Judaism and abortion

In Judaism, views on abortion draw primarily upon the legal and ethical teachings of the Hebrew Bible, the Talmud, the case-by-case decisions of responsa, and other rabbinic literature. While all major Jewish religious movements allow (or even encourage) abortion in order to save the life or health of a pregnant woman, authorities differ on when and whether it is permitted in other cases.

Biblical sources

There is no direct reference in the Hebrew Bible to an intentional termination of pregnancy. However, Numbers 5:11–31 refers to a priest preparing "bitter water", which causes an unfaithful wife to miscarry when she drinks it. Further, Exodus 21:22 refers to a birth or miscarriage as a result of a violent altercation. This deals with a situation of men inadvertently striking a pregnant woman, causing her to either give birth prematurely or to miscarry, and reads:

And if men strive together, and hurt a woman with child, so that her fruit depart (i.e., stillbirth), and yet no harm follow, he shall be surely fined ... and he shall pay as the judges determine.

The ancient Jewish historian Philo taught that the term "harm" refers exclusively to the child, and whether a fine is imposed or capital punishment depends on whether the fetus has sufficiently formed.[1] According to Rashi and other Talmudic commentators, the term "harm" refers only to the mother, and traditionally, unless the mother was harmed too, only a fine was imposed for causing a miscarriage.[1]

In mainstream rabbinic Judaism, the Biblical verse is one of several key texts that substantiate the later rabbinic prohibition on most cases of abortion. However it is not considered murder since "Jewish law does not consider a fetus to be alive." The verse shows "that the fetus is not a person. The primary concern is the well-being of the person who was injured."[2]

Rabbinic sources

Rabbinic law or halakhah permits abortion in cases of 'great need.' Most denominations interpret the pain and suffering (mental and medical/physical) of a pregnancy as sufficient: "From Other authoritative Jewish texts further emphasize that the fetus does not have the status of personhood, describing it as “mere fluid” for the first 40 days after conception and part of the pregnant person’s body thereafter. This led some rabbinic authorities to rule that, as Rabbi Jacob Emden did in the 18th century, “there is reason to be lenient [in permitting abortion]… only so as to save her from woe,” or as Rabbi Eliezer Waldenberg did in 1978, abortion is a valid choice when not terminating might cause “suffering and emotional pain.”"[3]

Most Rabbinic interpretations even insist on abortion in order to the save the pregnant woman's life. The fetus is viewed as valuable, but as less than fully human. "The existing life takes precedence over the potential life."[4] Judaism puts saving a life above almost any other consideration, and it is clear which is regarded as the living person in case of pregnancy.

The importance of saving a fetus

In halakha, just as the principle of pikuach nefesh allows violating nearly all laws in order to save a human life, many laws may be violated in order to save the life of a fetus. Shabbat must be violated to save the life of a fetus.[5] A pregnant woman who develops a ravenous hunger must be fed even on Yom Kippur to prevent loss of life;[6] later authorities debate whether the situation describes involves danger to the fetus, mother, or both.

The fetus as less than fully human

Rabbinic Judaism does not regard the fetus as a full human being. While deliberately killing a day-old baby is murder, according to the Mishnah, a fetus is not covered by this rule.[7] In the reading of Biblical homicide laws, rabbinic sages argue that homicide concerns an animate human being (nefesh adam from Lev. 24:17) alone, not an embryo... because the embryo is not a person (lav nefesh hu).[8] An embryo is not deemed a fully viable person (bar kayyama), but rather a being of "doubtful viability".[9] Hence, for instance, Jewish mourning rites do not apply to an unborn child. The status of the embryo is also indicated by its treatment as "an appendage of its mother"[10] for such matters as ownership, maternal conversion and purity law.[11] In even more evocative language, the Talmud states in a passage on priestly rules that the fetus "is considered to be mere water" until its 40th day.[12] Elsewhere, the Talmud speaks of a "moment of determination" and a "moment of creation" in regard to different stages of the fetus.[13] Rashi explains that the moment of creation is when bones and arteries begin to form[14] and in other places he says that the "moment of creation" is at the 40th day.[15]

Modern scholars draw a sharp contrast between the theologies behind Jewish and Catholic opposition to abortion. After favorably reviewing Christian opposition to abortion, Immanuel Jakobovits writes: "In Jewish law, the right to destroy a human fruit before birth is entirely unrelated to theological considerations. Neither the question of the entry of the soul before birth nor the claim to salvation after death have any practical bearing on the subject." Although halakhic regulations works strenuously to protect the unborn child, he says that "none of these regulations necessarily prove that the foetus enjoys human inviolability." In contrast to the neo-Platonic and Christian approach, moreover, Talmudic thought does not "make any legal distinction between formed and unformed foetuses,"[16] after the 40th day. Feldman, likewise, is emphatically comparative, saying: "... while Christianity's position on abortion has raised the moral level of western civilization in this regard and has succeeded in sensitizing humanity to a greater reverence for life, it is obviously comprised, at the same time, of theological postulates which the Jewish community can not share." Feldman also points out that Talmudic debate over whether the soul achieves immortality upon conception, or at a far later stage, has little bearing on halakhic protections for the fetus because, absent a doctrine of original sin, "abortion would not interfere with the immortal rights or destiny of the foetus."[17]

Precedence of the mother's life

The fetus however, though considered "alive" to the extent that its life is protected, is not considered fully alive to the extent that if it endangered the mother's life it takes precedence. Thus if a pregnancy risks the life of the mother, the Rabbis rule that the mother's life takes precedence and that the child may be aborted so as to save the mother's life:

If a woman is in hard travail, one cuts up the offspring in her womb and brings it forth member by member, because her life comes before the life of her foetus. But if the greater part has proceeded forth, one may not set aside one person for the sake of saving another.[18]

According to the text this can be done until the point of yatza rubo (יָצָא רֻבּוֹ), that "the majority [of the fetus] has exited".[19] This is taken to refer to the emergence of the baby during childbirth.[20]

According to Rashi, the reason behind this law is that a fetus is not a viable soul (lav nefesh hu) until it is born, and killing it to save the woman is permitted.[21] Maimonides, though, justified the law not because the fetus is less than a nefesh (human being), as the Talmud held, but rather through the principle of the rodef or pursuer, "pursuing her to kill her." Schiff argues that the Maimonidean view is "unprecedented" and "without doubt, this hitherto unexpressed insight had dramatic potential ramifications for the parameters of permissible abortion." Meir Abulafia and Menachem Meiri reaffirm Rashi's view.[22]

The Noachide prohibition on abortion

Genesis 9:6 says, "Whoever sheds the blood of man, by man shall his blood be shed...[23] The Talmud understands this verse as alluding to a fetus ("Whoever sheds the blood of man within man, his blood shall be shed") and thus prohibiting abortion to non-Jews.[24]

According to Maimonides, a non-Jew who kills "even one unborn in the womb of its mother" is guilty of murder according to the Noahide Laws, and is liable for the death penalty.[25] The penalty of having his blood spilt, is interpreted by Maimonides as referring to a punishment by the hands of heaven, and not by the courts or man to man.[26]

Tosafot (11th-13th centuries) discusses the connection between the obligations of Jews and non-Jews. Follows the Talmudic principle that there is nothing that is prohibited to the Noahide that is permissible to Jews,[27] Tosafot concluded abortion must in general be prohibited to Jews also, though the (theoretical) punishment for violations would apply only to gentiles.[28][29] Conversely, Tosafot suggests that perhaps, since Jews are permitted therapeutic abortions for the sake of maternal life, Noahide law likewise allows non-Jews to undergo therapeutic abortion. Given this near parity, rabbinic law prohibits Jews from assisting gentiles with forbidden abortions, for which the gentiles would be culpable of bloodshed.[30] Viewing Noahide law as a universalizing ethics, Sinclair states: "it is evident that the halakhah in the area of foeticide is shaped by a combination of legal doctrine and moral principle."[31]

However, the Tosafot text that applies Noahide law to forbid abortion does not go unchallenged. Another commentary in Tosafot (Niddah 44b) appears to question whether foeticide is permitted.[20][32] However this is not the plain interpretation of that Tosafot.[33]

In the standard code of Jewish law, the Shulchan Aruch, therapeutic abortion is permitted; Maimonides's language, speaking of the fetus as pursuer, is included verbatim.[22] A key commentator, R. Joshua Falk, explains that abortion does not trade off one life for another life because the embryo is "not a person" prior to birth.[34] An ordinary abortion is a violation of civil or monetary law, not criminal law, as emphasized by R. Ezekiel Landau among others.[35]

Later authorities have differed as to how far one might go in defining the peril to the woman in order to justify abortion, and at what stage of gestation a fetus is considered as having a soul, at which point one life cannot take precedence over another.

In a key responsum, R. Yair Bacharach is asked whether to approve an abortion for a woman with an illegitimate embryo. R. Bachrach distinguishes early stage from later stage abortions. His reasoning is based on a Talmudic commentary to the effect that Sabbath laws may be violated for a fetus, but only for a later-stage embryo.[36] Several authorities say that Jewish law is less strict for terminating embryos before 40 days.[37] He also concludes that the embryo may be treated as a pursuer rodef, as Maimonides as opined, though simultaneously he upholds Rashi's view of the reduced status of the fetus.[38] Bachrach then offers a novel rationale for denying the requested abortion. He argues the abortion, like certain forms of contraception, frustrates the mitzvah of reproduction and destroys the "seed" needed to be "fruitful and multiply."[39]

Various Jewish scholars have expressed additional lenient stances on abortions under specific circumstances. These include contemporary scholar Eliezer Waldenberg, who argued in favor of abortions in cases of serious birth defects or extreme mental or psychological danger to the woman.

Orthodox Judaism

Most of Orthodox Judaism opposes most abortion, with some authorities considering it a form of murder. In general, however, it encourages abortion when the pregnancy endangers the woman's life and permits it if it will cause her severe physical or psychological harm.

In the absence of clear threats to a mother's life, the permissibility of abortion is a controversial issue in Jewish texts. Many Orthodox rabbinic sources permit abortion when a mother's health is in danger (even if her life is not at risk), when a fetus is known to suffer from severe abnormalities, when a mother's mental health is in danger, or when the pregnancy is the result of a forbidden sexual union, including rape. However, these rulings are not universally accepted and differ between sources, and many Orthodox rabbis are therefore cautious about establishing general rules and insist that cases be considered under individual circumstances.

Conservative Judaism

The Rabbinical Assembly Committee on Jewish Law and Standards has ruled that an abortion is justifiable if a continuation of pregnancy might cause the woman severe physical or psychological harm, or if the fetus is judged by competent medical opinion as severely defective; a fetus is a life in the process of development, and the decision to abort should never be taken lightly. The Conservative position thus follows those of the Acharonim who permit an abortion in case of acute potential emotional and psychological harm.

Before reaching her final decision, Conservative Judaism holds that a woman should consult with the biological father, other members of her family, her physician, her Rabbi and any other person who can help her in assessing the legal and moral issues involved.

Reform Judaism

Reform Judaism permits abortion when the woman's life is at stake as well as when a pregnancy is "a result of rape or incest, when genetic testing, has determined that a child would be born with a disease that would cause death or severe disability and the parents believe that the impending birth will be an impossible situation for them," and for several other reasons.[40] More generally, the "Reform perspective on abortion can be described as follows: Abortion is an extremely difficult choice faced by a woman. In all circumstances, it should be her decision whether or not to terminate a pregnancy, backed up by those whom she trusts (physician, therapist, partner, etc.). This decision should not be taken lightly (abortion should never be used for birth control purposes) and can have life-long ramifications. However, any decision should be left up to the woman within whose body the fetus is growing."[40]

The Reform Movement has actively opposed legislation to restrict the right of women to choose to abort a fetus, especially in situations in which the health of the woman is endangered by continued pregnancy. This pro-abortion rights position has been linked by some Reform authorities to the value that Reform Judaism places upon autonomy—the right of individuals to act as moral agents on their own behalf. In writing against a legal ban on so-called "partial birth abortion," Rabbi David Ellenson, president of the Reform Movement's Hebrew Union College, has written, "This law as it has been enacted unquestionably diminishes the inviolable status and worth that ought to be granted women as moral agents created in the image of God."

Jews and abortion policies

With the emergence of modern Jewish identity in the late 18th century, Jewish views on abortion have bifurcated along movement lines, especially between Orthodox Judaism and its more liberal counterparts. By the 20th century, liberal-minded Jews were among those most active in the abortion-rights movements. These reproductive rights activists included Betty Friedan, Bernard Nathanson, and Gloria Steinem (however, later in life Nathanson became an anti-abortion activist and converted to Catholicism). In the U.S., a few politically-conservative Republican Jews also have been pro-abortion rights. A few Jewish groups concentrate on abortion issues, both anti-abortion and pro-abortion rights.[41] In the United States, Conservative Judaism, Reconstructionist Judaism and Reform Judaism are usually aligned with the interfaith Religious Coalition for Reproductive Choice. Orthodox organizations such as the Orthodox Union and Agudas Yisrael have occasionally partnered with pro-abortion rights organizations in order to ensure that abortions will be available to women whose lives are endangered by the fetus.

Polls of Jews in America report that 88% of American Jews are pro-abortion rights.[42]

In Israel, abortion is allowed with the approval of a termination committee if the woman is unmarried, because of age (if the woman is under the age of 17 - the legal marriage age in Israel - or over the age 40), the pregnancy was conceived under illegal circumstances (rape, statutory rape, etc.) or an incestuous relationship, birth defects, risk of health to the mother, and life of the mother. Abortion in Israel had been illegal prior to 1977. It became legal subject to termination committee approval under the penal code of 1978.[43] According to the Israel Central Bureau of Statistics report from 2004, in 2003 most abortion requests were granted, with 19,500 legal abortions performed and 200 requests for abortion denied. Reasons for termination went as follows: the woman was unmarried (42%), because of illegal circumstances (11%), health risks to the woman (about 20%), age of the woman (11%) and fetal birth defects (about 17%).[44]

There is an abortion debate in Israel. Orthodox Jewish organizations, including political parties, strongly oppose abortion because the Chief Rabbinate of Israel follows an interpretation of Jewish law that views abortion as a (lesser) degree of murder. Political parties that champion this view include Shas, a Sephardic Haredi party; United Torah Judaism, an Ashkenazi Haredi party; and HaBayit HaYehudi (Jewish Home), a Religious Zionist party. A study published in 2001 found that opposition to abortion among Israelis was correlated to strong religious beliefs - particularly Orthodox Jewish beliefs - below-average income, larger family size, and identification with right-wing politics.[45] The left-wing party Meretz argues in favor of legalized abortion for reasons of personal liberty. In 2006, MK Zehava Gal-On of Meretz proposed a bill that would eliminate the termination committees, effectively decriminalizing unrestricted abortion. Gal-On argued that women with financial means can have abortions in private clinics, bypassing the committee and therefore gaining rights based on their wealth. The bill was rejected by a wide margin.

See also

  • Abortion in Israel

References

  1. 1 2 "Abortion in Judaism" article, Jewish Virtual Library, https://www.jewishvirtuallibrary.org/jsource/Judaism/abortion.html
  2. ↑ National Council of Jewish Women. "Judaism and Abortion" (PDF). National Council of Jewish Women.
  3. ↑ Ruttenberg, Danya. "Rabbi". National Council for Jewish Women. Retrieved 19 February 2021.
  4. ↑ Schnell, Lindsay (July 24, 2019). "Jews, outraged by restrictive abortion laws, are invoking the Hebrew Bible in the debate". USA Today. Retrieved 19 February 2021.
  5. ↑ Arakhin 7a
  6. ↑ Yoma 82a
  7. ↑ Schiff p.27 on mNiddah 5:3
  8. ↑ For rabbinic sources, see Feldman 254f. notes 17-19
  9. ↑ Niddah 44b
  10. ↑ ubar yerekh imo, Hullin 58a
  11. ↑ Feldman 253f. who also cites Y.K. Miklishanski in "Mishpat ha-Ubar" in Jubilee Volume in Honor of Simon Federbush, Jerusalem 1961, pp. 251–260
  12. ↑ Yevamot 69b, e.g. Schiff 33f.
  13. ↑ Talmud, Sanhedrin 92b
  14. ↑ Rashi, Sanhedrin 92b
  15. ↑ Yevamot 69b; Pesachim 9a
  16. ↑ Jakobovits, Jewish Medical Ethics, p.182f.
  17. ↑ Feldman p.271, 274 Cp. Schiff p.41f.
  18. ↑ Mishnah Oholot 7:6, trans. Sinclair p.12
  19. ↑ Oholot 7:6
  20. 1 2 Rosner, Fred (2001). Biomedical ethics and Jewish law. KTAV Publishing House, Inc. p. 178pp. ISBN 9780881257014.
  21. ↑ Rashi to Sanhedrin 72b, s.v. yatza rosho
  22. 1 2 Schiff p.60-61
  23. ↑ "Genesis 9:6". www.sefaria.org. Retrieved 2019-01-03.
  24. ↑ Sanhedrin 57b
  25. ↑ Mishneh Torah, Hilchot Melachim 9:4
  26. ↑ Maimonides, Mishneh Torah, Laws of Murder 2:3
  27. ↑ Sanhedrin 59a; Rashi (on Sanhedrin 59a) explains that Jews never lost their status as Noahides
  28. ↑ Tosafot on Sanhedrin 59a, trans. Schiff, p.62: "A gentile is culpable for the death of a fetus, while a Jew is forbidden to cause its death but is not culpable."
  29. ↑ Eisenberg compares the prohibition, without punishment, to the status of the treifah.
  30. ↑ Feldman 260 citing R. Joseph Trani, Responsa Maharit I:97 and I:99.
  31. ↑ Sinclair 44ff.
  32. ↑ Feldman p. 262.
  33. ↑ Tosafot is referring to a case in Talmud Erchin 7a where the mother was executed by a court and the fetus remained alive after its mother's death. The Talmud says that executing a pregnant woman is permissible because the sentence applies to the fetus along with its mother since its part of its mother's body. Tosafot questions whether it would be allowable to kill it even after the mother already died, because of the death sentence that applied to it. See also Igrot Moshe: Yoreh Deah Vol.2:60 that Tosafot does not mean to permit foeticide.
  34. ↑ Feldman 256 on S.A. HM 425.2, Falk Me'irat Eynayim
  35. ↑ Feldman 256 on Noda bi-Yehudah II:HM 59.
  36. ↑ Feldman 264f. on Havvot Ya'ir 31 and Tosafot. See Schiff, too.
  37. ↑ Eisenberg, note 41 states: "Rabbi Chaim Ozer Grodzinski (Responsa Achiezer, III, 65:14) even entertains the possibility that there may be no Biblical prohibition of abortion before forty days. See also: Tzofnat Paneach 59; Responsa Bet Shlomah, Choshen Mishpat 162; Torat Chesed, Even Ha'ezer, 42:33 all of whom discuss the decreased stringency of abortion within the first forty days."
  38. ↑ Schiff, p.73-78
  39. ↑ Schiff, p.76, who points out that Bachrach includes women on the ban on destroying seed and he applies it to every stage of pregnancy, regardless of the early embryos' differential status.
  40. 1 2 URJ Archived 2008-03-23 at the Wayback Machine
  41. ↑ E.g., Jews for Life Archived 2008-02-20 at the Wayback Machine
  42. ↑ "Religion and the Public Square: Attitudes of American Jews in Comparative Perspective – A Follow-Up Study: Table 2". Cjcs.net. Retrieved 2011-11-16.
  43. ↑ The Penal Regulations (Termination of Pregnancy), 5738-1978
  44. ↑ (in Hebrew) Central Bureau of Statistics. (August 30, 2005). Patterns of Fertility in Israel in 2004 DOC. Retrieved February 12, 2007.
  45. ↑ Remennick, Larissa I., & Hetsron, Amir. (2001). Public Attitudes toward Abortion in Israel: A Research Note. Social Science Quarterly, 82 (2), 420–431. Retrieved February 12, 2007.

Notes

Jewish sources

  • Bleich, J. David. "Abortion in halakhic literature" in Contemporary halakhic problems. KTAV, 1977
  • Eisenberg, Daniel, M.D. "Stem Cell Research in Jewish Law" 2001. Published at Jlaw.com with note that "This article was reviewed for halachic accuracy by Rabbi Sholom Kaminetsky of the Talmudical Yeshiva of Philadelphia."
  • Feldman, David. 1974. Marital Relations, Birth Control, and Abortion in Jewish Law. New York: Schocken Books.
  • Jakobovits, Immanuel. 1959. Jewish Medical Ethics. New York: Bloch Publishing.
  • Mackler, Aaron L., ed. 2000. Life & Death Responsibilities in Jewish Biomedical Ethics. JTS.
  • Meacham (leBeit Yoreh), Tirzah. 27 February 2009. "Abortion", Jewish Women: A Comprehensive Historical Encyclopedia. Jewish Women's Archive.
  • Rosner, Fred. 1986. Modern Medicine and Jewish Ethics. New York: Yeshiva University Press.
  • Schiff, Daniel. Abortion in Judaism. 2002. Cambridge University Press.
  • Sinclair, Daniel. Jewish biomedical law. Oxford
  • Steinberg, Avram. 1998. "Abortion and Miscarriage," Encyclopedia Hilchatit Refuit. English edition Encyclopedia of Jewish Medical Ethics (translation by Fred Rosner) 2003. Jerusalem: Feldheim, pp. 1-29 (online source).
  • The Fetus in Jewish Law, F. Rosner. In Biomedical Ethics and Jewish Law, Ktav (2001). ISBN 978-0881257014; ISBN 088125701X
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