כי יכה כל נפש אדם אפילו נפלים במשמע, תלמוד לומר מכה איש, שאינו חייב עד שיכה בן קיימא, הראוי להיות איש

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1 ane Sandy: Rescuing Those Who Put Themselves in Danger Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Convicted George Zimmerm rting Child Molesters: מסירה or Obligation? Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many Leiby Kletzky s Killer: The Insanity e in Halachah Accepting Charity from Non-Jews Alternatives to Cattle Prods: In Search of a Solution to the Aguna Problem Therapy and Impropriet with a Therapist Drafting Yeshiva Students: Headlines A Halachic Debate Many Terrorists for One Israeli? The Gilad Shalit Deal Through the Prism of Halachah r Cheeseburger? The Halachic Status of Synthetic Beef Webcams Halachah Bernie Madoff: Must a Charity Return Funds Donated by a Ponzi Schem rs? Hurricane Sandy: Rescuing Those Who Put Themselves Danger Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Convicted Georg rman? Reporting Child Molesters: מסירה or Obligation? Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many Leiby Kletzky s Killer sanity Defense in Halachah Accepting Charity from Non-Jews Alternatives to Cattle Prods: In Search of a Solution to the Aguna Problem Therapy an riety: Yichud with a Therapist Drafting Yeshiva Students: A Halachic Debate Many Terrorists for One Israeli? The Gilad Shalit Deal Through the Prism ah A Kosher Cheeseburger? The Halachic Status of Synthetic Beef Webcams in Halachah Bernie Madoff: Must a Charity Return Funds Donated by a Scheme to Investors? Hurricane Sandy: Rescuing Those Who Put Themselves in Danger Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Halachic Debates of Current Events ted George Zimmerman? Reporting Child Molesters: מסירה or Obligation? Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many Le y s Killer: The Insanity Defense in Halachah Accepting Charity BY DOVID from Non-Jews LICHTENSTEIN Alternatives to Cattle Prods: In Search of a Solution to the Aguna Proble y and Impropriety: Yichud with a Therapist Drafting Yeshiva Students: A Halachic Debate Many Terrorists for One Israeli? The Gilad Shalit Deal Throu sm of Halachah A Kosher Cheeseburger? The Halachic Status of Synthetic Beef Webcams in Halachah Bernie Madoff: Must a Charity Return Funds ed by a Ponzi Scheme to Investors? Hurricane Sandy: Rescuing Those Who Put Themselves in Danger Stand Your Ground vs. Duty to Retreat: Would Aborting a Zika Baby BACKGROUND The outbreak of the mosquito-borne Zika virus in , first in Brazil and then throughout the Americas, has produced heartbreaking images of sickly infants suffering from microcephaly an underdeveloped brain that results in a small head and other malformations. Although people who contract the disease generally show either no or mild symptoms, in the case of a pregnant woman, it can cause severe defects in the fetus, that translate into devastating disabilities throughout the child s life. The underdevelopment of a fetus brain due to the mother s infection can lead to premature death, in the most extreme cases, and in others, to significant lifelong disabilities and impairments. In June 2016, the Center for Disease Control and Prevention reported that 234 pregnant women in the United States including both U.S. residents and visitors had been diagnosed with Zika since the beginning of that year, three of whom had delivered babies with Zika-related defects. Three others chose to terminate their pregnancies after deformities were found in the fetuses they were carrying. Abortion has indeed emerged as a strong preference among pregnant women diagnosed with Zika. On June 22, 2016, the New England Journal of Medicine reported a surge in the demand for abortions in Latin America, the region worst hit by the epidemic. In Brazil, Venezuela and Ecuador, abortion requests doubled after warnings were issued of the disease s devastating effects on developing fetuses. Should we abort fetuses with the Zika virus? What halachic factors determine this decision? BASELINE SOURCES The Torah values human life tremendously. Murder is one of the worst sins a person can commit. However, we must ask what the Torah considers to be a human life. Is a fetus? If so, is this the case immediately after conception, or perhaps only later, when it is independently viable? When the Torah formulates the prohibition of murder, it does so in a noticeably specific way: Mishpatim 21:12 He who strikes a man who dies shall surely be put to death מכה איש ומת מות יומת Rashi wonders why the Torah needs this pasuk if it already says elsewhere: Vayikra 24:17 If a man shall strike any living-person, he shall surely be put to death ואיש, כי יכה כל-נפש אדם--מות, יומת 1

2 Rashi explains as follows: [the pasuk of] יכה כל נפש אדם כי implies even a fetus so the Torah teaches איש מכה to say you are not liable until you hit a lasting person, someone who is viable to become an Ish כי יכה כל נפש אדם אפילו נפלים במשמע, תלמוד לומר מכה איש, שאינו חייב עד שיכה בן קיימא, הראוי להיות איש Why would the death penalty only apply to someone who hits one who is viable to become an Ish? Rashi, quoting a medrash, states that the Torah only imposed the death penalty on the murder of a viable human being. This seemingly would only apply to a born child, or maybe also a fetus after the 7th month. This ruling is also reflected in a Mishna in Niddah (44a) which says that the death penalty for killing a child only begins on the first day of his life and seemingly not a day earlier. We see that the punishment for murder excludes killing a fetus. If this is the case, from where would the prohibition against abortion be derived? IF IT WORKED FOR THEM... Interestingly, the Gemara unequivocally rules abortion to be forbidden to a non-jew. The Gemara states regarding the prohibition of murder for Gentiles: Sanhedrin 57b They said from Rabbi Yishmael: [murder for a non-jew] applies even to a fetus. For what reason? Because it is written (Bereishit 9:6) If one spills the blood of a personin a person- his blood shall be spilt What is a person in a person? They said it is a fetus inside its mother משום רבי ישמעאל אמרו אף על העוברין מאי טעמיה דרבי ישמעאל דכתיב )בראשית ט:ו( שופך דם האדם באדם דמו יישפך איזהו אדם שהוא באדם הוי אומר זה עובר שבמעי אמו SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE The Gemara says that when Hashem commanded Noach regarding murder, He forbade him to kill even an unborn child. This is striking, since nowhere does the Gemara explicitly say this is forbidden for Jews. That something could be permitted to a Jew and forbidden to a non-jew is an interesting possibility. In fact, ליכא Tosfot (Sanhedrin 59a) think that it is so interesting it must not be true. Tosfot invoke the principle of prohibited. There is nothing that for a Jew is permissible and for a non-jew is -מידעם דלישראל שרי ולבני נח אסור Tosfot derives from here that there must be a prohibition against abortion, one that is akin to murder. When Hashem commanded Noach, He meant to include Jews as well. Why must everything which is prohibited to a non-jew also be prohobited to a Jew? Tosfot would explain that the previous sources which exempt a Jew from killing a fetus merely men he doesn t receive the death penalty but the action is nevertheless forbidden and he is punished by Hashem. 2

3 TALMUD BAVLI SANHEDRIN 57B 3

4 WHO IS CHASING WHOM? A problem with this approach can be seen in the following Mishna: Ohalot 7:6 A woman who is having difficulty giving birth, we cut up the fetus and remove it limb by limb because her life is more important than his. If most of his body has emerged, we do not touch him because we do not push-off one life for another האשה שהיא מקשה לילד. מחתכין את הולד במעיה. ומוציאין אותו אברים אברים. מפני שחייה קודמין לחייו. יצא רובו. אין נוגעין בו. שאין דוחין נפש מפני נפש The Mishna says that if a woman is being threatened by her fetus, we abort the fetus to save the life of the mother. This is very problematic for Tosfot who say abortion is murder. If so, why do we do it to save a life? As the Mishna says, after the baby is delivered, we don t kill it to save the mother, because we don t murder to save a life. So why is the din different if the baby is still in utero? Rambam (Hilchot Rotzeach 1:9) comes to answer this question. When he formulates the two above halachot he explains the difference between a fetus and a live baby: Rambam, Hilchot Rotzeach 1:9 For this reason, the sages ruled that in the case of a pregnant woman in a dangerous labor, it is permissible to abort the fetus, whether with a drug or by hand, because it is like a rodeif pursuing her to kill her. However, once his head has emerged, one may not touch him, as we do not set aside one nefesh [soul] for another, and this is the natural way of the world לפיכך הורו חכמים שהעוברה שהיא מקשה לילד--מותר לחתוך העובר במעיה, בין בסם בין ביד: מפני שהוא כרודף אחריה להורגה. ואם משהוציא ראשו, אין נוגעין בו, שאין דוחין נפש מפני נפש, וזה הוא טבעו של עולם Rambam says that the reason for allowing the abortion of a fetus is unrelated to whether or not it is considered killing. Rambam says it is certainly murder. However, it is nonetheless permitted due to the concept of rodeif, which dictates that if someone threatens your life, you may kill him as a form of selfdefense. Here too, the fetus is considered a person, and if he is threatening the life of his mother, he may be killed for this reason and no other. Why this is no longer true after the baby emerges is an issue debated amongst the Acharonim who offer several possible explanations. The fact remains that Rambam certainly maintains that a fetus may not be killed unless it is threatening the life of the mother. How would killing a fetus as a rodeif differ from killing a fetus as non-viable? INTERIM SUMMARY The penalty of murder does not apply to killing a fetus Tosfot: Abortion is murder because it is murder for a non-jew, and nothing can be forbidden to a non- Jew yet permitted to a Jew Rambam: abortion is murder and is only permissible if the fetus has a din of a rodeif 4

5 BORN AT THE WRONG TIME There are, however, indications that abortion is in fact not such a problem. The Mishna discusses the case of a pregnant woman who is sentenced to death. The Mishna states: Arachin 7a A woman who has left [Bet Din] to be killed we do not wait for her to give birth. A woman who has sat on the birthing stool (a.k.a. begun labor) we wait until she gives birth האשה שיצאה ליהרג אין ממתינין לה עד שתלד האשה שישבה על המשבר ממתינין לה עד שתלד SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE The Gemara questions the necessity of the first ruling of the Mishna: פשיטא גופה היא - It s obvious [that you kill the fetus]; its part of her body! The Gemara answers that you may have thought that the fetus is the property of the husband and we don t want to punish him also; nevertheless we still kill the fetus. The Gemara thought it obvious that just because the mother was sentenced to death the fetus must also die for the reason that the fetus is the woman s body. This seems to echo sentiments of pro-choice activists who argue that a woman should have control over her bod and be able to perform abortions. In fact, the Ran leans similarly: Ran, Chulin 58a As for the fetus, since it has not yet entered the air of the world, we pay no concern לולד, כיון שלא יצא לאויר העולם, לא חיישינן The Ran is saying that the reason we kill the fetus is that since it hasn t been born yet, it has a lower halachic significance than a born human, and we don t apply all the normal considerations that a live person would have. Many Acharonim point out that if Bet Din can kill a fetus for no other reason than that it is a fetus, a woman should similarly have no problem killing a fetus for any other reason. These Acharonim unequivocally agree that this would only be true on a biblical level, but rabbinically forbidden. As the Radbaz says: Radbaz, Responsa. 2:695 It is certainly fitting to chastise women who do this [abortions] because it looks like killing ודאי ראוי לגעור בנשים העושות ככה משום דמחזי כעין רציחה These people explain the Ran to mean that there is no biblical problem with abortion, yet it is still rabbinically forbidden. What would change about abortion if it was only rabbinically forbidden? IS IT WORTH SAVING? One could bring a challenge to the position of the Ran from that same Gemara in Arachin: Arachin 7a Rav Nachman said in the name of Shmuel: a woman who sat on the birthing stool and then died on Shabbos, we bring a knife and cut open her stomach and extract the baby א ר נחמן אמר שמואל האשה שישבה על המשבר ומתה בשבת מביאין סכין ומקרעים את כריסה ומוציאין את הוולד SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE 5

6 TALMUD BAVLI ARACHIN 7A 6

7 The Gemara says that for this same baby in utero, we are mechalel Shabbos to save it. How could it be that we consider it valuable enough to save on Shabbos, yet disposable enough to just toss away? Ramban (Niddah 54b) deals with this question. First, he concurs with the Ran s ruling that a fetus is not regarded as a human life. He then asks, if so, why be mechalel Shabbos to save it? Ramban answers that we apply the principle of עליו שבת אחת כדי שיקיים שבתות הרבה -חלל we allow a one-time desecration of Shabbos in order to allow for more Shabbos observance later. We really have no strict halachic rationale to save the fetus, but we do so anyway in order to enable it to keep countless Shabbatot down the line. Both the Ran and Ramban would say about ליכא מידעם דלישראל שרי ולבני נח אסור that it is not a universal principle and only applies in specific cases per specific tana im. INTERIM SUMMARY The Gemara says that if a pregnant woman is sentenced to death, we also kill the fetus, because it is part of her body The Ran implies that a fetus is not Halachically considered a person However, we violate Shabbos to save the bab,y which implies the opposite Ramban answers that the only reason we violate Shabbos is because it will enable the fetus to keep many more Shabbatot in the future A BATTLE OF GIANTS The issue of whether abortion constitutes biblical murder became a dispute between two of the most prominent poskim of the later 20th-century. Rav Eliezer Waldenberg, in Tzitz Eliezer (13:102), ruled like the Ran and Rambam that abortion is not biblically prohibited. He therefore allowed aborting a fetus that has been determined to suffer from the Tay-Sachs disease. He ruled that this would be permissible through the seventh month of pregnancy, after which point the fetus might already be ready for birth, such that abortion would constitute murder. Rav Moshe Feinstein (Igrot Moshe C.M. 2:69) came out strongly against the opinion of Rav Waldenberg. He contended that the generally accepted view is that killing a fetus constitutes outright murder and is thus forbidden on the level of Torah law. As such, he maintained, it is permissible only when the fetus poses a direct, life-threatening risk to the mother, but not under other circumstances, even when the baby will suffer from a serious disease. WHERE DO WE START? Amongst those who say abortion is biblically forbidden, there is an additional question of how far back into the pregnancy this applies. There is a rule in Parshat Emor (12:13) that the daughters of Kohanim may not eat Teruma if they have a child with a Yisrael. The Gemara discusses when after pregnancy the child prohibits her from eating: Yevamot 69b She may eat [trumah] for 40 days [after relations] Because if she isn t pregnant, she isn t pregnant. And if she is, for the first 40 days [the fetus] is merely water אוכלת עד ארבעים דאי לא מיעברא הא לא מיעברא ואי מיעברא עד ארבעים מיא בעלמא היא SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE 7

8 TALMUD BAVLI YEVAMOT 69B 8

9 The Gemara employs a very strong language to diminish the status of a fetus during the first 40 days, referring to it as merely water. The Beis Shlomo (C.M 132) derives from here that even if one says abortion.מיא בעלמא is forbidden, it would be permitted during the first 40 days when the fetus is What would be the defining factor about 40 days that would alter the Halacha? Rav Moshe Feinstein argued and said that even then abortion would be forbidden. He bases this off the din that we are mechalel Shabbos to save the life of the fetus even before 40 days. (He obviously didn t agree with the read in the Ramban that the two are unrelated.) CONCLUSION Although there is no death penalty for abortion, some poskim maintain that it is murder and only allowed if the fetus threatens the mother s life. Others maintain that it is merely forbidden rabbinically because it resembles killing and can be allowed under extraneous circumstances, such as incurable and debilitating illnesses. Given the contentious nature of the disagreement and large ramifications of the decision, a competent posek should be asked for all questions. DISCLAIMER: The views and opinions presented in this sourcesheet should not be taken as halachah l maaseh. Before applying these halachos to real-life situations, one must consult with a competent halachic authority. 9