The Status of a Fetus in Halacha: What is the Definition of Life? (Part 13)

Now that we have developed a more sophisticated understanding of the sugya of rodef, we can revisit the Rambam's famous shitah on abortion and try to understand it in greater depth.

Let us begin by briefly reviewing the Rambam's formulation:

רמב"ם הלכות רוצח ושמירת הנפש פרק א הלכה ח/ט

אחד מבושיו, ואחד כל דבר שיש בו סכנת נפשות, אחד האיש שאחז את האשה, ענין הכתוב שכל החושב להכות חבירו הכייה הממיתה אותו מצילין את הנרדף בכפו של רודף, ואם אינן יכולין מצילין אותו אף בנפשו, שנ' ב לא תחוס עינך.

הרי זו מצות לא תעשה שלא לחוס על נפש הרודף. לפיכך הורו חכמים שהעוברה שהיא מקשה לילד מותר לחתוך העובר במיעיה בין בסם בין ביד מפני שהוא כרודף אחריה להורגה, ואם משהוציא ראשו אין נוגעין בו שאין דוחין נפש מפני נפש וזהו טבעו של עולם

The first important detail of note is the location the Rambam chose to codify the halacha of abortion, namely, in the context of his discussion of a rodef (pursuer). The Rambam states that "there is a negative commandment against having mercy on a rodef.  Therefore, the Sages taught that a fetus that makes it difficult for the mother/pregnancy, one is allowed to cut the fetus within her belly, either with a drug or by hand, because the fetus is like a rodef (pursuer) that is trying to kill the mother. However, once the head of the fetus leaves the womb, we can't touch it, because we can't choose one soul over another, and this is the nature of the world." The Shulchan Aruch quotes the Rambam's lashon verbatim.

The Rambam's lashon is striking, and a couple questions immediately arise:

1) There was no mention of the fetus being a "rodef" in the Mishna or the Gemara. Where did the Rambam get this from? And even if the Rambam is emphasizing the end of the Gemara which says "Shamayim Ka'Radfeh Leih- Heaven is the rodef," nowhere does the Gemara say that until then, the fetus was a rodef? Furthermore, the Rambam himself doesn't even use this terminology when quoting the end of the Gemara, but exchanges the words "Shamayim Ka'Radfeh Leih" for, "V'Zeh Tevo Shel Olam", which means "this is the nature of the world." This requires explanation.

2) How can a fetus be a rodef? A fetus has no intent or awareness, so it can’t be said that the fetus is “trying” to kill the mother? Is the Rambam saying that even without conscious intent, a fetus can be rodef? Furthermore, what changes once the fetus leaves the womb? If anything, it should continue to be a rodef after it is born as well? Furthermore, why isn't the mother considered to be rodef towards the fetus while the fetus is still in the womb? Why would the fetus be considered a rodef, but not the mother? Again, this requires explanation.

Two Ways of Approaching the Rambam

As we will soon see, the most important factor in understanding the Rambam's shitah is determining whether the Rambam holds that a fetus is considered to be a nefesh.

The Fetus is Not a Nefesh

The following two explanations (of Rav Chaim Soloveichik and Rav Moshe Feinstein) are based on the premise that the Rambam considers a fetus to be a nefesh. According to these two shitos, it is only because the fetus is considered to be a nefesh that the Rambam chose to use the concept of "rodef" in explaining why we can sacrifice the fetus to save the life of the mother. Let us begin with the shitah of Rav Chaim Soloveichik: 

The following explanations are based on the premise that the Rambam paskins that a fetus is not considered to be a nefesh. The obvious question that these shitos have to contend with is as follows: if the Rambam maintains that a fetus is not a nefesh, then why did he choose to use the concept of rodef when explaining why we can sacrifice the fetus to save the life of the mother? There would be no need to apply the din of rodef, which is a major chiddush, when he could have simply said that one can sacrifice a fetus to save the life of its mother, because the mother is a full nefesh and a fetus is not?

All of these shitos focus on a single, extremely significant letter mentioned by the Rambam: when the Rambam describes the fetus, he states that the fetus is "Ki'rodef," like a rodef. In halacha, "like" can mean one of two things:

1. Equal to
2. Similar to

If "like" is an equation, then the Rambam would be equating the fetus to a rodef. However, if “like” is only a connection or similarity, then we can weaken the significance of mentioning the concept of rodef, and therefore open up the possibility for the Rambam to paskin that a fetus is not a nefesh.

Let us begin with the shitah of the Sm”a:

1) The "Din of Rodef" Only Works Because the Fetus is Not Yet a Nefesh

The Sm”a[1] comes close to paralleling Rav Chaim Soloveichik's shitah, but changes one slight detail.[2] He agrees that the normal heter to kill a rodef requires both a chiyuv missah for the rodef and the hatzalas ha'nirdaf.

In other words, we are normally not allowed to kill one person to save another; however, because the rodef is engaging in an act of attempted murder, there is a special din of chiyuv missah on the rodef that allows for the hatzalas ha'nirdaf with the life of the rodef. However, on a fundamental level, saving the nirdaf is not enough of a reason to kill the rodef; it is only part of the story, and only one of the two contributing factors; the other factor is the din missah that the rodef receives for attempting to kill the nirdaf.

Regarding the status of a fetus, the Sm”a believes that the fetus is not a nefesh, and it would therefore not violate the issur of retzichah to abort a fetus.

Thus, the only reason that hatzalas ha'nirdaf (saving the mother) alone is still enough of a reason to allow us to sacrifice the fetus in order to save the the mother is because the fetus is not yet a nefesh.

However, if that is so, and this is technically a normal case of hatzalas nefashos (where we can violate any aveirah – except for the “Big 3” – in order to save someone’s life), thenwhy did the Rambam feel the need to use the lashon of rodef?

In all likelihood, this is probably due to the fact that the fetus is still on the verge of becoming a nefesh. As such, it is only because the fetus is “like a rodef” that we can justify sacrificing the fetus to save the life of the mother – because since this is not just a normal case of hatzalas nefashos, but a case where the fetus is still somewhat responsible for the danger at hand, we can use the halachic concept of hatzalas ha'nirdaf to allow us to save the mother's life.

2) The "Dinim" of Rodef Apply

Some of the Achronim suggest that the Rambam never meant to categorize the fetus as a rodef. After all, the fetus has no intent, and it is not even a full nefesh yet. Why, then, does the Rambam use the term "Ki'Rodef?" These Achronim suggest that the Rambam was intending only to apply the dinim of rodef to this case.

How so? There are three different ways that this approach has been applied:

A. Limb by Limb: Maiming First

While one is allowed to kill a rodef in order to save the life of the nirdaf, halacha requires us to first attempt to maim the rodef. It is only in such a case where one is unable to stop the rodef by maiming him, that taking the rodef’s life is muttar.

Some Achronim[3] suggest that this is why the Rambam used the lashon of "Ki'Rodef." They note that this is the exact lashon of the Mishna in Ohelos: the Mishnah states that you should first try to amputate the limbs of the fetus, one by one, when trying to save the mother. It is only if this is still not enough to save the mother that we can go even further and sacrifice the fetus to save the mother.

B. You're Pattur From Paying Back the Monetary Loss

According to Halacha, if one causes a miscarriage, they must pay the halachic value of the fetus to the parents of the fetus, and the Gemara in Baba Kama (48b-49a) discusses the nature of this monetary payment.

The Rambam[4] paskins that one is allowed to steal in order to save their life, but that they must pay back the value of what they stole afterwards.[5] However, the Rambam[6] also paskins that in a case where a boat and its passengers are out in the ocean and are in danger of drowning, and the only way to save themselves is to throw people’s property overboard, they are not only allowed to throw this property overboard to save everyone, but they also don't have a chiyuv to pay it back afterwards.

The lashon the Rambam uses to explain this pittur is quite striking. He states that this is because the property that needed to be thrown overboard is considered to be "like a rodef."[7] The Rambam’s lashon is as follows:

רמב"ם הלכות חובל ומזיק פרק ח הלכה טו

ספינה שחשבה להשבר מכובד המשוי ועמד אחד מהן והקל ממשאה והשליך בים פטור,

שהמשא שבה כמו רודף אחריהם להרגם ומצוה רבה עשה שהשליך והושיעם

When a ship is about to sink because it is heavily loaded, and one person stands up and makes it lighter by jettisoning some of its cargo, he is not liable. For the cargo is considered like a rodef who is pursuing them to kill the passengers. On the contrary, by jettisoning the cargo and saving them, he performed a great mitzvah.

Thus, when the Rambam uses the term "Ki'Rodef" by a fetus, it is possible that he is referring to the very same concept: just like when the property in the ship is the only source of hatzalah, it is like a rodef and you are allowed to throw it overboard without paying back the value afterwards, so too, when sacrificing the fetus is the only way to save the mother's life, you don't need to pay any monetary fine after the abortion is performed.[8]

C. You Shouldn't Have any Mercy on the Fetus

The Rambam places this halacha – of sacrificing the fetus – right after the halacha in which he states that one must not have mercy on a rodef. Thus, it is possible that the Rambam is suggesting that just like one cannot have mercy on a rodef when it comes to saving the life of the nirdaf, so too, one cannot be passive and let nature take its course; one is not allowed to have mercy on the fetus and allow the mother to die, because we have a chiyuv to save the mother. Thus, despite the tremendously tragic loss of the fetus that will occur, we are required to save the mother’s life. Thus, if the mother or a third party wants to save the fetus instead, perhaps the Rambam is saying that such a decision would be assur.

And this could also be why the Rambam states that once the fetus is born, we should now be passive, because "this is the nature of the world." In other words, the Rambam is stating that once the fetus becomes a full nefesh, it is now assur to choose the mother’s life over the newborn baby’s life, and we must therefore be passive and leave this up to nature. However, until now, it would be assur to remain passive and leave this up to nature – because we have a chiyuv to save the mother’s life.

Conclusion

Regardless of which opinion is accepted l’halacha, one thing is unquestionably accepted by all poskim: the life of a fetus has infinite value; just as all life has infinite value. The question that will always remain is as follows:

1) In relation to the life of a human being that has already been born into the world, to what degree is a fetus considered “alive?”

And even if a fetus is considered fully alive, there can still be a hierarchical structure to the value of life. As such, when it comes to choosing between the life of a fetus and the life of its mother, the Torah tells us that the life of its mother comes first. Is this a simple din with no nuance or analysis required? Of course not. But nevertheless, it is something we must contend with. There are no absolutes or unquestioned principles in halacha; everything requires nuance, balance, and qualification. And even so, one principle remains unquestioned: the infinite value of life.

[1] סמ"ע על שולחן ערוך חושן משפט הלכות חובל בחבירו סימן תכה סעיף ב

וזה טבעו של עולם. הוצרך לכתוב זה, שלא תאמר הולד הרי הוא רודף ויצילו את אמו בנפשו, קמ"ל כיון שטבע של עולם בכך, אין דין רודף עליו, ואעפ"כ בעודו במעיה מותר לחתכו אף על פי שהוא חי, שכל שלא יצא לאויר העולם אין שם נפש עליו, והא ראיה דהנוגף אשה הרה ויצאו ילדיה ומתו משלם דמי הולדות ואין שם רוצח ומיתה עליו, וכמ"ש לעיל סימן תכ"ג [סעיף א']:

[2] The Nodesh B'Yehudah agrees with this pshat of the Sm”a as well.

[3] Yidei Moshe, Koach Shor, and the Cheshek Shlomo.

[4] Chovel U'Mazik 8:4.

[5] See chapter 5 for more on this topic.

[6] Choveil U'Mazik 8:15.

[7] Again, he uses the term "kimo: like."

[8] שו"ת תפארת צבי או"ח ס' יד