The Status Of A Fetus In Halacha (Part V)

To briefly review, the Rambam’s shitah regarding the status of a fetus is almost as complicated as it is famous. As such, we are going to devote a tremendous amount of time to analyzing and deciphering every detail of the Rambam’s terminology.

The first important detail of note is the location the Rambam chose to codify this halacha, namely, in the context of his discussion of a rodef (pursuer). The Rambam states (Hilchos Rotzeach 1:9) that “there is a negative commandment against having mercy on a rodef. Therefore, the Sages taught that when it comes to a fetus that makes it difficult for the mother/pregnancy, one is allowed to cut the fetus within her belly, either with a drug or by hand, because the fetus is like a rodef (pursuer) that is trying to kill the mother. However, once the head of the fetus leaves the womb, we can’t touch it, because we can’t choose one soul over another, and this is the nature of the world.”

The Rambam’s language is striking, and a couple questions immediately arise:

First, there was no mention of the fetus being a “rodef” in the Mishna of Gemara. Where did the Rambam get this from? And even if the Rambam is emphasizing the end of the Gemara which says that Heaven is the rodef, that is only referring to once the fetus has already been born. Nowhere does the Gemara say that until then, the fetus was a rodef. Furthermore, the Rambam himself doesn’t even use this terminology when discussing the halacha once the fetus begins to emerge. but exchanges the words “ mi’shmaya kah radfah leih ” for, “v’zeh tivo shel olam,” which means “this is the nature of the world.” This requires explanation.

Second, perhaps more importantly, how can a fetus be a rodef? A fetus has no intent or awareness, so it can’t be said that the fetus is trying to kill the mother?! Is the Rambam saying that even without conscious intent, a fetus can be a rodef? Furthermore, what changes once the fetus leaves the womb? If anything, if the fetus is considered a rodef while in the womb, it should continue to be a rodef once it is born? And even more perplexing, why isn’t the mother considered to be a rodef to the fetus while the fetus is still in the womb? Why would the fetus be a rodef, but not the mother?

All of these questions require serious analysis. In order to understand the unique shitah of the Rambam, we need to first dive deep into understanding the sugya of rodef.

Rodef: The Status of a “Pursuer” in Halacha

In order to frame our discussion of the fascinating topic of rodef, let us begin with a few fundamental questions:

1. Why are you allowed to kill a rodef?

As we will soon show, the Torah allows – and might even require – one to kill someone who is actively endangering the life of another, attempting to kill them. As a general rule, the Torah does not allow one to kill one person to save another (“Ain docheh nefesh mipnei nefesh,” Sanhedrin 72b). Furthermore, the Torah does not even allow one to kill someone else in order to save one’s own life (Sanhedrin 74a). As the Rishonim explain, this is either because the sin of murder is so severe (Ramban), or because we do not know whose life is more valuable (Tosafos); consequently, we cannot choose to sacrifice one life to save another. (In future articles, we will analyze this sugya in much greater depth.)

As such, we must try to answer a question that is equally fascinating as it is difficult: why is a rodef any different than the aforementioned cases? Why are we allowed – or even required – to kill a rodef in order to save the life of the nirdaf (the one being endangered by the rodef)?

Further, it seems like we are killing the rodef for something he did not yet do? In all other areas in the Torah, we only convict or punish someone for something that they have already done. In this case, however, we are killing the rodef for something that he is going to do. The only other obvious example of this in halacha is a Ben Sorer U’Morer (the rebellious child), but this is a very complicated and unique case, and the Gemara even goes as far as to say that there has never been a single actual application of this halacha in all of Jewish history. Thus, we are left with our question: how can we kill a rodef for something that he is going to do, but has not yet already done?

2. Safek (doubt) vs. vadai (certainty): How certain do we have to be when it comes to the heter (or even chiyuv – obligation) to kill a rodef?

What if we are not sure someone is a rodef? For example, what if the security force at an airport identifies a possible terrorist, but they are not positive. If they decide to neutralize this person and he turns out to be an innocent civilian, they will have killed an innocent person. But if they do not act, and this person turns out to be a terrorist, their inaction will have caused an innocent group of civilians to die.

In a similar vein, what if you are 100% positive that someone is a rodef, but you are not sure he is going to succeed in killing the nirdaf? Does that impact the heter or chiyuv to kill the rodef?

3. Does a potential rodef need to have intent (kavanah) in order to qualify as being a rodef? And if we do require intent, what kind of intent is required?

When it comes to convicting someone for murder, there are a number of very specific criteria that are required in order for beis din to sentence someone to death. One of these requirements is kavanah. Does the same apply for the heter (or chiyuv) of killing a rodef?

For example, what if there is a situation where someone has no intent whatsoever, but they are still endangering someone else’s life. Is that person a rodef? To illustrate, in the case of a fetus that is endangering its mother’s life, the fetus is the cause of danger, but it has no intent whatsoever. In such a case, would we classify the fetus as rodef?

Alternatively, what if the potential rodef has intent to do a specific action, but has no intent for the danger that would result from their actions? For example, let’s say someone is about to accidentally detonate a bomb that will kill an entire group of people located in the vicinity. Unfortunately, this person is located far away from you, so you cannot warn them or deter them from detonating the bomb; thus, the only way to avoid everyone’s impending death would be to shoot him from a distance. Is this person considered a rodef, even though he has no intention of killing everyone? He has full intent to do the action, but has no intent to create the negative result. This is slightly different from the case of the fetus, since the fetus has no conscious intent whatsoever; it is the existence of the fetus alone that is the source of danger.

Let us take this a step further: What if the person has full intent to not only take the action, but also cause the harmful result. However, in this case, the person has the wrong information, so he thinks that he is doing something good, when in fact, he is about to do something very bad. For example, what if a pilot is about to shoot a group of soldiers, thinking that they are enemy troops, when they are in fact friendly. However, this pilot’s radio is broken, so no one can contact him and tell him that he is about to shoot his own men. Would he be considered a rodef, allowing us to shoot down his plane to save all the innocent men he is about to kill? Or, would we say that since he thinks these are enemy soldiers, he doesn’t have the necessary evil intention required to categorize him as a rodef?

4. Grama (indirect causation): How direct does the danger need to be in order to classify someone as a rodef?

In many halachic discussions, the question of grama comes up. When it comes to the category of rodef, how direct does the danger need to be in order to satisfy the requirement of “causing danger?”

In the Holocaust, there was a famous and tragic story: A family was hiding in a bunker, when they heard the Nazis approaching their location. Suddenly, their 1-year-old baby began screaming at the top of its lungs, causing them all to panic. Without thinking, the father cupped his hand over the baby’s mouth, and muffled out the baby’s shrieks. Unfortunately, the baby couldn’t breathe and passed away, but everyone else in the bunker was able to survive. After the war, the father asked a rav the following halachic question: he explained to the rav that he was a kohen, and as such, the halacha is that if a kohen murders someone, he would not be allowed to duchen. He asked the rav if this act during the Holocaust was considered murder; if we consider the baby to have been a rodef, then perhaps it wasn’t considered a violation of murder, and he would thus still be allowed to duchen?

It is important to note that in this case, not only didn’t the baby have any intention to cause any harm to those in the bunker, but the baby was not even the direct cause of danger; the Nazis were. The baby would only have potentially caused the Nazis to discover their hiding place and catch them. Thus, the baby not only lacks intent, but also lacks direct causation. As such, would the baby be considered a rodef?

Nowadays, there are similar cases where a pregnant mother needs chemotherapy to survive. In many cases, the doctors state that if the mother gets chemotherapy to save her own life, it will cause the fetus to die. But if she doesn’t get it, she will die. Thus, in such a case, would the fetus be considered a rodef? Even though it might seem as if the fetus is “causing” danger to the mother, it is actually the cancer that is causing the mother danger. (It is the need to not have the chemotherapy – in order to save the fetus – that is causing the mother harm, not the fetus itself.) Thus, the fetus not only has no ill intent, but it is not even directing causing the mother any danger. As such, would the baby be considered a rodef?

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