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Each One an Entire World

A Jewish Perspective on Family Planning

by Laurie Zoloth         
page 5

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Argument one: moral status of the fetus

This argument is developed in Mishneh (Arakin) which argues that abortion
is permitted as a health procedure, part of normative reproductive health
care when necessary, since a fetus is not an ensouled person. Not only
are the first 40 days of conception considered "like water" but also even
in the last trimester, the fetus has a lessor moral status. Consider the
following text:

Mishneh: If a woman is about to be executed, one does not wait for her until she gives birth; but if she has already sat on the birthstool
[yashvah al ha-mashber] one waits for her until she gives birth…
And the Gemora continues, in this particularly gruesome account:
Gemora: But that is self-evident, for it is her body! It is necessary to
teach it, for one might have assumed since Scripture says, “according as the woman’s husband shall lay upon him” that it [the woman’s child] is the husband’s property, of which he should not be deprived. Therefore, we are informed [that it is not so]…“But if she had already sat on the birthstool”: What is the reason? As soon as it moves [from its place in the womb] it is another body [gufa aharina]. Rav Judah said in the name of Samuel: If a woman is about to be executed one strikes her against her womb so that the child may die first, to avoid her being disgraced. That means to say that [otherwise] she dies first? But we have an established principle that child dies first…This applies only to [her natural] death because the child’s life is very frail. The drop [of poison] from the angel of death enters and destroys its vital organs but in the case of death by execution she dies first… [Arakhin 7a-b]

What is occurring here? This is the introduction of an argument that the
fetus is simply not a nefesh and therefore, as a part of a women's body,
until the head is born, that it is not a matter of property, and that the
avoidance of disgrace, even for a convicted murderer are valid reasons
for an abortion. What is at stake is the personhood of the women, not the
fetus, and we are given the most extreme account to prove this point..
Rashi, commenting on Arakhin and on Sanhedrin 72b: argues that as long as
the fetus has not emerged into the light of the world, it is not a
nefesh. This argument continues in later responsa. In fact, some later
commentators extend the liminal moral status even after birth.
"Because when a child dies within thirty days (being then considered a
stillborn and not mourned like a person who had died) it becomes evident
only in retrospect that it was a stillborn [nefel] and that the period of
its life was only a continuation of the vitality of its mother that
remained in him. [Ben Zion Uziel, Mishpetei Uziel, Hoshen Mishpat 3:46]"
And an early modern responsa notes a broad definition of how the law can
be interpreted. Jacob Emden, writing in 1770 suggests that we might
permit an abortion in the case of a women who has gotten pregnant out of
wedlock, or in an adulterous union she now regrets. He reasons that since
such an act used to warrant the death penalty for adultery, and since in
our Mishnaic text of Arakhin, we saw that if a women was convicted of
capital crime she could be hung and her fetus killed to prevent her being
shamed, then surely Emden can justify ending the pregnancy to avoid shame
in this case as well:

Therefore, it seems to me simple that there is also no prohibition
against destroying it…And even with a legitimate fetus, there is reason
to be lenient for the sake of a great need as long as it had not yet
moved even if it is not a case of threat to the mother’s life, but to
save her from it because it causes her pain. And the matter needs further deliberation. Nevertheless, it is evident that there is still a
prohibition a priori on destroying the fetus… clearly it is not forbidden
when it is done because of a [great] need… Therefore, our ruling is: if
there is no reason [that is, in the case of legitimate fruit] it is
forbidden to destroy the fetus. But in the case before us of a married
woman who went astray, I have pronounced my lenient opinion that it is permitted [to abort], and perhaps it even almost has the reward of a mitzvah… [Jacob Emden, Responsa She’elat Ya’avetz, No. 43]"

Here we see the use of the argument of moral status (not a nefesh) and the argument of need both in play. That later argument has its source in earlier interpretations, also drawn from Mishnaic sources.
Argument Two: The arguments of self-defense—the fetus as rodef
This argument states that fetus is a danger to the woman, and can be
aborted because of the more general rule of self defense: this argument becomes articulated as the argument called the Rodef. (pursuer)” We see this in Mishneh 6: "If a woman suffer hard labor in travail, the child must be cut up in herwomb and brought out piecemeal, for her life takes precedence over its life; if its greater part has [already] come forth, it must not be touched, for the [claim of one] life can not supersede [that of another] life."

Here the text assumes three things: Abortion is deliberate, the decision
to abort is a conjoint one and somewhat in woman’s hands (she is the
sufferer, so it is her suffering that calls the question, and it must
have something to do with her stated limits) and that all can agree that
a child is in her womb, but not a child who counts as a nefesh (fully
ensouled human person) until head is out.

An expanded commentary begins in later periods. A central extension of
the rodef argument is made by Maimonides (the Rambam)(1135ce-1200ce): "This, too, is a mitzvah: not to take pity on the life of a pursuer [rodef]. Therefore the Sages have ruled that when a woman has difficulty in giving birth one may cut up the child within her womb, either by drugs or by surgery, because he is like a pursuer seeking to kill her. Once his head has emerged he may not be touched for we do not set aside one life for another; this is the natural course of the world. [Maimonides, Mishneh Torah, Hilkhot Rotze’ah U-Shmirat Nefesh 1:9]"
Rambam assumes three things: that the fetus is in fact a nefesh, hence
has full moral status, but is a pursuing nefesh (rodef), and that a life
must be at stake to allow the killing of the rodef. Maimonides argues
that abortion is not permitted if a woman herself merely desires to end
the pregnancy—she must need to end the pregnancy for his argument to hold. The act is permitted even though Maimonides understands that
person has no right to inflict harm on herself, and that abortion
“diminishes the divine image” because a potential life is thwarted.
Contemporary authority Hayyim Soloveitchik explains the alternate basis
for this arguement:

The reason for the opinion of Maimonides here, namely, that the fetus is like a pursuer pursuing her in order to kill her, is that he believed
that a fetus falls into the general law of pikuah nefesh [avoiding hazard
to life] in the Torah since a fetus, too, is considered a nefesh and is
not put aside for the life of others. And if we intend to save [her] life
through the life of the fetus and he were not a pursuer the law would
pertain that you do not save one nefesh through [sacrificing] another. ...And it is only because of the law of saving the one who is pursued
that there is the ruling that the fetus’s life is put aside to save the
mother’s life… [Hiddushei Rabbi Hayyim Soloveitchik to Mishneh Torah,
Hilkhot Rotze’ah 1:9]

Ben Zion Uziel, writing in the 1950s, then extends this argument to
include permission to end pregnancies that threaten not just life, but

"You have checked with me about a question brought before you where a woman who was suffering some ailment in her ear became pregnant and then became dangerously ill and the doctors told her that if she does not abort her fetus she should become totally deaf in both ears. She and her husband fear God and keep His laws and they ask if they are permitted to follow the doctors’ orders and abort the fetus by means of drugs, in order to save her from total deafness for the rest of her life…Therefore, it is my humble opinion that she should be permitted to abort her fetus through highly qualified doctors who will guarantee ahead of time that her life will be preserved, as much as this is possible. [Ben Zion Uziel, Mishpetei Uziel, Hoshen Mishpat 3:46]"

Finally, Rabbi Eliezer Waldenberg, a contemporary of Uziel’s interprets
the text to include protection of not just physical health, but mental
health, allowing abortions in the case of a diagnosis of Tay Sachs, where
the mother would suffer mental anguish.

"One should permit… abortion as soon as it becomes evident without doubt from the test that, indeed, such a baby [Tay-Sachs baby] shall be born, even until the seventh month of her pregnancy… If, indeed, we may permit an abortion according to the halachah because of “great need” and because of pain and suffering, it seems that this is the classic case for such permission. And it is irrelevant in what way the pain and suffering is expressed, whether it is physical or psychological. Indeed, psychological suffering is in many ways much greater than the suffering of the flesh. [Eliezer Waldenberg, Responsa Tzitz Eliezer, Part 13, No. 102]"
Normative definitional criteria: Families,
religion and the sacredness of daily life

While these text of exception are important to understand in any review
of Jewish tradition and family planning policy, it is my contention that
attention ought also be paid to quotidian concerns, reside at the core
of families, and not, as in the abortion texts, used in the most extreme
case. The proof text that might be of more use is the classic one in
which Jacob returns home with his wives and all his children and
encounters his brother Esau. The rabbis who understood Esau to stand for
Rome, oppression and dominance by militaria, note that he travels with
his armed men—while Jacob-who-is-named-Israel, is marked by the fact that
he travels always with children, burdened but blessed, with many details
to deal with. Daily family life is the concern of most of the texts one
encounters in this arena.

We have seen this to some extent in the discourse surrounding the
nursing mother, but there are other texts which we ought to employ in a
full account of reproductive health. Thinking about our particular texts
that describe strategies for attention to family planning must be done
against the larger background of how Jewish tradition has constructed
family life and the daily practice of religion in more general ways.
Religion for Jews is not a set of external institutional events visited
on occasions on crisis or celebration--religion, "leignedness" is a
binding to a commanded life, in which every single daily act of practice
and attention is a part of the being of the faithful person. It is the
totality of life that Jewish belief is after--the inescapable call of the
stranger, the constancy of the demand for justice in every interaction,
and the mattering of minute details of daily life. The commanded life is
a matrix of competing and complementary and contentious strands. There is
both a temporal aspect to the matrix, in that interpretations contend
over more than two thousand years of discourse, and an analytic aspect in
that any act can be judged in a variety of ways. It can be prohibited,
but unpunished, prohibited and punished, permitted but not approved of,
permitted and accepted, obligatory, but with many exceptions, or
obligatory in all cases.

Much of our understanding about families comes not from these texts that
describe odd variations and extreme exceptions, but from the far broader
range of normative texts that support a pronatalist family life. How to
be a good Jew begins with the assumption that Jews live in families, and
begin these families early in life. Such families must live in
communities with other Jews, and in fact have specific obligations to the
wider community, as the community has to each family. In large measure,
the community and the family are both oriented toward care of the most
vulnerable, with a wide set of obligations to the nurturance, protection
and support of each family. Here, the biblical patriarchs and matriarchs
set the template. A good family is intended to be a productive economic
unit , a venue for ritual acts, a place of protection for vulnerability,
aging, illness, and childbearing, the core educational unit for the young
children and for older girls, a place for sensual pleasure and erotic
sexuality, intimate comradeship as well as the reproductive unit of
society. Hauptmen notes as well that marriage is also the check on two
clearly troubling impulses of men--that they might engage in "sexual
misadventures" or, even more tempting, that they might fall so deeply in
love with the intense encounter with the study of Torah, the passion for
faith and the male partnership of study (the cheverutah) that they may
abandon the task of childrearing entirely. She cites the case of R.
Sheshet, who appears at the end of our text on leverite marriage, who
became sterile as "a result of going (diligently) to R. Huna's classes.”
Too much emmersion in study and the neglect of family life, is widely
understood as problematic:

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