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.