Abortion

ABORTION

Abortion is defined as the artificial termination of a woman's pregnancy.

In the Biblical Period

A monetary penalty was imposed for causing abortion of a woman's fetus in the course of a quarrel, and the penalty of death if the woman's own death resulted there from. "And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow – he shall be surely fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine. But if any harm follow – then thou shall give life for life" (Ex. 21:22–23). According to the Septuagint the term "harm" applied to the fetus and not to the woman, and a distinction is drawn between the abortion of a fetus which has not yet assumed complete shape – for which there is the monetary penalty – and the abortion of a fetus which has assumed complete shape – for which the penalty is "life for life." Philo (Spec., 3:108) specifically prescribes the imposition of the death penalty for causing an abortion, and the text is likewise construed in the Samaritan Targum and by a substantial number of Karaite commentators. A. *Geiger deduces from this the existence of an ancient law according to which (contrary to talmudic halakhah) the penalty for aborting a fetus of completed shape was death (Ha-Mikra ve-Targumav, 280–1, 343–4). The talmudic scholars, however, maintained that the word "harm" refers to the woman and not to the fetus, since the scriptural injunction, "He that smiteth a man so that he dieth, shall surely be put to death" (Ex. 21:12), did not apply to the killing of a fetus (Mekh. SbY, ed. Epstein-Melamed, 126; also Mekh. Mishpatim 8; Targ. Yer., Ex. 21:22–23; BK 42a). Similarly, Josephus states that a person who causes the abortion of a woman's fetus as a result of kicking her shall pay a fine for "diminishing the population," in addition to paying monetary compensation to the husband, and that such a person shall be put to death if the woman dies of the blow (Ant., 4:278). According to the laws of the ancient East (Sumer, Assyria, the Hittites), punishment for inflicting an aborting blow was monetary and sometimes even flagellation, but not death (except for one provision in Assyrian law concerning willful abortion, self-inflicted). In the Code of *Hammurapi (no. 209, 210) there is a parallel to the construction of the two quoted passages: "If a man strikes a woman [with child] causing her fruit to depart, he shall pay ten shekalim for her loss of child. If the woman should die, he who struck the blow shall be put to death."

In the Talmudic Period

In talmudic times, as in ancient *halakhah, abortion was not considered a transgression unless the fetus was viable (ben keyama; Mekh. Mishpatim 4 and see Sanh. 84b and Nid. 44b; see Rashi; ad loc.), hence, even if an infant is only one day old, his killer is guilty of murder (Nid. 5:3). In the view of R. Ishmael, only a *Gentile, to whom some of the basic transgressions applied with greater stringency, incurred the death penalty for causing the loss of the fetus (Sanh. 57b). Thus abortion, although prohibited, does not constitute murder (Tos., Sanh. 59a; Ḥul. 33a). The scholars deduced the prohibition against abortion by an a fortiori argument from the laws concerning abstention from procreation, or onanism, or having sexual relations with one's wife when likely to harm the fetus in her womb – the perpetrator whereof being regarded as "a shedder of blood" (Yev. 62b; Nid. 13a and 31a; Ḥavvat Ya'ir, no. 31; She'elat Yaveẓ, 1:43; Mishpetei Uziel, 3:46). This is apparently also the meaning of Josephus' statement that "the Law has commanded to raise all the children and prohibited women from aborting or destroying seed; a woman who does so shall be judged a murderess of children for she has caused a soul to be lost and the family of man to be diminished" (Apion, 2:202).

The Zohar explains that the basis of the prohibition against abortion is that "a person who kills the fetus in his wife's womb desecrates that which was built by the Holy One and His craftsmanship." Israel is praised because notwithstanding the decree, in Egypt, "every son that is born ye shall cast into the river" (Ex. 1:22), "there was found no single person to kill the fetus in the womb of the woman, much less after its birth. By virtue of this Israel went out of bondage" (Zohar, Ex., ed. Warsaw, 3b).

Abortion is permitted if the fetus endangers the mother's life. Thus, "if a woman travails to give birth [and it is feared she may die], one may sever the fetus from her womb and extract it, member by member, for her life takes precedence over his" (Oho. 7:6). This is the case only as long as the fetus has not emerged into the world, when it is not a life at all and "it may be killed and the mother saved" (Rashi and Meiri, Sanh. 72b). But, from the moment that the greater part of the fetus has emerged into the world – either its head only, or its greater part – it may not be touched, even if it endangers the mother's life: "ein doḥin nefesh mi-penei nefesh" ("one may not reject one life to save another" – Oho. and Sanh. ibid.). Even though one is enjoined to save a person who is being pursued, if necessary by killing the pursuer (see *Penal Law), the law distinguishes between a fetus which has emerged into the world and a "pursuer," since "she [the mother] is pursued from heaven" (Sanh. 72b) and moreover, "such is the way of the world" (Maim., Yad, Roẓe'aḥ 1:9) and "one does not know whether the fetus is pursuing the mother, or the mother the fetus" (TJ Sanh. 8:9, 26c). However, when the mother's life is endangered, she herself may destroy the fetus – even if its greater part has emerged – "for even if in the eyes of others the law of a fetus is not as the law of a pursuer, the mother may yet regard the fetus as pursuing her" (Meiri, ibid.).

Contrary to the rule that a person is always fully liable for damage (mu'ad le-olam), whether inadvertently or willfully caused (bk 2:6, see *Penal Law, Torts), it was determined with regard to damage caused by abortion, that "he who with the leave of the bet din and does injury – is absolved if he does so inadvertently, but is liable if he does so willfully – this being for the good order of the world" (Tosef., Git. 4:7), for "if we do not absolve those who have acted inadvertently, they will refrain from carrying out the abortion and saving the mother" (Tashbeẓ, pt. 3, no. 82; Minḥat Bik., Tosef., Git. 4:7).

In the Codes

Some authorities permit abortion only when there is danger to the life of the mother deriving from the fetus "because it is pursuing to kill her" (Maim. loc. cit.; Sh. Ar., ḤM 425:2), but permission to "abort the fetus which has not emerged into the world should not be facilitated [in order] to save [the mother] from illness deriving from an inflammation not connected with the pregnancy, or a poisonous fever … in these cases the fetus is not [per se] the cause of her illness" (Paḥad Yiẓḥak, S.V. Nefalim). Contrary to these opinions, the majority of the later authorities (aḥaronim) maintain that abortion should be permitted if it is necessary for the recuperation of the mother, even if there is no mortal danger attaching to the pregnancy and even if the mother's illness has not been directly caused by the fetus (Maharit, Resp. no. 99). Jacob *Emden permitted abortion "as long as the fetus has not emerged from the womb, even if not in order to save the mother's life, but only to save her from the harassment and great pain which the fetus causes her" (She'elat Yaveẓ, 1:43). A similar view was adopted by Benzion Meir Ḥai *Ouziel, namely that abortion is prohibited if merely intended for its own sake, but permitted "if intended to serve the mother's needs … even if not vital"; and who accordingly decided that abortion was permissible to save the mother from the deafness which would result, according to medical opinion, from her continued pregnancy (Mishpetei Uziel, loc. cit.). In the Kovno ghetto, at the time of the Holocaust, the Germans decreed that every Jewish woman falling pregnant shall be killed together with her fetus. As a result, in 1942 Rabbi Ephraim Oshry decided that an abortion was permissible in order to save a pregnant woman from the consequences of the decree (Mi-Ma'amakim, no. 20).

The permissibility of abortion has also been discussed in relation to a pregnancy resulting from a prohibited (i.e., adulterous) union (see Ḥavvat Ya'ir, ibid.). Jacob Emden permitted abortion to a married woman made pregnant through her adultery, since the offspring would be a mamzer (see *Mamzer), but not to an unmarried woman who becomes pregnant, since the taint of bastardy does not attach to her offspring (She'elat Yaveẓ, loc. cit., S.V. Yuḥasin). In a later responsum it was decided that abortion was prohibited even in the former case (Leḥem ha-Panim, last Kunteres, no. 19), but this decision was reversed by Ouziel, in deciding that in the case of bastardous offspring abortion was permissible at the hands of the mother herself (Mishpetei Uziel, 3, no. 47).

In recent years the question of the permissibility of an abortion has also been raised in cases where there is the fear that birth may be given to a child suffering from a mental or physical defect because of an illness, such as rubeola or measles, contracted by the mother or due to the aftereffects of drugs, such as thalidomide, taken by her. The general tendency is to uphold the prohibition against abortion in such cases, unless justified in the interests of the mother's health, which factor has, however, been deemed to extend to profound emotional or mental disturbance (see: Unterman, Zweig, in bibliography). An important factor in deciding whether or not an abortion should be permitted is the stage of the pregnancy: the shorter this period, the stronger are the considerations in favor of permitting abortion (Ḥavvat Ya'ir and She'elat Yaveẓ, loc. cit.; Beit Shelomo, ḤM 132).

Contemporary Authorities

Contemporary halakhic authorities adopted a strict approach towards the problem of abortion. R. Isser Yehuda *Unterman defined the abortion of a fetus as "tantamount to murder," subject to a biblical prohibition. R. Moses *Feinstein adopted a particularly strict approach. In his view, abortion would only be permitted if the doctors determined that there was a high probability that the mother would die were the pregnancy to be continued. Where the mother's life is not endangered, but the abortion is required for reasons of her health, or where the fetus suffers from Tay-Sachs disease, or Down's syndrome, abortion is prohibited, the prohibition being equal in severity to the prohibition of homicide. This is the case even if bringing the child into the world will cause intense suffering and distress, to both the newborn and his parents. According to R. Feinstein, the prohibition on abortion also applies where the pregnancy was the result of forbidden sexual relations, which would result in the birth of a mamzer.

Other halakhic authorities – foremost among them R. Eliezer *Waldenberg – continued the line of the accepted halakhic position whereby the killing of a fetus did not constitute homicide, being a prohibition by virtue of the reasons mentioned above. Moreover, according to the majority of authorities, the prohibition was of rabbinic origin. In the case of a fetus suffering from Tay-Sachs disease R. Waldenberg ruled: "it is permissible … to perform an abortion, even until the seventh month of her pregnancy, immediately upon its becoming absolutely clear that such a child will be born thus." In his ruling he relies inter alia on the responsa of Maharit (R. Joseph *Trani) and She'elat Ya'veẓ (R. Jacob *Emden), who permit abortion "even if not in order to save the mother's life, but only to save her from the harassment and the great pain that the fetus causes her" (see above). R. Waldenberg adds: "… Consequently, if there is a case in which the halakhah would permit abortion for a great need and in order to alleviate pain and distress, this would appear to be a classic one. Whether the suffering is physical or mental is irrelevant, since in many instances mental suffering is greater and more painful than physical distress" (Ẓiẓ Eliezer, 13:102). He also permitted the abortion of a fetus suffering from Down's syndrome. Quite frequently, however, the condition of such a child is far better than that of the child suffering from Tay-Sachs, both in terms of his chances of survival and in terms of his physical and mental condition. Accordingly, "From this [i.e., the general license in the case of Tay-Sachs disease] one cannot establish an explicit and general license to conduct an abortion upon discovering a case of Down's syndrome … until the facts pertaining to the results of the examination are known, and the rabbi deciding the case has thoroughly examined the mental condition of the couple" (ibid., 14:101).

In the dispute between Rabbis Feinstein and Waldenberg relating to Maharit's responsum, which contradicts his own conclusion, R. Feinstein writes: "This responsum is to be ignored … for it is undoubtedly a forgery compiled by an errant disciple and ascribed to him" (p. 466); and regarding the responsum of R. Jacob Emden, which also contradicts his own conclusion, he claims that "… the argument lacks any cogency, even if it was written by as great a person as the Ya'veẓ" (p. 468). In concluding his responsum, R. Feinstein writes of "the need to rule strictly in light of the great laxity [in these matters] in the world and in Israel." Indeed, this position is both acceptable and common in the halakhah, but in similar cases the tendency has not been to reject the views of earlier authorities, or to rule that they were forged, but rather to rule stringently, beyond the letter of the law, due to the needs of the hour (see Waldenberg, ibid., 14:6).

In the State of Israel

Abortion and attempted abortion were prohibited in the Criminal Law Ordinance of 1936 (based on English law), on pain of imprisonment (sec. 175). An amendment in 1966 to the above ordinance relieved the mother of criminal responsibility for a self-inflicted abortion, formerly also punishable (sec. 176). In this context, causing the death of a person in an attempt to perform an illegal abortion constituted manslaughter, for which the maximum penalty is life imprisonment. An abortion performed in good faith and in order to save the mother's life, or to prevent her suffering serious physical or mental injury, was not a punishable offense. Terms such as "endangerment of life" and "grievous harm or injury" were given a wide and liberal interpretation, even by the prosecution in considering whether or not to put offenders on trial.

The Penal Law Amendment (Termination of Pregnancy) 5737–1977 provided, inter alia, that "a gynecologist shall not bear criminal responsibility for interrupting a woman's pregnancy if the abortion was performed at a recognized medical institution and if, after having obtained the woman's informed consent, advance approval was given by a committee consisting of three members, two of whom are doctors (one of them an expert in gynecology), and the third a social worker." The law enumerates five cases in which the committee is permitted to approve an abortion: (1) the woman is under legally marriageable age (17 years old) or over 40; (2) the pregnancy is the result of prohibited relations or relations outside the framework of marriage; (3) the child is likely to have a physical or a mental defect; (4) continuance of the pregnancy is likely to endanger the woman's life or cause her physical or mental harm; (5) continuance of the pregnancy is likely to cause grave harm to the woman or her children owing to difficult family or social circumstances in which she finds herself and which prevail in her environment (§316). The fifth consideration was the subject of sharp controversy and was rejected inter alia by religious circles. They claimed that the cases in which abortion is halakhically permitted – even according to the most lenient authorities – are all included in the first four reasons. In the Penal Law Amendment adopted by the Knesset in December 1979, the fifth reason was revoked.

The Israeli Supreme Court has also dealt with the question of the husband's legal standing in an application for an abortion filed by his wife; that is, is the committee obliged to allow the husband to present his position regarding his wife's application? The opinions in the judgment were divided. The majority view (Justices Shamgar, Ben-Ito) was that the committee is under no obligation to hear the husband, although it is permitted to do so. According to the minority view (Justice Elon), the husband has the right to present his claims to the committee (other than in exceptional cases, e.g., where the husband is intoxicated and unable to participate in a balanced and intelligent consultation, or where the urgency of the matter precludes summoning the husband). According to this view, the husband's right to be heard by the committee is based on the rules of natural justice, that find expression in the rabbinic dictum: "There are three partners in a person: The Holy One blessed be He, his father and his mother" (Kid. 30b; Nid. 31a; C.A. 413/80 Anon. v. Anon., P.D. 35 [3] 57). Elon further added (p. 89): "It is well known that in Jewish law no 'material' right of any kind was ever conferred upon the parents, even with respect to their own child who had already been born. The parents relation to their natural offspring is akin to a natural bond, and in describing this relationship, notions of legal ownership are both inadequate and offensive" (C.A. 488/97 Anon. et al. v. Attorney General, 32 (3), p. 429–30). This partnership is based on the deep and natural involvement of the parents in the fate of the fetus who is the fruit of their loins, and exists even where the parents are not married, and a fortiori is present when the parents are a married couple building their home and family. When the question of termination of a pregnancy arises, each of the two parents has a basic right – grounded in natural and elementary justice – to be heard and to express his or her feelings, prior to the adoption of any decision regarding the termination of the pregnancy and the destruction of the fetus.

ABORTION

In the Biblical Period

In the Talmudic Period

In the Codes

Contemporary Authorities

In the State of Israel

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