QUESTION: An observant Jewish woman underwent an ultrasound during her pregnancy. Both the tech and the radiologist were guilty of a glaring oversight - they failed to identify an easily detectable birth defect. The observant woman sued the parties involved. However, the opposing legal team had been advised that as an observant Jewish woman, she would likely have followed Jewish law that generally does not permit the termination of a pregnancy due to a birth defect. Accordingly, she would likely not be able to recover any money, because even if the birth defect was properly identified, the woman would still have elected to have the baby.
If the opposing legal team asks the woman if she would have terminated the pregnancy had the birth defect been properly identified, is the woman allowed to lie and say that she would have terminated the pregnancy?
ANSWER: It would seem from the words of the Yam Shel Shlomo in Bava Kamma (10:20) and the Shach (Choshen Mishpat 348:3) and Rav Moshe Feinstein ZT”L (Igros Moshe, Choshen Mishpat II #29 and 30) that it would be forbidden to lie in such a case. This is also the conclusion of the author of the Mishpat uTzedakah (Vol. I p. 159) which addresses this question. The woman can, however, answer as follows (assuming that she is not 100% certain that she would have had the baby if she was advised of the birth defect during the pregnancy) “I am unsure whether this answers the question and I am unsure whether I am obligated to dig deep inside my psyche to even respond, but I would hope that I would have had the strength to do the right thing and not terminate the pregnancy. However, our holy sages tell us in Ethics of the Fathers, ‘Do not trust in yourself until the day that you die.’ These statements are not lies nor are they misleading and they would be permitted to be said. Having said that, if the woman is fairly certain that she would not have terminated the pregnancy, she should consult her Rav as regardless of what she may be allowed to say, suing and recovering money in this case, may likely be a situation of taking money that is not due to her.
