Author Archives: David Feldman

About David Feldman

Rabbi David Feldman is Rabbi Emeritus at the Teaneck Jewish Center and the Dean and Founder of the Jewish Institute of Bioethics.

The Soul of a Fetus

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Reprinted with permission from “Jewish Views on Abortion,” from The Jewish Family and Jewish Continuity, edited by Steven Bayme and Gladys Rosen, published by KTAV.

If abortion is not murder in the rabbinic system, it is surely not worse than murder. But it is worse than murder in those religious systems concerned with “ensoulment” of the fetus.

Fetus

At a conference on the subject several years ago, I stated that the discussion for the past several sessions, debating the time of ensoulment– whether the soul enters the fetus at conception, at the end of the first trimester, at birth–was monumentally irrelevant. From the Jewish standpoint, “It is not when does the soul enter, it is what kind of a soul enters.”

Classic Christianity has always said that the soul which enters the fetus is tainted and must be cleansed by baptism to save it from eternal perdition. According to the doctrine of original sin, each individual soul inherits the taint of its primordial ancestors.

When St. Fulgentius in the sixth century was asked when that stain attaches to the person, he replied that it begins with conception. This resulted in concern that the fetus be brought to term so that it might be baptized. Without baptism the soul is condemned to death in both worlds, making abortion clearly worse than murder.

Accordingly, it should be said that when Catholics reputedly decide to “let the mother die” rather than allow an abortion, they are not being cruel; rather, they are being logically consistent. The mother was presumably baptized as an infant; she can die and “go to her reward.” But the child must be brought to term and baptized to save it from perdition. So sincere is this concern that theologians at the Sorbonne in the nineteenth century invented a baptismal syringe, wherewith to baptize a fetus in utero in the event of a spontaneous abortion, a miscarriage.

But this is surely a concern that the Jewish community cannot share, since we have no concept of original sin. We recite daily in our prayers words that come directly from the Talmud: “My God, the soul with which thou hast endowed me is pure.” We inherit a pure soul, which becomes contaminated only by our own misdeeds. Thus, early abortion would send a fetus to heaven in a state of pristine purity.

While the Talmud does discuss the time of ensoulment–is it when the child is conceived, or at the first trimester, at birth, or, as one opinion has it, when the child first answers “Amen”?–it dismisses the question as both unanswerable and irrelevant to the abortion question.

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The Parameters of Abortion in Judaism

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Reprinted with permission from “Jewish Views on Abortion,” from The Jewish Family and Jewish Continuity, edited by Steven Bayme and Gladys Rosen, published by KTAV.

All rabbinic teaching on the subject of abortion can be said to align itself either with Maimonides (1135-1204) on the right, or with Rashi (1040-1105) on the left. The “rightist” approach begins with the assumption, formulated by the former chief rabbi of Israel, Issar Unterman, that abortion is “akin to murder” and therefore allowable only in cases of corresponding gravity, such as saving the life of the mother. The approach then builds down from that strict position to embrace a broader interpretation of life-saving situations. These include a threat to the mother’s health, for example, and perhaps a threat to her sanity in terms of suicidal possibilities, but excludes any lesser reasons.

The more “liberal” approach, based on Rashi’s affirmation that the fetus is not a human person, is associated with another former chief rabbi of Israel, Ben Zion Uziel. This approach assumes that no real prohibition against abortion exists and builds up from that ground to safeguard against indiscriminate or unjustified thwarting of potential life. This school of thought includes the example of Rabbi Yair Bachrach in the seventeenth century, whose classic responsum saw no legal bar to abortion, but would not permit it in the case before him. The case was of a pregnancy conceived in adultery; the woman, “in deep remorse,” wanted to destroy the fruit of her sin. The responsum concludes by refusing to sanction abortion, not on legal grounds, but on sociological ones, as a safeguard against further immorality.

Other authorities, such as Rabbi Jacob Yavetz, disagreed on this point, affirming the legal sanction of abortion for the woman’s welfare, whether life or health, or even for avoidance of “great pain.” Rabbi Yehudah Perilman of Minsk in the nineteenth century affirmed the permissibility of terminating pregnancy in the case of rape. Seed implanted in her against her will, he declared, may properly be “uprooted.”

Maternal rather than fetal indications are the rule for both schools of thought. The rightist position certainly considers only the mother, but so does the leftist one. The latter school includes even the mother’s less-than-life-or-death welfare, expressed in the words “great pain,” and based on the principle tz’ara d’gufah kadim, “avoidance of her pain takes precedence.” Rabbinic rulings on abortion, when collated and distilled, are thus amenable to the following generalization: If a woman were to come before the rabbi and seek permission for an abortion by saying “I had German measles, or I took thalidomide during pregnancy, and the possibility is that the child will be born deformed,” the rabbi would decline permission on those grounds. He might say, “How do you know that the child will be born deformed? Maybe not. And if so, how do you know that such a condition is worse for him than not being born? Why mix in ‘the secrets of God’?” But if the same woman under the same circumstances came to the same rabbi and expressed the problem differently, saying, “The possibility is that the child will be born deformed, and that possibility is giving me extreme mental anguish,” then the rabbi would rule otherwise. Now the fetal indication has become a maternal threat, and all the considerations for her welfare are brought to bear. The fetus is unknown, future, potential, part of the “secrets of God”; the mother is known, present, human, and seeking compassion.

One rabbinic authority, writing in Rumania in 1940, responded to the case of an epileptic mother who feared that her unborn child would also be epileptic. He wrote: “For fear of possible, remote danger to a future child that may, God forbid, know sickness—how can it occur to anyone to actively kill the fetus because of such a possible doubt? This seems to me very much like the laws of Lycurgus, king of Sparta, according to which every blemished child was to be put to death…Permission for abortion is to be granted only because of mental anguish for the mother. But for fear of what might be the child’s lot? The secrets of God are not knowable.”

He was, in fact, basing his decision on an explicit ruling in 1913 by Rabbi Mordecai Winkler of Hungary: “Mental-health risk has been definitely equated with physical-health risk. This woman, in danger of losing her mental health unless the pregnancy is interrupted, would therefore accordingly qualify.”

The emphasis on maternal as opposed to fetal indications caused a dilemma with regard to such tragic but clearly fetal afflictions as that of Tay-Sachs. Screening of prospective mates or parents is recommended, but after a pregnancy begins, may amniocentesis be performed in order to determine if the cells of the fetus have been affected? Having limited the warrant for abortion to maternal indications, and since no risk to the mother’s life or health exists even with the birth of a Tay-Sachs child, the answer would be negative. And since abortion is ruled out, amniocentesis itself would be halakhically proscribed as a gratuitous invasive assault, with its own attendant risks upon the womb. The dilemma, however, is solved by a perception on the part of the mother that this is really a maternal indication. The present knowledge that the child will deteriorate and die in infancy, although the birth itself will he safe for her, gives her genuine mental anguish now. The fetal indication has become a maternal one. Alternatively, though the majority of halakhic positions are as described here, there are at least two eminent authorities, Rabbi Saul Israeli of the Jerusalem Rabbinical Court and Rabbi Eliezer Waldenberg, an expert in medical ethics, who have ruled that some fetal indications, such as this one, are serious enough in themselves to warrant an abortion.

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