Q&A: The Age of the Fetus
The Age of the Fetus
Question
What is the significance of 40 days in pregnancy? Is that counted from the beginning of the pregnancy or from intercourse?
What halakhic implications does this point in time have, and can it help us define the fetus as a person regarding abortion?
Answer
It has halakhic significance, but this is a conception of the Sages. Medically, I do not know exactly what happens at that point. It would be worth asking doctors.
https://he.wikipedia.org/wiki/%D7%9E%D7%A2%D7%9E%D7%93_%D7%94%D7%A2%D7%95%D7%91%D7%A8_%D7%91%D7%94%D7%9C%D7%9B%D7%94
Discussion on Answer
My personal opinion is that I do not know from when it is a person, and precisely because of that there is a moral prohibition against aborting it at any stage. From when would there be a death penalty for murder? There is no such penalty for a fetus.
And why is there no punishment in terms of Jewish law for killing a fetus?
I do not know the laws of punishments. But it is likely that the Sages held that it is not a full person.
It seems to me that for a non-Jew there is a death penalty for this.
Correct, and that is a hint to the root of the law. It seems that the fetus is considered like a person, but not like a Jew. Therefore, the prohibition that applies is “whoever sheds the blood of a person” and not “you shall not murder,” exactly like a gentile. And from this it follows that one who kills it is not liable to death, just as one who murders a gentile is not liable to death, because there is no death penalty for “whoever sheds the blood of a person,” only for “you shall not murder.” (What I wrote was that there is a moral prohibition here even if not a halakhic one, but more precisely there is a halakhic prohibition here of “whoever sheds the blood of a person” and not of “you shall not murder”; rather, this halakhic prohibition is a moral prohibition like the other Noahide prohibitions.) But a gentile who transgresses “whoever sheds the blood of a person” is liable to death, and therefore that is also the law regarding a fetus. Study this carefully.
I liked that.
What is your personal opinion on the matter? From looking through the site, no clear answer emerges regarding defining the fetus as a person.