The Religious Consultation

The bariata of the Three Women

Such texts clearly give warrant for chosen limits on family size. In
other texts, specific conversations about family planning and
contraception allow us to see other critical ethical values in the
tradition. In these texts one sees a central—I would argue for perhaps
the central—concern—that the needs of every child, once born, needs a
protected, nurtured infancy. In a passage, referred to as “the Bariata
of the Three Women,” a bariata being a textual argument not written in
the Mishnah, but debated in the Gemora as part of the oral tradition of
the Mishnah. It is a central text and it is repeated in five different
places in the Talmud and once more with a few changes in the later
commentary called the Tosefta. It in, the rabbis discuss the time when
women must or may use a birth control device to prevent pregnancies,
times when a pregnancy must be avoided.

"R. Bebai recited before R. Nahman: Three (categories of) women use a
mokh in marital intercourse: a minor, a pregnant women, and a nursing
mother. The minor, because she might become pregnant and die. A pregnant
woman, because she might cause her fetus to become a sandal. (ed note:
flattened or crushed by a second pregnancy) A nursing woman because she
might have to wean her child prematurely and the child would die.
What is occurring in this text? The rabbis set a requirement for birth
control using a device called a mokh, a soft cotton pad worn internally
against the cervix . It may be worn during coitus, or it might be used
after as a kind of absorbent--these details are left unanswered. The text
is concerned with women for whom pregnancy might carry additional risks,
and must be avoided, and in what cases these risks mean that even the
male obligation to procreate must be forestalled. The reasons to prevent
pregnancy are both to protect the woman , and, importantly, to protect
her child from danger. In the first, the rabbinic understanding that
married minors (girls under the age of 12 years and a day) are at higher
risk should they become pregnant is straightforward . In the second
case, the rabbis, who at this point debate whether superfetation (second
pregnancy) is biologically possible, are concerned primarily that the
fetus might be compromised by a intercourse. To avoid this, a complex
discourse emerge over the centuries. Some suggest that the mokh would
prevent the kind of deep penetration that might put pressure on the
cervix in the last months of pregnancy, others argue that it is only in
the first three months that the problem exists. The intent however is to
allow the existing pregnancy to continue to term.

The centrality of the nursing mother —
reclaiming a core text

This protective spirit animates the final category—and for us, the most
interesting--of women who must use birth control to avoid pregnancy--the
nursing mother. Nursing is understood to supress pregnancy. It is further
meant as a prolonged period which lasts between 2-3 years. (Weaning
ceremonies re-enact the Biblical narrative in which Sarah weans Isaac at
3, and were commemorated in European tradition by deferring the first
haircut to age 3, a practice observed in many communities today, called
“the upsharin.”) Rabbinic texts refer to two years of nursing. During
this entire two-year period, pregnancy was forbidden. In fact, in
Talmudic texts, the threat of another pregnancy to the health of the
nursing child was considered so important that a divorcee or widow who is
nursing, or who is pregnant (and will be nursing soon) cannot marry until
her child is two years old. This point is clearly made in several
tractate of the Talmud. It is a stronger prohibition than that which
applies within marriage, since in the case of a non-related child, the
rabbis feared that even birth control use might not be used with
diligence. The violation of this law carries severe punishment, according
to Feldman: if a couple cannot withhold from unprotected sex, the couple
must divorce and cannot remarry before the full 24-month period. It is a
law that assures family planning and spacing of at least 33 months
between each child. Over the next centuries this law is debated closely:
the question arises about the reason for the ruling, and later responsa
try to sort it out, and understand how to apply it in the societies in
which Jews find themselves. What follows from this bariata of the Three
Women is a long and complex argument On the one hand stand those who
would use the cases in as expansive a way possible, permitting both a
widening circle of cases in which contraception could be used, and the
clear use of barrier methods of birth control.

Let us look at two divergent views. In the eleventh century, R. Hai Gaon
cites the risk that a pregnancy might impair the nursing mother’s milk
and explores the argument one could risk a pregnancy if supplementation
of the nursing child's diet with milk was used to avoid the risk. He
then rejects this argument in favor of the mokh--it is more assured to
avoid pregnancy altogether. It was, he argues, consistent with the
biologic plan—birth control was to be understood as a supplement of the
natural protection against pregnancy that nursing physiologically
provides. The idea of avoiding a second pregnancy until the child was
fully weaned was so strongly held by some, including R. Y'hudah Ayyes in
early 18th century Italy, that R. Ayyes writes a responsa allowing an
abortion for a nursing mother, to protect her nursing child.
But by the nineteen century, just as the birth rates are raising in
European societies, and, interestingly enough, just as external pressures
to re-examine women’s positions in society begin to impact even on Jewish
culture, textual arguments seem to change. Later rabbinic responsa
literature, to explain this shift, offers what will become a specific
tool of the responsa literature, (used selectively,) namely that human
biology has "changed" since the Talmudic era, and hence, earlier ruling
and justifications are no longer binding. (Clearly, changing human
physiology is easier in this view than declaring canonic texts
incorrect.) R. Y.L. Don Yahya is representative of a large literature of
later commentators who enter the debate:

This text is intriguing in two ways. First, because it is one of several
responsa that seem to allow for radical changes in interpretation based
on new understanding of science and biology, and next, since even while
acknowledging this, it still offers a protective opinion. Later responsa
debate the point: since lactation itself reduces the risk of pregnancy
(although not reliably) the mokh is only a supplement.

As the argument develops, however, those with a more restrictive view
come to the fore, offering new opinions limiting the use of contraception
to ever narrowing categories of women, and allowing for changes that
limit this further, as in allowing supplemental of infants to supplant
the intent of the protection for a nursing mother, and describing the
mokh as a post-coital “absorbent” only.

No less an authority than R. Solomon Luria, (Polish, c. 1573) supports
the use of the mokh. " Precoital mokh is assumed, and it is not
improper," during the entire nursing period. But despite this clear
support of birth control for women during the nursing period, far
stricter views, that limited birth control devices to situations of
morbid threat to women prevailed. This promoted a decreased interval
between pregnancies. Lost was the premise of protection of the nursing
infant, and hence lost was the cultural practices that this might have
suggested. In part this was because of a lack of knowledge of Luria's
opinion, but in part, it was a 19th century faith in medicine and its
progress, and a growing social norm of larger families in this era,
consonant with social practices of the time. Finally, the entire idea of
the a robust, careful (and indeed mandated) prohibition on a second
pregnancy during the two year nursing period becomes nearly lost—it is
now barely mentioned in contemporary texts. This once central, and
nuanced, and protective discussion has nearly been replaced by the calls
for rapid fecundity, and newly stated obligations.

But the philosophic point that is made by the notion of prohibited
conception during nursing and in the other cases as well, allows a key
insight for our discussion about what can be reclaimed at the core of
Jewish texts on reproductive practice. Here we see that what is at stake
is the creation of a family, and what matters in the bariata of the three
is the health of each woman, each pregnancy, and the careful, particular
nurturing of each child in turn.

Abortion: a history of discourse

Abortion is a part of any discussion of religion and family policy for
reasons that are large driven by discourses external to Judaism. Texts
about abortion as the final extreme of reproductive practices are not a
matter of deep contention in Jewish thought, since there is wide
agreement on textual warrants for abortion under certain circumstances.
Such texts nevertheless serve as a marker of the boundary questions for
reproductive health, occasionally seen, as in the case above, as extreme
examples of particular halachic codes.

Of all of the religious and philosophical issues that mark the
contemporary American discourse, and the realpolitic of public policy,
there is perhaps none that divides as deeply as the question of the
meaning and morality of abortion. How this came to be the case, and how
the stance on abortion became the definitive linguistics for religion,
politics and ethics in the popular imagination requires an exploration of
historical and textual positions of various religious faiths, of the
place and meaning of moral status, the changing abilities of medical
technology, and of the evolving understanding of the role of women in
society.

The debate about abortion is one that is divisive and painfully difficult
to resolve, touching on the deepest moral issues of the meaning of the
responsibility of one to another, the problem of who we will include in
the community, and the persistent issues of power. For all religious
traditions, abortion is a crisis, a failure of the public and the private
spheres. What is at stake is the moral justification for the act, and
what can be done to limit the deep symbolic disruption of this act within
a social community and a personal and family narrative. The medical
language itself raises critical issues and limits. However, the
essential thinness of the description obscures the critical questions of
morality and meaning that surround issues of life and death. For that
genre of discourse, human societies have turned to religious
considerations, and on the issue of abortion the discourse is intensely
shaped by the understanding of the body, the issue of forbidden sexual
liaisons, the view of health, the definition of personhood, and the role
of women. Religions debate the permissibility of interruption and
termination of pregnancy, and the nature of maternal and fetal health
itself. For most religious traditions, the medical aspects of the
procedure are not central—what is central is the moral meaning of the
human fetus, the power of women over reproduction, birth and lineage, the
embodied and terribly fragile nature of human existence, and the
paradoxical conundrum that elective abortion presents: that of the
regulation of the boundary between death and birth. Similarly, all
religious traditions are the carriers of a strong pronatalist position
particularly in contrast to modernity. This pronatalist view creates a
lay pastoral norm that in some cases shapes the choice of text used for
counseling, but is held in tension with the widespread praxis of abortion
even in faith communities where the act is forbidden.

The first, and for some traditions, the final consideration of the
question of abortion is the moral status of the embryo from the moment of
conception to birth. Moral status is a consideration of the obligations
and responsibilities of the human world toward the entity that is in
question. If the embryo is considered a fully ensouled human person, of
equal moral status as the mother in whose womb the embryo is carried, a
carrier of a unique and sacred human life, then to end that life is
tantamount to murder, and could only be considered in situations in which
one would murder a born human child.

For Jewish theologians, the debate is rooted in context and temporality.
If the mother’s life, or physical or mental health is at risk,
(including, for some the situation in which having a severely disabled
child, such as a child with Tay-Sachs, would threaten her mental health)
the abortion is not only be permitted, it is mandated. Not only does
Jewish tradition have a developmental view of the moral status of the
embryo and fetus, but also the tradition’s focus on life and health for
the mother is the primary ground for the debate. Moral status of the
embryo in Jewish considerations of abortion is based on age and proximity
to independent viability.

In that capacity, there are discussions about the nature and character of
the contents of the womb at various stages of embryonic and fetal
development. There are other considerations, such as quickening (the
development of a spinal cord) and the external visual changes in a
woman’s body that also warrant differing social responses and a different
consideration of the pregnancy. The discussion and commentary takes two
courses, either that fetus is a part of the body of a woman, (ubar
yerickh imo ) and hence, does not have a equal moral claim; and a
later understanding, put forward by Maimonides, that in the case where a
pregnancy is endangering the life or health of a woman, the fetus can be
considered a “rodef” (an aggressor, lit: one who pursues) and killing a
rodef is a permitted act of self-defense. The decision about the language
of the choice is framed by the woman herself (it is she that names the
situation as unendurable and thus asserts her moral voice over the voice
of the fetus), but the discourse is to be made in conjunction with a
spiritual teacher, a rabbi, a discourse is not wholly private, nor wholly
public, opening the possibility that the discourse is primarily based in
the context of a supportive and caring community.

Abortion appears as an option for Jewish women from the earliest sources
of the Bible an and mishnehic commentary. Clearly seen as an emergency
option, it was nevertheless clearly available under several
circumstances. Most sources begin with the one Biblical text that refers
to an interruption in a pregnancy:

What is occurring here? The Biblical Text assumes the following
conditions obtain: that the event described--an induced abortion--is an
accidental occurrence, that is not in woman’s control, that the being
lost is of value since it is perhaps, the property of the husband, that
the being that is "departed" is not a life in the way that the woman is a
human life, that a crime of some sort has been committed, but that it is
not a capital crime. Since the penalty for the loss of the fetus is a
monetary fine, which is typical of a property dispute, subsequent
commentators understood the fetus as distinct from the mother.