the acharonim is some variation of the following. That when Tosfos in Niddah says Muttar Lehargo" "It is permitted to kill the fetus", what he really means is that in terms if the prohibition of murder it is permitted to abort the fetus. However, there may be some other reason that even Tosfos would agree that one really should not abort the fetus. The reasons abound. many claim that Tosfos would prohibit this on the basis of the fact that one is endangering the mother (similar to the Ran amd Rosh) others claim that it is because one is causing a wound to the mother (Choevel U'mazik - which we will get to in detail in a future post) and others claim that it is simply a rabbinic prohibition which exists solely because there is a prohibition for gentiles, so the Rabbis prohibited it for Jews as well (we will deal with this later as well).

A variation of this approach is to say that when tosfos said "Muttar" (permitted) , what he really meant was that it is "pattur" (not liable). Another extreme variation of this approach is to amend the Tosfos altogether and say that it was a typographical error, which is difficult to accept, as virtually every single authority that has studied and dealt with this Tosfos, both Rishonim and Acharonim have grappled with these words of Tosfos.

Another approach suggested by various acharonim is that Tosfos in Sanhedrin is explaining the gemara's rule of "lekah Mid'am", but that in actuality Tosfos does not rule according to this dictum. In other words, when Tosfos in Sanhedrin writes that abortions are prohibited he is only explaining this rule, but in Niddah, he is discussing practical halacha, and practically we do not rule according to lekah mid'am, but it may be that there are things which are prohibited to gentiles but permitted to Jews, (this indeed seems to be the opinion of the Rambam according to many authorities).

To summarize here, we have dealt with the famous "stirah" on Tosfos regarding the permissibility of performing abortions in several ways.

1)The preponderance of acharonim seem to take the approach that Tosfos holds, halacha l'maaseh (practical halacha), as follows:

There is no specific prohibition against abortion for a Jewish physician, however, there may be other reasons why an abortion may be prohibited, although Tosfos does not give us too many clues as to what those reasons may be (it could be due to Chovel U'Mazik, a "rabbinic prohibition", endangering the mother, the rule of "lekah Mid'am" or various other suggestions).

2) A significant group of acharonim believe that Tosfos holds that abortion is muttar, but the Tosfos in Sanhedrin is only explaining the gemara there which holds that it is assur. However, halacha lemaaseh, either because we do not hold like Rabbi Yishmael, or because we do not hold of the rule "lakah Mid'am" abortion is actually muttar.

It was necessary for me to discuss this topic, so that people do not think I ignored this important discussion regarding the opinion of Tosfos. In the next post we will summarize the various approaches to understanding the opinion of the Rambam, another important subject upon which there has much debate among the Acharonim and thus cannot be ignored. We will then be able to continue on our quest for identifying reasons why abortions may be prohibited. I already hinted at four of these reasons today, one is the laws of "chovel U'Mazik" (wounding and damaging), more specifically the problem of chavallah - causing a wound to the mother, which will be the next discussion after we discuss the Rambam. That will become reason # 4 that is given for the prohibition of abortion. We also hinted at reason # 5, which is "lekah Mid'am", and reason # 6 which is a non specific rabbinic prohibition against abortions. Reason # 7 will be the "mazik" (damaging) half of "chovel umazzik" which will force us to look at the fetus as the property of the father, not very politically correct in modern times, but an approach that we will have to touch upon anyway.

Just to reiterate again my goals. I am trying to demonstrate to you how incredibly unique this area of halacha is, in the fact that there are so many different understandings as to why it may or may not be prohibited. Once we are done with this survey, you will hopefully agree with my conclusions regarding how to practically deal with this very important and very complex issue. It is unfortunately essential to go through this very long process in order to appreciate the rationalist medical halachic approach to abortion.

One more thing, I chose not to inundate you with the sources and footnotes for all the acharonim I alluded to in this post, if anyone would like some "mareh mekomot" (sources), please feel free to email me at and I would be happy to provide them.

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