Q&A: Execution of a Pregnant Woman
Execution of a Pregnant Woman
Question
Mishnah in Arakhin 7a: “A woman who has been taken out to be executed—we do not wait for her until she gives birth. A woman who has sat on the birthing stool—we wait for her until she gives birth.”
Rashi there: “We do not wait for her until she gives birth”—rather, she is executed with her fetus, for it is one body.
According to this logic, why is abortion forbidden as long as labor has not begun? הרי the woman and the fetus are one body, and “a woman’s right over her own body”…
Answer
This really is a puzzling Jewish law in my view, and it has seemed so to me for quite some time. I think the background assumption is that one may not postpone a person’s execution, and without that they certainly would not simply kill the fetus. From this it follows that in the case of abortion, where there is no other need to kill the fetus, it is forbidden to do so even if we view it as one body with her. Beyond that, the fact that they are considered one body for this purpose does not mean they are one body in every respect. And we should also remember that Jewish law forbids us even from doing certain things with what is ours. My house too is mine and I have rights over it, and nevertheless Jewish law obligates me to put up a guardrail and a mezuzah, and not to eat pork that is in my possession, and so on. In general, even regarding myself I have no right to kill myself, so why would I have a right to kill the fetus even if it is part of me? Isn’t it enough that all the fools in the world casually use the stupid slogan of a woman’s right over her own body, without our adopting it into Jewish law as well?!
Discussion on Answer
Hello Avi.
Your first claim is puzzling, because that kind of formalism is not sufficient on the moral plane. Your second claim is one of the things I myself wrote. Except that I do not see any basis at all to permit her to commit suicide together with it.
What is the question? The Talmud learns this from the verse, “and both of them shall die,” where “both” comes to include the fetus as well.
In any case, you see from the Talmud there that a fetus has only monetary status, and there is no prohibition of murder regarding it.
Can it not be understood that if its life depends on her life, and with regard to her there is a legal ruling to put her to death, then its life is automatically lost as well?
Of course its life will end as a matter of fact. The question is what the moral justification for that is.
With God’s help, 19 Kislev 5783
Although fetal life has value, its life is set aside before the life of a person who has already emerged into the world. Perhaps here the Torah took one further step and set aside the life of the fetus because of the prolonging of its mother’s sentence.
Best regards, Yaron Fishel Ordner
I agree with the Rabbi that this Jewish law is a bit puzzling.
In any case, regarding the questioner’s question, the matter is different, because the reasoning there is that since the fetus’s essential life comes by virtue of the mother, and “a fetus is its mother’s thigh,” then once the woman is sentenced to die and her life is cut off, the life of the fetus is automatically cut off as well.
But what connection is there between that and permitting the woman to kill the fetus and end its life while keeping herself alive?
[The question is whether she would be permitted to commit suicide together with it…]