The Status Of A Fetus In Halacha (Part II)

Previously, we began our halachic discussion about the status of a fetus by asking some profound and fascinating questions about life itself, such as:

1. When does life begin?
2. What is the definition of life?
3. What is the status of a fetus?
4. Does it depend on how old the fetus is?
5. What is the issur of abortion?
6. Are there ever cases where abortion is allowed? If so, when? And why?
7. Are we allowed to sacrifice a fetus in order to save its mother’s life?
8. Can we violate Shabbos to save a fetus?

Now, let us begin to consider the possible answers to these questions.

Because the primary Torah sources are quite ambiguous regarding the status of a fetus, there have been several different approaches found within the Rishonim and Achronim regarding the nature of the issur of abortion. Let us begin analyzing the spectrum of this sugya:

Murder (Retzicha)

The most obvious classification for the issur of abortion would be murder. (As we will soon discuss, Rav Moshe Feinstein famously suggested that this was the opinion of the Rambam.) However, we still have to contend with the various questions and problems with this approach. For example, why wouldn’t the onesh (punishment) for abortion be murder, as with a normal case of retzicha?

To solve this problem, we could make a distinction between the category of murder and the punishment of being chayiv missah (receiving the death penalty). In other words, just because one violates the prohibition of retzicha does not necessarily mean they will be chayiv missah. For example, if someone kills a treifah (loosely defined as one who will die within the upcoming year because of a physiological problem), everyone seems to agree that they are not chayiv missah. Similarly, if one kills a goses (loosely defined as one on his deathbed), many opinions believe that they would not be chayiv missah.

(Notably, the Rambam (Hilchos Roteach 2:7) does maintains that one is chayiv missah for killing a goses.)

The sevara (logical argument) for not being chayiv missah for killing a treifah or a goses would be as follows:

Either this is not considered an act of murder, since the quality and quantity of life was such that severing it does not qualify as an act of murder.

Or, this is, in fact, defined as an act of murder; but due to the nature of the life that was taken, it doesn’t qualify as the type of murder that deserves a death penalty. In other words, this is a less severe act of murder, since there was “less life” that was taken.

This second approach might be found in the wording of Tosafos (Niddah 44b), who state that one is exempt for killing a goses. While this could mean that there is no issur at all, the Mishmaros Kehuna (Arachin 7a) suggests that the wording of Tosafos implies that there still is an issur, but not an issur that is severe enough to warrant a death penalty.

The sevara goes even deeper: the reason one receives the death penalty for killing someone is because of middah k’neged middah, measure for measure. When one violates a prohibited act, they receive exactly that which they inflicted upon someone else. If one kills someone, severing a soul from its body, the consequence, and atonement, is to receive the same: the severing of one’s own soul from their body. This is also why the punishment for accidentally killing someone is galus (exile). The perpetrator caused someone’s soul to leave this world, taking away their place in this world. Thus, instead of completely losing their place in this world, they simply lose their physical place, their makom, and they must journey into exile to atone for their sin.

Thus, when one kills a treifah or goses, the quality and quantity of life that was taken is such that the middah k’neged middah might not be the death penalty. While still a heinous act, and while still defined as murder, it would not qualify as an act that warrants the death penalty.

We can apply this same principle to abortion. While a fetus might be considered alive, and a nefesh, it might not yet possess the status of a full human being. (The Maharal (Chidushei Aggados on Niddah 30b), for example, suggests that the fetus is in a state where its neshama is not yet entirely inside its body.) So while it might still be classified as murder to abort a fetus, it might be less severe form of murder, and thus not qualify as an act that receives the death penalty. This is how Rav Moshe Feinstein (Igros Moshe, Choshen Mishpat 2:69) understands the issur of abortion: the fetus is a nefesh, and abortion is thus defined as murder. But abortion is not a severe enough an act of murder to receive the death penalty.

Chavla (Wounding)

(Potentially a Subcategory of Murder)

The Maharit (Shu”t, chelek 1, siman 97) suggests the issur of abortion is chavala (wounding). In general, there is a prohibition to wound both another person and oneself. The Gemara (Baba Kama 91b) compares the issur of chavala to three other prohibitions: bal tashchis (wasting), tza’ar (causing pain), retzicha (murder).

When analyzing this topic, the question becomes, is chavala a combination of all three of these categories, similar to all three of these categories, or something fundamentally different from all three categories, but still somewhat related?

Additionally, is chavala equally related to all three of these categories, or does it lean more towards one of them? To illustrate, if chavala is most closely related to bal tashchis (as wounding oneself can be seen as wasting a part of the human body), then it would be prohibited only if it was done for no reason. If, however, it was done for a tzorech (need), it should be muttar, just like baal tashchis is permitted when it is done for any need. (See Rambam, Sefer HaMitzvot (Lavin n. 57); Rambam (Hilchos Melachim 6:10).) For example, one can burn their clothes if they need to keep warm by a fire.)

Tosafos and the Pnei Yehoshua (both in Bava Kama 91b) suggest that in order for it to be permissible to violate chavala on oneself, it must be for a great need. As such, a minor benefit would not be enough, and it would still be assur. This seems to indicate a greater distinction between chavala and baal tashchis. (Avoiding pain and suffering would most probably be seen as a great need, and would therefore allow one to enter into a surgical procedure. This, however, would potentially prohibit optional surgeries such as certain cosmetic surgeries, unless one thinks this qualifies as a great need.)

To explain Tosafos’s and the Pnei Yehoshua’s position, it is likely that they maintain that chavala is more closely related to the issur of retzicha, albeit a much lower form. When one kills someone, they cause the person’s soul to leave their entire body, whereas if one severs someone’s limb, they “kill” only a small piece of the person, and the person themselves will still live on. If this is the case, it still makes sense that for a tzorech, one would be allowed to wound themselves. And even Tosfos, who argues that it is even assur to wound oneself for a tzorech, would agree with the Pnei Yeshoshua that for a tzorech gadol (a great need), such as saving one’s one life, it would be muttar to wound oneself, since they would be sacrificing a small part of themselves (blood, an open wound, or a limb) in order to save their life. This is why it is permitted to enter life-saving surgery, even if one’s body will be cut open and they will lose some blood.

While the Maharit suggests that the issur of abortion is chavala, a major question remains: is the Maharit suggesting that the issur is wounding the mother, or is the issur wounding the fetus?

Chavala of the Mother

If the problem of abortion is wounding the mother, there are two ways of understanding it:

1) The mother will likely be cut or hurt while the fetus is aborted.

2) The fetus itself is considered a limb of the mother (uber yerech imo). Thus, aborting a fetus is like cutting out an actual limb from the mother’s body.

Chavala of the Fetus

If aborting the fetus is a violating of chavala against the fetus itself, we would have to explain the Maharit’s sevara as follows: because the fetus is not yet a full nefesh, abortion would not violate the full issur of retzicha. However, since the fetus is still a “partial” nefesh/person, abortion would still “partially” violate the issur of murder; the Maharit would therefore be suggesting that chavala is the best way to categorize this type of issur. If one chops off someone’s arm, they violate a miniature or partial form of murder. So too, if someone aborts a fetus, they violate a miniature or partial form of murder.

Nafka Minah

A potential practical difference between these two approaches is whether one can do an abortion for the health of the mother.

If chavala is a problem of wounding the mother, then it would likely be muttar to perform an abortion for the sake of the mother’s health, since one can wound oneself for the sake of their improving their own health. However, it might only be allowed if it will save the mother’s life (a tzaruch gadol).

If, however, chavala is a problem of wounding the fetus, then we can suggest a few possibilities:

1. One cannot abort the fetus, since one cannot wound someone else for the sake of improving their own health.
2. One can only abort the fetus if it is to save the life of the mother, because for pikuach nefesh, chavala would be permissible. And even if normally once cannot wound someone else in order to save their own life, since the mother has a unique relationship with the fetus, as the fetus is dependent on her, the mother might be allowed to abort the fetus to save her life. (We will soon see several Gemaras and mekoros to support this sevara.)
3. One cannot abort the fetus, even to save the life of the mother, because chavala is a form of murder, and one cannot murder someone in order to save their own life, even if it is only a lower form of murder.

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