Selected Reform Responsa

mother. From this we might conclude that an unborn fetus or infant is not considered a being, and may, if necessary, be destroyed. Yet even so, in this case, the permission is given only to save the mother. Still, Rashi by his explanation raises the possibility that we need not be too strict about saving an unborn child. In fact, there is some assistance to this point of view from the law(codified in Hoshen Mishpat 423), that if a man happens to strike a pregnant woman and the child is destroyed, he has to pay money damages for the harm to the mother and the loss of the child. But why should he not be guilty of a capital crime, having killed the child? Evidently one would conclude that the unborn child is not a nefesh in the sense that killing it would be a capital crime. Joshua Falk (16th-17th century), in his classic commentary Me-irat Enayim. to the passage in Hoshen Mishpat 425(end of his section 8), develops the opinion of Rashi and says clearly,“While the fetus is within the body of the mother it may be destroyed even though it is alive, for every fetus that does not come out or has not come out into the light of the world is not described as a nefesh.” He proves this from the case of a man who strikes a pregnant woman and destroys her unborn child. The man must pay damages, but is not deemed a murderer, which he would be if the fetus were considered a nefesh. Similarly, in Arakhin 7a, if a pregnant woman was condemned to death, she was smitten in the front of her body so that the child should die before she was executed. This, too, would indicate that it is at least no capital crime to slay unborn children. However, the cases mentioned above are mitigated by various arguments given in the literature, and the actual law is that a fetus may not be destroyed, as is seen in the following: The Talmud , in Sanhedrin 57b, gives the opinion of Rabbi Ishmael that a Ben Noah (i.e., a non-idolatrous non-Jew) is forbidden to destroy a fetus. It is a capital crime if he does it. The 7osafot to Hulin 33a say that this indicates that a Jew is not to be put to death(as a Ben Noah is) if he destroys a fetus; nevertheless, continue the Tosafot, while it is not capital crime for a Jew, it is still not permitted for him to do so.