Abortion – Handout
Part 0: Introduction
Part 1: The Status of the Embryo
Babylonian Talmud Hullin 58a
רבי אליעזר סבר: עובר ירך אמו
R. Eliezer explained: the embryo is part of its mother
Babylonian Talmud – Nidah 44a
A BOY ONE DAY OLD…HE INHERITS AND TRANSMITS. From whom does he inherit? Obviously from his father; and to whom does he transmit? Obviously to his paternal brothers; but could not these if they wished inherit from their father and, if they preferred, inherit from him? — R. Shesheth replied: The meaning is, He inherits the estate of his mother to transmit it to his paternal brothers; hence only then when he is one day old but not when he is an embryo.
Babylonian Talmud – Yevamot 69b
The daughter of a priest who married an Israelite and he died immediately followingthe consummation of the marriage; she mayimmerse and eat terumah thatevening. Rav Chisda said, “She may immerseherself and eat for forty days; if she is notpregnant – she never was pregnant. And if she ispregnant, until forty days it is considered as ifit is mere water.”
Babylonian Talmud – Nidah8b
'A WOMAN IN PREGNANCY'? ONE WHOSE EMBRYO 'CAN BE DISCERNED. At what stage is the embryo discernible? — Symmachus citing R. Meir replied: Three months after conception.
Part 2: Homicide, Infanticide, Feticide
Exodus 21:12
מַכֵּה אִישׁ וָמֵת, מוֹת יוּמָת
He that smites a man so that he dies, shall surely be put to death.
Leviticus 24:17
וְאִישׁ כִּי יַכֶּה כָּל-נֶפֶשׁ אָדָם--מוֹת יוּמָת.
And he that smites any man mortally shall surely be put to death.
Babylonian Talmud – Nidah 44b
A BOY ONE DAY OLD…HE WHO KILLS HIM IS GUILTY OF MURDER, since it is written, “He that smites a man so that he dies”, implying, whatever the age.
Exodus 21:22-23
וְכִי-יִנָּצוּ אֲנָשִׁים, וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ, וְלֹא יִהְיֶהאָסוֹן--עָנוֹשׁ יֵעָנֵשׁ, כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה, וְנָתַן, בִּפְלִלִים.
וְאִם-אָסוֹן, יִהְיֶה--וְנָתַתָּה נֶפֶשׁ, תַּחַת נָפֶשׁ.
And if men strive together, and hurt a woman with child, so that her fruit be expelled, and yet no harm follow, he shall be surely fined, according as the woman's husband shall assess; and he shall pay as the judges determine.
But if any harm follow, then you shall give life for life…
Midrash Rabbah – Exodus 30:6
Observe how much God gave commandments on every detail. It says, “And if men strive together, and hurt a woman with child”, then if she dies, “You shalt give life for life”; but if she does not die, there is a monetary punishment, though the child had not seen the light, being still in the mother's womb.
Babylonian Talmud Bava Kama 83a
Were therefore the Israelites to be twenty-two thousand less one, and there was there among them a pregnant woman thus capable of completing the number, but a dog barked at her and she miscarried, the dog would in this case cause the Shechinah to depart from Israel. A certain woman entered a neighbor's house to bake there bread, and a dog suddenly barked at her, but the owner of the house said to her: Do not be afraid of the dog as its teeth are gone. She, however, said to him: Take your kindness and throw it on the thorns, for the embryo has already been moved.
Part 3: Digression – Septuagint & Noahides
Exodus 21:22-23 - Septuagint
…and yet no harm follow…
Genesis 9:6
שֹׁפֵךְ דַּם הָאָדָם, בָּאָדָם דָּמוֹ יִשָּׁפֵךְ
Whoso sheds man's blood, by man shall his blood be shed.
Babylonian Talmud Sanhedrin 57b
On the authority of R. Ishmael it was said: [He is executed] even for the murder of an embryo. What is R. Ishmael's reason? Because it is written, “Whoso sheds the blood of man within [another] man, shall his blood be shed”. What is “a man within another man”? — An embryo in his mother's womb.
Babylonian Talmud Sanhedrin 59a
There is nothing permitted to an Israelite yet forbidden to a heathen.
‘Every precept which was given to the Bnai Noah and repeated at Sinai was meant for both [Noachides and Israelites]’
Part 4: Murder
Exodus 20:12
לֹא תִרְצָח
Thou shalt not murder
Babylonian Talmud Yoma 82a
…for there is nothing that can stand before the saving of a life, with the exception of AVODAH ZARAH, GILUI ARAYOT and SHOFECH DAM.
From where do we know that this principle applies in the case of a murder? — This is logical. For there was a man who came before Rava and said to him: The lord of my village told me: Kill so-and-so, and if you will not, I shall kill you! — He answered: Let him kill you, but do not kill! What makes you see that your blood is redder than his? Perhaps the blood of that man is redder than yours?
Part 5: Independency?
Leviticus 18:5
וּשְׁמַרְתֶּם אֶת-חֻקֹּתַי וְאֶת-מִשְׁפָּטַי, אֲשֶׁר יַעֲשֶׂה אֹתָם הָאָדָם וָחַי בָּהֶם
You shall therefore keep My statutes, and My ordinances, which if a man do, he shall live by them.
Mishnah Yoma 8:5
If a woman who is pregnant smells [food], we feed her [even on Yom Kippur] until she is recovered
Babylonian Talmud Yoma 82a
Our Rabbis taught: If a woman with child smelled the flesh of consecrated meat or of pork, we put for her a reed into the juice and place it upon her mouth. If thereupon she feels that her craving has been satisfied, it is well. If not, one feeds her with the juice itself. If thereupon her craving is satisfied it is well; if not, one feeds her with the fat meat itself…
Part 6: Ensoulment
Babylonian Talmud Sanhedrin 91b
Antoninus also said to Rabbi, ‘When is the soul placed in man; at the time of Pekidah, or when the embryo is actually formed?’ He replied, ‘From the moment of formation.’ He objected: ‘Can a piece of meat be unsalted for three days without becoming putrid? Rather, it must be from the time of Pekidah.’ Rabbi said: This thing Antoninus taught me, Scripture supports him, for it is written, “And thy decree hath preserved my spirit”.
Antoninus also enquired of Rabbi, ‘From what time does the YetzerHaRa hold sway over man; from the moment of formation or from moment of going out?! — ‘From the formation,’ he replied. ‘If so,’ he objected, ‘it would rebel in its mother's womb and go forth. But it is from when it goes out.’ Rabbi said: This thing Antoninus taught me, Scripture supports him, for it is said, “At the door sin crouches in wait”.
Part 7: Therapeutic Abortion
Mishnah Ohalot 7:6
If a woman is in hard travail, one cuts up the fetus in her womb and take it out limb by limb, because her life comes before its life. If most of it has come out, one may not touch it, for we do not push off one life for another.
Mishnah Sanhedrin 8:7
These may be saved with their lives: one who pursues his fellow to kill him, and a male or a betrothed maiden.
Babylonian Talmud Sanhedrin 72b
R. Huna said: A minor in pursuit may be slain to save the pursued. He explained that a pursuer (rodef), whether an adult or a minor, need not be formally warned. R. Hisda asked R. Huna: we learned: Once his head has come forth, he may not be harmed, because one life may not be taken to save another. But why so? Is he not a pursuer? — There it is different, for she is pursued by Heaven.
Mishneh Torah – Laws of Murder and Protection of Life
This, indeed, is one of the negative mitzvot - not to take pity on the life of a rodef.
On this basis, our Sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether withdrugs or by hand (knife). For the fetus is considered a rodef of its mother.
If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.
Part 8: Non-Therapeutic Abortion
Mishnah Arachin 1:7
If a woman is about to be executed, they do not wait for her until she gives birth.
Babylonian Talmud Sanhedrin 6b
a judge is only accountable for what his eye sees.
Part 9: Summary
General agreement that:
1)Procreation is a positive commandment
2)Fetus is not a person
3)Fetus gets full status as a human life only after independent viability
4)Mother’s life takes precedence over the fetus
5)Therapeutic Abortion applies to late stages of pregnancy
6)Abortion of a fetus is not murder
7)Maternal considerations, not fetal considerations are the foundation for rulings on abortion
8)Stricter and Lenient strands in the Responsa