Halakhah su Isaia 57:5

Preservation of human life is commonly seen as the rationale underlying the ban against induced abortion. Each of the diverse authorities heretofore cited considers the essence of the prohibition to be closely akin to that of homicide. There are, however, other authorities who deem the destruction of a fetus to be unrelated to the taking of human life but nevertheless forbidden on extraneous grounds. Chief among these are the opinions of those who maintain that feticide is precluded as constituting a form of destruction of the male seed or that it is forbidden as a form of unlawful flagellation. R. Shlomoh Drimer (Teshuvot Bet Shlomoh, Hoshen Mishpat, no. 132) contends that the destruction of a fetus cannot be a form of homicide since the fetus cannot be viewed as "a life" in its prenatal state.¹³R. Drimer similarly argues that the a priori principle “How do you know that your blood is sweeter than the blood of your fellow?” cannot be applied in assessing the value of fetal life. Cf. below n. 65. He does not, however, spell out the nature of the crime committed in causing the death of a fetus. The origin of this view can be traced to the Teshuvot ha-Radbaz, II, no. 695, in which the author states explicitly that destruction of a fetus is not a form of homicide. R. Ya'ir Chaim Bachrach (Havot Ya'ir, no. 31), argues that feticide is included in the interdiction against onanism¹⁴This determination is based upon Tosafot, Sanhedrin 59b, and others who maintain that such practices are biblically prohibited. For a comprehensive list of sources, see Oẓar ha-Poskim (Jerusalem, 5725), IX, 163–64, and R. Moses D. Tendler, Tradition, IX (1967), nos. 1–2, pp. 211–12. Regarding the question of whether Noachides are bound by the prohibition against onanism, see Tosafot, Sanhedrin 59b; Mishneh le-Melekh, Hilkhot Melakhim 10:7; R. Naphtali Zevi Yehudah Berlin, He’emek She’elah 165:2; and R. Joseph Rosen, Teshuvot Ẓofnat Pa‘aneaḥ (New York, 5714), no. 30. and reasons that destroying the fetus is within the scope of the verse "slaying the children in the valley under the clefts of the rocks" (Isa. 57:5), which is interpreted by the Gemara, Niddah 13a, as having reference to the destruction of the male seed.¹⁵R. Jacob Emden, She’elot Ya‘aveẓ, (New York, 5721), no. 43, also makes brief mention of this consideration. See also Zekhuta de-Avraham, cited by R. Meir Dan Plocki, Ḥemdat Yisra’el (Pietrokow, 5687), p. 175. The author of Zekhuta de-Avraham offers an identical opinion, adding that feticide and onanism incur the self-same penalty—"death at the hands of heaven."¹⁶Cited by Ḥemdat Yisra’el, p. 175. In his responsum Havot Ya'ir accepts the ruling of Tosafot (Yevamot 12b) that women are also bound by the prohibition against destroying the male seed. He notes that, even according to the view of Rabbenu Tam that women are not included in this specific prohibition,¹⁷It is on the basis of Ḥavot Ya’ir’s declaration that feticide is forbidden as a form of “destruction of the seed” and of the diminished severity of such an act when performed by a woman (according to Rabbenu Tam) that R. Waldenberg counsels that it is preferable to seek a female (Jewish) doctor to perform even those abortions which are halakhically permissible. See Ẓiẓ Eli‘ezer, IX, 235. these practices are nevertheless forbidden to them, for women, too (Tosafot, Gittin 41b), are bound to bring to fulfillment the divine design of a populated world as stated in the words of Isaiah 45:18, "He created it [the earth] not a waste, He formed it to be inhabited."¹⁸Following this line of reasoning, feticide would be biblically forbidden even according to Rabbenu Nissim, who does not consider destruction of a fetus to be a form of homicide.