Abortion in Halacha: Sources and Psak הפלה מלאכותית

איסור הריגת עובר The prohibition of abortion and various reasons

Rav Eliezer Melamed, Peninei Halacha

As we have seen, if a pregnancy endangers the mother’s life, she may abort (m. Ohalot 7:6). There are other scenarios in which the permissibility of an abortion is less clear, for example, in a case where the mother’s life is not at risk but carrying to term might lead her to go blind or deaf, or if prenatal testing shows that the fetus is ill and will live a life full of suffering. These questions have arisen in our era, now that medicine can tell us a great deal about the fetus.

This question is a matter of dispute among leading poskim. Those who are stringent maintain that the prohibition against abortion is an offshoot of the prohibition against murder. Although we have seen that a fetus is not yet considered a living human being, it is nevertheless developing into one and can already be considered alive to an extent. Therefore, one who destroys a fetus transgresses an offshoot of the prohibition against murder. Just as it is prohibited to perform euthanasia, so it is forbidden to perform an abortion. Only in a case where the pregnancy endangers the life of the mother is it permissible to destroy a fetus (R. Unterman, No’am 6). R. Moshe Feinstein goes so far as to say that since aborting a fetus is considered like murder, only when it is almost certain that the fetus will cause its mother’s death is abortion permitted in order to save her (Igrot Moshe, ḤM 2:69).

In contrast, many poskim maintain that the prohibition against abortion is not an offshoot of murder. Some say that abortion is forbidden because of ḥavala (the prohibition to cause bodily harm); just as it is forbidden for a person to cut off one of his limbs, so too it is forbidden to kill a fetus, which is a limb of its mother (Responsa Maharit 1:97; Amud Ha-yemini §32). Others say that abortion is forbidden because of hashḥata (wanton destruction), based on a fortiori reasoning: if it is a grave sin even to waste seed (hashḥatat zera), clearly it is forbidden to kill a fetus that has already begun to develop (Ḥavot Ya’ir §31). Others offer a conceptually similar rationale: we are commanded to be fruitful and multiply, so abortion is prohibited on the grounds that it prevents such growth and procreation (Mishpetei Uziel, ḤM 4:46). According to all of these opinions, since abortion does not constitute a form of murder – one of the most severe prohibitions – it is permissible to perform an abortion in very difficult circumstances, just as it is permissible to amputate a limb in order to preserve a patient’s overall health (Tzitz Eliezer 9:51:3:3).

Even though it emerges from the discussions in the Talmud, Rishonim, and Aḥaronim that the prohibition of abortion is not as severe as an offshoot of murder, many poskim nevertheless rule strictly: some because of the great value of life that exists in potential within the fetus, and others because they do not rely on the opinions of doctors. Practically speaking, even though there is a tendency to rule restrictively in cases of uncertainty vis-à-vis such weighty issues, in this case it is proper to rule leniently, because forbidding abortion in such cases can cause terrible suffering, both to the parents and to the unborn child. Families sometimes break apart under such strain. Therefore, under such extremely pressing circumstances, we can rely on the lenient opinions, as their position is better grounded in the sources. This is the inclination of my teachers, the heads of Yeshivat Merkaz Ha-Rav. Still, every such case must be carefully considered by a Torah scholar who understands the halakhic issue and has obtained the expert opinion of a God-fearing doctor.^[4]

[4]. Those who adopt the stringent view reason that the prohibition of abortion for non-Jews is an offshoot of murder according to the plain meaning of the Talmud (Sanhedrin 57b):

Yishmael is quoted as saying: “[A non-Jew is put to death] even for [killing] a fetus.” Whence is this derived?… It says, “Whoever sheds the blood of a person in a person – his blood shall be shed.” Who is a person in a person? A fetus.

As we saw above, there is a general principle that “nothing is permitted to a Jew but prohibited to a non-Jew” (ibid. 59a). Thus, if a non-Jew is forbidden to abort because it is a type of murder, this applies to a Jew as well (R. Unterman, No’am 6; Igrot Moshe, ḤM 2:69). As discussed in n. 1, some also extrapolate from Rambam’s characterization of the fetus as a rodef (MT, Laws of a Murderer 1:9) that it would otherwise be considered an offshoot of murder. R. Menashe Klein rules this way (Mishneh Halakhot 6:204 and 9:328). See n. 1, where we present several explanations of Rambam that are at odds with this conclusion, so this ruling cannot be used as precedent for the restrictive approach. Some ruled in accordance with the restrictive approach due to the severity of the issue, not because they deemed abortion to be murder; these include R. Yosef Shalom Elyashiv and R. Shlomo Zalman Auerbach (Nishmat Avraham, ḤM 425:1:1). Rabbi Shmuel Wosner rejects the position of Igrot Moshe that abortion is a type of murder, but only permits abortion if the mother’s life is potentially at risk (Shevet Ha-Levi 7:208 and 9:266). Others added another consideration: it is problematic to rely on doctors’ recommendations in this area, because there are many cases of false positive diagnoses of defects and abnormalities. R. Ovadia Yosef is hesitant to permit abortion for this reason, as well as because of the possible Torah transgression involved (Yabi’a Omer, EH 4:1).

According to R. Moshe Feinstein, abortion is permitted only when the mother is in grave danger and will almost certainly die unless she aborts (Igrot Moshe, ḤM 2:69). However, it seems that most poskim who adopt the restrictive approach would permit an abortion if the woman’s life is at risk, even if it far from certain that she will die, as we cite in sections 5 and 12 in the name of R. Elyashiv and R. Auerbach regarding a woman whose mental health is in jeopardy. They ruled similarly about fetal reduction, as cited in section 14 and n. 13 below. Likewise, R. Yitzḥak Yaakov Weiss permitted abortion in a case where the pregnancy would have caused the mother to go blind, because the Sages say (Avoda Zara 28b) that danger to one’s eyes constitutes danger to one’s life (Minḥat Yitzḥak, Likutei Teshuvot §138).

In contrast, those who are permissive maintain that the fetus is not yet considered a living human being. As evidence they cite the mishna (Nidda 5:3) that implies that a fetus does not inherit and cannot become impure, and one who kills it is not liable to the death penalty, and the mishna that permits abortion during a difficult labor (Ohalot 7:6): “If a woman is suffering from a difficult labor, we cut up the fetus inside her and remove it limb by limb, because her life takes precedence over its life. Once it has mostly emerged, we do not touch it, for we do not discard one life for the sake of another.” Thus, until birth, a fetus is not considered a living human being. Another mishna states: “If a woman is about to be executed, they do not wait for her to give birth before carrying out the sentence” (m. Arakhin 1:4). The Talmud elaborates: “R. Yehuda says in the name of Shmuel: ‘A woman who is about to be executed is struck in the abdomen so that the fetus will die before the execution, and thus she will not be degraded’” (Arakhin 7a). Rashi explains: “If some life were to remain in the fetus, it will emerge after the mother’s death, which is degrading.” The mishna continues: “If the woman is already in labor, we wait for her to give birth before executing her.” The Talmud clarifies: “Why? Because once the fetus detaches (from the uterus), it is a separate corporate entity.” We see from Shmuel’s statement that even when a woman is at the end of her pregnancy and the fetus could easily be saved after her execution, it is permissible to kill the fetus first, simply to avoid the possible degradation of the mother’s corpse. This proves that the fetus is not considered a living human being in any way, as it can be actively killed even for a relatively minor need.

In practice, we find that some Aḥaronim permit abortion even in cases where the mother’s life is not in danger. In the past, most discussions of this issue were in the context of whether it was permissible to abort a mamzer. R. Yair Bacharach considers this question: On one hand, he writes that there are grounds to permit aborting a fetus known to be a mamzer. He bases this on the position of Tosafot to Nidda 44a. On the other hand, abortion might be prohibited because of hashḥata. If this is the case, perhaps the abortion of a mamzer should be prohibited in order to deter adultery and penalize sinners (Ḥavot Ya’ir §31). R. Yosef Ḥayim of Baghdad was asked whether a mamzer fetus could be aborted in the fifth month. He did not want to decide the case, but instead summarized various responsa for the inquirer. Reading between the lines, it seems that he was inclined to be lenient. He quoted Ḥavot Ya’ir, which permits when there is a great need. He also quoted Maharit, who prohibits abortion because of ḥavala, but permits it when there is a need (Responsa Maharit 1:97). Based on this, R. Yosef Ḥayim of Baghdad raised the possibility that “if having the baby will disgrace and shame the family, and constitute a desecration of God’s name, having an abortion is considered a great need” and is permissible (Rav Pe’alim, EH 1:4). R. Yaakov Emden permits the abortion of a mamzer since, in principle, a woman who committed adultery is liable to be put to death, in which case her fetus would clearly die as well. He also permits abortion when necessary for the mother’s health, even if the situation is not life-threatening (She’elat Ya’avetz 1:43).

All these responsa discuss a perfectly healthy fetus that could develop into a great Torah scholar, who is considered greater than an ignorant high priest (Horayot 13a). His only disadvantage would be in not being permitted to marry a Jewish-born woman. Yet many permit aborting even such a fetus. They would certainly permit aborting a fetus which, if born, would be incapable of caring for himself and whose life would be full of pain and suffering.

Several other Aḥaronim likewise permit abortion even when there is no danger to the mother’s life. For example, R. Shneur Zalman Fradkin of Lublin notes that there is disagreement about whether abortion is a Torah prohibition or a rabbinic one, but concludes that even if it is a Torah prohibition, abortion is permitted to protect the health and well-being of the mother, even if her life is not in danger (Responsa Torat Ḥesed, EH 42). R. Ben-Zion Meir Ḥai Uziel permitted an abortion for a woman who the doctors believed would become deaf if she were to carry her pregnancy to term. He considered avoiding deafness to be a great need, as losing her hearing is more degrading for her than it is for the executed woman in Arakhin 7a to lose her fetus (Mishpetei Uziel ḤM 4:46). R. Yeḥiel Yaakov Weinberg is also among those who are inclined to be lenient, since the majority of Rishonim do not believe that a fetus is considered a living human being (Seridei Esh, ḤM §162).

Some say that the entire prohibition of abortion is rabbinic. R. Fradkin explains this to be the opinion of Tosafot (to Nidda 44b), Ran, and Raavad. R. Waldenberg arrives at a similar conclusion, based on several Aḥaronim (Tzitz Eliezer 8:36). They apparently maintain that the principle under which “nothing is permitted to a Jew but prohibited to a non-Jew” is upheld even when the prohibition on non-Jews is from the Torah and the prohibition on Jews is rabbinic. In any case, if the prohibition of abortion for Jews is rabbinic, then clearly in cases of great need, it can be permitted.

In my opinion, it must be that the prohibition of abortion for non-Jews, like the prohibition for Jews, is not an offshoot of murder, but is forbidden as an act of injury (ḥavala, as Ḥavot Ya’ir maintains) or destruction (hashḥata, as Maharit argues). Even though the prohibition is derived from a verse dealing with murder (“Whoever sheds the blood of a person in a person”), this means that it is a safeguard against murder, but is itself an act of injury or destruction.

Waldenberg deals extensively with the issue of abortion and concludes, based on several basic principles, that abortion is permissible when there is a great need (Responsa Tzitz Eliezer 7:48; 8:36; 9:51:3; 14:100-101). My rabbi and teacher R. Shaul Yisraeli writes similarly in Amud Ha-yemini §32. R. Yisraeli was once consulted about a case where there was a 25 percent chance that the fetus was abnormal. R. Yisraeli could not bring himself to permit the abortion. However, R. Zvi Yehuda Kook, who heard about the intense worry and pain of the couple involved, permitted the abortion in practice, based on what R. Yisraeli had written. My rabbi and teacher R. Avraham Shapira was inclined to agree with R. Zvi Yehuda. (At first, he told me to broadcast on my Halakha Corner radio program that if a woman is carrying a fetus suffering from Down syndrome, the couple may present the question to a rabbi known to rule permissively in such a case. Later, I heard that he himself ruled permissively.)

The earlier the stage of the fetus’s gestational development, the more room there is for leniency in allowing an abortion. Conversely, the more developed the fetus is, the higher the degree of life it exhibits, and even the most lenient opinions would permit abortion only in more drastic cases.

Until forty days have passed since conception, the fetus’s organs have not yet begun to form, and it does not yet even have the status of a fetus. Consequently, if a woman aborts or miscarries her fetus within the first forty days, if she subsequently bears a son, he has the status of “firstborn,” as the earlier fetus is considered “mere water” (Yevamot 69b). Based on this, even some of those who adopt the stringent view permit abortion during the first forty days in a case of great need.^[5]

[5]. We desecrate Shabbat to save a fetus even when it is less than forty days old. This is because the fetus can develop into a human being, and, as the Sages say, “Desecrate one Shabbat on his behalf, so that he can observe many Shabbatot” (Yoma 85b; Behag; Rambam; Peninei Halakha: Shabbat 27:3; 9:1 above).

Nevertheless, the Talmud states that a kohen’s daughter carrying the baby of a non-kohen (to whom she is not married) is still considered part of the kohen’s household and may therefore still eat teruma during the first forty days of pregnancy, since the fetus is considered “mere water.” However, once the fetus is older than that, it has status, and she may no longer eat teruma (Yevamot 69b).

The laws that determine who is a firstborn reflect a similar principle. An oldest son, born after a previous pregnancy ended with an abortion or miscarriage within forty days of conception, has the status of a firstborn, for it is only after forty days that a fetus becomes substantial and begins to develop organs. Before this, it is insubstantial (SA YD 305:23). Doctors today know that in a normal pregnancy, the fetus’s organs have not begun to form by day forty; they only begin to take shape after day 42. It is important to note that doctors normally calculate the beginning of a pregnancy from the day the woman got her last period, though conception generally occurs at least fourteen days later, at the time of ovulation. In contrast, the forty days are counted from conception, that is, the union of the sperm and ovum. When an abortion or miscarriage takes place more than forty days after conception, but the fetus stopped developing beforehand, the status of the subsequent child hinges on the fetus’s developmental stage. If it had not yet reached the development expected by day 41, a subsequent firstborn son must have a pidyon ha-ben (redemption of the firstborn). If there is uncertainty, the son is redeemed, but without a berakha.

In practice, since a fetus is considered “mere water” for the first forty days, those who are lenient and allow abortion in cases of great need would be lenient for less pressing needs in that early stage. We see this clearly in Responsa Be-ohala Shel Torah (1:115), where R. Ariel writes that an unmarried pregnant woman who finds it too difficult to give her child up for adoption may abort her pregnancy until day forty (likewise, Responsa Bnei Banim 3:38). Moreover, some poskim who tend to be restrictive about abortion in general, such as R. Shlomo Zalman Auerbach, are more permissive during the first forty days in cases of need (Nishmat Avraham, ḤM 425:1 n. 4, writing about Tay-Sachs). Nevertheless, some are as restrictive about abortion before the fortieth day as they are about after. In their view, the primary consideration is that the fetus is a potential human being on whose behalf we permit desecration of Shabbat (R. Unterman; Igrot Moshe, ḤM 2:69 is inclined to agree with him). See below, section 11 and n. 10.
Ḥayim Ozer Grodzinski writes that non-Jews do not commit a capital crime by aborting within the first forty days of a pregnancy (implying that there is no prohibition for them to do so), while there is a rabbinic prohibition for Jews to do so (Responsa Aḥiezer 3:65, at the end). R. Weinberg writes this as well (Seridei Esh, ḤM 162:22). Torat Ḥesed, EH 42:33 agrees regarding non-Jews.

From day 41, since the fetus’s organs have begun to take shape, those who adopt the restrictive approach maintain that abortion may be performed only if the mother’s life may be in danger. Nevertheless, some of those who adopt the restrictive approach maintain that since the woman’s pregnancy is not considered discernible until three months have passed, in cases of great need, abortion can be permitted (several Aḥaronim cited by Yabi’a Omer, EH 4:1).

In contrast, according to those who take the permissive approach, since abortion is not prohibited as a form of murder, it is permitted even after the end of the first trimester in cases of great need. However, the more developed the fetus is, the more compelling a reason is required to permit aborting it. Therefore, couples are encouraged to perform any necessary testing as early as possible, so that if an abortion is necessary it can be done as soon as possible (Tzitz Eliezer 9:51:3; Amud Ha-yemini §32).

Once a fetus is viable, that is, that it could survive on its own if it were born, it is almost impossible to permit abortion, even according to those who take the permissive approach. However, if it is clear that the fetus would not live for more than thirty days even if it were born naturally, then in certain cases some of those who rule permissively would permit abortion.

When pregnancy jeopardizes the mother’s life, all poskim permit abortion; even if labor has already begun, we kill the fetus to save the mother; but once the baby’s head or most of its body has emerged, we do not hurt it, for it is considered a human being, and we do not kill one person to save another (Ohalot 7:6).^[6]

[6]. There would seem to be no differentiation within the period from day forty until the fetus is viable, and indeed, thus states Ḥavot Ya’ir §31. However, we must acknowledge that even those who adopt the permissive approach find it more difficult to permit abortion as the pregnancy advances, because the ḥavala and hashḥata are greater. Therefore, even after forty days have passed, and even according to the permissive approach, it is necessary to expedite medical tests to the degree possible, so that if an abortion is necessary, it will be done as early as possible.

According to those who adopt the permissive approach, even once the fetus has become viable, killing it is not considered murder but rather ḥavala or hashḥata. Presumably, then, for a very great need it is possible to permit its abortion. As we have seen, the Talmud (Arakhin 7a) states that if a pregnant mother is sentenced to death by beit din, they kill the fetus before executing her in order to avoid possible post-mortem degradation. Only if the woman is already in labor do we wait until she gives birth before executing her. However, in practice, even those who are more permissive regarding abortion do not generally permit it once the fetus is viable, since it is closer to being considered a human life. This is also implied by R. Waldenberg, the foremost proponent of the permissive school of thought, who states that from the end of the seventh month and onwards, one must be stringent (Tzitz Eliezer 13:102:5-6). We have also seen (beginning of n. 5) that even some who maintain that abortion is not murder still prohibit abortion unless carrying the pregnancy to term would be life-threatening (Shevet Ha-Levi 7:208). Similarly, even those who are generally lenient are stringent once the fetus is viable. (However, in Tzitz Eliezer 9:51:3 [p. 239, summary point 14], R. Waldenberg writes that the prohibition is most severe when the woman is in labor. This implies that when she is not yet in labor, it is possible to be lenient in very difficult cases even late in pregnancy, as explained above.)

Tay-Sachs is an incurable genetic disorder caused by the lack of the vital enzyme hexosaminidase-A (Hex-A). Those born with the disease begin to lag in their physical and intellectual development starting at about six months old. This is followed by blindness and paralysis, then death, generally by the age of four. Nowadays, testing can determine with certainty whether a fetus has Tay-Sachs. If it does, the question arises: is it permissible to abort?

According to those who adopt the restrictive approach, the prohibition of abortion is an offshoot of the prohibition of murder, and just as it is forbidden to kill a sick person, so too it is forbidden to kill a sick fetus. Thus, it is forbidden to abort a Tay-Sachs fetus (R. Moshe Feinstein in Igrot Moshe, ḤM 2:69). R. Auerbach and R. Elyashiv rule this way as well; however, if the mother’s knowledge that she will give birth to such a sick baby leads to such a terrible emotional state that there is concern for her mental health, even these poskim permitted abortion, because mental illness can be life-threatening, and the mother’s life takes precedence over that of the fetus (Nishmat Avraham, ḤM 425, n. 18). (R. Feinstein does not permit an abortion even then; according to him, abortion is permitted only when it is almost certain that the mother will die.)

In contrast, according to those who adopt the permissive approach, abortion is allowed even when there is no concern that the mother of the Tay-Sachs fetus will become mentally ill, for they do not view abortion as murder, but as ḥavala or hashḥata. If so, it is preferable to prevent the fetus from the terrible suffering that would be its lot; it is better for this fetus not to be born at all. It is also best to spare the mother the terrible anguish of seeing her child suffer, without being able to do anything to help (Amud Ha-yemini §32). Obviously, it is best to perform the abortion as early as possible. However, be-di’avad, R. Waldenberg permits performing this abortion until the seventh month (Tzitz Eliezer 13:102).^[7]

[7]. There is an additional rationale to allow aborting a Tay-Sachs fetus. Since the child would die by the age of four, the reason of “desecrate one Shabbat on his behalf, so that he can observe many [future] Shabbatot” is not applicable. (See section 1 above.)

When possible, it is preferable not to perform an abortion directly using surgery, but rather to do it indirectly by having the woman take a labor-inducing drug. Some poskim maintain that even those who maintain that abortion is a Torah prohibition would agree that an indirect abortion such as this is prohibited only rabbinically, and thus can be permitted when circumstances are pressing. This is the position of R. Yehuda Ayash in Responsa Beit Yehuda, EH 14, and R. Ḥayim Palachi in Responsa Ḥayim Ve-shalom, EH 40. Chemical curettage, which involves administering a lethal drug to kill the fetus in the gestational sac, is also preferable to direct surgical termination, because using a drug might be considered indirect abortion.

As we saw (section 3 above), in practice one may rely upon those who rule permissively in cases of great necessity.

People with Down syndrome have an extra chromosome, which leads to intellectual and physical disabilities of varying severity. They have distinctive builds and facial features, and are at increased risk for certain illnesses and defects, including heart defects and duodenal atresia, infection, and leukemia. Nevertheless, due to advances in medical care, their life expectancy has increased in recent years, and they can live to age fifty and beyond. Their intellectual disabilities generally mean that they cannot live independently, but rather require assistance and support, like young children. Recently, educational methods have been developed which improve their abilities to learn and to function. Some are even able to get married and live in their own homes. (Men with Down syndrome are almost always sterile.) However, even in the best of circumstances, people with Down syndrome require the level of care and support afforded to older children. The question is: is it permissible to terminate a pregnancy when the fetus has Down syndrome?

Those who adopt the restrictive approach maintain that just as one may not take the life of a child with Down syndrome, so too one may not destroy a fetus with Down syndrome. True, someone who kills a child commits a capital crime, while someone one who kills a fetus does not. Nevertheless, since these poskim view the prohibition against killing a fetus as an offshoot of murder, a woman carrying a Down syndrome fetus may not abort.

Even though R. Shlomo Goren permits aborting a fetus with Tay-Sachs, because the child would suffer and die within a few years, he does not permit the abortion of a fetus with Down syndrome. Only when there is a concern that the birth will disrupt the family’s equilibrium and endanger the mental health of one of the parents would an abortion be permitted (Torat Ha-refu’a, p. 192).

Those who adopt the more permissive approach maintain that if it would be difficult for the parents to cope with the hardships involved in raising a child with Down syndrome, and it would cause them great pain, an abortion is permitted. This is because these poskim maintain that abortion is prohibited as a form of ḥavala or hashḥata, so to prevent great suffering on the part of the child and its parents, they would permit an abortion (Tzitz Eliezer 9:51:3; 13:102:6; 14:101-102; Amud Ha-yemini §32). As we said in section 3, under pressing circumstances one may rely on the permissive opinion. However, here we are talking about a problem which does not always justify an abortion. There are families which, despite the tremendous difficulties involved, successfully meet the challenge of raising a child with Down syndrome, and sometimes even grow as a result. Therefore, greater discretion must be exercised, taking into consideration the state of this family, and an outstanding Torah scholar must be consulted.^[8]

[8]. When abortion is permitted, it is preferably performed before the end of the first trimester if possible, for some maintain that the prohibition becomes more severe beginning with the fourth month (Aḥaronim cited by Yabi’a Omer, EH 4:1; see section 4 above). Doctors expect that it will soon be possible to easily assess the state of the fetus within the first forty days. At that point, many poskim who currently rule stringently will permit the abortion of a Down syndrome fetus. However, those who are permissive allow an abortion even when the abnormality is discovered after the first trimester.

Thus far we have discussed cases in which a fetus clearly suffers from a specific condition. However, sometimes all that we can know is that a fetus is at risk of being ill. For example, if the mother contracted German measles in the first month of her pregnancy, there is a fifty percent chance that the child will be born with birth defects. Additionally, sometimes an ultrasound raises a concern that a fetus might have very serious problems, but also may be perfectly healthy.

According to those who take the restrictive view, when we know for sure that the fetus is very sick – and certainly when we are not sure – abortion is still prohibited.

According to those who espouse the permissive approach, since abortion is prohibited as a form of ḥavala or hashḥata, not murder, it is permitted when there is a great need. Therefore, even in an uncertain case, if there is reasonable concern that the fetus has a serious condition that would condemn it to a life full of suffering, abortion is permitted (Amud Ha-yemini §32).

This is relevant when there is no possibility of reaching a clear conclusion regarding the condition of the fetus. But usually, if the parents wait until week twenty and reevaluate the fetus’s condition, the doctors will know much more. Therefore, abortion is forbidden before that point. For example, if the mother contracts CMV (Cytomegalovirus) in her first trimester, the odds are about forty percent that the fetus will contract the virus as well. If the fetus does contract the virus, the odds are about ten percent that it will suffer abnormalities serious enough to warrant abortion according to the permissive approach. Therefore, one must wait until the twentieth week of pregnancy. If it becomes clear that the fetus suffers from serious abnormalities, termination of the pregnancy would be permissible according to the permissive approach (as explained in section 4 and n. 7). As we saw in section 3, in pressing circumstances one may rely on the permissive view, as it is better grounded in the Talmud and halakhic literature.

If a married woman had relations with another man, or was raped and became pregnant, the resulting child is a mamzer or mamzeret and may not marry a born Jew. (Although it is permissible for a male mamzer to marry a female mamzeret and they are each allowed to marry converts, the children of these unions are also mamzerim.) The question is: may a woman abort a mamzer fetus?

R. Yair Bacharach writes that le-khatḥila she may not abort the fetus, despite the fact that Maharil writes that at the brit of a mamzer we do not recite the blessing, “preserve this child to his father and mother,” because we do not want to increase mamzerim among the Jewish people. Nevertheless, le-khatḥila, it is prohibited to harm the fetus (Responsa Ĥavot Yair §31). This implies, though, that in a case of exceptional pain and dishonor to the family, it is permissible. According to Maharit, who maintains that abortion is prohibited because of ḥavala and is permissible when there is a great need (Responsa Maharit 1:97), it seems that preventing the birth of a mamzer can be considered a great need. The eminent R. Yosef Ḥayim of Baghdad was asked whether a married woman who became pregnant from an extramarital affair could take a potion that would cause her to miscarry. He did not want to rule on the matter himself, but he copied the words of Ḥavot Ya’ir, which implies that le-khatḥila it is prohibited, and cited Maharit and She’elat Ya’avetz (1:43) as permitting an abortion in such cases (Rav Pe’alim, EH 1:4). Even though he himself did not want to decide, what he wrote suggests that he was inclined toward the lenient opinion. R. Uziel also writes that a woman may abort a mamzer (Mishpetei Uziel, ḤM 4:47).

According to those who maintain that abortion is prohibited as an offshoot of murder, aborting a mamzer is certainly prohibited. As we said in section 3, though, the primary halakhic position is the more permissive one.

An unmarried woman with an unplanned pregnancy may not abort her perfectly healthy fetus. However, in pressing circumstances, when the pregnancy is likely to cause her psychological difficulties, abortion can be permitted within the first forty days from conception. As we saw above (section 4), according to most poskim, within the first forty days of pregnancy the organs of the fetus have not yet formed, and the more stringent laws of a fetus do not yet apply. It is best to end the pregnancy via oral medication or similar methods, so that the abortion is performed indirectly, thereby reducing the severity of the prohibition (as explained in n. 8).

Once the fetus has reached the 41st day, even if the pregnancy is causing the woman psychological difficulties, she may not abort. Even if she knows that she will be unable to care for the child, whether because of embarrassment or finances, she still may not abort. Rather, she should give the child up for adoption. Even according to those who maintain the more permissive view on abortion, permission is granted when the fetus is sick or its life would involve continuous suffering; here, however, the fetus is healthy, so abortion is prohibited. It is well known that there are many good people who are interested in adopting babies, so the child can have a good life. Still, if the case involves a young woman whose parents and teachers think will lose her way and have trouble building a solid family, there are grounds to consult a wise Torah scholar.

In reality, there is no need to reach the point where such a question must be posed. There is a simple solution. Any woman who is raped or seduced should go straight to a doctor and get a prescription for the “morning after pill” that prevents pregnancy when taken within three days of having sexual relations. Alternatively, if an IUD is implanted within a day of a rape, it prevents pregnancy. It would seem that all would agree that a rape victim may do either of these, since they certainly do not involve killing a fetus. Rather, they prevent a pregnancy from occurring. This is an opportunity to stress the critical importance of an open mother-daughter relationship, which will allow a daughter to turn to her mother for help if difficult situations arise.^[11]

During the first three days following sexual relations, these measures are considered contraception, not abortion. There is support for this in the Talmud, which states, “For the first three days, a person should petition [God] for mercy, so that it does not putrefy” (Berakhot 60a). Rashi comments: “‘So that it does not putrefy’ – namely the seed; rather it should be accepted and become an embryo.” This is reflected in the rulings that appear in Nishmat Avraham (ḤM, 425:1 n. 27) in the name of R. Auerbach and R. Neuwirth. In my opinion, there are stronger grounds to permit abortion during the first fourteen days than during the rest of the forty days, because the woman is not yet expecting her next period, and the pregnancy is not yet detectable.

As we saw (section 1), if a pregnancy endangers the mother’s life, she may abort. However, poskim disagree concerning cases in which the pregnancy is not life-threatening, but rather exacerbates a preexisting condition, like if the mother already has an aural or ocular condition that pregnancy will intensify, possibly leaving her deaf or blind. Alternatively, the pregnancy will worsen an illness that does not threaten her life, but causes terrible pain. Those who adopt the restrictive approach prohibit abortion in such cases (Igrot Moshe, ḤM 2:69; Shevet Ha-Levi 7:208 and 9:266), whereas those who adopt a more permissive approach allow it (Torat Ḥesed, EH 42:32; Mishpetei Uziel, ḤM 3:46; Tzitz Eliezer 9:51:3).

Sometimes pregnancy can jeopardize the mother’s mental health. In such a case, some poskim rule that even those who adopt the restrictive approach would permit abortion, since mental illness can be life-threatening and cause one to become suicidal (Levushei Mordechai, ḤM §39; R. Shlomo Zalman Auerbach). Recently, effective medications have been developed to treat many psychiatric disorders. Therefore, if a psychiatrist says that the mother can be medicated so that she will not become suicidal, she may not abort (Nishmat Avraham, ḤM 425, n. 12).

According to the more permissive approach, abortion can be allowed if the pregnancy would cause tremendous emotional anguish, even if there is no concern that it will lead to suicide. In practice, every question of this sort requires a couple first to consult with a God-fearing mental health professional and then to ask a wise person based on the assessment obtained.

It is forbidden to abort for financial concerns. Even when a couple believe that their financial situation will not allow them to raise another child, they may not terminate the pregnancy. Even those who adopt the more permissive approach maintain that aborting for financial or social reasons is a grave transgression. Zohar states that one who causes a fetus’s death demolishes what God constructed, causes weeping in heaven, distances the Divine Presence from this world, and increases the world’s troubles (Zohar II 3b; Tzitz Eliezer 7:48 and the end of 9:51:3).

If a pregnant woman has an aggressive form of cancer, she may abort, because pregnancy causes cancer to metastasize more quickly. Even if the abortion will not save her life, but only slow the spread of the disease and prolong her life by a few months, she still may undergo an abortion, because her life takes precedence over that of the fetus. Moreover, even the temporary prolonging of life is important, as we see from the fact that we desecrate Shabbat to extend the life of someone sick or dying (She’elat Yeshurun §39). It would seem that even those who adopt the restrictive approach would agree with this. Even if there are some who maintain that it is still forbidden to abort the fetus directly, they would still permit the mother to undergo conventional chemotherapy treatment, even if it will indirectly cause the death of the fetus (see Nishmat Avraham, ḤM 425:1, n. 15.)

Nonetheless, if the woman wishes to continue her pregnancy, she may, even though it will hasten her death, and even though people are generally obligated to do whatever they can to prolong their lives. In this case, where the goal is to sustain the life of the fetus she is carrying, she may continue her pregnancy (Tzitz Eliezer 9:51:3).