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Abortion in the First 40 Days of Gestation
Reducing a baby in the womb to ‘mere water’ originally offered relief from guilt for miscarriage, an event outside the control of loving parents. Now, denying an unborn baby's existence gives relief from guilt to those who willfully destroy innocent life in the womb.
This is the second of seven Jewish legal opinions regarding the status of unborn human life that depart from the protections for unborn human life stated clearly in Tanakh. We are offering these seven opinions in parallel with the seven Haftorot of Consolation that fall on the seven consecutive Shabbats between Tisha B' Av and Rosh Hashanah. This week we examine the opinion that allows for abortion during the first 40 days of gestation.
Some of our sages whose opinions in the Talmud form the basis of Jewish law, deemed a baby less than 40 days gestation to be unformed, or ‘mere water. Women who miscarried before 40 days were considered not to have been pregnant. A baby over 40 days gestation was believed to be formed. Women who miscarried after 40 days were considered to have been pregnant.
'Mere water' language is found in Yevamot 69b, a book in the Talmud composed in the years 375 - 425 CE. In this book, the rabbis discuss the laws of priestly marriages and the laws that determine when a priest’s wife can or cannot partake of a sacrificial meal offering (teruma). In times of temple worship, community members offer special sacrifices of food to the priests. The donors must be in a state of ritual purity to donate the food. The recipients must be in a state of ritual purity to receive the food.
Within the complicated laws of impurity that govern these transactions, it is stated that she partakes of teruma only until forty days after her husband’s death, when there is still no reason for concern, as if she is not pregnant then she is not pregnant. And if she is pregnant, until forty days from conception the fetus is merely water. It is not yet considered a living being, and therefore it does not disqualify its mother from partaking of teruma.
https://www.sefaria.org/Yevamot.69b.9-10?lang=en&with=all&lang2=en
Another ‘mere water’ reference is in the widely respected Shulchan Aruch, Code of Jewish Law, published in 1585 CE. In the laws of prayer, it is stated that, if one's wife is pregnant and he wants a male child, he can pray up until 40 days: 'May it be [God's] will that my wife will give birth to a son', since up until 40 days [the fetus] is merely water [viz. not formed]. But after 40 days, when the form has been solidified, praying 'May it be [God's] will that my wife will give birth to a son' would be a vain prayer, for what has happened has already happened, and it cannot be changed.
In part four of the 2011 publication, A Lifetime Companion to the Laws of Jewish Family Life, author Deena R. Zimmerman MD, cites the ‘mere water’ designation in a discussion about abortion. Therefore, abortion is generally frowned on in halacha. However, there are rare situations, such as to save the life of the mother, where it will be permitted....As the fetus is considered to be “mere water” prior to 40 days after conception, abortion prior to seven weeks is easier to permit....Should a woman undergo an abortion prior to 40 days after conception, she has to follow the laws that apply to a niddah (laws of the menstrual cycle). After 40 days the rules of yoledet (childbirth) apply.
Jewish law frowns on abortion because our law draws its inspiration from our religious texts. Prohibitions against child sacrifice (Leviticus 20:2-5) and shedding innocent blood (Psalm 106:35-39) abound in the Bible. Jeremiah(1:5), Isaiah(49:5), Job(31:15), and King David(Psalm 139:13-16) all declare the wonder and mystery of their formation in the womb. Opinions in the Talmud that support the humanity of the baby in the womb from conception include the great Talmudists Rabbi Yehuda HaNasi (Sanhedrin 91b) and Rabbi Ravina (Sanhedrin 110b).
The decision to deny pregnancy in the first 40 days of gestation was well intentioned, but mistaken. Mistaken because it was not based on truth. In her exegesis of Joseph Needham’s, A History of Embryology, Karen Wellner notes that during the early centuries of the common era, the Greek and Arab experts in the ancient science of embryology had no factual evidence to offer about the formation of babies in the womb. We can understand the plausible deniability that allowed this mistake to gain popularity in the ancient world.
Today we have all the evidence we need to restore the humanity and dignity to the unborn baby. A human life begins at conception. Ensoulment occurs at conception. A mother is pregnant with a child at conception. A man is a father when his child is conceived.
We now know that during the first 40 days after fertilization the human body grows and develops rapidly. We know that surgical and chemical abortion at this stage of development destroys a living human being. See the amazing images of embryonic growth in the Interactive Prenatal Development Timeline at the Endowment for Human Development.
Reducing a baby in the womb to ‘mere water’ originally offered relief from guilt for miscarriage, an event outside the control of loving parents. Now, denying an unborn baby's existence gives relief from guilt to those who willfully destroy innocent life in the womb.
Our sages could not foresee the global unintended consequences of their decision.They could not image a future of industrialized baby killing, made possible by the use of language that reduces a human being to a lifeless, disposable sac of fluid.
It’s long overdue to correct this mistake and tell the truth about the wonder and miracle of human life in the womb before 40 days gestation. Correcting this mistake requires intellectual honesty, moral integrity and a big dose of humility. These hurdles must be overcome.
Not only must we restore the humanity and dignity to the baby in the womb, we must restore Judaism to its role as the nation of truth and wisdom, as stated in Deuteronomy 4:6. “Observe them [the decrees and laws as the Lord my God commanded me] carefully, for this will show your wisdom and understanding to the nations, who will hear about all these decrees and say, “Surely this great nation is a wise and understanding people.”
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Cecily Routman
May there be abundant peace from Heaven, and good life upon us and upon all Israel. Amen.
Cecily Routman is the founder and president of the Jewish Pro-Life Foundation. She opposes abortion homicide in general and among Jews in particular and laments secular policy making in Israel that results in loss of Jewish life and delays the messianic redemption. She envisions a Torah based holy Land of Israel and a world that respects the life of every human being from conception.