EMBRYO (Heb. עֻבָּר, ubbar), a child in the womb of its mother before its head emerges (Sanh. 72b; Sh. Ar., ḤM 425:2), the Hebrew ubbar meaning the unborn child in both the embryonic and fetal stages. Generally speaking, an embryo is incapable of having legal rights or duties, although there are various rules intended to protect its rights when born, and to prevent uncertainty with regard to its status.
Determining the Identity of the Embryo
A widow or divorced woman must not remarry until 90 days after the death of her husband or after her divorce (Sh. Ar., EH 13:1; see *Marriages, Prohibited). The reason for this prohibition is to remove any doubt should she immediately become pregnant from her second husband, as to whether the child she bears is a nine-month child of the first, or a seven-month child of the second, a doubt which might seriously affect its personal status (Yev. 41a–42a; and Codes).
Mother or Embryo
Who Takes Precedence? On the question of whether an embryo may be killed in order to save its mother in the case of a difficult confinement, see *Abortion.
Generally, the same laws that apply in determining the parentage of a born child and the capacity of the mother or her husband to deprive it of its status apply to the embryo; see *Mamzer; Parent and *Child.
Levirate Marriage or Ḥliẓah of a Pregnant Woman
If a woman was pregnant when her husband died and the child is subsequently born alive, she is exempt from levirate marriage or ḥaliẓah (Sh. Ar., EH 156:4; see *Levirate Marriage and Ḥaliẓah).
For the status of a child born after its mother became a proselyte while pregnant with it see *Proselyte.
An embryo is incapable of acquiring rights, for only a person born can possess rights. Accordingly, if an embryo dies in its mother's womb, it does not leave the right of succession, to which it would have been entitled had it been alive when the deceased died, to those who would have been its heirs had it been born alive when the deceased died. Instead, such right of succession passes to the heirs of the deceased as if the embryo had never existed (BB 142a; Nid. 44a; and Codes, Rif to Yev. 67a). There is a contrary opinion, however, to the effect that intestate succession being automatic, the embryo does acquire it (Piskei ha-Rosh to Yev. 67a; see Tur, ḤM 210). All agree, however, that a child born alive after the death of its father inherits its father as though it had been alive when he died (Rif, Ritba, to Yev. 67a, Beit Yosef and Bah to Tur and Sh. Ar. loc. cit.; see Ḥiddushei Ḥayyim ha-Levi to Yad, Terumot 8:4). Hence, an embryo that is born after the death of the deceased, even if it dies the day it is born, leaves the right of succession (after its mother) to its heirs on its father's side, but not to those on its mother's side – who would have inherited had the embryo died in her womb (Tur and Sh. Ar., ḤM 276:5). Only in respect of the special rights due to a firstborn son is a child born after the death of his father not of equal status with one already born when the father dies. Thus, if twins are born, the first one will not be entitled to the additional share in the father's estate due to the firstborn (see *Firstborn), since the Torah states of the primogenitary right, "If they have borne him children …" (Deut. 21:15), i.e., only a firstborn alive when the father dies, but not an embryo, is entitled to the (additional) primogenitary share (BB 142b, and Codes).
A will in favor of the embryo of another has no validity, even if the embryo is born alive, since no rights can be conferred upon one not yet born (BB 141b–142; Piskei ha-Rosh to Yev. 67a; Sh. Ar., ḤM 210:1). However, when a man whose wife is pregnant makes a will in favor of his own embryo whether it be a will of a person being on his deathbed (shekhiv me-ra) or of a person regarded as being in health (bari) (see *Wills) –
Contractual Obligations to an Embryo
According to some authorities although transfer of rights cannot be made to an embryo, a contractual obligation can be undertaken in his favor (see *Contract). A guardian can be appointed to protect the rights of an embryo (Sh. Ar., ḤM 290:1).
The State of Israel
In general, Jewish law is followed. With regard to succession, however, section 3 of the law of succession (1965) provides that a person born within 300 days after the death of the deceased is deemed to have been living when the deceased died, unless it is proved that he was conceived thereafter. In terms of section 33 (b) of the Capacity and Guardianship Law, 5722–1962, the court may appoint a guardian for a child en ventre de sa mére.
Gulak, Yesodei, 1 (1922), 33; 3 (1922), 82, 116, 147; ET, 7 (1956), 50–53; 8 (1957), 102–20; 11 (1965), 255f.; Miklishanski, in: Sefer ha-Yovel… Federbush (1960), 251–60; G. Ellinson, in: Sinai, 66 (1969/70), 20–49; Elon, Ha-Mishpat Ha-Ivri (1988), I, 496; idem. Jewish Law (1994), II, 604.