The genetic syndrome Tay-Sachs, common among Ashkenazi Jews, renders ineffective an enzyme responsible for the breakdown of a certain fat in the brain and spinal chord. By the first few months of the child’s life, this fat accumulates to toxic levels, and symptoms including deteriorating motor function, seizures, and paralysis become apparent. Children with Tay-Sachs generally do not live past the age of four. If prenatal testing finds evidence of Tay-Sachs, the most desirable option seems to be to abort the pregnancy.

When the question of aborting a fetus determined to express Tay-Sachs was first raised in 1975, the test available to establish that diagnosis could only be done after the third month of pregnancy. This would mean missing a crucial deadline established by Halacha – after three months, abortion for reasons other than to save the mother (if delivering the fetus would place her life at risk) is prohibited. So does this unquestionably preclude a pregnancy with a Tay-Sachs fetus from being aborted?

Rabbi Eliezer Waldenberg, in his responsa Tzitz Eliezer,1 relied on some Rishonim who held that it is prohibited for a Jew to kill a fetus only on a D’Rabanan, rabbinic, level, as opposed to a biblical prohibition. In Israel, where most of the physicians are Jewish, this would be less of an issue. Another source for which he found support for permitting this case is a responsa of the Maharit,2 in which he ruled that it would even be permitted for a Jewish mother to have an abortion for reasons of health, even not in the face of life-threatening danger.

Based on these sources and others, Rav Waldenberg held that since there was no pain greater than the inevitable loss of the child, as well as the years of suffering for both the parents and the baby before that, there was room to apply the heter of the Maharit to abort when delivering the fetus would adversely affect the health of the mother.

Rabbi Moshe Feinstein wrote a lengthy essay in which he sharply challenged the ruling of Rav Waldenberg.3 He cites two major Rishonim that were of the opinion that abortion is, in fact, murder:
One of the sources for the prohibition of abortion is a Tosfos in Sanhedrin4 that says that while a Jew is not administered capital punishment for killing a fetus, he is still prohibited against doing so. Rav Moshe understands this prohibition to be categorized as retzicha, or murder. There is also a Tosfos in Nida that has a discussion in which he says twice that killing the fetus before birth is totally permitted. But as was just mentioned, Tosfos in Sanhendrin wrote that killing a fetus is murder. So how could Tosfos suggest in Nida that killing a fetus is permitted?
So Rav Moshe posits that there must have been a copying mistake in the Tosfos. Rather, instead of “mutar”, or permitted, the text in Tosfos should have said “patur”, or exempt from punishment, yet still prohibited.

Rav Moshe then introduces the Rambam’s approach to abortion. For the Rambam, abortion is almost always prohibited – except when delivering the baby would endanger the mother’s life. The Rambam subsumes this exception within the laws of rodef,6 or one who pursues a potential victim with the intent to murder him. There is a mitzvah to prevent the pursuer from committing the murder, even if that would require killing him. In the middle of the discussion, the Rambam says that this is the reason why Chazal said that if a woman in labor runs the risk of death, the fetus should be aborted. Since the fetus is threatening her life, he has the status of rodef and must be killed so that she may live.

Rav Moshe writes that it is very clear from the Rambam that the fetus is aborted precisely because he is a rodef – and not because there is no prohibition of murder in killing the fetus. According to the Rambam, there is indeed a prohibition of murder in abortion, but the only reason we abort the fetus when it endangers the mother is because the mitzvah to save the life of the victim being pursued – in this case, the mother – supersedes this prohibition.

With regards to the Tzitz Eliezer’s source in the Maharit, Rav Moshe thought that particular responsa was falsified in his name, and finds strong proof in the words of the Maharit himself just two simanim previously, where he ruled on this exact issue to the contrary.

Rav Moshe ends by saying that since the fetus with Tay-Sachs does not pose a threat to the mother, he may not be aborted past three months because he cannot be defined as a Halachic rodef. This is the case even though the child will certainly die within a few years, and his death will cause much suffering to the parents. Furthermore, he cautions Torah-observant doctors against screening the fetus for the syndrome, since no good will come out of it, because they will be unable to abort the fetus and will cause grief to the parents for longer than necessary.

Rav Waldenberg later wrote a point-by-point rebuttal7 to Rav Moshe. He points out that the only incontrovertible conclusion from the Tosfos in Sanhedrin is that Jews are prohibited to kill a fetus as much as non-Jews are, and that there is no consensus among scholars as to whether Tosfos meant that the prohibition is biblical or rabbinic. With regards to the Tosfos in Nida, Rav Waldenberg was taken aback at how Rav Moshe “took the easy way out” and dismissed the proof there as a printing typo in the face of centuries of rabbinic literature that struggled to explain the text as is, some of which Rav Waldenberg references to. Rav Waldenberg also challenged Rav Moshe’s assessment of the Rambam, citing the Sema8, who maintained that the Rambam did not hold that killing the fetus is murder, as well as the Radvaz9 (who disagreed with the Rambam entirely on whether the baby is a rodef). Concerning the Maharit, Rav Waldenberg brought his own evidence to reaffirm the validity of that responsa, all the while criticizing Rav Moshe’s seemingly simplistic approach.

In the world of Halacha, generally speaking, what Rav Moshe had to say always carried tremendous weight, and many of his rulings have shaped our Halachic practice today. It would seem that the issue of abortion of Tay-Sachs fetuses would be no different. However, considering both Rav Waldenberg’s particular expertise in medical ethics, as well as his sound arguments, the discussion is far from closed, and experts of stature should be consulted on this still-controversial issue.

שו”ת ציץ אליעזר חלק יג סימן קב .1
שו”ת מהרי”ט חלק א סימן צט .2
תס”ט-ספר הזכרון למרן הגר”י אברמסקי זצ”ל, עמ’ תס”א .3
סנהדרין נט. תד”ה ליכא מידעם דלישראל שרי .4
נדה מד. תד”ה איהו .5
רוצח פרק א הל’ ט .6
שו”ת ציץ אליעזר חלק יד סימן ק .7
סמ”ע חו”מ ס’ תכה סק”ח .8
שו”ת רדב”ז חלק ב סימן תרצה .9


Aryeh Gurvich | December 3, 2015