Abortion & Privacy in Jewish Law Class I - Context, The Question & Classics

Incidental to this discussion of Hannah’s prayer, the Gemara explores related topics. In her prayer, Hannah said: “And she swore an oath and said, Lord of Hosts [Tzeva’ot] if You will indeed look upon the affliction of Your maidservant and remember me, and not forget Your maidservant and will give Your maidservant a male child, I will give him to the Lord all the days of his life, and there shall be no razor come upon his head” (I Samuel 1:11). Rabbi Elazar said: From the day that the Holy One, Blessed be He, created His world, there was no person who called the Holy One, Blessed be He, Lord of Hosts until Hannah came and called Him Lord of Hosts. This is the first time in the Bible that God is referred to by this name. Rabbi Elazar explains that Hannah said before the Holy One, Blessed be He: Master of the Universe, are You not the Lord of the Hosts, and of all of the hosts and hosts of creations that You created in Your world, is it difficult in Your eyes to grant me one son? The Gemara suggests a parable: To what is this similar? It is similar to a flesh and blood king who made a feast for his servants. A poor person came and stood at the door. He said to them: Give me one slice of bread! And they paid him no attention. He pushed and entered before the king. He said to him: My lord, the King, from this entire feast that you have prepared, is it so difficult in your eyes to give me a single slice of bread?

R. Simlai delivered the following discourse: What does an embryo resemble when it is in the bowels of its mother? Folded writing tablets. Its hands rest on its two temples respectively, its two elbows on its two legs and its two heels against its buttocks. Its head lies between its knees, its mouth is closed and its navel is open, and it eats what its mother eats and drinks what its mother drinks, but produces no excrements because otherwise it might kill its mother. As soon, however, as it sees the light the closed organ opens and the open one closes, for if that had not happened the embryo could not live even one single hour. A light burns above its head and it looks and sees from one end of the world to the other, as it is said, then his lamp shined above my head, and by His light I walked through darkness. And do not be astonished at this, for a person sleeping here might see a dream in Spain. And there is no time in which a man enjoys greater happiness than in those days, for it is said, O that I were as the months of old, as in the days when God watched over me; now which are the days' that make up 'months' and do not make up years? The months of pregnancy of course. It is also taught all the Torah from beginning to end, for it is said, And he taught me, and said unto me: 'Let thy heart hold fast my words, keep my commandments and live', and it is also said, When the converse of G-d was upon my tent. Why the addition of 'and it is also said'? — In case you might say that it was only the prophet who said that, come and hear 'when the converse of God was upon my tent. As soon as it, sees the light an angel approaches, slaps it on its mouth and causes it to forget all the Torah completely, as it is said, Sin coucheth at the door. It does not emerge from there before it is made to take an oath, as it is said, That unto Me every knee shall bow, every tongue shall swear; 'That unto Me every knee shall bow' refers to the day of dying of which it is said All they that go down to the dust shall kneel before Him; 'Every tongue shall swear' refers to the day of birth of which it is said, He that hath clean hands, and a pure heart, who hath not taken My name in vain, and hath not sworn deceitfully. What is the nature of the oath that it is made to take? Be righteous, and be never wicked; and even if all the world tells you, You are righteous', consider yourself wicked. Always bear in mind that the Holy One, blessed be He, is pure, that his ministers are pure and that the soul which He gave you is pure; if you preserve it in purity, well and good, but if not, I will take it away from you.

Rabbi Yehuda HaNasi holds: A fetus is considered as its mother’s thigh, i.e., a part of its mother’s body, and it is as though the master transferred ownership of one of her limbs to her.

Mishna. If a woman miscarries on day 40 (from conception) – she need not concern herself with the impurity of childbirth (lit., with a child). On day 41 – she must observe [the impure days] for a male child, a female child, and for being a niddah.

At what point is the soul given to a human? Is it from the moment of decree [that such a child will exist], or from the moment of formation?

The moment of decree - when his flesh, tendons and bones come together

The moment of formation -when the angel comes to the drop and brings is before Hashem to see what will happen to it, as we say in (Daf 16 B) immediately a soul and life is thrown into it

Rabbi Yirmeya raised yet another dilemma: Does a dead fetus in its dead mother’s womb form a mixture with regard to her, so that the bodies are considered like two corpses buried together, or not? The Gemara explains the two sides of the dilemma: Do we say that since the Master said that a fetus is considered as the thigh of its mother, it is therefore like her body and it does not form a mixture with it? Or perhaps one should maintain: Since in most cases a fetus will ultimately emerge from the womb at birth, it is already considered separated from her, and it is like any other corpse buried with the woman.

(6) Whoever sheds human blood,
By human [hands] shall that one’s blood be shed;
For in the image of God
Was humankind made.

(13) You shall not murder. You shall not commit adultery. You shall not steal. You shall not bear false witness against your neighbor.

(1) וכי ינצו אנשים IF MEN STRIVE with each other and one intended to strike the other and inadvertently struck the woman (Sanhedrin 79b). (4) ענוש יענש HE SHALL SURELY BE FINED to pay the value of the offspring to the husband. We estimate her value according to what she is worth if she were sold as a slave in the market giving her a higher value on account of her being with child (Bava Kamma 49a). (5) ענוש יענש (lit., he shall surely be punished) — It means that they shall exact money from him. ענוש is used here in the same sense as in, (Deuteronomy 22:19) “And they shall amerce (וענשו) him an hundred shekel of silver”. (6) כאשר ישית עליו וגו׳ means, when the husband will summons him before the Court that they should place upon him a fine for this (cf. Mekhilta d'Rabbi Yishmael 21:23:7), (7) ונתן THEN HE SHALL GIVE — i. e. the man that struck the woman shall give the value of the offspring. (8) בפללים ACCORDING TO THE DECISION OF THE JUDGES (Mekhilta d'Rabbi Yishmael 21:23:9).

He who kills his sons. It is told about and embryo that was killed in its mother's womb that is as deconstructing the God's build-up of creation and his Omanut (art and faith-making)

(5) How does the court intimidate the witnesses in giving testimony for cases of capital law? They would bring the witnesses in and intimidate them by saying to them: Perhaps what you say in your testimony is based on conjecture, or perhaps it is based on a rumor, perhaps it is testimony based on hearsay, e.g., you heard a witness testify to this in a different court, or perhaps it is based on the statement of a trusted person. Perhaps you do not know that ultimately we examine you with inquiry and interrogation, and if you are lying, your lie will be discovered. The court tells them: You should know that cases of capital law are not like cases of monetary law. In cases of monetary law, a person who testifies falsely, causing money to be given to the wrong party, can give the money to the proper owner and his sin is atoned for. In cases of capital law, if one testifies falsely, the blood of the accused and the blood of his offspring that he did not merit to produce are ascribed to the witness’s testimony until eternity. The proof for this is as we found with Cain, who killed his brother, as it is stated concerning him: “The voice of your brother’s blood [demei] cries out to Me from the ground” (Genesis 4:10). The verse does not state: Your brother’s blood [dam], in the singular, but rather: “Your brother’s blood [demei],” in the plural. This serves to teach that the loss of both his brother’s blood and the blood of his brother’s offspring are ascribed to Cain. The mishna notes: Alternatively, the phrase “your brother’s blood [demei],” written in the plural, teaches that that his blood was not gathered in one place but was splattered on the trees and on the stones. The court tells the witnesses: Therefore, Adam the first man was created alone, to teach you that with regard to anyone who destroys one soul from the Jewish people, i.e., kills one Jew, the verse ascribes him blame as if he destroyed an entire world, as Adam was one person, from whom the population of an entire world came forth. And conversely, anyone who sustains one soul from the Jewish people, the verse ascribes him credit as if he sustained an entire world. The mishna cites another reason Adam the first man was created alone: And this was done due to the importance of maintaining peace among people, so that one person will not say to another: My father, i.e., progenitor, is greater than your father. And it was also so that the heretics who believe in multiple gods will not say: There are many authorities in Heaven, and each created a different person. And this serves to tell of the greatness of the Holy One, Blessed be He, as when a person stamps several coins with one seal, they are all similar to each other. But the supreme King of kings, the Holy One, Blessed be He, stamped all people with the seal of Adam the first man, as all of them are his offspring, and not one of them is similar to another. Therefore, since all humanity descends from one person, each and every person is obligated to say: The world was created for me, as one person can be the source of all humanity, and recognize the significance of his actions. The court says to the witnesses: And perhaps you will say: Why would we want this trouble? Perhaps it would be better not to testify at all. But be aware, as is it not already stated: “And he being a witness, whether he has seen or known, if he does not utter it, then he shall bear his iniquity” (Leviticus 5:1)? It is a transgression not to testify when one can do so. And perhaps you will say: Why would we want to be responsible for the blood of this person? But be aware, as is it not already stated: “When the wicked perish, there is song” (Proverbs 11:10)?

(6) A woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life. If most of it had come out already they do not touch it because we do not push off one life for another.

(9) ... It is a negative commandment that one should not protect the life of a rodef (pursuer). For this reason, the sages ruled that in the case of a pregnant woman in a dangerous labor, it is permissible to dismember the fetus in her womb - whether with a drug or by hand because it is like a rodef pursuing her to kill her. However, once the head has emerged one may not touch him, as we do not set aside one nefesh [life] for another, and this is the natural way of the world.

(4) A non-Jew who kills someone, even a fetus in its mother’s womb, is executed. Even if he kills someone who has an incurable, terminal illness, or tied someone up and placed him in front of a lion or he let him starve until he died is liable since he caused someone to die. Similarly, if he killed a Pursuer when he could have saved his friend by merely injuring one of the Pursuer’s limbs, is also executed. This is not the case with a Jew.

(11) The Jewish Court must set up judges for the Resident Converts to judge them in accordance with these statutes. This is so that the world will not come to be destroyed. If the Court sees that it can appoint judges from among them, then it should do so. If the Court sees that it must appoint Jewish judges, then it may do so.