Roe V. Reydt

Our Gemara on amud beis asserts that a fetus prior to the 40th day from conception is considered as if it is “merely water”. The Gemara in Menachos (99b) also implies that the fetus does not yet have a soul until 40 days. The idea that prior to 40 days, the fetus is not considered human has implications for early abortion.  

Though Rav Moshe (Iggeros Moshe CM II:69) does not consider this principle to be sufficient grounds to permit abortion, Rav Henkin (Shu”t Benei Banim III:38) considers this to be an important leniency for certain situations. For example, for a person who is at risk for birth defects that can be determined by some test prior to 40 days from conception, Rav Henkin is inclined to permit the embryo to be aborted prior to 40 days if it seems to be defective.  This also may have relevance for someone who was raped, as a “morning after” intervention. Actually, even 39 mornings after. None of these interventions are permitted for frivolous reasons, as this should be at least as problematic as the prohibition of wasting seed.

Rav Henkin considers this principle so powerful, that he also applies it as a stringency.  If a situation were to arise where a fetus less than 40 days old is in danger, but the mother is not in danger, he would not allow violating Shabbos to save the “baby”.

This subject is a timely one with the overturning of Roe v. Wade. Of course please do not pasken from an internet article, but it is important in today’s times for people to have a good understanding of Torah ideas about when life begins, so we can intelligently fight the tide of callous disregard.  

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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