In a previous post, we described the opinion of the Chavos Yair that the prohibition of abortion is due to the issur of hotza’at zerah levatalah (HZL), or “wasting seed”. We also hinted at a fundamental issue with the prohibition of HZL that is heavily discussed by the acharonim that we will further elaborate today, in order to better understand the famous opinion of Rav Yaakov Emden. This will be the next deRabbanan possibility on our growing list of proposed reasons for the abortion prohibition.
The origins of the HZL prohibition (the HZLP) are shrouded in mystery, and in this way it is similar to the abortion issue. I hope one day to devote an entire blog thread to this topic, but that will have to wait for another day. For now, just in order to develop our understanding of the abortion prohibition, let me describe one of the primary dilemmas associated with the HZLP.
The HZLP also has no specific pasuk (verse) in the Torah that prohibits masturbation. The closest thing in the Torah is the story of Onan, who in Bereishit 38 was killed by God because he “spilled his seed upon the ground”, rather than father children with Tamar. However, from the Torah itself it is very unclear exactly why God killed Onan, was it because of his selfishness at not wanting to carry on his brother’s name? Was it the fact that he was trying to not fulfill the mitzvah of having children? Or was it because masturbation is liable for the death penalty by God?
Rabbi Yochanan, quoted in Masseches Nidah 13a proves from the story of Onan that one who masturbates is liable for death from God (as opposed to punishment by an earthly court). So according to Rabbi Yochanan, it is the act of masturbation that caused the death of Onan, not one of the other concerns mentioned above.
Now the poskim discuss the nature of this issue, what exactly is involved in this sin? Is it the act of masturbation – meaning the act of arousing oneself (“girui yetzer harah” in the parlance of the poskim) and doing this act? Or is there some problem with the “waste” of spilling seed upon the ground? The conceptual difference between these two approaches is great. If one looks at it as a problem with the act, then it is by nature a sin of misplaced sexuality, similar to inappropriate sexual relations. However, if one looks at the problem from the perspective of “wasting seed”, then it is primarily a sin of waste and purposeless destruction.
There is much to be said on this topic itself, bli neder I will cover it sometime in the future in detail. However, let us concentrate on our problem here, the abortion prohibition.
The Chavos Yair, when he stated that the sin of abortion is due to the HZLP, he clearly understood the sin as one of waste. Therefore if it applies to semen, how much more so should it apply to a fetus! This is a logical conclusion of one takes this approach. However, Rav Y Emden has a different take on the issue, which I am about to explain.
There are two more important points I must make before we analyze Rav Y Emden’s teshuva.
We also alluded in the same post to a fundamental argument regarding the very nature of the HZLP. We mentioned that there is a fundamental debate amongst the rishonim whether it is a Torah prohibition, or a rabbinic decree. Once again, this is not the place for an extensive review of the rishonim on the topic, but keep in mind that such a debate exists. Recall also that the pasuk never explicitly prohibits HZL, which is part of the reason why this debate exists.
Lastly, I must mention the incredible amount of extra-halachic, kabbalistic literature on the severity of the sin of HZL. The Zohar in numerous places, and the writings of the Arizal, and the Chassidic writings abound with an incredible amount of references regarding HZL and the harm that it does to the soul. This literature had a huge influence on the thinking of the later poskim when they discussed this matter, and even the most “rationalist” non-mystical halachic authorities often quote the Zohar when discussing HZL.
Now we can go on to talk about Rav Y. Emden’s opinion. Rav Emden’s opinion is often mentioned when talks or articles are presented on the subject of abortions in Jewish law. He is often quoted for his bold assertion that in cases of adultery, a mamzer (bastard) may be aborted. In Sheelas Yaavetz Teshuvah 43, Rav Emden was asked the same question that was posed to the Chavos Yair regarding a married woman who got pregnant from an adulterous affair, and she asked the Rav if she is allowed to abort the fetus. Rav Emden begins with an analysis of the issue in a very different way than the Chavos Yair. He takes the basic approach that technically, this woman is liable for the death penalty. Therefore, as the fetus is part of the mother, than as long as she is still pregnant, one may abort the fetus as the fetus halachically is also liable for death. There are numerous issues with this opinion that I will not go into here that the later poskim have dealt with, and this is the famous part of the Teshuvah.
As happens often, the really interesting part of the Teshuva is the less famous part, and that is the second half of the teshuva where he discusses what prohibitions are involved in aborting a fetus that is not chayav missah (liable for the death penalty). What if an unmarried woman were to desire an abortion? In this type of case, R’ Emden mentions the reasoning of the Chavos yair, that it should be prohibited due to HZL. However, Rav Emden wipes this aside, by claiming as follows (my own translation):
“regarding that which the Rav (the Chavos Yair) busied himself in his responsa as he tried to explain why it should be prohibited by deriving it from the prohibition of HZL, one can refute this claim as one can say that this is not the reason for this sin (i.e. the reason for the sin is not because of “wasted seed”)! Rather, the reason for the sin is because he is pouring his energy into the “refuse heap” (me’areh le’ashpah) and he is adding to the powers of contamination and weakening the forces of the heavenly hosts, as we know the reasons from the sages of truth (chachmei emes – a reference to the kabbalistic scholars), against our will, we have no choice but to look to their guidance in this issue (because there is no clear Torah source for the nature of the prohibition), you should know, that there are three [categories of] women that are allowed to use a mokh for intercourse (barrier contraception), and there is no prohibition to marry them even though one is wasting his seed! (for they cannot get pregnant), therefore certainly (“vadai”) it is not considered HZL unless he is “pouring his energy into the refuse heap” and for the reason described above, even though his seed [is being emitted] and cannot produce a child [he is still not committing the sin of HZL]. Therefore, by a fetus, since he is not yet a child, and it is even a doubt if he will ever become a child, our doubt regarding its permissibility remains (because we have rejected the reason of the Chavos Yair who prohibited the abortion).and even by a “kosher” (non-mamzer) child there is reason to be lenient if there is great need, as long as she is not yet in labor, Even if there is no risk to the mother’s life, even if only to save her from great discomfort.
RYE continues to emphasize that it is still prohibited to do for no reason because of waste, but letzorekh mitzvah (to fulfill a mitzvah) or for great discomfort he is willing to consider permitting an abortion.
The words of RYE leave us wondering a bit. On the one hand, he establishes that the prohibition of HZL has nothing to do with “wasting seed” but rather it is because of all the terrible things one is doing when he masturbates. This is clearly an endorsement of the point of view that the problem with masturbation is not because of waste, but rather it is because of the sin of misplaced sexuality. Witness his proof from the fact that one may have intercourse with his wife, even if she is using contraception. But then he does a bit of an about-face! He tells us that HZL does not apply to our scenario of abortion, but then tells us that one is still not allowed to do it unless there is great need, because of the problem of HZL! What is going on? Is it or isn’t it HZL?
I believe that the answer is quite simple. RYE held that the HZLP has two components. The first is the component of misplaced sexuality. This is the primary reason for the prohibition, and this he held was a Torah prohibition, the origin being the story of Onan. The primary focus of the kabbalists as well were on this issue. However, there is also an issur de’rabbanan of HZL that is related to the problem of waste as well. This is why he is willing to allow a transgression of the issur derabbanan in times of tzorekh gadol (great need) or letzorekh mitzvah (the needs of fulfilling a mitzvah). This would make sense in the context of an issur derabbanan. (Most likely, the logic behind this is that if it is for the mother’s benefit, it would no longer be considered a waste).
This is the way I understand the opinion of RYE. I must add here, that even if you disagree with my assertion that RYE held that HZL had a De’oraytah aspect and a de’rabbanan aspect, one must still acknowledge as follows:
1) That RYE held that had there been an aspect of misplaced sexuality sin involved in abortions, he would have prohibited abortions even when it is to benefit the great need of the mother. (Recall that he needed to dispel that reason before he was able to proceed with his claim that abortions can be allowed for such reasons)
2) that RYE still held that abortions should be prohibited because you are destroying or wasting the fetus, which he still derives from the HZL prohibition (HZLP)
3) that even though they are prohibited due to the “waste” aspect of HZL, he is willing to permit an abortion for the benefit of the mother in cases of need
I believe that my understanding is correct, but I am willing to hear other explanations. For now, we can finish this post with opinion # 11, that of the RYE. In summary, here it is:
11. According to RYE, abortions are prohibited because of waste, which is a rabbinic aspect of the HZL prohibition; therefore they can be performed in circumstances of great need. If the child is illegitimate from a relationship that would incur the death penalty, the RYE would allow it outright.