The Fetus in Jewish Law
Does a fetus have the same legal status as a person?
Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.
An unborn fetus in Jewish law is not considered a person (Heb. nefesh, lit. “soul”) until it has been born. The fetus is regarded as a part of the mother’s body and not a separate being until it begins to egress from the womb during parturition (childbirth). In fact, until forty days after conception, the fertilized egg is considered as “mere fluid.” These facts form the basis for the Jewish legal view on abortion. Biblical, talmudic, and rabbinic support for these statements will now be presented.
Intentional abortion is not mentioned directly in the Bible, but a case of accidental abortion is discussed in Exodus 21:22‑23, where Scripture states: “When men fight and one of them pushes a pregnant woman and a miscarriage results, but no other misfortune ensues, the one responsible shall be fined as the woman’s husband may exact from him, the payment to be based on judges’ reckoning. But if other misfortune ensues, the penalty shall be life for life.”
The famous medieval biblical commentator Solomon ben Isaac, known as Rashi, interprets “no other misfortune” to mean no fatal injury to the woman following her miscarriage. In that case, the attacker pays only financial compensation for having unintentionally caused the miscarriage, no differently than if he had accidentally injured the woman elsewhere on her body. Most other Jewish Bible commentators, including Moses Nachmanides (Ramban), Abraham Ibn Ezra, Meir Leib ben Yechiel Michael (Malbim), Baruch Malawi Epstein (Torah Temimah), Samson Raphael Hirsch, Joseph Hertz, and others, agree with Rashi’s interpretation. We can thus conclude that when the mother is otherwise unharmed following trauma to her abdomen during which the fetus is lost, the only rabbinic concern is to have the one responsible pay damages to the woman and her husband for the loss of the fetus. None of the rabbis raise the possibility of involuntary manslaughter being involved because the unborn fetus is not legally a person and, therefore, there is no question of murder involved when a fetus is aborted.
Based upon this biblical statement. Moses Maimonides asserts as follows: “If one assaults a woman, even unintentionally, and her child is born prematurely, he must pay the value of the child to the husband and the compensation for injury and pain to the woman.” Maimonides continues with statements regarding how these compensations are computed. A similar declaration is found in Joseph Karo’s legal code Shulkhan Aruch. No concern is expressed by either Maimonides or Karo regarding the status of the miscarried fetus. It is part of the mother and belongs jointly to her and her husband, and thus damages must be paid for its premature death. However, the one who was responsible is not culpable for murder, since the unborn fetus is not considered a person.