One of the difficult questions in Jewish law is when, during pregnancy, it becomes evident that a fetus suffers from severe defects: Is it permitted to terminate the pregnancy? In the past, such a question did not exist, because there was no way of checking the condition of the fetus. Infants who suffered from significant defects usually died in infancy or childhood, since infant and child mortality was extremely high, and even among healthy children, over fifty percent of them did not reach their teens.
On the one hand, clearly it is forbidden to kill a fetus or cause it to die. Moreover, we are even commanded to desecrate the Sabbath in order to save a fetus – even if it the pregnancy is of less than forty days duration. This is because the fetus will eventually become a living person, and as our Sages said (Yoma 85b), "Profane for his sake one Sabbath, so that he may keep many Sabbaths” (Bahag, Ramban, Peninei Halakha:Shabbat 27:3).
The Source for the Prohibition of Abortion
Still, the question remains: What is the foundation of the prohibition of abortion? Is it because of murder, or the prohibition of chabalah (causing unnecessary physical harm to the human body)? Seemingly, the fact that the prohibition was mentioned in conjunction with the prohibition of murder means it is a derivative of murder. On the other hand, since the killing of a fetus had to be learned from a homiletic interpretation seemingly this means that without the interpretation, we would not know that it is forbidden to kill a fetus, and hence, the prohibition of abortion is derived solely from the prohibition of causing unnecessary physical harm to the human body. Additionally, we learn in the Torah (Exodus 21:22) that a person who harms a pregnant woman and causes her to miscarry is obligated to pay damages, implying that abortion is not considered murder.
In the opinion of Rabbi Unterman and Rabbi Feinstein abortion is forbidden because of murder, and consequently, under no circumstances can a fetus be aborted, even if it is suffering from the most severe illnesses. Only in a situation when the pregnancy endangers the life of the mother is an abortion permitted, because her life takes precedence over the life of the fetus.
In a similar manner, in the responsa ‘Shevet Halevi’ (7,208; 9, 266), Rabbi Wosner rejected the words of those who believe that abortion is forbidden because of the prohibition of murder, but nevertheless, permitted abortion only in a situation of safek nefashot (possible danger to life).
The Lenient Opinion
In the responsa ‘Rav Pealim’, the Ben Ish Chai was asked about a case of an ubar mamzer (a fetus conceived from a forbidden relation) in its fifth month – can it be aborted? He did not want to reply with an unequivocal ruling, but rather summarized for the questioning rabbi that in the opinion of Chavot Yair, when there is no great need it is forbidden l’chatchila (from the outset). And in the opinion of Maharit (1, 97), abortion is prohibited because of chabalah, and is permitted when necessary. Apparently from his words, he was inclined to be lenient. And in the responsa ‘She’elat Yavetz’ (1, 43), Rabbi Emden permitted the abortion of an ubar mamzer.
In the responsa ‘Mishpatei Uziel’ (section 4, Choshen Mishpat 44), the question was asked about a woman who, in the opinion of the doctors, if allowed to continue her pregnancy would become deaf, and Rabbi Uziel answered that since deafness is a considerable impairment, she is allowed to abort.
Our teacher and mentor, Rabbi Shaul Yisraeli (Amud HaYemini 32), also wrote in a similar manner. And this was also the instruction of Rabbi Eliezer Waldenberg in his responsa ‘Tzitz Eliezer’ (chapter 9, 51, 3:3, and many other places), while basing his remarks on a broad and thorough discussion of all aspects of the matter.
Some twenty-five years ago my sister, who worked as a nurse at Shaare Zedek Hospital, told me that majority of Jewish babies who were born with Down’s syndrome and other far more severe defects came from religiously observant families. This was because the public is unaware that there are poskim who are lenient regarding having an abortion in cases of illness, and consequently, many women do not perform tests while pregnant. And even a woman who is tested and it turns out that her fetus suffers from severe defects, it is inconceivable to her that there might be room to ask a rabbi a halakhic question.
I knew that some people would argue that I shouldn’t publicize the lenient opinion, lest “the fences are breached” and there would be some women who would determine the halakha leniently for themselves, to have an abortion for economic or social reasons, or because of minor defects, grounds forbidden in the opinion of all poskim.
Indeed, for the benefit of the public at large, I taught this halakha in the framework of ‘Pinat Ha’Halacha’ (‘the Halakha Spot’) on Arutz Sheva. Later on, I summarized these laws in detail in my book ‘Peninei Halakha’ (Likutim Bet), and in my newspaper column ‘Revivim’.
Over the last year I have re-examined this profound issue, and out of my studies, my belief that the lenient opinion is the primary one has been reinforced. This is because from the issue in the Gemara, the words of the Rishonim and Achronim, it arises that the prohibition of abortion is because of hashchata, and not murder. Indeed, many poskim of the last generation inclined to be stringent; the minority because they believed that abortion is forbidden as murder, and the majority because of the great value of life inherent in the fetus. Some poskim instructed in this manner because they did not rely on the opinion of doctors.
However, in any such serious question, one must get the opinion of an honest doctor who relates reverently to the life of the fetus, and then ask a rabbi who is familiar with the field.
I heard from my father and teacher, Rabbi Zalman Baruch Melamed shlita, that when he was a young teacher in the Mercaz Harav Yeshiva about forty-five years ago, he was approached by a married couple with a question: While pregnant, the woman became ill with German measles and according to the doctors, there is a twenty-five percent chance that the fetus will be deformed.
At first, my father went to Rabbi Shaul Yisraeli, one of the heads of the Yeshiva. However, despite the fact that in his book 'Amud HaYemini' he wrote that abortion was permitted, he did not want to decide this question, and referred my father to his colleague, Rabbi Yosef Shalom Elyashiv, who inclined to be strict in this matter. And indeed, Rabbi Elyashiv said there was no possibility of being lenient without the fear of pikuach nefesh (life endangering situation), but if there is a concern that the woman will become mentally unstable, it is possible to be lenient.
My father asked him: And how can we know if there is such a concern? He replied: Let the pregnant woman decide.
Apparently, Rabbi Yisraeli avoided permitting the abortion because he had written in his response that only when the majority of the chances are that the fetus is ill is an abortion permitted, and since in the case at hand the risk was twenty-five percent, he abstained from permitting. What Rabbi Tzvi Yehudah instructed was in accordance with the principle written in Rabbi Yisraeli’s response, whereby abortion is forbidden because of the prohibition of causing chabalah and not because of murder, and in a situation of significant danger, and when the couple is also in a state of great sorrow, it is possible to rely on the foundations clarified in his written response.