Let us begin our halachic discussion about the status of a fetus by asking some profound and fascinating questions about life itself:
- When does life begin?
Perhaps the most basic question about life is: when does life begin? We know that a baby is considered to be “alive.” But when does when does life begin? Is a fetus alive? What about an unfertilized egg and male reproductive seed? What is the difference between something that is alive and something that is not?
And to answer this, we need to ask an even more basic question:
- What is the definition of life?
If we begin thinking about the nature of being alive, it is not entirely clear what defines life.
Is it breathing?
Is it being conscious, or having consciousness?
Is it having independent existence? (And if this is the case, then we can contemplate whether anyone has independent existence, especially if we understand Hashem as the only one with complete independent existence, as all of existence is dependent on Him. See Rambam, Ramban, and many other Rishonim who discuss this concept.)
Perhaps being alive is having free will and agency?
The only problem with these definitions is that none of them would hold up unqualified. Is someone on a breathing tube not alive, since they are dependent on a machine for their continued existence? Is someone sleeping or knocked unconscious considered dead? And if someone is unable to make decisions or assert their agency, are they not alive? So, even as we begin our discussion, it becomes evident that the nature of life and the definition of “being alive” is not clearly definable. Which leads us to our next question:
- What is the status of a fetus?
If we had a clear definition of life, we could apply it to a fetus and easily answer this question. But because the definition of life is unclear, it becomes increasingly unclear how we should define a fetus. Is a fetus a full-fledged human being? Is it a partial human being? A potential human being? Or perhaps not a human being at all? We can also ask:
- Does it depend on how old the fetus is?
As we will see in several Torah sources, there is room to argue that there are different types of fetuses. As a fetus grows and develops, it’s possible that it becomes human, or at least more human, even if that is not originally the case when it is first conceived as a zygote.
The question would then become, at what stage does this transformation of status occur, and why? Is it about taking on a physical form, having a heartbeat, becoming viable and potentially independent from its mother (which could either be the point at which a fetus can survive outside the womb, or the point at which a fetus can survive in an incubator), or some other factor?
- What is the issur of abortion?
One of the most debated issues surrounding abortion is the nature of the issur (prohibition). If a fetus is a human being, abortion should violate the issur of retzicha (murder). If a fetus is not a fully-fledged human though, perhaps abortion is still regarded as murder, albeit a less severe form or degree of the violation. However, the more we think a fetus is not yet a human being, the more we would assume abortion violates some other type of issur, or perhaps, though hard to imagine, no issur at all. However, even it were the case that abortion did not violate any Torah prohibition, it is possible, and overwhelmingly likely, that Chazal would have still instituted a gezeirah against it, thereby making abortion a rabbinic issur.
- Are there ever cases where abortion is allowed? If so, when? And why?
Regardless of what the issur of abortion may be, we will need to determine if and when it is ever mutter (permitted) to abort a fetus. And if it is, when and why would this prohibition be allowed? Of course, the more severe the issur of abortion is, and more we think abortion is aligned with the issur of murder, the less likely it will be that that it will be permitted, no matter the case. After all, the Gemara states that one is never allowed to kill someone else, even to save a life (Sanhedrin 74a).
- Are we allowed to sacrifice a fetus in order to save its mother’s life?
Very often, the saddest questions in halacha regarding abortion are cases where we need to choose between saving the life of the fetus or saving the life of its mother.
For example, during the Holocaust, the Nazis began killing all the pregnant Jewish women in the camps; thus, the following halachic question was raised: would it be muttar for the Jewish doctors to abort the fetuses of all the pregnant Jewish women in order to save the lives of these innocent women?
Similarly, there are cases where a pregnant woman is unfortunately diagnosed with cancer and would need to undergo chemotherapy to save her life. Would undergoing chemotherapy be muttar, even though it will likely cause the fetus to die? Furthermore, would directly aborting the fetus be muttar in such a case, because the pregnancy itself can cause the cancer to metastasize at a quicker rate? (See Nishmas Avraham, CM 425:1, n. 15. See also Tzitz Eliezer 9:51:3.)
- Can we violate Shabbos to save a fetus?
The Gemara states that one is allowed to violate Shabbos in order to save a life (Yoma 85b). However, does this apply to a fetus? Again, this will depend on whether a fetus is considered alive. The more we think a fetus has the same status as a human being, the more we would assume that the same halachos apply. Thus, the question of whether one can violate Shabbos to save a fetus would be a good test, or control, to determine whether a fetus is considered alive in the eyes of Torah.
Analyzing the Torah Sources
In addressing the status of a fetus in halacha and the Torah’s approach to abortion, the Torah (Shemos 21:22) famously discusses a case where two men are arguing and hit a pregnant woman, causing her to miscarry:
And should men quarrel and hit a pregnant woman, and she miscarries but there is no fatality, he shall surely be punished, when the woman’s husband makes demands of him, and he shall give [restitution] according to the judges’ [orders].
The Gemara in Sanhedrin (79a) interprets this verse as referring to a case where a man intended to strike his fellow man, but instead struck the pregnant woman, causing her to miscarry. The Torah states, as the Gemara explains in Baba Kama (48b-49a), that the perpetrator needs to pay the value of the fetus to the husband.
It is interesting to note that the Torah discusses a case where an abortion is done by accident. However, if one unintentionally kills someone, the halacha is that they are sent into galus (exile), not asked to simply pay a monetary fine? Thus, if abortion were in fact an act of murder, why would an accidental abortion not be treated as an accidental murder, where the punishment is galus? This is seemingly a clear indication that the Torah does not equate abortion with murder, at least not to the same degree as murdering a full-fledged human being.
Furthermore, the Mishna in Niddah (5:3) states that once a child is a single day old, if someone kills this child, they are liable for the child’s murder.
A baby boy, even one day old… one who kills him is liable for his murder.
The Gemara in Niddah (44b) goes on to explain that this is learned out from the Torah source “And he that smites any man mortally, shall be put to death.” (Vayikra 24:17). The Gemara in Niddah 44b states as follows:
The Mishna teaches: And one who kills a one-day-old baby is liable for his murder. The Gemara explains that the reason for this is as it is written: “And he who smites any man mortally shall be put to death” (Leviticus 24:17), where the phrase “any man” indicates that this verse applies in any case, even in the case of a one-day-old baby.
Thus, when the Torah states “any man,” it includes a child who is a single day old. Again, this would seem to imply that if one aborts a fetus, it would not be included in this category. This is exactly how the Ramban (Niddah 44b) understands this Gemara. The Ramban infers that the Gemara is specifically referring to a one-day-old-child. The Ramban states that “this does not include a fetus, since we do not refer to a fetus as a human being.”
Thus, this Gemara reinforces the verse in Shemos which implies that the issur of abortion is not murder. And if the issur is not murder, then this would seem to imply that the status of a fetus changes once it is born. As such, we are still left with the question: what is the status of a fetus according to halacha?
It is interesting to note that the Gemara (Bava Kama 83a) does seem to imply that a fetus has significance as a nefesh. The Gemara states that a certain level of Hashem’s presence (Shechina) only resides on Klal Yisrael when there are 22,000 Jews present. The Gemara then states that if among 21,999 people there was a pregnant woman, but she then has a miscarriage, then this miscarriage would have caused the Shechina to stop resting upon Klal Yisrael.
While one can debate the halachic significance of this Gemara, it is nevertheless a clear source that a fetus has significant status in the eyes of Torah. The question thus becomes, how does this translate in regards to halacha?
In our next article, we will continue to analyze this fascinating halachic topic.
