(כב) וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃ (כג) וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃
(22) When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning. (23) But if other damage ensues, the penalty shall be life for life,
Septuagint Exodus 21:22-23
And if two men strive and smite a woman with child, and her child be born imperfectly formed, he shall be forced to pay a penalty; as the woman’s husband may lay upon him, he shall pay with a valuation. But if it be perfectly formed he shall give life for life.
The Greek translators of the Bible translated "ason" as "exeikonismenon" which literally translates as "from the image," invoking the notion of "betzelem elohim"--human beings were created in God's image. The translator may have translated in this way due to the similarity between the Hebrew "ason" and the Greek "soma" meaning human life. Thinking the word meant "human life" the translator shifted it to a more theologically evocative word.
Philo, The Special Laws 111.108-109
But if anyone has a contest with a woman who is pregnant, and strike her a blow on the belly, and she miscarry, if the child was conceived within her is still unfashioned and unformed, he shall be punished by a fine.... But if the child which was conceived had assumed a distinct shape in all its parts, having received all its proper connective and distinctive qualities, he shall die; for such a creature as that is a man, whom he has slain while still in the workshop of nature, who had not thought it as yet a proper time to produce him to the light, but had kept him like a statue lying in a sculptor’s workshop, requiring nothing more than to be released and set out into the world.
Josephus Contra Apion ii.202
The law enjoins us to bring up all our offspring, and forbids women to cause abortion of what is begotten, or to destroy it afterward. If any woman appears to have done so, she will be a murderer of her child, by destroying a living creature and diminishing human kind.
Aristotle, The History of Animals, Book VII, Part 6
In the case of male children the first movement usually occurs on the right-hand side of the womb and about the fortieth day, but if the child be a female then on the left-hand side and about the ninetieth day. However, we must by no means assume this to be an accurate statement of fact, for there are many exceptions...
About this period the embryo begins to resolve into distinct parts, it having hitherto consisted of a flesh-like substance without distinction of parts.
(ז) הַמַּפֶּלֶת לְיוֹם אַרְבָּעִים, אֵינָהּ חוֹשֶׁשֶׁת לְוָלָד. לְיוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה. רַבִּי יִשְׁמָעֵאל אוֹמֵר, יוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וּלְנִדָּה. יוֹם שְׁמוֹנִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה, שֶׁהַזָּכָר נִגְמָר לְאַרְבָּעִים וְאֶחָד, וְהַנְּקֵבָה לִשְׁמוֹנִים וְאֶחָד. וַחֲכָמִים אוֹמְרִים, אֶחָד בְּרִיַּת הַזָּכָר וְאֶחָד בְּרִיַּת הַנְּקֵבָה, זֶה וָזֶה לְאַרְבָּעִים וְאֶחָד:
(7) A woman who discharges 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 discharges on the forty-first day after immersion, there is concern that perhaps it was an offspring. Since its sex is unknown, she shall observe the period of impurity for a woman who gave birth to a male and for a woman who gave birth to a female; and for any blood that she sees, she observes the halakhot of a menstruating woman. Rabbi Yishmael says: A woman who discharges on the forty-first day after immersion observes the seven days of impurity for a woman who gave birth to a male; and for any blood that she sees after seven days, she observes the halakhot of a menstruating woman. But a woman who discharges on the eighty-first day after immersion observes the strictures of a woman who gave birth both to a male and to a female, and also the strictures of a menstruating woman, as the formation of the male offspring concludes on the forty-first day and the formation of the female offspring concludes on the eighty-first day. And the Rabbis say: With regard to both the formation of the male and the formation of the female, this and that conclude on the forty-first day.
The Gemara asks: And about marriage were they concerned? Isn’t it taught in a baraita: In the case of the daughter of a priest who married an Israelite and her husband died on that same day, she immerses to purify herself, as she is ritually impure due to their intercourse, and she may partake of teruma that same evening? Evidently, the Sages were not concerned that she became pregnant from the initial act of intercourse, even that of marriage. Rav Ḥisda said: She immerses and partakes of teruma only until forty days after her husband’s death, when there is still no reason for concern, as if she is not pregnant then she is not pregnant. And if she is pregnant, until forty days from conception the fetus is merely water. It is not yet considered a living being, and therefore it does not disqualify its mother from partaking of teruma.
Philo, On the Virtues
137) But the law banishes to a distance from the sacred precincts all animals which are pregnant, not permitting them to be sacrificed until they have brought forth, looking on the animals which are still in the womb as equal to what has just been born... for it is the most impious of all customs, to slay both offspring and mother at one time and on one day. (139) And it appears to me that some lawgivers, having started from this point, have also promulgated the law about condemned women, which commands that pregnant women, if they have committed any offence worthy of death, shall nevertheless not be executed until they have brought forth, in order that the creature in their womb may not be slain with them when they are put to death.
Temple Scroll 52
And you shall not slaughter a cow or a ewe and its young on the same day, and you shall not kill a mother with its young.
Sifre Zuta to Numbers 35:22
I might have thought that if she were pregnant they would postpone [the execution] until she gave birth. Therefore, the Torah teaches, “He that smote him shall surely be put to death.” I might have thought that if she were three months pregnant, they should not postpone [the execution] until she gives birth; but if she were nine months pregnant, they should postpone [the execution] until she has given birth. Therefore, Scripture teaches, “He shall surely be put to death.”
(א) בְּהֵמָה הַמַּקְשָׁה לֵילֵד, וְהוֹצִיא הָעֻבָּר אֶת יָדוֹ וְהֶחֱזִירָהּ, מֻתָּר בַּאֲכִילָה. הוֹצִיא אֶת רֹאשׁוֹ, אַף עַל פִּי שֶׁהֱחֱזִירוֹ, הֲרֵי זֶה כְיָלוּד.
(1) [If] an animal has difficulty giving birth, and the fetus protruded its fore-leg and withdrew it, [the fetus] is permitted for eating. [If] it protruded its head, even if it withdrew it, it is as if it were born.
(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) A woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life. If most of it had come out already they do not touch it because we do not push off one life for another.
משום רבי ישמעאל אמרו אף על העוברין מאי טעמיה דרבי ישמעאל דכתיב (בראשית ט, ו) שופך דם האדם באדם דמו ישפך איזהו אדם שהוא באדם הוי אומר זה עובר שבמעי אמו
The Sages said in the name of Rabbi Yishmael: A descendant of Noah is executed even for killing fetuses. What is the reason for Rabbi Yishmael? It is written: “One who sheds the blood of a person, by a person [ba’adam] his blood shall be shed” (Genesis 9:6). The word ba’adam literally means: In a person, and is interpreted homiletically: What is a person that is in a person? You must say: This is a fetus that is in its mother’s womb.
The Didache 2:1-2
Now the second command of the teaching: Thou shalt not kill…Thou shalt not murder the child in the mother’s womb nor kill the newly born.
תִּינוֹק בֶּן יוֹם אֶחָד, ...וְהַהוֹרְגוֹ, חַיָּב.
A baby boy, even one who is one day old, and one who kills him is liable.
§ Rav Naḥman says that Shmuel says: In the case of a woman who sat on the travailing chair in the throes of labor, and died on Shabbat, one brings a knife, and tears open her abdomen, and removes the fetus, as it might still be alive, and it could be possible to save its life....
It is necessary to teach that one may bring a knife in the case of a woman, lest you say that it is specifically there that one may desecrate Shabbat, as the person who was buried under the rockslide had a presumptive status of being alive and therefore he is assumed to still be alive. But here, where the child had no prior presumptive status of being alive, as he was not yet born, you might say that one may not desecrate Shabbat in order to save his life. Therefore, it is necessary for Shmuel to teach us that even here one may desecrate Shabbat for the possibility of saving the fetus’s life.
Tertullian, On the Soul
Consider the wombs of the most sainted women instinct with the life within them, and their babes which not only breathed therein, but were even endowed with prophetic intuition. See how the bowels of Rebecca are disquieted, Genesis 25:22-23 though her child-bearing is as yet remote, and there is no impulse of (vital) air. Behold, a twin offspring chafes within the mother's womb, although she has no sign as yet of the twofold nation....
Accordingly you read the word of God which was spoken to Jeremiah, Before I formed you in the belly, I knew you. Jeremiah 1:5 Since God forms us in the womb, He also breathes upon us, as He also did at the first creation, when the Lord God formed man, and breathed into him the breath of life. Genesis 2:7 Nor could God have known man in the womb, except in his entire nature: And before you came forth out of the womb, I sanctified you. Well, was it then a dead body at that early stage? Certainly not. For God is not the God of the dead, but of the living.
Basil, 4th Century Bishop, Cappadocia, Letter 188
II. The woman who purposely destroys her unborn child is guilty of murder. With us there is no nice enquiry as to its being formed or unformed. In this case it is not only the being about to be born who is vindicated, but the woman in her attack upon herself; because in most cases women who make such attempts die. The destruction of the embryo is an additional crime, a second murder, at all events if we regard it as done with intent. The punishment, however, of these women should not be for life, but for the term of ten years. And let their treatment depend not on mere lapse of time, but on the character of their repentance.
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 placed in man 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.
§ Rav Huna says: If a minor was pursuing another person in order to kill him, the pursued party may be saved with the pursuer’s life. That is to say, one is permitted to save the pursued party by killing the minor who is pursuing him, and one does not say that since the minor lacks halakhic competence, he is not subject to punishment. The Gemara explains: Rav Huna maintains that a pursuer, in general, does not require forewarning, and there is no difference with regard to this matter between an adult and a minor. The essence of the matter is rescuing the pursued party from death, and therefore the pursuer’s liability to receive the death penalty is irrelevant. Rav Ḥisda raised an objection to Rav Huna from a baraita: If a woman was giving birth and her life was being endangered by the fetus, the life of the fetus may be sacrificed in order to save the mother. But once his head has emerged during the birthing process, he may not be harmed in order to save the mother, because one life may not be pushed aside to save another life. If one is permitted to save the pursued party by killing the minor who is pursuing him, why is this so? The fetus is a pursuer who is endangering his mother’s life. The Gemara answers: This is not difficult, as it is different there, with regard to the woman giving birth, since she is being pursued by Heaven. Since the fetus is not acting of his own volition and endangering his mother of his own will, his life may not be taken in order to save his mother.
its head came out: With a woman that is experiencing difficulty giving birth and is in [mortal] danger. And it is taught in the first section [of this teaching], "the midwife extends her hand and cuts it up and extracts [the pieces];" as the entire time that that it has not gone out into the air of the world, it is not [considered] a soul (nefesh) and [so] it is possible to kill it and to save its mother. But when its head came out, we cannot touch it to kill it, as it is like a born [baby]; and we do not push off one soul for the sake of another.
(ט) אַף זוֹ מִצְוַת לֹא תַּעֲשֶׂה שֶׁלֹּא לָחוּס עַל נֶפֶשׁ הָרוֹדֵף. לְפִיכָךְ הוֹרוּ חֲכָמִים שֶׁהָעֻבָּרָה שֶׁהִיא מַקְשָׁה לֵילֵד מֻתָּר לַחְתֹּךְ הָעֵבָּר בְּמֵעֶיהָ בֵּין בְּסַם בֵּין בְּיָד מִפְּנֵי שֶׁהוּא כְּרוֹדֵף אַחֲרֶיהָ לְהָרְגָהּ. וְאִם מִשֶּׁהוֹצִיא רֹאשׁוֹ אֵין נוֹגְעִין בּוֹ שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נֶפֶשׁ וְזֶהוּ טִבְעוֹ שֶׁל עוֹלָם:
(9) This, indeed, is one of the negative mitzvot - not to take pity on the life of a pursuer (rodef). On this basis, our Sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether with a knife or with drugs. For the fetus is considered a rodef of its mother. If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.
ליכא מידעם דלישראל שרי בדבר - ...ועל העוברים דעובד כוכבים חייב וישראל פטור אע"ג דפטור מ"מ לא שרי...מיהו קשה דאמרינן בפרק בן סורר ומורה (לקמן סנהדרין דף עב:) יצא ראשו אין נוגעין בו דאין דוחין נפש מפני נפש אבל קודם שיצא ראשו החי' פושטת ידה וחתכתו לאברים ומוציאה כדי להציל את אמו וכה"ג בעובד כוכבים אסור כיון שהוזהרו על העוברים וי"ל דהא נמי בישראל מצוה כדי להציל ואפשר דאפילו בעובד כוכבים שרי:
There is nothing which is permitted to a Jew but prohibited to a non-Jew:...Concerning killing a fetus, a Gentile is liable but a Jew is exempt. But even though he is exempt, it is still not permitted. However, there is a difficulty for it says in Sanhedrin 72b, "if its head emerges, one may not touch it for the life of one may not be set aside for the life of another." But before its head emerges, the midwife may put her hand in the womb and cut it out limb by limb in order to save the mother. But this is not permitted to a Gentile, for they are liable for killing fetuses. And we can answer that it is a mitzvah for the Jew to save the mother and this might even be so for a Gentile.
Ramban Torat Ha’Adam Sha’ar Ha’Mechush – Inyan Sakanah
The Mishna in Ohalot however states (7:6), ‘If a woman is in hard travail, one cuts up the child in her womb and brings it forth member by member, because her life comes before that of [the child]. But if the greater part has proceeded forth, one may not touch it, for one may not set aside one person’s life for that of another’. Now this implies that beforehand [before birth] there is no concept of ‘saving of a life’. Similarly the Mishna states (Niddah 44a) that if a person murders a one day old child he is liable the death penalty – that is, only a one day old child, not a fetus – and the verse also states that one pays monetary compensation for [causing a miscarriage] of a fetus. Nevertheless, regarding the issue of mitzvah observance, we can violate Shabbat for a fetus. The Torah says: violate one Shabbat for him, for perhaps he might keep many Shabbats. Therefore, even to save a fetus less than 40 days old, which has no [current] viability, we would desecrate Shabbat according to Hilkhot Gedolot.
There are those who are of the opinion that we do not violate Shabbat for fetuses…
Maharit 16-17th century Tzfat
And from the fact that the Gemara (Arakhin 7a) says, “It is obvious!” [that we can abort the fetus of the woman who is condemned], it implies that as far as taking a [fetal] life is concerned, there is not the slightest issue of concern… Therefore, regarding a Jewish woman, in a case of the mother’s need, it would appear that it is permissible to assist them to have an abortion, since it is for the sake of the mother’s health.
Havot Yair (17th century Germany)
Regarding your question of a married woman who became pregnant through adultery… and the question is whether she is permit to swallow some medicine that will cause her to abort. And you wanted to know my opinion regarding this matter…
And it seems that your question is whether in general there is a sin of destroying a life in this case. Now, it would be possible to make a number of distinctions, such as whether 40 days have passed – for before this time it is “mere water”, as is stated in Yevamot and Kriot – or whether three months have passed which is the time when the pregnancy is visible, or if she sensed in her womb the movement of the infant, which occurs a brief time after the 3 months, nevertheless it is not our interest to decide based on how we would be inclined to think or the “logic of the gut”, but only according to Torah law.
The Mishnah in Niddah states that only one who murders a one day old child is liable for execution, but not for a fetus…
Nevertheless, before the fetus has detached, it would seem that it is permitted to abort it according to everyone, based on the Talmud in Arakhin, where a condemned woman can be hit so that the fetus’ death will not lead to her disgrace…
And you cannot ask from the fact that we violate Shabbat to save the life of a fetus… for perhaps that is really because of the life of the mother, for any danger to the fetus is a danger to the mother…
And you cannot say [that if it is permitted,] why did the Gemara imply that were it not for the principle of it being part of her body [which is condemned to death] we would wait for the child to be born, how much more so not to cause it death. For it certainly is forbidden ab initio. For it is no better than a case of masturbation, which is considered to be a “slaughtering of children.” And masturbation is considered a grave offense, and the reason is because every drop of semen has the potential to create holy progeny. …
Therefore, based on what we have written, it would be completely permissible in your case according to Torah law, were it not for the widespread practice amongst us and amongst them [not to abort], because of a safeguard against fornicators and those who fornicate after them…
Nonetheless, in Hullin 33, Tosafot wrote as a matter of obvious fact that “while one is exempt [who aborts], nevertheless it is not permissible to do so”…
This is implicit in the Gemara’s discussion, that had it not been for the reason that “the fetus is her body,” [and can be executed with her], there would be a logic to wait to save the fetus, and how much more so should we not cause its death at the outset....the Rabbis spoke in extreme terms regarding the prohibition to waste semen, and the reason is because it is possible that a holy life (lit., seed) will be created from every drop. One cannot say that the reason for all these problems is because of provoking the evil inclination, for if that were the case, there would be no need to bring a proof from the verses.. And this prohibition of wasting semen applies even to women (to destroy the man’s semen in their body), and is only permitted in three special cases of women…
We see that it is also Rashi’s opinion that regarding other women (not the special cases), the problem is only regarding the man to waste his seed, and it is not a problem for the women, thus there is no inherent problem to destroy the semen after it has been “absorbed” (i.e., possibly caused conception). Nevertheless, just because we can make an argument does not mean that we can make a ruling that is should be allowed for a woman (to destroy the semen in her body), and how much more so after the semen has been “absorbed”. Thus, one who assists in this is aiding those who are sinning…
Thus, anyone who is involved in this act, or who causes it, I fear that he may be deserving a sin offering… Although we have made arguments, to actually act on it, we cannot permit. And no more needs to be said about this. Now, please, my brother, do not burden me any more with questions such as these, for it is only with difficulty that I answered you this time.
R. Jacob Emden, 18th Century Germany
Now, regarding the author’s attempt to demonstrate in that responsum that there was there was an element of violation based on the sin of wasting of seed. This can be rejected, for one can say that this (wasting potential life) is not the reason for the prohibition, but rather because one “spills into the dung heep” and gives power to the demonic powers and weakens the supernal forces, as is known from the masters of Kabbalah… One can thus see that it is not considered to be “for waste” except when it is wasted on the ground (as a result of masturbation), based on the reason given above… Thus, regarding a fetus, since it is not a life it is a doubt if it will ever become a full life, as discussed, the matter is still doubtful. Thus even for a “kosher” fetus (not the result of adultery) there would be reason to be lenient for a great need, until the point when it has “become uprooted” (childbirth has begun). Even when the mother’s life is not at risk, but it is just to save the fetus from the evil that will befall it, that it will cause significant pain to the mother. And this requires further investigation.
Knowledge is easy to he who understands it, that there is nevertheless a prohibition at the outset to destroy a fetus based on the simple sense of the Talmud, although one is not liable for murder regarding fetuses. And similarly [it is prohibited] to destroy semen that has been absorbed into a woman’s body, although she has not yet conceived as a result. All of this is definitely forbidden without a reason, as is clear from the discussion that women who may not use a mokh, save for three special cases. In truth, however, for a (legitimate) purpose it is permissible, even to “waste seed” and to spill it on the ground, as we see in the case of the testing of the genitals (Yevamot 76a). From this we see that this serious prohibition is permitted in the case of the mitzvah need, as I have written elsewhere, and there is no need to write at more length.
Summary of laws from Tzitz Eliezer 9:51, Kuntress Refuah Umishpacha, Volume 3
Some are of the opinion that even though a Jew is not executed for aborting a fetus, there is nevertheless a Biblical prohibition against him doing such.
6. Others hold that there is no Biblical prohibition, only a Rabbinic one.
7. Still others hold that even Rabbinically, the prohibition is a weak one.
8. Kabalistically, the prohibition regarding aborting a fetus is very severe.
9. When there is a danger to the mother in continuing the pregnancy, one can allow an abortion easily.
10. Even when there is no danger, but the mother’s health is very delicate, and for the sake of her health or to relieve her of severe pain, it is advised to perform an abortion, even though there is no real risk of life, even here one can allow this, according to the judgment of the decisor, as he sees the case.
11. One can also allow, as above, when the woman is nursing.
12. A married woman who committed adultery or was raped and became pregnant, even from a non-Jew, where the child would not be a mamzer, and she has now repented (in the case of adultery), a number of great decisors are inclined to allow for an abortion, either because of her shame or because of desecration of the divine name, and the shame and stigma to the family [and other reasons, as mentioned above].
13. To have an abortion before 40 days from conception, and also before 3 months from conception, is much more lenient than to do so after these periods. It is thus preferable to arrange for the abortion prior to these periods, while the fetus has not begun to stir, when there is a well-based concern that the fetus that will be born deformed and beset by afflictions.
14. At the other extreme, to kill a fetus once the woman is in the process of giving birth and the fetus has already been “uprooted to emerge”, it is much stricter than before this moment, and one cannot allow in such a case, save when there is a direct threat to the mother’s life.
15. Even in cases where the law would allow for an abortion, nevertheless, one should get the husband’s permission, since it is his property.
16. It is also preferable to have an abortion by drinking a medicine than by direct surgical means.
18. All Jews are commanded with a strict decree not to deal lightly regarding ending a pregnancy, and there is a great responsibility in such a case, both on the one asking to have the abortion and on the decisor being asked. Not to mention that there is in such decisions the fencing in of the breaches made by the wanton women and those who would fornicate after them , that even the nations of the world have fenced themselves regarding this, and established laws and strict punishments on the violators and those who assist them, and behold Israel are a holy people.
Tzitz Eliezer 13:101
The question is regarding terminating a pregnancy because of the Tay-Sachs disease… The technology today which allows testing for this disease cannot giver reliable results prior to three months into the pregnancy. Thus his question is if one can view such a disease with such severe and certain consequences, sufficient severity to allow for a termination of the pregnancy even after three months, or if the period of three months is absolute, and there is no justification, short of direct risk to the life to the mother, that would allow for a termination of pregnancy after three months.
Behold after investigation into the matter with great seriousness, and with consideration of all the relevant circumstances, it seems in my humble opinion, on the basis of the analysis that I wrote in my responsa, 9:51.3… that in a case such as this, in which the consequences are so grave if the pregnancy and childbirth are allowed to continue, it is permissible to terminate the pregnancy until 7 months have elapsed, and in a way in which no danger will befall the mother. Beyond 7 months the issue is more serious (and the stringency here is more based on how the matter seems and the “knowledge of the gut”, to use the phrase of the Havot Yair) since at the end of 7 months the fetus is often fully developed.
It is clear that capital punishment is not prescribed for abortion, and with the exception of a single opinion, the decisors conclude that there is nevertheless some form of a prohibition. But the opinion of most rabbis is that the prohibition is only of Rabbinic origin, or that it is in the category of the well-being of the world, but that there is not even the slightest element of destroying a life. Therefore, Maharit, in his responsum, permitted abortion for a Jewish woman whenever the matter was necessary for her health even when her life was not at stake.
Like this, and even to a greater degree, was it argued to be permissible in Responsa Yavet, 1:43… And therefore ask yourself where is there a great need regarding pain and suffering greater than the woman in our case which will be inflicted upon her if she gives birth to such a creature whose very being is one of pain and suffering and his death is certain within a few years… and added to that is the pain and suffering of the infant. This would seem to be the classic case in which abortion may be permitted, and it doesn’t matter what type of pain and suffering is endured, physical or emotional, as emotional pain and suffering is to a large extent much greater than physical pain and suffering…
(2) And you should know that in the words of Maharit and Yavetz, there is not mentioned at all that there should be a distinction between within 3 months and after 3 months. And the clear distinction given is only regarding once it has been “uprooted to emerge” and beforehand. To the contrary, Yavetz writes thusly: “As long as it has not uprooted to emerge,” and from this we can infer that as long as this is not the case, there is no distinction regarding what month it is in…
(4) Also in Responsa Havot Yair, 31, where he raises the possibility of distinguishing between before and after 40 days, or before and after 3 months, he expresses in passing his reservations about such distinctions, and he writes thusly: “Nevertheless, it is not our desire to make a decision based on what seems, and a knowledge of the gut”…
(6) Thus, as I have indicated at the outset, it would seem in my humble opinion that one can allow in a case such as ours to arrange for a termination of the pregnancy immediately once the test results are definitive that the child has this disease, even up to 7 months of pregnancy, provided that there is no risk to the mother…