Tuesday, February 1, 2011

Abortion as Gezeilah - Can a Fetus be Considered Property?

We will now move on to the next reason why abortions may be prohibited, the prohibition of gezeilah, or stealing. This is to be differentiated from the issur of chavallah - wounding, as they are two separate prohibitions. There are really three people from whom one may potentially be stealing when one performs an abortion. The father, the mother, and the fetus. Today we will discuss the parents, and whether or not an abortion may be considered gezeilah from the parents. In our next post we will talk about stealing from the fetus as a possible reason for the abortion prohibition.

The idea that when one aborts a fetus that he could be considered stealing from the father finds its source directly in the gemara. On many occasions, we have referred to the gemara in Eruchin 7a regarding a woman who is liable for capital punishment. The mishna there states, that we do not wait for her to give birth in order to carry out the execution. However, once she goes into labor, we wait for the delivery, save the child, and then execute the mother.

The gemara there says as follows (my translation):

"It is simple [of course we don't wait for the delivery]! It is [a part of] her body!

"We do need to state this, because I might have thought that since the Torah gives the father the right to collect DMV (see previous post) the child is the property of the husband, and therefore we should not make him lose his property, so [this mishna] teaches us [that she gets executed anyway]

"so let us say that this is so! [that we shouldn't execute her because the fetus is the property of the husband]"

"Says Rabbi Abahu in the name of Rabbi Yochanan, the pasuk teaches us "and thus they both shall die" to include the execution of the fetus as well."

The Ohr Sameach in the "Miluim" section of his peirush on the Rambam Hilchot Chovel U'Mazzik 4:2 gives a classic explanation of this gemara which is very important to our analysis.

Recall the machloket which we discussed in the previous post between the Rambam and the Rosh regarding what happens when a pregnant woman is struck, causing an abortion, after the husband has already died. The Rambam held that the mother inherits the right to collect DMV, and the Rosh held that the mother never inherits this right. The Ohr Sameach in a brilliant analysis of this gemara explains as follows:

When Rabbi Abahu said that the Torah explicitly teaches us that we execute the woman even though she is still pregnant, there are two ways this can be understood. The first way to understand it is that the Torah is teaching us, that despite the fact that the fetus belongs to the father, we nonetheless still execute the woman, and thus cause him to lose his property. Alternatively, we can understand the gemara that to the contrary, the Torah is teaching us that although one might have thought that the fetus is the property of the father, in actuality that is not true, and therefore we execute the mother because the fetus is not the property of the father at all.

According to the Rambam, a woman inherits the rights to collect DMV upon the death of her husband. We explained before in the previous post, that this means that the fetus is not the actual property of the father at all, because of it was his property, then the woman would not be the appropriate heir. Rather, it is a chiddush, a "novelty" that the Torah gives the father these rights despite the fact that he has no monetary ownership over the fetus. So the Rambanm would learn this gemara according to the second explanation above, taht Rabbi Abahu is learning from the pasuk that despite what you might think, the fetus is not actually his property at all.

However the Rosh held that the woman does not inherit this right to collect the DMV. He must learn the gemara like our first explanation, i.e. that rabbi Abahu is teaching us from the pasuk that despite the fact that the fetus is his property, we still execute the pregnant mother before allowing for the birth of the baby. Since the fetus is his property, the mother does not inherit that right to collect when he dies.

So according to the Ohr Sameach, we have a machloket rishonim whether or not the fetus is property of the father or not. If we should pasken like the Rosh, then one who does an abortion without the permission of the father would be in a sense stealing from him, and probably transgress the prohibition of gezeilah. However, according to the Rambam, the prohibition of gezeilah would not apply here at all, because the fetus is not his property.

There are no major poskim among the rishonim or acharonim who explicitly explain that the issur of abortion is the issur of gezeilah from the father, however, we can at least add this reason to our list, as according to the Ohr Sameakh, the Rosh would hold that it is gezeilah from the father. Of course we must add though, that the issur of gezeilah obviously will disappear if the father gives his permission. Furthermore, it would follow that he could give that right to the mother of the fetus, as it is after all his property. One also might suggest, that since DMV is generally classified as a Knas (a fine) and nowadays we do not collect knasot (fines) it is altogether possible that we would not consider the fetus to be his property, because he could never collect the knas anyway, but this is beyond the scope of our blog discussion.

The Ohr sameakh himself takes this a step further.  According to those who hold that the fetus is the property of the father, one might be tempted to conclude that a woman who aborts a fetus without the permission of her husband would be obligated to pay her husband DMV.  But the Ohr sameakh says, "veZeh Lo Shamanu" (We have never heard of such a thing!).  He is unwilling to accept such a preposterous conclusion.  So in order to get around this he explains, that even if we assume according to the Rosh that the fetus is the property of the father, this only becomes so at the time of the wound.  Prior to the wound inflicted by the other party, even the Rosh would agree that the fetus is a limb of the mother, not the property of the father. So it is still a special chiddush (novelty) that the Torah is introducing here, that although the fetus is really a part of the mother, as soon as someone else wounds the mother and causes an abortion, at that time the Torah gives him the fetus as property and allows him to collect.  Therefore, the Ohr sameakh says, that if the woman herself decides to abort the fetus, it is not considered the husband's property at all, and in his words, "kegufah dami, vehein (the DMV) shel atzmah" (it is part of her body and the rights are hers). So even according to the Ohr sameakh according to the Rosh, she would be allowed to make this decision herself. 

The second person we may be stealing from is the pregnant mother. While we reviewed many sources in our previous posts that suggested that there is an issur (prohibition) of chavallah (wounding) the pregnant woman when one causes an abortion, I have not found any source for the contention that one would be transgressing the issur of gezeilah (stealing). If you consider our discussion that we just had regarding the fetus as property of the father, you can see that the meforshim didn't even look at this possibility. Possibly that would be due to the concept of "mah shekantah Ishah Kantah baalah" (a woman's possessions belong to her husband).

An interesting question would be regarding a single woman who is pregnant (which is often the case nowadays when someone is seeking an abortion). I am not sure about this, but it may be dependent on the machloket between the Rosh and the Rambam regarding a woman after the death of the husband. I don't know exactly what the Rosh would hold in this case. But again this makes for fascinating "lomdishe" speculation, it is beyond the scope of this blog.

But now let us move on to the fetus. Is it possible to steal from the fetus? If so, is there a potential prohibition of stealing from the fetus if one causes the fetus to die? After all, isn't life itself our most precious possession? Hang in there, because that will be our next discussion.

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