Sunday, January 23, 2011

The Second Conundrum, What does the Rambam Hold?

The second conundrum that I am obligated to discuss before we move on is the opinion of the Rambam.  For starters, the Rambam clearly does rule in accordance with the opinion of Rabbi Yishmael that for a non-Jew an abortion would be prohibited, see Hilchos Melachim Perek 9 Halacha 4.  So we cannot say that he would hold like Tosfos that an abortion is permitted because he rules like the Chachamim. Most poskim assume that the Rambam would agree though that in cases where the abortion is being performed in order to preserve the life of the mother that it would be permitted even for a gentile, similar to the Tosfos in Sanhedrin that we quoted yesterday, that even according to Rabbi Yishmael, a gentile would be allowed to save the mother by killing the fetus.

The question then becomes, what does the Rambam hold regarding the prohibition of abortion for a Jew?  Since he does not directly deal with this question, we are stuck trying to infer from his other statements exactly what he holds.  It would seem clear from the fact that he emphasizes that for a gentile he is prohibited even to kill an unborn fetus, that for a Jew this would not be the case, at least he would not be liable for capital punishment.  However, the Rambam may still hold that there is some prohibition other than murder which might carry less of a penalty.

The poskim throughout the centuries have tried to tease out the opinion of the Rambam and many different approaches have been proposed.  I cannot here go through all the detail, but I will summarize the basic approaches, and try to give you some mareh mekomot (sources) for those that would like to study the topic in more detail.

The most important source in the Rambam are his words in Hilchot Rotzeach (murder)  1:9, we he discusses the Mishna in oholot that allows killing a fetus to save the mother, but since the head is delivered, we consider them as two equal lives.  The Rambam writes as follows (my own translation):

 "This is also prohibited [by the Torah] to have compassion on the soul of one who is trying to kill another (a rodef). therefore the Rabbis taught us that when a pregnant woman is in labor, it is permitted to dismember the fetus, both by medications and by hand, because he (the fetus) is considered like one who is chasing after her to kill her, but once his head is delivered, we cannot touch him (i.e. harm him) because we do not harm one soul for another, and this is the nature of the world..."

There are two primary issues that the poskim have difficulty with in this Rambam.  The first issue is, why did the rambam add the reason of Rodef to explain why it is permitted to kill the fetus before it is born?  Virtually all the other Rishonim explained simply that it is permitted to kill the fetus because it is not yet considered a nefesh (soul).  For what reason did the Rambam have to introduce this concept?
The second question is, once we introduce the concept of rodef, why does it change when the child's head is delivered?  the concept of rodef should apply even to a full fledged adult!  So why can we not harm the child once the head is delivered?

To answer the first question, I will bring a selection of the different approaches of the acharonim. The Semah in C.M. 425:8 writes that the Rambam really agrees with the other Rishonim that a fetus is not considered a nefesh and that a Jew  is not liable for killing a fetus.  According to the Semah, it is not really clear why the Rambam needed to use the explanation of Rodef. So the acharonim took several different approaches to explain this. The Nodeh b'Yehuda in Mahadurah Tinyanah C.M 59 explains that even though the Rambam agreed that it is not considered a nefesh, one still needs a heter, some reason why it should be allowed.  Because although it may not be considered murder, it is still assur (prohibited) just like it would be assur to kill a treifah (a person who is dying but still alive - it is prohibited, but not liable for capital punishment).  So therefore the Rambam said that in this instance it would be permitted because of Rodef.

The Shut Geoney Batra'i Teshuvah 45, also brought by Rabbi Akiva Eiger in his notes on the Mishna in Oholot writes that although the Rambam agreed that it is not murder, one still needs the reason of rodef because of the "tzurat ha'harigah" The method with which the fetus is killed.  I don;t fully understand this concept, but it seems that he is saying that the gruesomeness and aweful idea of killing a fetus in this way requires an extra heter of rodef.  Kind of like saying, it is muttar, but don;t feel so bad about it, because this child is a rodef.

Others explain, such as the Shut Achiezer Chelek 3 72:3 that the rambam differentiates between before and after the onset of labor.  This means that prior to labor, the child is considered Yerekh Imo (a limb of the mother) and therefore not considered an individual soul.  Whereas once labor has started, the fetus is considered an individual, and thus killing it would be prohibited if not for the principle of rodef.

Another explanation, brought by Rabbi Akivah Eiger in the aforementioned note, that maybe the Rambam only needed the explanation of rodef to permit a gentile to kill a  fetus in such situations, while for a Jew, this was not necessary, as it is permitted anyway.

Finally, I will mention one more explanation, that of the Beit Shlomo, Torat Chessed, and Levushei Mordechai. They explain that although the Rambam agreed that there is no prohibition of murder for killing a fetus, but there is still a problem that when one kills the fetus he is harming the "property" of the father.  While in general one is not allowed to save oneself by stealing another's property (assur lehatzil atzmo bemammon chavero) here, because of the rule of rodef, it would be allowed.

Another possible approach is to learn from the Rambam that indeed it is prohibited to kill a fetus, and that the Rambam disagrees with the other opinions that hold that a fetus is not a nefesh.  This opinion is that of R' Moshe Feinstein in Igros Moshe Vol 7 C.M. Teshuvah 69.  According to this opinion, the Rambam needed the reason of Rodef in order to permit the actual murder of the fetus.  I am saving a more detailed discussion of this opinion for much later in this blog, as this is part of the basis for the most stringent opinion, and  am working my way from most lenient to most stringent.  We'll get there, Bli Neder.

So that is the way the poskim deal with question # 1, now how then do they answer question # 2?  If the fetus is a rodef, why does that not apply once the head is delivered, is he not still a rodef then?  Why can he not be killed to save the mother?

Again, there is a preponderance of answers to this question, and it depends somewhat on how you deal with the first question.  The aforementioned Semah explains that this is the reason why the Rambam stated, "for this is the nature of the world (Tivo shel olam)".  Because this is the way of nature, that some women (May God save us from some tragedy) die from childbirth.  meaning that once the child is born, we no longer consider the child to be the killer, but rather it is the course of nature.  Now that we have two human beings in front of us, we no longer consider the child a rodef.

Almost every source that I brought before deals with this question of why it is prohibited to kill a baby if it is endangering the mother because of the rodef rule, and each answers it in his own way.  However, for our purpose, i want to concentrate on the opinion of the Rambam regarding the as yet unborn fetus, prior to birth, as our series is about abortion, not infanticide.

One more point before we summarize our findings regarding the opinion of the Rambam. It seems that the Rambam was not concerned about the rule of Lekah Mid'am, as he does differentiate between the Jew and the Gentile in this matter.  (See Chassam Sofer Shut Y.D. 19, and Arukh LaNer Sanhedrin 59 who make this point).

In sum, we have determined a few things regarding the opinion of the Rambam regarding abortion:

1) It is prohibited for a gentile due to the pasuk of Shofekh Dam haAdam Baadam as was the opinion of Rabbi Yishmael

2) The Rambam is not concerned with the rule of Lek'ak Mid'am

3) The opinion of the Rambam regarding a Jew performing an abortion is very unclear, and the Acharonim range in their interpretation of the Rambam all the way from a) (on the left) it is permitted but just needs the rule of Rodef because of the gruesomeness of the procedure (Geoney Basra'i) b) (in the center) it isn't murder but there is some other lesser prohibition (almost every acharon each according to his approach) to c) (on the right) that according to the Rambam abortion for a Jew is considered outright murder (Igros Moshe)

Now that we have discussed the "two conundrums" we can move on with our quest for the reason for teh prhibition against abortion.  Our next discussion will focus on the problem of chavalah, the perspective of looking at the prohibition of abortion as one would look at the prohibition of wounding a fellow man, in this case, the pregnant woman.

I beg you to be patient with me, because once we finish our analysis of this topic from a halachic perspective, I promise you that we will take a rationalist's eye to all of this data, and come up with a logical, ethical, and rational way to deal with this very controversial and difficult issue.  It is crucial though, for you to understand the complexity of the topic, so that you will understand the basis of our approach. It is impossible for me to write a paragraph of fluffy writing about "Judaism's view on abortion" and thus tell you in soundbyte fashion what the rationalist approach should be.  Thanks so much to those of you that are still "hanging in there" with me.

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