Abortion & "When Life Begins"
the language we will see is "when does the fetus become a nefesh (soul)?"
(ד) הָאִשָּׁה שֶׁהִיא יוֹצְאָה לֵהָרֵג, אֵין מַמְתִּינִין לָהּ עַד שֶׁתֵּלֵד. יָשְׁבָה עַל הַמַּשְׁבֵּר, מַמְתִּינִין לָהּ עַד שֶׁתֵּלֵד.
(4) If a woman is about to be executed, they do not wait for her until she gives birth. But if she had already sat on the birthstool, they wait for her until she gives birth.
(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.
(ב) לפיכך העוברת שהיא מקשה לילד מותר לחתוך העובר במעיה בין בסם בין ביד מפני שהוא כרודף אחריה להרגה ואם הוציא ראשו אין נוגעין בו שאין דוחין נפש מפני נפש וזהו טבעו של עולם:
Therefore, in a case when the fetus is making it difficult for childbirth, one is allowed to destroy the fetus while in utero with medication or with surgery because the fetus is a "pursuer." But if the fetus' head has emerged there is no touching it, in that there we do not push aside one soul to save another soul and this is the nature of the world.
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.
דבי ר' ישמעאל דתניא דבי ר' ישמעאל אומר (שמות כא, יט) ורפא ירפא מכאן שניתן רשות לרופא לרפאות
As it is taught in a baraita that the school of Rabbi Yishmael says: When the verse states: “And shall cause him to be thoroughly healed [verappo yerappe]” (Exodus 21:19), it is derived from here that permission is granted to a doctor to heal, and it is not considered to be an intervention counter to the will of God.
(א) דיני הרופא. ובו ג' סעיפים:
נתנה התורה רשות לרופא לרפאות ומצוה היא ובכלל פיקוח נפש הוא ואם מונע עצמו הרי זה שופך דמים
שאם לא כן הרי זה שופך דמים ואם ריפא שלא ברשות בית דין חייב בתשלומין אפי' אם הוא בקי ואם ריפא ברשות ב"ד וטעה והזיק פטור מדיני אדם וחייב בדיני שמים ואם המית ונודע לו ששגג גולה על ידו:
(1) The Torah has granted the physician permission to heal, and it is a religious duty which comes under the rule of saving an endangered life. If he withholds [treatment] he is regarded as one who sheds blood;
and even if there is someone else who can heal him; for not from every one does one merit to be healed. Nevertheless, on should not occupy himself with medical treatment unless he is an expert and there is none other greater than he; for if not so, he is regarded as one who sheds blood.
American Reform Responsa
Abortion
1958
https://www.ccarnet.org/ccar-responsa/arr-541-543/
[The question is: A young woman has contracted German measles in the third month of her pregnancy. Her doctor says that her sickness creates the possibility that the child, if born, may be deformed in body or mind. Some doctors, however, seem to doubt that this will happen. In other words, there are various opinions as to the probability of the child being born deformed. May she, according to Jewish law, or to Reform interpretation of Jewish law, have an abortion done to terminate the pregnancy?
The author cites three early modern/modern responsa:]
I. The first responsum is by a great authority, Yair Chaim Bachrach, of Worms [Germany], 17th century. In his responsum (Chavat Ya-ir, #31) he was asked the following question: A married woman confessed to adultery, and, finding herself pregnant, asked for an abortion. Bachrach was asked whether it is permissible by Jewish law to do so. He discusses most of the material that I have mentioned above, and at first says that it would seem that a fetus is not really a nefesh and it might be permitted to destroy it, except that this would encourage immorality. But he continues, from the discussion of the Tosafotin Chulin, that a Jew is not permitted (even though he would not be convicted) to destroy a fetus, that it is forbidden for him to do so.
II. Yet in the next century the opposite opinion is voiced, and also by a great authority, namely Jacob Emden (Ya-avets I, 43). He is asked concerning a pregnant adulteress whether she may have an abortion. He decides affirmatively, on the rather curious ground that if we were still under our Sanhedrin and could inflict capital punishment, such a woman would be condemned to death and her child would die with her anyhow. Then he adds boldly (though with some misgivings) that perhaps we may destroy a fetus even to save a mother excessive physical pain.
III. A much more thorough affirmative opinion is given by Ben Zion Uziel, the late Sephardic Chief Rabbi (in Mishpetei Uzi-el III, 46 and 47). He concludes, after a general analysis of the subject, that an unborn fetus is actually not a nefesh at all and has no independent life. It is part of its mother, and just as a person may sacrifice a limb to be cured of a worse sickness, so may this fetus be destroyed for the mother’s benefit. Of course, he reckons with the statement of the Tosafot in Chulin 33a that a Jew is not permitted (la shari) to destroy a fetus, although such an act is not to be considered murder. Uziel says that, of course, one may not destroy it. One may not destroy anything without purpose. But if there is a worthwhile purpose, it may be done. The specific case before him concerned a woman who was threatened with permanent deafness if she went through with the pregnancy. Uziel decides that since the fetus is not an independent nefesh but is only part of the mother, there is no sin in destroying it for her sake.
Contemporary American Reform Responsa
16. WHEN IS ABORTION PERMITTED?
January 1985
https://www.ccarnet.org/ccar-responsa/carr-23-27/
We agree with the traditional authorities that abortions should be approached cautiously throughout the life of the fetus. Most authorities would be least hesitant during the first forty days of the fetus’ life (Yeb. 69b; Nid. 30b; M. Ker. 1.1; Shulhan Arukh Hoshen Mishpat, 210.2; Solomon Skola, Bet Shelomo, Hoshen Mishpat 132; Joseph Trani, Responsa Maharit, 1.99; Weinberg, Noam, 9, pp. 213 ff, etc.) Even the strict Unterman permits non-Jews to perform abortions within the forty day periods (Unterman, op. cit., pp. 8 ff).
From forty days until twenty-seven weeks, the fetus possesses some status, but its future remains doubtful (goses biydei adam; San. 78a; Nid. 44b and commentaries) as we are not sure of its viability. We must, therefore, be more certain of our grounds for abortion, but would still permit it.
It is clear from all of this that traditional authorities would be most lenient with abortions within the first forty days. After that time, there is a difference of opinion. Those who are within the broadest range of permissibility permit abortion at any time before birth, if there is a serious danger to the health of the mother or the child. We would be in agreement with that liberal stance. We do not encourage abortion, nor favor it for trivial reasons, or sanction it “on demand.”