CAESAREAN ON A DEAD MOTHER Solomon B. Freehof

QUESTION: A mother eight months pregnant has died. Does Jewish law permit a Caesarean to be performed on her body to save the child? Or, perhaps even more: Does Jewish tradition recommend or urge such an operation?(Asked by Dr. Thomas H. Redding through Rabbi Leonard S. Zoll. Cleveland , Ohio )*

ANSWER: The question of cutting open the body of a mother who has died in order to remove and thus save the child is discussed as far back as the Talmud itself in Arahin 7a(cf. also B.B. 142b and Nidah 44a). The discussion is based upon the Mishnaic law dealing with a pregnant woman who is condemned to death. Do we delay execution of the sentence until she has given birth or not? In the development of that discussion, Rabbi Samuel(Arahin) extends the discussion from that of a convicted criminal to any woman who dies when she is near to giving birth("a woman on the mashber, the birth-stool, who dies"). In such circumstances, Rabbi Samuel says that we may bring a knife even on the Sabbath (bringing a knife on the Sabbath is forbidden generally), and we may cut open her body to save the child. The discussion there in the Talmud involves the question of whether the child is alive or not, and the Opinion is expressed that generally the child dies immediately(or even before) the mother, and therefore the Sabbath would be violated(by bringing the instruments) in vain, since the child is already dead. But Rashi says: Even in the case of the"doubtful saving of life," we may violate the Sabbath ; and therefore, on the chance that the child may be alive, we bring the knife and perform the operation.

It is exactly in this form that the law is recorded by the great legalist and physician, Moses Maimonides , in his Yad Hilhot Shabbat 2.15. He says: We perform the operation even on the Sabbath , for even When there is doubt whether we are saving a life, we may violate the Sabbath (cf. also Tur, ibid., and Ephraim Margolis , Yad Efrayimto Orah Hayim 320).