by Shlomo Riskin
chief rabbi of the city of Efrat and dean of Ohr Torah Institutes in Israel

January 31, 2008

And if two men strive together and hurt a woman, causing her to miscarry, and there is no fatal harm, he shall surely be fined…. But if fatal injury [to the mother] follows, then you shall give life for life.” (Exodus 21:22-23)

Jewish law has an ethical, but also a pragmatic, approach to the question of a mother’s right to abort vs. the fetus’ right to life. In this week’s portion, we learn that a woman who miscarries as a result of being accidentally injured by two men fighting is rewarded a monetary compensation for the unborn child; but if the injury is fatal to the woman, the punishment is much more severe: a life for a life.

The basis for the rabbis’ interpretation — that a fetus was not to be considered a life — is found in a Mishnaic ruling on the question of a life-threatening pregnancy: “If a woman suffers a difficult childbirth, we are allowed to destroy the fetus in the womb, removing the fetus limb by limb, because the mother’s life takes precedence over the child’s. But if the head [or major portion of the body] of the child has emerged, the newborn cannot be harmed because one life cannot push aside another life.” (Mishna Ohalot 7:6)

In tractate Erchin, in the Talmud,, however, R. Nachman reports in the name of Shmuel that if a pregnant woman dies on Shabbat before the time of birth, we must do whatever is necessary to remove the fetus, even if it means desecrating Shabbat. This means that the Sabbath may be violated to possibly save the life of a fetus — which is considered a life!

Maimonides’ ruling sheds light on the nature of the fetus, orchestrating the various talmudic sources. His abortion law appears in a section devoted to the “Laws of Murder” and saving a life. (chapter 1, halacha 9) In codifying the law that the mother’s life takes precedence over a fetus still inside the womb, but that once the head has emerged, one life is not pushed aside for another, Maimonides adds: We are obligated to destroy the fetus when the mother’s life is threatened because the fetus is considered a “rodef,” a pursuer — in effect, a murderer.

Earlier in this chapter, Maimonides rules that if we come upon a “rodef” (a potential murderer), we are obligated to do whatever it takes to stop the pursuer, even killing him. Now, were the fetus to be considered merely a part of the mother’s body, like a limb, we would certainly be obligated to amputate the “limb” to save the mother’s life; the notion of referring to the fetus as a “pursuer” would be totally superfluous. Rav Hayim Soloveitchik explains that while the fetus prior to its entry into the world is not yet a person, a “soul,” neither is it a mere “piece of meat” or even a limb or organ: It is a potential life, a potential soul. As such, it may be sacrificed to save the mother’s life — because it is endangering the mother’s life, like a rodef — but one may desecrate the Sabbath to save this potential soul.

What determines the “right of life” for the fetus is its potential danger. If it “pursues” the mother, threatening her life, then the fetus must be destroyed. If genetic testing reveals that the baby will be born with Tay-Sachs or a similar disability that will result in the baby’s living for a brief period, the fetus is not a potential life but a potential “treifa” (a truncated and limited existence), and abortion may be justified. If there is psychological damage to the mother’s state of mind with a problematic birth that is less serious than the aforementioned instances, this must be judged by rabbinical and medical counseling on a case-by-case basis. But when no mitigating circumstances exist and the proposed abortion proves to be only a means of getting rid of an inconvenience, Jewish law would clearly forbid the taking of potential life.

One of my most moving experiences involved a couple who had been married for years without being blessed with children. Finally, the woman did give birth, to a baby who survived only a very short time due to severe genetic difficulties.

During the week of shiva, a congregant asked me to speak to a relative of his — a 15-year-old who had gotten pregnant by her boyfriend and was about to have an abortion. The young mother-to-be agreed to meet with me. During the talk she was convinced not to abort the fetus but to give the baby up for adoption — to this family who had just suffered the tragic loss of the baby.

It’s not difficult to imagine the joy we felt at the bat mitzva celebration of this young woman, practically snatched from the knife of the abortionist. When she was married — and I was honored to be sandak (godfather) at the circumcision of her son, I truly understood to what extent a potential life is indeed a potential world.