In Judaism, views on abortion draw primarily upon the legal and ethical teachings of the Hebrew Bible, the Talmud, the case-by-case decisions of responsa, and other rabbinic literature. While most major Jewish religious movements discourage abortion, except to save the life of a pregnant woman, authorities differ on when and whether it is permitted in other cases.
Biblical sources
There is no direct reference in the Hebrew Bible to an intentional termination of pregnancy.
refers to the Ordeal of the bitter water, which has been interpreted by some biblical commentators as an ordeal that produces a miscarriage in an unfaithful wife, thus verifying or falsifying a charge of adultery.
refers to a birth or miscarriage as a result of a violent altercation where a pregnant woman is injured, either intentionally or unintentionally, causing her to either give birth prematurely or to miscarry. It reads: "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 whatever the woman's husband demands and the court allows. But if there is serious injury, you are to take life for life."
The ancient Jewish historian Philo taught that the term "harm" refers exclusively to the child, and whether a fine is imposed or capital punishment depends on whether the fetus has sufficiently formed.Jewish Virtual Library, Abortion in Judaism According to Rashi and other Talmudic commentators, the term "harm" refers only to the mother, and traditionally, unless the mother was harmed too, only a fine was imposed for causing a miscarriage.
In mainstream rabbinic Judaism, this verse is one of several key texts that substantiate the later rabbinic prohibition on most cases of abortion. However, others have argued that abortion is not considered murder and that "Jewish law does not consider a fetus to be alive." To support such a view, it is suggested that this verse shows "that the fetus is not a person. The primary concern is the well-being of the person who was injured." According to many rishonim, this verse proves that the fetus does not have the status of a human life.Rabbi Jeremy Wieder, Clarifying Abortion In Halacha – And Reasons Not To Favor Overturning Roe V. Wade To gain the status of human life, the Mishnah states that the head or a greater portion of the fetus must exit the birth canal. Before then, the fetus is not considered a person.
Rabbinic sources Rabbinic law or halakhah allows abortion in certain circumstances. Some authorities permitted abortion in cases of 'great need.'
Most Rabbinic interpretations even insist on abortion in order to the save the pregnant woman's life. The fetus is viewed as valuable, but not considered human.
Importance of saving a fetus In halakha, just as the principle of pikuach nefesh allows violating nearly all laws in order to save a human life, many laws may be violated in order to save the life of a fetus. Shabbat must be violated to save the life of a fetus.Arakhin 7a A pregnant woman who develops a ravenous hunger must be fed even on Yom Kippur to prevent loss of life;Yoma 82a later authorities debate whether the situation described involves danger to the fetus, mother, or both.
Fetus as less than fully human Rabbinic Judaism does not regard the fetus as a full human being. The Mishnah declares that one who kills a one-day-old baby is criminally liable and deserves a penalty the same as that of the death of the mother. Until it has been established that the pregnancy has been completed and life is formed, the fetus is not included as a life deserving of another life.Schiff p.27 on mNiddah 5:3 In the reading of Biblical homicide laws, rabbinic sages argue that homicide concerns an animate human being (nefesh adam from Lev. 24:17) alone, not an embryo... because the embryo is not a person (lav nefesh hu).For rabbinic sources, see Feldman 254f. notes 17-19 An embryo is not deemed a fully viable person (bar kayyama), but rather a being of "doubtful viability".Niddah 44b Hence, for instance, Jewish mourning rites do not apply to an unborn child. The status of the embryo is also indicated by its treatment as "an appendage of its mother"ubar yerekh imo, Hullin 58a for such matters as ownership, maternal conversion and purity law.Feldman 253f. who also cites Y.K. Miklishanski in "Mishpat ha-Ubar" in Jubilee Volume in Honor of Simon Federbush, Jerusalem 1961, pp. 251–260. Similarly, the death penalty is carried out on a pregnant woman even though the innocent fetus will be killed, on the basis that the fetus is an appendage of the mother (Arakhin 7a) In even more evocative language, the Talmud states in a passage on priestly rules that the fetus "is considered to be mere water" until its 40th day.Yevamot 69b, e.g. Schiff 33f. Elsewhere, the Talmud speaks of a "moment of determination" and a "moment of creation" in regard to different stages of the fetus.Talmud, Sanhedrin 92b Rashi explains that the moment of creation is when bones and arteries begin to formRashi, Sanhedrin 92b and in other places he says that the "moment of creation" is at the 40th day.Yevamot 69b; Pesachim 9a
Many Jewish traditions therefore state sitting shiva, holding a public burial, recognizing the yartzeit (anniversary of a death), or other mourning rituals do not apply in the case of aborted or miscarried fetuses.Shurpin, Yehuda. "Why Are Stillborns' Graves Unmarked?"Chabad. Retrieved 2022-12-22. In recent years, a variety of new types of observances are arising to give individuals and families sacred paths to mourning and remembrance in accordance with halakah. An example would be the Jewish Community Memory Garden."A Jewish Way to Remember". Tablet Magazine. 2020-07-22. Retrieved 2022-12-18.
Precedence of the mother's life The fetus however, though considered "alive" to the extent that its life is protected, is not considered fully alive to the extent that if it endangered the mother's life it takes precedence. Thus if a pregnancy risks the life of the mother, the Rabbis rule that the mother's life takes precedence and that the child may be aborted so as to save the mother's life: "If a woman is in hard travail, one cuts up the offspring in her womb and brings it forth member by member, because her life comes before the life of her foetus. But if the greater part has proceeded forth, one may not set aside one person for the sake of saving another."Mishnah Oholot 7:6, trans. Sinclair p.12 According to the text this can be done until the point of yatza rubo (יָצָא רֻבּוֹ), that "the majority [of the fetus] has exited".Oholot 7:6 This is taken to refer to the emergence of the baby during childbirth.
According to Rashi, the reason behind this law is that a fetus is not a viable soul (lav nefesh hu) until it is born, and killing it to save the woman is permitted.Rashi to Sanhedrin 72b, s.v. yatza rosho Maimonides, though, justified the law not because the fetus is less than a nefesh (human being), as the Talmud held, but rather through the principle of the rodef or pursuer, "pursuing her to kill her." Schiff argues that the Maimonidean view is "unprecedented" and "without doubt, this hitherto unexpressed insight had dramatic potential ramifications for the parameters of permissible abortion." Meir Abulafia and Menachem Meiri reaffirm Rashi's view.Schiff p.60-61
Noachide prohibition on abortion says, "Whoever sheds the blood of man, by man shall his blood be shed..." The Talmud understands this verse as alluding to a fetus ("Whoever sheds the blood of man within man, his blood shall be shed") and thus prohibiting abortion to non-Jews.Sanhedrin 57b
According to Maimonides, a non-Jew who kills "even one unborn in the womb of its mother" is guilty of murder according to the Noahide Laws, and is liable for the death penalty.Mishneh Torah, Hilchot Melachim 9:4 The penalty of having his blood spilt, is interpreted by Maimonides as referring to a punishment by the hands of heaven, and not by the courts or man to man.Maimonides, Mishneh Torah, Laws of Murder 2:3
According to many authorities, this prohibition of murder does not apply throughout the pregnancy, but only (depending on the source) after the 8th, 13th, or 22nd to 23rd week of pregnancy.
Tosafot (11th–13th centuries) discusses the connection between the obligations of Jews and non-Jews. Follows the Talmudic principle that there is nothing that is prohibited to the Noahide that is permissible to Jews,Sanhedrin 59a; Rashi (on Sanhedrin 59a) explains that Jews never lost their status as Noahides Tosafot concluded abortion must in general be prohibited to Jews also, though the (theoretical) punishment for violations would apply only to gentiles.Tosafot on Sanhedrin 59a, trans. Schiff, p.62: "A gentile is culpable for the death of a fetus, while a Jew is forbidden to cause its death but is not culpable."Eisenberg compares the prohibition, without punishment, to the status of the treifah. Conversely, Tosafot suggests that perhaps, since Jews are permitted therapeutic abortions for the sake of maternal life, Noahide law likewise allows non-Jews to undergo therapeutic abortion. Given this near parity, rabbinic law prohibits Jews from assisting gentiles with forbidden abortions, for which the gentiles would be culpable of bloodshed.Feldman 260 citing R. Joseph Trani, Responsa Maharit I:97 and I:99. Viewing Noahide law as a universalizing ethics, Sinclair states: "it is evident that the halakhah in the area of foeticide is shaped by a combination of legal doctrine and moral principle."Sinclair 44ff.
The Tosafot text that applies Noahide law to forbid abortion does not go unchallenged. Another commentary in Tosafot (Niddah 44b) appears to question whether foeticide is permitted;Feldman p. 262. however, this is not the plain interpretation of that Tosafot.Tosafot is referring to a case in Talmud Erchin 7a where the mother was executed by a court and the fetus remained alive after its mother's death. The Talmud says that executing a pregnant woman is permissible because the sentence applies to the fetus along with its mother since its part of its mother's body. Tosafot questions whether it would be allowable to kill it even after the mother already died, because of the death sentence that applied to it. See also Igrot Moshe: Yoreh Deah Vol.2:60 that Tosafot does not mean to permit foeticide.
Legal rulings In the standard code of Jewish law, the Shulchan Aruch, abortion in the case where it would be a risk to the woman is permitted; Maimonides's language, speaking of the fetus as pursuer, is included verbatim. A key commentator, R. Joshua Falk, explains that abortion does not trade off one life for another life because the embryo is "not a person" prior to birth.Feldman 256 on S.A. HM 425.2, Falk Me'irat Eynayim An ordinary abortion is a violation Jewish Law, as emphasized by R. Ezekiel Landau among others.Feldman 256 on Noda bi-Yehudah II:HM 59.
Later authorities have differed as to how far one might go in defining the peril to the woman in order to justify abortion, and at what stage of gestation a fetus is considered as having a soul, at which point one life cannot take precedence over another.