The Status of a Fetus in Halacha: What is the Definition of Life? (Part 4)

One of the best ways to determine the severity and nature of abortion in the eyes of Torah is to assess when and why abortion would be muttar. There are several famous Torah sources which discuss the circumstances in which abortion would be muttar:

To Save the Life of the Mother

The Mishnah in Ohelos (7:6) states that in a case where an abortion is necessary to save the life of the fetus' mother, we can even chop the fetus up limb by limb to save the mother's life.

משנה מסכת אהלות פרק ז משנה ו

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

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. 

As graphic as this sounds, this clearly says something about the nature of abortion. There are several ways to understand this Mishnah:

1. There is no issur Di'Oraisa of abortion, only an issur Dirabanan. So it would be muttar to abort a fetus for the sake of hatzalas nefashos (saving the mother's life)
2. There is an issur D'Oraisa of abortion, but it is not a form of murder; therefore, for the sake of hatzalas nefashos (saving the mother's life), it would be muttar.
3. There is an issur D'Oraisa of abortion, and it is even a subcategory of murder, but for the sake of hatzalas nefashos (saving the mother's life), it would be muttar – since abortion is only a lower form of murder, not a full issur of murder. 

However, if the issur is a lower form of murder, or even if the issur is chavalah, but chavalah for the fetus and not the mother, it is hard to justify the murder of the fetus, even if it is to save the mother. After all, why should we choose the life of the mother over the life of the fetus? However, it is possible to suggest a few explanations:

• The mother-fetus relationship is unique, where the fetus' life is dependent on the mother. As such, in the hierarchy the relationship, if we have to choose between saving the mother or the fetus, the mother's life comes first.
• Since the fetus is not a "full" life, the mother's life takes priority.

Once the Fetus Leaves the Womb

The Gemara in Sanhedrin (72b) famously states that once the head or rov (the majority) of the fetus comes out through the birth canal, you can no longer touch it, because "ain docheh nefesh mipnei nefesh" (we don't push aside one life for the sake of another), and "mishmaya kah radfah leih" (heaven is the pursuer).

תלמוד בבלי מסכת סנהדרין דף עב עמוד ב

יצא ראשו - אין נוגעין בו, לפי שאין דוחין נפש מפני נפש. ואמאי? רודף הוא! - שאני התם, דמשמיא קא רדפי לה

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 mother by killing the fetus, why is this so? The child 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.

The obvious question arises: what changes once the fetus leaves the womb? Why is it permitted to sacrifice the fetus to save the mother while the fetus is in utero, but the moment the fetus leaves the womb, we can't choose one life over another? As always, there are several ways to approach this important question:

1. It is Now Murder

If the issur of abortion is not murder, then the moment the fetus leaves the womb, it now becomes an issur of murder to kill the newborn child. Thus, while inside the womb, we can abort the fetus to save the mother, since it is not murder; but once the newborn child leaves the womb, we cannot sacrifice one life to save another.

2. The Mother-Fetus Relationship is Over

Since the mother-fetus relationship is unique, where the life of the fetus is dependent on the mother, there is a hierarchy in place: Since the life of the fetus is dependent on the mother, if we have to choose between saving the mother or the fetus, the mother's life comes first. However, once the fetus is born, it is now an independent human being; as such, we can no longer choose the mother's life over the fetus.

3. Prioritizing a Full Life Over the Fetus

While the fetus is in utero, we can prioritize the mother's life, because the fetus is not yet a full life. Thus, even if abortion is murder, we understand the hierarchy in place, and can choose the mother's life over the fetus' life. However, once the fetus is born, it becomes a full life, and thus, we can no longer choose the mother's life over the fetus: ain docheh nefesh mipnei nefesh (we don't push aside one life for the sake of another).

Shitas Rashi

Rashi (Sanhedrin 72b) explains the Gemara as follows: "As long as the fetus has not entered the world (and remains in the womb), it is not a nefesh (soul/human being). As such, we can sacrifice its life to save the mother. However, as soon as the fetus leaves the womb, it becomes a nefesh, we can no longer sacrifice its life to save the mother, because ain docheh nefesh mipnei nefesh.

רש"י מסכת סנהדרין דף עב עמוד ב

יצא ראשו - באשה המקשה לילד ומסוכנת, וקתני רישא: החיה פושטת ידה וחותכתו ומוציאתו לאברים, דכל זמן שלא יצא לאויר העולם לאו נפש הוא וניתן להורגו ולהציל את אמו, אבל יצא ראשו - אין נוגעים בו להורגו, דהוה ליה כילוד ואין דוחין נפש מפני נפש

Shitas Ha'Rambam

The Rambam's shitah is almost as complicated as it is famous. As such, we are going to devote a tremendous amount of time to analyzing and deciphering every detail of the Rambam's terminology. The Rambam states as follows:

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 this halacha, 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 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 of 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," that is only referring to once the fetus has already been born. 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. Perhaps more importantly, 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 a rodef? Furthermore, what changes once the fetus leaves the womb? If anything, if the fetus is considered a rodef while in the womb, it should continue to be a rodef once it is born? And even more perplexing, why isn't the mother considered to be a rodef to the fetus while the fetus is still in the womb? Why would the fetus be a rodef, but not the mother?

All of these questions require serious analysis. In order to understand the unique shitah of the Rambam, we need to first dive deep into understanding the sugya of rodef.

In our next article, we will continue to analyze this fascinating halachic topic.