Thursday, March 3, 2011

The Halachic Stages of Pregnancy and Some Points to Ponder

Everything we have discussed until now regarding the topic of abortions in halacha, represents the traditional Halachic approach to this subject.  One studies the sources, the sugyos in shas, the Rishonim, the poskim, and the modern decisors then apply these principles to the shaalot at hand.  However, more than any other topic in medical halacha, something about this issue has bothered me for years, but I couldn’t seem to “put my finger on it” until recently, when I started to use the rationalist approach to which this blog is devoted.  Once I began to look at this topic through the Five Principles of Rationalist Medical Halacha, I finally realized that I may have “cracked” the code and understood the right way to approach abortions from a Halachic perspective.
This revelation occurred to me as I studied the discussions of the poskim regarding the different stages of pregnancy.  Throughout my lengthy presentation of the different shitos regarding abortion, you must have seen (if you managed to make it through the discussion without losing interest!) little hints that I dropped here and there along the way about how different poskim treated different stages of pregnancy differently.  The “Halachic” stages of pregnancy are as follows:
1.       Tokh Arbaim Yom – Within the first 40 days
2.       Hukar Ubbarah – when a woman is recognizably pregnant, generally understood to be around three months of gestation
3.       Hargashat Tenuah – when a pregnant woman begins to feel movement, usually a little bit after hukkar ubbarah
4.       Kalu Lo Chadashav – its’ months are completed, which is generally understood to be mature enough to survive outside the womb.  We will not get into the “seventh month” fetus issue here.
5.       Ne’ekar latzeit – when the baby is “uprooted and starts to come out” usually meaning after the onset of labor
6.       Yatzah Rosho – the delivery of the head, at which point we view the baby as a separate being from the mother
All of these terms were used throughout our discussion by the poskim, and they all have ramifications for psak halacha (Halachic decisions) when Rabbis make decisions regarding the permissibility/prohibition of abortion. To go through the extensive examples and bring more mareh mekomot (sources) for all of these stages and what their Halachic ramifications are would be a lengthy and exhausting process, and I won’t force you to suffer through that now.  We do need to at least touch upon each stage, and describe how it affects halachah at least in a most basic way.  I will only bring one or two sources for each stage, if anyone wants more sources they are welcome to request it via email.
Stage 1; “within the first 40 days”:  This stage has its origin in the gemara Yevamot 69b, where the gemara states that “until 40 days, it is just like water”. Many poskim consider this gemara a reason to be lenient and allow abortions prior to 40 days.  It is important to note, that the gemara is dating the pregnancy from conception, not like modern medicine that dates the pregnancy from the first day of the last period (usually somewhere around 11-14 days prior to conception).  So what the gemara calls 40 days, we would call around 7-8 weeks gestation.
Stage Two; Hukkar Ubbarah: This is usually defined as around three months of pregnancy.  The primary origin of this stage is the gemara in Niddah 8b, and this is known to the Gemara as the time from which women stop having their menstrual bleeding due to pregnancy.   Although we now know that in a healthy pregnancy bleeding should stop as soon as a woman becomes pregnant, this discrepancy is an interesting subject that we will not deal with right now.  Few poskim use this as an important time regarding the laws of abortions, though it does pop up from time to time in various contexts.  However, it is very important for my analysis, as you shall see soon.  That is because until this point, in ancient times, there was no way to confirm whether or not a woman was pregnant, so this creates a doubt as to how far along she is in gestation in later stages.  Once she is recognizably pregnant, we know that at least from that point on she was pregnant. Give or take three months or so, that may be your best way to guess in ancient times as to the stage of pregnancy.
Stage Three; Hargashat Tenuah: This usually occurs somewhere after stage two, around 4 or 5 months into gestation, depending upon the woman.  This milestone is rarely used in Halachic discussion, but it does pop up occasionally.  It pops up during discussions that revolve around when others can testify that they knew a woman was pregnant because they saw or felt movement (as opposed to just having a large belly), for example here in the Noda beYehuda, and also pops us in its negation – that those who hold that abortion is not murder, will say something like “even though it is moving…it is still not murder..” for example here  in the Radvaz.
Stage Four; Kalu Lo Chadashav (KLC): This is a very important stage halachically.  This stage is important because it is assumed that a baby can only survive if it is born at a time that its gestation period has been long enough that it has reached the stage of KLC.   For example, of the poskim who hold that abortion is prohibited due to murder, some explain that the reason why one is not liable for death is because we can never know for sure that the fetus has reached KLC see Moshav Zekeinim here.  It also seems that many of the poskim who hold a fetus is not a nefesh and therefore abortions are not murder would be more stringent in a case if we could know for sure that the fetus had reached KLC..  Another posek who discusses this topic at length is the Noda beYehuda here.
Stage Five; Ne’ekar Latzeit:  This is also synonymous with the term “yoshva al hamishbar (sitting on the birthing stool)” as it refers to after the onset of labor.  This milestone in fetal development is used in the gemara here which talks about a woman who is liable for death, that once she is in labor, we do wait for delivery before we carry out her sentence. It is also assumed from the mishna in Oholot that the halacha that the woman's life takes precedence over that of the fetus is applicable even after this milestone, as that is the context of this Mishna.  It seems from the poskim, that once a woman reaches this stage, we can assume that KLC has been reached, at least in the majority of occasions, as most women do not deliver prematurely.  This is an especially important concept in a time when we had no other way of determining gestational age, and the stage of KLC could never be certain.  This is clear from the poskim, see the Noda beYehuda here who makes this clear in his classic teshuva on the topic.
Stage Six; yatzah rosho: From the mishna in Oholot, and regarding this issue there is no serious Halachic debate, that once the head is delivered, the baby is a full fledged human being, and is not considered a fetus anymore, and if one should deliberatelky harm or kill (God forbid) this child, he/she would be liable for appropriate punishments just like one who harms any child or adult.
When thinking about all I have learned, and trying to digest everything and make sense of it all, a few thoughts occurred to me that led me to try the rationalist approach to this topic.  The first most glaring aspect of this issue is the incredible diversity of opinion. I have discussed this with numerous poskim and Rabbanim of great stature, and none could find me any other topic which even comes close, or to which this can even be compared.  Despite the fact that the Torah itself discusses the issue of causing abortions, and the fact that there are numerous references throughout shas, and literally thousands of pages of shaalot ve’teshuvot (rabbinic responsa), there has been no consensus reached. In fact, it seems that the more poskim write about it, the more confused the situation gets.
A second glaring aspect of this issue is how things have changed over the centuries. The notion of abortion being equivalent to murder is virtually non existent among the Rishonim (which the notable exception of the Moshav Zekeinim L’daas baalei Tosfos see here).  In fact the Rishonim emphatically insist that this abortion is not murder at all, including Ramban, Ran, Rosh, Behag, Meiri, Ramah and more, as we have extensively discussed (I purposely didn't mention Tosfos and the Rambam in this list because their opinions are so surrounded with controversy). 
Then the earlier acharonim, begin to discuss much more extensively exactly why it should be prohibited. They generally take the lead of the Rishonim and assume it is not murder, so they seem to attempt to find other reasons why it may be prohibited whether D’Oraytah or derabbanan, as we saw in detail during our discussion.
Then we suddenly find a sea change of opinion as the nineteenth century ends, and then as we progress toward modern times.  Suddenly, beginning with the Maharam Schick, and then the Sdei Chemed, the poskim begin to insist that abortion is like a “chatzi shiur” (a “partial: murder) of murder.  They continue to insist further as the twentieth century wears on that it actually is murder, as we saw from the Ohr Sameach, and then Rav Unterman (see the Torah Journal: Noam Volume 6, in a teshuva that I chose not to include in our discussion until now only because nothing new was added that hadn’t already been discussed), and Rav Moshe Feinstein.
A third point which “shines forth” from the data we have analyzed together, is the fact that no posek that I have read has seriously and comprehensively entertained the possibility that modern medical knowledge may shed some light on this issue.  This came to me most obviously when researching the issue of the stages of pregnancy.  Are these stages still relevant in the 21st century?  In our times, we know so much information about fetal development. We now can identify when the fetus develops organ systems, brain tissue, when it can survive with medical assistance, and when it can survive on its own. We can identify with certainty close to 99% in most cases which fetuses have anomalies that are survivable,, and which are not, and which are questionable.  We can identify which gestational ages will do well, and which won’t.  Does all information this affect the halacha?  Is it still relevant to be discussing stages like “kalu Lo chadashav” when we can identify viability by modern methods of dating pregnancies and by ultrasound?  Can modern medicine help us apply the rules of the Torah in a logical and consistent way?
Ponder these three thoughts of mine a little bit (1 – the diversity of opinion, 2 – the historic development of the halacha, 3- modern medical understanding of fetal development).  Then apply the five principles of rationalist medical halacha.  Then you may come to the same conclusion I did, or maybe you will come up with an even better conclusion?  Stay tuned for my next post, in which I plan on presenting my ideas.  I would love to know what you think.

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