The question is regarding terminating a pregnancy because of the Tay-Sachs disease… The technology today which allows testing for this disease cannot giver reliable results prior to three months into the pregnancy. Thus his question is if one can view such a disease with such severe and certain consequences, sufficient severity to allow for a termination of the pregnancy even after three months, or if the period of three months is absolute, and there is no justification, short of direct risk to the life to the mother, that would allow for a termination of pregnancy after three months.Behold after investigation into the matter with great seriousness, and with consideration of all the relevant circumstances, it seems in my humble opinion, on the basis of the analysis that I wrote in my responsa, 9:51.3… that in a case such as this, in which the consequences are so grave if the pregnancy and childbirth are allowed to continue, it is permissible to terminate the pregnancy until 7 months have elapsed, and in a way in which no danger will befall the mother. Beyond 7 months the issue is more serious (and the stringency here is more based on how the matter seems and the “knowledge of the gut”, to use the phrase of the Havot Yair) since at the end of 7 months the fetus is often fully developed.It is clear that capital punishment is not prescribed for abortion, and with the exception of a single opinion, the decisors conclude that there is nevertheless some form of a prohibition. But the opinion of most rabbis is that the prohibition is only of Rabbinic origin, or that it is in the category of the well-being of the world, but that there is not even the slightest element of destroying a life. Therefore, Maharit, in his responsum, permitted abortion for a Jewish woman whenever the matter was necessary for her health even when her life was not at stake.Like this, and even to a greater degree, was it argued to be permissible in Responsa Yavet, 1:43… And therefore ask yourself where is there a great need regarding pain and suffering greater than the woman in our case which will be inflicted upon her if she gives birth to such a creature whose very being is one of pain and suffering and his death is certain within a few years… and added to that is the pain and suffering of the infant. This would seem to be the classic case in which abortion may be permitted, and it doesn’t matter what type of pain and suffering is endured, physical or emotional, as emotional pain and suffering is to a large extent much greater than physical pain and suffering…(2) And you should know that in the words of Maharit and Yavetz, there is not mentioned at all that there should be a distinction between within 3 months and after 3 months. And the clear distinction given is only regarding once it has been “uprooted to emerge” and beforehand. To the contrary, Yavetz writes thusly: “As long as it has not uprooted to emerge,” and from this we can infer that as long as this is not the case, there is no distinction regarding what month it is in…(4) Also in Responsa Havot Yair, 31, where he raises the possibility of distinguishing between before and after 40 days, or before and after 3 months, he expresses in passing his reservations about such distinctions, and he writes thusly: “Nevertheless, it is not our desire to make a decision based on what seems, and a knowledge of the gut”…(6) Thus, as I have indicated at the outset, it would seem in my humble opinion that one can allow in a case such as ours to arrange for a termination of the pregnancy immediately once the test results are definitive that the child has this disease, even up to 7 months of pregnancy, provided that there is no risk to the mother…(7) I will add that, to do it in the best possible way, it would be ideal if the operation could be performed by a woman doctor, for in such a case there would be another aspect of leniency, according to Havot Yair and Yavetz in their responsa. For they are of the opinion that the prohibition for a Jew to kill a fetus is because of wasting of seed, see there, and women are not prohibited in doing such according to most decisors.

Regarding checking the amniotic fluid to detect if the fetus has Mongoloidism (Down’s syndrome), and terminating a pregnancy under such circumstances.March 19, 1978To his honor, haRav haGaon, Rabbi Eliezer Waldenberg, shlita, head of the Rabbinical Court, Jerusalem…Among those who give birth over the age of 37, the frequency of such cases is approximately 1%, and amongst those who give birth over the age of 40, the frequency of occurrence is approximately 2%. The Ministry of Health will implement an amniocentesis screening program to be done at a time that will enable the detection of the embryos with this syndrome and the decision to terminate the pregnancy. This syndrome cannot be detected within the first three months of pregnancy. There is thus in this case a halakhic question similar to the one regarding pregnancy with a child who has Tay-Sachs disease.As is known to his honor, a child who suffers from Down’s syndrome is completely different from one who suffers from Tay-Sachs. Down’s syndrome is a very undesirable disease accompanied by physical changes and mental retardation that sometimes requires institutional care and is linked to a shortened life expectancy. But, one should not compare a child with this disease to a child with Tay-Sachs who will surely die. It seems to me that the permission to terminate the pregnancy in a case of Tay-Sachs is based mainly on how such a case will impact the mental state of the parents, especially the mother, and it is for this reason that the rabbi (you) ruled that it is possible to terminate the pregnancy up through the seventh month of pregnancy. The harsh impact of a case of Tay-Sachs on the parents is clear and straightforward. On the other hand, although it is possible that Down’s syndrome will have such a negative effect, at the same time I am familiar with families who love their children who suffer from Down’s syndrome.I am sure that I will soon be faced with inquiries from mothers of thirty-seven to forty years who will have two concerns: (a) Is it permissible to perform amniocentesis in order to discover cases of Down’s syndrome? (b) Requests for termination of pregnancy in such cases.Response. March 26, 1978. Jerusalem. To the honorable Prof. Dr. M. Meir, the executive director of Shaarei Tzedek Hospital in Jerusalem.… Let us turn to second and main problem, if it is permissible to terminate pregnancy in the event that the examination shows 100% (as I was told in a verbal conversation) that the fetus suffers from Down’s syndrome, given that we are talking about doing this after three months of pregnancy.Now, as his honor himself senses and emphasizes in his letter, one cannot compare the case of a child with this disease to a child with Tay-Sachs who will definitely die.Similarly, a child who suffers from Down’s syndrome is very different from one who suffers from Tay-Sachs.Therefore, it would seem that we cannot issue a general permission to terminate a pregnancy in a case of Tay-Sachs. However, when the results of the examination are known, the doctor must send the woman (and the hospital administration must issue an order in this regard) to a posek, providing the specifics of the results of the test, and the rabbi who is a posek will pay close attention to the emotional state of the couple in regards to this, and will decide with his halakhic judgment whether to allow the termination of the pregnancy. Only upon receipt of a qualified posek permit may the hospital management agree to do so in its facility.I have emphasized that it is impossible issue a general permission… for according to the halachic sources and arguments that I have detailed and explained in my two previous responsa, in the course of my discussion of termination of pregnancy in the case of Tay-Sachs disease, there is a wide space (a strong basis) to conclude that it is permitted based on those same sources and reasons, even in the case of a fetus with Down’s syndrome. For in the final analysis, as his honor as described in his letter, it is also a very undesirable disease accompanied by physical changes and mental retardation that sometimes requires institutional care and is linked to a shortened life span. These realities have the ability, in many cases, to destroy the emotional/mental state of both the wife and the husband, including the ability to cause them to come down with a serious or not-so-serious illness, and also to destroy the health of the couple’s family life.Let me give an example from a case that came before me in a couple of ultra-Orthodox Jews (from the old yishuv) who had already been born to them – it shouldn’t happen to us – two children who had Down’s syndrome who died a little more than a year after their birth. As a result, the wife was struck with an anxiety attack, and this expressed itself in her refusal to have marital relations with her husband for fear of becoming pregnant and again becoming pregnant with such a fetus. The husband waited a year, then two, and frequently implored his wife to return to a normal marital life, and the woman turned her back to him and remained adamant in her refusal. The situation came to my attention when they were already on the verge of divorce. When I saw what the situation was, I gave the woman permission to undergo the appropriate tests in case she got pregnant. She resumed martial relations with her husband, she became pregnant, she underwent the test, the test showed that everything was fine, and she gave birth to a sound and healthy child. Peace in their house was restored to its proper place, and they continue to live a happy life together.In another case, I was asked by a certain Torah-scholar – scientist, regarding his wife, who was over forty and pregnant, and the doctor advised her to do the test. I tried to influence him that there was no need for an examination and to behave like our forbearers did who had faith in God that everything would turn out alright. He responded to me that from the moment his wife learned from the doctor about the concern (regarding Down’s syndrome) and the possibility to determine this through this recently developed test, she is not able to sleep at night, and she is deeply distressed to the point that he fears for her health. In this way, this knowledge has brought women into a state of “one who adds knowledge adds pain.”Therefore, regarding such cases, and similar ones, it seems that we can certainly base a permission (for termination of pregnancy) one the rulings of the great poskim that we cited in our earlier writings (see Tztitz Eliezer, vol. 9, 13:102, and the previous responsum in this volume). In other words, whether based on the opinion of many poskim who hold that the prohibition against abortion for a Jew is only a rabbinic violation, for a fetus is not considered a life; or based on the opinions of the poskim who believe that it is not even an appurtenance to the sin of murder, but rather an offense like any other offense, add to this the fact that we don’t even violate Shabbat to save such a fetus (according to these opinions) as long as the woman is not in active childbirth; or based on Maharit and the many who are in his camp who permit an abortion whenever it is required for the health of the mother, even when there is no risk to life, and this is even if the prohibition is a Biblical one inasmuch as the fetus does not yet have a presumption of being alive; or based on the opnions that are mentioned in Havot Yair; or based on Yavetz and those in his camp who are of the opinion that there is a basis to be lenient as long as the child has not begun to leave the mother’s womb, even if there is no risk to life of the mother, but only to save her from the fact that the child will cause her great pain; or based on the author of Rav Paalim who is of the opinion that when dealing with these cases, a great need is defined not only in terms of one’s physical health needs, but also in terms of one’s spiritual and emotional needs, in accordance with how I explained and gave backing to this position; or explain and substantiate this; and so on, everything as I wrote and explained with great depth with God’s help in our earlier writings.(D) I would also add that in a case where an abortion is permitted, in addition to the need and obligation to obtain the consent of the woman to terminate the pregnancy (as his honor wrote in his letter, which is included in the standard that you have prepared in this regard), there is also a need and an obligation to receive the husband’s consent, in accordance with the well-known halakha regarding damages when someone causes a woman to miscarry, that such damages are paid to the husband (Shemot 21:22, Baba Kama 42 and 49, Rambam, Hovel u’Mazik 5:1-2, and Hoshen Mishpat 423:1).In conclusion:(a) It is permitted to conduct an amniocentesis for the purpose of making a decision regarding termination of pregnancy due to mental retardation in a case of Down’s syndrome.(b) In the event that the examination shows, with confidence, that the fetus has Down’s syndrome, a permissive ruling must be obtained from a qualified rabbi to perform a termination of pregnancy.(c) An additional consideration to permit such an abortion would be if there was the possibility to terminate the pregnancy through drinking some medicine or through giving an injection (i.e., non-surgical means).(d) In addition to the need to obtain the consent of the woman to terminate the pregnancy, the consent of the husband must also be obtained.With great honor and blessing, Eliezer Yehuda Waldenberg