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.

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.