Rabbi Steven Carr Reuben, Ph.D.
A woman has a difficult pregnancy and sadly during the act of giving birth it’s too much for her and she dies. Following the funeral, the local prosecutor then charges the infant with involuntary manslaughter and moves to bring the child to justice for murdering her mother.
OK sounds ridiculous – and such a thing could never happen. Right? Well, if the law of the land were to become according to the ethical position of the Catholic church that defines full human status from the moment of conception, then even this absurd scenario would be theoretically possible. Just as the far Religious Right and the politicians who support them are attempting to appoint lawyers to represent the interests of a fetus against its mother in court, attempting to charge medical doctors who perform abortions or any procedure that results in the death of a fetus or miscarriage with murder, attempting to charge mothers who take drugs that result in their own miscarriage with murder, and attempting to pass legislation that overturns Roe Vs. Wade denying every woman the right to control her own body even if impregnated through rape or incest – it was the brilliant insight of Maya Schneiderman one of my 10th grade Confirmation students who pointed out that charging a fetus who kills his or her mother with murder follows the exact same logic.
Abortion, protecting the sanctity and dignity of every life, acting on our fundamental Jewish belief that every human being is created in the image of God, all present difficult, challenging, gut-wrenching decisions by real women in the real world who must confront real situations of life and death and live with the consequences for the rest of their lives.
So, what wisdom might Judaism and Jewish tradition bring to this difficult, emotionally charged question?
First, there is no doubt but that Judaism has a supreme concern for the sanctity of human life.
Everyone knows the famous quotation from the Mishnah (Sanhedrin 4:5): “One who saves a life is counted as if he saved the entire world, and one who destroys a life is counted as if he destroyed the entire world.”
This fundamental cherishing of life itself and seeing life as a divine gift from God means that regardless of the reasons or the circumstances, Judaism has never taken the termination of a pregnancy lightly. Even when permitted, and even when required which it sometimes is, it is still a difficult and painful reality representing a diminishing of the divine in the world.
Apart from an overall regard for the sanctity of life, Judaism finds other reasons to be reticent about endorsing abortion:
- killing a fetus breaks the first mitzvah of the Torah – peru v’revu – “Be fruitful and multiply” - to populate the world
- killing a fetus destroys something made in God's image since all human beings, including those still in formation in the womb are considered to be created btzelem elohim.
- killing a fetus is wanton destruction of part of God's creation and the Torah has a prohibition against unnecessary destruction of anything that God creates under the biblical injunction called ba’al tashhit.
- killing a fetus is itself an act of wounding the mother
- according to Jewish law it is wrong to injure oneself
Classical Jewish arguments about abortion are mainly concerned with the distinction between killing someone who is fully a person, and someone who is not yet fully a person.
In fact, abortion is not explicitly referred to in the Hebrew Bible at all- instead the arguments for or against the independent personhood status of a fetus have to drawn from analogies to what is written in the text about other issues like the accidental miscarriage brought about by a fight.
For example, there is an argument regarding not only the priority of the mother's life or personhood over that of a fetus, but traditional rabbinic commentators classified the fetus as a 'rodef', a 'pursuer' who is threatening the life of the mother. The fetus may therefore be killed in such a case in order to prevent the mother being killed.
The great Jewish commentator Moses Maimonides (who of course was also a doctor) in the 12th century in Egypt wrote: “The sages ruled that if a woman is in hard travail it is a mitzvah to remove the embryo either by means of drugs or surgery, because it is regarded as a “rodef,” exactly the same as a “pursuer” who is trying to kill her.”
So what is the status of a fetus in Jewish Tradition?
Simply put, traditional Judaism understood the status of a fetus to be exactly the same as a limb of the mother. Therefore, in Judaism a fetus is not considered to be fully a person until birth – technically until half its head emerges from the womb. Until that time the fetus is called “kereh imo” “like a limb of the mother” and just as if a woman has cancer in her arm or leg which was threatened her life you would naturally expect her to amputate the arm or leg without question to save her life, so too in the case of a fetus and a difficult, dangerous pregnancy that is threatening the life of the mother. Here too, Jewish tradition commands the woman to remove the fetus from her body, even if it literally has to be taken out limb by limb.
That is why in Jewish law there is a clear difference between “feticide” and “homicide” – one is the destruction of a fetus, at best an “emerging human life” but one which clearly does not have full human status, and the other is the taking of a human life with the resultant ethical, moral and legal consequences.
From a Jewish ethical point of view it is clear:
1. A fetus is not a person
2. A fetus is entitled to be treated with dignity, respect and looked upon as a sacred gift from God, as all human life is seen since we are created btzelem elohim - in the image of God.
3. The high status of a fetus is seen in the fact that Jewish law allows for the desecration of Shabbat in order to save the life of a fetus.
Where does all this come from in Jewish tradition?
The status of the fetus in both Jewish and Catholic traditions derive from a particular passage in the Torah – Exodus 21:22: Unfortunately as with some other differences between our religions, the stark differences in our attitudes about abortion and the relative status of a fetus derives from an unfortunate mistranslation of the Torah from its original Hebrew into Greek.
The text of Exodus 21:22 says:
“If men strive together and hurt a woman with child so that a miscarriage results, but no other damage ensues, the one responsible may be fined according to what the husband may exact from him, and he shall pay according to what the judges determine; but if other damage ensues,(or sometimes translated: “If any harm follows”), then he shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound.”
From this Torah passage the rabbis of the Talmud derived the position that a fetus was not considered to have the same status as a full human being, since the consequence of the accidental killing of a fetus as the result of a fight between two men revolved around monetary compensation and wasn’t considered a criminal act as would be if there were harm to the woman herself – then the punishment would be equal to the severity of the injury – eye for eye, tooth for tooth, life for life.
What happened in the Christian world took a decidedly different turn. In the Septuagint, the Greek translation of the Torah, the Hebrew for “no harm follow” ( lo yeheyeh ason) was replaced by the Greek for “imperfectly formed.” So when the Torah says, “If a man strikes a pregnant woman and destroys he fetus “yet no harm follow” it was referring in the Hebrew to the no harm coming to the mother. The mistranslation into Greek made it sound like the sentence referred to the fetus becoming imperfectly formed. This created a false distinction between an “unformed” and a “formed” fetus and branded the killing of the “formed” fetus as murder.
This mistranslation then became embodied in the foundations of church law, and the killing of a fetus from the moment of conception became branded as murder by the Catholic Church and fundamentalist Christianity ever since.
That is why the Christian right’s banner of “Right to Life” bestows full human status and rights on any unborn fetus, with the right to legal counsel, and the ultimate potential branding of anyone who causes a miscarriage to be a murderer, whether a doctor or a mother. In fact the official church position is known as the doctrine of “Better two deaths than one murder.”
The contrary position has been taken by Jewish groups, rabbis and Jewish legal scholars for hundreds of years. Even the Orthodox 18th century scholar Rabbi Jacob Emden in responding to both the physical harm and severe emotional harm that might ensue to many women who have difficult or unwanted pregnancies, wrote in a famous legal ruling, YESH LEHAKEL LETZOREKH GADOL – “THERE IS GROUND FOR LENIENCY IN CASES OF GREAT NEED.”
Without question, particularly in the progressive Jewish world, and for sure within Reconstructionist Judaism, that has been the prevailing ethical value and moral and legal position. A woman’s body is hers, and a fetus growing in her body is hers and considered fundamentally as a part of her body to be treated with reverence and respect as all of our bodies are to be treated with respect and reverence, but certainly not having a separate, independent existence from the mother with any legal rights at all, until the time of birth and independent viability itself.
The simple understanding of Jewish tradition and law is seen in the commentary of the most famous biblical commentator from the 11th century in France – Rashi. He wrote regarding the status of a fetus:
“For as long as it did not come into the world, it is not called a living thing and it is permissible to take its life in order to save its mother. Once the head has come forth it may not be harmed for it is considered born, and one life may not be taken to same another.”
Similarly we can understand the status of a fetus vs. a full human being by the traditional laws of gayrut – or conversion to Judaism. According to Jewish law, if a pregnant woman converts to Judaism the child that is born subsequent to the conversion is considered fully Jewish and does not require his or her own conversion. That is a clear demonstration that within Jewish law the fetus is connected to and literally a part of the mother and not a separate being which in this case would then require a separate conversion as well.
I’m sure everyone has heard the famous Jewish line in response to the question, when does a Jewish child reach adulthood and full adult status? When she graduates from law school or medical school. Well, in this case all that is required is to come into the world and be born into an independent existence separate from the mother – in our tradition that is the real “Right to Life” – it’s the right to be called fully human only when the fetus emerges out of the womb and so becomes a child to be cherished, raised up and inspired to make a difference in the world.
Copyright ©2014 Kehillat Israel.