A Fetus Is a Chatzi Nefesh
The Torah on Unborn Children – Part 2
Tehillim 19:10 reads as follows: “ יראת ה‘ טהורה עומדת לעד משפטי ה‘ אמת צדקו יחדו”.
Fear of Hashem is pure. It stands forever. The laws of Hashem are true, righteous together.
The Malbim contrasts Hashem’s laws with those of Man, the majority of whom are spiritually impure, and make laws on that basis. Whereas Hashem’s laws stand forever, Man’s laws are short-lived and constantly changing, for they tend to be based on nonsense. Furthermore, Man’s laws are irrational and unjust, even incompatible with one another. The punishments for lawbreakers are so poorly weighed and measured to fit the crime as to be essentially arbitrary.
Wherever you are reading this, you live under a jungle of laws and regulations that make no sense, that ordinary citizens cannot possibly keep track of, that do not fit together with any harmony or consistency, and the definitions of which change to suit those in power. The government can make a criminal out of anyone at any time and throw the book at him – and they do just that when it suits them. Every man is equal under the law, except for everyman.
Hashem’s laws, on the other hand, are divine and objectively just. This is why they stand the test of time like no other.
I heard Rabbi Moshe Tendler, of blessed memory, explain “righteous together” as follows. An individual Torah law by itself might not seem rational or fair. They are righteous when studied and observed together, as a complete package, creating a divine balance for Man in this world.
Consequently, those who pick and choose which parts of the Torah suit them, or who otherwise believe they can improve on the original, are doomed to fail. Not only are they doomed to fail, they are doomed to become that which they hate and fear: hypocritical and unjust.
With this in mind, let us examine the supposed Torah support for enemies of unborn children. Their arguments are based almost invariably on a handful of disparate comments cherry-picked from the vast expanse of the Talmud, with no context provided, in the style of missionaries and snakes.
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Source #1: Until forty days, the fetus is merely water (Yevamos 69B). The baby-killers triumphantly claim that this reflects the actual legal status of unborn children in the early days of gestation. It’s like bathwater. Spill it out.
This is quite easy to refute. First of all, the Torah explicitly states that Hashem killed Ehr and Onan for destroying their seed during marital relations (Bereishis 38). If an actual fetus is nothing but water, then destroying seed is less than even that. Since when is pouring out water punishable by death, even at the hands of heaven?
The Gemara in Nidda 31A makes it abundantly clear that we are talking about far more than mere water. Chazal teach, based on Bilam’s prophecy in Bamidbar 23:10, that Hashem is present when a Jewish husband and wife are together, and He eagerly anticipates the seed from which a righteous child will be born.
So what about the Gemara in Yevamos? Once again, the missionaries conveniently ignore the context. Chazal are discussing the case of the daughter of a Kohen who married an Israelite. Since the wife is assimilated into the tribe of the husband (no apologies to feminists) she is no longer allowed to eat terumah. If she has children with her husband, she remains ineligible to eat terumah even after his death. If she was pregnant at the time of her husband’s death, the child in her womb counts the same as a child that was already born.
If the husband died within forty days of the last time they lived together, she is allowed to eat terumah immediately. If it turns out that she is not pregnant, all well and good. Even if she is pregnant, for the first forty days the fetus is like water – not that one can intentionally eliminate it, but that it doesn’t yet have the technical legal status of a fully formed child, which keeps her a member of her deceased husband’s tribe.
The fetus being like water until forty days is nothing more than a figure of speech, and it was always understood as such until heretics and ignoramuses came along and made a religion out of it.
Their distortion of this Gemara is further vasectomized by the Noda B’Yehuda in responsa 309, cited by the Pischei Teshuva on Even HaEzer 156:4. The Torah states that a woman becomes a yevama if her husband didn’t have a child at the time of his death. What if a woman lived with her husband, he died later that day, and she later gave birth to a living child that was actually conceived after her husband’s death? Would this child release her from being a yevama? Or do we say that at the time of her husband’s death he did not technically have a son?
The Noda B’Yehuda leaves the question unresolved. However, he strongly considers the possibility that a seed inside the mother’s womb that is destined to be born already has the legal status of the father’s child, which has life-altering implications for the widow. This pours water on the claim that the Torah considers a fetus to be mere water. Nonsense.
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Having demonstrated that even a seed in the mother’s womb is extremely important, possibly even having the legal status of a child for certain purposes, it is superfluous to refute claims that a fetus at later dates isn’t a living person with legal status. But for purposes of educating the masses and eviscerating the distorters of our divine Torah, we will examine their other favorite sources.
Source #2: Rashi in his commentary to Sanhedrin 72B states that until a child is born, it is not a nefesh. They interpret this to mean that the child does not yet have a soul, and consequently it does not count. Essentially, it’s just a bunch of cells.
The case in question is a mother who is having a difficult childbirth and her life is directly endangered by the child. The law is that if the child’s head has exited, we are not allowed to harm it to save the mother, for we do not push aside one nefesh to save another. (This has broad implications, and pretty much puts the eugenicists and “ethicists” out of business, please God.) If not, we are allowed to kill the child if necessary to save the mother’s life.
The baby-killers distort this source beyond all recognition. First they surgically extract nine words from Rashi’s commentary – that the unborn child is not a nefesh. They conveniently ignore the fact that this source applies strictly to an extremely rare circumstance, and permits the killing of the child in that case only because the mother is about to die before our eyes. Then they pretend that this is the Torah’s definition of all unborn children, all the time. Since the child is a lifeless, soulless entity, we may eliminate it without the slightest pang of guilt.
Of course, nothing could be further from the truth. No student of Torah will claim that Chazal or Rashi would argue that killing unborn children is some innate right, if not a virtue. The death of an unborn child – especially at the hands of man – is a horrific tragedy that is permitted in the same way that we are permitted to kill a would-be murderer if there is no other way to stop him. That is precisely the comparison the Gemara makes.
But they don’t tell you that.
Furthermore, they misconstrue the word nefesh. When Rashi states that the child is not a nefesh until he is born, he does not mean that the child is just a clump of cells with the mere potential to become something more. Rather, until he is born he does not have the same technical legal status as the mother, to the extent that we intervene if the child is directly endangering the mother’s life. This is clearly illustrated by the Gemara in Sanhedrin 57B, which explicitly refers to a fetus in the mother’s womb as adam, a human being (based on Bereishis 9:6). According to Noahide law, abortion is a capital crime. In reference to this law, the Rambam states as follows (Melachim U’Milchamos 9:4): “A Noahide who kills a nefesh, even a fetus in the mother’s womb, is executed for it.”
The baby-killers and their apologists seem to have missed this Rambam, which explicitly refers to an unborn child as a nefesh. Have we suddenly discovered a previously unknown dispute between Rashi and the Rambam? Of course not. The Torah’s consistent position is that a fetus is alive and precious.
The laws of Hashem are true, righteous together.
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Source #3: “Ubar yerech imo”, a fetus is an appendage of the mother (as opposed to a separate entity). If the fetus is simply a part of the mother’s body, say the missionaries, then the mother should have the right to remove it. Why should hacking a fetus to pieces be any different than getting a manicure or a haircut?
Ah, but we are reasonable people. Eliminating a fetus should at least be considered a form of elective surgery, and elective surgery should only be performed if there is a serious need. What constitutes a serious need? What doesn’t? Hack away.
As usual, the distorters of Torah neglect to provide any context for the three words that suit their agenda. This concept appears in the Talmud in a wide variety of cases, yet, tellingly, eliminating a fetus is not among them. Not even close. What the distorters take as the most natural and obvious application of this concept is not entertained anywhere by Chazal.
They also fail to mention that the very concept of ubar yerech imo is a matter of dispute throughout the Talmud. One opinion is that the fetus is considered part of the mother’s body for certain legalistic purposes, as we will see, while the other side considers the fetus a separate entity because it is destined to separate from the mother. While we ultimately rule according to the former, the fact that this concept is a matter of dispute is very significant. No student of the Torah would argue that Chazal were disputing whether a fetus is just another body part, which can be lopped off if needed.
Here are several examples that illustrate this.
Yevamos 78A: Someone designates a pregnant animal for a sin-offering, and the mother subsequently gives birth. Do we say ubar yerech imo, in which case he can fulfill his vow by sacrificing either the mother or the child, or do we not say ubar yerech imo, in which case the child of a sin-offering cannot be brought?
Chullin 58A: A similar question is raised regarding the child of an animal that is treif (has a grave injury, and is therefore unfit). Is the child unfit as well, or is it treated as a separate entity?
Temura 30B: Someone committed bestiality with a pregnant animal, which disqualifies the animal from being brought as a sacrifice. The mother subsequently gives birth. Do we say ubar yerech imo, in which case the child is also disqualified, or is the fetus treated as a separate entity, and permitted?
Rambam Hilchos Shechita 12:10, based on Chullin 75B: If one slaughters a pregnant animal and the child comes out alive, does the child need to be slaughtered as well, or was it already made “kosher” by the slaughtering of the mother?
These are just several examples of ubar yerech imo being debated and applied in Jewish law. The questions revolve around changes in legal status to the mother, and whether this change in status is transferred to the child inside her. It has nothing to do with the fetus being considered just another clump of the mother’s cells that has no independent meaning or rights.
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Source #4: If two men are fighting, and one of them accidentally strikes a pregnant woman, causing her to miscarry, he is responsible only to pay monetary damages (Shemos 21:22). The child-killers claim based on this that it is not a child they are killing, otherwise the Torah would treat the perpetrator as a murderer.
Of course, they ignore the fact that the very verse they are citing refers to the unborn children as children. Not a limb, not a piece of property, but children. It is true that the penalty for killing this child is less severe than the penalty for killing a child that has already been born, but it is a child nonetheless. Furthermore, nowhere does the Torah indicate that one may willfully perform this horrific act.
The one time the Torah mentions a miscarriage being induced, it is a crime. There are technical legal reasons why the criminal is not treated like a murderer, but one cannot argue that abortion is no worse than stepping on someone’s flowers.
According to the Torah, unborn children are precious human beings, albeit with a legal status that varies from case to case. In the case of a mother’s life being endangered by the pregnancy, the child’s life may tragically be cut short. This is the exception that proves the rule, and should not be used to push the envelope.
Contrary to what the screaming people want you to believe, this case is also extremely rare. The Magen Avraham on Orach Chaim 330 wrote that not even one out of a thousand women die during childbirth. He lived in the 1600s.
But it is clear that the minority of abnormal cases is not the issue under discussion. The Amalekites and Erev Rav are like mosquitoes, probing for any opening from which they can draw blood. They are not interested in protecting mothers, or children, or society, or the human race. They are certainly not interested in following the Torah and serving God. They are evil. They seek to erode people’s sensitivities, corrupt their minds, and destroy their souls.
Those who distort the Torah to arrive at conclusions that are against the halacha lose their share in the world to come (Avos 3:11). Those who study Torah for the purpose of being contrarian and creating strife are better off not being born (Brachos 17A, Tosafos). The cherry-pickers with an odious agenda are exactly who Chazal were talking about.
There is a war for civilization, within and without Jewish society, and it must be fought. But let one thing be crystal clear: the Torah is squarely on our side. We have allowed the Erev Rav and Amalek to claim otherwise, to our shame and detriment. It is high time we put them in their place.
[Note: For even more on the subject, listen to my recent seminars on The Jewish View on Unborn Children, Iyov on Life Before Birth, and Roe vs. Wade and the Jewish Perspective.]
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