By Rabbi Yerachmiel D. Fried
Dear Rabbi Fried,
I always enjoy your weekly column. However, there was something in the latest column that I struggled with, and so I wanted to get your thoughts.
It concerns the statement that the fetus is part of the pregnant woman’s body and as such, capital punishment would not be delayed for a pregnant woman purely for the reason of her pregnancy. But if a fetus is purely to be considered part of a woman’s body, then does that not suggest that elective abortion on demand should be permissible? My understanding is that elective abortion is not permitted under Orthodox Judaism. I am having trouble reconciling the opposition to elective abortion on one hand with the idea that the fetus is part of the mother on the other hand.
Perhaps the answer lies in the idea that our bodies belong to Hashem and that we should not undergo any medical procedure unless it is necessary. For example, I understand that liposuction or a “nose job” are not kosher because those procedures entail non-essential incisions in the body that Hashem gave us. So perhaps elective abortion should be impermissible because it is a non-essential medical procedure. Permit a silly example — a woman’s foot is part of her body and so it would be halachically impermissible for her to electively decide to amputate a healthy foot. So, this could explain the halachic ban on elective abortion without changing the assumption that the fetus is purely part of her body.
But is this all the protection that halacha provides to a fetus? It seems like a fetus — with a beating heart — is different in kind than an earlobe or pinky toe. What is the right way to think about this?
— Bruce L.
Excellent question — I have struggled with it myself for quite some time. You are correct, the fetus is not afforded protection simply because it is no more than a “foot” of the mother. If that would be the case, any time the baby’s birth would cause mental stress on the mother we would allow an abortion, similar to the liposuction or “nose job” that you mention which is allowed when a person has mental stress over their looks, (subject to the approval of a rabbi that their situation constitutes ample stress for that allowance). We know this not to be the case with abortion.
In fact, most halachic authorities consider an abortion performed without halachic permission to be an act of murder. Obviously, the amputation of a leg is not an act of murder. This ruling indicates that the fetus is considered its own life.
If so, your question resurfaces; why would we not be required to hook up a brain-dead pregnant mother to a ventilator in order to rescue her fetus?
The answer is somewhat nuanced and even complicated. Although the fetus is considered to have a life of its own, it is not considered to be “fully alive.” This means that its status is that of a “partial life” and not that of a fully living human being.
For example, to kill a fetus is, as we mentioned, considered to be an act of murder. The one who carries it out, however, would not be subject to the death penalty like one who murders another person. It is considered, in the words of the authorities, murder in the “court of Heaven” although a court of law could not try and punish him for murder.
Halacha considers the fetus to be “fully” alive when either the head or the majority of his body presents itself outside the mother. For that reason, if the mother’s life is threatened by the fetus, her full life supersedes the partial life of the fetus; until the head or majority of the body is present. At that point they are considered on equal footing.
The mitzvah of doing everything possible to save another Jew, even to the point of another suffering pain, applies only once that Jew is fully alive. This does not, however, apply to one not yet born; we need not or should not force the mother through undue protracted suffering by prolonging her death to attempt to save the erstwhile partial life of her fetus.
Rabbi Yerachmiel D. Fried, noted scholar and author of numerous works on Jewish law, philosophy and Talmud, is founder and dean of DATA, the Dallas Kollel. Questions can be sent to him at firstname.lastname@example.org.