" . . .The law of homicide in the Torah, in one of its formulations, reads: "Makkeh ish..." "He who smites a man..." (Ex. 21:12). Does this include any many, say a day-old child? Yes, says the Talmud, citing another text: "...ki yakkeh kol nefesh adam" "If one smite any nefesh adam" (Lev. 24:17) - literally, any human person. (Whereas we may not be sure that the newborn babe has completed its term and is a bar kayyama, fully viable, until thirty days after birth, he is fully human from the moment of birth. If he dies before his thirtieth day, no funeral or shivah rites are applicable either. But active destruction of a born child of even doubtful viability is here definitely forbidden.) The "any" (kol) is understood to include the day-old child, but the "nefesh adam" is taken to exclude the fetus in the womb. The fetus in the womb, says Rashi, classic commentator on the Bible and Talmud, is lav nefish hu, not a person, until he comes into the world. Feticide, then, does not constitute homicide, and the basis for denying it capital-crime status in Jewish law - even for those rabbis who may have wanted to rule otherwise - is scriptural. Alongside the above text is another one in Exodus that reads: "If men strive, and wound a pregnant woman so that her fruit be expelled, but no harm befall [her], then shall he be fined as her husband shall assess...But if harm befall [her], then shalt thou give life for life" (21:22). The Talmud makes this verse's teaching explicit: Only monetary compensation is exacted of him who causes a woman to miscarry. Note also that though the abortion spoken of here is accidental, it contrasts with the homicide (of the mother) which is also accidental. Even unintentional homicide cannot be expiated by a monetary fine. (82) . . ."
