MEDICAL USE OF THE FETUS
QUESTION:
Is it permissible in Jewish law to retain the organs of the human fetus and keep them growing for use as transplants? Also, if the infant lives a few days, is the fetus medically usable from the point of view of the halakhah? (Asked by Rabbi Herbert Morris, San Francisco.)
The essential question is: What is the status of a fetus in Jewish law? In this regard the halakhah is diametrically different from the view of the Catholic Church. To the Church, the fetus is a living being from the very beginning of conception. To Jewish law, it is part of the mother’s body. The phrase is ubor yerekh imo, The unborn is part of the mother’s body,” which means that just as a person may sacrifice a leg or an arm by amputation in order to save the rest of the body, so a fetus may be destroyed if it endangers the mother’s life. So the Mishnah (Oholot 7:6) states definitely that if during the birth process the infant is endangering the mother’s life, it may be cut up and thus save the mother. If, however, the fetus puts forth its head, it is considered a living creature and may not be destroyed.
So there is no question that if it is necessary to save another person’s life, a fetus may be used for that purpose, as indicated in the question. After all, a person who needs an implant of a liver or a kidney is a patient in danger, and for a patient in danger of death, all prohibitions are suspended. So certainly a fetus may be used to save a life, even though in this case the life is not, as the Mishnah says, the mother.
The second question is a variation of the above. If the fetus is born alive but dies within a day or two, may it be used for the above mentioned medical purpose? Of course, the fetus born alive and living for a few days is a person, and when a person dies, all of his body must be buried; even if the body is found with the blood scattered around it, that blood must be buried with him. However, this requirement does not apply to a fetus unless it lives for thirty days. There is, for example, no mourning to be observed for a fetus that does not live for thirty days. Therefore, we may well conclude that parts of this fetus, too, may be used to save lives, especially if there is an invalid waiting for an organ; in other words, if the use of the fetus is not merely theoretical, i.e., that some day it may be used. If there is an immediate, present use for parts of the fetus, there is no question it may be so used.
I discussed part of this subject in Contemporary Reform Responsa, pp. 155 ff. I add the following quotation from it:
“For example, there is no objection to destroying a fetus that is less than forty days old (see Solomon of Skola Bet Shelomo Hoshen Mishpat 132, Lemberg, 1878). But even if the fetus is older than forty days, there is a strong line in the Jewish legal tradition which does not consider the unborn child to be a separate soul (see Rashi to Sanhedrin 72b) and also Joshua Falk (16th-17th century; Me-irat Enayim to the passage in Shulhan Arukh Hoshen Mishpat 425.8): ‘Every fetus that does not come out or had not come into the light of the world is not to be described as a nefesh, i.e, a living soul.”
“A modern summary of the law was made by the late Sephardic Chief Rabbi of Israel, Ben Zion Uziel, who said (Mishpatei Uziel III 46 and 47) that after a general analysis of the subject, an unborn fetus is actually not a nefesh at all and has no independent life. As a matter of fact in talmudic times, we are told that there was a place outside of the city in which people disposed of amputated limbs and where women buried their stillbirths. It is evident that fetuses were just informally disposed of.” (Ketubot 20b)