Pregnancy for the purpose of transplantation

A. Pregnancy Termination When There is no Concern for the Health of the Mother or Fetus

B. Termination of an incestuous pregnancy

C. Termination to avoid a transgression of arayot

D. Abortion within 40 days of conception

E. Evaluation of a Fetus’ “Life Potential”

F. Is conception permitted for purposes other than reproduction
    1.  Enter a life threatening situation for the sake of reproduction
    2.  The kedusha involved in pregnancy
 

            A woman wishes to conceive and then abort her fetus in order to transplant the tissues to her father who suffers from Parkinson’s Disease. The procedure is expected to alleviate the ailing man’s pain and extend his life expectancy. Is this procedure permissible? Is there a distinction between the first and second trimesters of pregnancy? Does it make a difference if the pregnancy was unintentional?

There are 2 basic problems regarding this question:

A.      Is it permissible to conceive for a purpose other than reproduction?

B.      Is it permissible to terminate a pregnancy for an important purpose such as the mitzvah of kibbud av va’em?

 

A. Pregnancy Termination when there is no concern for the health of the mother or fetus

             There is a basic premise that Halachac prohibits termination of a married woman’s advanced pregnancy. This is true even in the case that the woman intended from the outset to abort the fetus. In fact, even if an important reason exists for her intentions, such as a desire to improve or lengthen her father’s life, thereby fulfilling the mitzvah of kibbud av va’em, the aforementioned premise continues to hold true. Abortion is a serious transgression. Just as no one would consider allowing a child to steal for his father, so one cannot fulfill the mitzvah of kibbud av through means of a transgression.

            However, when discussing the severity of the transgression of abortion, the issue of distinguishing between different stages of the fetus’s development was raised. A seven month old fetus, whose development is nearly complete, is not comparable to a recently conceived fetus whose development process has only begun. Consequently, the law regarding a less than 40 day old fetus, categorized in the gemara as maya b’alma, “merely water,” is different from that of a fetus who has already undergone the first phase of its maturation. Although these distinctions are considered in late responsa literature, they are mentioned only in relation to situations that necessitate abortion, such as endangerment of the mother’s life or complications during the fetus’ development that will cause significant defects. It is strictly forbidden to terminate a pregnancy, at any stage, without proper reason. Even prevention of conception is not permitted without sufficient cause. Termination of pregnancy is considered only in situations when the life of the mother or child are in danger. For any other purpose, even noble reasons, abortion is forbidden.

 

B. Termination of an incestuous pregnancy

             Authorities have deliberated the question of whether a married woman who became pregnant through illegal sexual relations may abort the fetus who would thus be considered a mamzer, eternally subject to remain outside the Jewish community. The basic question with respect to abortion is whether the fetus has the status of a living being. If we recognize the fetus as a living being, and therefore view abortion as a violation of Jewish law as serious as murder, then abortion may be permitted only when the mother’s life is in danger. With this in mind, the Chavot Yair (31), Igrot Moshe (CM II,69) and others decided that a fetus is a living creature and abortion is therefore forbidden, even if the child is a result of a halachikally forbidden union.

            However, She’eilat Yavetz (I, 43), based on the Maharit (1, 99), explained that since the birth of a mamzer would cause harm and shame to the family, in addition to creating a desecration of God, one is permitted to abort the fetus. Indeed, it is a mitzva to do so. The Maharit taught that since abortion is not equivalent to murder, one may undergo an abortion for any medical purpose, even if the pregnancy does not pose a threat to the mother’s life. Because of the difficulties involved in answering such a question, the Rav Pe’alim, in his responsa (I,14), avoids a decision. Instead, he cites the Sh’eilat Yavetz and the stricter opinions. Nevertheless, those who permit abortion of a potential mamzer, do so on the grounds that the pregnancy and subsequent birth would cause humiliation both to the mother and child. Moreover, a tremendous chillul hashem would occur. Those who are lenient consider the spiritual pain that would be caused by this type of birth as physical pain, thereby creating the appropriate circumstances to permit an abortion. Furthermore, they distinguish between the different stages of pregnancy.

            In any case, one may not deduce from this decision that it is permissible to abort a fetus for any reason other than health.

 

C. Termination to avoid transgression of arayot

             If a man performs yibum (Levirate marriage), and it is later found that his new wife is pregnant with his brother’s child, she must leave him. The man and woman each bring a korban chatat for (accidentally) transgressing the prohibition of eishet ach (marrying one’s brother’s wife). The Mishpatei Uziel poses a difficult question on the Ba’alei HaTosafot. In Niddah (44a), Tosafot explain that terminating a pregnancy is only a rabbinic transgression. It is on this point that the Mishpatei Uziel asks his question: Rather than allow the circumstances of the above scenario to reach their worst potential, namely, the de facto transgression of an issur arayot, an issur d’oraita of the worst caliber, why not suggest that she abort the fetus? This would prevent the transgression of an issur d’oraita, and “merely” involve a rabbinic prohibition of destroying a fetus. According to Rav Shlomo Zalman Auerbach, as quoted in Sefer Nishmat Avraham (CM 425, p.221), even if the prohibition of abortion is only rabbinic, it is forbidden to take the life of a fetus in order to save yourself from the requirement of bringing a korban chatat. Nevertheless, it seems that Rav Uziel maintained that an abortion in such a predicament would be permitted according to Tosafot, who maintain that abortion is only a rabbinic transgression. However, if abortion is of Biblical origin, as most halachic arbiters believe, then there is certainly no allowance for abortion in this situation.

            Furthermore, it is the completion of the fetus’s development that creates the issur eishet ach. Indeed, had she truly been childless, it would have been a mitzva for the brother to marry her! Therefore, it is feasible that an abortion would be permitted, on the grounds that the fetus, through its own growth, is posing the dangerous threat of an issur d’oraita directly to its mother. Consequently, this case is not analogous to the situation that we are studying. We are investigating the law of a woman who wishes to undergo an abortion that will not lead to any personal gain but will benefit her father. The yibum case may illustrate the allowance for an abortion when the pregnancy creates a halachic danger for the mother.

            An important inference may be deduced from Arachin (13a): A pregnant mother does not have ownership rights of the fetus growing inside her. In the gemara, we are taught that because of a specific verse, we know that a pregnant woman who is sentenced to death by a Jewish court is subject to her punishment even before her baby is born. The significance of this is that without that verse, one would assume that the potential child “belongs” to its father and beit din would therefore be forced to postpone the execution. Without the exception that the verse provides, we would legitimately conclude that despite the fact that the fetus is actually part of its mother’s body, the mother has no right to terminate a pregnancy even for the most noble of reasons.

 

D. Abortion Within Forty Days of Conception

             Until now, we have only dealt with the question of aborting a fetus with a limited lifelike structure. There remains room to discuss aborting an embryo; the organism formed within the first 40 days of pregnancy. Most acharonim are inclined to categorize such an organism as maya b’alma and permit abortion. Even the Chavot Yair, who prohibits a woman from terminating a pregnancy that would result in the birth of a mamzer, would permit her to do so within the first 40 days of her pregnancy.

            On the other hand, there are those who forbid abortion even within the very first stage of pregnancy. Their opinion is based on a decision of the Ramban in Torat HaAdam: One may violate Shabbat in order to save the life of a fetus, even within the first 40 days of pregnancy. Although it is true that one may distinguish between categorizing a fetus or embryo as a living being for purposes of abortion, and permitting Shabbat violations for the sake of a potential life; however, it is clear that if one may in fact violate Shabbat for an embryo, it must certainly be forbidden to abort such an embryo, even if the prohibition would only relate to potential life.

 

E. Evaluation of a Fetus’ Life Potential

             In the case that there is an halachic obligation pending on the mother to have children, either through means of her husband’s obligation to procreate or her own obligation, one could assign considerable significance to the life potential of the fetus. However, a woman who has already fulfilled her obligation to have children presents a new question. Suppose a divorcee or widow with children wishes to be artificially inseminated and abort her fetus within the first forty days of pregnancy, at which stage the fetus has not yet attained any life potential. May she abort her fetus to aid her father?

            This question is similar to an existing controversy in regard to planting on Shabbat. The Minchat Chinuch (298) and Eglei Tal (introduction) maintain that anyone who plants in suitable ground, even if he uproots the seed one hour later, has violated the prohibition of planting on Shabbat. This is true, they claim, even if the seedling did not yet root itself. In contrast, the Rashash (Shabbat 73a) maintains that only after the implantation has taken root is there an issur Shabbat. Ostensibly, this is so in our subject as well. According to the Minchat Chinuch, since the conception was successful, and the fetus will develop into a child, it is prohibited to terminate the pregnancy. And so it follows, according to the Rashash, abortion in this situation is not prohibited. From the outset, the aim of the mother was to abort the fetus. To perform the abortion would therefore be similar to planting a seed on Shabbat and uprooting the implantation before it takes root. It is important to note, however, that further investigation is recommended to clarify whether abortion and zorea b’Shabbat are indeed comparable.

 

F. Is conception permitted for purposes other than reproduction?

 1. Entering a life threatening situation for the sake of reproduction

 

            The pregnancy and birth processes pose life-threatening dangers to the mother. Regarding certain Yom Kippur and Shabbat issues, she is categorized by Halacha as a person in danger. But, because having children is the fulfillment of a mitzva and is derekh kol ha’aretz, a process that everyone goes through, a woman is allowed to place herself in this dangerous position. However, in our case, the woman has no interest in fulfilling a mitzva. She wants to conceive in order to help her father. Nevertheless, this woman’s pregnancy, like any other, will place her in danger. Indeed, she wishes to undergo an abortion which presents yet another danger. Unfortunately, her noble intention does not suffice to permit entering a state of sakanat nefashot.

            Along these lines, Rav Moshe Feinstein zt”l (Igrot Moshe Yoreh De’ah II,74) explains that since it causes additional dangers for the mother, one may not induce birth or rush a pregnancy. Furthermore, inducement is not common practice. The Torah, despite all dangers involved, granted permission and commanded a doctor to heal and so granted permission and commanded a woman to reproduce. But if the pregnancy is not for purposes of reproduction, there is no mitzva involved and only the danger element remains.

            One may counter, ‘is it not permitted for a person to harm himself in order to save the life of his friend? It is for this reason that a family member may donate his kidney as long as this donation does not constitute a danger to the donor’s life!’. This is true when the undertaken danger will save the life of another individual, but one cannot endanger oneself merely to alleviate someone else’s pain. In our case, there is no guarantee that the woman’s father’s life will be lengthened by transplanting the fetal tissues, while the dangers of pregnancy remain imminent.

                       

2. The kedusha involved in pregnancy

 

                Until now our discussion has focused on technical, halachic ideas involved with pregnancy. However, pregnancy carries with it much more.

            One must remember that pregnancy and birth are not only the processes of the mitzvah of pru u’revu on one hand and an issur of hashchatat zera on the other, but the basis of the sanctity of life is hidden in the pregnancy process. The Creator designed man with the power and privilege to reproduce. The core of the creation of man is the forming of the neshama that descends to man’s body. The most precious possession of man is not the biological aspect of parenthood, but rather parenthood in the emotional sense. A mother especially, forges a deep emotional bond with her children. The greatness of a father and mother is not that they formed the bodies of their children, but that they formed their souls. Our sages say that there are 3 partners in the creation of man - God, the father and the mother. The sages attribute to the parents a level of “Creator”, like God. This is not because they mold their child physically, but because they shape him spiritually. Cows reproduce and trees regenerate but they are not termed “partners” with God, they are not even called parents. Only humans, who form body and soul together as one, are partners to God. Therefore, sex, pregnancy and birth are functions of a mitzva that is given within the framework of marriage. These functions are not merely biological. They create the atmosphere that forms kedusha. Any other experience; artificial insemination, pregnancy for purposes other than reproduction - offends and damages the intrinsic holiness that exists in pregnancy. Such activities transform what would otherwise be a holy ideal to a matter of physical biological needs.

            In halacha too, the sources involved in topics of kedusha are partially revealed to us and partially hidden from us. For example, it is known that the issur hashchatat zerah is extremely severe but at the same time we are not told exactll what is the prohibition. Only in the kabbalah do we find an explanation which is of the spiritual nature. Neshamot are created and injured and we humans cannot grasp the significance. From this we may infer that the severity of the topic, its importance and consequences, require that the Torah permit birth only “in the way of the world”, b’derech kol ha’aretz, in accordance with all halachic parameters of kedusha and tahara. Any birth that takes place outside of these parameters, and whose goal is not birth with kedusha and tahara but for some other aim, is prohibited because it cheapens the most holy and precious possession of all.

            Therefore, it seems to me, even without any of the prohibitions mentioned previously, that it pregnancy is prohibited for any purpose other than reproduction.