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Each One an Entire World

A Jewish Perspective on Family Planning

by Laurie Zoloth

 

"Three million and three hundred thousand Jews lived in Poland before the
war, three million died. Two million eight hundred and fifty thousand
Jews lived in Russia. More than a million died. The synagogues stand
empty now, our brothers and sisters were murdered everywhere in the days
of destruction."

"Let us say Kaddish not only for the dead, but also for the living who have forgotten the dead. And let the prayer be more than a prayer, more than lament; let it be outcry, protest and defiance. And let above it all let it be an act of remembrance."

                                                                                     Elie Wiesel (1999)

very spring, just after the celebration of Passover, Jews commemorate
Yom HaShaoh (The Day of Remembrance of the Holocaust.) It is a new
holiday, made distinctive by new ritual: in the United States, the
community gathers in the evening, and for the next twenty-four hours,
reads lists of names of the dead. It continues overnight, by the light of
memorial candles, at dawn, and into the evening darkness of the next day,
in synagogues and on college campuses: the names, the ages of each one,
one by one, specific: the listing of the children is particularly
poignant. The tradition is to stand and listen, and take a turn in
speaking a name, knowing that even in 24 hours, even reading every hour,
even with one's entire community, one cannot hope to list them all.

Why begin a discussion on a Jewish perspective on reproductive health,
ethics, and family planning policy with this story?
In a world clearly facing significant, vexing issues with justice, with
environmental challenges, with a steady increase in human population and
consumption, and significant shifts in world wide fertility, why not
begin the discussion of Jewish ethical and religious perspectives on
family planning with a far more general description of Jewish
perspectives on reproduction, contraception, abortion, families, and
health?

Tradition, location, polity, and text

This chapter will argue that to fully understand, describe, and reflect
on Jewish perspectives on reproductive health and ethics calls for a
clear understanding of both history and text. A Jewish contribution to
the debate on family planning is based both what is written and what is
preformed. Normative Jewish practice is one that is based on a
textualized reasoning: an analysis of the problems of a tangible sensory
and social world. Hence, both the concerns of historical context and the
rigor of traditional canonical texts create social policy. When new
historical situations arise, and the daily enactment of community and
faithfulness shifts against political, scientific, or physical
contingencies, a process of heightened discourse reshapes the new
enactments. In critical ways, the questions of the environment, of
population are in constant flux. For Jews, the cultural and economic
realities of modernity affect religious practice, social justice and
ethical norms. Family life, families, childrearing, and sexuality are
part of the practice of religion. In reflecting on Jewish ethics, one
considers the whole of human activity and the whole of the community as
well: women as well as men are moral agents, the lifeworld of the family,
of women and of children, are central concerns of religion. This
discourse is primarily contained in the extensive literature of debate
and exegesis of the rabbinic literature, which is primarily although not
exclusively collected in a set of volumes called the Talmud. It is a
record of an oral discourse, in which contention and casuistic narrative
ethics both determines and discuss the Hebrew scriptures and struggle to
apply them to daily life. In an elaborate linguistically complex oral
debate, later codified in the written Talmud, the teachers of the period,
described 613 commanded acts named as "the mitzvot. " (200 BCE to 500
CE.) Both the study of this linguistic world, and the ongoing efforts to
shape and be shaped by the practice of the commandments defined the moral
universe of observant Jews in the centuries since this time.

Jewish law develops in the 1500 years since the redaction of the Talmud
by an ongoing series of "responsa" to questions about the legal code
discussed in the Talmud. Difficult cases of social crisis of all types
are brought before decisors and scholars who ruled on the facts of the
cases, on the methodological principles of logical discourse and on
certain key principles of relationships in the familial, ritual, civic
and commercial spheres. Each commentator is discourse with those who
came previously, and yet is confronted by changes in context: political
and cultural shifts as well as scientific understandings that could not
have been available to previous generations. This process of query and
response continues into the present. Nowhere is this more publicly
evident than in the rapidly changing field of reproductive health.

Statement of the problem

This chapter will argue that we face a time of intense historical
challenge in halachic Jewish thought and in the Jewish polity. It is a
time of serious environmental threat to a shared global environment
world, and necessitates call for a reclaiming of a central rabbinic texts
by creative re-reading. Here, I will make the claim for a particular one:
placing the parent-child relationship, in particular the nursing
relationship (and all that this meant thematically,) at the center of the
texts about birth control, allows Judaism to contribute creatively and
substantially to the critical issues of population, family policies and
imperiled world resources.

My thesis is this: First, there is nothing new about survival as an
issue for the Jewish community. The question of survival is at the heart
of the covenant with the God of Israel. Second, women’s position as
prime moral agents in the covenant is central to the textual account of
Jewish survival in which childrearing at the core of the spiritual
activity of much of Jewish ritual life. Third, how the “faithful remnant
of the People Israel, always understood liturgically as small in numbers
but as universally critical in the larger human fate, is preserved is a
deep concern for Jewish thought. The tension between the promise of
fecundity and maintaince of covenant in the Biblical account, and the
realities of the fragility of Jewish existence in exile is at the core of
a theological and social struggle. Finally, that the Jewish tradition
itself is suggestive of a principle for Jewish views on the ethical
problem of population and family planning. Such a view forms the duty
toward the a specific future in the presence of a specific other. Each
child calls on each parent to enact a duty towards her, of providing a
world of abundance and generosity and attention. In fact, much of Jewish
law is a discourse on how to provide and maintain such a world for a
Jewish child faced with injustice, exile and danger, hence by extension,
a world of justice for each human child.

The collection of essays in this book is devoted to seeking traditional
reflections on the call for family planning, abortion and birth control.
It is a task undertaken out of a sense, emerging from a long history of
concern about "over-population" of the globe, that we live in a world
that is unable to sustain human society, a world burdened by scarcity of
water, food, clean air, and arable land. This analysis understands that
population growth alone is not the only issue, and that careful
innovations in how we use the earth we live on will need to be made by
all. In fact, even if world population stabilizes at present levels, the
question of how to share the already crowded and degraded world
environment persists.

How are Jews, such a infinitesimal part of the world population, part of
this problem? First, in many of the venues that Jews find themselves,
the burdened cities of the Diaspora, and the small densely populated and
fragile desert environment of Israel, we are already struggling with
serious issues of water scarcity, pollution, and air quality . Second,
since Jews have strongly made the claim that minorities who have been
persecuted ought to be allowed to procreate in larger numbers as a kind
of reparative justice, consideration of the case of the Jews after the
Shoah warrants special attention. It is important to understand the
justice and limits of such a powerful claim. Third, many American Jews,
like American Christians and Muslims, and Hindus and Buddhists, live as
Americans, consuming resources of the world at rates wildly
disproportionate to others in developing countries, and hence must ask
ourselves what the faith commitments we live by say about such
consumption. Finally, since Jewish texts are at the heart of an
Abrahamic tradition that is shared by Christians and Muslim, a Jewish
perspective on these Jewish texts can make a unique contribution in and
of themselves, offering new considerations on families and women which
lie at the heart of the debate. The reproductive health of families,
women and children is key to the discourse of ecology and population--and
it is religion that exercises one powerful influences over the meaning
and intention of the well lived life, of families and of a just response
to the use of the earth.

Notes on the history of populations —
the demographic shifts and their meaning

Let me begin the discussion by reflections on the historical idea of
overpopulation itself and on the way that our society speaks of
rights-claims that tends to shape our relationship to that idea.
Before 1800, the world population grew only slightly, at a steady, but
incrementally slow rate. Since the 1800s, the world population has been
growing exponentially. This was certainly not framed as a problem by
many, since Europeans, including Jewish leaders, understood the world as
intended for increase, available for full human use, in fact invoking
Biblical references to "fill the earth and subdue it" in service of
expansion. But the sudden population increase—called the first
“demographic shift”— was not the result of a change in fertility
patterns, but in mortality patterns of early childhood. The early modern
period enabled strategies for preventative health, clean water, and pest
control that allowed many more children to survive to reproductive ages ;
increased food production allowed for more robust offspring; and this
reduction in mortality altered the basic social reality of families.
What followed the population increase, in every society, transculturally
and transhistorically, with a few notable exceptions, was called the
second “demographic shift.” This shift becomes apparent after a
transitional period that lasted between 100-25 years (100 years in
Europe, 25 in countries in the developing world.) Fertility patterns
changed in response to the decreased threat to childhood—one did not need
to give birth to many children in order to assure the continuity of
family or lineage. Parents begin to conceive smaller families, in essence
counting on each child to reach adulthood safely. This is not only an
historical or European phenomena. This has occurred in nearly every
country as modernity, with clear water, vaccinations and antibiotics
arrives, including Latin America, China, and South Asia World—countries
thought to unable to control population . Population overall has begun
to stabilize in many countries: in Italy and Japan, for example, the
negative fertility rate is on a slow decline. While the numbers of
persons and our consumption still threaten a fragile environment, the
specter of unbridled population increases simply no longer fits the new
demographic understandings.

This world wide phenomena of a demographic shift is observed across
religious and cultural differences. Most Diasporic and Israeli Jewish
communities follow similar trends, much to the alarm of the leadership,
both secular and religious, who tend to see the decline, not as part of a
world-wide historical phenomena, but as a special problem for
post-Holocaust Jews. Hence, in many Jewish religious communities,
especially, but not exclusively in Orthodox ones, young parents are urged
to have larger families--and for many, a classically observant family is
typically portrayed as an 19th century one, with many children, as was
(as we see, rather briefly) the case at that period in Jewish history.
Many commentators attribute this norm to the influence of classical
Jewish texts supportive of a generalized pronatalism, and of the
eagerness of Jews to return to what is perceived as authentic Jewish
normative practices, here again, largely understood as the social praxis
of the 19th century. However, let me suggest a concurrent factor—one
that affects even non-traditional Jewish families. For many Jews, the
perceived childhood mortality rate has not yet declined. For Jews, raised
one generation after the Shoah, for Jews who annually (at least) hear the
list of the lost and who are enjoined to remember, the specter of death
and the fragility of the survival of the community creates an emotive,
passionate appeal.

For while there is little in the contemporary ethical literature about
an environmental crisis, there is much about the meaning and the danger
of the current demographic shift in light of Jewish survival. The 1990
Council of Jewish Federations National Population Study showed that
American Jews, once 3.7% of the population were now only 2.4% and that of
that, 52% were intermarried to non-Jews. In these families, only 25% were
raising their children as Jews. Religious Jews only account for 1.9% of
the population. Faced with this decline, Jews are enjoined to "recreate
the nation" in the face of extinction. One finds such language in both
Orthodox and Conservative rabbinic authorities in when they address the
issue of birth control and family policy. Consider the following from
Elliott Dorff:

"Maimonides says, "whoever adds even one Jewish soul is considered as
having created an entire world. This is an especially important teaching
in our time, when low reproductive rates among Jews, caused in part by
their extended education . . . and the late age at which they marry and
attempt to have children, have combined with assimilation and
intermarriage to create a major demographic crisis for the Jewish
community. Nothing less than the future of the Jewish community and of
Judaism depends upon fertile Jews having three or four children per
couple."

Dorff continues this theme:

"We as a people are in deep demographic trouble. We lost one-third of
our numbers during the Holocaust. . . . The currant Jewish reproductive
rate among American Jews between 1.6 and 1.7. That statistic means we are
killing ourselves off as a people. . …This social imperative has made
propagation arguably the most important mitzvah of our time. . . .To
refuse to try to have them, or to plan to have only one or two is to
refuse to accept one of God's great gifts. It is also to renege on the
duty we all have to create the next generation. . . "

Elliott Dorff is the leading ethicist and theologian of the Conservative
Movement, a thoughtful, liberal author of the authoritative text for that
movement on matters of sexuality and reproductive health. Dorff urges the
community to offer monetary incentives for such large families, with
private school tuition reduction. He counters concerns about population
and ecology by urging Jews to "support. . efforts in Africa or other
overpopulated countries" to produce fewer children. In fact, in the
Conservative Rabbinate's official policy statement repeats this theme,
consistently articulating a powerful argument heard in the Jewish
community: that the miniscule number of Jews world wide has little impact
on the world population in any way, that since Jews number only .2% of
the world’s population, in essence--this is not our problem.
In the Orthodox community, the same clarity about the need to have more
Jewish children and the link to the losses of the Shoah pervades the
texts: Immanuel Jakobowitz, leading commentator on Jewish medical ethics
and former Chief Rabbi of Britain, in remarking on abortion in Israel,
noted that "abortion deprived the Jewish state of over a million
native-born citizens".

In secular texts, as well, for example, in the social research of Gary
Tobin, author of the Federation’s Report, the attitude is the same:
falling fertility rates and increasing intermarriage can be graphed to
show a point a generation or two in the imagined future in which there
are no Jews at all.

However, as we see, the rates of fertility for Jews are not
exceptional—they are consistent, and have been consistent, with
world-wide trends for populations in modernity with rare exception. For
Jews, then, living in a shared world narrative, not to mention a shared
physicality with the nations of the world is the claim for a s a
legitimate claim? How should Jews respond to the challenge of the
environmental crisis? Can Jews claim an exemption to the need for
environmentally driven population policies after the Shoah? And do Jewish
women have a special and distinctive obligation to have many children to
assure Jewish that is mandated?

For it is the broader constraints that face us that must be held in
tension with this claim. We live in a world facing global climate
changes, critical water shortages, mal-distribution of food supplies,
significant epidemic diseases potentiated by poverty, and a scarcity of
arable land. Far too many children cannot get education in basic reading
and writing skills, and far too many women lack access to even the social
goods promised within their culture, much less to a wider aspirational
goal of universal human rights. For many families, Jews, Muslims,
Catholics, Hindus, Protestants, and other faiths, the imperative to have
children despite a social inability to care for, feed, or house them
adequately is understood as a religious imperative. It is the task of
this chapter to see whether Jewish law, or Jewish history mandates such a
course.

Are Jews exempt from broader concerns about the effect of population on
the environment because of the history of persecution?
Let me now turn toward both arguments for and against this claim and
assess them.

1.) Warrants for an affirmative response:
The context of the normative readings that
have dominated the discourse

One can construct a credible case for an affirmative answer. Clearly,
the normative weight of contemporaries texts seem to point us in this
direction. First, the murders in the Holocaust reduced the entire Jewish
population by a third, a loss potentiated in every generation at an
exponential rate. Next, modernity and secularity claims many Jews each
generation. If a people might be eliminated, the special warrant for
continuance and creation of “new Jews” creates a strong moral appeal.
The tradition is strongly pronatalist: many of the essential rituals
mandate families in which to enact them, and there are specific
commandments about the necessity for a man to produce heirs. In fact, key
source texts clarify the actions that must be taken to assure the
continuance of lineage. The rules of leveriate marriage state that if a
man dies without having had a child, his widow can ask his surviving
brother to marry her. This allows her child to be counted, and to receive
the name and property as the child of the dead --clearly an overriding of
even the prohibition of incestual sexuality taken in a desperate,
emergent situation. One could argue that mandating children to "replace"
ones lost in the Shoah is an equivalent step, assuring that the many who
have died without children need to have some sacrifice by the living made
on their behalf. And one could argue that in a reparative justice sense,
Jews might be entitled with special rights, parallel to leveriate
entitlements for special considerations, granted from the world's global
community--as could other minorities persecuted and murdered and
endangered, i.e., the Roma, Native Americans, Armenians, etc.

2. Warrants against an affirmative answer:
a second look at the reading of tradition

But one can argue from the opposite position with equal justification,
and let me suggest that it this alternate, nuanced stance that is far
more consistent with both Jewish source texts and history. The argument
for this position proceeds as follows. Jews faced the issue of near
total annihilation at many times in history, in particular after the
destruction of the Second Temple, and have not used mere fertility as
device to increase the nation. If one looks carefully then at the
response after catastrophe, one can develop a richer response to our
currant situation.

What has been the response of tradition in all of these other historical
moments? Rather than calls for the physical “replacement” of the nation,
the text called for the development of innovations in ritual and in
education to maintain the constancy of Jewish life. Indeed, there are
scant textual accounts of women increasing their fertility after other
catastrophes, or being urged to do so. Women and men are urged to
continue to have families in situation of oppression, to be sure, as
noted in the Biblical text itself and the attendant midrash that describe
the birth of Moses to his enslaved parents even after the edict to kill
all sons is delivered. One can search in vain for a textual account of
enlarging families in the face of destruction. In fact, in the
quintessentially shaping catastrophe of the destruction of the Second
Temple, there is no such mandate. Here, where the risk of complete
extermination was even more valid than at any other time in Jewish
history , the rabbinical authorities did not enact emergency measures to
"make up" or attempt to "replace" Jews lost to Roman invasion. Rather,
they developed scholarly and communal leadership, and enhanced a system
of yeshivot or houses of study. In was here that the world was preserved,
via the creative act of polity-creating study, in which the canonical
texts were debated, and in which the speech act, the story, and the
debates set up the new normative universe. This collective, social and
textual response is key. In urging the renewal of study, the Torah and
its teaching are at the center of communal response, rather than the
cause and the biological quest of any individual or family. The world is
made for the “sake of the Torah” and the word precedes the physicality of
creation, an idea intricately discussed in the Talmud. Hence the
primary institutions that needed building were collective and communal in
nature: the house of study, the system of charity, and the educational
study accessible to all.

In reflection on this phenomena, Edward Feld comments:
To the question, “How did Jews respond to other catastrophe?” I would
answer, “not by having increasingly large numbers of children, but by
formulating a new interpretation of themselves in history and relation
to God. The sixty years between the destruction of the Temple and the Bar
Kochba revolution were among the most hermaneutically and legally
creative in Judaism’s history. The fabric of Jewish life was interwoven
with study, creative interpretation, and legal disquisition. Thus, when
the rabbis of the generation of Bar Kochba had to decide which were the
most central Jewish institutions to protect, the study and transmission
of Torah stood out as the essential instrument of religious
preservation.”

Such emphasis continued throughout the medieval period. Even at the
height of the fertility rate of Jews in Europe, the normal family size
was six--only slightly larger than other Europeans. Average birth
rates range between 5 and 8 for immigrant Jewish communities outside of
Europe, but only for a brief time, returning to smaller families along
with other ethnic groups as the society made the transitions that
adjusted to changing infant mortality. But despite pogroms, war, and
associated epidemics, the Jewish birth rate follows the general trends of
surrounding cultures—first rising in response to improved material
conditions, then falling in the face of improved childhood mortality. No
textual or historical evidence exists for a special distinction. In
fact, population increase is not seen as what makes Judaism relevant or
significant—on the contrary, it is the power of the text and the
transmission of the text that asserts continuity—no matter how small the
population.

Indeed, it is clear in general, from the legal (halachic) accounts that
the concerns of the text are specific and protective: 1.) To assure that
women are not required to have children, since childbirth is seen in the
Talmudic period as potentially life-threatening, and life-threatening
acts are as a rule never required 2.) But to assure that the temptation
for men to immerse oneself entirely in a life of study is avoided; so
that every man was married and in a family with children, but not to
require an unlimited, large family; 3.) But to allow for the pleasure of
non-reproductive sexuality after reproduction of two children--the
required number which, like for Adam and Eve, allows for human family to
continue. 4.) Finally, to allow both women and men to pursue, within
limits, options for family planning based on a complex assessment of
personal need and social context. The discursive method of Jewish ethical
reasoning follows from close analysis of key texts--but it is never a
history of unanimity--rather, it is a centuries long argument with
sharply disagreeing authorities making definitive and, in some cases,
contradictory statements. In thinking about the resources within the
tradition that allow us to understand how Jewish tradition understands
ethical questions, such as how to response to the continuing crisis of
the environment, let us turn to the development of the internal argument
of selected texts to illustrate both the mutability of the tradition and
the argumentative nature of the normative debate. Here, I want to briefly
reflect on three classic textual traditions that are used to rule on
matters of family planning. Since the historical account seems to
clearly suggest that Jews did in fact limit family size in concert with
other communal obligations for women, are there sources in the text that
speak for this? Can one find textual justification for this side of the
argument? Let us turn to the way traditional texts in two areas—birth
control and abortion--are used to mobilize normative action.
Birth Control: "Is a women commanded to propagate the race? "
The drama of the Biblical texts is the problem of infertility. The
promise that is the basis of the covenant itself is the repeated
assurance that the tribe of Abraham will be continued, made numerous, and
that the Jewish future and through it, the human future is safe. The key
text on the issue of family planning arises in a Yevamot, one of six
tractates or sections of the Mishnah, written in the earliest Talmudic
period (200 BCE.) In this passage, the rabbis begin by discussing the
problem of how to continue the line of a man who has died childless.
While his wife can remarry, his line will end, and the concern of the
Biblical text was to enact a system to avoid this-hence, the idea that
his closest biological kinsman will marry his widow, and she will claim
the children born as her dead husbands, entitled to his inheritance. The
Mishnaihic text deepens the question about the nature and meaning of the
obligation to have children:

"A man may not desist from (the attempt to) procreate unless he already
has children. Bet Shammai says, two sons, but Bet Hillel says, one son
and a daughter, for it says "male and female He created them. (Genesis
5:2). If he took a wife and remained with her for ten years and she did
not give birth, he is not allowed to desist (from the attempt to have
children) If he divorced her, she is permitted to marry someone else. And
the second husband is allowed to remain with her for ten years. . . A man
is commanded to procreate but not a woman. R. Yohanan b. Baroka
(disagrees and) says: About both of them it says "And God blessed them
and says "And God blessed them and said to them be fruitful and
multiply."


What is occurring here? The biblical text sets the standard for the
halachic requirement that a person must have children. There is debate
among the sages of the Mishnah about whether a girl child will ‘count’,
and this is debated. After these children are born, the text implies, the
duty to have sexual relations with his wife, clearly required in other
places, may continue without procreative intent, which implies further
that birth control can be used. (In texts of the Mishnah, there is
reference to both women and men drinking a "sterilizing potion" to
achieve this.) Some commentators add that it means that a man may, after
he has had two children, and his wife has died, or he has divorced, marry
a woman who cannot have children, or that he may even stay single. The
text continues with a concern about infertility. The implication here is
that both women and men desire children, and hence, after a childless
marriage, they both are permitted to marry someone else. The text ends
with an argument about the obligations that women hold toward
childbearing, and the argument stands.

The Gemora, the subsequent generational commentary on the Mishneh
continues where we left off. In the Gemora, the rabbis debate whether
the command to "replenish and subdue the earth" is addressed to both
women and men. Typically, there is a debate, first about gender and
nature: Rabbi Ile'a declaring that it is not "the nature of women to
subdue.” After more debate, a consensus emerges. Women are not required
to procreate. Then three critical cases are brought into the debate,
stories that will allow for two centuries of discourse. In the first, a
woman who is childless comes to ask for a divorce so she can marry and
have children in another marriage. There is debate: if a woman is
obliged to create then she must be given a divorce—but is she obligated?
Or is it a matter of choice? Another story is told, in which a woman
comes with a similar plea, her desperation evident in the text "What will
become of a woman life myself in old age! .(without children) . . Does
not a women like myself require a staff in her hand and a hoe for digging
a grave!" It is a compelling plea: the rabbis decline her request at
first, but when they consider her argument, they accept it and they allow
her divorce--a women may make her own decisions and take on this
obligation to bear children. But then a third case is told: If
procreation is a women’s choice, may a woman decide to refrain from
childbearing, even if her husband wants more children? Here, the textual
account continues: Judith, the wife of Rabbi Hiyyah endures an odd and
painful twin pregnancy. As soon as she can, she disguises herself and
comes to the house of study, where her husband is deciding cases of law.
She asks about the halachic texts that defines the obligation for
procreation as having two children, and queries whether one must continue
childbearing once that has been fulfilled.

"Is a women commanded to propagate the race?"--"No, " he replied. And
relying on this decision, she drank a sterilizing potion. When her action
became known, he exclaimed, "Would that you bore unto me only one more
issue of the womb!"

As Rachel Baile notes: "Though Rabbi Hiyyah reacted with an outcry of
grief, he did not challenge the legality of her actions." Here, we see
Judith acting in the classic biblical way: like Tamar, who disguises
herself to trick her father-in-law Judah into acting in accordance with
the law to allow her to have children her would otherwise deny her, (a
kind of levirate marriage) this rabbinic Judith will also use disguise to
force Hiyyah to act according to the law as well, allowing her to chose
to only have two children. Thus, the discussion over the authority of
women’s reproductive choices ends.

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:

"(Though the rabbis of the Talmud) required a mokh during the nursing
period, I suspect that natures have changed in this matter. . . for in
our times we see many women wean (before the 24 month period) and their children live and thrive. Perhaps then the permission of contraception is not applicable today. . . .Nevertheless, in questions of physical health we cannot depend on such reasoning because perhaps the majority of (such infants) live, while a very small number become thereby weak and die young. "

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:

“And if men strive, and hurt a woman with child, so that her fruit
depart and yet no harm follow, he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges determine. But if any harm follow, you shall give life for life…” (Exodus 21:22-23)

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.

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:

Laws of "family purity"

In large part, the sexual and social activity of women and men within
families was structured by the practice of the laws of niddah. In
traditional Jewish households, women and men do not have sexual contact
for two weeks of each lunar month, based on the menstrual cycle of the
wife. When she is menstruate and for a week after she is no longer
menstruate (checked daily by the women and verified by her). After this
period, she goes to a ritual bath, called a mikvah, in which she first
bathes carefully, for cleanliness, is checked by an attendant, and then
immerses herself in the waters of the ritual bath, while saying special
prayers. Modern scholars argue about the meaning and intent of this
practice--for some, it marks the deepest moment of estrangement within
the tradition, a ritual to mark the negative, objectified and degraded
way that women are oftentimes seen in talmudic literature--degraded and
made dangerous by her very blood. For others, the practice is a positive
and powerful social construction that allows for women to live within
marriage without the being always the object of sexualized attention, for
a valuing of both sexual and non-sexual companionate relationships in
marriage, and an ongoing strategy to enhance sexual anticipation. In this
later understanding, the ritual is an enactment of the realization that
she has in some way "touched" death--her menses marks the non-pregnancy
of that month, a kind of a loss, a theoretical death. For the second half
of the month, sexual relations are to be enjoyed fully, and are, in fact,
mandated. Infrequent sexual activities are ground for divorce, on the
part of either the man or the woman, and the schedule of the minimal
frequency is described in the Gemora.

The centrality of children and childhood education

Considerable care is to be given to each child. Normative duties are
also described: each child is the responsibility of the parents until he
or she is no longer a minor. Until that time, even the responsibility of
the responsibility of the enactment of the commandments is the task of
the parents. And the careful education of each must be attended to as
well: each father, or mother if the father is not able, must teach each
child Torah, a trade, make sure the child has a marriage partner, and
finally, some add, must teach him how to swim! It is a considerable
investment of time and social resources: hence the need, as in our texts,
to allow each child the best start.

The rupture of modernity

Against this ordered world, modernity and the Haskalah or the
intellectual shift following the Enlightenment created a significant
threat. Even prior to the Shoah, Jews were leaving the daily rigor of
the practice of mitzvot for a generalized American-informed liberal
Judaism. Reform and Conservative Jews drifted away (in some cases fled)
from the practices of family life, and of the constraints on passions:
keeping kosher, keeping the Sabbath, and the practice of mikvah with its
implications that women and men would lead radically separate lives even
within marriage. Jews lived in large part in cultures swept by the same
demographic forces as the other populations they lived within, and
consumed in large part as others did. Issues of empowerment and education
for women affected all sectors of the Jewish community.

But the Shoah accelerated some processes of change, and obliterated
others: after the great loss of rabbinic leadership, the broad range of
divergent scholarship and the broad knowledge of textual sources are far
more constrained. For many non-religious Jews, the rupture of the Shoah
creates deep unease about the ideas of faith commandments, or the sacred,
much less a powerful and loving God--what remains is an allegiance to
Israel, and a certainty that the Holocaust must be remembered--and both
of these are issues of physical survival, arenas in which Jews can feel
constantly at risk. For many secular Jews, Judaism itself is an enactment
of attention to these two issues.

For Orthodox and neo-Orthodox, what is at stake is the betrayal of
modernity itself. For many, this has meant a reassessment and a
re-embrace of traditional European practice, a practice in some circles
that is nearly completely interpreted by authoritative rabbinic
authorities since many have no history of familial customs or context.
For many, the practice of Judaism is concomitant with an affiliation with
the moment in Jewish history just prior to this betrayal: the late 1800s,
when European Jewry enjoyed a growing community, and benefited from 400
years of stability and intense and creative interpretive study. This was,
not coincidentally, the period of the most rapid demographic growth and
the highest fertility as well. Jewish families, like all European
families had on average 6 children. Affiliation with this moment is
clearly understandable. But this period was not typical of other
periods of Jewish history: not in Biblical text, nor in Talmudic texts,
nor in earlier periods in Europe—all, of course. equally valid emulative
moments for custom, costume and halachic standards. Large families were
not a demographic option for human populations prior to modernity, were
not seen as a strategy for Jewish survival.

In the contemporary period, the post-Shoah Jewish community after the
costly and tragic failure of modernity, the deconstruction of the
universal narrative have called into prominence a significant turn
towards the most conservatizing elements in the tradition. This is
utterly understandable, albeit a limiting of the deep and rich
possibilities in the tradition. In many circles, faithful Jews perform
this faithful continuity by literally wearing the garb of that earlier
century in which they flourished. It will come as no surprise that since
that period (c 1877) was one of a heightened fertility rate, and family
sizes were large, the aspect of life is rehearsed as well. Some Orthodox
communities have among the highest birth rates in the world.


Conclusions

This chapter is a partial effort to critically reflect on the central
thematization of Jewish family policies in the contemporary period. And
indeed, in the face of arguments for a reparative, post-Shaoh family
policy made so strongly, by so many diverse elements of the Jewish
community, one can defend a strong case for the argument of
exceptionalism. But there are both theoretical and practical limits to
this argument, and ultimately, it fails to reflect fully the rich and
complex cultural and textual world of Jewish tradition.

First, we cannot bring back the lost world of Eastern European Jewry,
calling after them by a genre of faithful, ritualized enactment of an
imagined past. To be sure, wearing the clothes of the past, or performing
the beloved moment of the past over and over has always been a limited
part of rabbinic Judaism. The tradition maintains traces of this
everywhere, in the liturgy, in the Passover Seder, in the Yom Kippur
liturgical choreography where one re-enacts via prayer, the Temple
sacrifice. But all of these acts are self-conscious, transparent, aware
of the call and necessity of modernity, the need for continuity and
memory, aware of their strangeness and of the need to return to the world
of work. Held in tension with such enactments are two moral constraints,
the necessity of tradition, and the necessity of an ongoing, mutable
discourse that simultaneously participates in and seeks to interpret the
acts.

Let us be clear: Jews did not survive the terrible, genocidal losses of
the past by population increase. In fact, there is nothing in the textual
account to suggest this, and the only time that Jews increased fertility
was right along with all other Europeans at a time of relative peace.
How did Jews respond to other catastrophe? With education, with the
small but tenacious beit midrash the house of study, which was the
educational innovation at the time of the worst previous crisis for the
Jewish people. The mandate of procreation begins in Genesis, in which
the central drama of the first narrative is the struggle to define
humanness as distinct from that which is animal. Here, the text is clear:
we are not the ones who swarm, we do not, after our creation "swarm" over
the earth, and make "each to his kind" in an anonymous way. We are born
each into a genealogy and a name list, each particular one created, as
Maimonides reminds us, "as if a whole world is created." This is not a
call for multiplicity—it is rather a call of respect and attention to
each.

If childbearing is worldmaking, then the notion of acting like God
begins to shape the gravitas of the enterprise: what would be more
important that making an entire world? It is this particularity, and not
abundance that is stressed--it is not enough to be fruitful, one is also
entasked, and it is the ability to meet the demands of the task that is
critical.

Further, in countless other texts, what is key is not fecundity or
numbers of persons, but the enactment of justice--the common good is not
created by women's ability to make many children in an of itself but in
her ability to create a household of justice. In such a household, her
hands, beyond obligations to her "own" children, "stretch out to the
poor and her palms to the destitute."

What would a normative policy be?

Given this argument, how can we envision a family planning normative
practice that is both respectful of tradition, exquisitely sensitive to
history and memory, and protective of women in the way that halachic
texts remind us is key? Let me suggest a feminist Who_are_we that is
consonant with our tradition, yet aware of our currant situation.
First, such a norm, to be authentic, must be advocate procreativity.
Children and families have and will stand at the center of Jewish
practice. This should be taken, I believe to encompass the entire
obligation toward the next generation. We can robustly reclaim the
narratives of adoption in service of this goal, and of the primacy of
education, as in the texts that stress that having students is also akin
to childrearing.

Next, any such practice would be regulated commitments to long term
family relationships—not only between couples who intend to be parents,
but to the task and duty of being grandparents, uncles, aunts, and kin.
It is self-evident within the tradition that children need long-term
commitments from parents, and from the larger families who nurture,
support and celebrate the continuance of family life. Real reproductive
choice, means that the Jewish community needs to pay serious attention
to how family life is supported and how women, in particular within
families can lead live enlivened by the delight of the Torah in the ways
similar to men--this means strategies for the very study of texts that
could open the world of the textual tradition of the very issues we have
briefly explored.

Such a norm would understand the historic place of non-procreative
sexuality, in that any norm that is truthful to the tradition must
contain within it a delight in the erotic and sensual aspects of
sexuality as well as the procreative ones. This is in large part the
point of the textual issues about obligation and its limits. The Jewish
tradition contains complex and conflicting views on this--some frankly
patriarchal, to be sure, but others that are deeply curious, insightful
and liberatory for both women and men.

Finally, justice constraints need to be a part of our reflection on
families. In a clear way, Jewish tradition does not focus on rights but
on obligations and duties: hence for Jews the question needs to be
reframed in this way: what are the obligations about reproduction, family
planning, contraception and abortion? How can we struggle to be faithful
Jews and faithful citizens to the world, indeed, live as if chosen, not
for our oppression, but for the "light" carried in the Torah, which is to
say, the long history of meaning and language that the textual tradition
presents us with. Jews in most of the Diaspora and to a far lesser
extent in Israel consume like all Americans, using many times more
resources, water, land, energy and food than our counterparts in Africa
and Latin America. This alone raises questions of justice (not to mention
the self-interest that is a part of ecological concerns) Justice means
that within families, resources will need to be regulated by needs of
childrearing, health and education. Justice considerations will mean that
a communities resources also need to be meet—we need to ensure that every
larger families do not overwhelm a communities ability to care for the
poor, and to respond to call for justice outside the community as well.
In calling for serious reflection on our aspirational goals for family
planning and reproductive health, we need to call for more study of the
complex matrix of competing textual history in this arena. In particular,
we need to re-center the metaphor, and the practice of the protection of
the nursing infant to allow for careful spacing between children, on
behalf of both the women and of each child. As this chapter
demonstrates, the textual resources for compassion are already fully
intact within the tradition. Even if women understood and practice only
the restrictions on becoming pregnant while nursing, allowing for a
slower pace of childbearing, this would be a tremendous change for many
women and would certainly allow for the careful attention to each child.

Finally, we must come to some understanding about the historical
question of the legacy of the Shoah, where we began this chapter. Like
others in this volume, Jews press for unique claims for our people, our
tribe. At the deepest level these claims are understandable. A claim of
this sort carries, however serious responsibilities: the obligation for
social justice runs as deep as the right for survival. It must be
acknowledged that the tension about Jewish survival is one of the deepest
themes of Judaism--a fear that Abraham is never completely free of is the
doubt that his line will continue. Yet volume of children is never the
issue—as a proof text I can offer the fact that Abraham has many other
children, with other wives—yet it is not they, but only Isaac, one boy,
that matters, and this is a theme that is repeated throughout Genesis.
Endurance, we are carefully reminded, is the work of the faithful
remnant, continuity, to teaching the child the meaning of the covenant.
Less than half come out of Egypt with Moses, fewer than 15% may have
survived the Romans, but what remains is a community with a narrative, a
law, and a discourse, and that is what matters when survival is at stake.

Against destruction there is only the commanded life of faith, argue the
prophets, but it is elaborated by the rabbis who carefully debate the
details this life, of blood and birth and nursing babies, along with
ritual and prayer in the catastrophic social and environmental collapse
after the Second Temple. There we see the important suggestion, calling
for further study of the question, of the primacy of the nursing mother,
and there we see also the certainty of the need for tikkun olam, repair
of the whole world, not only the Jews in the world, always the imperative
of the Torah. As Jews in our period struggle with ever deeper issues of
scarcity and limits, and Jews now re-learn to care for an Israel whose
survival is precarious, whose every hill, every wadi, every tree matters
deeply, a literal as well as a spiritual Israel whose survival is not
ensured by creating more and more Jewish bodies, unless each one carries
the knowledge, and commitment to the tradition that marks them as Jews.
This is why Jewish tradition counts teachers nearly as important as
parents.

In rethinking Jewish ethical discourse on reproductive health and family
planing, like all ethical discourse, we must reflect on the complexity
and the power of the practice we pass on and create in language, responsa
and the struggle with our texts. And it is these texts that demands that
the generations continue in a world of justice, as clearly as they
insist we support and nurture each child—this is the legacy and a heritage that can participate in the salvation
of the world.

Acknowledgements

The author wishes to acknowledge the invaluable research support of Janet
Danforth, as a graduate research assistant in the Spring and Summer of
2000 at the University of Virginia, and the support of San Francisco State University.



Dr. Laurie Zoloth is Professor of Social Ethics and Director of the Program in Jewish Studies, San Francisco State University. She is President-Elect of the American Society for Bioethics and Humanities and is also the co-founder of the Ethics Practice, a group that has provided bioethics consultation and education services to health care providers and health care systems nationally. She has taught, researched and published extensively in the areas of ethics, family, feminist theory, Jewish studies and social policy. Her book, The Ethics of Encounter, on justice, health policy, the Oregon health care reforms and the ethics of community was published in the fall of 1999. She is on the national advisory boards of a number of organizations and associations and is a member of the editorial board of Shofar, The Journal of Clinical Ethics and the Second Opinion.

Dr Zoloth is a member of the board of directors of The Religious Consultation on Population, Reproductive Health and Ethics where she serves as a Participating Scholar and principal contributor to the Sacred Choices project from which this chapter has been taken.

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See also:Comments from a Jewish Perspective on the UN Conference on Population and Development by Susannah Heschel

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