Project Genesis

Fetus vs. Newborn

Question: In Mishpatim, 21:22, we are shown that if a man injures a pregnant woman and she miscarries the crime is treated as bodily harm to the woman and not murder of the fetus. The guilty party is to be fined and not sentenced to death. Only if the injury leads to the death of the woman is this crime murder. Would it be correct to infer from this that the pro-choice argument that the fetus is not to be considered as a humanbeing is essentially correct according to Torah?

Answer: Your inference is used as a proof by the ‘Meirat Einayim’ (one of the commentators on the Shulchan Aruch) that there is a legal difference between a fetus in the womb and a new-born baby. The law he is referring to in the Shulchan Aruch (Choshen Mishpat, Siman 425:8) states that one is permitted to kill a fetus in order to save the life of the mother. However, once just the baby’s head has exited the body, it would be prohibited to kill it, even to save the mothers life. Thus, it is clear that once the head has exited the body, it acquires a new legal status.

However, the fact that there is a difference between a fetus and a new-born is in no way a proof that it is morally acceptable to perform an abortion. There is a verse in the Torah specifically prohibiting the killing of a fetus:

” Shofech Dam HaAdam, BaAdam Damo Yishofech” (Genesis 9:6)

The simple translation of this verse is “He who spills human blood shall have his own blood spilled by man”; however, the Talmud states that this verse can be read another way – the letter ‘Bet’ in Hebrew can either mean ‘by means of’ or ‘in’ and thus, says the Talmud, we can read the verse as “He who spills human blood IN a human” – the Talmud asks: ‘what human is IN a human’ – and answers that it must be referring to a fetus; thus we see that the Torah does refer to a fetus as a ‘human being’.

Yours sincerely,
Ari Lobel

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