Foetal Life

For those who keep halacha and for those who don't, few questions are as significant as the questions regarding when life begins and ends. Death is defined relatively easily as the permanent cessation of all biological functions that sustain a living organism, and although drawing the line is not always simple (e.g. regarding brain death), it is at least clear what the question is.[1]

However, when it comes to the issue of prenatal life, public discussion often gets distracted by two virtual irrelevancies. The first is the 'pro-choice' argument that women must not be told what to do with their bodies. In reality, this argument assumes that the answer to the real question is already known – the foetus has no life of its own and the only living thing being affected is the mother. By focussing on the rights of the mother (to commit potential murder), the real question is ignored.[2]

At the other extreme, the Catholic Church forbids any form of contraception or even artificial insemination, and Jewish conservatives sometimes feel the need to replicate this (perhaps so as not to be seen as 'less religious' or 'progressive'). R' Moshe Feinstein already pointed out the obvious, that these considerations have absolutely no bearing on halacha and should be cast aside.[3]

The Moral and Philosophical Perspective

Before we discuss Torah sources that may reveal when life begins according to halacha, it is important to point out the dilemma we would be in without these sources. Science may be able to tell us what an unborn baby can do at different stages of its development; it cannot define for us what constitutes sacrosanct human life. Thus for those who believe in the sanctity of human life but not in the Torah (or in any Divine revelation), it is extremely hard to justify any form of abortion.[4]

The same is true for those who do believe in the Torah, but only as an additional system that we are obligated to, unrelated to intuitive human morals.[5] As I have already written, this is not my position (see Torah and Morals). So without further ado, I shall begin to analyse the relevant sources.

Life and Soul

The Mishna tells us that if a woman is having great difficulty in giving birth, we dissect the baby inside her and remove it limb by limb, as her life takes precedence over the baby's life. However, once the majority of the baby has come out (alive) we must not harm it – we do not push away one soul for the sake of another.[6]

The clear indication is that the baby is not a 'soul' until birth,[7] and for this reason the mother's life comes first. On the other hand, even the unborn baby has independent 'life' that is only superseded by the life of the mother (which also contains a soul).

Another Mishna tells us that if a pregnant woman is sentenced to death for her own crime, we do not wait for the baby to be born before carrying out her punishment. The gemara derives this halacha from a pasuk, but first states that in fact it would have been obvious as the baby is part of the body of the mother. The only reason that the Mishna needed to record this halacha, and that the pasuk is required, is because otherwise we could have argued that it would be not be fair to deprive the father of his rights to the baby.[8]

Why was it at first obvious to the gemara that the life of the unborn baby is not important enough to justify delaying the mother's execution? The wording of the gemara's question would seem to imply that the baby is simply part of the body of the mother and therefore included in the death sentence. So does the baby have independent life or not?

I believe that the answer is simple, and can be found within the Mishna itself. The Mishna continues that if the sentenced lady has already 'sat on the birthing stool', we do wait for her to give birth. It appears that only at this point does the baby have independent life. Thus, the gemara quoted above only needed to explain that the mother's life supersedes the baby's because birth was already imminent. At an earlier stage, the unborn baby is simply a part of the body of the mother and the permissibility of its dissection in order to save the mother is obvious.[9]

Thus, we have three different halachic stages in the development of a baby. For most of pregnancy, the baby does not have its own life at all. Life begins when the baby is about to be born, and the 'soul' only enters the baby at birth. We now need to investigate some of the halachos that may or may not be dependent on these three stages. It should go without saying that due to the severity of the issues involved and the need for assessment on a case-by-case basis, the following should not be taken as a definitive ruling.

Shabbos

Are the laws of Shabbos deferred in order to save the 'life' of an unborn baby? It may surprise some readers to know that the answer is not straightforward,[10] and that while Behag ruled in favour of saving the unborn baby,[11] the Ramban quotes those who disagree.[12]

The first gemara quoted above continues by saying that if the mother dies during childbirth, if necessary we carry a knife through the reshus harabim in order to cut open the mother's dead body in an attempt to save the baby.[13] The Ramban cites this gemara in support of the view of Behag, but points out that there is in fact no conclusive proof from here. Once the mother has died and is no longer sustaining the baby, her body is no more than a door behind which the baby is locked. If the baby is still alive, it has already been born.

Elsewhere, the Ramban assumes that the Behag is correct but asks what the justification is for the laws of Shabbos being relaxed for the sake of being which is not a 'soul'? He answers based on the dictum "Transgress one Shabbos for him, so that he will keep many Shabbosos."[14] As such, Shabbos can be broken irrespective of the current status of the baby.[15]

Murder and Abortion

The Torah tells us that one who strikes a pregnant woman, causing a miscarriage, must pay damages. Capital punishment is not exacted.[16] This is perhaps the clear source in the written Torah for Chazal's understanding that an unborn baby does not have a soul.

However, the gemara derives that a non-Jew is liable to the death penalty for even this level of bloodshed.[17] Although there may technically be no soul (or even life), it is quite clear that performing an abortion is in general a severe transgression. The gemara compares even masturbation to murder,[18] despite the fact that there is clearly no life involved. Intentional misuse of one's reproductive organs contains an element of contempt for human life, even when no-one is harmed by it.[19]

Furthermore, even if abortion is not murder and the foetus is just a part of the mother, it is certainly forbidden for a person to destroy or even to injure a part of his or her body.[20]

Extraordinary Circumstances

All of the above shows clearly that abortion is certainly forbidden under normal circumstances. Of course, no sane woman intentionally becomes pregnant in order to abort, so when the question arises, the circumstances tend not to be normal. In each case, it will be necessary to examine whether there can be any dispensation regarding the problems that we have raised.

The question of self-harm will rarely be an issue. Surgery is permitted in order to prevent pain,[21] and this includes psychological pain.[22] However, we must point out that abortion is not just self-harm, as the father also has a stake in the baby. Any leniencies will be dependent on the consent of the father to performing the abortion.[23]

Even with the consent of the father, there can be no justification for terminating a pregnancy if we may even do melacha on Shabbos to save the baby. Unless we are willing to reconsider the accepted ruling regarding Shabbos, to my mind the only circumstances under which abortion may be permitted (if the mother is not in danger) are when the baby is known to be deformed to the extent that it will never be able to keep mitzvos. Here, the logic of the Ramban does not apply and we would not allow the unborn baby to be saved on Shabbos.[24]

May we all be blessed with healthy children and further generations!

---

[1] See https://en.wikipedia.org/wiki/Death#Problems_of_definition

[2] Some have argued that even were the foetus to be an independent living entity, the mother should not be forced to preserve it using her own body. Were a person to be forcibly used as a dialysis machine for another, thus saving the other person's life, it would not be unethical to disconnect oneself and thus cause the other's death (see this Wikipedia article).

However, this argument is problematic for two reasons. Firstly, the claim regarding the 'human dialysis machine' is itself incorrect. Detaching oneself in such a situation would be murder, and there simply is no justification for murder unless one's life is being endangered by the other person. Secondly, even were there to be such justification, this certainly would not extend to a case where a person himself was responsible both for another's need for dialysis, and for becoming attached to this person in the first place. Only a case of rape would be comparable to the case of the person forcibly used for dialysis.

[3] Igros Moshe, Even Ha'ezer 2:11. While many within the Catholic Church also forbid abortions even in order to save the life of the mother (see Wikipedia), thank G-d no Jewish authority has followed suit on this issue as the mishna explicitly permits (and obligates) such action.

[4] Of course for these people it is also hard to see why human life would be especially sacrosanct (i.e. inherently more important than animal life). Those who follow atheism to its logical conclusion have indeed posited that there is no inherent difference between humans and animals, and have legitimised infanticide in some circumstances (see https://en.wikipedia.org/wiki/Peter_Singer#Abortion,_euthanasia,_and_infanticide).

[5] See https://mikyab.net/posts/3688 (in Hebrew).

[6] Ohalos 7:6

[7] See Rashi to Sanhedrin 72b who writes this explicitly in explanation of this halacha.

[8] Arachin 7a.

[9] See also the Ran's commentary to the Rif, Chulin 19a, who writes in a matter of fact way regarding the sentenced woman "we are not concerned about the baby" at this stage.

[10] The sources discussing the symptoms which permit a pregnant woman to eat on Yom Kippur (see Mishna Yoma 82a and the gemara thereon) are not conclusive, as the concern maybe the safety of the mother and not just of the unborn child.

[11] Siman 7, Hilchos Shabbos chapter 18.

[12] Toras HaAdam, Sha'ar HaMeichush, Inyan HaSakana. Interestingly, the Noda Biyehuda writes that we can break Shabbos to save the baby only if the woman is about to give birth, the distinction that we made above regarding life (Mahadura Tinyana, Choshen Mishpat siman 59. See also Chidushei R' Chaim Halevi, Hilchos Rotzeach).

[13] Arachin 7a-b.

[14] Chidushei HaRamban, Niddah 44b.

[15] This explains why according to Behag, melacha can be done on Shabbos even for the sake of a foetus that is not just about to be born. This is also the generally accepted halacha nowadays (see for example Shemiras Shabbos Kehilchasa 36:2). However, I would question how far the dictum of breaking Shabbos for the sake of future Shabbosos can be taken. Some have already ruled that Shabbos can be transgressed even to save fertilised eggs in a lab freezer (see this responsum). Extrapolating further, one could argue that fertility treatment could also be permitted on Shabbos.

[16] Shemos 21:22-3.

[17] Sanhedrin 57b. Non-Jews are liable to the death penalty for even lesser crimes such as theft and eating a limb torn from a living animal. However, in this instance, the crime they are killed for is murder. Some see this as an indication that killing a foetus is considered murder for Jew and non-Jew alike (see Igros Moshe, Choshen Mishpat 2:69), but this is far from conclusive.

[18] Nida 13a

[19] The Chavas Ya'ir (siman 31) indeed writes that abortion is forbidden as a form of 'destroying seed.' This is far from obvious, as this prohibition is directed at the manner in which the seed is extracted from the body rather than what is done with it after it has left the body (the destruction of laboratory sperm is not included). However, abortion is clearly a more severe version of the element of contempt for human life involved in masturbation.

[20] Mishna, Bava Kama 90b.

[21] Shabbos 50b

[22] Tosfos there (ד"ה בשביל צערו). Some authorities even allow surgery for aesthetic purposes alone (see Igros Moshe, Choshen Mishpat 2:66), but this is far from conclusive (my own writing on this topic in Hebrew is available on request).

[23] It is only here that there is an understandable conflict between the Torah and the 'pro-choice' / feminist movement. The Torah's position is however unambiguous – until birth, the father has ownership of the foetus even if he is not married to the mother (Bava Kama 43a). Only the product of an incestuous or adulterous relationship may not be owned by the father according to some views (see Yerushalmi quoted by Tosfos there; Minchas Chinuch 49; Techumin volume 9 page 57).

[24] This of itself is not proof that abortion would be permitted, as the life of such a baby also has a value (albeit not one significant enough to permit melacha on Shabbos prior to birth). My inclination is that parents would not be obligated to continue such a pregnancy, but this is subjective.