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.