כ׳ באלול ה׳תשע״ז (September 11, 2017)

Sanhedrin 57a-b: Abortion and Jewish Law

One contentious issue in the contemporary world is whether a society that rejects the taking of life can condone aborting an unborn fetus. In the debate that surrounds this question, it is often the Christian religious community that publicly takes the position that abortion should be viewed with the same severity as the taking of human life.

It is interesting to note that the Gemara on our daf takes a clear position on this question in the context of sheva mitzvot benei Noaḥ – the seven Noachide laws. According to Rabbi Yishmael, if a non-Jew were to abort an unborn fetus it would fall under the category of murder, and the person would be liable to receive the death penalty. The source brought for Rabbi Yishmael’s teaching appears in Sefer Bereshit (9:6), where we find shofekh dam ha-adam ba-adam damo yishafekh – God declares that whoever sheds another man’s blood will be killed. The expression ba-adam is understood to mean “within a man,” that is even in the course of pregnancy.

Although Rabbi Yishmael teaches this law regarding non-Jews, it should be noted that the halakha is different for Jews. According to Jewish law, a Jew who aborts an unborn fetus will not be liable for the death penalty for doing so; until the fetus is born and is recognized to be a viable, living birth, there can be no death sentence.

This does not negate the principle that Jewish law does not forbid an activity to non-Jews that remains permissible to Jews, since halakha recognizes that it is also forbidden for a Jewish person to perform abortions. The difference between them relates to the punishment that is given. Although it is forbidden for a Jewish person to perform an abortion, there is no death penalty for doing so; regarding non-Jews, however, aborting a fetus would be treated like murder.

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