Efrat, Israel – “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)

A mother’s right to abort vs. the fetus’ right-to-life remains an explosive issue even today. Jewish law has an ethical, but also a pragmatic, approach to the question of abortion. In this week’s portion, Mishpatim, we learn that a woman who miscarries as a result of being accidentally injured by two men fighting amongst themselves, 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, as noted in the above quote.

The rabbis gleaned from these two cases that a fetus was not considered a life. The basis for this interpretation 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.” (Mishnah Ohalot 7:6)

This view, however, which seems to look upon the fetus as less than life, is not the only one we find among the Sages. In the Talmud, Tractate Erchin, 7a  and 7b, R. Nachman reports in the name of Shmuel that if a pregnant woman dies on the Shabbat before the time of birth, we must do whatever is necessary in order to remove the fetus,  even if it means desecrating the Shabbat. This means that the Sabbath may be violated to possibly save the life of a fetus – that a fetus is considered to be a life!

The ruling of Maimonides (1194-1270) sheds light on the true nature of the fetus, thereby orchestrating the various Talmudic sources. We can’t help but notice that 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 the fetus as long as the fetus is inside the womb, but once the head has emerged, one life is not pushed aside for another life. Maimonides adds an explana¬tion: 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 very same chapter, Maimonides rules that if we come upon a “rodef” (a potential murderer clutching a knife in hot pursuit of someone in desperate flight), we are obligated to do what it takes to stop the pursuer, even if it means killing him.  Now were the fetus to be considered as merely a part of the mother’s body, like another limb or organ, 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.  Hence, 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 of its mother: it is rather 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 also desecrate the Sabbath in order to save this potential soul.

In Judaism, 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 finds that it will be born with Tay –Sachs or a similar disability which will mean that the baby will only live for a brief period, the fetus is not a potential life but a potential “treifa” (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 less which is less serious than the afore-mentioned 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 desire to get rid of an inconvenience, Jewish law would question such a decision and 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 shivah, a congregant asked me to speak to a relative of his --all of 15 years old--  who had gotten pregnant by her boyfriend and was about to go through an abortion. The young mother-to-be agreed to meet, and during the course of the talk she was convinced not to abort her fetus but to give the baby up for adoption once it was born, specifically to this family that had just suffered the tragic loss of the month-old baby.

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