Are Abortions Legal Under Jewish Law?

Judaism has a long tradition of 'a woman's right to chose,' allowing Israel to pass some of the most progressive abortion legislation in the world.

Israel this year liberalized its already liberal abortion policy, subsidizing elective abortions, as well as abortions in medical emergencies or cases of rape, incest or adultery, for women between the ages of 20 and 33.

At first glance, Israel seems like an unlikely place to find one of the world’s most liberal abortion policies. Founded in the wake of the Holocaust, and, according to politicians, threatened by a “demographic time bomb” that may soon make Arabs the majority population, the state has aggressively promoted fertility treatments and now boasts one of the highest birth rates among countries in the Organization for Cooperation and Development, with almost three children per woman.

Ultra-Orthodox rabbis also wield considerable power in Israel, both as representatives of a large and growing sector of Israeli society and through the Chief Rabbinate of Israel, which has authority in some areas of religious and family law. Last year, Israel’s chief rabbis, Shlomo Amar and Yona Metzger, issued a statement in support of the Israeli anti-abortion group Efrat, announcing to the country’s rabbis that they would be embarking on a campaign to make “the wider public aware of the extreme seriousness involved in killing fetuses, which is like actual murder.” Yet even among the country’s most conservative rabbis, abortion is not the polarizing controversy that it is in much of the world, because, according to halakha (Jewish law), the procedure is neither prohibited nor condoned.

Unlike Christian doctrine, which claims that life begins at conception, even the most stringent interpretations in halakha do not view the fetus as a “nefesh,” or “human being,” before birth. Historically, “the whole rabbinic tradition stayed away from that kind of language and never ascribed the value of full humanity for the fetus,” says Jeffrey Fox, a modern Orthodox rabbi who heads the Yeshivat Maharat in New York, which trains women to be halakhic and spiritual leaders. Rabbis, likewise, rarely compared abortion to murder, he adds.

According to the halakhic stages of childbirth, the fetus is considered “merely water” for the first forty days after conception, says Fox. Some interpretations recognize the fetus as human — with all the associated rights and responsibilities — as late as the third trimester; and in rare cases, when the fetus may fatally threaten the mother’s life, it can be removed up until the crowning phase of delivery, he says. While abortion is never permitted for frivolous or cosmetic purposes, Fox says, an abortion performed within the first forty days, is generally treated like a menstrual cycle, and, therefore, according to the laws of childbirth.

Supporters of the theory that a fetus becomes a human being only after birth allude to a passage of Exodus (21:22) in which two men are fighting and one accidentally bumps into a pregnant woman, causing her to miscarry. As punishment, the man must pay the woman’s husband damages comparable to those incurred for injuring a limb or other body part, says David Golinkin, a Conservative rabbi and president of the Schechter Institute of Jewish Studies in Jerusalem, who points out that the man is not accused of murder, which would be punishable by death. Golinkin agrees with Fox that abortion can be performed if it becomes clear that a baby is endangering its mother’s life.

On the other hand, halakha does provide for the view that abortion is comparable to murder in the sense that the fetus possesses the potential to become a human being, says Golinkin. He cites the Talmudic source, Arakin 7a, which states that if a pregnant woman dies on Shabbat, you are allowed to violate Shabbat — which is reserved only for saving another life — by performing a Cesarean section to save the life of the baby.

“A knife may be carried on the Sabbath in order to aid in the delivery of a child,” Yoma 85b reads.

And while halakha is based on a religious-ethic system of logic, it has also been linked to sociological arguments. As far back as the 17th century, Golinkin says, rabbis, probably outraged at seeing wholesale abortion being used as a type of birth control, adopted a stricter view.

Yet, “because the fetus is not a nefesh, there are rabbis who were also more lenient,” he says, by expanding the “threat to the mother’s wellbeing” to include both the physical and psychological. Rabbi Golinkin points to several 17th century precedents, such as the ruling of Rabbi Joseph Hakim of Baghdad, who decided that a woman who was involved in impure relations, such as rape or adultery, was allowed to have an abortion because she risked the stress of being exiled from her community and of her child being marked a bastard.

The mother’s despair is also taken into consideration if her child is discovered to be ill with a severe impairment or genetic disorder. While some rabbis approve abortion for a “defective” fetus within the first trimester, Lithuanian Orthodox Rabbi Moshe Feinstein, considered a critical halakhic voice on the issue, asserted that the operation is forbidden in cases of abnormality, as Judaism does not differentiate between souls.

While halakhic opinions resist neat categorization, most rabbis agree that “in Judaism, a woman is not in charge of her body, as the body belongs to God,” says Rabbi Yaakov Warhaftig, of the Modern Orthodox Nishmat Torah Study for Women Center in Jerusalem.

And while Israel’s new law reflects one of a number of positions in the halakhic tradition, Warhaftig worries that it may take too lightly the implications of such a decision, and, “even, bring about other types of murder.”

In the Jewish state, the halakhic principle that abortion should be allowed only as a last resort does play a role in legislation. Abortion is considered legal and is included in the “health basket” of state subsidized procedures under the condition that the woman receives approval by a committee, which is granted in the overwhelming majority of cases.

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Reuters
Moti Milrod