Termination of Pregnancy

One of the difficult questions in halakha is whether a woman is permitted, in certain cases, to abort her fetus. In order to clarify this halakhic-moral issue, we will first explain several principles.

On the one hand, it is clear to all that there is a prohibition against killing a fetus or causing its death. On the other hand, it is clear that as long as the fetus has not emerged from its mother’s womb, it does not yet have the legal status of a living person. It does not inherit from its father as a firstborn, and one who kills it, even though he has violated a prohibition, is not punished for it by the beit din. Only from the moment of its birth is it considered a person, and all the laws that apply to a person apply to it. For example, it can become impure, it can inherit as a firstborn, and one who kills it is liable to the death penalty (Nidda 5:3).

In other words, the fetus has an intermediate status – the status of one who is destined to become a person but is not yet considered a person. Therefore, in a case of conflict between the life of the fetus and the life of the mother, the mother’s life takes precedence over the life of the fetus, and it is permitted to kill the fetus in order to save the mother. For instance, if a woman is having an extremely difficult labor and the doctors estimate that she is about to die from the complications of the birth, in such a case the mother’s life takes precedence over the life of the fetus, and it is permitted to kill the fetus in order to save the mother. As explained in Tractate Oholot (7:6): “If a woman is having difficulty giving birth, the fetus is cut up in her womb and removed limb by limb, because her life takes precedence over its life.” That is, even if only a few moments remain until its birth, since it has not yet been born, it is permitted to kill it in order to save the mother’s life. But from the moment the fetus is born – that is, from the moment its head or most of its body has emerged – it is considered a living person in every respect. Even if the mother faces certain mortal danger, it is forbidden to kill it in order to save her, because “one life may not be set aside for another” – one may not kill a person in order to save his fellow.

In the Talmud (Sanhedrin 72b) the question is raised: the newborn could be regarded as a rodef (pursuer), since it is the one causing the mother’s death; why, then, is it forbidden to save the mother by killing it? The Sages explain that the baby is not to blame for this, for this is the nature of the world, and therefore it cannot be considered a pursuer. And since its head or most of its body has already emerged into the world, it must be regarded as a living person in every respect, and it is forbidden to kill it in order to save its mother.