Judaism and abortion

There is no direct reference in the Hebrew Bible to an intentional termination of pregnancy. There is only one reference to a birth or miscarriage as a result of a violent altercation. Exodus 21:22 deals with a situation of the 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., either "born alive" or "stillborn", depending on the interpretation), 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]

The Mishnah reference in Oholot 7, 6 does not refer directly to abortion. It does refer to a case of life-threatening childbirth and, if the birth is partial or the head has not yet emerged, the fetus can be killed to save the life of the woman (see pikuach nefesh). The tractate has been subject to debate.

Genesis 9:6 says:

Whoever sheds the blood of man, By man shall his blood be shed; For in His image Did God make man.[2]

The Talmud (Sanhedrin 57b) understands this verse to be talking about the killing of a fetus (the word translated as "man" in the verse is gender-inclusive, and the word "by a man" could also be seen as "in a person"); that is, a fetus is considered to be alive with regard to the prohibition against murder and all are warned not to kill him. The fetus however, although being considered "alive" to the extent that his or her life is protected, is not considered to be 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.

In mainstream rabbinic Judaism, the Biblical verse is one of several key texts that substantiate the later rabbinic prohibition on abortion, albeit not as murder. Owing partly to this verse, rabbinic law or halakhah sanctions abortion under some circumstances, namely for medical reasons. In principle, 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 strict homicide rule.[3] 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).[4] However the Talmud (Sanhedrin 57b) says that a fetus is included in the Noahide prohibition of bloodshed (distinct from homicide) that is learned from Genesis 9:6 that states (in a direct translation from the Hebrew); He who spills the blood of man in man shall have his blood spilt. The Talmud interprets "the blood of man in man" as to include a fetus, which is the blood of man in man. Things that are prohibited under the Noahide laws are also prohibited to Jews.[5] 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[6]

A core text in rabbinic law crystallizes the status of the fetus. The Mishna explicitly indicates that one must abort a fetus if the continuation of pregnancy might imperil the life of the woman.

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.[7]

According to the text this can be done until the point of yatza rubo (יָצָא רֻבּוֹ), that "the greater part has proceeded forth".[8] This is taken to refer to the emergence of the baby during childbirth.[9]

In Talmudic law, an embryo is not deemed a fully viable person (bar kayyama), but rather a being of "doubtful viability" (Niddah 44b). 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" (ubar yerekh 'imo Hullin 58a) for such matters as ownership, maternal conversion and purity law.[10] 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.[11] In another passage the Talmud speaks of a "moment of determination" and a "moment of creation" in regard to different stages of the fetus.[12] Rashi explains that the moment of creation is when bones and arteries begin to form[13] and in other places he says that the "moment of creation" is at the 40th day.[14]

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.

After the Talmudic period, Jewish views on abortion become more refined, and diverse, as rabbinic literature expanded and Jewish philosophy developed. Maimonides, notably, justified the requirement to abort a pregnancy that threatens the woman's life 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.[15]

Maimonides codified in the Mishneh Torah that the definition of murder according to the Noahide Laws includes a person who kills "even one unborn in the womb of its mother," and adds that such a person is liable for the death penalty. The killing of an embryo is also recognized as murder in the Talmud Sanhedrin 57b: "A heathen is executed..for the murder of an embryo..Because it is written, Whoso sheddeth the blood of man within [another] man, shall his blood be shed. What is a man within another man? An embryo in his mother's womb." Another explicit reference to abortion is in the Zohar, where it is likewise forbidden.

In regard to life-risking pregnancies, Jewish scholar Rashi said that a fetus is not a viable soul until it's been born, and killing it to save the woman is permitted. Maimonides supported the ruling using din rodef (Hebrew: דין רודף‎), thus likening an endangering pregnancy to the fetus killing the woman.

The question of the fetus's viability is addressed in two sources in the Talmud: in Yevamot 69, 2 the fetus in the first forty days of pregnancy is likened to water, "עד ארבעים יום מיא בעלמא"; in Nida 8, 2 the fetus is recognized from the second trimester, three months into the pregnancy, "וכמה הכרת עובר ... שלשה חדשים".

Jewish law permits abortion in order to save the life of the mother. 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.

Another reason to prohibit abortion is found in the Talmudic commentaries known as the Tosafot. The Tosafot argued that abortion is forbidden to Jews because it is forbidden to non-Jews under the Noahide laws. "A gentile is culpable for the death of a fetus, while a Jew is forbidden to cause its death but is not culpable."[16] Here the Tosafot follows the statement in the Talmud (Sanhedrin 59a) that there is nothing that is prohibited to the Noahide that is permissible to Jews, that Jews are not permitted actions that are forbidden to gentiles, though the (theoretical) punishment for violations would apply only to gentiles.[17][18] Relying on such reciprocal logic, the Tosafot posit that perhaps, since Jews are permitted therapeutic abortions for the sake of maternal life, then 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.[19] 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."[20] 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.[9][21] However this is not the plain interpretation of that Tosafot.[22]

Scholars of Talmudic and Medieval rabbinic law 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 Medical Ethics: "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,"[23] 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."[24]

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.[15] 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.[25] An ordinary abortion is a violation of civil or monetary law, not criminal law, as emphasized by R. Ezekiel Landau among others.[26]

In a key responsum, R. Yair Bachrach 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.[27] Several authorities say that Jewish law is less strict for terminating embryos before 40 days.[28] 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.[29] 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."[30]

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 pro-choice movement. These reproductive rights activists included Betty Friedan, Bernard Nathanson, and Gloria Steinem (however, later in life Nathanson became a pro-life activist and converted to Catholicism). In the U.S., a few politically-conservative Republican Jews also have been pro-choice. A few Jewish groups concentrate on abortion issues, both pro-life and pro-choice.[31]

• 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."
• David Feldman. 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, Tirzah. Abortion, Jewish Women Archives
• 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