The Fetus as a Rodeph, by Rabbi Dr. Chaim E. Schertz

The purpose of this article is to analyze the nature of the fetus in Halacha. One of the cases that best illustrates the different viewpoints in Halacha is a case where the fetus is threatening the life of the mother.

The Mishna states the following:

A woman who has great difficulty in giving birth, we cut the fetus in her womb and remove it an organ at a time because her life takes precedence over his. If most of the fetus has come out, we do not touch it because we do not push away (destroy) one soul in order to save another (ain dochin nefesh mipnei nefesh). Ohalot VII-6.

The Rav (Rav Ovadiah Mibartenura) comments, even if only most of the head comes out, we are still not allowed to touch it. Ad locum “Yatzah.”

The Talmud in Sanhedrin introduces a case which greatly amplifies an understanding of this Mishnah.

Rav Huna stated, a minor who was pursing someone else in order to kill him (Rodeph), it is necessary that his life (the pursuer) be taken to save the pursued. This implies that according to Rav Huna, a rodeph never requires a warning whether he is a minor or an adult. Sandhedrin 72b

Rashi explains that according to Rav Hunah a warning (Hatraah) must only be given in cases that are to be decided by a judicial body who may execute a transgressor if the transgressor was given a warning by witnesses. A rodeph, however, does not require any warning. This is proven by the fact that a minor may be designated a rodeph even though he is not considered a bar daat i.e. one who possesses the intelligence to understand what a warning means. Ad locum.

Rav Chisdah challenged Rav Huna’s law from the Mishna in Ohalot that we stated above. If the fetus was partially born, we may not destroy the fetus’ life in order to save the mother’s life. Why is that different from any minor who is considered a Rodeph? Does the difference in age establish a difference in the law? Is there a difference whether the minor is one day old or several years old? Any minor, according to the law, is not a bar daat. See Ibid.

The Talmud offers an answer to Rav Chisdah’s question by stating that in the case of the just born baby, he is not called a Rodeph, because it is not he who pursues the mother, but rather it is heaven that is pursuing her. Thus, when it is God who pursues, we humans stand aside and allow nature to take its course. We are required to stop a human pursuer, not a heavenly one.

What the Talmud still fails to explain is why there is such a distinction between minors simply due to age. Whether or not one is considered a Rodeph should be based upon their ability to understand their actions. In addition, if this distinction in age is so obvious to the Talmud, why doesn’t Rav Huna use it in the case of a child Rodeph? In addition, both cases (that of the baby and that of the child rodeph) are identical in that both culprits lack the requisite understanding to follow the law. In situations where human understanding is lacking, the mind of God directs the course of events. Thus, we should be allowed to argue that in the case of an actual child pursuer, it is really heaven that pursues the victim.

There is however, no such compunction to eliminate a fetus in the womb that may threaten the life of the mother. There are basically two reasons that are used by rabbinic authorities to explain this difference of killing the child in the womb and allowing nature to take its course out of the womb. These are offered by Rashi and the Rambam.

The first one is offered by Rashi:

In a case of a woman who has difficulty giving birth and is in danger . . .the midwife inserts her hand and removes his body parts because as long as he has not entered the atmosphere of the world, he is not a living soul and may be killed to save his mother. Rashi, Yatzah Rosho, Sanhedrin 72b.

If a fetus is not an independently living being, then he becomes as any other organ of the mother. Removing the fetus in such a circumstance (when the mother is threatened) is no different than removing a kidney and should thus not pose any moral or ethical issue. The Talmud, however, does present several cases where moral issues do come into play. One of them is the following:

A (pregnant) woman who is taken out (by the court) to be executed, we do not wait for her to give birth (but she is immediately executed). A woman (however) who was sitting on a birthing stool (Mashbair) before judgment was passed on her) we do delay the execution until she gives birth. Arachin 7a.

If both cases are dealing with fetuses that are still totally in the womb, why then do we make a distinction between the two cases? The Talmud and Rashi in the Mishna explain this distinction in the following manner: At that state of pregnancy where a woman is on the birthing stool and about to give birth, the fetus was disconnected and moved from its original location and it is now considered a different body. Ibid.

The Talmud offers supportive evidence for this position which Rashi takes.

“Rav Nachman in the name of Shmuel said, a woman who was sitting on the mashbair and died on the Sabbath, one can bring a knife and rip her stomach and take out the fetus.” Arachin 7a-b. This is to be done even in a situation where there is a doubt (safek) whether the child is still alive. The Talmud then asks that this law should be obvious, for what work (m’lacha) did he do, he was just cutting meat? The Talmud answers, that this was a case where the knife was carried through a public domain and this comes to teach us that in cases of doubt whether the fetus is alive or not, we are permitted to violate the Sabbath to attempt to save his life. See Ibid. This implies that the case specifically had to be a situation of the Mashbair where the fetus was disconnected from the mother. If the fetus was still connected to the mother, there would apparently be no aspect of doubt that it was dead, and we could not violate the Sabbath by carrying a knife through a public domain to cut out the fetus.

We thus see two stages presented in the existence of a fetus. The first is when the fetus is considered a part of his mother and has no independent existence. The second is a fetus who is about to be born and is thus set apart from the life of his mother. That separation between the two stages of the fetus, applies, however, just to enable the fetus to be born. In a situation, where the mother’s life is at risk, there seems to be no distinction between the two types of fetuses; in both cases the fetus would be destroyed. In both cases, we would still be dependent upon Rashi’s interpretation that as long as the fetus is in the womb, it is not a living soul.

The Mishnah Achrona however, questions the validity of establishing a distinction between the two forms of unborn fetuses. He states,

We have to say that the fetus is not considered a separate body until it mostly leaves (the mother’s body) there (in the case of the Mashbair) it is actually not a separate body, but is similar to a separate body, and if it would be killed, it would cause an additional agony to the mother (Inui Hadin) and that is why we do not kill the baby as well.(i.e. not for the baby’s own sake, but for the mother) Ohalot, Chapt. 7, Mishna 6.

The Second resolution which explains why we terminate a fetus who is threatening the mother in the womb, but let nature take its course once the fetus is out of the womb, is that of the Rambam. To understand the Rambam’s resolution, we must first state certain preliminary laws dealing with the concept of a Rodeph.

A murderer who murdered with premeditation, those who witnessed it may not kill him until he comes to court and is judged and condemned to death. Mishneh Torah, Hilchot Rotzeach, 1:5.

When is this the case? (In Halacha 5) When he (the murderer) has already transgressed and committed the crime . . .but one who is in the midst of pursuing his friend in order to kill him, even if the pursuer was a minor, all of Israel are commanded to save the one pursued . . even if it requires taking the life of the pursuer. Ibid, Halacha 6.

It is also a negative commandment which prohibits us from showing any mercy to the life of the pursuer. Therefore the Rabbis taught that a pregnant woman that has difficulty with giving birth, it is permitted to cut the fetus in her womb (i.e. kill the fetus). . . because he (the fetus) is deemed a rodeph, who pursues her to kill her. But if he (the fetus) exposed his head, we are not permitted to touch him. We do not take one life to save another and this is the natural order of the world. Ibid Halacha 9.

By indicating that one transgresses a negative commandment by inaction, the Rambam wished to eliminate any aspect of compassion that one may have for the fetus. The key issue that the Rambam must explain, is why he distinguishes between a fetus who is totally in the womb and one that exposed his head. This is especially difficult for the Rambam because he considered the fetus a living being and thus a Rodeph (unlike Rashi who did not consider a fetus a living soul.)

It is clear from the Talmud (Sanhedrin 72b) that the concept that one life cannot be taken to save another, is insufficient to explain why a baby who exposed his head and is threatening the mother’s life is not considered a Rodeph. As we showed above, the Talmud must add the explanation that in such a situation, the role of the child was incidental and that it was heaven or nature which pursued the mother. What we must understand according to the Rambam is why we cannot utilize the same argument to prevent us from killing the fetus in utero who is now also considered a living human being.

Reb Chaim Soloveitchik, attempted to resolve this problem through an intensive analysis of the nature of the fetus.

The foundation of this issue . . .is that the principle of pikuach nefesh (saving a life) overrides the entire Torah. We derive this concept from the principle that “he shall live by them” (Leviticus 18:5) (i.e. the commandments) and not die because of them. Yoma 85a. Therefore, everything that is encompassed in the category of “he shall live by them” overrides all prohibitions and is not included in the category of those things which could be pushed aside. . . . It becomes clear that saving the life of a fetus is also included in the category of “he shall live by them” . . . . Even if the opinion of the Rambam is that saving the life of the fetus does not override transgressions (such as carrying the knife on Shabbos), nevertheless, one could also say that all the while that he was not yet born and his life was not completed, his life does not override performing transgressions for him. . . but for his life to be overridden, the fetus is also within the category of a soul and he is also included in the concept of “he shall live by them.” That his life should not be overridden because of pikuach nefesh (i.e. he should not be killed to save the mother’s life). . .Therefore the Rambam explains that it is accepted law in the laws of saving a life of the pursued, that a fetus’ life is overridden in the face of a completed soul. Chidushim, Laws of Rotzeach Chapt. 1 Halacha 9.

Reb Chaim thus establishes two propositions to explain why it is required to kill a fetus in the womb, but not if it exposed its head. 1. Even though the fetus is considered a living soul, as demonstrated by various Talmudic passages which allows for transgressions to be committed to save its life, it is nevertheless not considered a completed soul (nefesh gamur) and therefore its mother’s life, which is a completed soul, takes precedence over its life. 2. Once this exception allows the life of the fetus to be overridden by its mother’s life, it must also be judged as a Rodeph, or pursuer. Thus, it becomes a Rodeph de facto, even though it is not a Rodeph de jure. (i.e. even though the fetus in utero is not a completed soul, it is still a living soul for purposes of the Rambam to refer to it as a Rodeph.)

This explanation accounts for the distinction between a fetus in utero, which is considered an incomplete soul and a fetus which exposed its head which is considered a completed soul. If there is a conflict between two completed souls, we cannot take sides. But in a conflict between a completed soul and an uncompleted soul, the completed soul always takes precedence.

The one issue which is left to explain is the requirement to violate all the commandments in order to save the fetus when the life of the mother is not at risk, both in the position of Rashi and the Rambam. In the Talmud we saw that such a case is presented by Rav Nachman in the name of Shmuel in his discussion of a woman who died while sitting on the Mashbair. (Arachin 7a-b) The Rambam also cites this case (Mishneh Torah, Shabbat 2:15).

In the case of Rashi, if the unborn fetus is not a living soul so long as it is in utero, why should any violation of the commandments be allowed to save it, even when the woman is on the Mashbair? According to the Rambam, the opposite must be asked: if by definition a fetus is (according to the interpretation of Reb Chaim) a living being but is just not a completed soul, why does the Gemora imply that you can only violate the Sabbath to save the fetus when the woman is on the Mashbair? We should be able to try to save it at any stage of its development. Thus, both the reasoning of Rashi and the Rambam require a fuller understanding.

 

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