Akin To Murder, But Not Murder, The Beit Yehuda and the Chofetz Chaim

So far we have described two of the opinions that hold that the prohibition of abortion is rabbinic in origin. We described the opinion of Rav Chaim Palagi and the Mizrachi who hold that the principle of Lak’ah Mid’am is rabbinic in origin, and therefore they decreed that abortion should be prohibited for a Jew just as it is for a gentile.  We also described the opinion of Rav Yaakov Emden, who held that the Rabbis prohibited abortion because it is similar to HZL, like wasting seed.

If you recall, in this post here we proposed five possible explanations for the rabbinic decree against abortion (assuming that there was ever such a decree of course).  Rav Palagi and Rav Yaakov Emden are consistent with reasons # 1 and 5, respectively.  Now I would like to focus on those opinions that held that it was due to reason # 3.  Just to remind you, reason # 3 proposed that the Rabbis may have decreed that abortions are prohibited because of its similarity to murder.  Although it is not technically murder according to the Torah, the Rabbis nonetheless felt that it was similar enough and therefore should be banned.

One of the poskim who takes this approach is the Beit Yehuda by Rav Yehuda Ayash ZT’L (RYA) in Shut Beit Yehuda Even HaEzer:14, which can be found here. Rav Ayash was Chief Rabbi of Algeria in the mid-1700’s, and moved eventually to Yerushalayim. His responsa are quoted with reverence throughout both the Sephardic and Ashkenazic world, and he was also the one extensively quoted by Rav Palagi who we discussed before here.

You may recall from our discussion of Rav Palagi that RYA was asked regarding whether a women who is both pregnant and nursing at the same time, and she fears that she may not have the strength to do both , if she may take medication to cause an abortion.  RYA permits women to do this.  His reasoning is based first on proofs from the Rambam, Rashi and Tosfos that there is no prohibition of murder by a fetus.  He then writes that although it is not murder, it is still generally prohibited due to rabbinic decree.  This he proves from Tosfos and the Lek’ah mid’am rule, which he understood to be of rabbinic origin, just like Rav Palagi did.

However, he differs slightly from Rav Palagi in his explanation of the reason for this rabbinic decree.  During his discussion, he contrasts the laws of abortion with the laws of birth control.  He states that although there is no prohibition against a woman taking a medicine to prevent her from getting pregnant (this will come up again in a future thread when we discuss birth control), she is nonetheless prohibited from taking a medicine that would cause an abortion.  In his words, the reason for the difference is as follows (my translation):

“However, here in our case [by abortion as opposed to birth control] it is different, because the reason for this prohibition is because it is similar to murder and therefore if one drinks a potion that causes an abortion, it is nonetheless prohibited by rabbinic decree…”

He goes on to say that since it is only a derabbanan, it would be permitted in cases of need such as the nursing mother.

So according to RYA, the abortion prohibition is of rabbinic origin, and the decree was declared because of its’ similarity to murder.

Another great posek who seems to have held that the reason for the rabbinic decree against abortion was because of its similarity to murder is the great Chofetz Chaim Rav YM Kagan ZT’L (RYMK). His words are brought here in the sefer Mishpetei Uziel.  RYMK presents an interesting Halachic question.  What would the Halacha be if a man married his brother’s widow in the process of yibum, and then a short while afterward he finds out that she was pregnant?  (The problem is of course, that he is generally prohibited from marrying his brother’s wife, unless he dies childless, in which case he can marry her through the process of yibum.  Once it is found out that she is pregnant, he no longer may remain married to her, and their cohabitation until the pregnancy was discovered was in sin) The Halacha teaches us that he must divorce her and then bring a sacrifice for inadvertently transgressing the prohibition of cohabitation with one’s brother’s wife. 

So RYMK asks (my translation), “According to Tosfos that a Jew is only prohibited from performing an abortion me’derabbanan (clearly RYMK understood that lek’ah midam is only a rabbinic reason for the prohibition), why don’t we actively cause the abortion of this pregnancy in order to save this man from transgressing the sin of cohabiting with his brother’s wife? …. (he answers) since the fetus is considered like a tiny bit of a soul (“begeder nefesh kal dehu”), therefore the yavam (the surviving brother) is not allowed to save himself from sin by destroying the soul of the fetus”

It is somewhat difficult to understand the intention of RYMK.  The notion that it is only a derabbanan is predicated on the fact that the fetus is not a nefesh (soul), as we have seen many times, so why can’t he save himself from sin as RYMK asked? I would like to suggest that RYMK meant as follows.  Tosfos holds that it is a derabbanan , as RYMK himself pointed out. Thus, technically, the yavam should be able to save himself from sin by causing an abortion. However, the reason for the rabbinic decree was because the chachamim looked upon the fetus as if he was a tiny soul (nefesh kal dehu).  Since this is the reason for the decree, the chachamim, bshev v’al taaseh, decreed that this cannot be done even to save a yavam from sin.  This is because we know that the chachamim have the power to tell us not to do a mitzvah (b'shev v’al taaseh), as long as they don’t tell us to transgress a prohibition (b’kum va’aseh).  If the chachamim looked upon this as if it was similar to murder, which is such a severe sin, we can understand why they would make such a decree on the yavam.

If my analysis is correct, then RYMK also would be counted among the opinions of those who held that the prohibition is a derabbanan, and that the reason for the decree was because it is similar to murder.

To summarize today’s post, we have identified reason # 11 for the prohibition of abortion, the opinion of the Beit Yehuda and the Chofetz Chaim (according to his interpretation of Tosfos) that it was a rabbinic decree and the reason for this decree was because it is akin to murder.

The Waste Issue Revisited, and Rav Yaakov Emden

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.

R' Palagi and R' Eliyahu Mizrachi - Abortion as a Rabbinic Decree

Until this point, we have been searching for mekorot (sources) that explained that abortions are prohibited due to some issur (prohibition) in the Torah.  We will now embark on a new journey, and find our way through the sources that held that no Torah prohibition applies, but rather it is prohibited due to a rabbinic decree.  Many poskim throughout the centuries assumed that it is an issur derabbanan, and I chose to start our discussion with a famous teshuva by HaRav Chaim Palagi.

There are two teshuvos relevant to our topic, primarily in Shut Chaim Ve’Shalom 1:40, but 1:38 is also relevant (he skips 39 for some reason).  They are very lengthy, but I will be summarizing the points that are most relevant to our discussion.  There is a Halacha found in the Gemara Ketubot 60a-b which prohibits a woman who is pregnant or nursing from marrying another man until her child is 24 months old.  The reasoning is that she may become pregnant, in which case she would stop nursing (which was assumed to be the case in Talmudic times), and we are afraid that the stepfather may not properly care for the young stepchild.

HaRav Palagi was asked about a very tragic case.  An unmarried young woman became pregnant, and was ashamed about her pregnancy.  She took some medicine that caused her to deliver her baby early; the baby lived for two days and died.  This is not the place to go into the details of the story, but I will just touch on the question that was posed to Harav Palagi.  This young woman wished to marry, and some rabbis wanted to prohibit her from marrying until two years after the birth.  The logic was that although the reason for the rabbinic decree does not apply if the child is no longer alive, it doesn’t make sense that she should be “rewarded” with being allowed to marry after doing such a terrible deed.

Rav Palagi has a very long analysis, which is interesting and detailed, but I want to focus on his discussion of the abortion prohibition specifically.  Among many of his arguments, he traces the origins of the prohibition of abortion.  He is trying to determine the true halachic severity of what she did, so he emphatically insists that there is no prohibition at all of murder, but it is clearly an issur derabbanan.  He brings the opinion of the Chavos Yair that it may be assur because of hotza’at zerah (wasting seed) but he brushes off that claim and writes as follows (my translation)

“Nonetheless (despite the Chavos Yair’s contention)this prohibition (of abortion) is not at all prohibited but only due to a rabbinic decree, and it is not included in the prohibition of murder (“sheficat damim”), as it is written by the Re’em (rav Eliyahu Mizrachi) and also the Rav Beit Yehuda, and Rashi and Tosfot and the Rambam and the Re’em that there is no Torah prohibition due to murder but rather the prohibition is of rabbinic origin, and therefore, he (the Beit Yehuda) writes that one may, out of suspicion for the health of  a young nursing infant, that if a woman who is nursing should become pregnant that she may abort the fetus in order to preserve the health of the child….”

Discussing the same woman in Teshuva 1:38 he contrasts this woman with one whom God forbid kills a live child and writes that her sin is not nearly as severe, because; “Then her sin is not so severe that we should consider her guilty of murder”

There are several points that jump right out of the page as we read these words of Rav Palagi.  It is fascinating that the very same Tosfos and Rambam that are used as sources for those who want to claim that abortion is murder (we will get to those opinions later) are being used as proof that it is only a derabbanan!  Furthermore, he takes it so far as to permit the abortion of one child, in order to save another (one who is nursing)! There are many points worth discussing here, but I would like to stay on target.

Rav Palagi brought the Re’em as a key source, and it is important for us to take a look at his words in the Mizrachi Al HaTorah, Parshas Mishpatim 21:22.

The Mizrachi brings the Mechilta which is the key source for those poskim who hold that abortion is not considered murder, but is only due to rabbinic decree.  It is a bit lengthy, so I will summarize the mechilta and the Mizrachi for you, but you are of course welcome to check it out yourselves here.

The mekhilta explains the pasuk “veLo Yihyeh asson (and there will not be a fatality)” that it is referring to the woman and not the fetus.  This must be because the mekhilta explains, the next pasuk reads “ve’IM Asson yihyeh, venassata nefesh takhas nafesh (and if there is a fatality, the death penalty would be incurred)”.  And a fetus is not a nefesh; therefore the pasuk does not apply to the fetus.

The Mizrachi then continues to prove that murder does not apply to a fetus from the Rambam in Hilchot Rotzeach Chapter 2, who writes that murder only applies to a one day old baby, but not before.  He then brings the famous Gemara in Sanhedrin in which Rabbi Yishmael states that a gentile is liable for killing a fetus, from which he proves that the prohibition would not apply to a Jew.  He then asks Tosfos’ question, if so how could something be permitted for a Jew while it is prohibited for a gentile, to which he gives two answers.

1)      Maybe here it is different because the Torah explicitly is more stringent upon the gentile

2)      As Tosfos says that although a Jew is “pattur” (not liable) it is still not prohibited

Rav Palagi clearly understood from the Mizrachi that this is a case of “pattur aval assur” (prohibited but not liable) which is usually referring to a rabbinic prohibition.  Rav Palagi understood that the Mizrachi proved this from Tosfos and the Rambam, and the Mekhilta was a great support for these shitos. Rav Palagi also brings Rashi as well, and he is almost certainly referring to something written by the Peirush Nachalat Yaakov on the Mizrachi who quotes the Rashi in Sanhedrin 57 (explaining the statement of Rabbi Yishmael that a gentile is liable for murder on a fetus) that states that only for a Gentile is it permitted, but for a Jew, only once it is born does the prohibition of murder apply.

So we have now embarked on an entirely new path.  The Poskim who hold that it is a rabbinic decree.

The next obvious question is exactly what the rabbinic decree is?  Before we continue this line of questioning, I would like to suggest several possible approaches, and we will see where the poskim fall on this spectrum of possibilities as we analyze each one.

1)      It may be that the decree is due to the rule of Lekah Mid’am.  That is, that these poskim understood that the rule of lekah Mid’am is a rabbinic rule which dictates that although the Torah may allow for a leniency for a Jew in some rare cases, the Rabbanan felt that this discrepancy should not be allowed and they therefore decreed that a Jew may not do it.  Based on the language of the Mizrachi and Rav Palagi, it is almost certain that they took this approach.  This is in fact how they learned “pshat” (the explanation) of Tosfos!  In other words, they learned that Tosfos holds that it is truly muttar (permitted) as far as the Torah was concerned, but because of Lekah Mid’am a Jew is prohibited

2)      The chachamim may have prohibited it because it is similar to murder

3)      Another possibility is that one of the Torah prohibitions that have been suggested before may not apply to abortions technically, but their rabbinic counterpart decrees may actually apply.  For example, one may hold that a one cannot actually steal from a fetus Me’d’oraysah (from a strictly Torah perspective), but maybe Me’d’Rabbanan a fetus can own things and therefore one can steal from him/her.

4)      Another possible explanation is that the rabbis decreed that it is assur for some other reason, such as for the public benefit, or to clamp down on promiscuity.

5)      If one holds that the entire prohibition of Hotza’at Zerah (wasting seed) is a de’rabbanan, than that may be the origin of this prohibition.

We will entertain all of these possibilities in the discussion that we will continue in our blog.

Now that we have embarked on this new path, we can add another Shita to our ever-growing list.

Opinion # 10:  According to the Mizrachi and Rav Chaim Palagi and their interpretation of the Rishonim,  the Chachamim declared that a Jew is prohibited from performing an abortion because a gentile is prohibited, and it would be inappropriate for a Jew to be allowed to do something that is prohibited to a gentile.  They explicitly and vehemently reject the possibility that it has anything to do with Shefichat damim (murder).

Is abortion a Rabbinic decree or a Torah Prohibition?

I am going to interrupt our series of reasons for the abortion “prohibition” to deal with a fundamental issue that many of the poskim have tried to resolve.  That issue is the question whether or not abortion is a Torah prohibition or a rabbinic decree.  Much ink has been spilled over this question, but the readers of this blog, at least those that have been paying attention until now, will know that the question is a little less important than it seems on the surface.  You will understand what I mean in a few minutes.

One of the most fundamental distinctions in Halacha is the distinction between a rabbinic decree (Issur Derabbanan) vs. a Torah prohibition (Issur de’oraytah).  Now that we have made our way through numerous potential reasons that have been proposed as to the origins of the prohibition against abortion, we have a unique perspective on this issue that is sometimes overlooked when this question is discussed.

We have just described at least 8 possible reasons for the abortion prohibition, with one more opinion that permits abortion.  All of the 8 reasons have origins in the Torah (with the possible exception of the "wasting seed” issue - which is a matter of contention, as we mentioned in our last post here).  However, as we have noted, many of these Torah prohibitions have all sorts of specifications that would render the prohibition null and void in certain circumstances.  Without going into all the details, I will give one example.

If abortion is due to chavalah (wounding) of the mother, then in any circumstance in which the mother would be allowed to wound herself, she would also be allowed to obtain an abortion.  So for example, if it is for her benefit, it would be allowed.  The Halacha allows for one to wound themselves if the purpose is to benefit themselves.

In a famous Teshuva on the topic of cosmetic surgery, HaRav Moshe Feinstein allowed a woman to undergo cosmetic surgery in order to improve her chances of finding a husband (Igrot Moshe Choshen Mishpat 2:66).  Rav Moshe based his permission on the Rambam's opinion regarding the Issur of Chavalah (See Rambam Hilchot Chovel U'Mazzik 5:1). Rav Moshe interprets the Rambam that any chavalah which is done to benefit the person involved is not prohibited by the Torah prohibition of Chavala.

This is obviously not the place for an intensive discussion of the laws pertaining to cosmetic surgery, though that may make an interest topic for a future blog thread.  However, my point is to demonstrate that depending on the particular Torah prohibition involved in abortions, you may come up with different types of scenarios where the abortion would be permitted.  It would not be a stretch at all to claim, that those who define the prohibition as chavalah, would permit many abortions when the woman feels it is to her benefit.  Even though chavalah is a Torah prohibition.

So I submit to the readers of this blog the following point to ponder.  What matters here is not so much whether this is a de'oraysah or a de'rabbanan.  Rather, what matters much more is which issur de'oraysah you apply!

Another very important point I need to make before I go on. There are many opinions that hold that the prohibition is a rabbinic decree, and has no direct origin in the Torah.  This is not the place for a lengthy halachic discussion of when rabbinic decrees can be transgressed, and how they differ from Torah prohibitions.  However, it is understood that one can be more lenient when confronted with extreme cases of need when violating a rabbinic decree than when violating a Torah prohibition.

But more importantly, we also need to analyze the proposed rabbinic decrees in the same way.  What was the basis of the decree?  What are its origins?  Why was it declared?  This is important is because depending on the purpose of the decree, the parameters regarding when it applies will be different.

I am going to use this blog post as a segue into a new territory.  We are going to analyze the opinions that hold that the prohibition of abortion is a rabbinic decree, and not due to any Torah prohibition at all.  As we have so far compiled 8 potential Torah prohibitions, but we will now move on to list several rabbinic possibilities.  Next post I will begin our discussion of the rabbinic possibilities with a fascinating and tragic teshuva from the great Sephardi Rav of Izhmir Turkey HaRav Chaim Palagi ZT'L(1788-1868).

I know that some of you might be getting exhausted by all of this detail.  I am truly sorry about that.  But when we are done with this analysis, I promise that you will be very satisfied with the outcome.  You will fully understand why this detailed analysis was necessary. I promise.

Is it a Waste? The opinion of the Chavos Yair

We now move on to another very famous and important teshuva on the topic of abortion, and a fascinating question that many poskim have dealt with.  This is the teshuva of the Chavos Yair (CY), Siman 31.

The CY deals with the question of a married woman who became pregnant after an adulterous affair.  She presented herself before the Rav in utter despair, repentant, and begging for some way to atone for her sin.  She also wanted to take a medication that would abort the pregnancy, so she would not suffer the shame of having a bastard child.  This question was also posed to other Poskim, including the She’eilas Yaavetz, but I will bring his opinion on the specific matter in a later post.  For now, let me summarize some of the important points made by the CY, and introduce his interesting approach to our topic.

The CY has a lengthy treatment of the subject, but the following points are most important, and they are the ones that later poskim have picked up upon.

1)      The CY could not fathom that it could be possible to be both allowed to violate the Shabbat to save a fetus on one hand, and still be permitted to abort a fetus to save the mother, in his words (my translation), “To say that it is permitted to kill him (the fetus) and it is permitted to violate the Shabbos as well, certainly makes no sense (“vadai eyn lo shachar”)”

2)      Because of point # 1, he concludes that we differentiate between prior to the onset of labor (Akirat Ha’vlad) and after the onset of labor.  According to the CY, prior to the onset of labor, there is no prohibition of abortion when the purpose is for the benefit of the mother (hold that thought for a minute because it will be somewhat amended soon) as the fetus is considered a limb of the mother. However, after the onset of labor, the fetus is considered a separate being and may not be killed, unless the mother’s life is literally in danger, because even after the onset of labor he can still be considered  part of the mother, in his words (my translation), “and even though he has started to deliver (ve’af al pi De’akar) nonetheless the fetus is still considered part of her body and it is like cutting one of her limbs (Acati ke’gufah dami U’kechituch ever me’evareha)”

3)      Adding points 1 & 2 leads him to conclude that essentially, “It should be completely permitted to do what you asked me about in your question “haya hetter gamur she’elatcha asher shaalta me’din Torah”

But then, after almost giving a “hetter gamur”, the CY cites the “custom that is widespread among us and them (the gentiles) due to the need to protect against immorality and promiscuity”. He then brings the Tosfos that cites the rule of Lekah Mid’am (just to remind you, this is the rule that Tosfos cited to explain that if abortion is prohibited for a gentile, then there must be a prohibition for Jews as well, see this post here for the details), and thus proves that there must be a prohibition.  As we have seen before, the nature of this prohibition is quite controversial and unclear, and here is where the CY brings his bombshell.

“IT is certainly prohibited Le’chatchilah, (best translated as “in the first place” or “preferably”) to cause an abortion, because it is no worse than “Those that inflame themselves beneath the terebinths … those that slaughter children” (a verse in Isaiah, 57:5 which the gemara in Niddah 13a quotes in reference to masturbation and “spilling seed”). “

The CY then continues to explain that the sin of spilling seed is not “just because of incitement of passion (meshum girui yetzer harah)” but rather it is because of wasting seed, which certainly should apply to a fully formed fetus! He then explains that this law, although it generally does not apply to women, “nonetheless, once the seed has implanted within her, certainly it is prohibited for her to ruin it according to all opinions! (mikal makom, achar shekalta ha’zera, vadai assur lekalkellah lekuli alma!)”

After making his about face, the CY doesn’t really give a clear answer to his questioner, but it seems that he was leaning toward prohibiting the abortion, both due to the “geder pritzut” (guard against immorality), and due to the wasting seed issue.

So here we have another explanation for the prohibition of abortion, the same prohibition that applies to male masturbation.  Most interestingly, the CY actually holds that this is the reason why Tosfos in Sanhedrin would prohibit abortions due to the rule of Lakah Mid’am!  In other words, there is no prohibition of abortion per se, only a Jew may not do it because of a different prohibition entirely, and this satisfies the rule that if a gentile may not do something, a Jew also may not do it.

The poskim attack this CY vehemently from numerous directions.

They ask the following questions:

1)      They question his claim that it makes no sense to allow Chillul Shabbat while permitting an abortion to save the mother, how could it make no sense, if it made lots of sense to the Ramban and others, see here for more details on the Ramban) (see Seridei Eish 3:127 perek 1)

2)      They question his claim that a woman is included in the prohibition against wasting seed after implantation, (see Seridei Eish same teshuva perek 15)

3)      Some hold that the issur of “wasting seed” is only a derabbanan (see ezer MiKodesh Even Haezer 23)

4)      Many hold that the prohibition of “wasting seed” is only through masturbation, not wasting seed that has already been ejaculated (I saw this in the name of the Chazon Ish, quoted by HaRav Ahron Lichtenstein in Beriut haTzibbur 17:4 pp. 495-501, published by the Ministry of Health of the State of Israel)

There are other acharonim who take apart the CY, but I think we brought the main points, those interested can ask me off line for more sources.

To me, the most fascinating conclusion is that the CY did not identify any other reason why someone cannot abort a fetus.  So in theory, if one rejects his reasoning of hotzaat zerah, one is left with no reason to prohibit abortions.  The seridei eish points this out in the above quoted teshuvah, and is left searching for a reason for the prohibition.  We will come back Bli Neder, to the Seridei Eish later, as his conclusions are interesting and warrant another blog post.

So we can now, according to the Chavos Yair,  add reason # 9 for the prohibition, the prohibition of wasting seed.

Can Abortion be Considered Stealing from the Fetus?

As we plow through the various issurim (prohibitions) that have been suggested as possible origins for the prohibition against abortion, we find an interesting suggestion made by HaRav Shlomo Zalman Auerbach ZTL (RSZA).

RSZA is quoted in the Nishmat Avraham Choshen Mishpat 425 Note Aleph:1.  He says as follows (my own translation):

"In my humble opinion it seems to me that just as it is prohibited to steal the property of a fetus, just the same it is prohibited to steal from him his life. It is the opinion of Tosfos in Masseches Bava Basra 142a D'H "Ben" that a fetus inherits while he is still in-utero, even if he will in the end be a "nefel" (a fetus which does not survive - usually due to prematurity)."

This is a very interesting suggestion, and at first it seems quite compelling. However, one must wonder why no other posek until HaRav SZA ever suggested this as a potential reason to prohibit abortions, despite the incredible amount that has been written on the subject by the Rishonim and the Acharonim.

One possible reason why no other poskim have suggested this, is because it would get us involved in a basic machloket among the poskim regarding the shita that HaRav SZA brought in the name of Tosfos.  It is a fact that other Rishonim disagree with Tosfos, See the Rif in Bava Basra 142a who paskens that a fetus does not inherit, and the Shach in Choshen Mishpat 210:1 paskens like the Rif, not like Tosfos.  An entire discussion of this topic is beyond our scope, but certainly it may well be that since many poskim hold Halacha lemaaseh not like tosfos, therefore they held that one cannot steal from a fetus, rendering this entire argument a non-starter.

It also seems that this issue revolves around a fundamental question.  Let us assume like the shita of Tosfos, that it is possible to steal from a fetus. One still needs to ask as follows: Does a person own his/her life in the same way that they own property?  This is to say, if a person is a victim of murder, can we say that the murderer is also guilty of stealing? 

Of course, since the perpetrator is liable for the death penalty, beis din cannot collect money from him, due to the familiar rule of Kam Ley Mi'drabbah miney (KLMDRM). That is, since beis din can only mete out one punishment, and the rule stipulates that he can only get the harsher punishment, which in this case is death, not payment. But theoretically, is there also a monetary claim against the perpetrator?

Interestingly, there is a source for this question among the Rishonim.  The Hagahot Ashri, in Bava Kama Perek 4 writes as follows (my own translation):

If Reuven killed Shimon, even though he is liable for the death penalty, he still pays the estate (of Shimon) his value in order to exempt himself from the obligations of Heaven ("La'Tzet Yedei Shamayim"). Or one may say, that if the inheritors of Shimon were to confiscate the money from Reuven, we would not demand that they repay it to Reuven ( "ee tafsi yorshim miney, lo mafkinan minayhu").

So according the Hagahot Ashri, although the beis din cannot collect it from Reuven, there is a monetary claim against him.  This proves that a person does "own" his life in the sense that one who takes it from him, has also taken away a possession of his.  This clearly supports the contention of HaRav SZA.

However, curiously, this halacha of the Hagahot ashri is not codified in any of the rishonim or acharonim le'Halacha.  It seems that it was not accepted by any of the major poskim, and the question of course is why.

There could be two possible reasons why the other poskim do not mention it. 

1) They really agree with the Hagahot Ashri in principle, just they did not feel the need to codify it (Either because they did not see any need to discuss payment which is only "Latzet Yedei Shamayim" or because they disagree regarding the Hagahot Ashri's idea that if it was confiscated by Shimon's family that Beis Din would not force Shimon's family to pay it back)

2) They really disagree with the Hagahot Ashri's idea that a person "owns" his/her life in the same way that they own property.  maybe they feel that this entire concept is incorrect, and a person does not own his/her life, and though one who murders is liable for the death penalty, there is no monetary obligation incurred.  If this is the case, there would be no support for RSZA's opinion, in fact, it would be impossible to suggest that gezeilah is a possible reason for the prohibition of abortion.

Before we leave this topic, we must point out another interesting question that arises from the suggestion of HaRav SZA.  that is, if it is possible to steal from a fetus, can the parents give permission to take what belongs to the fetus? In other words, we do know that what a minor owns is owned by the father, so does this apply to his/her life as well?  In practical terms, if this is the reason to prohibit abortions, can the parents give permission to take away the fetus' most precious possession, his/her life?  I only ask this question, but I don't have a practical answer. Once we treat the fetus as a being that owns things, we should apply the rules of ownership consistently and give the parents full rights over the "property" of the fetus.  However, the thought that the parents own the life of the fetus to the extent that they can give such permission, is more than a little chilling.  I have no answer, just food for thought.

Instead of reviewing all of the reasons regarding the prohibition of abortions, I will refer you to look at the end of this post for the first six, and I will add numbers 7 and 8 here:

7. According to the Ohr Sameakh's understanding of the Rosh, one who performs an abortion without the permission of the parents is transgressing the prohibition of gezeilah, stealing.

8. According to HaRav SZA ZTL one who aborts a fetus is guilty of gezeilah from the fetus him/herself.  Whether or not the parents would be allowed to give permission remains an open question.

Thank you for hanging in there as we go through this lengthy and detailed analysis.  Next we will discuss the prohibition of Hotza'at Zerah Levatalah or "wasting seed".  This is usually associated with masturbation, but we will find that some major poskim have applied some of those rules to abortion as well.  We will then move on to various miscellaneous reasons, which i will bundle into one category which you will understand when we get there, and then we will move on to the most stringent opinions, those that hold that the prohibition of retzichah (murder) applies to a fetus.  That will complete our analysis of the opinions, and then we can move on to the next step.  That's when it'll get even more fascinating, so please stay with me for the fun part!

Abortion as Gezeilah - Can a Fetus be Considered Property?

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

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

The gemara there says as follows (my translation):

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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