I.
Abortions in Israel:
Statistical Background
Legal,
Induced Abortions 1990-2003
(Statistics for illegal abortions are not
available.)
Since the beginning of the 1990s, the abortion
rate varied between 11.8 and 13.6 per 1000 women of childbearing age or between
139 and 150 for every 1000 live births. The highest rate occurred in the year
1990.
In the first half of the 1990s there was a
decrease in the number of applications to Abortion Committees as well as the
number of induced abortions performed with committee approval. Since the middle
of the 1990s, the rate has been stable.
In the year 2003 there were 21,226 applications
to Abortion Committees functioning on the basis of the law with the approval of
the Ministry of Health.
The Committees granted approval for 20,841
abortions leading to 20,015 actual abortions in the course of the year.
Around 50% of the abortions were approved in
cases of extra-marital pregnancy, incest or rape.
Around 20% of the abortions were approved in
cases of pregnancy likely to harm the mother either physically or emotionally.
And around 20% were approved in cases of
congenital defects in the fetus.
Around 10% of the women who received approval
for abortion were under the age of 17, which is the minimum age of marriage, or
over 40.
Early abortion is performed by curettage under
general anesthetic or by administering Mifegyne
(mifepristone), which can be used to induce abortion through the seventh week.
In 2003 Mifegyne was used 3,550 times, compared with
a mere 2,165 times in 2000.
188
abortions, around 1% of the total in the year 2003, were performed after the 23rd
week of pregnancy. Unlike many other countries that completely prohibit
abortions late in pregnancy, Israeli law allows abortion through the ninth
month. In case of late abortions, a lethal substance is injected into the
fetus’s heart to kill it while it is still in utero. After the death of the fetus, the mother is
given medication which induce labor. From the medical point of view, this is
not just a termination of pregnancy. It is actually an act of feticide.
In
Israel there are around 200 late abortions per year, most of them between the
26th and the 28th week.
83% of the official committee approvals for
late abortion are in cases where there is concern of physical complications
developing in the fetus; approvals based on the mother’s age (9%); extramarital
pregnancy (5%); or danger to the mother’s health (3%).
Abortion is defined as termination of pregnancy
before the fetus is viable. Accordingly, the maximum fetal age which can be
included in this definition varies with medical progress. If in the past a
27-week-old fetus was not considered viable, there are medical centers today
where even 24- or 25-week-old fetuses are able to survive and develop.
An alternative definition of termination of
pregnancy would include any activity that contributes either directly or
indirectly to the death of a fetus in the womb or to death as a result of
premature delivery, regardless of the stage of pregnancy.
The basic ethical approach towards termination
of pregnancy is determined by the definition of the fetus legal status. If the
fetus lacks an independent legal status, then from an ethical point of view
there is no reason to force a woman to continue her pregnancy and give birth to
a baby which, for whatever reason, she does not want. If, on the other hand,
the fetus does have a legal status, such that its status turns the termination
of its life into the killing of a helpless, innocent human being, then abortion
assumes a most serious significance.
Theoretically, there are three possibilities
for the legal status of a fetus:
1.
The status of the fetus is equal to that of any
of the mother’s internal organs - pars viscerum matris, in the
legal language of ancient Rome. According to this approach:
a)
The fetus is not a separate entity, but rather
part of the mother’s flesh;
b)
The fetus has no status or human rights of its
own.
This
approach will henceforth be referred to as the Roman approach.
2.
The fetus is a separate human being with full
human rights. According to this approach:
a)
The fetus is a separate entity and not one of
the mother’s “internal organs”;
b)
The fetus has its own status and full human
rights. In other words, its status is equal to that of its mother.
This
approach will henceforth be referred to as the Catholic approach.
3. The
third approach is the middle path, maintaining that the fetus is, indeed, a
separate entity and is not simply one of its mother’s “internal organs.”
Although it is a separate living being, its status is not identical to that of
someone who has been born. Its status and rights arise from its potential to be born and to become a human being, and
for this reason its status is defined as that of a separate entity with human
potential, with only partial human rights. This approach will henceforth be
referred to as the middle
approach.
The
Roman Approach
The main
factor
supporting
the Roman approach is the complete biological dependence of the fetus on its
mother, its relatively immature biological state, and its lack of
self-consciousness, thought, or freedom of choice.
The Roman approach would indicate that the
mother has the full right to undergo an abortion at her own discretion, and she
may allow scientific experiments to be conducted on the fetus while it is still
in the womb just as she may allow such experiments to be conducted on the
products of her abortion. According to this approach the mother may sell fetal
tissue for scientific or commercial purposes in exactly the same way as she is
entitled to sell a pint of her own blood.
The weak point of this argument is that it
applies equally to infants who have already been born. These infants are also
completely dependent on their parents, with no clear and unequivocal date when
they become free of this dependence. Indeed, Philo of Alexandria[1]
documents a fairly common Hellenistic belief that babies do not have human
status until they start to eat regular food. Almost eight hundred years later
(circa 800 C.E.), the Council of Metz did not impose any punishment for killing
infants, and only after baptism was the child’s life to be guarded.[2]
Another weak point in the Roman approach comes
from the progress of scientific knowledge. Much is known today about the
development of the fetus in its mother’s womb. Genetically and immunoilogically the fetus is a separate organism from a
short time after conception. Within three weeks, its heart starts beating.
Within six (eight weeks from the last menstrual period) it takes on human form.
It moves by itself and brain activity can be detected. The nervous system
continues to develop during gestation as well as through the first few months
after birth. The significance of these facts is clear: biologically, the fetus
assumes the status of a living being at an early stage of pregnancy.
Professor Yeshayahu Leibowitz[3]
dealt with the question of fetal status from a biological or philosophical
point of view. In his opinion, from these perspectives there is no difference
between a fetus and a live infant. Human life develops in a continuous process
beginning with conception, continuing through the pregnancy and after birth, at
least until after the child reaches maturity. There is no clear line defining
the boundary of life other than the date of conception or the date of death.
Therefore, in his opinion a society that allows any deviation from the
principle of preservation of life takes a fateful step.
Professor Leibowitz’s philosophical approach,
in our opinion, very closely resembles the Catholic approach.
The following conclusions are reached through
the Catholic approach:
1. The
fetus has rights of its own;
2.
The mother’s interests are irrelevant in
decisions pertaining to the future of the fetus;
3.
There is no justification for abortion for
maternal concerns - even if the mother’s life is in danger;
4.
A maternal decision pertaining to the fetus has
legal significance only insofar as she is the fetus’ natural guardian and on
condition that the good of the fetus is all that guides her considerations.
The middle approach rejects the first principle
of the Roman approach and holds, in accordance with biological facts, that the
fetus is a separate entity and not merely one of its mother’s “internal
organs.” At the same time, it rejects the second principle of the Catholic
approach, which maintains that the status of the fetus is identical to that of
someone who has already been born. In other words, according to the middle
approach the fetus does not have full human rights. The fetus is defined as a
living being with human potential, but with only partial human rights. Great
importance is attached to the welfare and well-being of the fetus and harm is
not allowed to come to it without serious moral justification. On the other
hand, if such good reason does in fact exist - such as danger to the mother’s
life or the need to reduce the number of embryos in a multiple pregnancy - then
harm to the fetus is justified.
There is still room for ethical debate about
when the fetus assumes its special status - at the time of conception, during
implantation in the womb, or at some other stage of development. A detailed
discussion of these points lies outside the scope of this article.
When it comes to ethical issues it is quite
difficult to achieve a general consensus in a pluralistic, Western society.
However, we may say that the middle path is currently attracting many adherents
in the medical world.
A familiarity with the historical background
may help us to understand the battles and processes around the world concerning
abortion. History often repeats itself, and fluctuations in the social world
view are not unusual.
Even in ancient times primitive methods were
used to bring about abortion. These methods were of two main types:
(1)
Piercing the fetus via the vagina (generally without concern for sterility);
(2) Use
of pharmacological means to bring about a cessation of pregnancy and expulsion
of the contents of the womb.
Echoes of these methods are heard in the
Hippocratic Oath,[5]
which completely forbids any assistance in ending a pregnancy - “I shall never
give a woman a drug or instrument for the purposes of abortion” - and in the
poet Ovid’s[6]
criticism of “those women who puncture and pierce with instruments or give
deadly potions to their unborn children.” Ancient literature describes other
methods used to terminate pregnancies, including external warming, physical
activity, and extreme self-imposed starvation.
Despite fairly widespread use of abortion
techniques, most legislators of the ancient cultures - both religious and
secular - regarded termination of pregnancy as a forbidden act. Moral
repugnance at harming a living fetus and interfering with the natural process
of pregnancy found expression in different ways. Until the second half of the
twentieth century there were hardly any examples of a complete absence of moral
objection to the killing of a fetus. Nevertheless, moral opposition in theory
was not always accompanied by legal enforcement.
Eastern cultures were always more firm in their
opposition to abortion than the Western nations. Buddhism forbade termination
of pregnancy for religious reasons and was harsh in its punishment of those who
performed abortions because of the environmental danger involved. This danger
arose from the belief that the souls of the aborted children were evil and
dangerous. The ancient Indian legal codes, the Aryas and the Manava
Dharma-Sastra, regarded abortion as murder, and it was therefore prohibited for
Hindus.
In
ancient Persia, the
Avesta
religion forbade abortion. The Assyrian Code prescribed the death penalty for
women who had abortions; even after the death sentence was carried out such
women were not permitted to be buried.
In ancient Egypt abortion was considered a
serious crime, but the severity of the punishment set for it is unclear,
particularly in light of the fact that infanticide was openly tolerated in
Egypt. Pharaoh’s royal decree that “every male that is born shall be cast into
the river”7 was not a deviation from the norm.
A study of ancient Greek literature reveals an
ambivalent attitude towards termination of pregnancy. Ovid, Seneca, Favorinus, Plutarch, and Juvenal all spoke of abortion as
“a crime against which no one protests” on one hand, but as a generally
accepted phenomenon on the other. —
7
Exodus
1:22.
Abortions were performed in great numbers not
only because of social difficulties but also owing to the women’s desire to
protect their figures from the changes associated with pregnancy and giving
birth.
The
Pythagorean philosophers understood that from the moment pregnancy begins the
fetus is to be considered a living being and for this reason it is forbidden to
harm it. This view was prevalent during the fourth century B.C.E. and some see
it as the source for the well-known clause of the Hippocratic Oath quoted
above.
In contrast to
, the Platonic and StoicsthePythagorean
philosophers believed that the fetus is .
given “life” only at the moment of birth, and
therefore they expressed no opposition to termination of pregnancy at any
stage. Plato was in favor of making abortion compulsory for any woman above the
age of forty. Aristotle, on the other hand, took an intermediate stance, maintaining
that “life” begins when the mother feels fetal movement. Accordingly, he
recommended abortions for social reasons (i.e., families with many children) on
the condition that they were performed before “the fetus first kick.”
Ancient
Roman law stands out in the absolute rights which it awarded the father with
regard to his family, going so far as defining the fetus as pars viscerum matris - part of the mother’s body - and not as a
separate living being. For this reason, until the second century C.E. killing a
fetus was legal according to Roman law. Throughout the Roman empire there was
no legal prohibition against performing abortions and they were quite common.
However, many instances of abortion ended in infection and death. Ovid
condemned “those women who pierce and puncture with instruments or give deadly
potions to their unborn children” - something which even wild animals do not
do. He claimed that nature punishes these women: the punishment occurs when
“She herself dies and is dragged to the pyre with her hair revealed, and then
all who see declare, ‘This is her punishment.’”
Christianity has dealt extensively with the
issue of abortion, and termination of pregnancy has become the most widely
discussed subject in twentieth-century Christian literature. The Christian
approach has undergone significant changes over the centuries but the general
trend was always opposition to termination of pregnancy, with considerable
fluctuations with regard to details - for example, the distinctions drawn
between abortions at different stages of pregnancy. In 305 C.E. the Council of
Elvira established heavy canonical punishments for those who performed
abortions; nine years later the Council of Angora (Ancyra) eased the severity of
these prohibitions. Over the course of the years a compromise approach was
formed, distinguishing between abortions at earlier and later stages of
pregnancy.
In the wake of the Samaritan version of the
Torah, the Septuagint, and Philo’s commentary, there were those who
differentiated between abortion at a very early stage and abortions at later
ones. Many believed that the formation of a male fetus soul is completed on the
fortieth day following conception with the completion of his (external) human
form. Some maintained that with females the process is completed later, on the
eightieth day. The determination of a date of the creation of the soul produced
the dividing line between abortions performed at earlier and later stages.
In the thirteenth century, Thomas Aquinas
believed that consciousness and movement are the characteristics of a living
being and - like Aristotle - supported the approach that regarded the mother’s
feeling the fetus first kick as the beginning of life. There were Christian
theologians who agreed completely with Aristotle’s view of the soul’s
development, according to which the soul develops in three stages (the soul of
the “powers of growing” at the time of conception; the soul of a lower living
system at a later stage; and finally, a full human soul). Aquinas, following
Aristotle’s lead, held that only fetal movements that are felt represent the
first stage of the development of a full human soul. This approach was
supported by Popes Innocent III and Gregory IX in the thirteenth century. But
in 1588 Pope Sixtus V reinstated the original punishments for termination of
pregnancy regardless of fetal age. Since then all termination of pregnancy has
been considered murder. This principle was further confirmed in the penal code
published by Pope Pius IX in 1862, and in the last canonical law, which took
effect in 1918.
In fact, the approach of the Church is
completely opposed to the Roman approach. In principle, the Catholic Church
sees the fetus as a living being with full human rights, beginning at the
moment of conception. For this reason Catholic doctors (even in the twentieth
century) were instructed to refrain from terminating pregnancies, even when the
mother’s life was endangered, because “two deaths are preferable to one
murder.”[7] A
similar consideration would forbid fetal reduction even when the chances of
survival for a multiple pregnancy are very low otherwise because according to
the Christian approach, fetal reduction is equivalent to throwing some people
off a sinking ship in order to save the others.
The French Revolution and Feminism
The French Revolution had a marked effect on
the values of Western society. In the wake of its influence, and especially in
light of the opposition of leading legal and medical figures to the granting of
full human rights to fetuses, there have been changes in civil legislation. In
most Western countries most of the more serious medieval clauses of the antiabortion
legislation were removed. In Prussia, for instance, by the year 1837 the death
sentence was no longer prescribed as the penalty for abortion.
Despite the relaxing of criminal punishment,
the prohibition against abortion has remained intact, almost world-wide, for
many years. It was only in the second half of the twentieth century that the
feminist approach spread in the Western world, supporting the woman’s absolute
freedom to choose abortion. This approach sees the fetus as an integral part of
the woman’s body, and since she is assumed to be in charge of her own body, she
is likewise permitted to terminate a pregnancy.
The
feminist movement gained huge support worldwide; in its wake legislation in
many countries was changed and some of the criminal prohibitions against
abortion were canceled. The
countries
in which the law was changed, in
the last two
generations,
include the United States, Holland, and Israel.
In
recent years a reactionary movement has begun to appear. The pendulum is
swinging back towards the Catholic approach, and the anti-abortion lobby is
gaining strength. Confrontations between “right to choose” and “right to life”
organizations at times become quite violent.
The dominant social stratum in Israel adopted a
liberal ideology even before the establishment of the State. Echoes of this
ideology can be seen as far back as the arguments over the decision by the Haganah to enlist women in the British army during World
War II. Following the establishment of the State, this permissiveness gave rise
to large numbers of unplanned pregnancies and termination of pregnancy seemed a
simple way of solving the social problem of the young mother.
Later, the Israeli legislature faced a complex
problem. On one hand, a considerable number of these pregnancies involved girls
below the legal age of majority. On the other hand, until the 1970’s the law
forbade abortion. The legal solution was an
unusual one: it was decided that the law forbidding abortions would not be
enforced, and thus hundreds of thousands of illegal abortions were performed
while those charged with law enforcement deliberately turned a blind eye.
The Penal Act of 1977 permitted abortion even
for social reasons; the prevailing social ideology had finally attained a legal
framework. However, the theoretical license was insufficient to lend abortion
legal legitimacy and an interesting legal exception was required: by law, the
agreement of a parent or legal guardian is needed before the performance of any
invasive procedure on a minor. According to this principle it would be
necessary to obtain the agreement of the parents or guardian before terminating
her pregnancy, an act which involves a certain degree of danger to the future
of the girl and her fertility. But the requirement of parental consent went
against the trend of liberation from the religious ethical system of the
parents’ generation and was likely to run counter to the aims of the law: the
requirement of parental consent would reduce the number of abortions performed
and would increase the number of unwanted births. Therefore, contrary to the generally
accepted practice in other areas of law, according to which the consent of a
minor is of no relevance, when it comes to abortion it is enough for there to
be informed consent on the part of the pregnant minor. The law does not apply
any restriction in terms of the girl’s age and does not require the consent of
a guardian or family member, despite the known dangers to the health and
fertility of a minor who undergoes surgical abortion.9 These
exceptions are an indication and reflection of the values of the dominant
societal sector. If society saw the preservation of the life of the fetus and
prevention of abortion as important values, the law would be worded quite
differently.
During the 1980’s the Abortion Act was amended
once again. The new amendment canceled the license to perform abortions for
social reasons while retaining the other indications for abortion: danger to
the health of the mother or the fetus, the mother’s age (below 17 or over 40),
and pregnancy as a result of forbidden relations (adultery or premarital sex).
The reality once again reflected the influence
of the dominant forces in the law enforcement system: the number of legal
abortions did not change at all. The social clause was no longer applied but
there was an immediate rise in the number of pregnancies terminated for other
reasons, such as “danger to the life of the mother.” In a wide-ranging study
conducted by the Israeli Ministry of Health it turned out that the law was not
being strictly enforced.[8] At
least one major public hospital openly kept double records of reasons for
abortion. One list, maintained for the purposes of the Abortion Act, included
all those women whose abortions were approved according to subsection 4a of
section 316 (danger to the health of the mother), while the second list,
indicating the source of funding for the abortion (the sick funds or welfare
services), divided these women into two subsections: women with a genuine
medical indication, in which case the abortion was covered by the health plan,
and women with social difficulties, in which case funding came from the welfare
services. The ratio between the two groups was 5% medical indications to 95%
social reasons.
The number of legal abortions in Israel has
been fairly stable since the 1980’s, remaining between 16,000 and 20,000
annually. It is known that, in addition, thousands more abortions are performed
illegally, but there is ongoing controversy as to the extent of this
phenomenon. Estimates vary between 10,000 and 50,000 illegal abortions
annually.
|
9 Penal Act
1977, sections 312-321 (Hebrew). |
Whatever the true number may be, to date no
doctor has ever been brought to justice for performing an abortion contrary to
the law. (Only in cases where women whose pregnancies were terminated died as a
result of the surgical procedure have doctors been brought to court.)
Ignoring Violations of the Abortion Law
Whatever the actual statistics might be, no
physician has yet been charged with the precise crime of inducing an illegal
abortion. This policy is echoed by the decision of the court (State vs. N. Elayyev
36864/97; unpublished).[11]
In that case two physicians were charged with
performing illegal abortions. One of the abortions ended with the mother’s
death, but no proximate cause was demonstrated. In the court’s decision, the
claim of the defendant’s attorney was mentioned: For we know on the basis of
prior experience that the recommendation of Legal Counsel to the Ministry of
Health[12] is
not to sue physicians in cases of illegal abortion unless the illegal abortion
ends in death.
In light of counsel’s claim, according to whom
no one had yet been sued for the offense of illegal abortion, the judge decided
to refrain from conviction. He only sentenced the accused to public service.
“This policy, as far as it exists, reveals a
severe defect in application of the law. Law is enacted in order to be fulfilled.”
Further: “The welfare of the public demands precision in applying any law
calling for penal sanctions,” as phrased by E. Rubinstein and B. Medina in
their book Ha- Mishpat ha-Konstitutsionali
shel Medinat Yisrael (5th
ed.; 5757; 1:228).
Enforcing the law in this case is particularly
important in view of the fact that health and life are involved for the whole
purpose of the law is to guarantee the woman’s well-being and her health and to
guarantee that the woman not receive an ill- considered decision that might
harm her. (See H. Grossman, Chairman of the Public Services Committee in Divrei Kenesset 79 (5737, 1229.)[13]
Jewish law accepts the biological fact that the
fetus is a living being. The fetal heart beats as early as the fourth week
after conception. Organogenesis (the stage of organ formation) is complete,
from an external perspective, at the end of the sixth week (the eighth week
according to the accepted gynecological practice of counting the date of conception
as two weeks from the beginning of the last menstrual period). Biological
considerations make it impossible to determine a clear line between a fetus
which is considered alive and one that is not.15 The only absolute
dividing line is the moment of conception. After that moment, the fetus is a
living body from the perspective of the life sciences. Therefore it is clear
that abortion must undoubtedly constitute harm to a living creature. According
to Jewish law the complete dependence of the fetus on its mother does not in
any way justify permitting its destruction, just as the complete dependence of
a day-old baby does not permit us to kill it, even if consideration of the
mother’s convenience would seem to point in this direction. Theoretically, this
leads us to regard abortion in much the same way as we would regard murder.
Indeed, there are those who maintain that “a gentile is killed for [murder of]
fetuses,” that is, —
13
E. Shochtman, ibid.
14
Abraham S.
Abraham, Nishmat Avraham (Second
edition, Jerusalem: Schlesinger Institute 5767), vol. 4, Choshen
Mishpat 425:1; A. Steinberg, ibid.; Mordechai Halperin, “Modern Medicine in
View of Halacha: Monthly Review” (1987) 6:34, 33-44.
15
Leibowitz, ibid.
according to the Noahide laws which apply to
gentiles, abortion of a helpless fetus is considered equivalent to murder. The
source of the prohibition is found in Rabbi Yishmael’s commentary on the book
of Genesis:16 “‘He who spills the blood of a human person [lit: ‘a
person within a person’] - his blood will be spilled.’ Who is a ‘person within
a person’? This refers to a fetus inside his mother’s womb.”[15]
Despite the above, according to Jewish law the
abortion of a fetus is not identical to murder. As explained in the Mishna[16] the
killing of a fetus is not seen in the same light as the killing of a newborn
baby. The source for this distinction is found in the Torah, based on the
punishment meted out to someone who causes a woman to miscarry in the course of
a dispute: “And if men strive with one another and strike a pregnant woman and
she miscarries...”[17]
Here the Torah differentiates between two possible outcomes: when the blow
kills the woman as well (as the fetus), the person who struck her is held
accountable for manslaughter, but if “there is no disaster”[18] and the blow harms only the
fetus he is not accused of murder and is required to pay damages only.
The guiding principle here is unequivocal: in
contrast to the Noahide laws, in the framework of Jewish law there is a clear
distinction between the status of a fetus and that of a newborn. Abortion is
not identical to murder.
How Serious is the Prohibition?
In light of the above, there is heated
controversy among the poskim as to
how seriously the transgression of killing a fetus is regarded in Jewish law.
There are those who maintain that this falls squarely under the category of
pure murder, as explained above in the framework of the Noahide laws. The only
difference between abortion of a gentile fetus and abortion of a Jewish fetus
is reflected in the seriousness of the penalty: under Noahide law the killing
of a fetus is punishable by death, while according to Jewish law the
perpetrator is “only” punished with death brought about by the Divine hand.
In contrast, other poskim maintain that there is no biblical prohibition
against the performance of abortion; there is only a rabbinical prohibition
based on a decree of the Sages. According to this view, in cases of great suffering
where the Sages’ decree does not apply it is permissible to act according to
biblical law and to permit an abortion.
Tay-Sachs Disease and Down’s Syndrome
The halachic debate is pertinent to the issue
of Tay-Sachs disease (GM2 gangliosidosis). In this
genetic disease the infant lacks a certain enzyme and as a result an adipose
matrix builds up, particularly in the tissues of the nervous system. At birth
the infant appears completely normal but within a few months, with the
accumulation of this substance in the tissues, his development begins to
decline, there is psychomotor retardation, and then a continual deterioration
leading invariably to death within a few years. It is difficult to describe the
suffering of
family
members who know that the infant is bound to die. The disease is most prevalent
among Ashkenazi Jews, where one in 625 couples is likely to bear a Tay-Sachs
child. With the help of an amniocentesis the disease can be detected in a fetus
(or, more precisely, the possibility can be ruled out) during the early months
of pregnancy, and if the fetus is found to have the disease the pregnancy can
be terminated. There is no doubt that termination of pregnancy under such
circumstances can save the family tremendous suffering. The halachic question
here is whether the life of a living fetus can be taken in order to spare the
family much suffering.
The great American halachic authority of the
last generation, Rabbi Moshe Feinstein, of blessed memory, prohibited this. In
his view the killing of a Tay-Sachs fetus is biblically prohibited because it
falls under the category of murder and, therefore, even terrible suffering
cannot justify it.
In contrast, the famous authority Rabbi Eliezer
Waldenberg of Jerusalem permited the abortion of a
Tay-Sachs fetus. He believed that here we may rely here on those authorities
who maintain that the prohibition against abortion in Jewish law is of rabbinic
origin, and therefore in a case of severe suffering the Sages’ decree would not
apply.
This debate involves other considerations, too.
We should not forget that we are speaking of a fetus which is not viable (i.e.,
it is going to die regardless), and therefore, although its life expectancy may
be longer than thirty days, there is room for halachic debate as to whether its
status can be considered similar to that of a nefel, a term used in Jewish law to refer to a
newborn suffering from a defect such that it cannot survive longer than a few
days. The legal status of a nefel is not the same as that of a viable infant.
This last consideration does not apply in the
case of a Down syndrome diagnosis during pregnancy. Despite the differences
between a Tay- Sachs fetus and one with Down syndrome, Rabbi Waldenberg finds
real grounds for possible abortion of the latter as well. He did not issue a
universal license, however, and leaves the decision in each case to a
halachically competent rabbi who is familiar with the couple concerned.
Here there is great importance attached to the
character of the parents, their level of faith, and their ability to deal with
stress. There are families capable of raising a Down syndrome child with great
love and self-sacrifice, with a strengthening of family bonds and causing
values (such as respect for human life, altruism, and scrupulous observance of
Jewish law) to be internalized in the other family members. In less strong
families, this type of situation can cause tremendous harm. As is the case in
many other areas, the halachic decision is a function of both the medical
situation and the internal strength of the parents, and the rabbi most closely
involved with the family should decide.
There is one situation where there is unanimous
agreement. If the mother’s life is in danger and the only way of saving her
life requires destruction of the fetus, the fetus may be killed. This situation
was more common in the past, before the age of Cesarean sections. A narrow
pelvis, a transverse presentation, and some of the breech positions formerly
required that the fetus be cut and removed from the womb in order to preserve
the mother’s life. This license is limited to the process of birth up until the
moment when the baby’s head emerges. From that moment the regular principle
that “no one life takes precedence over another life” applies, and as explained
in the Mishna:[19] “If
a woman is having a difficult labor, the fetus in her womb is cut up and is
removed limb by limb because her life takes precedence over his life. Once he
is mostly outside [of her body] he is not to be touched [harmed], for no one
life takes precedence over another life.”
This law is discussed in several places in the
Talmud and the responsa. The complex issues involved in abortion are known to
represent one of the most fascinating areas of Jewish law. A detailed
discussion of the subject would include the fine legal distinctions that make
abortions at an early stage of pregnancy, as well as the use of indirect
methods, preferable; for example, performing abortion before the forty-first
day after conception is preferable to any later stage, and a pharmacological
abortion is preferable to a surgical one. Such a discussion lies outside the
scope of this article.[20]
Embryo reduction is recommended today for
medical reasons in multiple pregnancies; for example, in the cases of
quadruplets, quintuplets, or sextuplets, which mainly occur following fertility
treatments. In such instances the chances of the fetuses being born and
surviving are very small unless their numbers are reduced to two or three, while
the chances of survival for the remaining fetuses are raised quite
considerably. The responsa at hand are united in their approval of embryo
reduction in such cases.[21]
In light of the halachic sources, it would seem
that the approach adopted by Jewish law is very similar to the middle approach
presented in the ethical discussion. In practice, the following guiding
principles apply:
1.
Under Jewish law abortion is not identical to
murder.
2.
Abortion is forbidden in the absence of serious
justification.
3.
Performance of an abortion prior to the
fortieth day after conception is less serious than performance of an abortion
thereafter.
4.
In a multiple pregnancy, in which the chances
of fetal survival are extremely small without embryo reduction, it is
permissible to decrease their number in order to increase the chances of
survival for the remaining fetuses.
There is no complete agreement among the
authorities as to what constitutes the serious justification required for the
termination of pregnancy under normal circumstances. Most modern authorities
permit termination of pregnancy only if there is reason to believe that the
pregnancy may endanger the mother’s life.
In contrast, there are some outstanding
authorities who permit the termination of pregnancy in any situation where the
continuation of the pregnancy may cause severe physical or emotional suffering.
In
practice, when there is a medical recommendation to consider termination of
pregnancy, observant women generally consult the rabbi who usually answers
their halachic questions and act according to his advice. Some of the halachic
considerations affecting the decision are mentioned above, while the footnotes
allow for further study on this topic.
[1] Chayyei Moshe 1, 11.
[2] Lord Immanuel Jakobovits, Medicine and Judaism: a Comparative and Historical Study (1959, second edition - 1975, Bloch Publishing Company, NY, ISBN 0-8197-0097-5).
[3] Yeshayahu Leibowitz, “Medicine and the Value of Life,” Proceedings of the Chair of the History of Medicine at Tel Aviv University (Tel Aviv: Tel Aviv University, 1977), 2-12.
[4] Lord Immanuel Jakobovits, ibid.; Abraham Steinberg, Encyclopedia of Jewish Medical Ethics (Second edition, Jerusalem: Schlesinger Institute, 2006), vol. 2, pp. 717-817 (‘abortion’); Daniel Sinclair, “The Legal Basis for the Prohibition against Abortion in Hebrew Law As Compared with Other Legal Systems,” Annual Journal of Hebrew Law (1978): 177-207.
[5] Fourth century B.C.E.
[6] 43 B.C.E.-17 C.E.
[7] A. Bonnar, The Catholic Doctor, 1948.
[8] Memoranda from the director of the Ministry of Health: memorandum no. 64/90, 15 June 1990; memorandum no. 23/93, 14 November 1993.
[11] Quoted in Prof. E. Shochtman, “Al Drishat ha-Haskama ha- Mudda’at be-Hafsakat Herayon, Mishpatim 29 (3), pp. 737-777, note 70 (p. 763).
[12] This apparently refers to an old directive of the Legal Counsel to
[15] Beraita in Sanhedrin 57b (Babylonian Talmud).
[16] Niddah 5:3.
[17] Exodus 21:22-23.
[18] Ibid.
[19] Ohalot 7:6.
[20] See the references in note no. 14 above.
[21] Rabbi Yitzhak Silberstein and Dr. Pinhas M. Osher, “Thinning of Embryos,” ASSIA Book 8, pp. 7-13 (1995); A. S. Abraham, Nishmat Avraham, Second edition, vol. 4, Choshen Mishpat 425:1 (21).