WHEN IS ABORTION PERMITTED? Walter Jacob

QUESTION: Assuming that abortion is halakhically permitted, is there a time span in which abortion may take place according to tradition?(Rabbi A. Klausner, Yonkers , NY )*

ANSWER: Let us begin by looking at this assumption. There is currently considerable difference of opinion among Orthodox authorities about the permissibility of abortion as well as circumstances and time when it would be permitted. The laws have been analyzed by a growing number of scholars(V. Aptowitzer in the Jewish Quarterly Review[New Series], Vol. 15, pp. 83 ff; David M. Feldman, Birth Control in Jewish Law; Robert Kirschner,"The Halakhic Status of the Fetus with Respect to Abortion," Conservative Judaism , Vol. 34, No. 6, pp. 3 ff; Solomon B. Freechof,"Abortion" in W. Jacob, American Reform Responsa,#171; Noam, Vols. 6 and 7, etc.). The fetus is not considered to be a person(nefesh) until it is born. Up to that time it is considered a part of the mother's body, although it does possess certain characteristics of a person and some status. During the first forty days after conception, it is considered"mere fluid"(Yeb. 69b; Nid. 3.7, 30b; M. Ker. 1.1).

The Jewish view of the nature of the fetus is based upon a statement in Exodus which dealt with a miscarriage caused by men fighting and pushing a pregnant woman. The individual responsible for the miscarriage was fined, but was not tried for murder(Ex. 21.22 f). We learn from the commentaries that payment was made for the loss of the fetus and for any injury done to the woman. Obviously no fatal injury occurred to her. This was the line of reasoning of the various codes(Yad Hil. Hovel Umazik 4.1; Shulhan Arukh Hoshen Mishpat 423.1; Sefer Meirat Enayim Hoshen Mishpat 425 8). If this case had been considered as murder, the Biblical and rabbinic penalties for murder would have been invoked.