Our Gemara on Amud Aleph teaches:

Rava says that regarding the offspring of a cow that gores while pregnant, it is prohibited to bring the animal as an offering, just like any animal that has killed a person. This is because both the cow and its unborn offspring gored together. Similarly, in the case of the offspring of a cow that was the object of bestiality while the fetus was in utero, it is prohibited to bring it as an offering, as both the cow and its unborn offspring were involved in the act of bestiality together.

This Gemara holds that the fetus is considered as the mother. Rabbi Akiva Eiger (I:172) raises a question in his Teshuvos: if this is true, why is it ever permitted to have intercourse with a pregnant woman? If the fetus is considered as the mother, wouldn’t this be akin to incest? Rabbi Akiva Eiger offers an interesting answer: Since a child under the age of three is not considered capable of engaging in intercourse—meaning that the sexual organs are not yet considered distinctly sexual—it is not viewed as an incestuous act.

Rabbi Chaim Kanievsky (Merafsin Igra 44 p. 300) provides a different answer. He agrees that the Gemara considers the fetus as part of the mother, but not as a sexual part. Rather, it is viewed as any other limb of the body. Just as the arm of a cow that gored also dies, so too does the fetus.

Some have questioned how Rabbi Akiva Eiger could ask such a question, because if the fetus is indeed considered as the mother, could it not also be asked whether, if the fetus were male, it would be considered homosexuality as well as incest? However, I believe this is not a question, and those who ask this do not fully understand Rabbi Akiva Eiger’s logic. The definition of the act derives from the reality of the mother—whether it is goring or intercourse. The act was not one of homosexual sex, so in that case, the male fetus is viewed as any other limb of the body, not in a sexual manner. But if the fetus is a participant, and the act is sexual, then a female fetus could be considered incestuous, unless we follow Rabbi Akiva Eiger’s explanation (though not necessarily Rabbi Chaim Kanievsky’s).

As an important aside and clarification, many have misunderstood this Talmudic legalism, interpreting the notion that a female body under the age of three is incapable of experiencing intercourse as somehow permitting child abuse or molestation. This is false. It is forbidden to mistreat or harm a child of any age, and the rabbis did not consider such forms of molestation to be healthy or appropriate, even if they did not classify the act as sexual. In fact, Mishna Niddah (5:4) compares such an act to "poking a finger in the eye." Some have misconstrued this Mishna as minimizing abuse, but this is not the case. Just as the Gemara differentiates between actions that are not legally murder but still morally reprehensible (such as leaving someone tied up to die from heatstroke), it is similarly unacceptable to poke a child’s eye out or molest an infant, even if not viewed as sexual according to certain legal principles.

It is crucial to appreciate the rabbinic approach to legal philosophy. The rabbis held a deep reverence for the law and a profound fear of God, which motivated them to make fine distinctions and definitions so they could best understand the word of God. They recognized that human bias and social trends could cloud moral judgment, and they took great care to rationally define what is and is not permissible. While the question Rabbi Akiva Eiger raises may seem odd—after all, do we really need someone to justify intercourse with a pregnant woman as non-incestuous?—it reflects the intense legal precision that came from a deep respect for the nuances of Torah law.

This regard for precise legal definitions parallels the error made by Chava in the Garden of Eden (Sanhedrin 29a), where her imprecision in her communication with the snake led to her seduction. God had told her, "Do not eat from the tree," but she told the snake, "We are forbidden to touch the tree," which led the snake to deceive her by pushing her to touch it and proving she wouldn’t die (see Rashi, Bereshis 3:3). The rabbis believed that one must be meticulous and precise when discussing God’s laws. Yet, legal definitions are not sufficient on their own to fully capture morality. We must apply the moral principles derived from Torah law to our own circumstances, even when no explicit law applies (see Ramban, Vayikra 19:2, and Magid Mishna, Laws of Partnerships).

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

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Rabbi Simcha Feuerman, Rabbi Simcha Feuerman, LCSW-R, DHL is a psychotherapist who works with high conflict couples and families as well male sexual health. He can be reached via email at simchafeuerman@gmail.com