Jewish Law And Abortion: A Complex Relationship

Jewish law does not mandate a blanket ban on abortion, but nor does it explicitly permit it. The Jewish position on abortion is complex and multifaceted, with roots going back to the Bible. While the fetus is to be protected as a potential human being, it is not considered a full person until birth and therefore has no personhood or juridical personality of its own. This means that abortion is not considered murder, and the mother's life takes precedence over the fetus. If a pregnant woman is sentenced to death, the execution can go forward, and if a woman in labour is at risk of death, the fetus can and should be destroyed to save her. However, once the baby's head has emerged, termination is no longer allowed.

The permissibility of abortion in other circumstances is more contentious. While there is broad objection to abortion in cases without serious cause, there is no single principle by which to determine the morality of abortion, and Jewish thinkers are divided on the issue. Some rabbinic sources support abortion when a mother's health is at risk, when a fetus is severely abnormal, when a mother's mental health is in danger, or when the pregnancy is the result of a forbidden sexual union. However, these rulings are not universally accepted, and many Orthodox rabbis are cautious about laying down firm standards, insisting that cases be judged individually.

The legal status of the embryo/fetus

Jewish law does not consider a fetus to be a full person until it has been born. The fetus is regarded as a part of the mother's body and not a separate being until it begins to egress from the womb during childbirth. The Talmud indicates that the embryo is part of the mother's body and has no identity of its own, as it is dependent on the mother's body for its life.

The Talmud also states that prior to 40 days of gestation, the fetus has a limited legal status, with one Talmudic authority asserting that before this point, the fetus is "mere water". The fetus is considered to be subhuman until it is born. This is based on the belief that the fetus only becomes a person when most of its body emerges from the birth canal.

The fetus is viewed as valuable, but not considered human. The Mishnah declares that one who kills a one-day-old baby is criminally liable and deserves the same penalty as that of the death of the mother. Until it has been established that the pregnancy has been completed and life is formed, the fetus is not included as a life deserving of another life.

The status of the embryo is also indicated by its treatment as "an appendage of its mother" for matters such as ownership, maternal conversion, and purity law. The Talmud speaks of a "moment of determination" and a "moment of creation" in regard to different stages of the fetus.

The fetus is granted some recognition of human life, but it does not equal that of the mother's and can be sacrificed if her life is in danger. If a pregnancy risks the life of the mother, the rabbis rule that the mother's life takes precedence and that the child may be aborted to save the mother. This can be done until the point of "yatza rubo", which refers to the emergence of the baby during childbirth.

In summary, while the fetus is considered valuable and is granted some recognition of human life, it is not considered a full person until birth under Jewish law. The fetus is viewed as an extension of the mother and her well-being takes precedence in cases where the pregnancy puts her life at risk.

The time of ensoulment

The Talmud, a foundational text of Jewish law, offers insights into the concept of ensoulment. According to the Talmud, prior to 40 days of gestation, the fetus is considered "mere water," lacking the status of a human life. This interpretation is supported by the Mishnah, another important rabbinic text, which states that the head or a greater portion of the fetus must exit the birth canal for it to be considered a person.

Beyond these initial 40 days, the exact moment of ensoulment is a matter of debate among Jewish scholars. Some believe that ensoulment occurs when bones and arteries begin to form, while others suggest it happens at the 40th day, or even at birth. The Talmud also mentions a “moment of determination" and a "moment of creation," indicating different stages in the development of the fetus.

The question of ensoulment is further complicated by the absence of a concept of original sin in Judaism. Unlike in Christianity, where the soul is believed to be tainted by original sin and in need of cleansing through baptism, Jews believe that they inherit a pure soul that can only be contaminated by their own actions. This belief has implications for how early abortions are viewed in Judaism, as terminating a pregnancy early would send a fetus to heaven in a state of purity.

In summary, while the exact moment of ensoulment is a subject of discussion among Jewish scholars, it is clear that a fetus is not considered a full person until birth. The Talmud and other rabbinic texts provide guidance on the matter, but ultimately, the question of ensoulment is considered separate from the issue of abortion in Jewish law, where the well-being of the mother is of paramount importance.

Conditions under which a therapeutic abortion may take place

Judaism's position on abortion is nuanced, and while most major Jewish religious movements discourage it, abortion is permitted in certain situations. The Jewish law, or Halakha, allows abortion in certain circumstances, and some authorities have permitted it in cases of 'great need'.

The conditions under which a therapeutic abortion may take place are as follows:

• The mother's life is at risk. This is the most common situation, explicitly described in the Mishnah. If a pregnancy puts a mother's life at risk, the rabbis rule that her life takes precedence and the child may be aborted. This is based on the principle of Pikuach Nefesh, which allows for the violation of almost all laws in order to save a human life. However, once the baby's head or majority of its body has emerged, termination is no longer allowed as Jewish law does not permit sacrificing one life to save another.
• The mother's health is at risk. Some Orthodox rabbinic sources support abortion when a mother's health is in danger, even if her life is not at risk. For example, Rabbi Eliezer Waldenberg permitted abortion in cases of danger to maternal health or severe pain.
• The mother's mental health is at risk. Some rabbinic sources allow abortion when a mother's mental health is endangered by the pregnancy. Rabbi Eliezer Melamed, for instance, permits abortion for people who develop a mental illness due to pregnancy.
• The fetus is severely abnormal. Some rabbinic sources support abortion when a fetus is conclusively determined to suffer from severe abnormalities.
• The pregnancy is the result of a forbidden sexual union. Some rabbinic sources allow abortion in cases of rape or incest.

It is important to note that while these conditions provide a framework, many Orthodox rabbis are cautious about laying down firm standards and insist that each case be judged individually.

Conditions under which a non-therapeutic abortion may take place

Jewish law does not consider abortion as a binary issue. While abortion is generally discouraged, there are several circumstances under which a non-therapeutic abortion may be permitted.

Firstly, if the mother's life is at risk, abortion is not only allowed but mandated. This is because, in Jewish law, a fetus is not considered a full human being until it is born. The Talmud states that a fetus is ""mere water" until its 40th day of gestation, and that until birth, it is considered an ""appendage of its mother". After 40 days, abortion is generally prohibited, but exemptions are made to preserve the mother's health or life.

In the case of severe physical or mental health issues, some rabbis have allowed abortions. For example, Rabbi Eliezer Waldenberg wrote that there is room for leniency if there is a danger to maternal health or severe pain, and Rabbi Eliezer Melamed allowed abortion for people who develop a mental illness due to pregnancy.

In cases of adultery, there is a division of opinion. Some rabbis invoke the principle of "let the fruit of the act bear witness to the deed, lest adultery flourish in the land", while others maintain that the mother's mental anguish and shame must be avoided. In cases of rape, the latter principle often dominates, with many authorities granting permission for an abortion.

In summary, while there is no single principle to determine the morality of abortion in Jewish law, the guiding principles are that a woman's life, her pain, and her concerns take precedence over those of the fetus, and that existing life is always sacred and takes precedence over a potential life.

The fetus as a limb of its mother

Jewish law considers the fetus as a limb of its mother, and therefore, an appendage of her body. This perspective is reflected in several sources, including the Babylonian Talmud (B. Ḥullin 58a, B. Bava Kama 78b-79a, B. Sanhedrin 80a, B. Nazir 51a, B. Gittin 23b, and B. Terumot 25a). This view highlights the fetus's complete dependency on the mother and reinforces the notion that it does not possess an independent existence.

The concept of the fetus as a limb of the mother has significant implications and applications in Jewish law and thought. Firstly, it underscores the idea that the fetus does not have a separate identity from the mother until it begins to egress from the womb during childbirth. This belief is further supported by the understanding that until forty days after conception, the fertilized egg is considered "mere fluid." Thus, the fetus is regarded as part of the mother's body and not a separate entity, shaping the Jewish legal perspective on abortion.

The understanding of the fetus as a limb is also relevant in discussions of ownership, maternal conversion, and purity law. For example, in the case of a pregnant Gentile woman converting to Judaism, the fetus is considered part of the mother and, therefore, also undergoes conversion. Additionally, the fetus is treated as the mother's property, and any damage or loss related to it is addressed through monetary compensation to the mother and her husband.

Furthermore, the perspective of the fetus as a limb of the mother has implications for the well-being and safety of the mother. In situations where the mother's life is endangered by the fetus, such as a difficult labour, Jewish law prioritises the mother's life. This is based on the principle that a fetus is not considered a viable soul (nefesh) until it is born. As a result, it is permissible to abort or dismember the fetus to protect the mother's life.

The concept of the fetus as a limb of the mother also extends to discussions of the mother's psychological health. Some rabbinic sources refer to the threat to the mother's mental well-being as a relevant factor in discussions of her right to abort. This perspective is considered in both ancient and modern interpretations of Jewish law.

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