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Each
One an Entire World
A
Jewish Perspective on Family Planning
by Laurie Zoloth
page 5
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
health:
"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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