Genetic Testing - What is it and Let's get Started Again!

I sincerely apologize to everyone who has followed this blog in the past for my prolonged absence from the "blogosphere".  I attribute my absence to my busy life as a father, physician, and simply being an active participant in the community that I live in. So blogging had to take a back seat for a while. However, after much soul searching, i realized that this blog afforded me the opportunity to express my ideas to the people who could most benefit from them, but more importantly, the opportunity to get feedback from those very same people.

So here I am, ready to pick up where I left off a while back, the topic of genetic testing from a rationalist medical Halachic perspective.

Before I begin, let me say with a measure of both pride and humility, that the three topics (Time of death, treating gentiles on Shabbat, and abortion) I covered so far and my treatment of those subjects, has made significant waves in the Jewish community.  This blog has positively influenced the thinking of many leaders in the field, and I am proud of that achievement.  But there is so so much more work to do, and the list of issues we need to tackle grows daily.  

Please feel free to suggest topics, and as always, please feel free to speak your mind in the comments section, I really enjoy and learn from the feedback you give me.

Several weeks ago, a pamphlet published by YU landed in front of my seat in shul called, "To-Go" and the topic of this pamphlet was strengthening marriage and relationship-building.  Naturally I picked it up and perused through it, with my mind settling on an article by Dr Eddie Reichman about the Halachic "Mandate of Genetic Testing".  Naturally, any article by Dr. Reichman deserves my attention, so I read it carefully and enjoyed it, and will be referring to it as we progress through this blog topic.

But most importantly for me, this article gave me the "kick in the pants" that I needed to get back to blogging!

So here we go!

The term genetic testing conjures up all sorts of images in the popular imagination. It seems to me that any discussion of genetics stimulates more fear and trepidation than other types of medical testing, especially among Jews.  There are obvious historical reasons for this, but the purpose of this blog is not to delve into the history of the relationship between anti-semitism and genetics.  However, it is imperative for any Jew who believes that being informed about his/her health is part of the biblical mandate of "VeNishmartem Me'od L'Nafshoteikhem" to get him/herself educated about this incredibly important topic.

Just for a "heads up", I am going to be discussing various programs for genetic testing that are currently being used in the Orthodox Jewish community.  I hope to analyze through our "Rationalist" lens  some of the advantages and disadvantages of several of these approaches.

What does the term "genetic testing" mean?

The term genetic testing refers to any medical test that is meant to determine any part of the genetic makeup of any individual or future individual (such as an embryo).  It is thus a very broad term, and I first need to describe the basic areas in modern medicine in which genetic tests are used.  There are many different types of genetic testing that are used by physicians today.

1) Prenatal testing - This refers to testing of a fetus during the various stages of development during pregnancy.  The purpose is to diagnose any possible medical conditions that the fetus may be afflicted with, specifically medical conditions that are known to be genetically caused.

2) Premarital or preconception testing - This refers to testing that prospective parents might get in order to determine what types of genetic disorders they may be at risk of transmitting to their potential offspring, should they decide to have children together in the future.

3) Individual Testing - This refers to testing a person who is not currently afflicted with any known genetically caused disorder in order to determine his/her risk for developing a particular disease that is at least partially caused by a known genetic defect. The most common example of this is the BRCA gene which is known to significantly increase the risk of breast cancer in those people who carry the gene.  The purpose of such testing is to determine if interventions might be able to be done in select individuals that would reduce the risk of them ever contracting the disease.

4) Diagnositic testing - This is done in a person who is afflicted with an illness, and it is suspected that it may be due to a certain genetic disorder.  By checking off specific genes, this may help determine exactly what is causing the problem, which may help to properly treat the afflicted person.

5) Testing embryos, ova or sperm for eventual fertilization or  implantation - Such testing is usually done during the process of infertility treatment.  In such cases, embryos are tested before implanting them into the mother's uterus.  The purpose is to diagnose which embryos nay have certain desirable or undesirable characteristics which will help determine which embryos to implant and which to discard.

6) Forensic and paternity testing - This refers to testing of blood or materials for DNA with the purpose of determining the identity of the origin of the DNA. In the case of paternity testing it is to determine the father of a particular individual, in the case of forensic testing it is to determine the person from whom the material originated, usually for the purpose of criminal investigation.

With that behind us, let's move on to my next post, in which I will discuss some of the reasons why from a religious perspective, genetic testing is such an important part of taking care of our health.

Genetic Testing

This is the start of a new series in this blog, one which has been on my mind for quite some time, and one which has been on my mind for quite some time.  It seems to me that each topic I have chosen so far has something unique and special about it that makes it stand out as a paradigm for what i believe is a fresh "rationalist" approach to medical Halacha. 

The first topic we discussed, brain death, represents the difficulty one has when contemporary Halacha has to consider the medical knowledge that led to the Halachic precedents that are recorded in Chazal and earlier poskim.  We described how important it is to understand why the gemara said what it did regarding the determination of death, and what chazal's understanding of physiology was.

Our second topic, treating goyim on shabbos, represents the problems one encounters when Halacha seems to conflict with our basic moral sense of right and wrong.

The third topic, abortion, was a rationalist approach to a subject which had no clear Halachic consensus, and the decision making process that should be involved in dealing with something this unclear and complex.

This new thread, will deal with a Halachic topic that is unique for several reasons, which I plan on demonstrating during the writing of the series.

1)  This topic is unique, because the scientific knowledge in this area increases so quickly and so dramatically, that a Halachic treatment of the subject that may have been valid two years ago may be no longer valid.  I am going to argue, that not only is the knowledge that we accumulate quantitatively increased, but qualitatively as well.  Thus, not only do we know more "stuff", but the accumulated knowledge needs to fundamentally change the way the religious community deals with this subject responsibly and consistent with Halacha.

2) This topic is also unique because it forces us to consider fundamental Jewish concepts in ways that our great leaders of the past could not possibly have foreseen.  Concepts and ideas such as fate, predestination, divine guidance of wordly events ("hashgachah pratis"), hishtadlut, bitachon, and many other most fundamental concepts have to be reconsidered in light of the challenges of this wonderful new area of knowledge that science has given us.  It is my contention, that the approach one takes to genetic testing is highly dependent upon how one approaches the above mentioned concepts and their relative value in Judaism. The intersection of "Hashkafah" and "Halacha" is especially relevant when considering this topic.

The question then becomes, how much should scientific knowledge change the level of importance that we give to certain Torah values.  I know this sounds a bit heretical at first, but please give me a chance to explain exactly what I mean before you make any judgements.

3) This topic is also unique, in that a primary issue involved is the value of knowledge itself. Most Halacha revolves around actions.  Halacha usually forces one to consider such questions like, "what am I allowed to do?" or, "What am I obligated to do?"  However, when it comes to genetic testing, the question is very different. This is because one is asking, "what knowledge should I seek to find out?" or "Is it better to know some piece of information or not to know it?"  This is not the usual Halachic quandary, and it forces us to inquire into the fundamentals of the Jewish values of seeking knowledge and learning vs. faith and trust in God.

I must beg your patience as we work through this subject, as it will take me some time to develop my ideas.  Please forgive me, because I also have a "day job" ;-). So if I miss a few days, please be aware that it is not because I have given up on this enterprise.

My general plan will be as follows, though I may change it here and there as we progress through the subject.

First I plan on giving some background.  I will review the state of genetic testing in practical medicine today, and review the options, treatments available, and enough science that you will hopefully understand the basics.  I will then review the sources that the poskim bring from chazal and rishonim acharonim etc. that are used when discussing the subject.  Then we will discuss the various major contemporary poskim and how they dealt with (or deal with) these issues.  Then we will embark on our rationalist analysis, using the five principles of Rationalist Medical Halacha.

A Halachic Rationalist Approach to Abortion

Today’s post is a result of years of research and reading, a career full of practical experience, pondering the three thoughts that I told you to ponder at the end of my last post, and applying the five principles of rationalist medical halacha. In this post I hope to wrap up this issue, and I beg you to patiently read it through until the end before you form your opinion about it.  I truly hope, that after you read this blog series, and after you read this post, you will have a well-founded and comprehensive Torah approach to this difficult subject that you can take with you for life.

Let me start by telling you just a little bit about what we know about the development of a fetus from conception until birth.  This will be the fastest and briefest course in embryology that you will ever have, so listen carefully, and hold on to your seats.

After fertilization occurs of the ova (egg) with the sperm, there is one single microscopic cell with the entire DNA in it for a future human being. However, it is still only one single tiny cell.  It begins to divide and divide rapidly into thousands, then tens of thousands, then millions of cells, and it implants into the wall of the uterus somewhere around 5-7 days after fertilization.  It continues to grow and grow, and by around 6-7 weeks or so from the beginning of the last menstrual period (LMP), anyone that knows how to use an ultrasound machine can see a heartbeat, but still no limbs or anything resembling a human being.  This roughly corresponds to the time that Chazal call “arbaim yom” (recall that Chazal date a pregnancy from conception, while modern doctors date from the LMP, so 40 + 14 days = 54 days or somewhere close to 6-7 weeks). 

During the next 6-8 weeks or until around 12-14 weeks since the LMP the organ systems and limbs begin to develop. By the time a fetus reaches 12-14 weeks, anyone can easily see limbs and organs that resemble a human being.  This roughly corresponds to the time that Chazal call “Hukar Ubbarah” or what laypeople call “three months”.  By this time, most women cannot fit into their normal clothing, and they are already looking for clothing that will fit, and their friends are asking, “are you pregnant?”  This is also the end of what doctors call “the first trimester”.

The next period, from 14 weeks until around 22-24 weeks, is the “second trimester”.  During this time, the organs are maturing and growing, but if the baby is delivered now, there is no chance of survival at all.  By the end of this period, almost all women are feeling the movement of the baby, though some feel it as early as 16 weeks, and some don’t until as late as 22 weeks.  So the end of the second trimester roughly corresponds with the period Chazal called “Hargashat tenuah” or “feeling movement”.

I am not aware of any other writer who has made these connections, so I stake my claim to originality on this point.  But at this point things become much more complicated for Chazal.  Until this point, there is every reason to assume that Chazal understood these stages of development.  I say this for the following simple reasons:

1.       The period of arbaim yom, which Chazal called “mayim be’alma” or “just like water” was clearly understood by Chazal to be the time of earliest likelihood of miscarriage.  Surely there is every reason to assume that Chazal and people of antiquity knew that very often a woman would be late for a period, and then have a heavy period several weeks later resulting in a loss of the pregnancy.  It is obvious from the gemara in Yevamot that this was the case.  People in those days would have noticed that all they saw were some formless and shapeless clumps of tissue, which gave rise to the term “just like water”.

2.       The period of Hukkar Ubbarah, is also obvious. By definition, when a woman’s belly was recognizably growing the famous “baby bump”, clearly it does not take millions of dollars in modern hi tech science to tell you that she has reached a new stage in pregnancy.

3.       The period of hargashat tenuah, likewise was a stage that was well known without science, for obvious reasons.  It is clear from the ancient literature, that the arrival of this time was a great reassurance that the pregnancy was going well.

However, once we get beyond that, it is very difficult to calculate any longer exactly when the baby is mature enough to survive.  When does the “kalu Lo chadashav” (KLC) stage happen?  This was something that was a great conundrum in Chazal’s time.  Over and over again throughout the Halachic literature this mystery is pronounced.  The best evidence they had throughout history was in retrospect.  So once a woman is in labor, then it must be that she has reached that stage! Because “Rov nashim Meyaldot B’nai Kayama!” (“most women deliver healthy (full term) babies”).  So the best evidence that KLC was reached was when it was ne’ekar letzeit (NLT).  This works with natural processes, but what about when an abortion is caused in an unnatural way? How can we know if it was KLC?  The bottom line is that this could not possibly be known until modern technology came along and gave us those answers.

In contemporary times, once a fetus reaches past the 22-24 week stage, the baby will usually survive with proper care, though with many difficulties along the way. A baby is considered “full term” if he/she is born after 37 weeks, but 40 weeks is considered a woman’s natural due date. It should be obvious though, that before the days of neonatal intensive care units, modern medications, and incubators, that any baby born between 24 weeks and 37 weeks was preterm, and very likely would not make it and survive.  Maybe 35-37 weeks some might have made it, but earlier then that it is hard to imagine it possible.  That is what a nefel was, a preterm baby that may or may not make it.

This situation remained virtually the same throughout the ages, all the way from the time of the gemara until the twentieth century.  The obstetric knowledge of the Chavos Yair, was not very different from the obstetric knowledge of Rabbi Yishmael.

If we rethink all of the poskim that we have learned in this light, a few things become obvious.  If something does not look like a human being, it is not a baby and there are grounds to be more lenient.  Anyone that has learned even three lines of Massechet Niddah would know this intuitively.  In the time of Chazal, in order to determine whether or not something had the halacha of a baby, they looked at the tissue and decided, “does it have the form and shape of a baby or not?”  This is the origin of the mayim be’alma statement.  See the entire third chapter of Massechet Niddah for more details.  The gemara there discusses scores of cases of women passing tissue of all sorts, which is almost all undoubtedly early first trimester miscarriages.  Chazal invariably held that if there was no human form, it was not considered a birth, and if there was a human form, it was considered a birth. In numerous places in Massechet Niddah, Chazal even assumed that tissue that had an appearance somehwat animal-like, was thus not human, and therefore not a birth.  It is almost certain that they were looking at miscarried tissue in many cases, or fetuses that aborted early due to severe congenital anomalies.

It is almost inconceivable that Chazal would have applied the concept of murder to something that they Halachically did not even consider to be a human birth.  I would even submit that it is very possible that Chazal wouldn’t even have given such a fetus the halacha of an Ubbar.  I mean to say that even a gentile according to Rabbi Yishmael would be permitted to abort such a fetus.  Simply because Chazal didn’t believe that it was considered human yet, so it would not fulfill the pasuk of “shofekh dam ha’adam ba’adam”.

This is the Common Sense Principle in action. Common sense would dictate that something that isn’t even human according to Chazal, cannot possibly be considered murder.  Common sense would dictate that tissue without a brain, limbs, or organs (at least until 6 weeks or so) could not possibly be subject to the restrictions of murder.

On the “flip side”, the overwhelming majority of the poskim were more stringent once we got to the point of KLC (full maturity and able to survive on its own).  Many were more stringent only at the point of NLT (onset of labor), but only because many of them assumed that NLT was the only time we could be at least reasonably certain that KLC had been reached.  If these poskim had known that the baby was fully developed and formed and could survive outside the mother, it is almost inconceivable that they would not have applied the concept of Avizrayhu de’retzichah or maybe even full-fledged murder.

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

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

But what about the time in between these two periods? What about the time when the baby looks like a little human being, but is incapable of surviving on his/her own? Herein lies the “Nekudat Ha’Machloket”.  The Nekudat Ha’Machloket refers to the middle ground where the debate is occurring.  The extremes we all agree to, but here in the middle the debate continues to rage.

During this stage of pregnancy there is definitely, at least at some level, a human being inside its' mother. This would seem true even though he/she is totally dependent upon his/her mother for survival.

Is it like murder because it seems to be a small human being? Or is it not murder, because it is
totally dependent on the mother and therefore just like a limb of the mother?  We look over all these opinions, but we still must decide;  is there a general consensus on what is and isn’t permitted?  Are there guidelines that we can give to the general public?  How do we proceed?  What can we glean from our entire discussion that has practical value to the general public? What can we learn from everything we have spent the last few months discussing that can be understood by this conflicted and desperate young religious Jewish woman who is sitting before us and asking “what does the Torah tell me to do?”

So we just spent several months together looking at the sources, and what have we seen?  What have we learned?  We delved into the Halachic process, we studied the Torah, and have we found anything to help us?

Yes. The answer is yes. We have found a lot that can help us, but we haven’t found a simple yes or no answer to our question.

We found out that throughout the centuries hundreds of rabbis were consulted by women going through all sorts of terrible personal dilemmas.  We found that each received an answer from her rabbi that was appropriate for her time and place.  We found that hundreds of rabbis looked at abortions from different angles and came up with different conclusions based on their perspective, and based on what made sense to them.  We found that throughout history, attitudes changed among the rabbis, so that their advice and guidance changed as well.  Some rabbis were ready to permit abortions for single girls due to their shame and embarrassment, some were ready to permit abortions for married women that became pregnant in adulterous affairs, we found that some were willing to permit abortions out of concern for the welfare of the other children that the woman was trying to nurse.

We also found rabbis who were concerned about promiscuity, rabbis who were concerned about the future of the Jewish people, and those who were concerned about the value of life and the incredible waste of life that an abortion could represent.  We found Rabbis who were concerned about the moral standing of Judaism vis a vis the outside world, and Rabbis who were concerned for the health and welfare of the fetus and the woman involved.

The sum total of everything that we have found, is that the Torah does have guidance for this young women who has asked for advice from her religion, and seeks the guidance of God.  This is the guidance she deserves, and this is what she needs to hear from her rabbi, mother, friend, sister, teacher, or whomever she seeks out to get counsel and support:

“There is a little baby developing inside you.  This baby is a future human being, a future Jewish young man or young woman.  The overwhelming majority of poskim believe that in cases of extreme need for the mother, an abortion can be performed.  The level of what is considered “extreme need” is unclear and subject to much debate.  There is no yes or no answer.  You are the only person who knows yourself and your needs.  I cannot tell you how much pain you are in, I cannot tell you how much suffering you are enduring.  No Rav, no doctor, no person has ever been able to divine just how much pain someone else is in. There has not yet been invented a “painometer” to measure objectively what level of suffering you have.”

“I am just a Rabbi, I am just your mother/father, I am just your friend, I am just your fellow Jew, or I am just your teacher.  I am not you.  You must understand the incredible value of this future life inside you, and understand that some poskim even consider it close to murder to terminate this pregnancy. You need to seriously evaluate with mature and competent advisors who you trust what kind of discomfort and pain you would be in if you chose to keep this baby vs. abort this pregnancy.  You must speak with advisors who value life, who value Jewish life, and those who appreciate and understand your suffering and your unique perspective. If you determine that your pain and suffering would be so great that it is justifiable to terminate the pregnancy, and this is an honest and true assessment, then there is Halachic basis and support for your decision.”

Let us look at the following story. A man comes to his rabbi on Yom Kippur afternoon, to ask a question as follows, “I feel sick today, and I would like to eat something. I think my life is in danger if I don’t eat something. As you know I have diabetes, and I just don’t feel right.”   The man doesn’t appear to be so ill, so the rabbi tells him, why don’t you speak to Dr. Goldberg who is sitting right there in the third row.  Dr. Goldberg, who is Chief of the Endocrinolgy Department at the University of Anytown, and he is well qualified to determine if indeed this is life threatening.

The man goes over to Dr. Goldberg, who pulls out his handy glucometer (a device which checks levels of blood sugar) and checks his glucose.  Dr Goldberg reads the results, and discusses with the man his history and what medications he is on etc…  Based on the results and all of the information, Dr. Goldberg tells the man that he does not feel he is in any imminent danger, and therefore he can complete the fast.  The man then goes back to the rabbi with Dr. Goldberg’s answer, and he is not satisfied. 

“I feel like I need to eat or I will be in danger!” 

“But Dr. Goldberg has just reassured you that you will be fine, and halachically, you really may not eat unless your life is threatened!”

“I don’t care what Dr. Goldberg says, I know my own body, and I need to eat!”

What should the Rabbi’s response be to this man? Should he throw him out of shul for being insolent and trying to disobey halacha? Should he try to convince him some more to last without eating until the end of the day? Or should he tell the man, “If you feel that your life is truly threatened, and you truly understand the importance of Yom Kippur, then go ahead and eat”

The Halacha is clear on this question.  As the pasuk in Mishlei (Proverbs) 14:10 says, “a [person’s] heart knows the bitterness of his soul”. The Gemara in Yoma 83a quotes this verse and concludes with the definitive Halacha regarding our question (my own translation):

“If a person says, “I need to eat” then all the experts are as if they do not exist, and we therefore give him to eat…”

Only the woman herself in our case knows how much pain she is in.  How can anyone else decide for her what kind of suffering she is having?  How can we judge her motives if we cannot possibly put ourselves into her shoes?  Only she has the right to decide what is considered a great need that would warrant an abortion.

If this is true about a clear Issur De’Oraytah like eating on Yom Kippur, how much more so should it be true when it comes to something like abortion.  As we’ve seen, numerous poskim hold that abortion is an issur derabbanan. Even of those who held it was a De’Oraytah, the overwhelming majority of those poskim hold that it is a De’Oraytah due to other prohibitions such as Chavallah (wounding), wasting seed, stealing, and so on.  All of these as we’ve seen during our discussion can be permitted in cases of great need.  The only person who knows what she is going through is the woman herself. As King Solomon taught us, only within a person’s heart can her suffering truly be known.

That is what we can say to her, that is sound Torah based advice, and that is the truth.  If you read the entire blog until this point, you will see that it is consistent with the sum total of what we learned about abortions in Halacha.  That is what the Torah teaches, and this is how the Torah can give her guidance.  That is the role of the Rabbi, to teach what the Torah teaches, not to teach what he thinks someone else’s pain is like.  Only a prophet with a direct line to God Himself can tell someone else what they are thinking and feeling, and no such people exist today.  If it sounds like Judaism is “pro-choice”, then maybe Judaism is.

The Halachic Stages of Pregnancy and Some Points to Ponder

Everything we have discussed until now regarding the topic of abortions in halacha, represents the traditional Halachic approach to this subject.  One studies the sources, the sugyos in shas, the Rishonim, the poskim, and the modern decisors then apply these principles to the shaalot at hand.  However, more than any other topic in medical halacha, something about this issue has bothered me for years, but I couldn’t seem to “put my finger on it” until recently, when I started to use the rationalist approach to which this blog is devoted.  Once I began to look at this topic through the Five Principles of Rationalist Medical Halacha, I finally realized that I may have “cracked” the code and understood the right way to approach abortions from a Halachic perspective.

This revelation occurred to me as I studied the discussions of the poskim regarding the different stages of pregnancy.  Throughout my lengthy presentation of the different shitos regarding abortion, you must have seen (if you managed to make it through the discussion without losing interest!) little hints that I dropped here and there along the way about how different poskim treated different stages of pregnancy differently.  The “Halachic” stages of pregnancy are as follows:

1.       Tokh Arbaim Yom – Within the first 40 days

2.       Hukar Ubbarah – when a woman is recognizably pregnant, generally understood to be around three months of gestation

3.       Hargashat Tenuah – when a pregnant woman begins to feel movement, usually a little bit after hukkar ubbarah

4.       Kalu Lo Chadashav – its’ months are completed, which is generally understood to be mature enough to survive outside the womb.  We will not get into the “seventh month” fetus issue here.

5.       Ne’ekar latzeit – when the baby is “uprooted and starts to come out” usually meaning after the onset of labor

6.       Yatzah Rosho – the delivery of the head, at which point we view the baby as a separate being from the mother

All of these terms were used throughout our discussion by the poskim, and they all have ramifications for psak halacha (Halachic decisions) when Rabbis make decisions regarding the permissibility/prohibition of abortion. To go through the extensive examples and bring more mareh mekomot (sources) for all of these stages and what their Halachic ramifications are would be a lengthy and exhausting process, and I won’t force you to suffer through that now.  We do need to at least touch upon each stage, and describe how it affects halachah at least in a most basic way.  I will only bring one or two sources for each stage, if anyone wants more sources they are welcome to request it via email.

Stage 1; “within the first 40 days”:  This stage has its origin in the gemara Yevamot 69b, where the gemara states that “until 40 days, it is just like water”. Many poskim consider this gemara a reason to be lenient and allow abortions prior to 40 days.  It is important to note, that the gemara is dating the pregnancy from conception, not like modern medicine that dates the pregnancy from the first day of the last period (usually somewhere around 11-14 days prior to conception).  So what the gemara calls 40 days, we would call around 7-8 weeks gestation.

Stage Two; Hukkar Ubbarah: This is usually defined as around three months of pregnancy.  The primary origin of this stage is the gemara in Niddah 8b, and this is known to the Gemara as the time from which women stop having their menstrual bleeding due to pregnancy.   Although we now know that in a healthy pregnancy bleeding should stop as soon as a woman becomes pregnant, this discrepancy is an interesting subject that we will not deal with right now.  Few poskim use this as an important time regarding the laws of abortions, though it does pop up from time to time in various contexts.  However, it is very important for my analysis, as you shall see soon.  That is because until this point, in ancient times, there was no way to confirm whether or not a woman was pregnant, so this creates a doubt as to how far along she is in gestation in later stages.  Once she is recognizably pregnant, we know that at least from that point on she was pregnant. Give or take three months or so, that may be your best way to guess in ancient times as to the stage of pregnancy.

Stage Three; Hargashat Tenuah: This usually occurs somewhere after stage two, around 4 or 5 months into gestation, depending upon the woman.  This milestone is rarely used in Halachic discussion, but it does pop up occasionally.  It pops up during discussions that revolve around when others can testify that they knew a woman was pregnant because they saw or felt movement (as opposed to just having a large belly), for example here in the Noda beYehuda, and also pops us in its negation – that those who hold that abortion is not murder, will say something like “even though it is moving…it is still not murder..” for example here  in the Radvaz.

Stage Four; Kalu Lo Chadashav (KLC): This is a very important stage halachically.  This stage is important because it is assumed that a baby can only survive if it is born at a time that its gestation period has been long enough that it has reached the stage of KLC.   For example, of the poskim who hold that abortion is prohibited due to murder, some explain that the reason why one is not liable for death is because we can never know for sure that the fetus has reached KLC see Moshav Zekeinim here.  It also seems that many of the poskim who hold a fetus is not a nefesh and therefore abortions are not murder would be more stringent in a case if we could know for sure that the fetus had reached KLC..  Another posek who discusses this topic at length is the Noda beYehuda here.

Stage Five; Ne’ekar Latzeit:  This is also synonymous with the term “yoshva al hamishbar (sitting on the birthing stool)” as it refers to after the onset of labor.  This milestone in fetal development is used in the gemara here which talks about a woman who is liable for death, that once she is in labor, we do wait for delivery before we carry out her sentence. It is also assumed from the mishna in Oholot that the halacha that the woman's life takes precedence over that of the fetus is applicable even after this milestone, as that is the context of this Mishna.  It seems from the poskim, that once a woman reaches this stage, we can assume that KLC has been reached, at least in the majority of occasions, as most women do not deliver prematurely.  This is an especially important concept in a time when we had no other way of determining gestational age, and the stage of KLC could never be certain.  This is clear from the poskim, see the Noda beYehuda here who makes this clear in his classic teshuva on the topic.

Stage Six; yatzah rosho: From the mishna in Oholot, and regarding this issue there is no serious Halachic debate, that once the head is delivered, the baby is a full fledged human being, and is not considered a fetus anymore, and if one should deliberatelky harm or kill (God forbid) this child, he/she would be liable for appropriate punishments just like one who harms any child or adult.

When thinking about all I have learned, and trying to digest everything and make sense of it all, a few thoughts occurred to me that led me to try the rationalist approach to this topic.  The first most glaring aspect of this issue is the incredible diversity of opinion. I have discussed this with numerous poskim and Rabbanim of great stature, and none could find me any other topic which even comes close, or to which this can even be compared.  Despite the fact that the Torah itself discusses the issue of causing abortions, and the fact that there are numerous references throughout shas, and literally thousands of pages of shaalot ve’teshuvot (rabbinic responsa), there has been no consensus reached. In fact, it seems that the more poskim write about it, the more confused the situation gets.

A second glaring aspect of this issue is how things have changed over the centuries. The notion of abortion being equivalent to murder is virtually non existent among the Rishonim (which the notable exception of the Moshav Zekeinim L’daas baalei Tosfos see here).  In fact the Rishonim emphatically insist that this abortion is not murder at all, including Ramban, Ran, Rosh, Behag, Meiri, Ramah and more, as we have extensively discussed (I purposely didn't mention Tosfos and the Rambam in this list because their opinions are so surrounded with controversy). 

Then the earlier acharonim, begin to discuss much more extensively exactly why it should be prohibited. They generally take the lead of the Rishonim and assume it is not murder, so they seem to attempt to find other reasons why it may be prohibited whether D’Oraytah or derabbanan, as we saw in detail during our discussion.

Then we suddenly find a sea change of opinion as the nineteenth century ends, and then as we progress toward modern times.  Suddenly, beginning with the Maharam Schick, and then the Sdei Chemed, the poskim begin to insist that abortion is like a “chatzi shiur” (a “partial: murder) of murder.  They continue to insist further as the twentieth century wears on that it actually is murder, as we saw from the Ohr Sameach, and then Rav Unterman (see the Torah Journal: Noam Volume 6, in a teshuva that I chose not to include in our discussion until now only because nothing new was added that hadn’t already been discussed), and Rav Moshe Feinstein.

A third point which “shines forth” from the data we have analyzed together, is the fact that no posek that I have read has seriously and comprehensively entertained the possibility that modern medical knowledge may shed some light on this issue.  This came to me most obviously when researching the issue of the stages of pregnancy.  Are these stages still relevant in the 21^st century?  In our times, we know so much information about fetal development. We now can identify when the fetus develops organ systems, brain tissue, when it can survive with medical assistance, and when it can survive on its own. We can identify with certainty close to 99% in most cases which fetuses have anomalies that are survivable,, and which are not, and which are questionable.  We can identify which gestational ages will do well, and which won’t.  Does all information this affect the halacha?  Is it still relevant to be discussing stages like “kalu Lo chadashav” when we can identify viability by modern methods of dating pregnancies and by ultrasound?  Can modern medicine help us apply the rules of the Torah in a logical and consistent way?

Ponder these three thoughts of mine a little bit (1 – the diversity of opinion, 2 – the historic development of the halacha, 3- modern medical understanding of fetal development).  Then apply the five principles of rationalist medical halacha.  Then you may come to the same conclusion I did, or maybe you will come up with an even better conclusion?  Stay tuned for my next post, in which I plan on presenting my ideas.  I would love to know what you think.

Some Housekeeping and a Summary of Opinions

Now that I have completed my compilation of the many varied explanations for the prohibition against abortion, I have to finish off with a little “housekeeping” before we move to the next step.

First, I want to point out that there are many other sources that I did not explore in detail in this blog.  The reason why I chose not to is because although they are very important sources, they didn’t add or say anything that hasn’t already been said by the poskim that I have brought already.  If anyone wants more sources to do their own research, and what I have already provided so far is not enough, then you are more than welcome to ask me via email for sources.  Do not assume that I have not reviewed these sources because I didn’t mention them.  I have been heavily influenced by all of the sources, that I have spent at least 15 years studying and reviewing. This blog encompasses many years of study and research into a topic that I think is very important, unique, and highly misunderstood.

Second; I would like to say something about what I call the “most poskim” problem. By this I refer to the terrible temptation that seems to plague writers about Halacha and abortion to resort to phrases that begin with the words, “most poskim ………”

I think that by now, anyone reading this blog would have come to the very unique Halachic conclusion that the phrase “most poskim ……” has no place in the discussion of abortions in Halacha. The vast array of opinions regarding abortion and its Halachic permissibility/prohibition is so astounding, so diverse, and so inconclusive that any claim to one particular opinion being the “majority” is absurd.

The only two “most” statements that I might agree to a little bit, would be something like the one that follows and its counterpart: “Most poskim agree that in general abortions are not looked upon favorably by Judaism" Though it is a defensible statement, it gives almost zero practical guidance to anyone.  So although it is true, it is practically useless. The counterpart statement is “most poskim agree that according to the Halacha in certain instances abortions can or should be done”. This is an equally useless statement, for the same reasons that we described above.

What then would be useful? Hang in there; we are almost ready to answer that question. Just a few more things to cover and it will start to make sense.

Third; there have been many proofs bandied about by various parties to this discussion, especially by the most conservative camp; the abortion = murder camp.  So I cannot leave this section without at least mentioning these proofs, so that all of you know that I have been as complete as possible. By “proofs” I am referring to statements of Chazal or the Rishonim that indicate one opinion or the other. Obviously, I will not repeat those Rishonim whose opinions we have already reviewed in detail.

Those that advocate that abortion = murder quote the mekhilta in Mishpatim here Where Issi ben Yehuda states that one who aborts a fetus is “dino massur lashamayim” and his language seems to indicate that it is due to the issur of retzicha. Indeed, the Meshech chochmah here  seems to hold this way, and also learns the Lekah Mid’am Tosfos this way as well.)

They also quote the Moshav Zekeinim Ledaas Baalei HaTosfos here Tosfos as quoted there asks in the name of “makshim Ha’Olam” (“everyone asks”). Why is the man who strikes a woman causing a miscarriage not liable for death for killing the fetus? And Tosfos goes on to answer that it is because it is a safek (doubt) whether or not this child will be healthy and live. (This Tosfos is extremely difficult to comprehend, as it flies in the face of the open Gemara that explicitly excluded a Jew from the death penalty for killing a fetus.  One must assume that this is how this Tosfos understood the reasoning behind this Gemara).

As far as proofs for those who hold it is not murder, we have already extensively reviewed most of their opinions and proofs.  I would just like to point out a few more sources that we haven’t yet raised.  The Radvaz here, who emphatically rules out the possibility of murder by a fetus, The Meiri here, also explicitly rules out the possibility of murder by a fetus, and the Semah, in Choshen Mishpat 425:8 does so as well.  A few more later sources that I haven’t yet discussed that rule out the fetus from the issur of retzichah include the Tel Orot here who agrees with Tosfos that there is no issur at all, and the Tiferes Yosef here who rules out the possibility of murder as well.

I would also recommend reading through the words of the Netziv, who deeply analyzes the the Ramban, Ran, and Behag that we discussed back in our post here.  The Netziv, in the Ha'amek Sha'alah here also emphatically proves that a fetus is not considered a human being, and therefore the rules of murder, and conversly, the rules of saving life would not apply.  He proves this from several places, including the very gemara of Rabbi Yishmael, who uses the pasuk of shofekh dam ha'adam ba'adam to prohibit gentiles from performing an abortion.  He claims, that if we need a seperate pasuk to include a fetus, then obviously a fetus is not considered an "adam".  He goes so far as to explain that according to the Behag, one may not violate the Sabbath to save a fetus unless one is absolutely certain that the fetus will die without the intervention.  this is true despite the genmeral rule that one violates the sabbath even in situations of doubtful risk to life.  However, since a fetus is not an "adam", he holds that one may not violate the Sabbath.
Now we can summarize all of the opinions that we have described and complete this stage of the process. Please forgive me if I remind you again that many of these opinions are held by several, often many other poskim. If I attribute them to one particular posek, it is only because they are the ones that I used to describe that particular approach, usually because the literature attributes it to them or because they were the ones who explicated it the clearest.  I do not mean to say that this or that posek is the only one who holds that particular opinion.

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 additional 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)
6. 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.
7. 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.
8. Chavos Yair,  due to the prohibition of wasting seed (which according to him is a torah prohibition)
9. According to the Mizrachi and Rav Chaim Palagi and their interpretation of the Rishonim,  the Chachamim declared that a Jew is prohibited from performing an abortion because a gentile is prohibited, and it would be inappropriate for a Jew to be allowed to do something that is prohibited to a gentile.  They explicitly and vehemently reject the possibility that it has anything to do with Shefichat damim (murder).
10. According to R Yaakov Emden, abortions are prohibited because of waste, which is a rabbinic aspect of the HZL prohibition; therefore they can be performed in circumstances of great need. If the child is illegitimate from a relationship that would incur the death penalty, the RYE would allow it outright.
11. The opinion of the Beit Yehuda and the Chofetz Chaim (according to his interpretation of Tosfos) that it was a rabbinic decree and the reason for this decree was because it is akin to murder.
12. Abortion is a rabbinic decree because permitting abortions would encourage promiscuity (Chavos Yair 31)
13. Abortion is a rabbinic decree because it would be a negation of the mitzvah of P’ru U’rvu (the obligation to procreate) (Mishpetei Uziel here)
14. Abortion was a rabbinic decree because it will prevent the potential of a future life (Mishpetei Uziel here)
15. Abortion was a rabbinic decree because by terminating a pregnancy, one prevents a future soul from doing mitzvos (Ohel Moshe by Rav Moshe Zweig Chelek 3 page 49)
16. Abortions are considered morally wrong by other religions, and thus we should also take a moral stand (Ohel Moshe, see above)
17. The opinion of Rav Moshe Feinstein that it is indeed prohibited due to murder
18. The opinion of the Maharam Shick and Sdei Chemed that it is Avizrayhu of retzichah due to chatzi shiur
19. The opinion of the Minchas Avrohom that it is due to murder but he differs from RMF by only applying this rule if the fetus is viable
20. The opinion of the Meshekh chochmah and Moshav Zekeinim LeDaas Baalei Tosfos who hold that it is murder and liable "medin shamayim", and the drasha of rabbi yishmael only exempts Jews from punishment from Beit Din
21. One more opinion is that of the Zohar, which I did not discuss because it is unclear from the Zohar what the Zohar actually holds from a Halachic perspective.  The Zohar speaks about how terrible abortion is because it is ruining the creation of God. (see` Zohar Shmot 3:2)

Now that we have accomplished this task, we can move on to the next step, differentiating the stages of pregnancy, and applying some rationalist principles to come up with a coherent and rational approach.  Those of you who were lost in the nitty gritty details of the past two months, might now want to start paying attention to the next several posts, as we will take a dramatic turn toward the “rational”, which is the ultimate goal of this blog.  Those of you who stuck with me, congratulations, you now truly have the confidence to move forward in this most fascinating and unique Halachic subject, which I believe is unparralleled.

Other Poskim that Relate Abortion to Shefichat Damim (Murder)

In our last post we began our discussion of the poskim who hold that abortion is prohibited due to the Torah prohibition against murder.  We discussed the two main proofs that these poskim have, namely the proof from Tosfos, and the proof from the Rambam.  As we proceed with this most stringent approach to the attitude of Halacha regarding abortion, it is important to point out that there are important differences between the poskim who find themselves within this camp.  I will describe several of these opinions in the second half of this post. 

One often quoted but difficult to understand teshuva is the famous Tzofnas Paneakh of the rogatchover gaon here.

In his usual terse and abbreviated style he  writes in two short paragraphs what it would take most poskim around six pages to write.  It is also difficult to tease out exactly what his final opinion really is on the matter, but let me at least single out some the important points, and explain what his final psak is.

 Those that have been keeping up with the blog should find this pretty simple to follow. He was asked regarding a woman who purposely caused an abortion if she should require a divorce because oif the sin she had committed. He analyzes this question first by delving into the question of what sin she might have done by having the abortion.  First, just like RMF, he proves from Tosfos Lekah Mid’am that it must be a Torah prohibition, and assumes that would be shefichat damim (murder). Then he asks the famous setirah in Tosfos and answers it by saying that the issur is not  murder but rather it is chavalah, like the maharit, and thus the Tosfos of Lekah Mid’am meant that it was prohibited not because of murder, but because of chavalah.  Then he brings the proofs from the Rambam and the rodef issue that he interprets like RMF did, that it really is murder.  Then he also claims that it would be considered stealing from the husband to abort.  His conclusion then seems to be that there is a makhloket between Tosfos and the Rambam i.e. that according to the Rambam it is retzichah, and according to Tosfos it is chavalah.  So how does he pasken? His final words are hard to interpret (remember that he was asked regarding the requirement to divorce her, not regarding the prohibition of abortion), but here they are (my own translation):

“This is certain that she (the woman who had caused an abortion deliberately) has done a great prohibition (“issur gadol” – so she might require a divorce) however if it is less than 40 days into the gestation it is not such a big prohibition according to many opinions (we will deal with these opinions later in the blog) as we have written before. So if she accepts upon herself not to do this again, and we need to impress upon her that it is within the category of murder (“begeder shefichas damim”) then we can assume that she is like someone who committed the sin inadvertently (“beshogeg”) as she was under the impression that she is not commanded not to abort a fetus therefore she would not require a divorce).....”

So it would seem from the conclusion of the Tzofnas Paneakh is that he actually held like Tosfos, i.e. that it was prohibited due to two things, chavalah and stealing the property of the husband. He also believed that at least according to the Rambam it would be murder (recall that the Rambam only said his halachah by a woman in labor, we have no idea if the Rambam would apply this same principle before the baby is “ne’ekar latzeit” in labor).  He only said his last words in order to impress upon the woman how serious the sin is, be he himself still held that the issur was chavalah and not murder.  If you look carefully at his words when he brings the Rambam, he brings as an “ayein sham” (“look there”) though he doesn’t seem to be paskening like that.  Also, the term “begeder shefichas damim” sounds like it is not actually shefichas damim, just that it is like shefichas damim and that we use this term just to impress upon her its importance.

So although we see the Tzofnas Paneakh learning the same p’shat (explanation) in Tosfos and the Rambam as RMF, he does not come to the same conclusion. Rather he concludes that it is chavalah and stealing from the husband.  I analyze this carefully only because the Tzofnas Paneakh is often brought as a source that holds that abortion is murder, but that is certainly not clear from his teshuvah.

The next important source for the abortion = murder is the Maharam Shick here.

The Maharam Shick clearly also understood the Lekah Mid’am Tosfos to be saying that abortion is prohibited for a Jew Mid’oraytah, and he also understood that the deoraytah is based on the prohibition of murder.  He doesn’t deal with the contradiction with the other Tosfos who says that abortion is permitted.  However, in order to explain how it could be both murder but still not liable, he explains that the fetus is like a “partial soul” (“miktsas nefesh”) and like a “half amount” (“chatzi shiur”) and thus is prohibited because we hold that half amounts are prohibited.  With this he also tries to explain the Rambam who had to use the din of Rodef to allow killing the fetus, because it is murder, but only half murder, which he terms “avizrayhu deretzichah” meaning prohibited because of murder, but not really murder.  Using the concept of “chatzi shiur” is quite an original idea, but also extremely problematic.  I am not aware of there being a “shiur” for murder.  This concept is usually used for prohibitions for which there is a set amount, such as eating non-kosher food, for which one needs to eat a specific amount to be liable, but less than the amount one is not liable, but one still may not do it.  The Maharam Shick is applying that principle to murder, which is quite an unusual “chiddush” (novel idea).

Another source that is often brought to support the idea (see footnote # 160 in Encyclopedia Halachtit Refuit entry on Hapallah by Dr Avraham Stenberg for one example) that abortion is murder, is the Divrei Yissachar here. It is simply not true that he holds this way, I will quote his words for you to see for yourselves (my own translation)

“…Any fetus is not yet a live child, rather he will be in the future a live child, and therefore one who destroys him is as if he is spilling blood…(“ke’ilu shofekh damim)...”

One who reads his words carefully will see that he holds just the opposite, that indeed it is NOT murder, but rather the problem is that one should not destroy a future life.

Another source often brought to support the idea that abortion is murder is the Minchas Avrohom here. He clearly does understand the Rambam and Tosfos like RMF did, however, it is notable that he only holds that it is considered murder in cases where it is known that the fetus is “kalu lo chadoshav” (“completed his gestation” – presumably enough to survive outside the womb). I will deal with this concept later when I discuss the stages of gestation.

I could go on with more sources, but I am trying to make a point, and I think my point has been adequately made.  My point has two parts to it. The first is that while it is true that there are poskim who held that abortion is prohibited due to the Torah prohibition of murder, virtually no posek ever claimed that it is truly murder before the fetus is viable (viable means able to survive on its own outside the womb).  The second part is, that even once the fetus is viable then it is not truly murder, most poskim hold that it is only “avizrayhu” of murder.

The concept of “avizrayhu” is a very broad one indeed and basically refers to any prohibition that while it is not technically one of the cardinal sins of avodah zarah, giluy arayos or shefichas damim (idol worship, adultery, and murder) it can be considered “in that category” or avizrayhu.  The term has been used to describe things as diverse as using herbs from a tree that was used as an idol for healing (avizrayhu of avodah zarah) to embarrassing someone in public (avizrayhu of murder – as one “whitens the face” of the person shamed by draining the blood from his head).  This is not the place to discuss the concept at length.  However, to make the jump from claiming that a posek who held that abortion is “avizrayhu” of shefichat damim (murder), to then proclaim that he held that it is murder is quite a leap!  It is clear to anyone that has studied five lines of Talmud in his life that the two concepts are very different.  All one can learn from these poskim is that abortions are prohibited, and it is in some ways similar to murder.

Before I leave this discussion, I need to mention the Sdei Chemed here, who also deals with this topic at length, and does understand the lekah mid’am tosfos like RMF, that it is indeed a Torah prohibition.  He quotes the Maharam Shick and the concept of avizrayhu of retzichah, but his discussion is quite detailed, and now is not the place to review all of the points that he makes.  Although it is very thorough and detailed, he doesn’t say anything that we haven’t already seen in the other poskim we have reviewed.

So let me summarize the opinions of the poskim who hold that it is a torah prohibition that is at least to some extent related to murder, and we will add them to our growing list of explanations for the prohibition against abortion.

1)      The opinion of Rav Moshe Feinstein that it is indeed prohibited due to murder

2)      The opinion of the maharam Shick that it is Avizrayhu of retzichah due to chatzi shiur

3)      The opinion of the Minchas Avrohom that it is due to murder but only if it is viable

(I am not listing the tzofnas paneakh, because as we explained above, he really holds like the maharit, that it is due to chavallah, and he only write that one can tell the woman that it is “begeder Shefichat damim to scare her into promising never to do it again)

In our next post, I will review a few of the “proofs” from the rishonim that have been used by many in this debate, and discuss them a little, and then we will sum up all of the opinions that we have so far reviewed.  That will end this part of our discussion. We will then spend some time discussing the various stages of pregnancy, which will lead us to an application of our “rationalist” thinking.  Thus, we will finally be able to develop a coherent, relevant, and practical approach to this very complicated topic.

Abortion as Murder - The Same Sources Lead to Opposite Conclusions!

It is always fascinating how different scholars can often look at the same set of data and come to exactly opposite conclusions.  This is true in just about every field of human endeavor, and it is certainly true in Torah as well.  Of course it leads one to speculate how much each scholar’s conclusion was influenced by his/her preconceived notions, ideas and biases, and how much came from a true analysis of the evidence.  This is a question that typically can’t ever be fully answered, though often certain suspicions may seem more obvious than others.

This phenomenon is clearly evident in the halachic attitude towards abortion, perhaps more than in any other area of Halacha.  You will see how the exact same source material that was used by all of our previously mentioned sources to prove that abortion is not considered murder halachically, was used by another large group of contemporary poskim to prove the opposite assertion.  The dichotomy is quite astounding, and it really leads one to wonder what the influences were that led to these widely divergent conclusions.

Let us hearken back to our discussion of the two famous “conundrums”, the setirah (contradiction) in tosfos (see our blog post here), and the opinion of the Rambam (see blog post here).  Essentially, it is the analysis of these two issues that is the primary dividing line between the two camps.  Of course, there are many arguments thrown back and forth, and we will touch upon many of these during our discussion, but almost every posek who deals with this topic ultimately bases his conclusion on his understanding of one or both of these Rishonim.

Today I will describe how the opinions that hold that abortion is a violation of the Torah prohibition of retzichah (murder) use the Tosfos and the Rambam as a proof to their assertion.

First, let us analyze Tosfos.  Let us recall the Tosfos in Sanhedrin 59a who states that due to the rule of Le’kah Midam, it must be that abortion is prohibited for a Jew, just as it is for a gentile.  The poskim that we have brought until this point who held that abortion is either permitted, or an issur derabbanan, or even an issur medoraytah but not retzichah, have understood this rule in a several ways.  One possibility is that Tosfos is only discussing this according to the opinion of Rabbi Yishmael who holds that abortion is prohibited for a non-Jew but not according to the Chachamim (this being the explanation of the Toras Chessed here, Achiezer here, Tzitz Eliezer here and see our previous discussions).  Another possibility is that the rule of Lekah Midam is a rabbinic rule, which forces the rabbis to decree that it should be prohibited (this being the assumption of the Chofetz Chaim here, the Ben Ish Chai here, the Beit Yehuda here, and others see all our previous discussions).  A third possibility was that as long as we can find another Torah prohibition that forbids a Jew from performing an abortion, then the rule would not be violated, even if it is not the prohibition of murder (this being the assumption of the Chavos Yair here and others, again, see our previous blog posts). It was also suggested that the conclusion of Tosfos is that this is an exception to the rule (see Rav Palagi in our previous post here).

All of the above suggestions allowed for a way to answer the famous setirah in Tosfos.  Either Tosfos is consistent in his opinion that abortions are permitted.  Or you can say that although they are permitted, they are not murder, and thus when Tosfos used the language “muttar” he meant that it was not murder.

However, the poskim who claim that abortion is murder, present the following argument (See RMF here for one example).  The principle of Lekah Mid’am is that it does not make sense for the Torah to prohibit a gentile from doing something that it permits to a Jew.  Therefore it follows that the severity of the prohibition must also be the same.  Just as it makes no sense to claim that a Jew should be allowed to do something that is prohibited for a gentile, it also makes no sense to claim that something that is murder for a gentile should not be murder for a Jew.  Therefore, they learn from the rule of Lekah mid’am which Tosfos applies to abortions that abortion must be retzichah for a Jew as well as for a gentile.

The obvious difficulty with this approach to tosfos is how to deal with the glaring contradiction to his previous language stating that abortion is “muttar” (permitted).  One claim that has been made by these poskim is that he didn’t mean to say that it is muttar, only that one is not liable for capital punishment.  This is because even those who hold that abortion is murder, agree that there can be no capital punishment, either because it is unknown that the fetus is healthy enough to live (hatra’at safek), or for some other reason. However, it is one thing to state that he meant that in terms of retzichah (murder) it is muttar, but still may be a lesser prohibition.  But it is quite another to claim that Tosfos used the language “muttar” to describe something that the Torah considers murder! (It is worthwhile to see the comments of the Tzitz Eliezer here)

In fact, many of the previous poskim that we have been discussing who hold that abortion is not murder also explain that Tosfos doesn’t really mean “permitted” because it is still prohibited because of one of the many reasons which we have discussed (Rav Y Emden for example explains Tosfos language this way, see previous posts for the exact reference).  However, if one holds that abortion is not murder at all, but it is prohibited for some other reason, I can understand that Tosfos may use language that might be a little "off".  But if one holds that abortion is murder, the to claim that Tosfos could use the language muttar and still hold it is murder is a step that seems to be quite a leap.

One of the most famous poskim who held that it was Retzichah was R’ Moshe Feinstein. Because of this incredible difficulty with Tosfos, he goes so far as to claim that the language in Tosfos is a misprint, and he meant to write “pattur” (not liable for punishment) as opposed to muttar (see here).  While this approach solves the conundrum, it is unbelievable to suggest that the language that was the subject of thousands of pages of discussion for hundreds of years should suddenly be so easily fixable by claiming that it was all just a typo!  If not for the incredible stature, scholarship, and reputation of HaRav Feinstein ZT’l, which is deservedly unquestioned in Halachic circles, I don’t think anyone would have taken such a suggestion seriously. (It is worthwhile to see the famous comments of the Tzitz Eliezer regarding HaRav Moshe Feinstein’s claim here).

The second major issue is the subject of the opinion of the Rambam.  It is worthwhile to review our previous discussion of the Rambam here, and how the poskim who hold that abortion is not retzichah deal with the Rambam’s opinion. I will not go over it at length now, but I strongly recommend that you review our discussion from the previous post.  The question of course, is how does one interpret the fact that the Rambam introduces the concept of rodef (pursuer) in order to justify killing the fetus when a mother’s life is threatened by the process of labor and delivery.  We already reviewed the other opinions, but the advocates of the abortion is murder position have a simpler answer.  They claim simply that this is proof that the Rambam held that abortion is murder, and therefore the only possible reason why one would be allowed to commit murder would be to apply the principle of rodef.

The obvious problem with this approach is the next line in the Rambam. If he truly was applying the principle of Rodef as claimed by these poskim, then why does this principle no longer apply once the head is delivered, clearly the baby is still a rodef? What changed?

Probably the most famous explanation of the Rambam that would be consistent with those poskim who hold that abortion is murder would be the explanation of Rav Chaim Brisker ZTL (RCB) in his sefer Rav Chaim al HaRambam Hilchot Retzichah 1:9 (I apologize but I could not find it online to give a link to it).  RCB establishes, in classic brisker fashion (this explanation of RCB is often given as a classic example of the “Brisker method” at its best), that are two types of rodefs.  The first is a complete rodef (“rodef gamur”) and the second is an incomplete rodef (“rodef she’eyno gamur”).  There are also two reasons why one should kill the rodef, one is to save the nirdaf (the one being pursued), and the other is because the rodef himself is liable to death for his act of pursuing.  A rodef gamur has both reasons apply to him; this refers to the classic example of one person chasing another with a weapon.  There is both an obligation to save the nirdaf, and a guilty rodef.  Therefore one can kill the rodef, as one cannot say why should this person be more deserving of death than the other (eyn dochin nefesh mipnei nefesh), because the rodef is liable for death, therefore his life is more expendable.

However, in the case of an incomplete rodef, such as the fetus who is not intending to kill anyone, the only reason to kill the rodef is to save the nirdaf (the mother in this case). Therefore, prior to the delivery of the head, we can kill the rodef because we have in front of us two souls, one of the fetus which is an incomplete soul, and one of the mother which is complete, therefore her soul takes precedence.  But once the head is delivered, we have two equal souls, and therefore we must apply the rule of eyn dochin nefesh mipnei nefesh, as the fetus is only an incomplete rodef.

The explanation of RCB would allow us to still consider the prohibition of murder for the fetus, but still allow killing the fetus to save the mother, and give us an explanation of the Rambam.  The main problem is that RCB is only referring to a fetus which is “ne’ekar letzeit” (in labor) which most poskim already agreed is considered a separate being from the mother.  This doesn’t at all prove what the Rambam would hold regarding abortion prior to the onset of labor, which is the question we are dealing with.  There are other issues with RCB as well, but this is not the place for such a lengthy discussion (see Seridei Eish for one example).

RMF has another explanation for the Rambam as well, see here for the details,

When one analyzes the sources that hold that abortion is indeed an issur de'oraytah, one finds that these two proofs from tosfos and the Rambam play a central role in their argument.  In the next few posts I will discuss several of the poskim who are generally quoted as supporting the view that abortion is indeed murder, and we will analyze each one to see if indeed this is their opinion.