Jewish Perspectives on Abortion
by Rabbi Raymond A. Zwerin & Rabbi Richard
Whatever their opinions on abortion in any given situation, a vast majority
of Jewish thinkers agree that decision-making with respect to abortion must
be left in the hands of the woman involved, who may consult her husband, her
physician, and her rabbi.
These are the guiding principles on abortion in Jewish tradition: a woman’s
life, her pain, and her concerns take precedence over those of the fetus;
existing life is always sacred and takes precedence over a potential life;
and a woman has the personal freedom to apply the principles of her tradition
unfettered by the legal imposition of moral standards other than her own.
The issue of abortion in Jewish life is both complex and multi-faceted,
with roots going back to the Bible. Its complexity is due, in large measure,
to the reluctance of Jewish legal authorities to establish a single principle
by which to determine the morality of abortion. Within the context of an overriding
Jewish concern for the sanctity of human life, legal authorities have relied
largely on individual cases and derivative legal concepts in determining when
an abortion may take place. Especially during the 20th century, the increased
diversity of traditions and practices within the Jewish community has naturally
led to a diversity of approaches to the abortion issue. Nonetheless, out of
this complex diversity a clear, general concept can be adduced from the centuries
of Jewish tradition; and it is that concept which this article will address.
There are four aspects to the issue of abortion in Jewish tradition: (1)
the legal status of the embryo/fetus, (2) the time of ensoulment, (3) conditions
under which a therapeutic abortion may take place, and (4) conditions under
which a non-therapeutic abortion may take place.
The Legal Status of the Embryo/Fetus
According to Jewish law, a fetus is not considered a full human being and
has no juridical personality of its own. While recognizing the potentiality
of becoming human, Rashi, the great 12th century commentator on the Bible
and Talmud, states clearly of the fetus “lav nefesh hu – it is
not a person.” The Talmud contains the expression “ubar yerech
imo – the fetus is as the thigh of its mother,” i.e., the fetus
is deemed to be part and parcel of the pregnant women’s body.
The biblical foundation for this statement is Exodus 21:22ff:
When men fight and one of them pushes a pregnant woman and a miscarriage results,
but no other damage ensues, the one responsible shall be fined according as
the woman’s husband may exact from him, the payment to be based on reckoning.
But if other damage ensues, the penalty shall be life for life…
The Jewish legal interpretation of this passage states specifically that
only monetary compensation is necessary for one who causes the death of a
fetus. The unborn fetus is not worthy of the “life for life” punishment
demanded if the woman herself is killed. This clearly implies that the fetus
is not accorded the same legal status as the woman herself, namely that of
independent human being.
Further proof of the Jewish legal principle that the fetus is to be regarded
as part of the pregnant woman is contained in two examples from the Talmud.
The first involves the sale of a cow which, subsequent to sale, is found to
be pregnant. The legal determination is that the fetus in the womb of the
cow belongs to the buyer, and that the seller can make no claim for further
compensation. The second example concerns the conversion to Judaism of a woman
who is pregnant. Jewish law regards the conversion valid for her future child
as well, requiring no separate conversion for it after birth.
While all of the above is not totally sufficient to determine the Jewish
attitude toward abortion, it does set the stage. Jewish law is quite clear:
while the fetus in the womb is to be protected as a potential human being,
it has no personhood; it is not a bar kayamah (a viable, living being), thus,
it is not accorded any of the right or privileges of a human being.
The Time of Ensoulment
While the status of a fetus is of interest with regard to the ultimate question
of the morality of abortion, so, too, is the issue of ensoulment. Namely,
at what moment does the soul enter the body? In Jewish legal tradition, there
are several theories. The most famous text in this regard is from the Talmud
and concerns a somewhat strange dialogue between the Roman Emperor Antoninus
and Rabbi Judah the Patriarch, the complier of the Mishna.(The Mishna is the
first post-Biblical compilation of Jewish law and tradition, compiled at the
beginning of the third post-Christian century.)
“Antoninus asked Rabbi Judah: ‘From when is neshamah (soul)
endowed in man: from the time of birth, or from the moment of intercourse?’
Rabbi Judah answered, ‘From the time of birth.’ The emperor then
asked, ‘Can meat remain three days without salt and not putrify?’”
As obscure as this dialogue may seem, Rabbi Judah understood it. According
to Talmudic dictum, it can take as long as three days from the moment of intercourse
until the ovum is fertilized. What, then, keeps the sperm (i.e., meat) vital
through that period of time? There must be a vitalizing life force (i.e.,
salt) present. From the conclusion of their discussion, it appears that due
to the questions of a Roman emperor, Rabbi Judah changed his mind and adopted
the position that ensoulment occurs at conception.
However, the rabbis of his and succeeding generations have taken such a view
to task. They have expressed a variety of opinions, citing proofs for ensoulment
as early as the act of intercourse itself, and as late as the time a child
learns to speak! The rabbis were saying, in effect, that the moment of ensoulment
is unclear at best and subject to a great deal of speculation and disagreement,
They state, therefore, that is one of the “secrets of God” that
will be revealed only when the Messiah comes. As a result, the issue of ensoulment
plays virtually no role in Jewish considerations of the morality of abortion.
Conditions for Therapeutic Abortions
The issue of therapeutic abortion itself is first dealt with in a second century
Jewish legal text quoted in the Mishna.
If a woman is in hard labor (that threatens her life), one dismembers the
fetus within her and removes it limb by limb, because her life takes precedence
over its life. Once the greater part of it emerges it may not be touched,
for we do not set aside one life for another.
In commenting on this passage, later authorities further define the phrase
“the greater part of it.” During a normal delivery, this refers
to the emergence of the forehead, while during a breech birth, this means
more than half the body.
There are two principles employed here o arrive at the conclusion that the
abortion is justified. The first and foremost of the two is that the fetus
remains only a potential human life until its emergence from the birth canal.
One must, therefore, sacrifice the potential life in order to save a fully
existent human life, i.e., the pregnant woman in labor.
The second principle deals with the concept of self-defense. In Jewish law,
one is permitted to defend oneself, even to the extent of taking the attacker’s
life should one’s own life be in jeopardy. This point was brought into
the discussion on abortion when some authorities in the Talmud challenged
the prohibition stated above, of the taking of the life of its mother. It
was argued that the principle of the aggressor ought to apply here. Since
it was pursuing its mother with intent to kill, one should be permitted to
kill the fetus if necessary, even the fetus whose greater portion had already
emerged. This argument was rejected, however, in favor of a position that
the mother is being pursued “from Heaven,” i.e., that the difficulties
she is encountering are an act of God, and that it is impossible to know,
in reality, who is pursuing whom. The principle of pursue and self-defense,
therefore, cannot be applied in the case of the child in the process of being
born and need not be applied prior to birth since in that case the pursuer
is not a person.
Nonetheless, in the legal code of Maimonides, the great Jewish sage of the
13th century, the argument of the pursuer was used once again. In commenting
on the passage from the Mishna quoted above, and in stating the rules governing
abortion in his code, Maimonides utilizes the pursuer justification, using
the examples of a boat about to sink from its load. In order to lighten the
load, a passenger without baggage steps forward and proceeds to throw overboard
the baggage and a mule belonging to the others. Maimonides states that person
is not liable for restitution to the owners, for the baggage and mule are
pursuers, “seeking” to kill them all.
In using the justification of the pursuer, Maimonides clearly complicates
the meaning of the Mishna passage. There are those who believe that Maimonides’
intent in using the pursuer argument was to limit abortions only to those
cases where the pursuer argument applies, i.e., in life-threatening situations.
There are others, however, who believe that he was using the language only
as an illustration and has no intention to contradict the authorities of the
Talmud who had rejected the pursuer argument. In any event, Maimonides’
use of the principle and its assumption by later authorities in their codes
of Jewish law became a point of contention in deciding the permissibility
of non-therapeutic abortions.
In dealing with therapeutic abortions, one final point must be made. It is
important to note that the Mishna text does not present either the pregnant
woman or her physician with options. If her life is threatened, the unborn
fetus must be sacrificed; she may not make the decision to sacrifice her own
life for that of the fetus within. And, equally as compelling, once the child
is born, no decision may be made to sacrifice its life in order to save that
of its mother. They both have an equal claim on life.
Conditions for Non-Therapeutic Abortions
The guidelines for deciding cases of accidental and therapeutic abortion,
then, are reasonably clear-cut, even though there is some disagreement concerning
the proper justification. Such cannot be said once one turns to the topic
of a non-therapeutic abortion. Here the relevant literature is the Responsa
– questions written to and responses written by rabbinic authorities
from the 10th century to today. It is also here that a divergence in opinion
begins to emerge. Such divergence is due initially to differing understandings
of Maimonides’ use of the pursuer argument, cited above. Later, in the
19th and 20th centuries, it becomes part and parcel of the diversity within
Judaism itself as liberal streams of Jewish tradition and observance emerge.
There are many relevant Responsa concerning abortion, several of which follow.
In all of them, the principles are those described above. Note however, how
different understandings of these principles lead to different conclusions.
The first case concerns a child who is nursing and cannot survive without
his mother’s milk, being allergic to all other forms of nutrition. The
mother, however, having become pregnant once again, sees that her milk has
now ceased flowing. Here, where the issues is saving the life of a third party,
as opposed to the pregnant woman herself, two different authorities mandate
the performance of an abortion to save the life of the existing child.
Other cases emerge today as a result of a better understanding of mental
health issues. The question is whether or not suicidal tendencies in a pregnant
woman (tendencies that might, as a result of the pregnancy itself, impel the
woman to take her own life) justify the performance of an abortion. In this
case, even the most stringent of authorities permit an abortion to save the
life of the pregnant woman.
In past centuries, many other circumstances have come before rabbinical authorities.
One case involved a woman whose pregnancy would leave her permanently deaf,
and while some authorities rejected this as sufficient grounds for an abortion,
no less an authority than a Chief Rabbi of Israel granted her permission.
In cases involving adultery, there is also a division of opinion. Some invoke
the principle of “let the fruit of the act bear witness to the deed
lest adultery flourish in the land.” Others maintain that we must do
everything possible to save the pregnant woman from great mental pain and
anguish, shame being the greatest mental pain. And in several cases involving
rape, this latter principle seems to dominate, with many authorities granting
permission to take the steps necessary to ensure that a pregnancy will not
Yet, in the light of these cases, might one assume that abortion is justifiable
under any and all circumstances? The answer, according to Jewish law, is clearly
“no.” The majority of Jewish legal sources indicate that abortion
is permissible at any stage of the pregnancy if the well-being of the pregnant
woman is jeopardized, while it is clearly not permissible if the well-being
of the future child is the issue. This distinction can best be illustrated
by the following example.
Modern medical technology allows a pregnant woman to be certain, long before
the birth of her child, whether it will be born defective due to rubella,
genetic factors such as Tay-Sachs disease, systemically transmitted diseases
such as HIV, or another such factor. In all of these cases, abortion is not
permitted out of fear or concern over what the child might have to endure
during its life. Its lot in life is not to be determined or judges by humanity.
Its quality of life is one of the “secrets of God” and is not
open to human judgment. However, some rabbinical authorities maintain that
if the pregnant woman expresses anguish about her own mental, emotional, or
psychological condition resulting from an impending birth, then her pain my
warrant an abortion. Other rabbinical authorities would not permit an abortion
on such grounds.
In cases of non-therapeutic abortion, then, the major consideration is “the
pain of the mother.” It is consideration for the woman involved, and
not the fate of condition of the fetus, which becomes the determining factor
in prohibiting or permitting an abortion. And it is precisely on this issue
that diversity of opinion is now the greatest. Not only is the diversity seen
among the various movements of Judaism today, but even within each movement
itself. In addition to traditional Jewish mores and standards, each movement
has its own criteria for determining the permissibility of abortion under
other than therapeutic circumstances.
For Judaism, the evidence in matters of abortion, then, is reasonably clear.
The legal codes and rabbinic teachings tend to depict the fetus as simply
a part of a woman’s body. Just as one may not wantonly mutilate one’s
own body, so, too, a woman is not permitted to obtain an abortion merely for
reasons of convenience. But just as she is permitted to sacrifice a portion
of her body for her greater good, so, too, may she obtain permission for an
abortion in order to assure her overall well-being. The fetus is not a person;
it has no rights. Questions of ensoulment, while interesting, are essentially
irrelevant. Thus, abortion becomes permissible, according to the vast majority
of authorities, under a wide variety of circumstances.
However is must also be said that Judaism as a religious heritage does not
tilt absolutely to one side of any issue. Callousness as to the seriousness
and the tragedy of abortion is unacceptable. Abortion as birth control is
unacceptable. Abortion as a means of avoiding the responsibility of bearing
children is antithetical to Jewish values.
One final point. Due to the general leniency in matters of abortion, as well
as to a long-standing Jewish insistence on the separation of religion and
government in American life, all four non-Orthodox Jewish movements –
Reform, Reconstructionist, Conservative and Humanist – are on record
opposing any governmental regulation of abortion. Moreover, many Orthodox
authorities take the same position. Whatever their opinions on abortion in
any given situation, a vast majority of Jewish thinkers agree that decision-making
with respect to abortion must be left in the hands of the woman involved,
her husband, her physician, and her rabbi. Out of this context, in consonance
with her Jewish heritage, she can make a decision as she is permitted to do
by the United States Constitution.
These, then, become the guiding principles on abortion in Jewish tradition:
a woman’s life, her pain, and her concerns take precedence over those
of the fetus; existing life is always sacred and dates precedence over a potential
life; and a woman has the personal freedom to apply the principles of her
tradition unfettered by the legal imposition of moral standards other than
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Ethical Perspectives on Abortion (PDF)