Halakhah do Wyjścia 21:22

Surprisingly, there is one source which appears to rule that destruction of the fetus by Noachides, at least under some circumstances, does not constitute a moral offense. Maharit³⁶Teshuvot Maharit, I, no. 99. writes: "I remember having seen in a responsum of the Rashba that he bears witness that Ramban rendered medical aid to a gentile woman in return for compensation in order that she might conceive and aided her in aborting the fruit of her womb."³⁷The authenticity of this quotation is highly questionable. R. Unterman (p. 8) notes that he searched Teshuvot ha-Rashba in an unsuccessful attempt to locate this responsum. It seems probable that Maharit’s quotation is culled from responsum no. 120 of vol. I in the published text (B’nei Brak, 5718). This responsum deals with the permissibility of rendering medical assistance to Noachide women so that they may be enabled to conceive. In language similar to that quoted by Maharit, mention is made of Ramban’s actually having done so in return for financial compensation. However, no mention whatsoever is made of Ramban’s having assisted in medical abortion. Maharit apparently had a variant textual version. Cf., also, R. Samuel Hubner, Ha-Darom, Tishri 5729, p. 33, who attempts to resolve the issue by suggesting an alternate punctuation of this quotation. It is of course inconceivable that an individual of Nachmanides' piety and erudition would have violated the injunction "Thou shalt not place a stumbling block before a blind person" (Lev. 19:4) or that he would have actively assisted transgressors. Applying the line of reasoning adduced above, Rabbi Unterman draws the conclusion that there is a fundamental distinction between Jewish law and Noachide law with regard to the assessment of potential life. According to many authorities, Noachides are under no obligation to preserve the lives of their fellows, to "be fruitful and multiply" or to refrain from wasting the male seed.³⁸See above, n. 14. They are forbidden to commit homicide and to take the life of "a man within a man" but bear no responsibility for the safeguarding and preservation of seminal life. It would appear, then; that Halakhah holds them accountable only for actual, in contradistinction to potential, life.³⁹R. Unterman fails, however, to note the comments of R. Jacob Zevi Jalish in his Melo ha-Ro‘im, Sanhedrin 57b, who expresses a contrary view. Examination of the phraseology of Ḥemdat Yisra’el, Part I, p. 108, indicates that R. Plocki also had such a distinction in mind. In cases of danger to the mother he permits abortion of embryos of less than forty days without further qualification and adds that there are grounds for permitting abortion at subsequent stages of development provided this procedure is performed by a Jewish physician. Accordingly, there is no objection to Noachides aborting, or to a Jew giving advice and rendering indirect assistance to Noachides in aborting, a fetus within the first forty days of gestation. Since Halakhah considers that during this initial period the embryo has not as yet developed distinctly recognizable organs or an independent circulatory system it cannot be considered "a man within a man" and hence its destruction does not constitute murder under the Noachide dispensation. Nachmanides, Rabbi Unterman avers, sanctioned the performance of abortions by Noachides only within this forty-day period.⁴⁰The absence, in the Noachide Code, of a ban on feticide during the first forty days of gestation would, in the opinion of this writer, provide insight into what is otherwise considered an erroneous translation by the Septuagint of Exodus 21:22–23: “And if two men strive together and hurt a woman with a child so that her children depart and yet no harm (ason) follow, he shall surely be fined. … But if any harm follows, then thou shalt give life for life.” Rabbinic exegesis regards the term “harm” as having reference to the death of the mother. Compensation is payable to the husband for the loss of his offspring only if the mother survives. Should the mother die as a result of this assault, the attacker is absolved from the payment of this fine. From these provisions the Gemara derives the principle that the commission of a capital crime, even if unintentional and hence not leading to the invocation of the statutory penalty, absolves the offender from the payment of any other compensation. The Septuagint, however, renders these verses as follows:
This reading understands the death penalty to which reference is made as being incurred for the killing of the fetus in cases where the fetus is formed, i.e., has already reached the fortieth day of gestation. It is clearly on the basis of this passage in the Septuagint that such a distinction is drawn by Philo (De Spec. Legibus, III, 108–10) and it was this reading of the Septuagint which influenced the attitude of the Church. Cf. Jakobovits, op. cit., pp. 174, 179, 328, n. 43, and 333, n. 152. Samuel Poznanski, “Jakob ben Ephraim ein Antikaraischer Polemiker des X Jahrhunderts,” Gedenkbuch zur Erinnerung an David Kaufmann, ed. M. Brann and F. Rosenthal (Breslau, 1900), p. 186, suggests that the mistranslation is based on reading ẓurah for ason. On the basis of R. Unterman’s thesis, the entire matter is quite readily resolved, particularly in light of the rabbinic tradition which states that modifications were intentionally introduced by the Jewish translators (see Megillah 9a). Addressed to gentiles, the translation may have been intended to incorporate ramifications of Noachide law. Since a Noachide incurs capital punishment for the destruction of a fetus, provided it is formed, he would be absolved from further punishment even in cases where the mother survives. An exhaustive interpretation of ason, then, signifies death of the mother if the attacker is a Jew, and either death of the mother or of a formed fetus if the attacker is a Noachide. The word ason as applied to a Noachide thus includes the death of a formed fetus and is rendered accordingly by the Septuagint. This interpretation is, of course, founded on the premise that the principle of absolution from the lesser of two simultaneously incurred punishments extends to Noachide law as well —a matter which bears further investigation. R. Joseph Babad is of the opinion that the principle “kim leh be-de-rabbah mineh” (imposition of the greater of two punishments to the exclusion of the lesser) does not apply to Noachides. See Minḥat Ḥinukh, no. 34. However, there is basis for assuming that the question is the subject of controversy between Rashi and Tosafot, Eruvin 62a. Cf. Encyclopedia Talmudit (Tel Aviv, 5711), III, 354.

Returning to our central problem, many authorities take a different view with regard to embryotomy in cases where pregnancy endangers the life of the mother by complicating an already present medical condition. Rabbi Weinberg (No'am IX, 204; Seridei Esh, III, 343 f.) offers a radically different approach to the resolution of the complex difficulties surrounding the previously cited statements of Maimonides, Hilkhot Rozeaḥ 1:9, in light of the latter's remarks in Hilkhot Hoveil u-Mazik 8:4. Maimonides rules that although property belonging to others may be appropriated in order to preserve one's own life, compensation must nevertheless subsequently be paid to the lawful owner. Rabbi Weinberg notes that the provision is modified in the event that the property itself is the source of danger (Nizkei Mamon 8:15). The paradigm case is that of the threat to the lives of the passengers sailing on an overly laden ship which is in danger of sinking. One who lightens the load by throwing cargo overboard is absolved from payment of property damages since the cargo itself is deemed to be "a pursuer." Rabbi Weinberg opines that Maimonides invokes this provision in his exposition of the law surrounding danger arising from pregnancy. Maimonides does not resort to the law of pursuit, argues Rabbi Weinberg, in order to justify sacrifice of the life of the fetus; this is warranted on the basis of Rashi's explanation that it is not fully "a human life." Rather, continues Rabbi Weinberg, Maimonides invokes the pursuer argument in order to provide a basis for exemption from satisfaction of the husband's claim for monetary damages normally incurred as a result of destruction of a fetus as provided by Exodus 21:22.

This determination leads Rabbi Uziel to the discussion of an interesting question. A pregnant woman is forbidden to contract a levirate marriage since her deceased husband will no longer remain childless if the pregnancy culminates in the birth of a viable infant. If, however, the widow entered into the marriage with her brother-in-law and later discovered that at the time of consummation she was already bearing the child of her previous husband, the marriage is annulled and a sin-offering brought in expiation of this inadvertent transgression. Why, R. Uziel was asked, is she not advised simply to abort the fetus thereby eradicating her transgression ab initio? Obviation of sin certainly constitutes a "grave need" and fulfills the criterion established by R. Jacob Emden. Rabbi Uziel answers that since the husband enjoys rights of proprietorship with regard to the fetus and is indeed entitled to monetary compensation for its loss (Exod. 21:22), the woman has no right to destroy her dead husband's property in order to absolve herself retroactively from the prohibition against cohabitation with a brother-in-law.