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SharePersonhood of a Fetus
(7) Adonai Elohim formed the Human from the dust of the earth. God blew into its nostrils the breath of life, and the Human became a living being.
In other words, if someone accidentally causes a miscarriage to take place, they are obligated to pay financial damages only; the case is not treated as manslaughter or murder, which would demand the death penalty. The “other damage” that would demand the death penalty (“life for life”) would be the death of the pregnant person herself (or some other serious punishment relating to the damage caused--”eye for eye, tooth for tooth…”) In other words, causing the termination of a pregnancy is not, in the Torah, considered murder.
MISHNA: In the case of a pregnant woman who is taken by the court to be executed, the court does not wait to execute her until she gives birth. Rather, she is killed immediately. But with regard to a woman taken to be executed who sat on the travailing chair [hamashber] in the throes of labor, the court waits to execute her until she gives birth. ...GEMARA: Isn’t it obvious that the court executes the pregnant woman rather than waiting? After all, it [i.e. the fetus] is part of her body. The Gemara answers: It was necessary for the mishna to teach this, as it might enter your mind to say that since it is written: “And if men strive together, and hurt a woman with child, so that her offspring depart…he shall be fined, as the woman’s husband shall place upon him” (Exodus 21:22), the fetus is considered to be the property of the husband. If so, the court should wait until she gives birth before executing her, and not cause him to lose the fetus. Consequently, the mishna teaches us that the court does not take this factor into account...The mishna teaches: With regard to a woman taken to be executed who sat on the travailing chair in the throes of labor, the court waits to execute her until she gives birth. The Gemara asks: What is the reason for delaying the execution in this case? The Gemara answers: Once the fetus uproots from its place and begins to leave the woman’s body, it is considered an independent body and may not be killed together with the mother. Rav Yehuda says that Shmuel says: In the case of a pregnant woman who is taken by the court to be executed, one strikes her opposite the womb, i.e., on the abdomen, so that the fetus dies first and so that she not suffer disgrace as a result of publicly bleeding from labor.
יבמות ס׳׳ט ב
אי מיעברא עד ארבעים מיא בעלמא היא
Yevamot 69b
If she is found pregnant, until the fortieth day it [i.e. the fetus] is mere fluid.
A woman who miscarries on the fortieth day since she immersed herself and engaged in intercourse with her husband need not be concerned that it might have been an offspring and she became impure with its miscarriage, as the formation of the offspring in the womb occurs only forty days after conception. But in the case of a woman who miscarries on the forty-first day after immersion, there is concern that perhaps it was an offspring.
גיטין כ׳׳ג ב
מאי טעמא דרבי בהא קסבר עובר ירך אמו הוא
Gittin 23b
What is the reason for Rabbi Yehuda HaNasi’s position [in the above conversation]? He holds that a fetus is considered as its mother’s thigh [that is, as part of its mother’s body].
In the middle of a Talmudic debate about whether a fetus is considered separate from the pregnant person, we see a clear statement by Rabbi Yehuda HaNasi who, as redactor of the Mishnah, holds great authority. His statement, in fact, closes the debate and lends credence to the discussion at hand (about the status of a fetus if its mother is liberated from bondage.) A fetus is not an independent being; it is part of the body of the person carrying it.
And Antoninos said to Rabbi Yehuda HaNasi: From when is the soul placed in a person? Is it from the moment of conception or from the moment of the formation of the embryo, forty days after conception? Rabbi Yehuda HaNasi said to him: It is from the moment of the formation of the embryo. Antoninos said to him: That is inconceivable. Is it possible that a piece of meat could stand for even three days without salt as a preservative and would not rot? The embryo could not exist for forty days without a soul. Rather, the soul is present from the moment of conception. Rabbi Yehuda HaNasi said: Antoninos taught me this matter, and there is a verse that supports him, as it is stated: “And Your Providence [pekudatekha] has preserved my spirit” (Job 10:12) indicating that it is from the moment of conception [pekida] that the soul is preserved within a person.
Fetus as Rodef
(ו) הָאִשָּׁה שֶׁהִיא מַקְשָׁה לֵילֵד, מְחַתְּכִין אֶת הַוָּלָד בְּמֵעֶיהָ וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נָפֶשׁ:
(6) If a woman is having trouble giving birth, they cut up the child in her womb and brings it forth limb by limb, because her life comes before the life of [the child]. But if the greater part has come out, one may not touch it, for one may not set aside one person's life for that of another.
In a situation in which the pregnant person’s life is in danger from the pregnancy or labor, Jewish law is abundantly clear: The adult’s life takes precedence. The only situation in which that comes into question is if the birth is already more than half completed--only then does the life of the birthing baby come into consideration. As Rabbi David Felman put it, “Implicit in [this] Mishnah is the teaching that the rights of the fetus are secondary to the rights of the mother all the way up until the moment of birth.”
This principle is cited elsewhere in the Talmud in a conversation about self-defense; the Gemara there asserts that abortion to save the pregnant person’s life should be considered self-defense, that the fetus in this case is a rodef, a “pursuer” attempting to kill the pregnant person. Rashi--Rabbi Shlomo Yitzhaki, the important 11th century French commentator addresses that discussion. The word nefesh in classical Jewish literature refers both to a “soul” and a “life.”
אמנם נדון השואל בא"א שזנתה שאלה הגונה היא. וקרוב בעיני להתירה...וגם בעובר כשר הי' צד להקל לצורך גדול. כל כמה דלא עקר. אפי' אינו משום פקוח נפש אמו. אלא להציל לה מרעתו. שגורם לה כאב גדול וצ"ע.
Rabbi Jacob Emden, Responsa She’elat Ya”vetz 1:43 (Germany, 1739-1759)
The questioner asks about an adulterous married woman (who is pregnant) is a good question. It appears to me to permit her (to abort)...And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, as long as the fetus has not begun to emerge; even if the mother’s life is not in jeopardy, but only so as to save her from woe associated with it that would cause her great pain...
Mental-health risk has been definitely equated with physical-health risk. This woman, in danger of losing her mental health unless the pregnancy is interrupted, would therefore accordingly qualify.
It is clear that abortion is not permitted without reason. That would be destructive and frustrative of the possibility of life. But for a reason, even if it is a slim reason, such as to prevent disgrace, then we have precedent and authority to permit it.
Excerpts from Igrot Moshe (Reb Moshe Feinstein, 1895 – 1986)
It would be forbidden to kill it even to save someone’s life. The exception would be to save the life of the mother during childbirth, not for any other need of the mother, which would definitely be forbidden.
Even for children for whom the doctors predict a very short life span, such as those children who are born with the disease called Tay-Sachs, which through newly developed tests can be diagnosed prenatally, it would be forbidden since there is no danger to the mother and the infant is not a rodef. One cannot permit an abortion even though there is very great suffering involved … It is incontrovertible and clear as I have written, a straightforward halachah according to the words of our Masters, the traditional commentaries and halachic authorities, that abortion would be forbidden as bona-fide murder, for any fetus; legitimate or a mamzer, genetically normal or afflicted with Tay-Sachs, are all included in the prohibition according to Jewish law.
Since every Reform Jew possesses an ultimate moral right to autonomy, each possesses the authority to determine for her/himself what she/he believes true and valid. This includes the right to decide for her/himself the standard to use in determining if an entity is human…
From the testimony of the religious, philosophic, and scientific communities of the world viewed as a whole, it is evident that there is no generally accepted objective standard for determining whether a fetus is a human being or part of the mother in which it exists. There exist only a mélange of subjective standards varying from one religionist to another, from one philosopher to another, and from one scientist to another. Consequently, since there is no objective standard for determining humanness, no impediment exists to deter the Reform Jew from deciding for her/himself whether a fetus is a human being or part of the female in which it exists…
According to Reform principles, as stated above, every person owns his/her own body, with the ultimate right, consequently, to determine what that body shall do and experience. This being the case, it is a Reform presumption that whatever exists within the confines of a person’s body and is physically connected to it is part of that body, and therefore entirely under the authority of the person whose body it is. If some entity, a person or organization of persons, therefore, wishes to exercise authority over a fetus in a woman’s body, the entity must prove convincingly either that the fetus is a person and not part of that body or that it possesses a moral right to authority over the woman’s body superior to that of the woman whose body it is. No entity – state, religious institution or individual – has taken even beginning steps to demonstrate objectively that a fetus is a person or that the entity possesses a moral right to override a woman’s authority over her own body.
But you asked me about my thinking about equal protection versus individual autonomy, and my answer to you is it's both. This is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when Government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.
Take this techine (a non-traditional prayer written by women) by Ariana Katz, about supporting Planned Parenthood: “Ribono shel olam, bless these sacred spaces of decision.” Katz writes about her inspiration for this poem: “We know that people of all genders access the medical care provided by Planned Parenthood clinics across the United States. When clinics are targeted by violent legislation and violent armed acts of terrorism, it is a direct attack on the care and services for women. So, a tekhine for Planned Parenthood, a prayer for all of us who seek care there, a prayer for service providers and volunteers.”
Another famous prayer reads in English, “Bless You, Rahamaima, Compassionate Nurturer of Life, who helps us choose life. Amen.” It was written by Deborah Eisenbach-Budner along with Rabbi Susan Schnur in 2013 when Deborah was choosing to have a non-therapeutic abortion and could not find existing prayers that encompassed her experience. Again, “choose life” here refers to the life of the woman.