Jewish Law And Abortion: What Does Talmudic Law Say?

The topic of abortion is a highly contentious issue in American politics, with religious groups taking opposing stances. While Judaism's position on abortion is nuanced, it is generally agreed that a complete prohibition on abortion is inconsistent with Jewish law and tradition. In Jewish law, a fetus is not considered a full person until birth, and abortion is permitted, and sometimes mandatory, if the mother's life is in danger. However, there is disagreement over what constitutes a threat, and abortion is not permitted if the mother's life is not at risk.

Abortion to save the life of the mother

Jewish law permits abortion to save the life of the mother. In fact, it insists on an abortion if this is necessary to save the mother. This is because the mother's life takes precedence over the life of the foetus.

The danger to the mother must be clear and substantial, and the abortion cannot be done in the very last stage of pregnancy. The Mishnah states that where there is danger to the mother's life, an abortion can be performed at any stage from conception until the head of the infant emerges:

> If a woman has (life-threatening) difficulty in childbirth, one dismembers the embryo within her, limb by limb, because her life takes precedence over its life. However, once its head (or its 'greater part') has emerged, it may not be touched, for we do not set aside one life for another.

The Talmud states that a foetus is considered to be "mere water" until its 40th day. After this point, abortion is generally prohibited but exemptions are permitted to preserve the mother's health or life. If a woman is at risk of death while giving birth, the Talmud says the foetus can and should be destroyed to save her because her life outweighs its potential life.

The medieval French rabbi Rashi says it is permissible to terminate a pregnancy because the foetus is not yet a human life. Maimonides, another major medieval Jewish thinker, takes a different approach. He says a foetus after 40 days gestation is a human life, but if its birth threatens the mother's life, it is a "pursuer" (rodef in Hebrew), a human who is trying to kill another human. You can and should terminate the pregnancy if the foetus threatens the life of the mother.

According to Orthodox Judaism, abortion is only permitted in cases where continuing the pregnancy would put the mother's life in serious danger. However, over time, the definition of when pregnancy jeopardises the mother's life has been expanded to include severe pain and suffering, including to her mental health.

In general, Orthodox Judaism opposes most abortions but permits them when the pregnancy endangers the woman's life. However, some rabbis have allowed abortions in other circumstances. For example, Rabbi Eliezer Waldenberg wrote that there is room for leniency if there is a danger to maternal health or severe pain, and permitted the abortion of an abnormal foetus before quickening and within three months of conception.

Abortion in cases of rape or incest

The issue of abortion in cases of rape or incest is a complex one within Jewish and Talmudic law. While there is no explicit precedent in Biblical or Talmudic literature, there are several key principles that can be applied to this situation.

Firstly, it is important to note that Jewish law does not view abortion as murder. This is because the fetus is not considered a full person until birth and, according to the Talmud, is "mere water" before 40 days of gestation. This means that abortion is permitted in certain circumstances, particularly when the mother's life is at risk. The principle of 'pikuach nefesh' allows for the violation of many laws in order to save a human life, and this can be extended to include the life of a fetus.

In cases of rape or incest, the emotional and mental toll on the mother must be considered. Rabbi Shlomo Zalman Aurbach, a respected Haredi authority, allows for methods that prevent pregnancy after intercourse in cases of rape. This is because the emotional harm caused by being forced to carry a pregnancy from such an assault could justify termination. The Conservative movement's Committee on Jewish Law and Standards released a statement acknowledging the importance of the woman's life and health, both physical and mental, in these decisions.

However, it is worth noting that Orthodox Judaism does not support a woman's right to choose an abortion for her own reasons. While the definition of when pregnancy jeopardizes a mother's life has expanded to include severe pain and suffering, including mental health, there is no explicit exception for pregnancies resulting from rape or incest. Nonetheless, a woman may be able to find an Orthodox rabbi who will approve an abortion due to her mental suffering.

Overall, the decision to have an abortion in cases of rape or incest is a complex and nuanced one within Jewish and Talmudic law, requiring careful consideration of the physical, mental, and emotional health of the mother.

Abortion in Jewish law before and after 40 days of gestation

The Jewish position on abortion is nuanced, neither condoning nor prohibiting it. Abortion is permitted when the pregnancy endangers the woman's life, but there is broad objection to abortion in cases without serious cause.

Abortion in Jewish Law Before 40 Days of Gestation

The Talmud, a compendium of rabbinical commentaries and laws written during the 1st millennium CE, states that a fetus is "mere water" and doesn't prohibit abortion before 40 days of gestation. During this period, the fetus is still coming into being, and therefore cannot be aborted as it hasn't yet come into being. While the Talmud doesn't refer to this as an abortion, it does indicate that the ancient rabbis regarded a fetus as part of its mother throughout the pregnancy, fully dependent on her for its life. This view supports the position that women should be free to make decisions about their own bodies.

Abortion in Jewish Law After 40 Days of Gestation

After 40 days, the Talmud considers the fetus a potential life. However, it is only considered a full-fledged life once the baby has issued from the womb, when the head or most of the body has emerged from the mother's body. After 40 days, abortion is generally prohibited, but exemptions are permitted to preserve the mother's health or life. If a woman's life is at risk while giving birth, the fetus can and should be destroyed to save her because her life outweighs its potential life. This is considered a mitzvah, a commandment, to save the life of a mother when she is at risk of life-threatening complications.

Rationale for Abortion After 40 Days of Gestation

There are different rationales for abortion after 40 days of gestation. The medieval French rabbi Rashi says it is permissible to terminate a pregnancy because the fetus is not yet a human life. Maimonides, another major medieval Jewish thinker, takes a different approach. He says a fetus after 40 days gestation is a human life, but if its birth threatens the mother's life, it is a "pursuer" (rodef in Hebrew), a human who is trying to kill another human. Therefore, you can and should terminate the pregnancy if the fetus threatens the life of the mother.

Abortion in Jewish law when the mother's health is at risk

Judaism's position on abortion is nuanced, and while it does not fit neatly into either the 'pro-life' or 'pro-choice' camps, it does provide explicit exceptions for threats to a mother's life.

Jewish law does not share the belief that life begins at conception, nor does it consider a foetus to be a full person with protections equal to those of human beings. In Jewish law, a foetus attains the status of a full person only at birth.

The Talmud states that a foetus is considered "mere water" until its 40th day, and that until then, it does not have a legal status. After this point, abortion is generally prohibited, but exemptions are permitted to preserve the mother's health or life. If a woman is at risk of death while giving birth, the foetus can and should be destroyed to save her because her life outweighs its potential life. This is considered a mitzvah, a commandment, to save the life of a mother when she is at risk of life-threatening complications.

The medieval French rabbi Rashi says it is permissible to terminate a pregnancy because the foetus is not yet a human life. Maimonides, another major medieval Jewish thinker, takes a different approach. He says a foetus after 40 days of gestation is a human life, but if its birth threatens the mother's life, it is a "pursuer" (rodef in Hebrew), a human who is trying to kill another human. You can and should terminate the pregnancy if the foetus threatens the life of the mother.

However, there is disagreement over what constitutes a threat to the mother. While some rabbinic sources support abortion when a mother's health is in danger, even if her life is not at risk, others insist on evaluating each case individually.

In general, abortion is permitted in Jewish law only if there is a direct threat to the mother's life by carrying the foetus to term or through the act of childbirth.

Abortion in Jewish law when the fetus is severely defective

Jewish law does not consider a foetus to be a full person, and a foetus only attains the status of a full person at birth. The Talmud indicates that prior to 40 days of gestation, the foetus has a limited legal status, with one Talmudic authority asserting that before 40 days, the foetus is "mere water".

In mainstream rabbinic Judaism, abortion is prohibited in most cases. However, there are circumstances in which abortion is allowed. If a pregnant woman's life is at risk, abortion is permitted, and some consider it mandatory. In addition, if a woman's mental health is at risk, abortion is also allowed.

The Conservative movement permits abortion if there is a severe physical or psychological threat to the mother, or if the foetus is judged by competent medical opinion as severely defective. In 1983, the Conservative movement's rabbinical authorities permitted abortion only "if a continuation of pregnancy might cause the mother severe physical or psychological harm, or when the foetus is judged by competent medical opinion as severely defective".

The Reform movement has a similar approach, permitting abortion for the sake of the mother's mental well-being if there is a strong preponderance of medical opinion that the child will be born imperfect physically and mentally.

In summary, while abortion is generally prohibited in Jewish law, there are exceptions, including when the mother's life or mental health is at risk, or if the foetus is severely defective. The Conservative and Reform movements have a more lenient approach, allowing abortion in cases of severe physical or psychological harm to the mother, or if the foetus is severely defective.

Frequently asked questions