Ask the Rabbi: May one abort a Tay-Sachs fetus?

By SHLOMO BRODY
October 7, 2011 12:07
4 minute read.
Torah

Torah 521. (photo credit: Fort Worth Star-Telegram/MCT)

 
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Judaism abhors the termination of any life, including that of a fetus. Procreation represents a definitive commandment and the notion that an abortion is simply a woman’s prerogative, advocated in some “pro-choice” circles, is entirely absent from traditional Jewish sources. Nonetheless, the severity of the prohibition of feticide, in the various stages of embryonic development, may create room for dispensations in cases of great need, such as preventing the birth of Tay-Sachs babies destined to suffer and die.

Shortly after detailing the severe punishment for murder (Exodus 21:12), the Torah discusses a case in which a man engaged in a fight accidentally strikes a pregnant bystander and causes a miscarriage (21:22-3).

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If the woman dies, her assailant is punished as a killer, albeit perhaps with a lower grade of punishment (Sanhedrin 79). Yet if the woman remains alive, the assailant must only pay the remunerations offered in cases of battery, even though the fetus was killed.

Interestingly, some early church fathers interpreted the subject of the verse to refer to the fetus, thereby concluding that the assailant is treated like a murderer if a developed fetus is killed. This interpretation gave birth to the “abortion = homicide” equation advocated by some contemporary Christian denominations. The rabbinic tradition did not share this interpretation. In cases of mothers endangered during childbirth, the Sages ruled that once the baby emerges from the womb, it cannot be sacrificed to save its mother (Ohalot 7:6). Beforehand, however, the fetus does not have the status of a fullfledged human (nefesh), and doctors may kill it, even though we would normally do everything to save its life, including violating Shabbat (Erchin 7a-b). This latter dispensation, in turn, highlights the general value we attribute to saving lives, including ones not yet born (Ramban Nida 44a).

While one might contemplate that these sources indicate that there is no definitive prohibition of feticide (Tosafot Nida 44a), this remains implausible since it was included within the seven Noahide laws (Sanhedrin 57b), which perforce also apply to Jews (Tosafot Sanhedrin 59a). As such, it remains prohibited to request or perform abortions not justified by Jewish law, with no distinction between the religion of the patient or doctor (Igrot Moshe CM 2:73:8).

The nature of this prohibition remains debatable. Some scholars asserted that abortion falls under the general prohibition of battery (Maharit 1:97). Others include it within a general rabbinic proscription of preventing the creation of life (Mishpatei Uziel CM 4:46). These lenient assessments might allow for greater exceptions, including cases in which the pregnancy might aggravate preexisting medical conditions that are not life threatening.

In fact, the Talmud asserts that when a pregnant woman is on death row, we kill the fetus before the execution to prevent undue embarrassment to the mother (Erchin 7b).



Consequently, Rabbi Ya’acov Emden allowed an abortion following an adulterous affair that would have produced an illegitimate child (mamzer). Others strongly disagreed, asserting that such dispensations would encourage promiscuity (Havat Yair 31) and that the death row fetus was killed because it would anyway die with its mother (Shut Zera Emet YD 2:116).

The majority of scholars, however, view feticide as a lower-level form of murder that is allowed only to save the mother’s life. In that case alone, we treat the fetus as a rodef, a potential assailant (Noda Beyehuda Tanina CM 59) and assert that “the mother’s blood is redder than the fetus’s” (Melamed Leho’il YD 2:69). Otherwise, abortion remains a grave offense that is possibly included in the cardinal sins for which a person should die rather than transgress (Maharam Schick YD 155).

Even according to the stringent school, one potential mitigating factor might be the stage of pregnancy. When a fetus is within the first 40 days of conception, some sources indicate that Halacha does not yet treat it as a life force (Yevamot 69b), with other sources indicating that we do not recognize the pregnancy for the first trimester (Nida 8b). While a few scholars insist we recognize life from conception (Shevet Miyehuda 1:9), many disagree and assert that there is greater room for leniency, particularly during the earlier period (Seridei Esh 1:162). On this basis, Rabbi Shlomo Auerbach allowed the termination of a Tay-Sachs fetus diagnosed within the first 6 weeks of pregnancy (Nishmat Avraham CM 425).



Prenatal diagnosis of Tay-Sachs, however, frequently occurs after the first trimester. At this stage, Rabbis Auerbach and Moshe Feinstein (Igrot Moshe CM 2:69) both prohibit aborting this Tay-Sachs fetus or even testing for the disease, lest it encourage terminating the pregnancy. However, Rabbi Eliezer Waldenburg, citing sources from the lenient school, allowed aborting such a fetus until the seventh month of pregnancy to prevent the infant from suffering (Tzitz Eliezer 13:102).

Fortunately, such dilemmas are preventable today if couples perform proper genetic testing before getting married or having children.

It is a societal imperative to encourage such screening to prevent undue suffering.

The author, online editor of “Tradition” and its blog, Text & Texture (Text.Rcarabbis.org), teaches at Yeshivat Hakotel.

JPostRabbi@yahoo.com

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