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Her Pain Prevails and her Judgment Respected—Abortion in Judaism

  • Y. Michael Barilan

Extract

In 1977, the Israeli parliament (Knesset) changed the section on abortion in the colonial criminal code which Israel inherited from the British mandate in Palestine. Like most other Western countries who relaxed their laws on abortion in the 1960s-80s, Israel made abortion legal for almost all women who seek it. Nonetheless, the Israeli law on abortion differs substantially from other nations' laws. In no stage of pregnancy does the woman have an absolute right to abort—she always needs an approval from a special committee; yet, the woman's stage of pregnancy is nowhere a relevant legal criterion for permitting or forbidding abortion. The law does not explicitly grant the fetus any value either, as the law speaks only of “termination of pregnancy.” Indeed, Israel has one of the highest rates of late abortions among the developed countries and one of the most liberal laws on the regulation of infertility treatments and research on extra-corporeal embryos.

Jewish religious law (Halakhah) ignores both questions central to the modern ethical, political and legal debate on abortion: the status of the fetus and the autonomy of women. Furthermore, Halakhah is not expressed in the language of rights, such as the rights to life and privacy, but rather in the language of obligations and limitations on action. A rich symbolic world of values and virtues complements halakhic positivist formalism by inspiring and demonstrating desirable ways of life and modes of valuing human action. Regarding abortion, the dialectics between Jewish law (the formal law, which delineates right from wrong) and morality (which inspires and portrays ideal modes of action as part of a largely oral tradition of private counseling and synagogue preaching) reach a powerful climax. The religious law prohibiting abortion is one of the most liberal among human legal systems, but the values of procreation and preservation of human life that inform the moral discussion are fundamental.

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1. In the introductory Sections (I-III), I footnote only references that do not recur in the main text (Sections IV-VII1 & Conclusion).

2. The American and French revolutions and particularly the Napoleonic wars dispelled much of this form of life in the West. The Holocaust and the Soviet government annihilated the autonomous Jewish communities in which a few million Jews lived in the beginning of the twentieth century. In the East, the traditional communities dissolved themselves following mass emigration to Israel (and France) during the 1950s and 1960s of more than a million people. Israel, http://en.wikipedia.org/wiki/Israel#Independence_and_f1rst_years (last visited Mar. 6, 2009).

3. Interestingly, in Israel, only marriage and divorce fall within the full jurisdiction of religious laws. (Each community has its own system of courts.) The Law on the Jurisdiction of Rabbinic Courts (Marriage and Divorce), 1953. In the rest of the world, the abortion revolution developed parallel to a similar revolution in the laws on divorce, marital rape and children born out-of-wedlock. See Glendon, infra at note 14; Russell, D.E.H., Rape in Marriage 1726 (Ind. Univ. Press 1990); de Miño, W.P. Hirczy, From Bastardy to Equality: The Rights of Nonmarital Children and their Fathers in Comparative Perspective, 31 J. Comp. Fam. Stud. 231–62 (2000). Why the secular and socialist founding fathers of Israel accepted a monopoly of religion on marriage is a question beyond the scope of this article.

4. The Israeli law on abortion, Amendments to the Penal Code, 1977, 1980, is discussed at length in the final section of this article. See infra note 357 and § VIII.

5. Jewish religious law (Halakhah) is based on the Talmud (the second-century text of the Mishna and an anthology of second-through-sixth-century deliberations based on the Mishna). (All citations to the Talmud are to the Babylonian Talmud unless indicated otherwise.) The Talmud is commonly read with the mediaeval exegesis of Rashi. Later authoritative sources are exegesis literature, the codices of law by Maimonides (twelfth cent.), the “Shulhan Arukh” (sixteenth cent.), and a vast corpus of responsa literature compiled by rabbis specializing in religious law (posqim). The responsa literature is comprised of collections of questions submitted to rabbis along with their detailed and learned casuistic answers.

Every Jewish source may be employed in the halakhic deliberation. But as a rule, ideas, contentions and inspirations from non-halakhic literature (e.g., lore Midrash, mysticism (Kabbalah) (anthologies of lore by the Talmudic sages), and exegesis on the Bible) bear very light legal weight (unless incorporated in the legal literature, such as in a responsa whose conclusion is based on extra-halakhic sources).

In this paper I do not deal with the development of Halakhah within the Reform and Conservative denominations, which never existed in the traditional Jewish communities and whose influence in Israel is very minor.

A bibliographical note: There is no standard method of citing rabbinic sources in academic publications. Neither is there a uniform system of transcribing Hebrew into Latin letters. Whenever modern and scholarly or semi-scholarly editions are available, I render them in full (author, name, year of publication etc.). In other cases I use the rabbinic original, which often does not divide books into chapters and pages, but follows either the Talmud or one of the codes of law (but sometimes uses other modes of structuring). As a rule, I preferred to forfeit consistency of citation style for the sake of clarity and ease, so as to allow every librarian or scholar of rabbinics to trace each citation promptly and accurately (today many sources are available in digital formats), yet avoiding as much as possible long and elaborate references.

6. See infra § II, p. 104.

7. See infra § III, p. 111.

8. See infra § VIII, p. 176.

9. See infra text accompanying note 277.

10. See infra § VI, p. 163.

11. See infra p. 125.

12. See infra text accompanying note 184.

13. See infra p. 130.

14. The Talmudic rabbis debated whether capital punishment should be practiced at all. Mishna, , Makot 1:10. Nonetheless, casuistic deliberation of hypothetical cases (something like “thought experiments”) exemplify Pharisaic dedication to the study of the Torah “for its own sake” (“lishma”) even beyond any practical need. See Talmud, Sanhedrin 71a. (All English translations of the Talmud are made by the author.) The law has a special role in the formation of public opinion and in expressing the values of society, particularly with regard to morally-laden issues such as abortion. Glendon, Mary Ann, Abortion and Divorce In Western Law 19 (Harv. Univ. Press 1987). I think that the context of capital punishment, even if hypothetical, provides a powerful underscoring to the deliberation on the ethics of maternal-fetal conflicts.

15. See infra p. 119.

16. On the tensions between formal religious law and religiosity in Jewish bioethics, see Barilan, Y. Michael, The New Israeli Law on the Care of the Terminally III: Conceptual Innovations Waiting for Implementation, 50 Persp. Biol. Med. 557 (2007).

17. See infra p. 148.

18. See infra p. 150.

19. See infra pp. 130-31.

20. See infra p. 148.

21. Berroit-Salvadore, Evelyne, The Discourse of Medicine and Science, in A History of Women: Renaissance and Enlightenment Paradoxes 348, 381–83 (Duby, Georges, Perrot, Michelle, Zemon-Davis, Natalie & Farge, Arlette eds., Harv. Univ. Press 1993).

22. See infra p. 136.

23. See Exodus 21:22 (All Biblical citations are from the KJV.) for an extensive discussion of the interpretation of this passage; see Schiff, Daniel, Abortion in Judaism ch. 1 (Cambridge Univ. Press 2002).

24. Kapparis, Konstantinos, Abortion in the Ancient World ch. 5 (Duckworth 2002).

25. See infra pp. 119-20.

26. See Whittier, Gayle, The Ethics of Metaphor and the Infant Body in Pain, 18 Literature & Med. 210, 215 (1999), quoting Daly, Mary, Gyn/Ecology: The Metaethics of Radical Feminism 64 (Beacon Press 1978).

27. See infra p. 132.

28. See infra § III.E, p. 122.

29. Marquis, Don, Why Abortion is Immoral?, 86 J. Phil. 183 (1989).

30. See infra pp. 127-28.

31. 1 Edvard Westermarck, The History and Development of Moral Ideas 409 (McMillan 1912).

32. Dworkin, Ronald, Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom 9597 (Knopf 1993).

33. Bachrach, Yair, Responsa “Havoth Yair,” Mark 31 (Lemberg 1896) (Hebrew), and Emden, Jacob, Responsa “She 'ilat Ya'avetz,”Pt. 1, Mark 43 (Lemberg 1883) (Hebrew).

34. Rashi, Talmud, Avoda Zara 5a .

35. For the no-victim argument (in response to Marquis, supra note 29), see DeGrazia, David, The Harm of Death, Time-relative Interests and Abortion, 38 Phil. Forum 57 (2007).

36. Paul, Pope VI, Encyclical Humanae Vitae § 14 (1968), http://www.vatican.va/holy_father/paul_vi/encyclicals/ (last visited July 18, 2008).

37. Perilman, Yehuda L., Responsa “Or gadol,” Mark 31 (Minsk 1891) (Hebrew). It is interesting to compare this metaphor to a medieval Scholastic who wrote that following rape, women may try to expel the seed only until ensoulment, as a man may chase away a thief until the latter has found a safe refuge. Sanchez, Tomas, Disputationum De Sancto Matrimonii Sacramento 2, 22, 17 (Ludouicum Sanchez 1605) (Latin) Rabbi Emden wrote that abortion of a bastard is possibly a mitzvah (a divine commandment); he nevertheless expresses reservations against giving permission that might badly influence public morals. Emden, supra note 33. See Bachrach, supra note 33. On abortion of bastards, see Avraham, A.S., 3 Nishmath Avraham 333 (Falk-Schlesinger Inst. 1997) (Hebrew).

38. Prudy, Laura M., Are Pregnant Women Fetal Containers?, 4 Bioethics 273 (1990).

39. Grimes, D.A.et al., Unsafe Abortion: The Preventable Pandemic, 368Lancet 19081919 (2006).

40. Brodie, Janet Farrell, Contraception and Abortion in 19th Century America 255–57 (Cornell Univ. Press 1994).

41. See Bachrach, supra note 33; Emden, supra note 33; Herschler, infra note 307 (discussing Rabbi Feinstein); Halevi-Wosner, S., Responsa “Shevet ha'Levi,”Pt. 9, Mark 267 (Hebrew) (the public policy comment in the latter two responsa is not discussed in this article).

42. Carrick, P., Medical Ethics in Antiquity 112–19 (Reidel 1985).

43. Simon, Rita J., Abortion: Statutes, Policies and Public Attitudes the World Over (Praeger 1998).

44. Yishai, Y., Abortion in Israel: Social Demand and Political Response, in 6 Women in Israel: Studies in Israeli Society 287, 290–92 (Azmon, Y. & Izraeli, D. eds., Transaction 1993).

45. United Nations Population Fund, Program of Action of the International Conference on Population Development, http://www.unfpa.org/icpd/icpd_poa.htm#20 (last visited May 30, 2008).

46. Josephus Flavius raises this point in his commentary on Exodus 21:22; see Antiquities of the Jews Bk. 4, 278. This statement was apparently made under Roman influence. According to Roman law, the duty of procreation referred to three children; the Torah holds that this duty can be fulfilled by a son and a daughter. The Gurer Rebbe led a resolute struggle against the 1977 Israeli “Abortion Law,” making use of the Holocaust in his arguments. See infra note 357, Amendment of the Penal Code Law (Termination of Pregnancy), 1977. In the midst of the Holocaust, Rabbi Herzog, then Chief Rabbi of the Jewish settlement in Palestine, issued a shocking manifesto which placed the blame on the reduction of the birthrate among the Jewish people to the use of modern technology. These arguments, important as they may be, were not introduced, even by Chief Rabbi Herzog himself, into halakhic discourse. Herzog originally emigrated from Ireland, a Catholic country.

A sense of obligation to preserve the name of the murdered millions is a special type of demographic argument, and may possibly grant legitimation to national-demographic arguments proper. This point of view has been raised by Rabbi Eliezer Melamed, a leader of the Jewish “settlers” in the West Bank and the Gaza Strip, in the Israeli periodical Be-Sheva. Melamed, Eliezer, From a family to a nation, Be-Sheva, 10 10, 2002, available at http://www.inn.co.il/Besheva/Article.aspx/1094 (Hebrew). Rabbi Melamed recently permitted the abortion of fetuses with Down Syndrome—so, among other reasons, that women, primarily older women, would not be afraid to become pregnant. Melamed was careful not to cross the line of eugenics (“improvement of the race”), according to which retarded children are a burden on the national effort.

Gordis claims that the national necessity for natural increase throughout the years of the Diaspora led to a reduction in the scope of Talmudic approval of contraceptive use and a disregard for the Talmudic disapproval of the marriage of young girls. Gordis, R., A Dynamic Halakhah: Principles and Procedures of Jewish Law, 28 Judaism 263 (1979).

Rabbi Ariel, also a member of the “nationalist” stream in Israel, has ruled that bearing retarded children fulfills the duty of procreation, because retarded children are “souls” (presumably, provided that they themselves will be able to procreate). According to Halakhah, the duty to procreate is fulfilled only when one's children can also continue the chain of procreation. Responsa “Be-Ohola Shel Torah,” Hoshen Mishpat 116.

47. Keown, John, Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England From 1803 to 1982, at 3538 (Cambridge Univ. Press 1988).

48. Zohar on Exodus 3b, (Hebrew) . See infra pp. 122-23.

49. Zvichi, P., Responsa “Ateret Paz,” Pt. A, Hoshen Mishpat, Mark 7, Note 3 (Jerusalem 1990) (contemporary Israel). See also Talmudic Encyclopedia, entry “Ahavat Israel” (Love of Israel). See also Y. Michael Barilan, The value of life in the Jewish tradition (forthcoming).

50. Anonymous, Sefer Ha-Hinnukh commandment 529.

51. Talmud, Avodah Zarah 20b.

52. Talmud, Berakhot 31a.

53. In other places the Talmud compares two of these archetypes, e.g., Talmud, Baba Metzia 70a.

54. Sefer Ha-Hinnukh, supra note 50, expounding on Talmud, Mo'ed Kattan 18a.

55. Id.

56. Waldenberg, Eliezer Yehuda, Responsa “Tzitz Eliezer,”Pt. 9, Mark 51, ch. 13.

57. See the medieval anthology Shita Mequbetzet to the Talmudic tractate of Arakhin 7a. The same argument is raised in the medieval French anthology Tosafoth Sotah 26a. (The Tosafoth is printed inside the standard edition of the Talmud. In this article, the reference points to the Talmudic tractate and the page.).

58. Talmud Nidda, 44a (Ihu).

59. See Talmud Sanhedrin 49a; the same passage appears in Talmud Hulin 33a.

60. See infra p. 125.

61. Zweig, M.I., On Abortion, 1 Noam 37, 45, 56 (1964) (emphasis added) (Hebrew). Rabbi Zweig practiced in Belgium, a Catholic country. Eventually, he ruled that abortion is prohibited because it “denigrates the Name of Israel,” as “the Christian priesthood” considers abortion tantamount to infanticide.

62. Talmud, Shabbath 73a.

63. Maimonides, Mishneh Torah, Hilkhoth Shabbath 10:10.

64. Unterman, Issar Yehuda, Concerning the Laws of Preservation of Life for Fetuses, 6 Noam 1 (1963) (Hebrew), citing Talmud, Baba Kamma 59b (the Talmudic source on the man who felled a palm tree). Unterman tells of a Jewish woman who became pregnant by a German soldier in World War I and demanded that he recognize his paternity. He demanded that a Jewish doctor abort her fetus, threatening him at gunpoint. The local rabbi had difficulty deciding whether the doctor should refuse and sacrifice his life. This story is also told of Rabbi Weinberg by Sternbuch, Moshe, 3 Responsa “Teshuvot Ve-Hanhagot” 15 (Jerusalem 1997) (Hebrew). This shocking case involves a forced abortion, not one sought by the woman. In my opinion, nothing concerning elective abortions should be deduced from forced abortions.

“Be killed, but do not transgress” has been said of any bloodshed, such as bodily harm, and not only of killing. See Halperin, Mordechai, Organs for Transplant from a Live Donor—Halakhic Aspects, 45–46 Assia 34 (1989) (Hebrew). Accordingly, the rabbi's conflict is understandable because abortion is not only bodily harm, but bodily harm which involves mortal danger: “Every abortion is in the nature of danger.” Nachmanides, The Law of Man: the Gate of Suffering (Hebrew).

The example of the person cutting the palm tree also concerns a malfeasant, like that of false witnesses causing the killing of an innocent person and that of the “thief of a fetus.” In summary, all of Unterman's proof concerns forced abortions only. Even the school of thought which believes elective abortion to be less grave considers it possible that forced abortion is really a kind of killing. See Shuayeb, Ibn, Sermons 297 (Metzger, ed., Lev Sameach Inst. 1992) (Medieval Christian Spain) (Hebrew).

65. Talmud, Sanhedrin 37a.

66. Ayyash, Judah, Responsa “Beth Yehuda,” Even Ha-Ezer, Mark 14 (Hebrew). Many famous rabbis are metonymically referred to by the name of their chief book. The stand taken by Beth Yehuda, who lived in an Islamic country, is quite similar to Muslim religious law, which (in most opinions) permits abortion up to the end of the fourth month, even without the husband's knowledge, provided that there is a reason for the act. The most frequent reason cited in Muslim teachings of religious law is fear for the life of a sibling who is still suckling. Musallam, B.F., Sex and Society in Islam: Birth Control Before the Nineteenth Century 57 (Cambridge Univ. Press 1983). Fear of the “evil eye” and a fear for a nursing infant might represent the same consideration. See Sefer Hassidim (Wistinetzky ed., Zvi Hirsch Itzkowski 1891) Mark 514 (Hebrew).

67. Ayyash, supra note 66.

68. Oelbaum, Ytzhaq, Responsa “She'elat Ytzhaq” Yore De'a, Mark 64 at 139 (Galanta 1949) (Hebrew).

69. Hirschmann, Nancy J., Rethinking Obligation: A Feminist Method for Political Theory 236 (Cornell Univ. Press 1992). Responsibility to existing children is a leading motivation for abortion world wide. Jones, Rachel K.et al., “I Would Want to Give My Child, Like, Everything in the World”: How Issues of Motherhood Influence Women Who Have Abortions, 29 J. Fam. Issues 79 (2008).

70. Oelbaum, supra note 68.

71. Id.

72. See rabbinic views on “evidence based medicine,” Zilbershtein, I., Shoshanat Ha‘Amakim 49 (Bnei Beraq 1989), and Barilan, Y. Michael, On Screening Tests, 22 (85-86) Assia 12 (2009) (Hebrew).

73. Zilbershtein, supra note 72, at 49; Barilan, supra note 72. For an example of referral to counseling, see Waldenberg, supra note 56, at Pt. 14, Mark 101, where Waldenberg writes on abortion of a Down Syndrome fetus after the stage of viability. He avoids a direct ruling (prohibited/permitted—as he applies to other situations of abortion) and writes that decision should follow comprehensive and individually tailored counseling with a rabbi.

74. Rabbi Uziel was the acknowledged leader of the Oriental Jews, as opposed to the other chief rabbi, who is the leader of the Ashkenazi Jews.

75. Uziel, BenZionHai, Responsa “Mishpatei Uziel, “ Hoshen Mishpat, Mark 46 (Hebrew).

76. Talmud, Kethuboth 19a.

77. Talmud, Yoma 82a.

78. Id.

79. Compare Sefer Halakhoth Gedoloth, Pt. 1, at 155 (A. Hildesheimer ed., Mekitzei Nirdamim Soc'y 1888) (Hebrew) with Nahmanides, , Torat Ha-Adam vol. II, at 29 (Cheval, ed., Harav Kook Inst. 1964) (Hebrew).

80. Weinberg, Yechiel Jacob, Responsa “Sridey Esh,” Pt. C, Mark 127, ch. 2, 241 (Hebrew).

81. Bachrach, supra note 33.

82. Joseph, Ovadia, Responsa “Yabi'a Omer,” Pt. 4, Even Ha-Ezer, Mark 1 (Hebrew).

83. Goren, Shlomo, Torat Ha'refuah: Halakhic Studies in Medicine 195201 (Ha-Idra Rabba 2001) (Hebrew).

84. Hibner, Samuel, Aborting a Fetus to Save the Mother, 28 Hadarom 3142 (1969) (Hebrew).

85. Isa 1:15.

86. Talmud, Nidda 13b.

87. Talmud, Yevamut, 34b on Gen 38.

88. Mishneh Torah, Hilkhoth Issurey Bi'ah 21:18.

89. Bachrach, supra note 33. It is noteworthy that rabbinic jargon employs the same word (zenuth) to designate both prostitution and fornication.

90. Kook, Rabbi, Chief Rabbi of Palestine, d. 1935, in Kook, A.I. HaCohen, Responsa “Ezrath Kohen,” Mark 35 following Seffer Hassidim, Mark 176.

91. Schwadron, Sholom Mordechai, Responsa Maharsham, Pt. 3, Mark 268 (Hebrew).

92. This situation is reflected in the Hebrew language, in which the word ′ubar (which has been rendered as “fetus” throughout this article) applies to all stages of pregnancy, from the moment of conception to the moment before birth. Hebrew makes no distinction between a pre-embryo, an embryo and a fetus. The Supreme Helsinki Committee of the State of Israel has recently approached the Academy of the Hebrew Language, asking it to define terms which reflect these differences. (Professor G. Siegal, in a verbal conversation with the author in the summer of 2002).

93. Exod 21:22-23.

94. Philo, The Special Laws Bk. III, 19.108-109, available at http://www.earlyjewishwritings.com/text/philo/book29.html. See Riddle, James M., Contraception and Abortion from the Ancient World to the Renaissance 20 (Harv. Univ. Press 1992).

95. For a more detailed discussion, see Feldman, David M., Birth Control in Jewish Law ch. 14 (N.Y. Univ. Press 1968); Aptowitzer, V., Observations on the Criminal Law of the Jews, 15 Jewish Q. Rev. 55118 (1924); Gorman, Michael J., Abortion and the Early Church ch. 3 (Wipf & Stock 1998); Yaron, R., The Embryo in the Bible and the laws of the Ancient Near East, in Life: Essence and Value 7793 (Heyd, D. ed., Magnes 1991) (Hebrew). In this article he suggests that ason is used in the Bible to designate an untimely and clearly unjust death.

96. Sinclair, Daniel, The Legal Basis for the Prohibition of Abortion in Jewish Law, 15 Israel L. Rev. 109 (1980).

97. Tertullian, De Anima, 26, 45. See Playoust, Christine & Bradshaw, Ellen, The leaping child: imagining the unborn in early Christian literature, in Imagining the Fetus: the Unborn in Myth, Religion and Culture (Sasson, Vanessa R. & Law, Jane Marie eds., Oxford Univ. Press 2009).

98. Gen 25:22, “And the children struggled together within her.” Rashi, the canonical commentator on both the Bible and the Talmud, eleventh-century France, comments on this verse that Jacob and Esau were reacting to the kind of places Rebecca happened to come across—synagogues and pagan spectacles, respectively.

99. Urbach, Ephraim E., The Sages: Their Concepts and Opinions 214 ff. (Harv. Univ. Press 1987); Kessler, Gwynn, Conceiving Israel: the fetus in rabbinic narratives (Univ. Pa. Press 2009).

100. Id.

101. Talmud, Nidda 30b.

102. Id.

103. See generally, id.; Urbach, supra note 99, at 214 ff.

104. Zimra, David b.Responsa Radvaz, Pt. II, Mark 695 (Hebrew).

105. The view of these rabbis makes sense when we consider the medical practice with which they were surrounded. Before the days of modern medicine, even in societies which prohibited abortion, the use of drugs and treatments for “amenorrhea”—which was often used as a synonym for pregnancy—was quite common. Rabbi Yom Tov b Avraham, Commentary Yad Ramma on Talmud Sanhedrin 91b (Hebrew). Perhaps for this reason, the sages established that, for the first forty days, pregnancy was “merely water”—because they really could not know whether a woman who aborted (or miscarried) before the fortieth day had really ever been pregnant, or whether she was suffering from pathological vaginal bleeding.

106. Id. at 72b.

107. Gloss Ritva on Talmud, Nidda 44b.

108. Talmud, Nidda 43b-44a on Lev 24:17.

109. Ariel, I., Responsa “Be-Ohola Shel Torah,“Hoshen Mishpal 115 (Hebrew).

110. Barilan, Y. Michael, The Vision of Vegetarianism and Peace: Rabbi Kook and the Ethical Treatment of Animals, 17 Hist. Hum. Sci. 69 (2004); Barilan, Y. Michael & Siegal, Gil, The Stem Cell Debate: A Jewish Perspective on Human Dignity, Human Creativity and Inter-religious Dialogues, in Crossing Borders: Cultural, Religious and Political Differences Concerning Stem Cell Research, A Global Approach 293 (Bender, Wolfgang, Hauskeller, Christine & Manzei, Alexandra eds., Agenda Verlag 2005).

111. Bachrach, supra note 33.

112. Talmud, Yebamoth 69b.

113. Talmud, Nidda 8b.

114. Talmud, Nidda ch. 3. It should be noted that the Talmud does not consider the morphological considerations of the Halakhah as experimental embryology. See the tale of Cleopatra's Handmaids (Talmud, Nidda 30b). Halakhic epistemology is empiricist and not rationalist. The naturalistic considerations in the Jewish religious laws in question are suffering, “the pain of her body,” disgrace, and the distinction of “another body” than that of the mother. In my opinion, the first poseq who applied these laws to matters of killing is Rabbi Zilberstein. The Talmud (Nidda 24a) describes severe birth defects which make a new mother exempt from “days of purity” because the birth of a fetus with these defects cannot be deemed a valid birth. One of the defects is the condition of a child “whose skull is a shapeless lump.” Rabbi Zilberstein permits the harvesting of organs for transplantation from an encephalic newborn even before it dies, because it “is not a person.” Rabbi Auerbach permits this to be done as long as the fetus remains in-utero, but not after birth. Auerbach permits the abortion of such a fetus even near the time of birth, due to the sorrow of the mother, who finds herself carrying a hopeless pregnancy. See Zilberstein, I., Schossheim, E.J. & Halperin, R., Giving Birth to an Anencephalus Child for the Sake of Harvesting Organs for Transplantation, 67–68 Assia 2 (2001) (Hebrew).

Rabbi Yosef specifically states that a fetus—prima facie, at any stage and of any appearance—is also called a human. Responsa “Yabi'a Omer,” end of Mark 2. The Talmud merely specifies that for the purposes of killing, the fetus is not a “soul.” Nowhere, however, does it advance the argument that the fetus is inhuman. According to the Palestinian Talmud, Nidda 3b, there are chimeras which, for the purposes of some Jewish religious laws, are equivalent to humans and, for others, are equivalent to animals. Socrates forbids the raising of children with severe defects, as they are no more than “phantoms.” Theotitus 160e. Augustine was first to argue that all newborns, of whatever shape, are humans for all intents and purposes. Civitates Dei 16, 8. I refer to this as the “descendant doctrine” of human identity. Y. Michael Barilan, Lactantius and the Origins of Human Dignity and Rights (forthcoming).

The author of Responsa “Teshuva Me-Ahava,” Pt. A, Mark 53 (Kashu 1912) (Prague, nineteenth cent.) (Hebrew) forbids abandonment—that is, killing by starvation—and causing any suffering to a newborn which is “half human and half animal.” His statements may teach us that, in any event, no fetus should be made to suffer in the course of abortion. In this case, the emphasis is apparently on suffering and not on human dignity. See Deitch, A., Responsa “Dudaei Ha-Sadeh,” Mark 82 (Sutmer 1929) (Hebrew).

In some societies, the justification for abortion is based on a diagnosis by a “specialist” who states that the fetus is only a “monster,” very deformed, the son of a demon, etc. Then, of course, everyone is willing to help the mother be freed of the “alien invader.” See Jacquart, Danielle & Thomasset, Claude Alexandre, Sexuality and Medicine in the Middle Ages 164 (Princeton Univ. Press 1988).

115. Talmud, Hullin 72a.

116. The same applies to the eating of terumah (Heave-offering), which is set aside for priestly families. In that case, the state of the fetus constitutes an index governing matters between one human being and another, but the fetus itself is not involved in those matters.

117. Responsa “Hattam Sofer” 10:336 (eighteenth cent., Hungary) (Hebrew).

118. Waldenberg, supra note 56, at Pt. 10, Mark 25 ch. 8.

119. Id. at Pt. 9, Mark 51 and Pt. 14, Mark 100.

120. For a detailed discussion concerning the difference between the naturalistic ethics of the precepts applicable to the “sons of Noah” and the positivist law of the Torah, see Barilan, Y. Michael, Revisiting the Problem of Jewish Bioethics: The Case of Terminal Care, 13 Kennedy Inst. Ethics J. 141–68 (2003).

121. Viability is at the heart of Roe v. Wade, 410 U.S. 113 (1973).

122. Avraham, A.S., Nishmath Avraham vol. 3, Hoshen Mishpat, Mark 425 (Falk-Schlesinger Inst. 1988 (Hebrew). Rabbi Wosner, another contemporary rabbi who is very strict with abortion, declares in one responsa that the issue of abortion depends on the stages of pregnancy (40 days, 3 months, birth) only to conclude in a different responsum with a ruling that permits abortion of a severely defective fetus only if it is “not close to the seventh month.” Halevi-Wosner, Shmuel, Responsa “Shevet Ha'Levi,” Pt. 10, Marks 271 & 259.

123. David b. Zimra, supra note 104.

124. All of the posqim agree that an abortion before the gestational age of forty days is easier than thereafter. (This is because of the “merely water” maxim, see supra p. 126.) This stage may be understood to constitute an existential-ontological turning point (the pregnancy exists or does not exist) rather than a metaphysical one.

125. The first non-metaphysical discussion of the ethics of abortion is commonly thought to be the article by Thomson, Judith Jarvis, A Defense of Abortion, 1 Phil. & Pub. Affairs 4766 (1971). A similar popular tradition exists in Japan. Abortion is not a measure commonly used for planned parenthood; on the other hand, there is a common ritual of concern for the welfare of the souls of aborted fetuses. LeFleur, William R., Liquid Life: Abortion and Buddhism in Japan (Princeton Univ. Press 1992). Interestingly, whereas the belief in transmigration of souls helps Buddhists cope with or even accept abortion, the Jewish circles that emphasize such beliefs are not lenient with regard to abortion. Although transmigration of souls is never part of halakhic discourse, even among halakhists who believe in it, Rabbi Waldenberg invokes it in order to add support to his permission to abort Tay-Sachs fetuses and also to justify the ways of God. See Waldenberg, supra note 56, at Pt. 14 Mark 100.

126. See supra pp. 119-20.

127. Trani, Joseph, Responsa Maharit, Pt. A, Mark 97.

128. Talmud, Sanhedrin 52a. Many laws concerning the death penalty are derived from the value of dignity for the divine image in every human body. These laws should be separated from the laws concerning neighborly love. Lorberboim, Y., The Imago Dei (Schocken Press 2004) (Hebrew).

129. Talmud, Arakhin 7a. Maimonides, Mishneh Torah, Hilchoth Sanhedrin 12:4 (Hebrew). See discussion in Responsa “Yabi'a Omer,” Pt. 4, Even Ha-Ezer, Mark 1 (Hebrew), which explains that this ruling is intended to avoid torture in the execution of a sentence of death—in other words, claiming that killing the fetus first is based on considerations of neighborly love.

In medieval and pre-modern Europe, much care was given not to execute pregnant women, but to make them wait until the child is born. Bar-On, Y., Ro'oth et Ha'Nolad 62, 155 (Haifa Univ. Press 1992) (Hebrew).

130. Talmud, Arakhin, 7a. According to the physiology of the time, labor begins when the fetus becomes detached from its “place” in the womb and embarks on its journey as “another body.” From this stage on, it must not be allowed to perish along with its mother.

131. There is a passage in the Tosafoth to the tractate of Baba Bathra 142a which rules, on the basis of the issue in Talmud, Yebamoth 67b, that a fetus can inherit, but stipulates that it must be “a fetus which becomes a corpse”—that is, one which is subsequently born, whereas “if the fetus dies in its mother's womb, it does not inherit.” According to the Talmud (Berakhot 43b expounding on Genesis 38) Tamar chose not to shame Judah publicly, even at the cost of her life. A prominent twentieth-century rabbi explains that since the only presumption against the sacrifice of her unborn twins was the monetary damage to the father, in case Judah declined recognition of paternity he could not have claimed damages as well. Ha‘Cohen, Meir Simha, Neshekh Hokhma 46 (1972).

132. Talmud, Nidda 44b.

133. Trani, supra note 127. While the condemned mother is alive, Rabbi Joseph of Trani is even more lenient in permitting abortion “because of its mother's need.” He notes, “And there is no vacillation whatsoever on the grounds of loss of souls.” Id. at Mark 99 .

134. The Hebrew word nefesh, generally translated as “soul” in this article (except where other sources translate it as “life”), carries a connotation of breathing. Nonetheless, the earlier sages did not interpret the Talmudic phrase “human soul” in the sense of the Stoics. According to the Stoic school of thought, personhood necessarily includes breathing, and fetuses are quasi-vegetables. Sandbach, F.H., The Stoics 8384 (2d ed., Hackett Publg. Co., Inc. 1994). See also Marcus Aurelius, Meditations 12.24. On the beginning-of-life-at-birth doctrine in antiquity, see Kapparis, supra note 24, at 41-44.

135. Hibner, supra note 84. As Rabbi Hibner ruled, on the basis of Rabbi Israel Lipshitz' Tifereth Israel (Poland, nineteenth cent.) and Rabbi Yehezkel Landau's Noda Bi-Yehuda (Poland, eighteenth cent.), Landauthe law concerning “the woman who has difficulty in childbirth” (see 6.1) has an additional condition: that “the months [of uterine growth] are complete,” and the fetus accordingly has a chance of extra-uterine survival. Otherwise, it would obviously be permitted to kill the fetus, even if its head had already been born.

136. Prudy, supra note 38.

137. For a comprehensive survey, see 2 Avraham Steinberg, Halakhic Medical Encyclopedia col. 76, n. 148 (Falk-Schlesinger Inst. 1991) (Hebrew).

138. See supra p. 132.

139. This is a Talmudic expression (Yebamoth 78a) similar to the Roman maxim pars viscerum matris.

140. This is possibly due to the influence of the laws on self-defense, which, until today take one of either two formats—the “proportionality principle” (weighing the interest at risk against the harm done during the act of defense or diversion of harm) and the “discrete” (holding that any unjust infringement of a basic right merits repulsion by the mildest means necessary, regardless of the consequences to the aggressor). Fletcher, G.P., Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8 Israel L. Rev. 367 (1973).

141. Maimonides, Mishneh Torah, Hilkhoth Ishut 21, 11 (Hebrew).

142. This would appear to indicate that there is no way of preventing a pregnant woman from smoking, or even from taking drugs to which she is addicted. But if her cravings cause disability, rather than abortion, the law may be more stringent, because a person who was damaged by her will eventually be born. On the other hand, the source of this ruling is in the Palestinian Talmud (Yoma 5, 1) which says that expert advice should be sought before a sick person is given food on a day of fast, whereas when a pregnant woman craves food, we are obliged to feed her without further inquiry. It would appear then that the permission to eat is meant to allow the woman to recover but not to sustain or even to promote an addictive behavior. This example underscores the centrality of the woman's subjective state of mind, as opposed to objective criteria, in Jewish laws regarding pregnancy.

143. For a discussion, see Avraham, Avraham Sofer, Avraham, Nishmathh, Yoreh D'ea vol. B, 66 (Falk-Schlesinger Inst. 1985) (Hebrew).

144. Avraham, Avraham Sofer, 5 Nishmath Avraham, Orah Haim § 330 (Falk-Schlesinger Inst. 1997) (Hebrew). The woman is anyhow entitled to no-fault divorce, but this idea bears educational value (the construction of the role of a pious wife) and pecuniary consequences (divorce without a good reason, may cost her money).

145. Nishmath Avraham cites the differing opinion of Rabbi Elyashiv, who believes the suffering and danger involved in a cesarean section are no greater than those of an ordinary delivery, and that, accordingly, the woman should be forced to undergo this operation in fulfillment of her matrimonial commitment to her husband, but that she should not be forced to do so when the viability of the fetus is in doubt. Id. Rabbi Zilberstein does not accept Rabbi Auerbach's apparent openness to any argument of psychological suffering, and states that only real damage, albeit minor (such as “harm to the woman's ability to bear further children naturally”) can protect the woman from forcible surgery. He also accepts Rabbi Elyashiv's opinion to the effect that the woman should not be forced into surgery “if the fetus suffers from severe diseases.” Zilberstein, Y., Forcible Cesarean Section to Save the Newborn 17 (65-66) Assia 9 (1989) (Hebrew).

Another citation, in the name of Rabbi Auerbach argues that abortion is forbidden under the laws of “theft,” as if life is being stolen from the fetus. Avraham, supra note 144. Rabbi Auerbach apparently believes that a woman, who is exempt from the duty of procreation, is not obligated to give life to the fetus, but that neither she nor others may take positive action to steal the life that it already has. The analogy to theft is necessarily incomplete, because “No one may save himself with his neighbor's wealth unless one makes a pledge to pay back,” Talmud, Baba Kamma 117b, and if abortion is theft from the fetus, it cannot be permitted even in order to save the mother's life, because the “owner” cannot grant consent, an agent representing its best interests will never grant it and life cannot be restored. Besides, a theft may be committed only with regard to property of a person. Possibly Auerbach has the future person of the fetus in mind.

146. Savage, Wendy, Cesarean Section: Who Chooses—The Woman or the Doctor?, in Donna L. Dickenson, Ethical Issues in Maternal Fetal Medicine 263 (Cambridge Univ. Press 2002); Seymour, John, Childbirth and the Law ch. 9 (Oxford Univ. Press 2000); Daniels, Cynthia R., At Women's Expense (Harv. Univ. Press 1993).

It should be evident that Auerbach would not accept Gewirth's rational version of the Golden Rule. Gewirth, Alan, Reason and Morality 169 (Univ. Chi. Press 1978). This subject has recently given rise to debate in Israel as well. Rotbart, H. & Starolov, A., Iatrogenic Fetal Death: Legal and Ethical Issues, 147 Harefuah 143 & corresp. at 457-59 (2004) (Hebrew).

147. In the case of “the pregnant woman who smelled [food and was seized by cravings] on Yom Kippur.” Talmud, Yoma 82a, supra note 77, the Shulhan Arukh stipulates: “[If] a pregnant woman smelled [food], they whisper in her ear that it is Yom Kippur. If she calms down when she remembers that, this is best; and if she does not, they feed her.” Shulhan Arukh, Orah Haim 617:2. According to Rashi on Yoma, it is the fetus which craves and the fetus which becomes persuaded (not to eat), and it may even persecute her with its cravings.

148. Talmud, Baba Metzia, 75b. The workers might be asked to pay damages, but they cannot be forced to work.

149. Mishne Torah, Hilchoth Sechiruth 9.

150. Mishnah, Gittin 9:10.

151. Glendon, supra note 14.

152. Boyle, Christine, Married Women—Beyond the Pale of the Law of Rape, 1 Windsor Yearbook of Access to Justice 192 (1981); Martin, Elaine K., Taft, Casey T. & Resick, Patricia A., A Review of Marital Rape, 12 Aggression and Violent Behavior 329 (2007).

153. I Cor 7:4.

154. Elon, Menchem, The Status of Woman 216–28 (Hakibutz Ha'Me'uhad 2005).

155. See supra text accompanying footnotes 144-47.

156. The notion that human rights issues related to body and sexuality are either inalienable at all or alienable only upon rational free choice in real time is at the heart of the contemporary ethics of human rights. Barilan, Y. Michael & Brusa, M., Human Rights and Bioethics, 34 J. Med. Ethics 379 (2008).

157. See supra text accompanying footnotes 144-47.

158. The origin of the distinction between these two functions lies in casuistic ethics. It possibly goes back as far as Ambrose, who distinguished between “commandments” that are issued by an authority to its subjects and “counsels” that are shared among friends. See Some of the Principal Works of St. Ambrose 403 (de Romstin, H. trans., Eerdmans 1955). The distinction has also been raised by strong theoretical supporters of natural law ethics, yet not regarding abortion. E.g., Grisez, Germain Gabriel, The First Principle of Practical Reason, in Aquinas: A Collection of Critical Essays 340–82 (Kenny, Anthony J. ed., Univ. Notre Dame Press 1976). In modern secular philosophy, this distinction was formulated by Sidgwick, Henry, The Methods of Ethics 106 (Hackett Publg. 1907).

159. Rabbi Zweig points out the practical difficulties in estimating the woman's subjective pain. In my opinion, this problem should be clarified at the level of the advisory function. On the decisive level, there is prima facie no barrier which can withstand the woman's subjective sensations; and if the husband does not have the power to protest, the legislator, acting on behalf of public interest, certainly does not. Studies performed on women who chose to have abortions indicate that, in most cases, the decision results from profound considerations and from a sense of responsibility for both the aborted child and the family. Zweig, supra note 61, at 48, 95. See, e.g., Leslie Cannold, The Abortion Myth: Feminism, Morality, and the Hard Choices Women Make (Univ. Press New Eng. 1998).

160. An expert opinion submitted to the court by Rabbi Dr. R. Halperin on May 8, 2008, CivC (TA) 8513/06 .

161. Talmud, Yebamoth 42a. St. Jerome and Augustine prohibited intercourse throughout the whole pregnancy for fear of miscarriage. Noonan, John T. Jr., An Almost Absolute Value in History, in The Morality of Abortion: Legal and Historical Perspectives 159, 17 (Noonan, J.T. ed., Harv. Univ. Press 1970). The Talmud, which is not preoccupied with a struggle against abortion, and which has a more favorable attitude toward sexuality, encourages intercourse in the last two trimesters. Talmud, Nidda 31a.

162. Ettlinger, Jacob, Responsa “Binyan Zion,” Mark 120 (Altona 1868) (Hebrew).

163. This is not a clear-cut halakhic case of “B is more severely forbidden than A,” (qal va 'homer) because the prohibition against benefit applies only to organs from the dead body and not to organs from the living body. Nonetheless, I believe it can be based on the Talmudic explanation set forth in Section 3.3 of my article on stem cells. Barilan & Siegal, supra note 110. In any event, the prohibition should not be invoked in order to forbid stem cell research because stem cells do not have human form and the duty of burial does not apply to them.

164. Halevi-Wosner, supra note 41.

165. See Ish, Hazon, commentary on Maimonides' Laws of Murderers 1:9—which was apparently based on Bavad, J., Minhath Hinnukh, commandment 296 (Lemberg 1889) (Hebrew).

166. Id.

167. Rabbi Hayyim of Brisk (Lithuania, nineteenth cent.). Halevi-Soloveitchik, Hayyim, Hidushei Rabenu Haim Halevi (Yehoshua Klein 1936) (Hebrew) in his commentary on Maimonides' Laws of Murderers, explicitly writes that a fetus may not be rejected in order to preserve the lives of others because the Biblical injunction “He shall live in them” (Lev 18:5) applies to the fetus as well. According to his approach, which is apparently based on the teachings of Rabbi Moshe Schick, the fetus has an intermediate status, a sort of “half-soul,” or “somewhat of a soul.” Responsa Maharam Schick, Yore De'a, Mark 158 (Hebrew).

168. See Zilberstein, I. & Osher, P., Selective Reduction of Fetuses, 45–46 Assia 62 (1989).

169. To this day, scientists have not succeeded in growing a formed fetus in vitro. Whether this is due to a technical problem which will shortly be solved, as the scientists claim, or to more substantial difficulties, remains beyond our knowledge, and in vitro pre-embryos are, in fact, “merely water.” The Israeli law on cloning forbids procreative cloning, but sets no limits on any kind of use of extra-corporeal embryos at any stage of their development. The law received the blessing of the representative of the Chief Rabbinate who participated in the deliberation in the parliamentary committee. See http://www.knesset.gov.il/protocols/data/html/mada/2003-11-12.html (last visited June 30, 2008) (Hebrew).

170. Halevi, Haim David, On Selective Reduction of Fetuses and the Halakhic Status of Test Tube Embryos, 47–48 Assia 14 (1990). A similar statement was made by Rabbi Stembuch in 8 Ha-Refuah, Bi-Shviley (The Journal of Israel's Laniado Hospital) (11 1987).

171. Eliyahu, Mordechai, Destruction of Ova and Selective Reduction of Fetuses, 12 Tehumin 272–74 (1991) (Hebrew).

172. Halevi-Wosner, Shmuel, Responsa “Shevet Ha 'Levi,” Pt. 10, Marks 271 & 259 (Hebrew).

173. And “He who indulges in marital intercourse on the ninetieth day is as though he had shed blood” (at the time, it was believed that spontaneous abortion was more common in the first 90 days) is phrased so as to refer to the man and not to the woman. Talmud, Nidda 31a.

174. Shulhan Arukh, Even Ha-Ezer 13:11 (Hebrew).

175. Cannold, supra note 159; Kluger-Bell, Kim, Unspeakable Losses: Understanding the Experience of Pregnancy Loss, Miscarriage and Abortion (Norton 1998).

176. See Parfit, Derek, Reasons and Persons 359 (Clarendon 1984).

177. Israeli, Saul, Responsa “Amud Ha-Yemini,” Mark 32 (Hebrew).

178. Israeli, Saul, On Questions Pertaining to the One's Ownership over One's Body, 7–8 The Torah and the State 331 (19561957) (Hebrew). His ruling clearly illustrates how a general prohibition, which may be considered mild from the legal standpoint, is swallowed up in a more severe prohibition, such as that against doing harm to one's fellow.

179. Id. It is notable that Zweig's responsum (supra note 61) also deals with a victim of thalidomide. The thalidomide affair constituted the first challenge of abortion in fear of fetal malformation.

180. Id.

181. Id.

182. Halvei-Wosner, Shmuel, Responsa “Shevet HaLevi, “Pt. 10, Marks 235, 259 (Hebrew).

183. See supra text accompanying notes 78-79.

184. Mishnah, Oholoth 7:6.

185. Rashi on Talmud, Sanhedrin 72b.

186. See supra text accompanying note 130.

187. Rashi on Talmud, Arakhin, 7a.

188. Maimonides, Mishneh Torah, Hilchoth Rotzei'ah 1:9.

189. Id. at 1:6. A few rabbis try to argue that it is forbidden to kill an innocent persecutor person (as opposed to a fetus whose birth has not been completed) unless the persecution is direct such as in the case of a rapist jumping on a victim. Jungreis, U., Organ Donations for the Sake of Saving Life, 3 Atereth Shlomo 214–24 (1998) (Hebrew). Similar interpretations are given in the names of Rabbi Auerbach and Rabbi Haim of Brisk. I have found only one rabbinic source who objects to the killing of an innocent persecutor. Schepansky, I., Studies in the Laws of Persecutor, 20 (69(1)) Or Ha-Mizrah 15 (1971) (Hebrew). Nathanson, Saul, Responsa Sho'el u'meshiv, Pt. 2, Mark 50 (4th ed. Lemberg 1877) (Hebrew). This responsum, however, restricts the permission to kill the persecutor only to the persecuted person.

190. One possible exception is Lamproneti (Italy, eighteenth cent.). Elsewhere I have argued that his discussion is not relevant to abortion. Barilan, Y. Michael, The Sorrows of her Body takes Precedence: Induced Abortions in Halakhah and in Israeli Law, in The Right to Life with No Malformations 81 (Davis, J. & Sahar, A. eds., Dionon 2007) (Hebrew).

191. See supra text accompanying note 133.

192. Shor, I., Responsa “Koah Shor,” Pt. 1, Mark 20 (Cracow 1903) (Hebrew). His grandson comments on this in a note printed at the end of the responsum.

193. Id.

194. See Zweig, supra note 61.

195. Schofield, Robert, Did the Mothers Really Die? Three Centuries of Maternal Mortality in “The World We Have Lost”in The World We Have Gained: Histories of Population and Social Structure 231 (Bonfield, Lloydet. al, eds., Basil Blackwell Ltd. 1986); Brouwere, Vincent De, The Comparative Study of Maternal Mortality Over Time: The Role of the Professionalisation of Childbirth, 20 Soc. Hist. Med. 541 (2007); Shorter, Edward, A History of Women's Bodies ch. 7, 160–64 (Basic Books 1982).

196. Hill, Kennethet al., Estimates of Maternal Mortality Worldwide Between 1990 and 2005: An Assessment of Available Data, 370 Lancet 1311 (2007).

197. Rashi, supra note 187.

198. Maimonides, supra note 188.

199. In another place, Rashi takes a more lenient ruling in a debate on bastard fetuses supporting his position by the assumption that they are not persons (“souls”). Rashi, & Tosafoth, , “Me ‘ube ‘ret atzmo” on Talmud, Sotta 26a (Hebrew).

200. Rashi on Talmud, Arakhin 7a. This is also the reading of Grodzinsky, H.O., Responsa “Ahi'ezer,” Pt. 3, Mark 72 (early twentieth cent., Vilnius) (Hebrew).

201. Alexander, Larry, Self-defense, Justification and Excuse, 22 Phil. Pub. Affairs 5366 (1993).

202. Rabbi Jacob Shor (in the anthology of nineteenth-century Responsa Teshuvot Ge'onim Batrai, Mark 45) points out that Maimonides' exact words were “like a persecutor” and not “a persecutor.” On the other hand, it should be recalled that Maimonides cites “the woman having difficulty in childbirth” as a paradigmatic case of the law permitting the execution of a persecutor, which is part of the law of murderers. The halakhic ruling given by Maimonides starts with the word “Accordingly” “”.

203. Simpson, A.W. Brian, Cannibalism and the Common Law (Univ. Chi. Press 1984).

204. Talmud, Baba Kamma 117b.

205. For a discussion of this point, see Uniacke, Suzanne, Self-Defense and Natural Law, 36 Am. J. Jur. 73101 (1991), and Connery, John R., Abortion: The Development of the Roman Catholic Perspective ch. 13, 14 (Loy. Univ. Press 1977).

206. The word “section” here comes from the Latin seco, to cut. Boss assumes that the appearance of Christianity is responsible for the disappearance of an established tradition of cesarean sections. Boss, Jeffery, The Antiquity of Cesarean Section with Maternal Survival: the Jewish Tradition, 5 Med. Hist. 117–31 (1961).

207. Dildy, Gary A., et. al, Critical Care Obstetrics 607–08 (Blackwell 2003). The book actually gives five minutes, which makes my argument even stronger. However, it is a historical commonplace that one may expect fetal survival within 15 minutes of maternal “death.” Whether this “death” meant cardiac arrest, we cannot tell. Modern medical equipment and ethics do not allow for a clear answer to the question how long after maternal “death” (=cardiac arrest) the fetus is likely to survive.

208. Duran, Shimon, Responda Tashbetz, hut Ha'Meshulash Pt. 1, Mark 110 (Lemberg 1891) (Hebrew). The Geonim (seventh to ninth-century sages from Iraq) already ruled against the Talmud, commenting that post-mortem cesarean is futile since the baby must be dead as well. Harkavi, A.E., Teshuvoth HaGeonim Mark 508 (Berlin 1887) (Hebrew). I discuss this issue in length as well as its possible bearings on the medieval blood libel. Barilan, Y. Michael, Abortion in Jewish Religious Law: Neighborly Love, Imago Dei and the Medieval Blood Libel, 8 Rev. Rabbinic Judaism 134 (2005).

209. See supra text accompanying note 130.

210. M. Isserles, Shulhan Arukh, Orah Haim 330:5 (Isserles's comments and additions to Karo's Shulhan Arukh are considered an integral part of this code of law).

211. Contemporary ethicists debate the analogy between abortion and self-defense. Davis, Nancy, Abortion and Self-defense, 13 Phil. & Pub. Affairs 175 (1984). Huffman, T.L., Abortion, Moral Responsibility and Self-Defense, 1 Pub. Affairs Q. 287 (1993).

212. There have been reports of successful cesarean sections among “primitive” tribes. A case study from 1872 is reported in Sigerist, Henry E., A History of Medicine vol. 1, 207 (Oxford Univ. Press 1951), and Churchill, Helen, Cesarean Birth: Experience, Practice, History (Books for Midwives Press 1997). The most ancient documentation of a cesarean birth comes from ancient Babylon. There too, the situation is described in the words “the woman has difficulty in giving birth.” Oppenheimer noted that all of the cases reported involve female servants, and raised the hypothesis that the motive for the surgery was economic, in order to save the baby, on the assumption that the mother had already died. Brothwell, Don & Sandison, A.T., Diseases in Antiquity 203 (Charles Thomas 1967).

The early Christians were very much opposed to cesarean section, on the basis of their fundamental approach of “Sit and do nothing” in cases of conflict between the life of one person and that of another. Maimonides, in his interpretation of the Mishna, Bekhoroih 2:9, notes in passing that it is customary to perform a cesarean section on a woman having difficulty in childbirth. A fifteenth-century German manual of obstetrics writes: “Many mothers ask, when they feel that they are dying, to liberate the child by an incision ….” After the author explains how to do this, he gives instructions on how to treat the mother following the surgery, “[s]hould she survive” after which “the woman will recover with God's help.” Blumenfeld-Kosinski, Renate, Not of Woman Born: Representations of Cesarean Birth in Medieval and Renaissance Culture 3637 (Cornell Univ. Press 1990).

The Hebrew medical book Ma'aseh Tuvyah ch. 18 (Venice 1705), states that one of the indications for cesarean section is:

Even when the woman and the child are alive, but there is a great delay which prevents its removal through the opening of the womb, they call a specialist, and he cuts through one of the walls of the womb. The author said: Such an action, to the educated reader of this chapter, will be considered a remote possibility and something that should not be done to the daughters of Israel, may God protect them; but because our sages of blessed memory mentioned this in the Talmud, 1 have attempted to interpret their words.

213. This interpretation has been offered by Rabbi Zweig, supra note 61; Bavad, supra note 165. He writes that one does not kill the persecutor after an attack has been committed, but I do not think it is reasonable for us to have compassion for the persecutor in cases where the persecuted person has sustained injury as a result of the persecution.

214. A great riddle with regard to this ruling does not concern the laws of abortion, but may nonetheless be settled by the proposed interpretation. It would appear, according to the law permitting the execution of a persecutor, that we should be allowed to dismember the fetus even after most of it had been born. The Talmud explains this by saying that, at that stage, “her persecutor is from Heaven”—meaning the Deity, and not the fetus. Talmud, Sanhedrin 72b. The Palestinian Talmud, Avoda Zara 2.2, adds that it is not clear who is persecuting whom.

An allusion to the fact that doctors in Mishnaic times walked a thin line between cutting the fetus and cutting the mother may be found in the Tosefta, Gittin 3:9.

215. This reading limits the debate between Rashi and Maimonides; the debate is still possible, but only to other human aggressors not fetuses.

216. Newell, Franklin Spilman, Cesarean Section 12 (Appleton 1924). See Jakobowits, Immanuel, Jewish Medical Ethics 302–03 (Bloch 1975).

217. In other contexts the Talmud uses the root kishuy (the word used in the Mishna for “difficulty”) as excessive or abnormal bleeding. Talmud Yebamoth 83a, Niddah 37b and same sugioth in the Yerushalmi. The only analogy from the process of birth comes from Talmud Hulin 24a, which clearly reads kishuy as obstructed labor due to malpresentation. Modern medical authorities are also quite vague in delineating their own indications for embryotomy. For example, the 1908 edition of Williams' Obstetrics, a classic of American obstetrical practice, mentions, “a possible sign of maternal infection” and “child does not look in good condition.” Williams, J. Witridge, Obstetrics: a text-book for the use of students and practitioners 464 (2d enl & rev. ed., D. Appleton & Co. 1908).

218. Bar-On, supra note 129.

219. Procopius: The Aanecdota or Secret History § 10.3 (Dewing, H.B. trans., Leob Classical Lib. 1935). It seems that in early Byzantium embryotomy was tolerated as a last measure. The Seven Books of Paulus Aegineta vol. II, 389 (Adams, F. trans., Sydenham Soc'y 1844).

220. Maternal mortality from “last-resort” embryotomy, as practiced in nineteenth-century England was twenty percent. Loudon, Irvine, Death in Childbirth: An International Study of Maternal Care and Maternal Mortality 1800-1950, at 132–43 (Oxford Univ. Press 1992). In early modern France even men-midwives/surgeons did not routinely carry with them instruments for craniotomy, but asked for them only as a last resort. McTavish, Lianne, Childbirth and the Display of Authority in Early Modern France 68 (Ashgate 2005).

This very worry about a landslide in abortions as well as awareness that the self-defense argument supports abortion of mature fetuses even more than very young embryos were the chief reasons behind the consolidating Catholic opposition to abortion starting in the seventeenth century. Maurizio P., Faggioni, Problemi morali nel trattemento della preeclampsia e delta corioamnionite, 483526Medicina e Morale 58 (2008), at 503.

221. Avraham, A.S. & Avraham, Nishmat, Hoshen Mishpat, Mark 425 (Falk-Schlesinger Inst. 1988) (Hebrew).

222. Barilan, Y. Michael, Medical Ethics—Halakhic Approaches To, in Ency. Judaism 277, 287–88 (Neusner, J.et al. eds., 2d ed., Brill 2005).

223. This is a leading anti-utilitarian argument, famously promoted by Bernard Williams and others. In bioethics it is also known to support the notion of conscientious refusal.

224. Sefer Ha-Hinnukh, Mark 16; Barilan, The Vision of Vegetarianism and Peace, supra note 110.

225. Milne, John Stewart, Surgical Instruments in Greek and Roman Times 81 ff. (Oxford Univ. Press 1907); McTavish, supra note 220, at 44, 68, 153. The distinction between embryotomy of live and already dead babies was often vague. Perkins, Wendy, Midwifery and Medicine in Early Modern France: Louise Bourgeois 66 (Univ. Exeter Press 1996). Rowland, Beryl, Medieval Woman's Guide to Health: The First English Gynecological Handbook 127 (Kent St. Univ. Press 1981).

226. For a long survey of the subject, see Forbes, Thomas Rogers, Midwifery and Witchcraft, 17 J. Hist. Med. 264 (1962).

227. Park, Katharine, Secrets of Women: Gender, Generation and the Origin of Human Dissection 96 (Zone 2006).

228. Forbes, supra note 226. Forbes's thesis about the identification of midwives with “witches” has been disputed. Harley, David, Historians as Demonologists: the Myth of the Midwife Witch, 3 J. Soc. Hist. Med. 1 (1990).

229. King, Helen, Midwifery, Obstetrics and the Rise of Gynecology ch. 2. (Ashgate 2007). One surviving account is of a seventeenth-century female midwife specializing in “working with women who summoned me when there was nothing left but to save the woman.” Siegemund, Justina, The Court Midwife 90 ff., especially at 121–23 (Univ. Chi. Press 2005). Nowhere does the narrator tell her novice how the diagnosis of intrauterine death is made.

230. Kapparis, supra note 24, at ch. 1; Forbes, supra note 226, at ch. 8. As late as the twentieth-century, African-American midwives were often accused of killing mothers and infants. Eminent doctors objected to teaching anatomy to “negro midwives,” in case they should use this knowledge to induce abortion. Fraser, Gertrude Jactina, African American Midwifery in the South: Dialogues of Birth, Race and Memory 90-91, 98 (Harv. Univ. Press 1998).

231. Fuchs, Rachel G., Gender and Poverty in Nineteenth Century Europe 53 (Cambridge Univ. Press 2005). The nickname was applied to mercenary wet-nurses as well. Fierce and unregulated competition fostered calumnious rhetoric among male and female attendants to birth. However, the appropriation of difficult (“unnatural”) labor by men-midwives and surgeons antedated the rivalry between medical men and folk midwives over the domination of childbirth as such. McTavish, supra note 220, at 42-44.

232. Bar-On, supra note 129, at 64-66.

233. Moscucci, Ornella, The Science of Woman: Gyneacology and Gender in England 1800-1929 (Cambridge Univ. Press 1990); Blumenfeld-Kosinsky, supra note 212, at ch. 3. In certain periods and places, midwives enjoyed better professional recognition and trust, late eighteenth-century France and England, for example. Gelbart, Nina Rattner, The King's Midwife 68 (Univ. Cal. Press 1998);Evenden, Doreen, The Midwives of Seventeenth-Century London (Cambridge Univ. Press 2000).

234. Forbes, supra note 226, at 280. The full meaning of “pulling the head off” may be borne out by an eighteenth-century Irish chronicler describing the management of obstructed labor: “They take a rope and fast'ning it about the infant's neck they pull and hale it untill either they deliver the woman or pull off the child's head.” Fleming, John, Folklore, Fact and Legend, 6 Ir. J. Med Sci. 49, 57 (1953).

235. Lindemann, Mary, Medicine and Society in Early Modern Europe 222 (Cambridge Univ. Press 1999).

236. Forbes, supra note 226, at 127, 268. Midwives were also easy suspects of natural tragedies of childbirth, such as strangulation by the umbilical cord. See William Shakespeare, Macbeth 4.1.31.

237. Forbes, supra note 226; Ploss, H Erman Heinrich, Bartels, Max & Bartels, Paul, Woman: An Historical Gynaecological and Anthropological Compendium 85 (William Heinemann 1935).

238. Green, Monica, Women's medical practice and health care in Medieval Europe, 14 Signs 434 (1989).

239. Diderot, Denis, 1 Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers 87 (1777 ed.), http://gallica.bnf.fr/ark:/12148/bpt6k50533b.zoom.r=Diderot+Encyclop%C3%A9die.f144.langEN (last visited Nov. 17, 2009).

240. See Talmudic Encyclopedia, Yihus (Global Jewish Database (Responsa Project) of Bar Han U.) (DVD version 17+ 2009). Although European midwives and some theologians and moralists held that it was improper for male doctors to inspect and touch women's private parts, rabbis have ruled that the clinical setting renders such association between men and women decent. In Judaism, arguments of sexual impropriety have not been invoked in favor of female midwifery. Porter, Roy, A Touch of Danger: The Man-Midwife as a Sexual Predator, in Sexual Underworlds of the Enlightenment 206 (Rousseau, George Sebastian & Porter, Roy eds., Univ. N.C. Press 1988); Barilan, supra note 222.

241. See, e.g., Exodus Rabbah 1:19.

242. Talmud, Sotah, 11a.

243. Id.

244. Id.

245. Mishna Shabbat 18, 3 (Hebrew); Barilan, Y. Michael, On Nursing, Neighborly Love and the Doctor as a Friend, 20 Assia 115, 134 (2007) (Hebrew). I also discuss there the analogy to Socrates' self-image as a midwife. The Talmud (Shabbath 128) and Shulhan Arukh (Orah Ha'im, Mark 330) explain that the permit to desecrate the Shabbath for the sake of obtaining a midwife is derived from the psycho-spiritual needs of the birthing woman ().

246. Talmud, Sotah, 11a, supra note 242.

247. Baumgarten, Elisheva, Mothers and Children: Jewish Family Life in Medieval Europe 43, 44 (Princeton Univ. Press 2004). I know of one early rabbinic source (circa ninth cent.) disqualifying the expert opinion of a midwife. The rabbinic court did not accept a midwife's certificate of virginity as evidence to the impotence of her husband. Responsa Otzar Ha 'Geonim, Yevamoth, Mark 348.

248. Responsa Mahahtatz Hahadashot, Mark 92 (sixteenth cent.) (Hebrew), Responsa Maharsham, Pt. 2 Mark 164 & Pt. 6, Mark 147 (nineteenth cent.) (Hebrew).

249. Murphy-Lawless, Jo, Reading Birth and Death: A History of Obstetric Thinking 257 (Ind. Univ. Press 1998) (following Elaine Scarry).

250. Id. at 259 (citing Foucault, Michel, Power/Knowledge: Selected Interviews and Other Writings 1972-1977, at 8083 (Pantheon 1980)). For the “feminist historians and activists,” see id. at 256-64.

Not every country suffered from the struggle between professional medical men and folk female midwives. But it ordinarily affected the main nations of the West: the U.S., U.K., France and Germany. Each side tended to accuse the other party of hastiness and excessive interventions. I have no idea whether traditional Jewish midwives had their own distinct practice or practices and to what extent they were efficacious or harmful.

251. See, e.g., id. at 256-64.

252. Soranus describes in length the skills and virtues required of good midwives. Trust in the administration of abortifacients is one of them. Kapparis, supra note 24, at 86. This contrasts sharply with the lower social status of pre-modern European midwives. Gélis, Jacques, History of Childbirth 103–11 (N.E. Univ. Press 1991).

253. Ayyash, supra note 66; Deutch, A.H., Responsa “Pri Ha-Sadeh,“ Pt. D, Mark 50 (Tulma 1913) (Hebrew); Waldenberg, supra note 56, § 3; Steinberg, supra note 137, at col. 98.

254. Brague, Rémi, The Law of God: The Philosophical History of an Idea 6970 (Cochrane, Lydia G. trans., Univ. Chi. Press 2007). See also Lactantius, The Divine Institutions Bk. 4, ch. 25, www.newadvent.org/fathers/07014.htm (visited Apr. 6, 2009).

255. Nussbaum, Martha, The Fragility of Goodness (2d ed., Cambridge Univ. Press 2001); Lovibond, Sabina, Ethical Formation (Harv. Univ. Press 2002).

256. Palestinian Talmud, Shabbath 5:8 “.”

257. See Williams, Bernard Arthur Owen, Moral Luck ch. 1 (Cambridge Univ. Press 1981). In a similar vein, although the Talmud prohibits saving one's life by means of stealing, in order to prevent hesitation and delay in saving life, the Talmud also waives the duty of restitution for any damage resulting from life-saving action. Talmud, Baba Kamma 117b.”

258. Engelmann, George J., Labor Among Primitive Peoples 208 (J.H. Chambers & Co. 1884).

259. Sargent, C., Solitary Confinement: Birth Practices Among the Bariba of the People's Republic of Benin, in Anthropology of Human Birth 193 (Kay, M.A. ed., Davis, F.A. 1981); Ploss et al., supra note 237, at 1, 12.

260. Gélis, supra note 252, at 142.

261. Procopius, supra note 219, § 10.1.

262. El-Hacham, , Responsa “Rav Pe‘alim,” Even Ha-Ezer, Yore Dea, Pt. 4, Mark 14 (Hebrew). The position of el-Hacham on abortion is not clear. In this deliberation, he tends to forbid abortion of a formed embryo (after forty days) in the face of doctors' warnings that continued pregnancy is dangerous. Immediately after this conclusion, he embarks on a discussion on the risk of abortion to the mother. Perhaps he thinks that since either option is dangerous, passivity (inaction as opposed to active abortion) is preferable than active action. In another place he almost explicitly permits abortion of a bastard in order to preserve the honor of the family. Even HaEzer Mark 4). A few ancient sources also interpreted the prohibition on abortion as a means to defend both mother and child. St. Basil, Letter 182, 2 at http://www.newadvent.org/fathers/3202188.htm (last visited Mar. 6, 2009); Soranus, , Gynecology 6263 (Temkin, O. ed., Johns Hopkins Univ. Press 1956). Interestingly, famous Jewish physicians, who were not Halakhists, adopted the Hippocratic attitude to abortion. Pines, Shlomo, The Oath of Asaf The Physician and Yohanan ben Zabda (Israeli Academy Sci. & Humanities 1975).

263. Shorter, supra note 195, at 82-83; Loudon, Irvine, Death in Childbed from the Eighteenth Century to 1935, 30 Med. Hist. 1 (1986).

264. Kertzer, David, Sacrificed for Honor: Italian Infant Abandonment and the Politics of Reproductive Control 138–44 (Beacon 1993).

265. Orme, Nicholas, Medieval Children 124–26 (Yale Univ. Press 2001). Regarding the theological debate on the Limbo of infants, see the Catholic Encyclopedia, Limbo, http://www.newadvent.org/cathen/09256a.htm (last visited Oct. 11, 2009).

266. Kertzer, supra note 264.

267. Ryan, J.G., The Chapel and the Operating Room: The Struggle of Roman Catholic Clergy, Physicians, and Believers with the Dilemmas of Obstetric Surgery, 1800-1900, 76 Bull. Hist. Med. 461, 467 (2002). Between the World Wars, mortality from cesarean section in America ranged between 4-16%. Plass, E.D., Forceps and Cesarean Section, in White House Conference on Child Health and Protection 215–47 (New York 1933). The overall maternal mortality in the U.S. at the time was around 130 per 100,000. Speert, H., Obstetrics and Gynecology in America: A History 146 (Am. College Obstetrics & Gynecology 1980).

268. Halevi-Wosner, supra note 122, at Pt. 5, Mark 177 (Hebrew).

269. Barilan, supra note 245, at 282-83.

270. See supra p. 150.

271. The risk of Caesarian surgery reached that of natural birth during the 1950s. Churchill, supra note 212, at 16-18.

272. Hill et al., supra note 196.

273. Feinstein, Moses, Moshe, Iggrot, Pt. 3, Yore De'a, Mark 52 (Hebrew). Another rabbi who survived the holocaust off-handedly writes that midwives and doctors are not reliable in telling whether the head of the fetus has been born—a crucial issue in the question of embryotomy. Halbershtam, Yequthiel Yehuda, Responsa “Divre Yatziv,” Yore De'a, Mark 149 (Hebrew). See also Breisch, M.J., Responsa “Helqat Ya'akov,“ Orah Ha'im, Mark 218 (Hebrew).

For a sociohistorical analysis of the transformation of Halakhah from a “life-tradition” to a “literal and legal authority,” see Friedman, Menachem, How a Written Letter Has Triumphed Over a Living Tradition, in A Journey into Halakhah: Interdisciplinary Studies in the World of Jewish Law 196 (Berholtz, Amihai ed., Sifrei Hemed 2003).

274. Shorter, supra note 195, at 156-64. See also Midwives, Society and Childbirth (Marland, Hilary & Rafferty, Anne Marie eds., Routledge 1997).

275. Feinstein, supra note 273.

276. Personal communication by Rabbi Menachem Burshtein, head of the Pu'a Institute, Jerusalem (The rabbinic institute for infertility and pre-natal medicine).

277. Talmud, Sanhedrin, 57b on Gen 9:6. The translation of the Biblical verse here results from the displacement of a comma in the Hebrew; the KJV reads “Whoso sheddeth man's blood, by man shall his blood be shed.” The verse continues: “for in the image of God made he man”; this may shed light on the emphasis placed by Philo and the early Christian tradition on the shape of the fetus.

278. Most scholars agree that this code operates in the tradition of Natural Law. Novak, David, Natural Law in Judaism ch. 6 (Cambridge Univ. Press 1998). There are 7 Noahide Laws: 1) A ban on idolatry. 2) A prohibition against blasphemy. 3) A prohibition against murder. 4) A prohibition against theft. 5) Taboos on certain kinds of sex. 6) A prohibition against maiming animals for the sake of their flesh (Gen 9:3-4), and 7) A positive duty to construct legal and police systems that will enforce the Noahide laws.

279. Tosafot on Talmud, Sanhedrin 57b.

280. Gen 9:5.

281. According to Paul, the laws between one human being and another, such as “Thou shalt not kill,” result from the general command “And thou shalt love thy neighbor as thyself” (Rom 13:9), but The Book of Hinnuch, Marks 34, 200, 237 maintains that the prohibition on murder, as well as the commandment of neighborly love, is meant to promote civilized society and procreation. Those who threaten life may be killed (as a last resort).

282. Moshe, Igrot, Hoshen Mishpat, Pt. B, Mark 74 (Hebrew).

283. See supra text accompanying note 179.

284. On the discussion of end-of-life suffering, see Barilan, supra note 120.

285. Waldenberg, supra note 56 in response to Feinstein in Moshe, Igrot, Hoshen Mishpat, Pt. B, Mark 69 (Hebrew). Rabbi Waldenberg prefaces his view that no one has claimed that abortion without appropriate justification is permitted by Jewish law.

286. Bachrach, supra note 33, and Emden, supra note 33.

287. See supra p. 164.

288. Igrot Moshe, supra note 282.

289. See supra text accompanying notes 58-59.

290. Igrot Moshe, supra note 282. This argument had been raised earlier. But see Tzitz Eliezer, 8-9, Mark 51, ch. 2b (Hebrew), which provides an extensive explanation of why citing such an error is not reasonable. See also Tzitz Eliezer, Pt. 14, Mark 100 (Hebrew).

291. See supra note 133 and accompanying text.

292. Igrot Moshe, supra note 282.

293. See Emden, supra note 33.

294. Igrot Moshe, supra note 282.

295. See supra p. 120.

296. Igrot Moshe, supra note 282.

297. See supra note 262 and accompanying text.

298. Igrot Moshe, supra note 282.

299. Schwartz, Y.T., Ma'aneh La-Lgrot, Introduction (Gross Press 1974) (Hebrew). Feinstein believed that the duty of the poseq was to guide the public, even counter to the “truth,” at least as positively constructed (“truth in the eyes of Heaven”—is the rabbinic expression). See a discussion in Sagi, A., These and Those: The Significance of Halakhic Discourse 102–06 (Ha-Kibbutz Ha-Me'u'had Press 1996) (Hebrew). On very rare occasions, other posqim have also raised allegations of forgery in order to cope with texts that are not in line with their own approaches. Still, I believe that this juxtaposition of several such arguments is unique in rabbinical literature.

300. Lichtenstein, Aaron, Abortions—Halakhic Aspects, 21 Tehumin 93 (2001) (Hebrew).

301. 2 Steinberg, supra note 137, at vol. 2, col. 86.

302. Id.

303. Waldenberg, supra note 56, at Pt. 14, Mark 100. The justification is that, at this stage, the fetus “is complete.” Waldenberg is not referring to fetal viability, but apparently means that “its hair and nails are fully formed,” a commonplace rabbinic (and clinical sign of maturity, e.g., Aruch, Shulhan, Orah Haim, 330:7 and Responsa “Tzitz Eliezer,” Pt. 9, Mark 28. He notes that “this is an unfounded opinion,” and accordingly does not prohibit abortion even thereafter (!), but he merely states that it is a “more serious” matter. His approach illustrates the casuistic, non-deontological nature of individual halakhic discourse.

304. Waldenberg, supra note 56, at Pt. 14, Mark 101.

305. Maimonides, Eight Chapters, Introduction.

306. See Sinclair, Daniel, Tradition and the Biological Revolution 96 (Edinburgh Univ. Press 1989); Sinclair, Daniel, The Legal Basis for the Prohibition of Abortion in Jewish Law, 15 Isr. L. Rev. 109 (1980).

307. 4 M. Herschler, The Book of Halakhah and Medicine 113 (Regensburg Inst. 1985) (Hebrew).

308. Bleich, David, Stem Cell Research, 36 Tradition 56 (2002).

309. Steinberg, supra note 137, at col. 82; Zilberstein, I., Torat Ha-Yoledet 299 (Bnei Braq 1983) (Hebrew).

310. Talmud, Sanhedrin 73a. This is also commonplace in many legal systems throughout history. Kopel, David B, Gallant, Paul & Eisen, Joanne D., The Human Right of Self-defense, Byu J. Pub. L. (forthcoming 2008).

311. Maimonides, Mishne TorahHilchoth Rotzei'ah 1:7 on Deut 25:12 (Hebrew). (Deuteronomy 25:12 mentions a woman who hits a man's genitals, thus threatening his dignity and fertility, not his life. Nonetheless it is taken as paradigmatic of the duty to kill a threat to life (as a last resort). This is what Maimonides says in the paragraph cited (and also Ha-Hinnukh and others)).

312. Barilan, Y. Michael, From imago Dei in the Jewish-Christian traditions to human dignity in contemporary Jewish law, 19 Kennedy Inst. Ethics J. 231–59 (2009).

313. See Barilan, Y. Michael, Abortion Health Care Ethics in the Era of Globalisation (Chadwick, R.et al. eds., Sage 2009).

314. Talmud, Sanhedrin 75a.

315. Steinberg, supra note 137, at col. 74-77.

316. Talmud Yerushalmi, Nedarim 9:4 (Hebrew).

317. Lev 19:18.

318. Gen5:1.

319. Carr, David M., The Erotic Word: Sexuality, Spirituality and the Bible ch. 1 (Oxford Univ. Press 2003); Eilberg-Schwartz, Howard, God's Phallus and Other Problems for Men and Monotheism 215–22 (Beacon 1994).

320. See Talmud, Yoma 54a.

321. Following Talmud, Ketuboth 8a.

322. Shulhan Arukh, Even Ha-Ezer 1:13.

323. This subject has been extensively discussed in the responsa on abortions cited in this article. See also Fertility and Sterility, in Steinberg, supra note 137, at vol. 5. See Braun, S-Z., Sefer She'arim Metzuyanim be-Halakhah, Pt. 4, at 224 (New York 1952) (on whether the use of contraceptives for a woman, even one who has never been pregnant, is only permitted in order to avoid the pain of pregnancy and birth, or is permitted in any case).

324. This negative formulation of the Golden Rule of neighborly love is traceable to the Book of Tobit 4:16.

325. Talmud, Shabbath 31a; Midrash Avoth d'Rabbi Nathan 26 (Schechter, Solomon ed., Feldheim 1945).

326. Cohen, Jeremy, Be Fertile and Increase, Fill the Earth and Master It: An Ancient and Medieval Career of a Biblical Text ch. 3 (Cornell Univ. Press 1989).

327. See Gorman, supra note 95, at 54-58.

328. Talmud, Baba Metzia 62a.

329. Epistle of Barnabas 19:5.

330. See also Sefer Ha-Hinnukh, commandment 243. For a positive phrasing, see Maimonides, , Laws of Mourning 14:1.

331. Simon, Yves, The Tradition of Natural Law: A Philosopher's Reflection 97109 (Fordham Univ. Press 1967).

In this case as well, we may see that Jewish religious law is founded on a combination of empiricism and positivism, and not on the tradition of natural law. Compare the law permitting the execution of a persecutor, the rule “that thy brother may live with thee,” and Sefer Ha-Hinnukh commandment 243, to the opening passage of ch. 14 in Thomas Hobbes's Leviathan. Hobbes links individual rights under natural law to the need for self-defense. Philosophers in the Aristotelian tradition have discussed rights in a context of perfect individual morality.

Rabbi Bleich, supra note 309, raises the supposition that it is not forbidden to harm a microscopic fetus, which cannot be seen with the naked eye, basing his words on the halakhic aspect of the rule De minimus non curat lex. This supposition is empiricist and phenomenological in nature.

332. Bereshith Rabbah 24:7 (Hebrew) “.” Cf. Kant's criticism of the Golden Rule, Groundings to the Metaphysics of Morals (James W. Ellington trans., Hackeft 1981); Sidgwick's criticisms in The Methods of Ethics, supra note 158, at 380; and Hare, Richard Mervyn, Freedom and Reason (Oxford Univ. Press 1963).

333. See Bakhar, B.Z., 1 Agadot Ha-Tannaim 131 (Jaffa 1921) (Hebrew).

334. Tosefta, Yebamoth ch. 8.

335. See supra p. 125.

336. Cf. John 15:12B. Härrtng, Bernhard, 1 Free and Faithful in Christ 236–37 (Paulist Press 1989).

337. Barilan, supra note 120.

338. See supra notes 144-46 and accompanying text.

339. See supra § IV, p. 138.

340. See supra text accompanying footnotes 178-81.

341. Talmud, Yevamoth 64b.

342. Nevertheless, it is obvious to everyone that choosing to remain a bachelor does not constitute an offense similar to robbery or murder, and the Talmud itself recounts that the aforementioned Ben Azzai lived a single life out of dedication to the Torah. Ben Azzai saw procreation as more important an element in the respect for the Image of God in man than neighborly love. When confronted by his colleagues about the incompatibility between his teachings and chosen celibacy, he retorted with a sincere appeal to personal choice “What can I do, my soul is craving for Torah.” Tosefta, Yevamoth, ch. 8. See LORBERBOIM, supra note 129, at 398 ff. (discussing the possible association between Ben Azzai's premature death and his status as a bachelor). The Midrash says that the peoples annihilated in the deluge of Noah sinned by refraining from procreation. Genesis Rabbah 30, 2 & 32, 5.

343. Feinstein, M., Responsa “Iggrot Moshe,” Pt. 3, Even HaEzer Mark 24 (Hebrew); Waldenberg, supra note 56, at Pt. 10, Mark 25, ch. 10.

344. A similar institution was syneiskatism. Bailey, Derrik Sherwtn, Sexual Relation in Christian Thought 33 (Harper & Brothers 1959). The Hassidic movement introduced a similar theme of celibate marriage. Blale, David, Eros and the Jews 137–41 (Basic Books 1992). I do not know how prevalent this custom is today. In any event, the Hassidic leaders are in the forefront of the extremist opposition to abortion.

345. Genl:28 & 9:1.

346. Cairns, David, The Image of God in Man (Phil. Lib. 1953); see Barilan, supra note 313.

347. Brown, Peter Robert Lamont, The Body and Society: Men, Women and Sexual Renunciation in Early Christianity 56 (Colum. Univ. Press 1988); Ozment, Steven, When Fathers Ruled: Family Life in Reformation Europe 913 (Harv. Univ. Press 1983); Pagels, Elaine H., Adam, Eve, and the Serpent 81 (Vintage 1988).

348. Boyarin, Daniel, Carnal Israel: Reading Sex in Talmudic Culture (Univ. Cal. Press 1993).

349. Talmud, Sanhedrin 36b.

350. See Talmud, Yevamoth 79a.

351. Tzadok Ha-Cohen of Lublin, Tzidkat Ha-Tzaddik 139 (Mark 201) (Kitov, ed., Jerusalem 1986). Maimonides might have interpreted this matter differently: Kreisel, Howard, Maimonides' Political Thought: Studies in Ethics, Law and the Human Ideal 179 (St. Univ. N.Y. Press 1999)—apparently according to the Talmud in Hagigah 14b, which considers Ben Azzai to have been “virtuous.”

352. Posquieres, Avraham ben David, Sefer Ba'alei Hanefesh 126 (Kapah, ed., Jerusalem 1964) (Hebrew).

353. Stow, K.R., The Jewish Family in the Rhineland in the High Middle Ages: Form and Function, 92 Am. Hist. Rev. 1085, 1105 (1987). Incidentally or not, the same early sources who offer very permissive halakhic frameworks for abortion (e.g., Trani, supra note 127) are also distinct in their positive and unapologetic encouragement of sexual life, its pleasurers, and erotic mutuality. Stow, supra at 1103.

354. Stow, supra note 353, at 1103.

355. Criminal Code Ordinance, 1936.

356. Palestine was not a colony. Following the First World War, England accepted a temporary mandate on Palestine as a trust from the League of Nations.

357. Amendment of the Penal Code Law (Termination of Pregnancy), 1977. The complete penal code along with the relevant clauses is available at http://www.moital.gov.il/NR/exeres/9E64B5F5-172D-47AO-B901-51704068FB8F.htm (last visited Nov. 21, 2009) (Hebrew). The story behind this law is narrated by Schiff, supra note 23, at 214 ff.

358. Glendon, supra note 14, at 10-13. A trove of updated information on abortion and related issues the world over are found in the website of the Guttmacher Institute. http://www.guttmacher.org/sections/abortion.php (last visited Oct. 28, 2009).

359. Simon, supra note 43.

360. Ordinance of the general director of the ministry of health 76/94 (28/12/94). www.health.gov.il/pages/default.asp?maincat=49&catid=350&pageid=2606 (last visited Mar. 6, 2009) (Hebrew).

361. Gross, Michael L., Abortion and Neonaticide: Ethics, Practice and Policy in Four Nations, 16 Bioethics 202 (2002). The most up-to-date statistics on abortion in Israel are found in the booklet Lawful termination of pregnancy 1990-2007” issued in 11 2008 by the Israeli Ministry of Health, http://www.health.gov.il/download/pages/abortion2007.pdf (last visited Mar. 12, 2009) (Hebrew).

362. Simon, supra note 43.

363. Lieberman, Y.R. & Levit, Y., Causing the Death of the Viable Fetus, 111 Harefuah 134–35 (1998) (Hebrew).

364. My acquaintance with the facts in this paragraph comes from my personal involvement with the committee, whose report was published in 2008, Internal Regulations, Israeli Ministry of Health, 23/07, http://www.health.gov.il/download/fonns/a3115_mk23_07.pdf (last visited Oct. 29, 2009).

365. Commonplace in Halakhah. As a matter of fact, all premodern systems of calculation start with conception. It is a habit of modern medicine to count from the last period.

366. Israel Penal Code, 1980, cl. 314(1).

367. See supra p. 105.

368. See also Wm. Robert Johnston, Historic Abortion Statistics, Israel, http://www.johnstonsarchive.net/policy/abortion/ab-israel.html (last visited June 30, 2008); Legal Abortion in Israel 1990-2007 (Israeli Ministry of Health, Informatics Services, 11 2008), available at http://www.health.gov.il/Download/pages/abortion2007.pdf (last visited Nov. 21, 2009). Israel ranks third lowest (before Greece and Belgium) relative to EU countries. All statistical details given in this section are derived from these sources.

A new report has been issued by the Israeli Ministry of Health, according to which, the overall abortion rate in Israelis the lowest relative to the rates of all EU members (129 per 1000 live births relative to an average of 247 per live births). Better educated women abort less. The highest rate of abortion is among women of Ethiopian origin (41 abortions per 1000 women, compared with an average of 11 per 1000 women among Israeli born Jewesses). The report shows that 54% of abortions are performed on the grounds of being “out of wedlock”; 17% are due to physical or psychological risk to the mother; and 17% are for “fetal defects.” The official report is not yet available online. The data are taken from the lay media, Ynet website http.//www.ynet.co.il/articles/0.7340.L-3829146,00.html (last visited Jan. 4, 2010).

369. See also http://www.ynet.co.il/aiticles/0.7340,L-322408,00.html (last visited June 30, 2008) (Hebrew).

370. Amendment to the criminal code, 1966. In reality, all “medical abortions” were practiced in Israel following the absolute discretion of the doctors involved. Bachi, R., Abortion in Israel, in 1 Abortion in a Changing World 274 (Hall, Robert E. ed., Colum. Univ. Press 1970).

371. Israel Penal Code 1980, cl. 139.

372. See supra text accompanying note 253.

373. Deutch, supra note 253, at 24b. This opinion is shared by other posqim as well; see Steinberg, supra note 137, at col. 82 n. 86. To date, I have not found any evidence of women in a similar situation who, with their own hands, killed the fetus which had not yet entirely emerged from their vitals. There is, however, evidence of cases in which such desperate actions were, at least, suspected. For example, Robertson, James C., Materials for the History of Thomas Becket vol. 1, 504 (Rolls 1875) (Latin). In another miracle attributed to St. Becket, a woman in labor lay exhausted, with the fetus half in and half out of her body. The fetus “disappeared” and the woman recovered. Id. at 393-94.

374. Parfit, Derek, Innumerate Ethics, 7 Phil Pub. Affairs 285 (1978); Kamm, Francis M., Intricate Ethics: Rights, Responsibilities and Permissible Harm 2227 (Oxford Univ. Press 2007).

375. Healthcare services provided through the National Health-Insurance Act, 1994.

376. Legal Abortion in Israel, supra note 368, at 16.

377. Israel Penal Code, 1980, cl. 316.

378. Interestingly, the law does not specify the persons initiating the deliberation. Abortion is cast as a kind of therapy offered by the doctors. The law says “the committee may, following the informed consent of the woman, to approve of the termination of pregnancy.” Israel Penal Code, 1980, cl. 316. “The committee will not approve of termination of pregnancy without allowing the woman to appear in person and present her case.” Id. at cl. 316.2. This is the only part of the law which grants the woman legal power. Hence, abortion is construed as a medical intervention, initiated by doctors, requiring only the informed consent of the woman. Another interesting point is that approval of a guardian is not required in the case of a minor (at all ages). Id. at cl. 316.2.

379. Id. at cl. 315.

380. Id. at cl. 315.3. When the 1977 amendment was enacted, the means of prenatal diagnosis were still quite primitive, and the age of forty was considered the threshold of significant risk of bearing a child with Down Syndrome. For the same reason, the amendment speaks of a fetus which is “likely” to suffer from a defect. It is possible that, had the amendment been drafted today, the legislator would have adopted clearer phrasing. It should be noted that Plato considered this age as the threshold for enforced abortion by the State. Plato, The Republic Bk. 5, available at http://classics.mit.edu/Plato/republic.6.v.html.

381. This definition covers any married woman who conceived by a man who is not her husband. Currently, there is no legal way to enforce paternity genetic tests, nor is the committee authorized to investigate an “out-of-wedlock” declaration by any woman.

382. Amendment of the Penal Code Law (Termination of Pregnancy), 1977, supra note 357, at cl. 315.3.

383. Schiff, supra note 23, at 215.

384. Supra text accompanying note 301.

385. Shrage, Laurie, Abortion and Social Responsibility: Depolarizing the Debate ch. 1 (Oxford Univ. Press 2003).

386. Davis, J., From Zetiztuv to Sidi: The Right to Compensation for the Tort of Wrongful Birth and Wrongful Parenthood, The Right to Life with no Malformations 307–76 (Davis, J. & Sahar, A. eds., Dionon 2007) (Hebrew).

387. Id.

388. Israel has no constitution, but some laws are “fundamental” and bear constitutional-like authority. The law in question is the Law on the Dignity of the Person and His Liberty (1992).

389. Sperling, D., On wrongful birth and the Reason in the Reasons for Termination of Pregnancy, 27 HaMishpat 34 (2009) (Hebrew).

390. See Gross, supra note 361.

391. Id.

392. Id.

393. Gross, Michael L., Avoiding Anomalous Newborns: Preemptive Abortion, Treatment Thresholds and the Case of Baby Messenger, 26 J. Med. Ethics 242 (2000); Gross, supra note 361.

394. Jewkes, R., Garcia-Moreno, C., Sen, P., Sexual Violence, in World Report on Violence and Health ch. 6 (Krug, E.G., et al. eds., WHO 2002), available at http://www.who.int/violence_injury_prevention/violence/world_report/en/full_en.pdf (last visited Oct. 28, 2009).

395. UMFPA, State of World Population 2004: Adolescents and Young People, http://www.unfpa.org/swp/2004/english/ch9/index.htm (last visited Oct. 28, 2009).

396. See text supra p. 133.

397. Waldenberg, supra note 56, at Pt. 9, Mark 51 and Pt. 14, Mark 100.

398. Civil Appeal 413/80, Jane Doe v. John Doe [1980]. The judges were divided as to the extent of involvement proper to the husband. The ruling was written by Justice Alon, an expert on Jewish law. He cites Rabbi Lichtenstein, supra note 300 and rules that the Committee is supposed to act according to criteria of intimate advisory flexibility, and that its decisions cannot be appealed against on the judiciary level. See Sinclair, Daniel, Jewish Biomedical Law: Legal and Extra-Legal Dimensions 67 n. 191 (Oxford Univ. Press 2004).

399. See, e.g., Tov, Midrash Sechel on Genesis 31, Midrash Tanhuma, Buber ed. on Tractate tzav Mark 27.”

400. See an article by Bazak, Justice, Cesarean Section After Brain Death 17 (65-66) Assia 13 (1989) (Hebrew); see also a discussion in Sinclair, supra note 96, at 65-66.

401. See supra text accompanying notes 127, 132 & 136.

* M.D., M.A. Department of Medical Education, Sackler Faculty of Medicine, Tel Aviv University, Tel Aviv, Israel. Email: YMBarilan@gmail.com. This research has been supported by the Lior fund, in memory of the late Dr. Sima Lior, Tel Aviv and also by a special vice-president grant, Tel Aviv University. I wish also to thank the editors of the Journal of Law and Religion for their very helpful critical comments, guidance and encouragement.

** Especially on my mind is a nameless child who was aborted in week thirty-six because of hipospadias associated with the loss of part of the short arm of chromosome 11 (WAGR Syndrome). Not having even a tombstone of his own, may this paper commemorate him.

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Journal of Law and Religion
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  • EISSN: 2163-3088
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