4. Noahide Laws on Abortion

A WARNING

Any practical questions of abortion must be asked to a competent posek¹. Issues of life and death cannot be determined by most Rabbis, especially those who are experts in the Noahide laws. The question must be asked to an impartial noted authority in Jewish Law [posek]. Any posek capable of ruling on such issues will have expertise in the application of these laws to Noahides far beyond that of any expert or specialist in the Noahide laws.

Abortion is one of the few topics in the Noahide Laws for which there is extensive literature. The downside of so much being written is that even a cursory survey of the literature is far beyond the scope of this course.

Abortion in the Noahide Laws

Abortion falls under the category of murder within the Noahide laws. In Jewish law, abortion is also prohibited. However the details and sources of the prohibitions are different. They are so different that by studying the Jewish laws of abortion it is possible to come to the conclusion that killing a fetus is not murder for Noahides. The Talmud, however, teaches us that this is not so.

Rebbi Yishmael (Sanhedrin 59a)makes an observation on the following verse: (Gen. 9:6.)

One who spills the blood of man; by man shall his blood be spilt.

In Hebrew, this is an odd construction:

           Shofeikh dam ha-adam ba-adam damo yishafeikh

It is ambiguous, able to take a comma in two possible places. The first possibility is:

          Shofeikh dam ha-adam, ba-adam damo yishafeikh

Punctuated like this way, the verse yields the translation we have given above.

However, an alternate punctuation results in an altogether different meaning:

            Shofeikh dam ha-adam ba-adam, damo yishafeikh

One who spills the blood of a person who is within a person, his blood shall be spilt.

Regarding this reading, the Talmud states:

They [the sages] said in the name of Rebbi Yishmael:

           “Noahides are liable for killing a fetus. What is the reason for Rebbi Yishmael? For it states in the verse: ‘One who spills the blood of a person who is within a person, his blood shall be spilt.’ Which is a ‘person who is within a person?’ You would answer that this is a fetus.”

The halacha, Torah law, follows the opinion of Rebbi Yishmael and the sages. Maimonides rules as such, writing:

              A gentile who slays any soul, even a fetus in its mother's womb, is executed as penalty for its death.

At What Point Is Abortion Prohibited?

The contemporary political and religious debates on abortion have hinged upon the definition of embryonic/fetal life. This factor is the most important, yet by no means exclusive, consideration shaping the Torah’s approach to the issue.

The Talmud indicates in many places that the embryo does not have the status of a “fetus” or a living being during the first 40 days following its conception. Rather, the embryo is termed mayim bealma, “only fluid.” This is the halacha and reflects a general principle that Torah law is not concerned with that which is microscopic or barely visible. At this stage in its development, the embryo has no halachic, practical, existence. Therefore, should a Jewish woman miscarry at this stage she is not subject to the impurity described in Leviticus 12:2-5. As well, the spiritual impurities (tumah) associated with corpses are not assigned to a miscarried embryo at this stage. This fact allows for the possibility of abortion during the first 40 days.

However, life is not so simple – after all, it among the Holy One’s greatest creations. The Beer Halachos Gadolos, one of the earliest and most important codes of Torah law, rules that a Jew may transgress Shabbat for the sake of saving an unborn life even during its first 40 days.

The Beer Halachos Gadolos obviously considers the embryo “alive enough” to permit a Jew to transgress Shabbat on its behalf. It appears that there are different definitions of life for different purposes of Torah law.

We must ask: Where is the threshold of life for the sake of the prohibition of abortion?  This is a topic of extensive discussion.

Some poskim have taken a very simple approach: if we are permitted to violate Shabbat to save the embryo, it must be prohibited at that point to abort the embryo. The Chavas Yair writes that it doesn’t make sense for Jews to be allowed to violate Shabbat to save a life that they could voluntarily terminate.

However, the reasons for permitting Shabbat violation for the life of the embryo may be more nuanced.

1)  A legal scholar who decides the Halacha (Laws) in cases where previous authorities are inconclusive or no halakhic precedent exists.