The Status Of A Fetus In Halacha (Part III)

Key Points:

4. Abortion Is Assur mi’d’Oraisa, But Not Murder

Exploring the concept of abortion as a biblically prohibited act, yet not categorized as murder, leading to various interpretations and implications.

5. Abortion is A Rabbinic Prohibition

Delving into the perspective that abortion may not have a direct biblical prohibition but is considered a rabbinic prohibition, with different interpretations and discussions among scholars.

Content:

Until this point, we saw opinions that abortion either violates a form of retzichah (murder) or the prohibition of chavalah (causing a wound) – which itself might be subcategories of retzichah. (Another opinion to mention is that abortion is a violation of wasting seed, which also may be a subcategory of retzichah.) As we will soon see, there are several other similar and related formulations within the Rishonim and the Achronim.

Another way to explain the less severe punishment for abortion is to disconnect the issur of abortion from the issur of murder. Accordingly, while it may still be assur mi’d’Oraisa (biblically prohibited) to abort a fetus, it is not murder, and this explains the less severe punishment for its violation.

Some Achronim go as far as to give a potential nafka minah (ramification) that would result from this. The Gemara (Sanhedrin 74a) states that one is not allowed to kill someone in order to save their own life. Thus, if abortion is not murder (since a fetus is not a nefesh), then one would be allowed to abort a fetus in order to save their own life. While this is a complicated sugya that requires much more analysis – as we’ll endeavor to do in future articles – this nafka minah still displays the important consequences that can result depending on how we classify the issur of abortion.

The question now becomes, if the issur d‘Oraisa of abortion is not murder, what is it? There are at least two possible answers that are suggested.

I. Stealing

Rav Shlomo Zalman Auerbauch was of the opinion that abortion violates the issur of stealing, because according to halacha, the fetus belongs to the father (Bava Kama 48b-49a). Thus, when one aborts a fetus, they have stolen the child from their father.

II. The Issur Comes Mi’Svara (from Logic)

Some of the Achronim offer a very interesting argument, suggesting that the issur of abortion comes from the fact that there is a chiyuv hatzalah (an obligation to save the fetus) if the fetus’s life is in danger. As such, if there is an obligation to save its life, there must also be an issur to abort the fetus.

To understand this approach, we need to first try to determine where the chiyuv hatzalah stems from. There are several options:

A) The Gemara in Sanhedrin (73a) brings two Torah sources that teach us the chiyuv to save someone else’s life:

From the pasuk of “Loh sa’amod al dam rei’echa – One should not stand idly by the blood of his brother” (Vayikra 19:16).

Or from “Hasheivoso loh” (Devarim 22:2) – when one’s life is in danger, one should ‘return it’ to him.

B) The Gemara in Yoma (85a-b) brings two sources to teach us that one can violate a mitzvah in order to save a life:

“V’chai bahem” (Vayikra 18:5). Hashem gave us the mitzvos to “live” by them, not to die by them.

Or from the logical argument that one may violate one Shabbos in order to keep many future Shabbasos – in Gemara parlance: “Chalal alav Shabbos achas kdei sh’yishmor Shabbosos harbei.”

Even if we were to argue that the fetus is not fully alive, and therefore, these sources might not apply to a fetus, the principle of Chalal alav Shabbos achas is a question of potential, and would therefore likely still apply to the fetus. This, in fact, is the opinion of the Ramban (Niddah 44b) and several other Rishonim.

Thus, if there is a mitzvah to save the life of a fetus, aborting a fetus would logically be problematic. How problematic, though, is still a question that needs to be answered. Is aborting a fetus only a bittul aseh (violation of a positive commandment), because one did not save the life of the fetus? Or is the fact that there is a mitzvah to save the life of a fetus a sign that abortion is a full-fledged issur? The Achronim debate this very issue. (See below, where Rav Moshe Feinstein and the Tzitz Eliezer debate this question.)

On the other end of the spectrum, some Rishonim seem to imply that there is actually no issur mi’d’Oraisa of abortion at all.

Tosafos (Niddah 44b) quotes the Gemara in Arachin (7a) which states that one can be violate Shabbos in order to save a fetus. Tosafos then states, explicitly, that this is true, even though it is muttar (permitted) to abort a fetus. The use of the word muttar clearly implies that in the eyes of Tosafos, there is no issur of abortion.

Nevertheless, many Achronim suggest that Tosafos would still agree that abortion is assur rabbinically.

Is the Mitzvah to Save a Fetus
Connected to the Issur of Abortion?

A powerful question arises:

If it is muttar, at least on a Torah level, to abort a fetus, how is it muttar to violate Shabbos in order to save the life of a fetus? If the fetus is not considered alive, how can saving it warrant a violation of Shabbos?

This leads us to the famous debate between the Tzitz Eliezer (Rav Eliezer Waldenberg) and Rav Moshe Feinstein:

The Tzitz Eliezer held that the chiyuv hatzalah is independent from the issue of abortion, and thus, even if there is a mitzvah to violate Shabbos in order to save the fetus, this would not indicate that there is an issur mi’d’Oraisa to abort it. Instead, the issur is only rabbinic.

Rav Moshe Feinstein, however, argued and believed that the chiyuv hatzalah is connected to the issue of abortion. Therefore, he maintained that since you can violate Shabbos to save a fetus, it must also be assur mi’d’Oraisa to abort it.

The root of their debate seems to be as follows: Rav Moshe would base his approach in the fundamental importance of Shabbos. Because Shabbos is so important, if one is allowed to violate Shabbos to save a fetus, then it must also be assur mi’d’Oraisa to abort it.

The Tzitz Eiezer, however, would argue that the ability to violate Shabbos to save a fetus is only a question of “potential” (Chalal Shabbos achas), whereas the nature and severity of abortion is a question of its status “right now.” Thus, even if one can violate Shabbos to save a fetus, it is still possible that abortion is not assur on a Torah level.

Another question concerns the opinion that issur is only rabbinic. The Torah says that a man who killed a fetus needs to pay a fine for the miscarriage that he caused. As such, it appears that there is at least some type of issur mi’d’Oraisa here.

However, this is not necessarily the case. The Gemara in Bava Kama (48b-49a) explains that the monetary obligation is accessed based on the value of the fetus, and then paid to the father. However, one of the most famous and fundamental questions regarding the sugya of nezikin (damages) is whether one who damages violates an aveirah, or whether there is simply a chiyuv (responsibility) to pay back the cost of the damage. If we hold the latter, then just like a loveh (borrower) has a chiyuv to pay back the loan, the mazik (damager) has a chiyuv to pay back the damage; but there is not necessarily an issur he violated.

If abortion is only a rabbinic issur, there could be several possible options regarding its nature. Generally, rabbinic prohibitions are either new restrictions created by Chazal, or they are extensions that build off and emulate an existing issur mi’d’Oraisa.

If a rabbinic issur against abortion were in the latter category, it could be an extension of any of the many possible Torah issurim we have mentioned.

The Fetus is Considered a “Limb” of its Mother

There is a famous debate amongst Chazal about whether a fetus is considered a “limb” of its mother (“uber yerech imo”). The Gemara (Chulin 58a) states:

Rabbi Eliezer holds that a fetus is considered like the thigh of its mother and is rendered a tereifa as part of its body, and Rabbi Yehoshua holds that a fetus is not considered like the thigh of its mother.

It has often been assumed that this debate is fundamentally centered around the very question of whether a fetus is considered to be a full nefesh or not. However, upon analyzing both sides, one can actually use both opinions of “whether a fetus is considered a limb of its mother” to prove both sides of the debate regarding whether or not a fetus is considered to be a full nefesh. This can be seen as follows:

If we maintain that indeed, a fetus is the limb of its mother (uber yerech imo), then…

Since the fetus is only a limb, and a limb is never considered to be a person, a fetus is not a nefesh.

Alternatively, just like a limb is fully connected to one’s body, the fetus is similarly fully connected to the body of its mother; the fetus would be gaining its nishmas chaim (life force) from its mother as well. Thus, just as the mother of a fetus is fully alive, the fetus would similarly gain the same status in halacha as its mother, and be considered fully alive (and a full nefesh).

And if we maintain that a fetus is not the limb of its mother (uber lav yerech imo), then…

It is therefore considered to be a completely separate entity. As such, since it is a fully separate being, it must be considered fully alive (and a full nefesh).

Alternatively, it is therefore not connected to the nishmas chaim (life force) of its mother, and it would therefore not yet be considered alive (or a full nefesh).

Thus, even though the sugya of “uber yerech imo” is a fascinating and important part of this sugya, it is most definitely not a clear proof to either side in the debate of whether a fetus is considered to be a nefesh.

In our next article, we will continue to analyze this fascinating halachic topic.

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