Is there a death penalty for abortion? Explanation of a Talmudic passage in light of the Septuagint translation. Post for Parshat Mishpatim. By Chaim Sunitsky.
The Talmud (Sanhedrin 57b) states the following:
[They] said in the name of R. Yishmael: [a Ben Noah] is also commanded [not to abort] a fetus. Where does he learn it from? As it’s written: (Bereshit 9:6) “Whoever murders a person, by a person his blood should be spilled”. [This can be read as: “Whoever murders a person inside a person, his blood should be spilled”].Who is the “person within a person”? This is a fetus within a mother.
The implication of the Talmud is that abortion is equivalent to murder. I would seem that the opinion of Rabbi Yishmael contradicts the Torah verses in Parshat Mishpatim (21:22-23):
"If two got into a fight, and hurt a woman causing her to miscarry, if there was no ason (disaster), the [guilty party] must pay ... but if ason happens, he must pay with his life."
The word “ason” is assumed to mean the death of the mother. The Torah thus requires only monetary payment for causing miscarriage implying that there is no death penalty. Moreover according to the Talmud, the one who incurs death penalty never has to pay for damage. If causing the death of the fetus was considered like murder, then the one doing this would not have to pay.
One of the traditional answers makes a distinction between the laws of "the Children of Noah" and laws for the Jews. Although abortion is forbidden for Jews and non-Jews, in the case of Jews, the Torah requires only financial compensation, while non-Jews get death penalty.
However we can offer an interesting interpretation that can be learned from the Septuagint:
“If two men fight and [one] strikes a pregnant woman and her child comes forth not fully formed, he should be punished with a fine … but if it is fully formed he should pay with his life …” The translators of Septuagint understood the word “ason” in our verse as referring not to the mother but to the child. According to this, only if the woman was hit in the first stages of pregnancy, and an embryo was miscarried, does the assaulter pay, but if the fetus was already formed, his murder is [potentially] punishable by death.
It has been noted before that the passage in Sanhedrin 57b implies that not everyone agrees with Rabbi Yishmael. It is therefore possible that the opinion of Rabbi Yishmael contradicts the accepted Halacha which takes “ason” to mean the death of the mother. According to this it is possible that the opinion of Rabbi Yishmael is in accordance with the translators of the Septuagint.
 In general, this Greek translation was made by great sages, but for various reasons was preserved only by non-Jews. The modern version of the Septuagint may differ from the original. Note also that when many Jews spoke Greek, there existed several Greek translation of the Torah, including the well-known translation Akilas (see Yerushlami, Megila 10b) that was approved by the leading rabbis and perhaps was used as base of our "Targum Unkelus” translation into Aramaic.
 Sanhedrin 79a.
 Gitin 52b and parallel places.
 This is true even if the death penalty is only in potential, and he is not actually executed.
 See Tosafot, Sanhedrin 59a, Hulin 33a. For possible Halachic consequences of this approach, see. Tshuvot Vehanhagot 1:873-874.
 Generally traditional poskim with the exception of R Yechiel Yakov Weinberg did not study Septuagint, and Bible scholars who realized the implications of this verse in Septuagint did not relate it to the opinion of Rabbi Yishmael in the Talmud.
 Note that according to the Talmudic Law, in practice the one who killed the fetus is in any case not executed because the fetus has no "chezkat chaim" - guarantee that he would be born alive.
See Questions and Answers Lehorot Nathan 3:123-127, Tzitz Eliezer 9:51:3, Yabia Omer, Even Haezer 4:1 and S’ride Esh 1:162 all discuss the question of whether the law follows Rabbi Yishmael.
 According to this it seems that R. Yishmael does not consider an embryo to be “a person within a person”, but only when the fetus is being formed does his rule apply. Maybe this is hinted in the wording “a person within a person”, the fetus has to resemble a person. Presumably that can only be after 40 days of pregnancy (see Mishna Bechorot 8:1), and sometimes possibly later (see for instance Rema in Shulchan Aruch, Yore Deah 305:23).
 I am wondering if the debate about whether "the fetus is yerech imo - part of the mother" (see for instance Yevamos 78, Sanhedrin 80b) has anything to do with the dispute of how to translate the word ason. For practical corollary of this dispute see the GR"A, Orach Chaim 605:1.