ABORTION AND LIVE FETUS STUDY Solomon B. Freehof

QUESTION: Since the Supreme Court recently made a decision with regard to abortion, and since, also, there is legislation pending on the question, the Central Conference is considering issuing a statement on this question, as other religious bodies have already done. Specifically, two questions need to be answered: Is there any relation between Jewish tradition on this question and the Supreme Court decision, which makes a distinction between the first three months of pregnancy, the second trimester and the third? Second, what is the attitude of Jewish tradition as to the rights of the fetus if it has been extracted from the womb in a living state?(Rabbi Paul Gorin, Canton , Ohio .)*

ANSWER: The question of abortion has been discussed twice before the Conference, once by Jacob Z. Lauterbach, and the second time by myself. Lauterbach's responsum is, I think, in the Yearbook. My responsum is in Recent Reform Responsa,#41. However, although the matter has already been discussed twice for the Conference, new social conditions have developed, and new governmental decisions have and will be issued. Therefore, there is some need for a rediscussion of the question.

As for the permissibility of abortion, the question revolves around the status of the unborn fetus. Is it a person, as, for example, the Catholic Church would insist, or is it just a part of the mother's body? The almost complete consensus of the classic Jewish tradition is that the unborn fetus is not a person(nefesh). This conclusion is based mainly upon two situations in the law. First, the law of Scripture(Exodus 21:22) that if a man strikes a pregnant woman and thus destroys the child, he must pay damages to the husband. But has he not killed the fetus? Is this not murder? How, then, can the law let him off merely with paying a fine? Clearly, then, the unborn child is not deemed to be a person(nefesh). This law is codified in Shulhan Arukh, Hoshen Mishpat 423; and in the classic commentary to Hoshen Mishpat 425, Joshua Falk , in his Meiras Enayim(end of his sec. 8), says

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