The Fetus in Jewish Law
Does a fetus have the same legal status as a person?
Murder in Jewish law is based upon Exodus 21:12, where it is written: “He that smiteth a man so that he dieth shall surely be put to death.” The word “man” is interpreted by the sages to mean a man but not a fetus. Thus, the destruction of an unborn fetus is not considered murder.
Another pertinent scriptural passage is Leviticus 24:17, where it states: “And he that smiteth any person mortally shall surely be put to death.” However, an unborn fetus is not considered a person or nefesh and, therefore, its destruction does not incur the death penalty.
Turning to talmudic sources, the Mishnah asserts the following: “If a woman is having difficulty in giving birth [and her life is in danger], one cuts up the fetus within her womb and extracts it limb by limb, because her life takes precedence over that of the fetus. But if the greater part was already born, one may not touch it, for one may not set aside one person’s life for that of another.”
Rabbi Yom Tov Lippman Heller, known as Tosafot Yom Tov, in his commentary on this passage in the Mishnah, explains that the fetus is not considered a nefesh until it has egressed into the air of the world and, therefore, one is permitted to destroy it to save the mother’s life. Similar reasoning is found in Rashi’s commentary on the talmudic discussion of this mishnaic passage, where Rashi states that as long as the child has not come out into the world, it is not called a living being, i.e., nefesh. Once the head of the child has come out, the child may not be harmed because it is considered as fully born, and one life may not be taken to save another.
The Mishnah elsewhere states: “If a pregnant woman is taken out to be executed, one does not wait for her to give birth; but if her pains of parturition have already begun [lit. she has already sat on the birth stool], one waits for her until she gives birth.” One does not delay the execution of the mother in order to save the life of the fetus because the fetus is not yet a person (Heb. nefesh), and judgments in Judaism must be promptly implemented. The Talmud also explains that the embryo is part of the mother’s body and has no identity of its own, since it is dependent for its life upon the body of the woman. However, as soon as it starts to move from the womb, it is considered an autonomous being (nefesh) and thus unaffected by the mother’s state. This concept of the embryo being considered part of the mother and not a separate being recurs throughout the Talmud and rabbinic writings.
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