Extending Rava’s reasoning to abortion TB Baba Kama 47

The Mishna on yesterday’s daf presents a disagreement between Sumakhos and the sages. Sumakhos holds when there is a doubt of ownership in monetary matters, the litigants divide the money, “מָמוֹן הַמּוּטָּל בְּסָפֵק – חוֹלְקִין.” On the other hand, the rabbis teach, “But the Rabbis say that this is the significant principle of monetary law: The burden of proof rests upon the claimant, and the disputed sum is not divided.- הַמּוֹצִיא מֵחֲבֵירוֹ – עָלָיו הָרְאָיָה.” (Sefaria.org translation) Even though the halakha follows the rabbis, the Gemara spends a lot of time explaining Sumakhos’ position concerning the second half of the Mishna. “And likewise, there is uncertainty in the case of an innocuous cow that gored an ox, and the cow’s newborn offspring was found at its side dead or alive, and it is not known whether the cow gave birth before it gored the ox or whether the cow gave birth after it gored. When damage is caused by an innocuous animal, the liability of the owner is limited to the value of the animal that gored. Therefore, half the cost of the damage is paid from the value of the cow, as in the standard case of an innocuous animal. And if that does not suffice to pay for half the cost of the damage, one-quarter of the cost of the damage is paid from the offspring. Since it is uncertain whether the offspring was part of the cow at the time the cow gored, the owner pays only half of what he would pay if it were certain that it was part of the cow.” (Sefaria.org translation)

On today’s daf TB Baba Kama 47 we learn from Rava’s understanding, the Jewish approach to abortion.

“Rava said: Actually, the mishna is referring to a case where the cow and its offspring belong to one person, and this is what we are saying: The halakha is that with regard to damage caused by an innocuous animal, restitution is paid only from the money realized by selling the belligerent animal. Therefore, if the cow is here, half the cost of the damage is paid from the value of the cow itself; if the cow is not here, e.g., it went astray, only one-quarter of the cost of the damage is reimbursed from the offspring.

“The Gemara infers: According to Rava, the reason for paying only one-quarter of the cost of the damage is that we do not know if the offspring was with it, as a fetus, when the cow gored or whether it was not. But if it is obvious to us that the offspring was with it as a fetus when it gored, the full amount of half the cost of the damage may be reimbursed from the offspring if the cow is not there.

“The Gemara comments: In this respect, Rava conforms to his line of reasoning, as Rava says: In the case of a cow that caused damage while pregnant, the injured party collects compensation from its offspring, i.e., the offspring that had been a fetus at the time of the goring. What is the reason? It is because it is considered an integral part of its body (גּוּפַהּ הִיא) and therefore may be used to collect payment. By contrast, in the case of a hen that caused damage, the injured party does not collect compensation from its egg. Payment can be collected only from the body of the hen. What is the reason? The egg is simply a secretion and not an integral part of the hen’s body.” (Sefaria.org translation)

The fetus isn’t considered a separate entity, but an integral part of the mother’s body. Elsewhere in the Gemara this relationship is described “a fetus is considered as its mother’s thigh, i.e., a part of its mother,- עוּבָּר יֶרֶךְ אִמּוֹ הוּא ” (TB Baba Kama 78b and other places, Sefaria.org) Of course, there are those who hold that the fetus isn’t considered as its mother’s thigh. Because the Gemara on our daf doesn’t extend the sugiyah with the discussion of those who don’t hold that the fetus is part of his mother, the halakha follows Rava. Indeed Tosefot ד"ה  מַאי טַעְמָא? גּוּפַהּ הִיא

 poskins “a fetus is considered as its mother’s thigh, i.e., a part of its mother,- עוּבָּר יֶרֶךְ אִמּוֹ הוּא ” poskins like Rava.

Since the fetus is a part of the mother, Jewish law under some circumstances permits abortion. “Although a fetus is definitely a potential life, it is not considered an autonomous person with the same rights as fully viable human beings by Jewish law or tradition. Therefore, when the mother’s life is in danger, the Mishna (at M Ohalot 7:6) requires that the pregnancy be terminated and the mother’s life saved. (The principle that the fetus is not a human being is learned from a passage of the Torah that requires monetary damages from a man who strikes a pregnant woman and causes a miscarriage [Exodus 21:22-23]. If the fetus were a full human being, the offender would have been guilty of murder, yet the Torah holds him liable only for monetary damages. This was taken to demonstrate adequately that the fetus is not considered fully to be a human being.) ” (The Observant Life, edited by Cohen and Katz, page 621)

The Jewish view on abortion is complex with a variety of opinions where one may draw the line to protect the potential life of the fetus and when to permit abortions. Nevertheless, the bottom line is Jewish law does permit abortion.