Halakhah su Esodo 21:12

It may readily be inferred from this statement that destruction of the fetus is prohibited in situations not involving a threat to the life of the pregnant mother. Incorporation of the justificatory statement "for her life takes precedence over its life" within the text of the Mishnah indicates that in the absence of this consideration abortion is not sanctioned.³This inference is not formulated explicitly by the Tosafot cited but is mentioned in passing by R. Ya’ir Chaim Bachrach in his Teshuvot Ḥavot Ya’ir, (Frankfort a. M., 5459), no. 31. The omission of this inference is perhaps intentional on the part of Tosafot since such omission is consistent with a distinction drawn by Tosafot, Niddah, 44a, to the effect that an embryo which has “torn itself loose” from its normal uterine position before the death of the mother enjoys inheritance rights with respect to the mother’s property and passes on such rights to its heirs. This provision is based on the premise that the fetus’ death is deemed to occur after that of the mother. One might therefore argue that “tearing itself loose” marks the stage at which the fetus is sufficiently viable to be accorded human status. Since the Mishnah refers to a woman who is in “hard travail,” there is no evidence therefrom that an embryo in earlier stages of development, i.e., prior to having commenced the process of parturition, is accounted sufficiently human to render its destruction an offense.
Ḥavot Ya’ir endeavors to demonstrate that prenatal life is inviolate even at earlier stages of fetal development on the basis of the talmudic discussion concerning the execution of an expectant mother who has incurred the death penalty. The Mishnah (Erukhin 7a) rules that the execution must be deferred until after the child’s birth only if the convicted mother has already “sat on the birth stool,” which the Gemara defines as being synonymous with the fetus’ “tearing itself loose.” Prior to this, execution is not delayed in order to preserve the unborn child. With regard to this inference the Gemara queries, “Peshita! gufah he—Of course! It [the fetus] is an organic part of her [the mother’s] body.” Ḥavot Ya’ir reasons that since the Gemara adds the phrase gufah he in formulating its question, one must conclude that the reason that the child is consigned to the same fate as the mother is that it is an organic part of her body. The logical inference is that were this rationale to be lacking, it would be forbidden to cause the death of the unborn fetus. For a conflicting inference which ignores this point, see R. Joseph Trani, Teshuvot Maharit (Fürth, 5528), I, no. 99.
For further discussion of the nature of the prohibition against feticide, see the sources cited by R. Chaim Chizkeyahu Medini in his Sedei Ḥemed (New York, 5722), I, 175 ff, Kelalim, Ma‘arekhet ha-Alef, no. 52, and I, 304 f, Sheyurei ha-Pe’ah, Ma‘arekhet ha-Alef, no. 19. See also the sources cited by R. Shlomoh Abraham Rezechte, Bikkurei Shlomoh (Pietrokow, 5665), Yoreh De‘ah, Hashmatot, no. 9. Tosafot (Sanhedrin 59a; Hullin 33a) states explicitly that feticide, although entailing no statutory punishment, is nevertheless forbidden.⁴Despite these two unequivocal statements, the language employed by Tosafot, Niddah 44b, led R. Zevi Hirsch Chajes to note in a gloss, ad locum, that Tosafot in Niddah expresses a contradictory opinion. Writing much earlier both Ḥavot Ya’ir in the above cited responsum and R. Jacob Emden in a gloss (Niddah 44b) state without elaboration that Tosafot does not intend to express a permissive ruling but simply employs misleading phraseology. R. Jacob Emden adds in wonder, “Who is it that permits the killing of a fetus without reason?” See also the gloss of R. Shlomoh Eger ad locum. A close examination of the line of reasoning employed by Tosafot shows that the conclusion reached by Mahariḥ Ḥajes cannot be suported. Tosafot contends that the absence of statutory punishment with regard to the crime of feticide applies only to cases where the mother is alive at the time of destruction of the fetus; when, however, the mother’s death precedes that of the fetus, Tosafot advances a tentative assertion to the effect that the fetus is independently viable and hence the killing of the fetus in such instances carries the full penalty for murder. If this is not the case and “it is permitted to kill the fetus,” queries Tosafot, why is it then permissible to violate the Shabbat by carrying a knife through a public thoroughfare for the purpose of removing the fetus from the womb of its deceased mother? A literal reading indicates that, according to Tosafot, dispensation for the desecration of the Sabbath can be rightfully invoked only in order to preserve such lives which it is forbidden to destroy. For if the life in question may be destroyed deliberately, why then should the Sabbath be desecrated in order to save that which otherwise may be destroyed with impunity? Interpreted in this manner, there is no continuity whatsoever between this query and the previous assertion pertaining to the penalty for taking the life of an unborn child. Feticide might well not entail the punishment of homicide yet nevertheless constitute a moral offense, albeit an unpunishable one. Furthermore, Tosafot’s refutation of this assumption is unclear if understood in the context of Mahariẓ Ḥajes’ analysis. Tosafot negates the prior assumption by asserting that for the purpose of saving a life the Sabbath may be violated even if the life saved be that of one “whom it is permissible to kill.” As evidence for this conclusion Tosafot cites the rule with regard to a goses be-yedei adam (one who has suffered a mortal wound, humanly inflicted), for the prolongation of whose life the Sabbath may be violated although “one who murders him is not culpable.” According to Mahariẓ Ḥajes’ understanding of the earlier remarks of Tosafot, the latter statement provides no substantiating evidence whatsoever. The status of a murderer of a goses be-yedei adam is clear: The killing is forbidden but carries no statutory punishment. Since it is forbidden to take his life, there is no question regarding the permissibility (according to Tosafot, but cf. Teshuvot Shevut Ya‘akov, no. 13) of violating the Sabbath on his behalf; the absence of statutory punishment is deemed irrelevant. The issue in question, according to Mahariẓ Ḥajes, is solely that of the desecration of the Sabbath on behalf of a life (viz., that of a fetus) which might be destroyed with impunity. Tosafot endeavors to disprove the contention that it is somehow incongruous to sanction the desecration of the Sabbath in order to preserve that which there is not only no obligation to preserve but which may even be summarily destroyed. Indeed, the logic of this entailment is so strong that it is difficult to fathom its refutation. However, R. Shlomoh Drimer, Teshuvot Bet Shlomoh (Lemberg, 1891), Ḥoshen Mishpat, no. 120, adopt a contrary view, reasoning that despite the prohibition against feticide, and despite a positive injunction to preserve the embryo, the Sabbath may be violated on behalf of an unborn child by application of the principle “Better to violate one Sabbath in order to observe many Sabbaths.” If, on the other hand, we understand Tosafot’s position in Niddah to be identical with that espoused by Tosafot in Sanhedrin and Ḥullin, the line of reasoning is most clear. In support of the assertion that the destruction of a fetus which has been preceded by the death of the mother incurs the full penalty of murder, Tosafot endeavors to show that the desecration of the Sabbath is sanctioned only in order to save a life which it is not only forbidden to destroy but which, if unlawfully destroyed, is juridically punishable as a capital crime. This hypothesis is subsequently rejected by Tosafot with the argument that the killing of a goses be-yedei adam carries no such penalty, yet the Sabbath may be violated on his behalf. The conclusion, then, is that there is no evidence that the destruction of a fetus whose mother had preceded it in death carries a statutory punishment. That the taking of the life of a fetus is forbidden does not at all come into question according to this understanding of Tosafot.
According to any interpretation, the comparison by Tosafot of a fetus to a goses be-yedei adam defies comprehension. The absence of a statutory death penalty with regard to killing of a fetus is due to consideration of the embryo as not possessing independent animation in the degree requisite for consideration as a “life.” The killing of a goses is not punishable because in the majority of instances the goses would die in any event. The Sabbath may be violated on his behalf because consideration of circumstances surrounding the “majority” of cases are irrelevant when a human life is at stake. Halakhah prescribes such measures even when chances that these measures may be efficacious are dim. The life of a goses is intrinsically human and hence the Sabbath is violated on his behalf even though chances of recovery are remote; at the same time his murderer cannot be put to death due to lack of definite assurance that the victim was viable. This does not provide demonstrative evidence contradictory to the hypothesis that provision for the rescue of a fetus through violation of the Sabbath ipso facto establishes that it is therefore a human life whose destruction is punishable. Cf. R. Yechiel Ya‘akov Weinberg, Seridei Esh, (Jerusalem, 5726), III, 350, n. 7. The approach offered in the name of Rabbi Sternbuch does not appear to resolve this perplexity. Elsewhere we find that according to rabbinic exegesis (Mekhilta, Exod. 21:12; Sanhedrin 84a) the killing of an unborn child is not considered to be a capital crime—an implication derived from the verse "He that smiteth a man so that he dieth, shall surely be put to death" (Exod. 21:12). Tosafot, on the basis of the Mishnah, apparently reasons that although feticide does not occasion capital punishment, the fetus is nevertheless sufficiently human to render its destruction a moral offense.

Most interesting is the sharply contested view advanced by R. Elijah Mizrachi, in his commentary on Exodus 21:12, that in principle feticide and murder are indistinguishable. The biblical ban on murder extends equally to all human life, including, he claims, any fetal life which, unmolested, would develop into a viable human being. In theory, continues Mizrachi, feticide should be punishable by death since the majority of all fetuses will indeed develop into viable human beings.⁷Cf. below, n. 62. In practice it is technically impossible to impose the death penalty because punishment may be inflicted by the Bet Din only if the crime is preceded by a formal admonition. Since some fetuses will never develop fully, a definite admonition cannot be administered because it cannot be established with certainty that any particular fetus would develop in this manner. Noachides, on the other hand, require no such admonition. Therefore, since the major number of fetuses are viable, feticide is to be punished by death under the Noachide dispensation.

A number of objections to Havot Ya'ir's position are raised in later works. R. Meir Dan Plocki¹⁹Ḥemdat Yisra’el, pp. 175 f. expresses the view that with the promulgation of the Sinaitic covenant, Noachides were absolved from the obligation of procreation and also from the prohibition against wanton emission of semen.²⁰See above, n. 14. Granting this point, it follows that according to Havot Ya'ir's reasoning there would be no apparent grounds for denying Noachides the right to commit feticide. Such a conclusion would be contrary to the clear-cut recognition that destruction of a fetus continues to constitute a capital crime under the Noachide code. Havot Ya'ir further states that feticide cannot be punishable by "death at the hands of heaven." Such punishment, he avers, would be incompatible with the exaction of monetary compensation for loss of the fetus, as prescribed by Exodus 21:12, in light of the general rule that a single act cannot result in the infliction of both capital punishment and punitive financial compensation —a principle which R. Nechuniyah b. Hakanah (Ketubot 30a) extends not only to the forms of capital punishment imposed by the Bet Din but to "death at the hands of heaven" as well. Havot Ya'ir arrives at the conclusion that the ban against onanism is operative only with regard to the wasting of one's own seed, since such an act contravenes the obligation "be fruitful and multiply," but is inapplicable with regard to the destruction of fetal progeny other than of one's own parentage.

The commandment on the court (beit din) to kill with strangulation one who is liable: That we have been commanded to kill the transgressors of some of the commandments of the Torah with strangulation, as it is stated (Exodus 21:12), "He who strikes a man and [that man] dies shall surely be put to death." And this one of "One who strikes a man" is one of the ones whose death penalty is with strangulation. Since it is written about it, "[he] shall surely die" - and in the explanation, they, may their memory be blessed, said (Sanhedrin 52b), "Any death penalty stated in the Torah undifferentiated is only strangulation." We have learned that those that are liable for the death penalty do not have repayment, as it is stated (Exodus 21:11-12), "there is no money. He who strikes a man and [that man] dies, etc." - Mekhilta.

Presenting a second argument which would render this practice permissible, R. Israel Lipschutz reasons that Halakhah suspects that each newly born child may be premature and possibly incapable of survival and provides that the child's status remain in doubt until it demonstrates viability through survival for a minimum period of thirty days.⁶⁴A similar reservation concerning the status of an unborn child was voiced by R. Isaiah Pik (as evidenced by the responsum addressed to him by R. Yechezkel Landau, Noda bi-Yehudah, II, Ḥoshen Mishpat, no. 59), who apparently was of the opinion that the general ruling that all infants are considered to be viable does not apply to embryos, since the generalization is based upon observation that such is the case in the preponderant number of instances. The establishment of such a “majority” is especially limited to experience associated with born children. No such observation is permissible with regard to unborn children. Hence this principle, argues R. Pik, must be limited and considered as encompassing only born infants, i.e., stating only that the majority of fully delivered infants are viable. Cf. also the previously cited commentary of R. Elijah Mizrachi on Exodus 21:12. Therefore, argues R. Lipschutz, since there is an objective criterion for granting priority to the life of the mother, the usual principle "on what account is his blood sweeter than yours" does not apply and hence the child may be sacrificed in order to spare the life of the mother.⁶⁵An identical distinction is made by R. Isaiah Pik in a communication addressed to R. Landau and quoted by the latter in his Noda bi-Yehudah, II, Ḥoshen Mishpat, no. 59, and by R. Judah Rosanes, Parashat Derakhim, Derush 17. A similar distinction with regard to tereifah is made by Minḥat Ḥinukh, no. 296. See also Ẓiẓ Eli‘ezer, X, no. 25, chap. 5, sec. 4.
The view expressed by R. Lipschutz concerning the inapplicability of this principle is somewhat problematic in light of Kesef Mishneh’s analysis of Yesodei ha-Torah 5:5. The Gemara, Pesaḥim 25b, states that the principle “Be killed but do not transgress” as applied to an act of homicide is an a priori principle based upon reason alone. If so, questions Kesef Mishneh, what is the basis for the extension of the ruling “Be killed but do not transgress” to a situation in which the victim is singled out and the entire group warned that, if the specified individual is not delivered, all will perish. In such cases the dictates of reason would indicate that it is preferable by far to sacrifice a single life rather than to suffer the loss of the entire group. Kesef Mishneh concludes that the Sages possessed a tradition extending this principle even to cases in which the a priori reason advanced does not apply. See also Aḥi‘ezer, II, no. 16, sec. 5. The distinction both with regard to fetal life and tereifah as drawn by the above cited authorities is rejected by Nodai bi-Yehudah, loc. cit.