Medical Ethics Unit 2: Aborting a Tay-Sachs Foetus

(22) And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine. (23) But if any harm follow, then thou shalt give life for life, (24) eye for eye, tooth for tooth, hand for hand, foot for foot, (25) burning for burning, wound for wound, stripe for stripe.

(6) [If] a woman is having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life. If most of it had come out already they do not touch it because we do not push off one life for another.

[If a man says to his female slave], 'You are a slave, but your child is free', if she was pregnant at the time she acquires freedom for it [the child].⁶ What is the point of [quoting]: 'if she was pregnant, she acquires freedom for it'?⁷ — When R. Samuel b. Judah came [from Palestine], he said: R. Johanan said two things. [One was the dictum regarding a Get quoted above]. The other was this: It seems a reasonable view that a slave can receive a writ of emancipation on behalf of another slave from the master of that slave but not from his own master.⁸ And if someone should whisper in your ear⁹ that there is a halachah laid down which contradicts this, [viz.] 'If she was pregnant, she acquires freedom for it,'¹⁰ reply to him that two great authorities in their generation, R. Zera and R. Samuel b. Isaac, explained the matter. One said that this [teaching] follows the opinion of Rabbi who said that if a man emancipates the half of his slave, the slave acquires [freedom in regard to the one half], and the other said [in further explanation] that the reason of Rabbi [for applying this to the present case] is that he looks upon the embryo as part of the mother, and therefore the master [in freeing the child] as it were made her owner of one of her own limbs.

R. Hisda asked R. Huna: we learnt: "Once his head has come forth, he may not be harmed, because one life may not be taken to save another."But why so? Is he not a pursuer? — There it is different, for she is pursued by heaven.

MISHNAH. A BOY ONE DAY OLD...HE WHO KILLS HIM IS GUILTY OF MURDER, AND HE COUNTS TO HIS FATHER, TO HIS MOTHER AND TO ALL HIS RELATIVES AS¹ A FULLY GROWN MAN.

since it is written, And he that smiteth any man mortally,implying, whatever the age.¹⁴

AND HE ALSO CAUSES HER TO BE DISQUALIFIED FROM EATING TERUMAH. For the All Merciful has said, And have no child,²² but she has one. But what was the point of speaking of a 'child' seeing that the same applies even to an embryo, for it is written,²³ As in her youth,²² which excludes²⁴ one who is pregnant?²⁵ Both texts were required. For if the All Merciful had only written, 'And have no child' [it might have been presumed that the law²⁶ applied to that case] because originally there was but one body and now there are two bodies,²⁷ but that in this case,²⁸ where there was originally one body and now also there is only one body, it may be held that the woman may eat terumah, hence the All Merciful has written, 'As in her youth'.²⁹ And if the All Merciful has only written, 'As in her youth' [it might have been presumed that the law³⁰ applied to that case alone] since originally the woman's body was empty and now it is a full one, but that in this case,³¹ where her body was originally empty and is now also empty, the woman may well eat terumah. Hence the necessity for both texts. Now, the Scriptural texts have been well explained, but as regards our Mishnah, why just A BOY ONE DAY OLD, seeing³² that even an embryo also disqualifies its mother? — R. Shesheth replied: We are here dealing with the case of a priest who had two wives, one who had previously been a divorced woman³³ and the other was not a divorced woman,³⁴ and he had sons from the latter³⁵ and one son from the former,³⁶ so that the latter³⁷ causes the slaves of his father³⁸ to be disqualified from eating terumah;³⁹ thus indicating that the law is contrary to the view⁴⁰ of R. Jose. He having laid down that an embryo⁴¹ also causes disqualification we were informed here that only A BOY ONE DAY OLD causes disqualification but not an embryo

HE INHERITS AND TRANSMITS. From whom does he INHERIT? Obviously from his father; and to whom does he TRANSMIT? Obviously to his paternal brothers;⁴³ but could not these if they wished inherit from their father and, if they preferred, inherit from him?⁴⁴ — R. Shesheth replied: The meaning is, He⁴⁵ inherits the estate of his mother to transmit it⁴⁶ to his paternal brothers;⁴⁷ hence only then when he is ONE DAY OLD but not when he is an embryo. What is the reason? — Because it⁴⁸ dies first, [when the mother dies]⁴⁹ and no son may inherit from his mother in the grave¹ to transmit the inheritance to his paternal brothers. But, surely, this² is not? so, for was there not a case where an embryo made three convulsive movements?³ — Mar son of R. Ashi replied: [Those were only reflexive movements] like those of the tail of the lizard which moves convulsively [even after it has been cut off].⁴

"It dies first." But we have learned in Perek "Behemah Hamaksheh" (Hullin 74a) that in the case of one who slaughters an animal and finds a live 9-month old, there is a distinction between 'died' and 'killed,' as it says in Arachin 7a: "But it also said ...

If you say : if so, the embryo should inherit and cause to inherit, in the situation of a woman who started to give birth and died first

One could respond: Yes, indeed! And it specifies a one day old because it rules that it inherits and causes to inherit, but an embryo it does not rule this way.

However, one who kills "a one day old" is liable since it is taught, but not an embryo. That is, even if she was killed or started to give birth until the head came out, as is taught in Ohalot 7:6. And it brings in "Ben Sorer UMoreh" (Sanhedrin 72b): "A woman who is having difficulty giving birth, one cuts the embryo. Once the head has emerged, we do not set aside one life for another.

But it is possible that specifically when the mother is alive that the one who kills it is not liable until the head emerges, since it depends on the mother's life. But when she has died, one is liable, because it is like it is placed in a cup.

And if you say: If you say it is permissible to kill it in utero even if the mother died, and it is not like it is placed in a cup,

Then [I would ask]: why do we desecrate the Shabbat for it, that we can bring a knife through public property, to cut the mother, as is proved in Arachin 7b.

One could reply: nevertheless for saving a life we desecrate Shabbat,even though it is permitted to kill it, since "dying at the hands of a person" (e.g. condemned to death by a court) one who kills him is exempt (Sanhedrin 78a) since most dying people are [going] to death. And we desecrate Shabbat for him (Yoma 84b) since with saving a life, we don't follow the rule of "majority"

That which was given to the sons of Noah but not repeated at Sinai was meant for the Israelites, but not for the heathens.' On the contrary, since it was not repeated at Sinai, should we not assume that it was meant for the Noachides and not for Israel? — There is nothing permitted to an Israelite yet forbidden to a heathen. Is there not? But what of a beautiful woman?— There it is because the heathens were not authorised to conquer. But what of a thing worth less than a Perutah? — There it is because the heathens do not forgiv

And regarding embryos, non-Jews are liable and Jews are exempt. But even though they are exempt, nevertheless it is not permitted.

But it is difficult that we said in "Ben Sorer UMoreh" (Sanh 72b) "Once its head has emerged, one may not touch it, since we do not set aside one life for another." But before it sticks out its head, the midwife may insert her hand and cut it into limbs and take it out to save the mother. This situation for non-Jews is prohibited, since they were warned about fetuses.

One can reply that also with Jews it is a mitzvah to save, and perhaps even with non-Jews it is permissible.