Sunday, March 6, 2011

A Halachic Rationalist Approach to Abortion

Today’s post is a result of years of research and reading, a career full of practical experience, pondering the three thoughts that I told you to ponder at the end of my last post, and applying the five principles of rationalist medical halacha. In this post I hope to wrap up this issue, and I beg you to patiently read it through until the end before you form your opinion about it.  I truly hope, that after you read this blog series, and after you read this post, you will have a well-founded and comprehensive Torah approach to this difficult subject that you can take with you for life.
Let me start by telling you just a little bit about what we know about the development of a fetus from conception until birth.  This will be the fastest and briefest course in embryology that you will ever have, so listen carefully, and hold on to your seats.
After fertilization occurs of the ova (egg) with the sperm, there is one single microscopic cell with the entire DNA in it for a future human being. However, it is still only one single tiny cell.  It begins to divide and divide rapidly into thousands, then tens of thousands, then millions of cells, and it implants into the wall of the uterus somewhere around 5-7 days after fertilization.  It continues to grow and grow, and by around 6-7 weeks or so from the beginning of the last menstrual period (LMP), anyone that knows how to use an ultrasound machine can see a heartbeat, but still no limbs or anything resembling a human being.  This roughly corresponds to the time that Chazal call “arbaim yom” (recall that Chazal date a pregnancy from conception, while modern doctors date from the LMP, so 40 + 14 days = 54 days or somewhere close to 6-7 weeks). 
During the next 6-8 weeks or until around 12-14 weeks since the LMP the organ systems and limbs begin to develop. By the time a fetus reaches 12-14 weeks, anyone can easily see limbs and organs that resemble a human being.  This roughly corresponds to the time that Chazal call “Hukar Ubbarah” or what laypeople call “three months”.  By this time, most women cannot fit into their normal clothing, and they are already looking for clothing that will fit, and their friends are asking, “are you pregnant?”  This is also the end of what doctors call “the first trimester”.
The next period, from 14 weeks until around 22-24 weeks, is the “second trimester”.  During this time, the organs are maturing and growing, but if the baby is delivered now, there is no chance of survival at all.  By the end of this period, almost all women are feeling the movement of the baby, though some feel it as early as 16 weeks, and some don’t until as late as 22 weeks.  So the end of the second trimester roughly corresponds with the period Chazal called “Hargashat tenuah” or “feeling movement”.
I am not aware of any other writer who has made these connections, so I stake my claim to originality on this point.  But at this point things become much more complicated for Chazal.  Until this point, there is every reason to assume that Chazal understood these stages of development.  I say this for the following simple reasons:
1.       The period of arbaim yom, which Chazal called “mayim be’alma” or “just like water” was clearly understood by Chazal to be the time of earliest likelihood of miscarriage.  Surely there is every reason to assume that Chazal and people of antiquity knew that very often a woman would be late for a period, and then have a heavy period several weeks later resulting in a loss of the pregnancy.  It is obvious from the gemara in Yevamot that this was the case.  People in those days would have noticed that all they saw were some formless and shapeless clumps of tissue, which gave rise to the term “just like water”.
2.       The period of Hukkar Ubbarah, is also obvious. By definition, when a woman’s belly was recognizably growing the famous “baby bump”, clearly it does not take millions of dollars in modern hi tech science to tell you that she has reached a new stage in pregnancy.
3.       The period of hargashat tenuah, likewise was a stage that was well known without science, for obvious reasons.  It is clear from the ancient literature, that the arrival of this time was a great reassurance that the pregnancy was going well.
However, once we get beyond that, it is very difficult to calculate any longer exactly when the baby is mature enough to survive.  When does the “kalu Lo chadashav” (KLC) stage happen?  This was something that was a great conundrum in Chazal’s time.  Over and over again throughout the Halachic literature this mystery is pronounced.  The best evidence they had throughout history was in retrospect.  So once a woman is in labor, then it must be that she has reached that stage! Because “Rov nashim Meyaldot B’nai Kayama!” (“most women deliver healthy (full term) babies”).  So the best evidence that KLC was reached was when it was ne’ekar letzeit (NLT).  This works with natural processes, but what about when an abortion is caused in an unnatural way? How can we know if it was KLC?  The bottom line is that this could not possibly be known until modern technology came along and gave us those answers.
In contemporary times, once a fetus reaches past the 22-24 week stage, the baby will usually survive with proper care, though with many difficulties along the way. A baby is considered “full term” if he/she is born after 37 weeks, but 40 weeks is considered a woman’s natural due date. It should be obvious though, that before the days of neonatal intensive care units, modern medications, and incubators, that any baby born between 24 weeks and 37 weeks was preterm, and very likely would not make it and survive.  Maybe 35-37 weeks some might have made it, but earlier then that it is hard to imagine it possible.  That is what a nefel was, a preterm baby that may or may not make it.
This situation remained virtually the same throughout the ages, all the way from the time of the gemara until the twentieth century.  The obstetric knowledge of the Chavos Yair, was not very different from the obstetric knowledge of Rabbi Yishmael.
If we rethink all of the poskim that we have learned in this light, a few things become obvious.  If something does not look like a human being, it is not a baby and there are grounds to be more lenient.  Anyone that has learned even three lines of Massechet Niddah would know this intuitively.  In the time of Chazal, in order to determine whether or not something had the halacha of a baby, they looked at the tissue and decided, “does it have the form and shape of a baby or not?”  This is the origin of the mayim be’alma statement.  See the entire third chapter of Massechet Niddah for more details.  The gemara there discusses scores of cases of women passing tissue of all sorts, which is almost all undoubtedly early first trimester miscarriages.  Chazal invariably held that if there was no human form, it was not considered a birth, and if there was a human form, it was considered a birth. In numerous places in Massechet Niddah, Chazal even assumed that tissue that had an appearance somehwat animal-like, was thus not human, and therefore not a birth.  It is almost certain that they were looking at miscarried tissue in many cases, or fetuses that aborted early due to severe congenital anomalies.
It is almost inconceivable that Chazal would have applied the concept of murder to something that they Halachically did not even consider to be a human birth.  I would even submit that it is very possible that Chazal wouldn’t even have given such a fetus the halacha of an Ubbar.  I mean to say that even a gentile according to Rabbi Yishmael would be permitted to abort such a fetus.  Simply because Chazal didn’t believe that it was considered human yet, so it would not fulfill the pasuk of “shofekh dam ha’adam ba’adam”.
This is the Common Sense Principle in action. Common sense would dictate that something that isn’t even human according to Chazal, cannot possibly be considered murder.  Common sense would dictate that tissue without a brain, limbs, or organs (at least until 6 weeks or so) could not possibly be subject to the restrictions of murder.
On the “flip side”, the overwhelming majority of the poskim were more stringent once we got to the point of KLC (full maturity and able to survive on its own).  Many were more stringent only at the point of NLT (onset of labor), but only because many of them assumed that NLT was the only time we could be at least reasonably certain that KLC had been reached.  If these poskim had known that the baby was fully developed and formed and could survive outside the mother, it is almost inconceivable that they would not have applied the concept of Avizrayhu de’retzichah or maybe even full-fledged murder.
I can’t imagine that even the most lenient poskim, would have allowed abortion at this late stage, had they known that there was a fully developed baby with ability to survive outside the womb.  It is hard to imagine the Rishonim saying “Ubbar Yerekh Imo” (the baby is just a limb of the mother) of the baby is capable of surviving without the mother.  Even the Radvaz, who famously stated that “even though the baby is moving it is no better than the wiggling of the tail of a lizard” and therefore not murder at all, I submit that he almost certainly never would have allowed an abortion had he known that we could prove that the baby was well developed enough to survive on its own.
This is the application of the Halacha is Moral principal in action.  A basic sense of morality would dictate that after 24 weeks, when the baby can survive, that abortions should be at least close to murder and should be forbidden.
But what about the time in between these two periods? What about the time when the baby looks like a little human being, but is incapable of surviving on his/her own? Herein lies the “Nekudat Ha’Machloket”.  The Nekudat Ha’Machloket refers to the middle ground where the debate is occurring.  The extremes we all agree to, but here in the middle the debate continues to rage.
During this stage of pregnancy there is definitely, at least at some level, a human being inside its' mother. This would seem true even though he/she is totally dependent upon his/her mother for survival.
Is it like murder because it seems to be a small human being? Or is it not murder, because it is
totally dependent on the mother and therefore just like a limb of the mother?  We look over all these opinions, but we still must decide;  is there a general consensus on what is and isn’t permitted?  Are there guidelines that we can give to the general public?  How do we proceed?  What can we glean from our entire discussion that has practical value to the general public? What can we learn from everything we have spent the last few months discussing that can be understood by this conflicted and desperate young religious Jewish woman who is sitting before us and asking “what does the Torah tell me to do?”
So we just spent several months together looking at the sources, and what have we seen?  What have we learned?  We delved into the Halachic process, we studied the Torah, and have we found anything to help us?
Yes. The answer is yes. We have found a lot that can help us, but we haven’t found a simple yes or no answer to our question.
We found out that throughout the centuries hundreds of rabbis were consulted by women going through all sorts of terrible personal dilemmas.  We found that each received an answer from her rabbi that was appropriate for her time and place.  We found that hundreds of rabbis looked at abortions from different angles and came up with different conclusions based on their perspective, and based on what made sense to them.  We found that throughout history, attitudes changed among the rabbis, so that their advice and guidance changed as well.  Some rabbis were ready to permit abortions for single girls due to their shame and embarrassment, some were ready to permit abortions for married women that became pregnant in adulterous affairs, we found that some were willing to permit abortions out of concern for the welfare of the other children that the woman was trying to nurse.
We also found rabbis who were concerned about promiscuity, rabbis who were concerned about the future of the Jewish people, and those who were concerned about the value of life and the incredible waste of life that an abortion could represent.  We found Rabbis who were concerned about the moral standing of Judaism vis a vis the outside world, and Rabbis who were concerned for the health and welfare of the fetus and the woman involved.
The sum total of everything that we have found, is that the Torah does have guidance for this young women who has asked for advice from her religion, and seeks the guidance of God.  This is the guidance she deserves, and this is what she needs to hear from her rabbi, mother, friend, sister, teacher, or whomever she seeks out to get counsel and support:
“There is a little baby developing inside you.  This baby is a future human being, a future Jewish young man or young woman.  The overwhelming majority of poskim believe that in cases of extreme need for the mother, an abortion can be performed.  The level of what is considered “extreme need” is unclear and subject to much debate.  There is no yes or no answer.  You are the only person who knows yourself and your needs.  I cannot tell you how much pain you are in, I cannot tell you how much suffering you are enduring.  No Rav, no doctor, no person has ever been able to divine just how much pain someone else is in. There has not yet been invented a “painometer” to measure objectively what level of suffering you have.”
“I am just a Rabbi, I am just your mother/father, I am just your friend, I am just your fellow Jew, or I am just your teacher.  I am not you.  You must understand the incredible value of this future life inside you, and understand that some poskim even consider it close to murder to terminate this pregnancy. You need to seriously evaluate with mature and competent advisors who you trust what kind of discomfort and pain you would be in if you chose to keep this baby vs. abort this pregnancy.  You must speak with advisors who value life, who value Jewish life, and those who appreciate and understand your suffering and your unique perspective. If you determine that your pain and suffering would be so great that it is justifiable to terminate the pregnancy, and this is an honest and true assessment, then there is Halachic basis and support for your decision.”
Let us look at the following story. A man comes to his rabbi on Yom Kippur afternoon, to ask a question as follows, “I feel sick today, and I would like to eat something. I think my life is in danger if I don’t eat something. As you know I have diabetes, and I just don’t feel right.”   The man doesn’t appear to be so ill, so the rabbi tells him, why don’t you speak to Dr. Goldberg who is sitting right there in the third row.  Dr. Goldberg, who is Chief of the Endocrinolgy Department at the University of Anytown, and he is well qualified to determine if indeed this is life threatening.
The man goes over to Dr. Goldberg, who pulls out his handy glucometer (a device which checks levels of blood sugar) and checks his glucose.  Dr Goldberg reads the results, and discusses with the man his history and what medications he is on etc…  Based on the results and all of the information, Dr. Goldberg tells the man that he does not feel he is in any imminent danger, and therefore he can complete the fast.  The man then goes back to the rabbi with Dr. Goldberg’s answer, and he is not satisfied. 
“I feel like I need to eat or I will be in danger!” 
“But Dr. Goldberg has just reassured you that you will be fine, and halachically, you really may not eat unless your life is threatened!”
“I don’t care what Dr. Goldberg says, I know my own body, and I need to eat!”
What should the Rabbi’s response be to this man? Should he throw him out of shul for being insolent and trying to disobey halacha? Should he try to convince him some more to last without eating until the end of the day? Or should he tell the man, “If you feel that your life is truly threatened, and you truly understand the importance of Yom Kippur, then go ahead and eat”
The Halacha is clear on this question.  As the pasuk in Mishlei (Proverbs) 14:10 says, “a [person’s] heart knows the bitterness of his soul”. The Gemara in Yoma 83a quotes this verse and concludes with the definitive Halacha regarding our question (my own translation):
“If a person says, “I need to eat” then all the experts are as if they do not exist, and we therefore give him to eat…”
Only the woman herself in our case knows how much pain she is in.  How can anyone else decide for her what kind of suffering she is having?  How can we judge her motives if we cannot possibly put ourselves into her shoes?  Only she has the right to decide what is considered a great need that would warrant an abortion.
If this is true about a clear Issur De’Oraytah like eating on Yom Kippur, how much more so should it be true when it comes to something like abortion.  As we’ve seen, numerous poskim hold that abortion is an issur derabbanan. Even of those who held it was a De’Oraytah, the overwhelming majority of those poskim hold that it is a De’Oraytah due to other prohibitions such as Chavallah (wounding), wasting seed, stealing, and so on.  All of these as we’ve seen during our discussion can be permitted in cases of great need.  The only person who knows what she is going through is the woman herself. As King Solomon taught us, only within a person’s heart can her suffering truly be known.
That is what we can say to her, that is sound Torah based advice, and that is the truth.  If you read the entire blog until this point, you will see that it is consistent with the sum total of what we learned about abortions in Halacha.  That is what the Torah teaches, and this is how the Torah can give her guidance.  That is the role of the Rabbi, to teach what the Torah teaches, not to teach what he thinks someone else’s pain is like.  Only a prophet with a direct line to God Himself can tell someone else what they are thinking and feeling, and no such people exist today.  If it sounds like Judaism is “pro-choice”, then maybe Judaism is.

27 comments:

  1. Your thinking is so convoluted and flawed I hardly know where to begin.

    Taking your fallacious argument based on "greater need," let's take it to its logical end regarding your conversation "is it murder or is it not murder?." At best, we can say there is sufficient debate about the status of the fetus regarding whether it is life or not (not according to genetics, embryology, or neurology of course, just your twisted interpretation of halacha). Question: is there any "greater need" to err on the side of life? For example, if someone wants to demolish a building to build a hospital but the contractor forgot to check if someone was inside beforehand, should they nonetheless be allowed to demolish the building because they have a "need" to meet the deadline so a hospital can be built? Or is there a need to recognize that life is inherently valuable and holy in the eyes of Hashem and the death of the innocence wrong in the eyes of Hashem.

    Even looking at what you would tell a women facing such a choice, how do you think such statements would affect her in the future? At this moment, she may decide her pain justifies her abortion and she goes through with it. But a year later, she remembers what you said that she about the "incredible value of the future life inside her." Suddenly, this women's suffering has multiplied as she realizes she lost her child, and her pain is much worse than it was before.

    This scenario is not so uncommon. In fact many women suffer PTSD even without your little speech. And it can be months or years later. But I guess you do not see any greater need to reduce suffering, only your short term definition of it.

    Further, it is self contradictory to preach about the value of human life, yet have no safeguards or laws in place to protect it.

    As for your story about the man with diabetes who we make an exception for, it is a distraction from the larger issue at hand and inapplicable to this case. Wouldn't you say that the possible termination of a human life is a much greater concern than someone breaking fast on Yom Kipur? Or is human life valuable when it is most convenient?

    Another thing, your argument regarding how "only a women can know how much pain she is in," if applied across the board would be able to justify countless crime and violence.

    So congratulations. You wasted three years of your life to come to an opinion that is rejected by mainstream Orthodox Judaism. Luckily, the Torah does not tell us to ignore science or the halachic traditions that MAKE CLEAR that human life is objectively sacred and that is not suddenly made subjective at the whims of human need.

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  2. A comment on above comment:

    Although the Rational Medical Halacha Author is not 100% clear on the subject, it's my impression that when he speaks of allowing the woman to choose abortion based on her own needs, he refers to the pre-24-week milestone.

    If that's true, then all the RMH author is saying is that we allow her to rely upon a known hetter.

    The example you give as regards to destroying a building that might have people inside is not parallel, as no known shitta permits this.

    OTH, I ask that the RMH please clarify whether his hetter applies to just the first 24 weeks or whether it would apply to an even a later stage.

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  3. Aside from the fact you completely ignored all my other points, the parrelel doesn't hold for you because you, like RMH, think the developing fetus isn't a human being and therefore don't see an issue of erring on the side of life. Rather than see the situation for what it is (that there is doubt regarding how the legal status of the embryo at different points of human development), he attempts to justify abortion using these understandings. Even with such understandings, it is quite a stretch to draw from this that the developing human completely loses its protections, that we do no have obligations to conduct ourselves accordance with Hashem, and that the mother isn't held responsible to her child, husband, society, etc.

    Further, with the advents of modern science, the discussion of the status of the embryo should continue to evolve as we can look towards embryology, genetics, neurology, etc. for new answers rather than close discussion off completely.

    Further, there is the arguement that abortion is akin to murder and Jewish scholars and mainstream orthodoxy hold this view (meaning it not a capital offense, but nonetheless prohibited) - see Noahide Laws.

    But see, you are so hung up on this status issue, like RMH, that you forget that the issue of abortion violates much more basic principles of Torah than you care to admit.

    Also, why is it appropriate for RMH to make a comparison between the "potential" destruction of a human child and fasting on Yom Kipur? It is really just because you, like RMH, are finding a way to rationalize your position.

    You have failed to recognize something that the Torah and even the Torah clearly recognize. There is a distinction to be made between certain extenuating circumstance like threat to the mother's life and miscarriage and the INTENTIONAL destruction of life, regardless of what such intentions might be. It violates the most basic principles of pru u'rvu and the killing of part of a bloodline.

    Clearly, RMH recognizes prohibitions against wounding oneself, stealing, wasting seed, etc. Yet he makes a stretch from halacha into his own interpretation of what is greater need, which is where my concern arises.

    So how about I give another analogy? Let's say a man cuts himself to relieve his pain because he is under emotional distress. The only person that knows what he is going through is that man himself. He may in fact have some greater need to self-mutilate.
    At what point do you want to stop? Should people simply have total autonomy over their bodies and not be held responsible to the rules of society? Do our obligations to Hashem and our fellow man cease to exist because of internal reasons like emotional pain? In that case, who are you to tell someone not to get a tattoo or not to masturbate if it helps them cope with peer pressure and lack of self esteem. You do not know there pain. What would be your basis for saying they don't have a greater need?

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  4. The problem is RMH sees pregnancy as a burden rather than a gift from Hashem. It is from this basis that RMH goes on to claim that pregnancy and the decisions associated with it are inherently painful decision. Biblical and rabbinic teachings clearly show, however, that pregnancy and the reproduction of life are beautiful and a source of joy for the family and community. So to preach a view of greater need in face of such communal and family obligations in antithetical to basic Jewish teaching.

    Abortion is not an answer for a woman in distress and not the answer to psychological pain. To claim so is extremely short sighted and shameful as it shows a complete unwillingness for the community to take responsibility for those in need. In fact, there are many cases of woman who later suffer PTSD and depression as a result of abortion.

    We as a community are be obligated to help such a woman through financial and moral support, pre natal care, etc. This should be the message of Orthodoxy and I commend the Chief Rabbinate of Israel for wanting to get much more serious in regards to this issue of life.

    I'd also like to refer you to someone like Rabbi Levin, a great defender of human life.

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  5. SD,

    The only reason the parrell doesn't work for you is because you, like RMH, agree that the fetus isn't a human life and therefore there is no issue of needing to err on the side of life. Though I am curious how you are morally OK with comparing the destruction of a "potential" life with not fasting on Yom Kipur.

    There are concerns regarding legal status of the fetus, but these are conversations that should be allowed to evolve as medical knowledge advances in the areas of embryology, neurology, genetics, etc.

    Further, it doesn't follow from disagreements regarding status that abortion suddenly becomes permissible. It simply allows us to consider abortion in certain extenuating circumstances like the life of the mother being at stake. But even then, we are only allowed to excise the offending limb, and our intent cannot be to destroy the fetus but rather to save the mother.

    It is for this reason that the rabbis have traditionally held that abortion is akin to murder but not a capital offense. The INTENTIONAL destruction of life is completely impermissible as it violates God's natural law, the fundamental mitzvah of pru u'vu, destruction of a bloodline, the other reasons RMH dismisses, and even the halachic understanding of when it is permissible to abort a fetus. Not to mention a mother still has obligations to her child, her husband, her family, her community, and herself.

    Also, I think it is dangerous the way "greater need" is being used as to justify complete bodily autonomy. If a man is under great emotional distress, we still do not permit him to cut his skin to relieve his pain even if he did it in an area that would not necessarily kill him. We do not let teenagers binge drink as a way to cope with the psychological pain, depression, or peer pressures.

    The point being, bodily autonomy is not absolute according to the Jewish view and not suspended because of some subjective term like "greater need." But more so is this the case when a potential human life is at stake, in which case we are to do everything we can as a community to ensure that life is carried to term.

    If raising the next generation and the preservation of the nuclear family are central tenets of Judaism, I do not see how it is permissible to allow the process and development of life to be subjected to an subjective notion of need. I think such a view ignores not only woman's obligations, but society's and families' obligations to woman and their developing child. Nor do I think it is conducive in fostering a society that values life to permit abortion to be permitted on demand. There needs to be strict guidelines, each case is to be evaluated, and society has to take a greater role and interest. Pushing the decision completely upon the shoulders of woman and doing nothing to ensure that there are conditions in place to assist her in a time in need is harmful to women, multiplies pain and suffering, and devalues life.

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  6. To Anon:
    I never said that I agreed with RMH's position.

    All I said was that the building case is not a parallel because (like it or not) there is an existing hetter for early stage abortion, but no similar hetter for destroying the building.

    Therefore, in my opinion, RMH is not "inventing" new halacha when offering that option to a mother in distress.

    I understand why you would find that hetter morally objectionable and in conflict with what you see as psychologically healthy and socially responsible. However, the Hetter is there and within a halchic system, one's halachic advisor is not supposed to take off the table legitimate hetterim from legitimate poskim, even where the advisor would never use that hetter himself.

    It seems to me that your real argument is not with RMH, but with the poskim who permit early stage abortion in situations of great psychological distress to the mother.

    It sees to me that you are confusing their rationale with secular positions that permit abortion as an expression of women's autonomy over their own bodies.

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  7. "It sees to me that you are confusing their rationale with secular positions that permit abortion as an expression of women's autonomy over their own bodies."

    No, but this is what abortion on demand leads to, regardless of how it is initially framed.

    And while there may be a hetter, nowhere is it states that such an action is to be completely unregulated nor does it make sense to listen to one precedent and ignore all the other rabbis who would of prohibited abortion in the early stages. The middle ground isn't pushing the entire decision onto the shoulders of the mother and ignoring the other opinions that were already presented. Rather, it is to take all the arguments and find some sort of reconciliation. So rather than on demand, it should be a decision that should regulated and facilitated by some form of authority. And also, studies have shown that some of the LT effects that can be profound and we ought to be especially sensitive in this case where we as a society are to value life.

    And my argument is with the RMH, because he is presenting a false middle ground and a position that on its face seems empathetic, but stands to have the exact opposite effect of what it is intended to do. Just because he advocates for abortion to be on demand in nicer terms doesn't make his position, at least in practice, any less harmful from a societal standpoint.

    I'll also admit I am looking at this in terms of real world application a bit. The idea of "discouraging the activity" has failed completely because there haven't done enough to put the necessary protections in place to assist proper decision making nor has there been the necessary infrastructure or outreach to help pregnant women and their children who are in need. The optinos haven't been there and I feel that RMH is not presenting a comprehensive Jewish based solution. Rather he is just showing a particular response a rabbi could have for a particular situation, ignoring of course the other societal aspects and safeguards that must be in place before such advice can be given in a proper way. But it is hardly a view that takes into account a fuller picture. That is why burdening a mother completely with such a decision does not help her deal with psychological stress (as I mentioned before, abortion has actually has had the opposite effect of relieving such stresses) as it ignores the roots of the issue.

    Also, also realize that we aren't talking about a few extenuating circumstances. The framework for "pyschological distress" is often abused (as seen in Israel) and can create extreme problems in society on such life issues. There needs to be less subjective definitions of that and greater need before we go out and apply it across the board. Even RMH opened this discussion with the Common Sense Principle, which his position in practice violates.

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  8. I have been trying to digest the details of the discussion between anonymous and SD so I can respond to some of the concerns and issues that have been raised. First of all, I can't overstate how grateful I am that both of you followed me through on this discussion and felt it important to comment. Whether you agree or disagree with what i wrote, I am very happy to see that I stimulated a productive discussion. Most importantly, this gives me the opportunity to explain some things that I may not have done well enough in the initial discussion.

    Allow me to pick out a few points that have been raised by "anon" (AN from now on) to respond to.

    I will try to start from the beginning.

    AN writes "Taking your fallacious argument based on "greater need,"

    I didn't use the term "greater need" in my blog. I used the halachic term that the poskim use, which is "great need" or "tzorekh gadol". The definition of tzorekh gadol is something which differs from posek to posek, which I believe was adequately demonstrated in my discussion.

    AN brought an example regarding demolishing a building, which frankly, I do not understand the parallel.

    AN did not like my parrallel to Yom Kippur, which he did not agree with, as he writes, " ... Wouldn't you say that the possible termination of a human life is a much greater concern than someone breaking fast on Yom Kipur?..."

    The Torah, clearly, disagrees with your assertion. The violation of Yom Kippur is an issur Karet, whereas even according to the poskim who hold that abortion is murder, most hold you are not liable for any specific punishment, while some hold that you are liable for Missah b'ydei shamayim - a lesser punishment then karet. Even this, as I demonstrated in my blog, is an extreme minority opinion, many hold that if it is a deoraytah it is not murder but chavallah etc..., and many hold it is a derabbanan. So clearly the overwhelming majority of the poskim disagree with AN's assertion that abortion is worse than eating on Yom Kippur.

    I need to break this comment into several, for the length allowed is limited. To be continued in a moment.

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  9. (Continuation of previous comment)

    AN writes, "Another thing, your argument regarding how "only a women can know how much pain she is in," if applied across the board would be able to justify countless crime and violence"

    This argument does not justify anything other than allowing her to have a halachically sanctioned abortion, which is allowed al pi halachah when there is a tzorekh gadol. I understand that we disagree regarding who should determine what defines tzorekh gadol, which is a legitimate disagreement that we can debate. But to claim that I am allowing her to do anything resembling a crime is false.

    AN writes, "So congratulations. You wasted three years of your life to come to an opinion that is rejected by mainstream Orthodox Judaism"

    I am sorry that you feel that I wasted my time. Obviously, God will be the judge as to what learning is considered a waste of time. If God feels that only learning whose end result leads to agreeing with "mainstream Orthodox Judaism" is worthwhile learning, then I guess I wasted my time. But if God deems it worthy for a person to study, learn and maybe come to conclusions that just might disagree with "mainstream Orthodox Judaism", then my time was well spent. Besides, I am not quite sure how the term "mainstream Orthodox Judaism" is defined. If the sugyos in shas, scores of rishonim, poskim, acharonim, and hundreds of teshuvos that I studied were not mainstream enough for you, well, then, I guess we don't have much more to discuss.

    SD writes "OTH, I ask that the RMH please clarify whether his hetter applies to just the first 24 weeks or whether it would apply to an even a later stage"

    I am sorry for not making this clear. But you absolutely understood me correctly. After 24 weeks (or possibly 22-23 weeks as currently that is the outer edge of viability) I would never permit an abortion. In this sense I made it clear that modern science would force us to be more machmir than many poskim who would have permitted it due to "ubbar yerekh imo" until the onset of labor. This is what I meant when I applied the "halacha is moral" principle in the final post.

    AN writes, "The problem is RMH sees pregnancy as a burden rather than a gift from Hashem"

    My Dear and Holy God, I don't know where AN got this impression from. I beg forgiveness from the Ribbono Shel Olam that someone could have read my words and seen something this terrible in what I have written. I sincerely beg forgiveness from The Holy One above if such thoughts ever occurred to me. If I am being accused of actually believing such things, let it be known, here and now, that nothing could possibly be further from the truth. The devotion and actions of my entire life should stand as testimony before God how much I value every single human being, whether they are standing in front of me, or whether they are a potential life growing within their mother. May my actions stand as testimony against whatever words in my blog may have been misconstrued to give such an impression.

    To be continued...

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  10. (third continuation)

    AN writes "Abortion is not an answer for a woman in distress and not the answer to psychological pain"

    According to hundreds of poskim, many of whom I have quoted in my blog, you are wrong. Sometimes it is the answer. Maybe rarely, but at times it is the answer.

    AN writes, "We as a community are be obligated to help such a woman through financial and moral support, pre natal care, etc"

    Kudos to you. I'm on board. Although I would like to remain anonymous, so I will not share details, be it known to you that much of my professional (and volunteer) career is devoted to just that cause.

    AN writes, "Also, I think it is dangerous the way "greater need" is being used as to justify complete bodily autonomy. If a man is under great emotional distress, we still do not permit him to cut his skin to relieve his pain even if he did it in an area that would not necessarily kill him"

    The term bodily autonomy is not one that I ever used in my blog, and it is borrowed from the secular world. I do not believe in this principle, nor have I advocated this in my blog. I only believe that a person may be allowed to do halachically allowed actions to her body. I never advocated permitting any person to do something to his/her body that is not halachically permitted.

    You are also wrong about your skin cutting analogy. As I quoted in my blog, many poskim, including HaRav Moshe Feinstein, permitted plastic surgery in cases where a person was under duress from her appearance in order to get a shidduch. Obviously, there are varying degrees of duress, and this can be debated back and forth ad infinitum, but the idea that someone in distress may under certain circumstances be allowed to wound themselves is clearly one that has adequate precedent in Halacha.

    SD wrote "I never said that I agreed with RMH's position"

    I am sorry that you may not agree with me, maybe if we talk a little more, you will "come around!" ;-)

    SD writes "It seems to me that your real argument is not with RMH, but with the poskim who permit early stage abortion in situations of great psychological distress to the mother"

    Thank you.

    AN responded "It sees to me that you are confusing their rationale with secular positions that permit abortion as an expression of women's autonomy over their own bodies"

    I absolutely do not agree with the idea that we have "autonomy" over our "own bodies".

    I am looking forward to further discussion about this. Once again, thank you so much for your interest in my blog. If nothing else, God has granted me the privilege of stimulating some Torah discussion, which is the greatest merit a person can desire.

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  11. So with regards to this issue, I we should be able to offer her all the preferable options first (community support, adoption, free testing, consultations, therapy etc.). We need to tell her the seriousness of the offense and the potential life that is at stake. There needs to be some barrier in place to ensure that this woman is in fact an exception faced with some extenuating circumstance and confirm that she is not the general rule.

    So again, I’d like to reiterate that even if we take the Yom Kipur analogy, it seems that abortion is something that ought to be extremely regulated and prohibited, at least in principle.

    My problem comes in how lenient you are in terms of framing the debate. Especially because such framing, in practice, has led to abortion on demand where people see it as an expression of bodily autonomy and choice. You opinion may work in some theoretical sense, but in practice has been impossible to apply because the conditions under which it would hold are not in place to ensure it will.

    I will get to your point on plastic surgery at a later time, because it is very nuanced. I was referring to self-mutilation/cutting, a very serious and tragic addiction that many teenagers face.

    Thank you for your response. And again, I hope you can forgive me.

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  12. First, I would like to say I was wrong to say you wasted your time. One of the most important things we can do is study Torah, and I realize I was too quick to judge in this regard. I clearly misunderstood some of the things you were saying, but this still would not justify me saying you wasted your time. I am sincerely sorry and hope you can find it in your heart to forgive me.

    But I do want to visit your comparison of Yom Kipur to abortion. Again, I don’t think it is perfectly analogous as the circumstances and principles involved have quite different implications, especially if we view the fetus as a life and abortion as a form of murder.

    Fasting on Yom Kipur is mandatory. However, as you mentioned, in certain scenarios it would be plausible for someone to eat given the situation and circumstance. However, we do not base the legality of a ruling on the exception. In fact, the Torah law holds that we are prohibited from fasting and the rabbis further rule that in certain circumstances, we can be lenient in enforcing such a ruling. The rabbi is no less obligated to teach that it is prohibited to eat on Yom Kipur, even if he made an exception for this one diabetic man.

    Yet for abortion, you do not hold to this line of thinking. Rather, you say it is to be permissible to put the decision entirely in the hands of the woman and that she is the only one who can judge. Saying this is a complete misapplication of the principle which I think you advocating. I could be misunderstanding your position again so please clarify if I am.

    Instead, the Rabbi should teach that it is prohibited to have an abortion as a general rule, the same way he would teach it is forbidden to eat on Yom Kipur. Given a specific circumstance, we may make an exception for the women – such as a situation in which her physical well being could be at substantial risk. But this should only be after we have exhausted all our options (as you did in the case of the diabetic man fasting by bringing him first to a doctor before saying it was ok for him to eat nonetheless).

    In this way, the Yom Kipur analogy actually suggests that abortion ought to be highly regulated and discouraged at all costs before we decide to make an exception. Basing the law itself on such an exception, however, seems to miss the point completely.

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  13. Anonymous,
    I do not have your email address, but I got a few different posts from you, and I would like to place on the blog the ones that are your final version that you really want to publish. Please let me know by email exactly which one's you would like to publish, and I will make sure the right one's appear. You can email me at rationalistmedicalhalacha@gmail.com.

    Once I have your final draft, I will respond to your comments.

    I completely accept your apologies, and I truly appreciate the give and take with you. One doesn't gain much by only discussing issues with people who agree with him. By challenging me and my ideas, you will either help me develop them further, and maybe even force me to consider changing some aspects of my opinion.

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  14. I am troubled by the last line in your post, which seems quite flippant and not consistent with the halachic argument you presented up to that point.

    "If it sounds like Judaism is “pro-choice”, then maybe Judaism is."

    What is the Rabbi to say if the woman says that she wants the abortion not due to extreme psychological distress, but because (for instance) she already has a boy and wants to abort this boy fetus so that she can try again for a girl?

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  15. SD;

    Thank you for your comments. You raise a good point. I suppose it was a poor choice of words for me to use a popular term like "pro-choice" as it seems to indicate that I subscribe to the same ethical standards that is associated with this term in the general public.

    Obviously, in the US she can legally do what she wants. However, clearly in certain circumstances, such as in the case that you mentioned, the halacha would not countenance such a flippant disregard for something which is prohibited. Regardless of what one believes the origin of the prohibition is, it is clearly prohibited at some level by just about every posek.

    The woman that you mention, would seem to be disregarding what the rabbi in my scenario told her regarding the severity of what she is considering doing.

    Admittedly though, the lines become more and more difficult as we approach middle ground. Most rational people would agree at certain extremes on both ends of the spectrum that either the standards of "tzorekh gadol" have been or have not been met. The middle ground though is subjective, and cannot be quantified on any sort of objective scale as to what her suffering is or might be.

    It is this "gray zone" which I argue should be left up to the woman involved. This is where the rabbi must impress upon her the gravity of the situation, and once the Rabbi is convinced that she is taking the matter seriously and understands the issues involved. And once he is convinced that she sincerely believes that an abortion is necessary due to what she honestly believes is a "tzorekh gadol", at that point it becomes her choice.

    When I used a the popular term "pro-choice" I gave the wrong impression that I agree with the extreme left wing view that is found in secular society, which I don't. Whatever the level of issur is, it is still prohibited halachically.

    I hope this helps.

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  16. Sorry MHR that I haven't gotten back to you. I thought it was just a malfunction with my computer and that nothing was posting, so I just kept copying and pasting from a word doc. I will email you some point later today, and at some point later this week continue upon my original response. I have been busy with classes. Though I wouldn't mind if you responded to what is posted (regarding my follow up on the Yom Kipur analogy).

    It seems we disagree much less than I thought, although I think there should be greater lengths at which we attempt to discourage a woman from carrying out an abortion and still somewhat contest the leniency you express in cases of mental anguish. You do say that in any case their should be some form of consultation - which is essentially a form of regulation. My question then becomes how regulated should such a consultation be as a matter of public policy?

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  17. My point was that you should have made it more clear that, whether or not the woman is the final arbiter, the hetter is only in situations of extreme mental anguish and only up to 22-23 weeks.

    ANother point:
    Perhaps you could explain why the D'Rabbonon of abortion has a higher threshold for being mattir than a normal D'Rabbonnon would.

    For instance, why shouldn't financial considerations (hefsed meruba) be enough?

    Of course, I realize that this sounds morally objectionable, but once you've compared it to eating on Yom Kippur, why not compare it to other D'Rabbonons?

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  18. What I meant by my question about comparing it to Yom Kippur is that once one looks at the question in strictly legal sense, without moral considerations (Abortion D'Orayssa can't be worse than eating on Yom Kippur), then why take moral factors into ocnsideration when judging an Issur D'Rabbonon?

    Why not say abortion is no worse than moving muktzeh and should have no greater threshold before allowing it?

    I'm just looking for consistency.

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  19. SD; I thought that I made that very clear I argued that after viability (somewhere between 22-24 weeks, that I felkt that the halcha is moral principle would make me be more machmir than the more lenient poskim. I hate to resort to quoting myself, but this is what I wrote:

    "I can’t imagine that even the most lenient poskim, would have allowed abortion at this late stage, had they known that there was a fully developed baby with ability to survive outside the womb. It is hard to imagine the Rishonim saying “Ubbar Yerekh Imo” (the baby is just a limb of the mother) of the baby is capable of surviving without the mother. Even the Radvaz, who famously stated that “even though the baby is moving it is no better than the wiggling of the tail of a lizard” and therefore not murder at all, I submit that he almost certainly never would have allowed an abortion had he known that we could prove that the baby was well developed enough to survive on its own.

    This is the application of the Halacha is Moral principal in action. A basic sense of morality would dictate that after 24 weeks, when the baby can survive, that abortions should be at least close to murder and should be forbidden."

    I assumed that this was clear enough.

    As to the issue of hefsed merubah and the fact that I am being more machmir about this than a usual issur derabbanan. I find your comments very good ones. Thank you for bringing this up, because it really helps me sharpen things. here is my response.

    It is quite plausible that according to some of the poskim, hefsed murubah just might be a justification for abortion. I think about the Beit Yehuda who I quoted in this post http://rationalistmedicalhalacha.blogspot.com/2011/02/r-palagi-and-r-eliyahu-mizrachi.html.

    It is quite plausible that he would have considered hefsed merubah as well, given his treatment of this issue.

    However, as I emphasized in this post http://rationalistmedicalhalacha.blogspot.com/2011/02/is-abortion-rabbinic-decree-or-torah.html it is not just important to note whether something is deoraytah or derabbanan, but one also must know what the basis of the deoraytah or derabbanan is. Not all derabbanan's were created equal!

    Furthermore, the strength of the fact that many poskim held that it is a deoraytah, should lead one to prohibit it for the simple reason of hefsed merubah. Although, I do grant you that is indeed conceivable in extreme financial duress, that i may imagine some cases where it might be considered reasonable to be mattir. Once again, I would allow this decision to made by the woman involved, once we do our job and counsel her as to the importance of the issues involved. (unless of course she was educated enough on her own to know this, I certainly have met some women that know more halacha than some rabbanim that I've encountered, but that is entirely a different issue).

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  20. David; Look at what I wrote to SD about hefsed merubah. You are looking for consistency with other areas of halacha that are issurei derabbanan. However, I made it very clear in my blog series that abortion is very different from any other known area of halacha in the sense that it is so unclear what the origin of the issur is. Therefore, we cannot treat it like a derabbanan, because within those poskim that hold it is derabbanan there are so many variations as to exactly what the issur derabbanan is. We also cannot discount the numerous poskim that hold it is a deroyasah. Even withi those poskim, depending on what the deoraysah is, there are different reasons why it may be allowed, as we described at length in the blog. See what I wrote to SD regarding hefsed merubah as well.

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  21. Anonymous; I appreciate your comments regarding your realization that we disagree less than you thought. However, I don't think that consultation really should be considered regulation. There is a fundamental difference between someone who goes to a rav for a psak halacha, and someone that goes for advice regarding the Torah approach on a particuar topic. Anytime we face an important decision it should be informed by the Torah. That may be in the form of our own personal study, or by speaking with a knowledgable person such as a Rav. In my scenario, I was assuming that the woman involved was asking her Rav for the Torah's view on this important matter. However, it is my belief that the role of the Rav in these types of cases is to advise, not to pasken. He needs to adsvise her regarding what the Torah teaches, which is what I spent the lkast three months describing in my blog. Then it should be her decision to make. This is very different from regulation. This might be the "nekudat hamakhloket" between us.

    I think that possible because I poorly chose to use the term "Pro-choice" you assumed that I ascribe to the values of those segments of society that espouse that ideology. We have come to the understanding that we have very similar beliefs, though maybe not exactly the same, regarding the importance and value of the future life represented by this fetus, and how one should not take this matter lightly, and should never God forbid terminate such a precious future life without an extremely significant need. The difference between us lies in the process of the decision making as to who decides when the standard of need has been met. I believe that this needs to rema with the woman involved. I do not believe that a Rav should prohibit someone from getting an abortion based on his understanding of what her needs are. (of course this ONLY applies during the period within which we determined that abortions are halchically permissable in cases of great need i.s before 22-24 weeks. Once the baby is viable, there would be NO circumstance, at least according to my analysis, that it would be allowed, despite the fact that some earlier poskim would have permitted it because in their time they did not know that viability was reached, or the technology did not exist to allow such a baby to survive, as I made clear in my blog)

    You believe that a Rav should "regulate" this decision and disallow her from deciding to have an abortion in cases that seem to him to be careless and not sufficient need to warrant an abortion.

    This seems to me to be where we disagree, I would be happy to hear if I am misunderstanding your position. This is an important distinction, because if we take away the flippant attitude to life of some people on the political left who use the term "pro-choice", and we replace it with the Torah's respect for life, in my opinion, the term pro-choice would still be applicable according to our approach, because the choice still remains with the woman involved.

    BTW, on another topic that you raised, self mutilaton and cutting among teenagers, especially common among girls, is a phenomenon that I personally have a significant amout of expereince in its treatment. It is a psychiatric problem, very similar to a drug addicton, and it seems to be fed by a rush of adrenaline that people who engage in this activity get when they cut themselves. Very similar (though some significant differences) to bugee jumping and the thrill people get when they engage in this type of stuff. This is a disease, and should be looked at and treated in this way.

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  22. I am new to the site [I do not have a formal Yeshiva education], and since you seem to put a lot of effort into your above post, I have three comments, even though the above post is old:

    1. Devarim 46:15 includes the unborn child Yocheved in the enumeration of the souls "nefesh" who went down to Egypt according to Bava Basra 123a. In his commentary on this verse, Ramban defends the literalness of Chazal's statement against Ibn Ezra who believed it should be taken allegorically or the opinion of an individual. In your opinion, what stage of development was the unborn Yocheved at to be considered a nefesh?

    2. If one is adopting a rationalist mindset, then does knowledge of DNA add to this picture? For instance, before the unborn takes the shape of human being, it has genetic markers of a human being and its DNA is different from both its mother and father. DNA helps us distinguish between a clump of one's own cells expelled from a uterus and the cells of an embryo. This might touch on the issue of how a grossly deformed human being such a person born without arms and legs or a Siamese twin is viewed in Halacha. By the way, by adopting a rationalist mindset on this issue, is this Halacha mi Sinai and you are attempting to get into the mind of G-d or is it Halacha mi Rabbanan and you are attempting to determine what scientific knowledge influenced the sages in the Talmud? I apologize if you have answered this in a previous post.

    3. You state in your above post: "In the time of Chazal, in order to determine whether or not something had the halacha of a baby, they looked at the tissue and decided, 'does it have the form and shape of a baby or not?' This is the origin of the mayim be’alma statement." I am confused how you can equate mayim be’alma, which you mentioned in the previous post referred to Tokh Arbaim Yom ["WITHIN the first 40 days "], with the time when the unborn has the shape of a human which takes about twice as long, at 12-14 weeks, which you relate to Hukkar Ubbarah. Do you know offhand any Rabbinic authorities who pasken that a gentile according to Rabbi Yishmael would be permitted to abort a fetus prior to Hukkar Ubbarah as the significant date? [I apologize again if you have already cited the sources in a previous post.] So, in your opinion a heartbeat at 6-7 weeks of an unborn child should have no Halachic significance? Or does brainwave function have any significance in your schema?

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  23. [CHART - PART 1 of 2]

    I am not Yeshiva-educated and am still trying to catch up reading your rather lengthy posts Medical Halachic Rationalist, but a chart follows giving my own intuitive, logical sense about what the Halacha would be for each prenatal stage based on the above interpretation of when the unborn is a nefesh [feel free to modify and refine this approach with your extensive knowledge of Halacha and to potentially make it into a formal post on your blog, should you see fit. My name is E., and the Medical Halachic Rationalist can contact me at israel4mandate@safe-mail.net ; I hope I have not made any big overt errors, and I cannot vouch for its accuracy though I tried to cite all direct sources that I could remember and otherwise it is in part based on the content that I have read so far on this blog]:

    Tokh Arbaim Yom ["within the first 40 days"]
    Status: Fetus is not alive (Chazal called it mayim be'alma "just like water" ); uncertain if has a human soul[*]
    Penalty for abortion for Jews: Potentially same as wasting seed or a related prohibition
    Penalty for abortion for Non-Jews: Presumably none (or perhaps theft of a liquid substance unless this is a Rabbinic concept, which does not apply to non-Jews)

    Between Tokh Arbaim Yom (in particular after the fetus has a heartbeat) and Hukar Ubbarah (the latter occurs around 3 months)
    Status: Fetus is alive (since it has a heartbeat); man-in-formation (my wording) (or as mentioned in your above post, "animal-like" in Massechet Niddah, though to corroborate it is animal-like, it might be helpful to compare it with the fetuses of other animals); uncertain if has a human soul[*]
    Penalty for abortion for Jews: Similar to before; and similar to needless killing of one's livestock
    Penalty for abortion for Non-Jews: Perhaps theft entailing capital punishment if not the parents, unless this is a Rabbinic concept

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  24. [CHART - PART 2 of 2]

    From Hukar Ubbarah (in particular when it begins to resemble a so-called human being) until around the time the nostrils have formed (= perhaps equates to Kalu Lo Chadashav "its' months are completed" in my thesis)
    Status: Man (based on what you wrote in your above post about Massechet Niddah and assuming your understanding that it resembles a human being is correct); non-viable outside the womb; I am uncertain due to my limited knowledge whether if it is a Man, it would per force have to be a nefesh, and vice-versa [*] [NOTE*: since on the one hand its parents have human souls, so the human fetus might have a human soul after its kind, at least by this point in fetal development, if not at conception ; on the other hand a Midrash mentions that Adam married an animal that resembled a human (mentioned in Gerald L. Schroeder's book)]
    Penalty for abortion for Jews: Uncertain due to my limited knowledge [could it be similar to killing a person who is a tereifah (a terminally-ill person) (cf. application mentioned in "Preembryo in Halacha" on Jlaw.com)?]
    Penalty for abortion for Non-Jews: Presumably murder entailing capital punishment (since the source for this prohibition Bershit 9:6 does not use the term nefesh) (cf. "Preembryo in Halacha" on Jlaw.com)

    From Kalu Lo Chadashav (particularly around the time the nostrils have formed) until Yatzah Rosho "the delivery of the head"
    Status: is unequivocally a nefesh, as I intended to further explain in the PREFACE below this post, based on Bereshit 2:7 (the presence of nostrils is the apparent sign of the completion of a human, either by itself (or possibly in conjunction with lungs, as might be implied in the same verse) or because of brainwave function associated with this stage in fetal development, or else it becomes a nefesh due to some brain milestone related to the ability to discern speech that occurs shortly after the nostrils are formed but before labor (cf. Targum), an alternative hypothesis to this is that a fetus becomes a nefesh at a much earlier stage in development around the time its sex becomes differentiable based on Bereshit 2:21-23, though the double meaning of these particular verses seem to have a better fit alluding to meiosis ["rib"=chromosome (which remarkably can take the shape of a rib)] as well as fertilization, but not gestation, since a girl fetus is not technically formed from a boy or hermaphroditic fetus); the unborn in this stage would be viable on its own, or would need medical intervention to survive
    Penalty for abortion for Jews: Murder entailing capital punishment (especially if it would be viable on its own outside the womb, was this Rav Moshe Feinstein's view?); if it would need medical intervention to survive, I would guess that it is comparable to killing a person who is a tereifah, though I am uncertain if it would be this or else murder entailing capital punishment
    Penalty for abortion for Non-Jews: Murder entailing capital punishment

    [Endnote: Since the unborn has DNA different from its mother, it seems logical that in no case would chavala ("wounding") of the mother be the prohibition for abortion, unless a woman is harmed in some other way than the physical loss of the pregnancy; it also seems logical that chavala of an unborn person would never be the prohibition unless it is a botched, unsuccessful abortion at the appropriate stage of development (cf. application mentioned in "Preembryo in Halacha" on Jlaw.com). In conclusion, regarding this, is it a Torah principle to the effect that Halacha is decided by the Torah greats of one's own generation, which I seem to recall reading somewhere?]

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  25. [PREFACE TO CHART ABOVE]

    I am operating under the assumption that the time the unborn becomes a nefesh (has a human soul?) is at a definite time and is observable. Since realizing from the p'shat ("plain meaning") of the pasuk ("verse") that I cited above in my March 28, 2011 5:03 PM anonymous comment that the unborn is a nefesh [is it not a Torah principle that a verse never departs from its "plain meaning" although it may have other meanings?], I have struggled over why G-d would not reveal such an important fact as the exact age of Yocheved in the womb so that we would know at least by what age an unborn person is considered a nefesh.

    [The only thing in my opinion that can be reasoned out from that pasuk is that Yocheved's mother did not enter Egypt while in labor with her, since it would have been dangerous to be in labor on a moving wagon, especially in those days. As you stated in the previous post, Ne'ekar Latzeit is synonymous with "yoshva al hamishbar (sitting on the birthing stool)." And if Yocheved had been born on the way to Egypt, I assume she would have been named, which is also presumably the opinion of Chazal (our sages) above, despite the custom among Jews that a girl is named on the first Shabbat or Torah reading after birth; under this scenario it is more likely than not that Yochebed's mother would still not have traveled so soon after giving birth, and it was before the giving of the Torah after all, so did the custom exist then, though it is plausible that the Israelites celebrated Shabbat in those days; and if one postulates Yocheved's mother died during childbirth, the context for the verse seems to imply they all made it to Egypt safe.]

    Then an answer hit me that HKBH ["G-d"] did allude in the Torah to the exact age that the unborn becomes a nefesh: it is in the creation of Adam portion (see my chart in the next posts)! The Torah principle that past actions are precedent for the future [or specifically in this case Bereshit 2:4 as interpreted by Ibn Ezra and Abarbanel, first blessing of Shema], and the whole tenor of Jewish philosophy that I am aware of such as G-d's special care and attention to each and every Jew, supports this approach. The Rabbis taught: There are three partners in the creation of a human being, the Alm-ghty, his father and his mother (Kiddushin 30b). This resolves the cryptic usage of the word "we" in Bereshit 1:26. It seems logical to me that at the time, it meant natural forces, perhaps evolutionary processes (cf. Ramban), but for the future it alludes to man and wife. This explains why honoring the parents was written on the same tablet of the 10 Commandments as the first four commandments that deal with G-d (cf. Rabbi Avrohom Chaim Feuer's explanation in the section on the Fifth Commandment in The Artscroll Mesorah Series' Aseres Hadibros). Every verse dealing with the creation of man in the Torah should be read as having a possible double meaning alluding to the creation of the fetus. For instance, the dust in the ground "adama" that man was formed with logically includes the building blocks of DNA or organic material (cf. opinion of Rabbi Meir). Men have XY chromosome but women have an X chromosome that is literally and allegorically cut out from the man's body or cells. I leave it to others to cull every verse in the Tenach dealing with the unborn and the creation, Midrashim and commentary, and compare it against accurate scientific prenatal literature, to see how we well this approach fits, as well as revisiting every Halachic portion in the Talmud dealing with the unborn and other relevant areas of Halacha, which leads me to the Chart I already gave above. [Medical Halachic Rationalist can contact me at israel4mandate@safe-mail.net]

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  26. [CHART (Additions...)]

    I saw the pictures in this month's National Geographic, and want to add things to my Chart.

    Tokh Arbaim Yom . . .
    Status: Primordial life (since self-replicates); perhaps has the image/likeness of G-d since that term does not necessarily refer to a physical likeness (a possible double meaning alluded to in Bereshit 1:26, cf. Rashi's interpretation); [the rest is as above]
    [The description "liquid" I used is perhaps still apt since stems cells take the shape of other cells and the organs, like a liquid takes the shape of its vessel : ) ]

    From Hukar Ubbarah . . .
    Status: Yeled (see the possible double meaning alluding to it in Bereshit 5:3); [the rest is as above]

    Seed
    Status: Pre-life; perhaps has an incomplete image/ likeness of G-d; perhaps like a virus
    Penalty for "abortion" for Jews: Potentially wasting seed or a related prohibition [consider: lewd thoughts, not being fruitful and multiplying (for men)]; [if a Jew stole seed from a sperm bank minus whatever storage container it is kept in, would it be theft?]
    Penalty for "abortion" for Non-Jews: Presumably none; [similar question as for the Jew above?]

    Devine Perspective [again this is based on logic and not any sources in particular]
    Status: From seed to fertilization up until birth
    Penalty for abortion for Jews: perhaps akin to denial of Creation, denial of G-d's attribute of mercy [or that He is "your" G-d], and the denial of the Torah as the blueprint for Creation
    Penalty for abortion for Non-Jews: perhaps akin to denial of all 7 Noahide Laws

    Miscellaneous observations
    - Whenever I use the term "perhaps" or a similar term it means I am going out on a limb or speculating
    - When I used "evolutionary processes" in a previous post, I meant symbiosis (evolution occurs in jumps) or natural selection (evolution occurs gradually) as the dominant driver in evolution, which is a debate in science. It is perhaps interesting that I believe that there is a Midrash that Adam had the appearance of a 20 year old when he was first created.
    - Ish seems to mean the stage of development a person gets married (see Bereshit 2:23-24); angels with this same name for some reason seem to have a similar appearance (recall the encounter with Yosef); I have come across opposing views: that angels do not have free choice, and that they do have free choice [perhaps it depends on the classifications of different angels, which might be an even greater mystery than physical creation since it is less amenable to observation by science, a neuroscientist told us: if we saw a winged Pegasus flying across the sky, it would prove nothing since science needs to have a test replicated before it can become a valid theory
    - Perhaps the cryptic term "Sons of G-d" in Bereshit 6:4 means the sons of Cain (=fallen men), opposite of Ibn Ezra's view, since unlike Seth, according to Rashi, unless I misunderstood, Cain was born before the sin of his parents eating from the Tree of Knowledge, and thus presumably G-d had a more direct role in his birth in the Garden of Eden, and a) this role for some reason carried over to his descendants (they possibly could have been immortal), or alternatively b) his descendants were identified or identified themselves with the mark that Cain was given that separated them from normal men (=daughters of women) [cf. it has been said a sinful person in a past generation was closer to G-d than pious people in our generation]; this better explains how people who can be called "Sons of G-d" can presumably commit immorality with women

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  27. I left the 5 preceding Comments. I retract all the Comments. I did not understand at the time I left those Comments how the unaccounted for "nefesh" in the numbering in Bereshit 46:15 could refer to anyone other than Yocheved, I did not realize or internalize at the time I left those Comments that the Bnei Yisrael's "coming" to Mitzrayim was not consistently in the past tense, and I was probably wrong about Ramban's position who apparently believed it is not p'shat that Yocheved is included in the numbering in Bereshit 46:26. Therefore, I am retracting my Comments, which to some degree are all based on misconceptions. I also did not consider Bamidbar 26:59, and in retrospect should not have made assumptions as to the meaning of Bava Batra 123a without more complete knowledge. As a person with a partial mathematics background, I recommend that those who have the time conduct an intensive study to reconcile the numberings in Parashat Vayigash. To discuss this issue with me, contact me at israel4mandate@safe-mail.net. This retraction itself may contain inaccuracies though I tried.

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