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.

Abortion as Chavallah of the Fetus

In our last post we discussed the suggestion of the Maharit that the reason for the prohibition against abortion is due to chavalah of the pregnant mother. That leads one to ask as follows: Is it possible that one may be prohibited from performing an abortion due to the chavalah of the fetus?

I have not been successful at finding a classical source that explains the prohibition of abortion in this way. However, a friend of mine sent me an article by HaRav Z.N. Goldberg Shlita that addresses this very issue. I don't know yet exactly where this article was published, but i promise to find out as soon as I can and will give you the reference as soon as I get it (I think it is from an edition of the journal Techumin).

HaRav ZN Goldberg has a very interesting analysis of this issue, and it is too long to go through all of it here. However, I will summarize his conclusion regarding this issue specifically. The gemara in Bava Kama 49a brings a machlokes between Rabbah and Rav Chisda regarding the obligation to pay the father of a fetus the "dmai velados". Recall the pasuk in the Torah that declares that when a person strikes a pregnant woman unintentionally and causes her fetus to abort, that he is obligated to pay the father d'mai velados - DMV - (money for the fetus). (You may recall that this was one of the Ramban's proofs that there was no issur of murder by a fetus). The issue that the gemara is dealing with is the statement of the mishna that if someone were to strike a convert who is pregnant and cause her fetus to abort, that he would not be obligated to pay DMV. Rabbah holds that this would only be true if the father (a convert as well) was alive at the time of the injury, but then the father died, then the guilty party would have no one to pay DMV, because the father owned the debt, and he has no legal inheritors, because the female convert does not inherit the male convert. However, if the male convert were already dead at the time of the injury, then she would get the DMV, because when the father dies, the right to collect for the fetus becomes hers.

Rav Chisda argues with Rabbah and says that the the fetus is not inherited back and forth like "packages" ("tzerari"). Rather, the Torah gives the right to the father to collect, and if there is no father, then there is no debt.

Rav ZN Goldberg explains the machloket as follows. There are two ways to look at the obligation to pay DMV. One way is to say that it is an obligation because one damaged the fetus. Since the fetus is no longer alive, the one who inherits the fetus is the father. If we look at it this way, then the mother would have no rights to collect this debt. That is because a woman does not inherit her child. This would explain the opinion of Rav Chisda.

The other way to look at this issue is to say that there really is no obligation incurred due to damaging a fetus. Just here there is a special "chiddush" ("novelty") that the Torah gives this special privilege to the father to collect money when the fetus is aborted. If it is a special chiddush, then it is indeed possible that the Torah transfers this chiddush to the mother when the father is no longer alive (he explains that this would either simply be a sevarah - a logical deduction - of Rabbah) or maybe because it is like hefker (property with no owner) and the woman therefore gets this privilege from hefker. This would explain the opinion of Rabbah.


The Rambam holds like Rabbah, that the mother collects the DMV. and the Rosh holds like Rav Chisda, that no one collects the DMV.

If Rav ZN Goldberg's analysis is correct, then the din of chavallah of a fetus would be dependent upon this machlokes Rishonim. According to the Rambam the laws of chavallah would not apply to a fetus, and according to the Rosh, the laws of chavallah would apply.

Although this is a really wonderful explanation of the sugyah, and learning through Rav ZN Goldberg's analysis is a breath of fresh "lomdishe" air, I am hard pressed to say that chavallah of the fetus is a real explanation for the prohibition against abortion. Since I have not found any other source that suggests this possibility, we are left with appreciating the beauty of HaRav Goldberg's analysis, but even he doesn't directly suggest that this is the only reason, or even the primary reason, for the abortion prohibition.

Furthermore, some acharonim explicitly rule out the possibility that there may be a prohibition of chavalah against the fetus.  The Shut Koach Shor in teshuvah 20 dismisses this possibility explicitly, and explains that the Chavalah explanation of the Maharit could only apply to the mother, and he suggests various proofs why there is no law of chavallah by a fetus. (see there for details).

In our next post we will discuss the possibility that abortions are prohibited due to stealing the property of the father, and also touch on the suggestion that maybe one is stealing from the fetus him/herself.

For those of you who might be getting a little dizzy from the incredible amount of information that we have been trying to digest together, let me summarize the five approaches that we have discussed so far regarding the prohibition (or permissibility) of abortions.  Again, we are moving from most lenient and moving towards more stringent.

1. Tosfos - abortion is Muttar
2. Ran and Rosh - abortion is muttar as long as you are not putting the mother in physical danger by terminating the pregnancy
3. Ramban, Ramah, Behag - Abortion is a bad thing because we are preventing the existence of a future Human being and shomer Mitzvos, but it is still permitted to do in extenuating circumstances.
4. Maharit - Abortion is assur because one is wounding, or causing a chavallah, in the pregnant mother.  According to this approach, abortions would be permitted for constructive purposes, in the same way that one is allowed to wound oneself for a constructive purpose.  Some would extend this even further and say that a woman can abort her own fetus, just as she is allowed to wound herself.
5. Rav ZN Goldberg 's understanding of the Rambam - that abortion would be prohibited due to chavallah of the fetus (this would be an additonal reason for the prohibition, above whatever understanding you may have of the Rambam, and above other reasons suggested by HaRav Goldberg in other places. I am not claiming that HaRav Goldberg holds that this is the only reason why an abortion may be prohibited.  - see our lengthy discussion of the Rambam's opinion here)

Abortion as Chavalah - Wounding the Pregnant Mom

Now that we have placed the two big "conundrums" behind us, we can move on in our quest to describe and list the many reasons that have been proposed to explain why an abortion is prohibited.  We have so far described four opinions, and as promised , we will now move on to explain the opinion that holds that abortions are no more or no less prohibited than it would be to injure a fellow human being. 

There are two human beings that one is potentially damaging when one performs an abortion, the mother and the fetus.  We will first look at this from the perspective of the mother, and bring those opinions who hold that abortion is prohibited because we are damaging her.  In a future post we will discuss if the fetus is considered a person enough that there may be a prohibition against damaging him/her.

The primary source for this approach is the Maharit, though others have also taken this path (see shut Tzofnas Paneakh 1:59, and shut Ateret Chachamim EhE 1, and shut Aryeh D'bei Ilai here). The Maharit is one of the standard texts on this issue, and almost every halachic discussion of this topic deals with the teshuvos of the Maharit.

There are two teshuvos that are relevant, 1:97 and 1:99. There are many points that are difficult to explain, as he seems to contradict himself somewhat, and the acharonim try to reconcile the difficulties in various ways (for example, see Tzitz eliezer Vol. 9 Siman 51, perek 3 and many others), but as this is beyond our scope, I will avoid going into the nitty gritty details of how to reconcile the two teshuvos of the Maharit. Anyone interested in more on this matter, feel free to email me and i will gladly provide references and talk about it.

However, several things are clear from the Maharit. 1) That the fetus is not considered halachically a "nefesh" and thus the laws of murder do not apply 2) That the reason for the prohibition against abortion is because of chavallah - i.e. you are causing a wound in the pregnant woman 3) That as long as it is for the health benefit of the mother, an abortion is permitted.

This approach considers the fetus to be "yerekh Imo", "a limb of his mother" and thus it is prohibited to cut off the limb or damage it in any way. He has several proofs, one is the gemara in eruchin 7a which states that when a pregnant woman is condemned to death, that we strike her stomach to kill the fetus prior to carrying out her death sentence, in order to avoid the "nivul" or "grotesqueness" of the baby moving after her execution. This is a very gruesome subject, and difficult to discuss, but consider it similar to the interest of the courts in the US where the death sentence is carried out to make the execution as smooth as possible, without having unnecessary movement or disruption of the process which is horrible enough anyway.From here he proves that we can certainly abort a fetus in order to heal a woman who is alive and well and not about to be executed, though he then says that maybe this case is different because the fetus is going to die soon anyway.

He has other proofs as well, and he brings the second opinion of the Ramban that states that we can only violate the Shabbat for a baby after she is in labor and dies, for only after her death do we see the baby as a separate being who requires an intervention to save his/her life. However, as long as she is alive, the fetus is considered yerekh Imo.

Assuming that the reason for the prohibition of abortion was due to chavalah, as is the opinion of the Maharit and those who hold like him, we would have to conclude several things. Just as it would be muttar to make a chavalah for a constructive purpose (such as doing a surgical operation for a constructive purpose) so it would be muttar to perform an abortion for a constructive purpose. Exactly how far this hetter will go, is clearly a matter that is beyond the scope of this blog post, but it should be food for thought for all of you.

Interestingly, several acharonim take this a step further (see shut Seridei Aish Vol. 3 127:22 for one example). There are those who hold that there is no prohibition for a person to wound him/herself (RaMah and Meiri for example). According to the approach of the maharit then, according to theses rishonim, there would be no prohibition at all for a woman to take a medication that would cause her to abort. As she is permitted to wound herself. (this is not totally true though, for even according to the Meiri, there is still a rabbinic prohibition for a person wounding himself, but this is again getting beyond our scope of discussion).

So we now have a fifth reason for the prohibition, the "chavalat Ha"em" ("wounding the mother") explanation.

Next post we will discuss the issue of chavalah of the fetus, then we will move on to the explanations related to the monetary value of the fetus, or the fetus as property of the parents. Just to give you a hint of where else we will be heading, after we finish discussing all of the reasons that have been proposed for the prohibition, we will then spend some time talking about the different stages of fetal development, and how that might affect the halacha, and then we will be ready to sum everything up and discuss what this all means halacha lemaaseh and try to apply our rationalist approach.

The Second Conundrum, What does the Rambam Hold?

The second conundrum that I am obligated to discuss before we move on is the opinion of the Rambam.  For starters, the Rambam clearly does rule in accordance with the opinion of Rabbi Yishmael that for a non-Jew an abortion would be prohibited, see Hilchos Melachim Perek 9 Halacha 4.  So we cannot say that he would hold like Tosfos that an abortion is permitted because he rules like the Chachamim. Most poskim assume that the Rambam would agree though that in cases where the abortion is being performed in order to preserve the life of the mother that it would be permitted even for a gentile, similar to the Tosfos in Sanhedrin that we quoted yesterday, that even according to Rabbi Yishmael, a gentile would be allowed to save the mother by killing the fetus.

The question then becomes, what does the Rambam hold regarding the prohibition of abortion for a Jew?  Since he does not directly deal with this question, we are stuck trying to infer from his other statements exactly what he holds.  It would seem clear from the fact that he emphasizes that for a gentile he is prohibited even to kill an unborn fetus, that for a Jew this would not be the case, at least he would not be liable for capital punishment.  However, the Rambam may still hold that there is some prohibition other than murder which might carry less of a penalty.

The poskim throughout the centuries have tried to tease out the opinion of the Rambam and many different approaches have been proposed.  I cannot here go through all the detail, but I will summarize the basic approaches, and try to give you some mareh mekomot (sources) for those that would like to study the topic in more detail.

The most important source in the Rambam are his words in Hilchot Rotzeach (murder)  1:9, we he discusses the Mishna in oholot that allows killing a fetus to save the mother, but since the head is delivered, we consider them as two equal lives.  The Rambam writes as follows (my own translation):

 "This is also prohibited [by the Torah] to have compassion on the soul of one who is trying to kill another (a rodef). therefore the Rabbis taught us that when a pregnant woman is in labor, it is permitted to dismember the fetus, both by medications and by hand, because he (the fetus) is considered like one who is chasing after her to kill her, but once his head is delivered, we cannot touch him (i.e. harm him) because we do not harm one soul for another, and this is the nature of the world..."

There are two primary issues that the poskim have difficulty with in this Rambam.  The first issue is, why did the rambam add the reason of Rodef to explain why it is permitted to kill the fetus before it is born?  Virtually all the other Rishonim explained simply that it is permitted to kill the fetus because it is not yet considered a nefesh (soul).  For what reason did the Rambam have to introduce this concept?
The second question is, once we introduce the concept of rodef, why does it change when the child's head is delivered?  the concept of rodef should apply even to a full fledged adult!  So why can we not harm the child once the head is delivered?

To answer the first question, I will bring a selection of the different approaches of the acharonim. The Semah in C.M. 425:8 writes that the Rambam really agrees with the other Rishonim that a fetus is not considered a nefesh and that a Jew  is not liable for killing a fetus.  According to the Semah, it is not really clear why the Rambam needed to use the explanation of Rodef. So the acharonim took several different approaches to explain this. The Nodeh b'Yehuda in Mahadurah Tinyanah C.M 59 explains that even though the Rambam agreed that it is not considered a nefesh, one still needs a heter, some reason why it should be allowed.  Because although it may not be considered murder, it is still assur (prohibited) just like it would be assur to kill a treifah (a person who is dying but still alive - it is prohibited, but not liable for capital punishment).  So therefore the Rambam said that in this instance it would be permitted because of Rodef.

The Shut Geoney Batra'i Teshuvah 45, also brought by Rabbi Akiva Eiger in his notes on the Mishna in Oholot writes that although the Rambam agreed that it is not murder, one still needs the reason of rodef because of the "tzurat ha'harigah" The method with which the fetus is killed.  I don;t fully understand this concept, but it seems that he is saying that the gruesomeness and aweful idea of killing a fetus in this way requires an extra heter of rodef.  Kind of like saying, it is muttar, but don;t feel so bad about it, because this child is a rodef.

Others explain, such as the Shut Achiezer Chelek 3 72:3 that the rambam differentiates between before and after the onset of labor.  This means that prior to labor, the child is considered Yerekh Imo (a limb of the mother) and therefore not considered an individual soul.  Whereas once labor has started, the fetus is considered an individual, and thus killing it would be prohibited if not for the principle of rodef.

Another explanation, brought by Rabbi Akivah Eiger in the aforementioned note, that maybe the Rambam only needed the explanation of rodef to permit a gentile to kill a  fetus in such situations, while for a Jew, this was not necessary, as it is permitted anyway.

Finally, I will mention one more explanation, that of the Beit Shlomo, Torat Chessed, and Levushei Mordechai. They explain that although the Rambam agreed that there is no prohibition of murder for killing a fetus, but there is still a problem that when one kills the fetus he is harming the "property" of the father.  While in general one is not allowed to save oneself by stealing another's property (assur lehatzil atzmo bemammon chavero) here, because of the rule of rodef, it would be allowed.

Another possible approach is to learn from the Rambam that indeed it is prohibited to kill a fetus, and that the Rambam disagrees with the other opinions that hold that a fetus is not a nefesh.  This opinion is that of R' Moshe Feinstein in Igros Moshe Vol 7 C.M. Teshuvah 69.  According to this opinion, the Rambam needed the reason of Rodef in order to permit the actual murder of the fetus.  I am saving a more detailed discussion of this opinion for much later in this blog, as this is part of the basis for the most stringent opinion, and  am working my way from most lenient to most stringent.  We'll get there, Bli Neder.

So that is the way the poskim deal with question # 1, now how then do they answer question # 2?  If the fetus is a rodef, why does that not apply once the head is delivered, is he not still a rodef then?  Why can he not be killed to save the mother?

Again, there is a preponderance of answers to this question, and it depends somewhat on how you deal with the first question.  The aforementioned Semah explains that this is the reason why the Rambam stated, "for this is the nature of the world (Tivo shel olam)".  Because this is the way of nature, that some women (May God save us from some tragedy) die from childbirth.  meaning that once the child is born, we no longer consider the child to be the killer, but rather it is the course of nature.  Now that we have two human beings in front of us, we no longer consider the child a rodef.

Almost every source that I brought before deals with this question of why it is prohibited to kill a baby if it is endangering the mother because of the rodef rule, and each answers it in his own way.  However, for our purpose, i want to concentrate on the opinion of the Rambam regarding the as yet unborn fetus, prior to birth, as our series is about abortion, not infanticide.

One more point before we summarize our findings regarding the opinion of the Rambam. It seems that the Rambam was not concerned about the rule of Lekah Mid'am, as he does differentiate between the Jew and the Gentile in this matter.  (See Chassam Sofer Shut Y.D. 19, and Arukh LaNer Sanhedrin 59 who make this point).

In sum, we have determined a few things regarding the opinion of the Rambam regarding abortion:

1) It is prohibited for a gentile due to the pasuk of Shofekh Dam haAdam Baadam as was the opinion of Rabbi Yishmael

2) The Rambam is not concerned with the rule of Lek'ak Mid'am

3) The opinion of the Rambam regarding a Jew performing an abortion is very unclear, and the Acharonim range in their interpretation of the Rambam all the way from a) (on the left) it is permitted but just needs the rule of Rodef because of the gruesomeness of the procedure (Geoney Basra'i) b) (in the center) it isn't murder but there is some other lesser prohibition (almost every acharon each according to his approach) to c) (on the right) that according to the Rambam abortion for a Jew is considered outright murder (Igros Moshe)

Now that we have discussed the "two conundrums" we can move on with our quest for the reason for teh prhibition against abortion.  Our next discussion will focus on the problem of chavalah, the perspective of looking at the prohibition of abortion as one would look at the prohibition of wounding a fellow man, in this case, the pregnant woman.

I beg you to be patient with me, because once we finish our analysis of this topic from a halachic perspective, I promise you that we will take a rationalist's eye to all of this data, and come up with a logical, ethical, and rational way to deal with this very controversial and difficult issue.  It is crucial though, for you to understand the complexity of the topic, so that you will understand the basis of our approach. It is impossible for me to write a paragraph of fluffy writing about "Judaism's view on abortion" and thus tell you in soundbyte fashion what the rationalist approach should be.  Thanks so much to those of you that are still "hanging in there" with me.

The First Conundrum - the Stirah (contradiction) in Tosfos

I simply cannot discuss the various opinions regarding the laws of abortion in the rishonim without at least addressing two Talmudic conundrums which appear all over the acharonim who discuss abortion. The first is the famous "stirah (contradiction) in Tosfos" and the second is the opinion of the Rambam with regard to abortion. Today we will deal with the first conundrum.

We have referred numerous times to Tosfos' opinion that abortions are muttar (permitted). I cannot honestly discuss tosfos' opinion without devoting some time to the famous "stirah" (contradiction) in Tosfos to which hundreds of pages have been devoted throughout the sifrei acharonim. I must apologize that for obvious reasons, this is not the place to go through every single possible derekh (approach) that has been suggested as a possible solution to this stirah, but I must at least mention the primary ways that the acharonim have tried to answer this problem. First, here is the question:

The gemara in Sanhedrin 59a mentions the following rule "Lekah Mid'am D'L'Yisrael Shari, Ule'akum assur" (there is no action that is permitted for a Jew, but prohibited for a gentile). Whether or not this rule is accepted as practical halacha will be discussed in more detail later, but there is one obvious problem with this rule, and that is the laws of abortion. Tosfos there DH "Leka Mid'am" questions this rule from the gemara in Sanhedrin 57b which seemed to infer that only a gentile is liable for capital punishment for killing a fetus, but not a Jew. Tosfos there has two answers this question as follows, that although a Jew may not be liable for capital punishment, it is still prohibited for him to kill a fetus. Tosfos then asks why it would be permitted for a Jew to kill a fetus when the mother's life is threatened, which he then explains is true clearly because he is saving her life, and he suggests that this would apply to a gentile physician as well.

On the surface, this seems to contradict what we have been saying all along was the opinion of Tosfos that abortion is permitted, and openly contradicts the Tosfos in Niddah that we have been quoting.

In order to explain this, let me summarize some of the many approaches to this problem that have been suggested by the acharonim.

The simplest and most obvious approach is to point out that Tosfos is only asking this question according to Rabbi Yishmael. In other words, the rule of "Lekah Mid'am" seems to contradict the opinion of Rabbi Yishmael that abortion is prohibited for a gentile, but not a Jew. However, since we have pointed out that we do not rule according to rabbi yishmael, the practical halacha would be that abortion is permitted, and that explains tosfos in Niddah. This is indeed the approach of many acharonim (tzitz eliezer, achiezer, toras chessed and others).

The second approach, which is the approach of the majority of the acharonim is some variation of the following. That when Tosfos in Niddah says Muttar Lehargo" "It is permitted to kill the fetus", what he really means is that in terms if the prohibition of murder it is permitted to abort the fetus. However, there may be some other reason that even Tosfos would agree that one really should not abort the fetus. The reasons abound. many claim that Tosfos would prohibit this on the basis of the fact that one is endangering the mother (similar to the Ran amd Rosh) others claim that it is because one is causing a wound to the mother (Choevel U'mazik - which we will get to in detail in a future post) and others claim that it is simply a rabbinic prohibition which exists solely because there is a prohibition for gentiles, so the Rabbis prohibited it for Jews as well (we will deal with this later as well).

A variation of this approach is to say that when tosfos said "Muttar" (permitted) , what he really meant was that it is "pattur" (not liable). Another extreme variation of this approach is to amend the Tosfos altogether and say that it was a typographical error, which is difficult to accept, as virtually every single authority that has studied and dealt with this Tosfos, both Rishonim and Acharonim have grappled with these words of Tosfos.

Another approach suggested by various acharonim is that Tosfos in Sanhedrin is explaining the gemara's rule of "lekah Mid'am", but that in actuality Tosfos does not rule according to this dictum. In other words, when Tosfos in Sanhedrin writes that abortions are prohibited he is only explaining this rule, but in Niddah, he is discussing practical halacha, and practically we do not rule according to lekah mid'am, but it may be that there are things which are prohibited to gentiles but permitted to Jews, (this indeed seems to be the opinion of the Rambam according to many authorities).

To summarize here, we have dealt with the famous "stirah" on Tosfos regarding the permissibility of performing abortions in several ways.

1)The preponderance of acharonim seem to take the approach that Tosfos holds, halacha l'maaseh (practical halacha), as follows:

There is no specific prohibition against abortion for a Jewish physician, however, there may be other reasons why an abortion may be prohibited, although Tosfos does not give us too many clues as to what those reasons may be (it could be due to Chovel U'Mazik, a "rabbinic prohibition", endangering the mother, the rule of "lekah Mid'am" or various other suggestions).

2) A significant group of acharonim believe that Tosfos holds that abortion is muttar, but the Tosfos in Sanhedrin is only explaining the gemara there which holds that it is assur. However, halacha lemaaseh, either because we do not hold like Rabbi Yishmael, or because we do not hold of the rule "lakah Mid'am" abortion is actually muttar.

It was necessary for me to discuss this topic, so that people do not think I ignored this important discussion regarding the opinion of Tosfos. In the next post we will summarize the various approaches to understanding the opinion of the Rambam, another important subject upon which there has much debate among the Acharonim and thus cannot be ignored. We will then be able to continue on our quest for identifying reasons why abortions may be prohibited. I already hinted at four of these reasons today, one is the laws of "chovel U'Mazik" (wounding and damaging), more specifically the problem of chavallah - causing a wound to the mother, which will be the next discussion after we discuss the Rambam. That will become reason # 4 that is given for the prohibition of abortion. We also hinted at reason # 5, which is "lekah Mid'am", and reason # 6 which is a non specific rabbinic prohibition against abortions. Reason # 7 will be the "mazik" (damaging) half of "chovel umazzik" which will force us to look at the fetus as the property of the father, not very politically correct in modern times, but an approach that we will have to touch upon anyway.

Just to reiterate again my goals. I am trying to demonstrate to you how incredibly unique this area of halacha is, in the fact that there are so many different understandings as to why it may or may not be prohibited. Once we are done with this survey, you will hopefully agree with my conclusions regarding how to practically deal with this very important and very complex issue. It is unfortunately essential to go through this very long process in order to appreciate the rationalist medical halachic approach to abortion.

One more thing, I chose not to inundate you with the sources and footnotes for all the acharonim I alluded to in this post, if anyone would like some "mareh mekomot" (sources), please feel free to email me at rationalistmedicalhalacha@gmail.com and I would be happy to provide them.

The First and Second Reasons Why Abortions may be Prohibited

The last few posts were dedicated to explaining the opinions of Tosfos, the Ran, and the Rosh, that abortions are permissible.  However, we did get a little hint as to two possible reasons why one may not be allowed to perform an abortion, even according to these opinions.  However, this was not specifically because abortions are prohibited, but rather because there may be other types of damage that one is doing when he/she terminates a pregnancy.  I apologize for the fact that these posts are lengthy and detailed, and that we will devote a large amount of time to this topic.  Unfortunately, this must be done in order to impress upon you the points I am trying to make.

First, let us reexamine the Rosh and the Ran for a minute.  We concluded that both of these Rishonim hold that there is no specific prohibition against performing an abortion.  However, both of these authorities pointed out that when one causes damage to a fetus, that one puts the mother in a situation of danger as well.  Clearly this means that if one were to perform an unsafe abortion, the Ran and the Rosh would certainly agree that such an act would be prohibited.  We can also infer from here that when an abortion is performed in a safe medical procedure, that this problem would not be an issue.  So we have our first inkling of a reason why some terminations would be prohibited, that would be unsafely performed procedures.  Many poskim have pointed out that according to the Ran and the Rosh, it would seem that a safe medical abortion would be permitted. (these include Levushei Mordechai YD Siman 87, Mishpetei Uziel Chelek 3 CM 46, Avnei Tzedek CM 19, Binyan David 47 and others).

Now let us look at the Ramban a little closer.  You may recall from the previous post, that it was the Ramban who told us that despite the fact that there is no prohibition of murder by a fetus, that one may still violate the Sabbath for the sake of the fetus alone because iof the rule "challel Shabbat Achat K'dei Sheyishmor Shabbatot harbeh" Violate this one sabbath [to save this potential child's life] so that the child can keep many sabbaths [in his/her lifetime].  This I will call the CSA rule.  The poskim generally assume that the Ramban holds that there is no prohibition of murder by a fetus from his words in Chiddushei HaRamban Niddah 44a where he explicitly writes as follows (my own translation): "Even though a fetus is not considered a living human soul (nefesh adam), and the laws of saving a life do not apply to a fetus (lekah bey mishum hatzalas nefesh) Nonetheless we can violate the sabbath to save him/her because there the Torah permits it due to CSA..."  This is similar but even stronger language then we saw the Ramban use in Toras Ha'Adam in the last post.  Remember also that the Ramban was quoting the Ba'al Halachot Gedolot  (known as the Behag). We also see a similar statement by another important Rishon, the Ramah in Sanhedrin 57b.

If we think for a moment about this Ramban, the CSA rule really impresses upon us the incredible value that the Torah places on the fetus as a potential human being, and a potential shomer mitzvot.  So much so that even chillul shabbos is permitted simply to preserve the potential of this future person.  It would follow then, that the corollary of this would be how terrible it would be to end the life of this future person, and thus prevent the existence of a future human being and shomer/shomeret mitzvot!  This then would be another reason, derived from the Ramban why an abortion in most circumstances should not be done.  However, we must realize that according to the Ramban, the Ramah, and the Behag the Torah never explicitly prohibits abortion.  So although we can infer from these authorities that abortions are not good things to do according to the Torah, we can also conclude that they are not prohibited either, and that there may be circumstances where it would be warranted to perform such an abortion.

This approach is indeed taken by several Acharonim and modern poskim, and they use the Ramban as their starting point (see Ohel Moshe 3 page 49, Rabbi M Hirshler in a Sefer Zicharon for R Yechezkel Abramsky ZTL 5738 page 335).

One more point before we leave the Ramban, remember that he did also bring a second opinion, that did not agree with the CSA principle.  These authorities would be even more lenient in deciding when an abortion should be performed then the ramban was, they may even permit it outright, although we do not know enough about this opinion to decide what they would say.

So let me summarize what we have determined until this point.  remember that I promised we would go through numerous opinions, starting with the most lenient, and moving on to the most stringent.  My goal is to demonstrate two things, # 1 to develop a common sense halachic approach, and # 2 to show how unusual this topic is due to the incredible array of halachic opinions regarding its permissibility/prohibition.  So far we have three opinions, starting with the most lenient.

1. Tosfos - abortion is Muttar
2. Ran and Rosh - abortion is muttar as long as you are not putting the mother in physical danger by terminating the pregnancy
3. Ramban, Ramah, Behag - Abortion is a bad thing because we are preventing the existence of a future Human being and shomer Mitzvos, but it is still permitted to do in extenuating circumstances.

We still have a lot more to say on the topic, and you will be amazed regarding the array of different opinions.  I hope to convince that this is indeed one of the most unique areas in halacha due to the diversity of opinion about it.  Next we will talk about two topics simply because I cannot be accused of ignoring them.  One is that we will attempt to decipher the opinion of the Rambam, and the second is to discuss the famous contradiction in Tosfos.  If I am keeping you in suspense, that's fine.  Hang in there until next time.

The Shita of the Rosh and the Ran, and the Common Sense Principle

First of all, I sincerely apologize for the delay in writing these posts. Please understand that I have not given up this pursuit, I am only very busy and have limited time on my hands.  I will not stop, so please hang in there.

I have been accused by some of my friends that I am guilty of deciding what my conclusion is going to be before I do my research on a topic.  They have pointed to the common sense principal as a key example. If I decide beforehand what common sense dictates, and then I set out to find a halachic way to a conclusion that fits with my view of common sense, then aren't I searching for justifications for my own beliefs rather than searching for the Torah's viewpoint?  Well, in a sense I am guilty as charged.  However, I do have what I believe to be a satisfactory explanation and answer to these charges.  Please forgive me if I wait until another post in the future to answer these charges.  In the meantime, be patient and I hope you will be impressed with the scholarship and research enough to see that my opinions here are at least viable and reasonable enough halachic conclusions that we need to take them seriously. If you disagree, fine, but at least i hope you will admit that they are not simply justifications.  I still have way to much substance to share with you before I have to respond to my detractors.  In fact, part of my answer to them is the amount of substance that I have compiled.

Last time I left off with a promise that I would come back to the opinion of the Ran and Rosh.  It is my intent to decipher their opinion today.  But first let me remind you of the common sense principal.  For those of you that do not remember my first post and the five principals of rationalist medical halacha, let me quote it again here (it is number 4):


4) The Common Sense Principle - Some Halachic decisions seem to go against common sense.  In many cases, this is simply a result of not appreciating true Torah values in contrast with the values of the rest of the modern world.  In these cases we are clearly obligated to try and understand the Torah values, and implement them into our lives, in contrast with the whims of modern society. However, sometimes simple common sense should lead you to understand that the psak halachah you may have received is wrong.  If an analysis of the sources based on our principles leads one to conclude that the Torah and common sense actually do agree, then one should live by common sense, and not according to what is obviously an erroneous psak halacha.

Now what should common sense lead one to believe when it comes to a topic such as abortion?  Ouch, this is a difficult one, especially for those who find themselves on the news screaming "right to life' or "right to choose"  they seem to be convinced of what is common sense.  However, when laws are passed in almost all states in the US, they generally follow along lines that are similar to the following:

1)Pregnancies with babies that are viable and can live and survive on their own, should not and cannot be terminated.

2) Pregnancies with babies that are not viable and cannot survive on their own, there may be circumstances where they can be terminated

Now admittedly, there are many different variations of the details, but there are very few people that would disagree about the basics of what I just said, barring the extremists on both sides of the issue.  If you don't believe me, look at the laws of almost every state in the Union.  When push comes to shove, society seems to agree that that is a reasonable basic approach to this touchy issue.

Does the Torah agree more or less with this idea?  Does the Torah provide us with guidance regarding when and if abortions can be done? Of course it does, and once we deliniate the many opnions as to the origins of the prohibition of abortion in the Torah, you will understand the basis of the Torah's guidance. Now we can go ahead and analyze the Rosh and the Ran.

Allow me to lay out the sugyos in shas that the Rosh and Ran (and Ramban) deal with and try to reconcile.  We will find that they have a very similar, if not identical approach, and from this analysis we will derive a very coherent, and common sense approach to this difficult topic.

1) The sugyah in Yoma 82a which discusses the permissibility of a pregnant woman eating forbidden foods, and eating on Yom Kippur, because if she did not eat, her fetus would abort

2) The sugyah in Eruchin 7a which discusses a woman who dies in childbirth, that one can violate the sabbath M'D'Oraytah in order to open her abdomen in an attempt to save the unborn child, and the mishna in Eruchin that states that a woman liable for capital punishment gets executed even if she is pregnant

3) The mishna in Oholot 7:6 which discusses a woman at risk of losing her life in labor, which permits killing and dismembering the child in order to save the mother

4) The sugyah in Niddah 44a which discusses the issur of killing a human being, even a one day old infant, but explicitly rules out (either the prohibition of murder or the death penalty - we'll get to this later) the killing of an unborn child

5) The pasuk in the Torah that punishes the killer of a fetus with a fine, and seems to indicate that it is not the same as if he had killed a human being

We already brought the words of the Ran in Chullin in our last post.  There he stated that the reason we do not wait to execute the mother, is because the child had not yet entered this world. He also invoked there the idea that the reason why we execute the woman is NOT because ubar "lav yerekh imo" implying that in general we do look at the child as a limb of the mother, and not as an independent human being. We will return to that thought shortly.

Now let us move on to the words of the Ran in Yoma 82a.  There he is discussing the gemara that permits a pregnant woman to eat forbidden foods because if she did not, she would lose her child.  The Ran brings the Ramban in Toras HaAdam who entertains the following question, why is it that she is allowed to eat forbidden foods to save the baby, is it because we are concerned with her life, or the baby's life.  The first peshat that the Ramban brings is that we are allowed to let her eat, in order to save the baby.  The justification that the ramban uses for this is the principle that "challel Shabbat achat, kedey sheyishmar shabbatot harbey" "violate this sabbath so that he (the fetus in the future) can keep future sabbaths."  (Much ink has been spilled in an attempt to fully understand this principle, and we will get back to it in the next post, which will be devoted to explicating the opinion of the Ramban himself.  Today, I am only bringing the Ramban in order to lead us to an understanding of the Ran and Rosh).  The ramban goes on to explain how this works well with the sugyah in eruchin that allows us to be mechallel shabbos in order to cut open a dead woman to save her baby on shabbos.  But then the Ramban notes, even though we have three sugyos that would seem to tell us that "les bey mishum hatzalas nefashos" "there is no concept of saving a life as it pertains to a fetus", and these three sugyos are 1) The mishna in Oholot that permits us to dismember a fetus to save a woman in labor 2) The pasuk which refers to a fine for someone responsible for aborting a fetus 3) The gemara in niddah which states that only a baby one day old but not a fetus is considered murder, despite these three clear sugyos, we can STILL be mechallel shabbos due to the principle of challel shabbat achat.....

The second peshat that the Ramban brings is that actually, we cannot save the life of a fetus on shabbos.  Importantly the language that the Ramban uses when describing this opinion is that we cannot save the life of a NEFEL (a fetus which is a nefel) on shabbos (which is a diyuk that seems to have floated right by many meforshim without taking note of its implications, because it would seem to suggest that the ramban is differentiating between a fetus that can survive on its own, and a fetus that cannot survive on its own).  according to this opinion, the reason why we allow a pregnant woman to eat forbidden foods is because we are concerned that if she were to lose her fetus, that she would then become in a state of sakanah.  According to this opinion, the reason why we are allowed to be mechallel shabbos to cut open a corpse is because she is no longer alive, and now the fetus is no longer "yerekh Imo".  Therefore we look upon the corpse of the mother as an obstacle in front of a live baby, as if "a door is locked in front of him", and therefore to save the baby we can cut the corpse.

The implications of this Ramban are many, and we will get back to the opinion of the ramban himself in the next post.  But for now, let's see what the Ran does with it.  The Ran questions the Ramban as follows:

"I don't understand what the purpose is in all of these minutiae, Since there is no such thing as a danger to the mother which is not a danger to the fetus, and no such thing as a danger to the fetus which is not a danger to the mother..."

From this, many contemporary poskim have concluded that the Ran holds that an abortion is prohibited because we are putting the mother at risk by causing her to abort.  This is not at all what the Ran is saying.  rather, the Ran is questioning the Ramban's explanation of the hetter for a pregnant woman to eat forbidden foods.  He`says that you cannot prove from here at all that one can be mechallel shabbos in order to save a fetus, because a sakanah to the fetus is a sakanah to the mother as well.  So all you can prove from this gemara is that one can eat forbidden foods when a woman's life is in danger. That is the Ran's objection.  Therefore we do not need the Ramban's very controversial and difficult to understand concept of challel shabbat achat (CSA).  And now, according to the Ran, all of the sugyos mentioned by the Ramban in support of the fact that it is muttar to abort a fetus make perfect sense. The Ran remains consistent with his opinion mentioned in Chullin that we are not concerned with the life of the fetus when executing the mother. More importantly, the ran remains consistent with his opinion that we developed in the last post, that there is no issur in aborting a fetus, if not for the fact that we would be putting the mother in danger.

If this is so, why then can we violate the shabbos to cut open a corpse according to the Ran.  Before I answer this, let me analyze the opinion of the Rosh.  The Rosh in Yoma 82a brings the same ramban, and makes the exact same comments that the Ran made regarding the Ramban's diyuk that we can be mechallel shabbos to save the life of a fetus even

We will come back to this Rosh several times in future posts, because it is fundamental, however, if you recall, we brought the language of this Rosh last time as he supports the opinion of Tosfos that it is muttar to abort a fetus.  After establishing this, he asks the following obvious question, (my translation), "If it is permitted to kill a fetus, the why can we be mechallel shabbos to save him? as it says....so therefore it appears to me that it is considered like a safek (a possible) saving of life, and nonetheless it is still permitted to kill the fetus [in order to save the mother], (but on shabbos we can save even a safek nefesh)"

The Rosh requires some explanation, what exactly is the safek?  Is it a safek in the halacha, or is it a safek in the specific status of this child.  I mean, is the Rosh concerned that maybe a fetus is conceptually considered a nefesh, in which case aborting it would be a safek murder, or maybe the Rosh is not concerned with the concept, he knows that murder does not apply to a fetus, but rather he is concerned that when the woman dies in childbirth, maybe this baby is alive. In brisker terms, is it a safek in metzius, or a safek in din?

It is clear from analyzing the Rosh in its entiretly, and by comparing it with the Rosh in Yoma what he means.  If it was a safek in din, then he would have been required to go back and explain to us why all of the other sugyos indicated ckearky that it was muttar to abort a fetus.  The pasuk by demey vlados, the gemara in niddah about a tinok ben yomo, the mishna in Oholot, and the sugyah about a woman liable for capital punishment, all of these proofs the Rosh still stood his ground that they proved that it was "Muttar LeHargo".  Only in the case of shabbos, once the mother is no longer alive, if the baby is still alive, NOW it is a safek, because maybe the baby is alive, and maybe the mother's corpse is only an obstacle preventing the baby from living!  So now we have a safek sakanat nefashot, and are thus allowed to be mechallel shabbos.  See Tosfos in Niddah 44a D'H Ihu whi also holds that there is no issur of abortion, and he answers this problem in exactly the same way. Incidentally, the Ran and the Rosh both just finished quoting the words of the second opinion mentioned by the Rambam, who also said the same thoughts regarding the status of a fetus as being independent once the mother is no longer alive.  The Ran and Rosh never disagreed with that concept, they only disagreed with the Ramban's idea that one could conclude from the gemara that you can be mechallel shabbos to save even a nefel, even a child that could never survive due to the controversial concept of CSA.

It is quite clear that the Ran would agree with this as well.  Remember that the Ran had the exact same analysis as the Rosh in Yoma regarding a pregnant woman eating forbidden foods, and the exact same comments on the Ramban's analysis.  Also recall our discussion of the Ran in the last post in which the ran in Chullin clearly held there was no issur in aborting the fetus.

I know that this was long and drawn out, but if I am to demonstrate the opinions of the Rishonim, I felt that I had to develop them completely, so I will not be accused of simply reading the poskim at face value.

So we have now developed the opinions of Tosfos, Rosh and Ran, all of whom hold that there is no issur in aborting a fetus.  Clearly, they understood the gemara in Sanhedrin which bring Rabbi Yishmael in the same way that tosfos did, just like the Achiezer explained, that it was a shitas yachid, and the chachamim disagree. Next we will move on to the Ramban, and start finding reasons why abortion may be prohibited. I promise you that we are not finished with the Rosh and Ran, please feel free to comment, but we have a lot more work to do.

One more thing before I let go.  I wrote about the common sense principal to remind my readers that we are heading to a rationalist and common sense approach to this very controversial area of halacha.  You can hopefully see this slowly developing as this discussion continues.  Once we establish that there is no specific issur of abortion in the torah (at least according to many opinions), we can then explain the many valid reasons that are Torah based for not doing abortions, without a real issur, we will also have exceptions to the rule which are reasonable. and then PRESTO, we will have a very common sense approach that works!  Hope you are still with me.  Shabbat Shalom