A Fetus Is Not an Independent Life: Abortion in the Talmud

Rabbinic literature offers no systematic discussion of abortion, and whether the act is permissible or forbidden and under what circumstances.^[1] Nevertheless, several rabbinic texts discuss the status of the fetus as well and even abortion in certain specific scenarios, and this allows us to extrapolate on what the classical rabbis’ attitude may have been towards abortion in general.

First 40 Days of Pregnancy: “Merely Water”

The Mishnah states that a fetus miscarried within its first forty days does not induce birth-related ritual impurity, for there is no concern that a child had already been formed:

^{משנה נדה ג:ז} הַמַּפֶּלֶת לְיוֹם אַרְבָּעִים, אֵינָהּ חוֹשֶׁשֶׁת לְוָלָד. לְיוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה.

^{m. Niddah 3:7} [If] a [woman] miscarries on the fortieth day, she need not be concerned about [it being] a fetus. On the forty-first day, she should count [her birth impurity as] for both male and female, and her menstrual impurity.[2]

רַבִּי יִשְׁמָעֵאל אוֹמֵר, יוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וּלְנִדָּה. יוֹם שְׁמוֹנִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה, שֶׁהַזָּכָר נִגְמָר לְאַרְבָּעִים וְאֶחָד, וְהַנְּקֵבָה לִשְׁמוֹנִים וְאֶחָד.

R. Ishmael says: [On] the forty-first day, she should count [her birth impurity as] for a male and her menstrual impurity. [On] the eighty-first day, she should count [her birth impurity as] for both male and female, and her menstrual impurity, since the male [fetus] is completed on the forty-first day, and the female [fetus] on the eighty-first.

וַחֲכָמִים אוֹמְרִים, אֶחָד בְּרִיַּת הַזָּכָר וְאֶחָד בְּרִיַּת הַנְּקֵבָה, זֶה וָזֶה לְאַרְבָּעִים וְאֶחָד.

But the Sages say: The creation of male and female are one and the same— both [are completed] on the forty-first day.

The Mishnah here follows the Aristotelian concept of fetal development (epigenesis), dominant in Hellenistic medicine of the time, that argued that embryos develop distinct parts at forty days for males and three months for females.^[3]

The Priest’s Pregnant Daughter Eating Ritual Food

The Talmud applies this distinction to the law that the daughter of a kohen (priest) from Leviticus 22:13: If she is married to a non-kohen, she may no longer eat terumah (the consecrated food of the kohen), but if she is widowed, and did not have children, she may return to her father’s house and eat terumah again (Mishnah Yebamot 9:6). In this context, Rav Chisda, a third generation Babylonian Amora, discusses the question of pregnancy:

^{בבלי יבמות סט: [מינכן 95]} אמר רב חסדא: "טובלת ואוכלת עד ארבעים יום."

^{b. Yebamot 69b} Rav Chisda said: “She may immerse herself [as purification] and then eat up to forty days [after a possible conception].”

The Talmud then explains the logic behind this ruling:

אי לא מעברא הא לא מעברא. ואי מעברא, עד ארבעים יום מיא בעלמא היא.

If she is not pregnant, she is not pregnant. If she is pregnant, until the fortieth day it [the fetus] is merely water.

In sum, according to the Mishnah and the Talmud, before forty days, the embryo doesn’t have the status of a fetus, since it does not have human form, and thus, ritually, the miscarriage counts as the equivalent of a woman’s period, and the pregnancy counts as nothing. What about after 40 days?

Executing a Pregnant Woman

The rabbis discuss the status of a fetus^[4] in the context of what to do when a pregnant woman convicted of a capital crime is condemned to death. the Mishnah, however, a fetus acquires personhood when its mother is in active labor:

^{משנה ערכין א:ד} הָאִשָּׁה שֶׁהִיא יוֹצְאָה לֵהָרֵג אֵין מַמְתִּינִין לָהּ עַד שֶׁתֵּלֵד. יָשְׁבָה עַל הַמַּשְׁבֵּר מַמְתִּינִין לָהּ עַד שֶׁתֵּלֵד.

^{m. Arakhin 1:4} The woman bound for execution: one does not wait for her until she gives birth. If she has sat upon the birthing seat, one waits for her until she has given birth.^[5]

The implication is that up until she is ready to give birth, a fetus is not considered to be an independent life, and a woman’s execution is not stayed just because she is pregnant. The Tosefta works with a similar assumption:

^{תוספתא ערכין א:ד} האשה שיוצאה ליהרג הוציא עובר את ידה ממתינין לה עד שתלד, שאילו ולדה וולדותיה נסקלין.

^{t. Arakhin 1:4} The woman bound for execution: If her fetus extends its arm [outside her body], they wait until she gives birth.^[6] For if it was still considered just a fetus, it would be stoned [with her].^[7]

Here, only the appearance of a part of the fetus outside the woman gives it a status of independent life, beyond that of a mere fetus.^[8]

They Are One Body: The Talmud

In its discussion of the Mishnah, the Talmud^[9] claims that it is obvious that a mother carrying a fetus is not a reason to stay an execution:

^{בבלי ערכין ז.} פשיטא, חד גופא הוא!

^{b. Arakhin 7a} Isn’t this obvious? They are one body!

The Talmud answers that the reason the Mishnah even considers the possibility of waiting for the baby to be born before executing the mother is because the fetus represents potential financial value to the father, as we see from the Torah’s law that a man who strikes a pregnant woman and kills the fetus must make penalty payment to her husband (see appendix).^[10]

Aborting the Fetus before Execution

Later, the Talmud states that, in order to avoid a spectacle, the court actually has the fetus aborted before executing the woman:

^{בבלי ערכין ז.} אמר רב יהודה אמר שמואל: "האשה שיוצאה ליהרג מכין אתה כנגד בית הריון כדי שימות ולד תחילה כדי שלא תבא לידי ניוול."

^{b. Arakhin 7a} R. Judah said in the name of Samuel: “If a woman is taken out to be executed, they first strike her in the abdomen so that they fetus dies first, to avoid her being disgraced (by a post-mortem miscarriage).”

Again, no concern is expressed about the life of the fetus.

Moved from Its Place

The Talmud also clarifies the reason why active labor marks the independent life of the fetus:

^{בבלי ערכין ז.} מאי טעמא? כיון דעקר גופא אחרינא הוא.

^{b. Arakhin 7a} What is the reason [that we stay the execution once she is in labor]? Since [the fetus] has moved from its place [in the uterus], it is a separate body.

The amoraic term “moved from its place” appears to be synonymous with the tannaitic “seated on the birthing stool” in the Mishnah, both referring to the beginning of active labor. Before that period, the fetus is considered part of the mother.

“A Fetus is the Woman’s Thigh”

The concept of the fetus as part of the woman’s body extends well beyond laws about abortion. Indeed, the Babylonian Talmud has a legal phrase for the principle: עוּבָּר יֶרֶךְ אִמוֹ (ubar yerekh immo), “a fetus is its mother’s thigh.”^[11] This phrase is used in several legal cases involving pregnant animals and woman that have nothing to do with the ethics of killing a fetus.^[12]

A goring cow—According to the Torah, if a cow gores a person and the person dies, the cow is stoned to death, and it is forbidden to get any benefit from (literally “consume”) its carcass (Exod 21:28). The Talmud discusses the question of the status of a fetus, if the cow had been pregnant when it gored the person, and rules that if the calf was born before the court’s judgment, a person is permitted to derive benefit from it, but if it was born after the judgment, it is forbidden, since at the time of the judgment, it was simply a limb of its mother, and thus has the same legal status as its mother (b. Sanhedrin 80a; cf b. Baba Kama 46b).

The fetus of a torn animal—The Mishnah records a debate about whether the fetus of a טריפה “torn animal” (i.e., one that was not killed by ritual slaughter) may be offered as a sacrifice. Rabbi Eliezer says “no” and Rabbi Joshua says “yes” (m. Temurah 6:5). One explanation the Talmud offers for the debate is that Rabbi Eliezer believes that a fetus is like its mother’s thigh and Rabbi Joshua does not (b. Chullin 58a; cf. b. Temurah 30b).

Impurity from a mixture of corpse dust—A corpse causes seven-day impurity, requiring ritual cleansing (the red cow ritual), as does its רקב, i.e., decomposed dust or rot. Nevertheless, the rabbis assert that if two corpses are buried together, the galgallin “mixture” of their decomposed dust does not cause this impurity. Rabbi Jeremiah then asks about the decomposed remains of a pregnant woman: does the fetus in her womb simply count as the mother’s appendage, and thus it is as if only one person was buried there, and thus the corpse dust from this burial place causes impurity? Or, does the fact that babies are eventually born (if they survive) mean that it counts as a separate burial for the purposes of causing impurity? (b. Nazir 51a)

Manumission of slave’s fetus—According to Rabbi Yohanan, a slave cannot accept a document of manumission on behalf of a fellow slave if they have the same master. This contradicts the law that if a master says to his enslaved woman “you are to remain enslaved but your fetus is free,” that the baby thus acquires its freedom upon birth. One of the Talmud’s explanations is that since a fetus is really like the woman’s limb, it is as if she is accepting the manumission for part of her body, not on behalf of another person. (b. Gittin 23b)

From all these places, it seems clear that the rabbinic concept of the fetus as the mother’s appendage goes well beyond the ethics of abortion and reflects an overall worldview that a fetus lacks personhood until the woman goes into active labor.

Desecrating Shabbat to Save a Fetus

That the fetus gains a status of life when the mother goes into active labor is also highlighted in the Talmud’s discussion of saving the life of a fetus by violating Shabbat:[13]

^{בבלי ערכין ז.} אמר רב נחמן אמר שמואל: "האשה שישבה על המשבר ומ[ת]ה בשבת מביאין סכין ומ[ק]ר{ע}ין לה כריסה ומוציאין את הולד."

^{b. Arakhin 7a–b} R. Nachman said in the name of Samuel: “If a woman was seated on the birthing stool and died on the Sabbath, a knife is brought, her belly is opened, and the fetus is removed.”

The Talmud then asks what this Mishnah is adding; we already know the principle that we violate Shabbat to save a life, even in a case that we don’t know for sure whether the person is alive or not. For example, we dig out a person who is believed to be buried in rubble. The Talmud answers:

מהו דתימא? התם הוא דהוה ליה חזקה דחיותא מעיקרא אבל הכא דלא הוה ליה חזקה דחיותא אימא לא? קא משמע לן.

You might have said: there [in the case of the rubble] the person was alive and is presumed to have remained alive; here [in the case of the fetus] there was no such presumption of life, so it teaches us [that the Sabbath is nevertheless to be desecrated].

Samuel’s phrasing of the law—“a woman sitting on the birthstool”—implies that it is active labor that gives the fetus a status of presumed life, permitting the violation of halakha to save its life.^[14]

Abortion During a Dangerous Childbirth

The Mishnah addresses the question of whether an abortion is permissible when the mother’s life is in danger during childbirth:

^{משנה אהלות ז:ו[*ז]} הָאִשָּׁה שֶׁהִיא מְקַשָּׁה לֵילֵד, מְחַתְּכִין אֶת הַוֶּלֶד בְּמֵעֶיהָ, וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נֶפֶשׁ.^[15]

^{m. Ohalot 7:6[*7]} When a woman is in difficult labor, one may cut up the fetus in her womb and take it out limb by limb, for her life takes precedence over its life. Once most of it^[16] has come out one may not touch it, for one may not push aside one soul for another.

The latter part of the Mishnah makes it clear that the fetus is considered an equal life only once it is (mostly) born. Even then, the Talmud grapples with why the baby can’t simply be killed anyway, since it should be considered a rodef, a “pursuer,” i.e., equivalent to a person who chases another with murderous intent, and thus killing it should be considered an act of self-defense.^[17]

The opening case of the Mishnah is often interpreted as a general rule that killing an unborn fetus is only permitted when the mother is in danger. Nevertheless, the Mishnah is specifically about a woman in active labor, at which point the fetus gains a status of independent life, as noted above in the Mishnah about a woman being executed.

Fetuses in the process of delivery but before emerging are on one hand considered an independent life but on the other hand, not yet of equal value to the living, breathing, mother, which is why it may only be killed if it poses a threat to the mother. Thus, this Mishnah does not imply a prohibition to abort the fetus before the woman goes into labor.

Court Authority for an Abortion

The Tosefta discusses a case of a medical abortion gone wrong, which seemingly suggests that court permission is required:

^{תוספתא גיטין ג:יג [צוקרמנדל]} המחתך את העובר במעי אשה ברשות בית דין והזיק בשוגג פטור במזיד חייב מפני תקון העולם:

^{t. Gittin 3:13} If one dismembers a fetus in a woman’s belly with the sanction of the court and causes injury [to the woman], if it was unintentional, he is not liable; if intentional, he is liable for reasons of sound social policy.

The Tosefta does not explain why the abortion is taking place, but it is likely referring to the case in Mishnah Ohalot, in which the mother is having a dangerous birth.^[18] If so, the necessity of obtaining a court’s authorization would be because the mother’s having entered into labor already gives the fetus a status of an independent, if still second-tier, life.^[19]

The Four Stages of the Fetus

If we read these texts in light of each other, a clear picture emerges of a four stage process:

1. Until the fetus is formed—40 days in the Hellenistic medical concept—the fetus has no status at all.
2. From 41 days until the beginning of active labor, the fetus is a part of the mother.
3. At active labor, the fetus is an independent, though inferior, life.
4. Once the head (or more) of the fetus is outside the mother, it is a human life like any other.

While the rabbis never address the question of abortion in the first two stages, nothing in these texts implies it would be forbidden. Certainly, they would not have seen it as a form of murder. Only at stage 3 does the fetus become a life, and even there it has an inferior status to living, breathing people. Only upon leaving the mother’s body, does the baby become a full life in rabbinic thinking, making it equal in value to that of its mother.

Appendix

Causing a Miscarriage

Much of the contemporary debate about the ethics of abortion hinge on whether or not a fetus has personhood. The rabbis, of course, looked to the Bible for answers, but the Bible never discusses purposeful abortion, only miscarriage, specifically as a consequence of assault:^[20]

^{שמות כא:כב} וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים.

^{Exod 21:22} When [two or more] parties fight, and one of them pushes a pregnant woman and the fetus comes out, but there is no ʾāsôn, the one responsible shall surely be punished according as the woman’s husband may exact, the payment to be based on reckoning.

^כא:כג וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ.

^21:23 But if there is ʾāsôn, the penalty shall be life for life.

The Hebrew word אָסוֹן, āsôn means “harm” or “fatal accident,”^[21] but who is being harmed?

Fetus—It could refer the fetus, and the case would be: When the man strikes the woman and the baby comes out early, if it is alive, the assailant only pays a fine to the husband (not the woman!) for the trauma, but if the baby dies, he is executed for killing the baby.

Woman—The other, more likely, possibility is that it refers to the death of the pregnant woman. According to this understanding, the woman miscarries regardless, and the question is only whether the woman dies as a result of the trauma. The verse clarifies that the death penalty is only applicable if the woman is killed, but that the death of the fetus is punished only with a fine, payable to the man whose child this would have been had it lived. According to this reading, the Torah does not attribute personhood or independent status—what the rabbis term nefesh “life”—to the fetus.

No Mortal Harm to the Woman: The Mekhilta

In its reading of the verse, the Mekhilta de-Rabbi Ishmael—a 3^rd century C.E. midrash halakha on Exodus from the Rabbi Ishmael school—entertains the possibility that killing the fetus could be considered killing a person but rejects it:

^{מכילתא דרבי ישמעאל נזיקין ח} "לֹא יִהְיֶה אָסוֹן" – באשה. " עָנוֹשׁ יֵעָנֵשׁ" – בולדות.

^{Mekhilta de-Rabbi Ishmael Nezikin 8} “And there is no mortal harm” (Exod 21:22)—to the woman. “He shall surely be fined” (ibid)—for the fetus.^[22]

A similar midrash appears in the Rabbi Akiva school version of the midrash halakha on Exodus:

^{מכילתא דרבי שמעון בר יוחאי כא:כב} "וְלֹא יִהְיֶה אָסוֹן" – שומע אני אסון באשה או אסון בולדות ת"ל (שמות כא:יב) "מַכֵּה אִישׁ [וָמֵת מוֹת יוּמָת]". פרט לולדות הא מה ת"ל "וְלֹא יִהְיֶה אָסוֹן" באשה ולא בולדות.

^{Mekhilta de-Rabbi Shimon bar Yochai 21:22} “And there is no mortal harm”— Do I take this to mean mortal harm to the woman or mortal harm to the fetuses? A verse teaches (Exod 21:12): “He who strikes a man [and he dies, is surely put to death]”—[the reference to “a man”] excludes fetuses [which do not have personhood yet]. What, then, is the meaning “and there is no mortal harm”? Harm to the woman, not to the fetuses.^[23]

In sum, both Mekhiltot raise alternative readings but definitively reject the possibility that the fetus is treated legally as a life. The only consequence of killing the fetus is a penalty payment. All classic Jewish interpreters follow the Mekhiltot and reject the application of personhood to a fetus.