The Parameters of Abortion
Abortions are sometimes permitted when the pregnant woman is at risk.
By David Feldman
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.
David Feldman is Rabbi Emeritus at the Teaneck Jewish
Center and the Dean and Founder of the Jewish Institute of Bioethics.
