Abortion in Tay-Sachs Cases
Tuesday, November 28, 2006 Today's class paid tribute to Rav Eliezer Waldenberg, zt'l, the Ttitz Eliezer (http://en.wikipedia.org/wiki/Eliezer_Waldenberg), one week after his passing. Rabbi Kermaier chose one of Rav Waldenberg's most famous and controversial teshuvot, concerning abortion in cases of Tay-Sachs disease.
By way of background, Rabbi Kermaier noted that halacha generally prohibits abortion but does not deem it murder or a capital offense. Halacha mandates abortion when the fetus is a "rodef" (pursuer), posing a danger to the life of the mother, or even to one of her limbs, one of her functions (e.g., sight), or her mental condition (e.g., if she may become suicidal). In cases where the fetus has a horrible illness or a developmental disability, halacha generally prohibits abortion, but there are cases in which abortion is permitted. For instance, in cases of Down Syndrome, the halachic discussion often focuses on how late in the pregnancy may an abortion be performed. Halacha treats the following stages of pregnancy as milestones: (i) conception, (ii) 40 days (prior to which the fetus is considered to be like "water"), (iii) 3 months (at which point the fetus is "recognizable"). The question for Rav Waldenberg concerned Tay-Sachs diagnosed beyond the 3-month point. Rav Waldenberg responded that it seemed to him, given the severity of the ramifications of Tay-Sachs -- stunted physical and mental development, followed by paralysis, blindness, and inevitable death, almost certainly by the age of 4, as well as the absence of any cure -- abortion is permissible until 7 months into the pregnancy. Rabbi Kermaier noted two important aspects to this statement. First, Rav Waldenberg went beyond the three halachic milestones of pregnancy to a fourth, the seven-month stage, where the fetus is nearly fully formed. Second, he established that an incurable disease in the fetus can justify abortion. Rav Waldenberg added a proviso that he would permit abortion so long as the procedure does not threaten the mother's health. Rav Waldenberg noted that while abortion is not murder or a capital offense, it is prohibited by halacha, though many poskim hold that the prohibition is rabbinic only. The only discussion of abortion in the Torah concerns the case of the two men who are fighting, with one hitting a pregnant woman and causing her to miscarry, and that case involves a civil fine. Rav Waldenberg mentioned the possibility that the general prohibition of abortion is a "geder" (fence) to assure the population of the world. Against this background, the Maharit permitted abortion when the fetus posed a danger to the mother's health that was not life-threatening. Rav Yaakov Emden (http://en.wikipedia.org/wiki/Yaakov_Emden) went further, permitting abortion to save the mother from excruciating pain, provided that the fetus is not about to be born. From Rav Yaakov Emden's teshuva, Rav Waldenberg developed the concept that abortion may be permissible in cases of great need even in the absence of pikuach nefesh (danger to life or health) for the mother. If this is true, Rav Waldenberg asked, what would cause greater pain than a case of Tay-Sachs? It is predetermined that the fetus, if born, will suffer pain and calamity, with certain death to follow, and the parents will witness it all without hope for a cure. Nor did it make a difference to Rav Waldenberg that the child could theoretically be institutionalized promptly after birth. He pointed not only to the pain of the parents but the extraordinary suffering of the child. If one may perform an abortion to address a case of great need and to avoid pain and suffering, this, Rav Waldenberg concluded, would be a classic case. In this regard, he did not distinguish between physical and emotional pain, noting that emotional distress can be even greater than physical suffering. Rav Waldenberg added that it is preferable for the abortion to be performed by a woman doctor, to cover the view that the halachic problem with abortion is the wasting of seed, a prohibition that applies only to men.
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