May 12, 2022

With a subject like abortion, where people are easily controlled by their passions, it becomes easy to base our opinions on what we “feel” as opposed to logical thinking about the issue.  Thousands of years ago, Jewish Sages were dealing with the same issue of when/if/how abortion should be permitted or forbidden.  With the national chaos regarding a potential reversal of Roe v. Wade, this ancient wisdom and unique understanding is more valuable than ever.

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The ancient Sages were supported by their communities, and so were able to devote great thought about many important issues, including abortion.  To understand their conclusions, the entire argument must be followed.

In Judaism, there is a huge importance placed on pro-creation, based on the blessing found in Genesis 1:28 that we “should be fruitful and multiply” that is repeated to Jacob (Gen 35:11).  But we also believe that sexuality is not only for pro-creation, but for pleasure based upon the words of Exodus 21:10, “a man must not diminish his wife’s duty of marriage”.  It is accepted as far back as 2000 years ago that the obligation to pro-create is upon the man (the commandment is given to men), and not to women. 

“The man is required to be fruitful and multiple, but not the woman.” (Mishna Yevamot 6:6).  This is a recognition of a woman’s rights, and a man’s responsibility.  It is her body, and she should not be forced to make a decision between having children or being celibate.  In Judaism, while there is a commandment for pro-creation, there is also a commandment for pleasure, and so no argument can be devised against or for abortion based on human sexuality being used only for the purpose of creation (this is different than many other faiths).   

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The traditional set of laws regarding abortion begin with the legal status of the fetus.  The Talmud clearly states, “the fetus is regarded as one of the limbs of the mother” (Gittin 23b).  This understanding is based on specific biblical understandings.  If an animal is bought, and then found to be pregnant, the future animal belongs to the new owner. (Talmud Bava Kama 78a).  If a pregnant woman converts, her child does not have to go through conversion upon birth (Talmud Yevamot 78a), and a fetus has no rights of acquisition (Talmud Bava Batra 142a).  Most importantly, it says in Exodus 21:22 that if a pregnant woman is hurt by a man so that her unborn baby dies, the man is to be punished by paying “what the judges determine”; but if that she dies then the perpetrator is executed.  The death of a fetus is a tort charge, punishable by monetary relief; while the death of a mother is a capital crime.  This biblical text demonstrates that killing a fetus is criminal, although not a capital crime.

At first glance, it might seem that since the fetus has no legal rights, abortion would be allowed in any instance.  This is not the case.

From the time of ancient Sages through the Middle Ages until today, it is a Jewish law that a person has no right to inflict damage upon the human body, even upon himself.  We are responsible for every part of our body as a Divine gift.  Based on this understanding, since the fetus is considered a “limb” of the mother; abortion by choice is forbidden because it is equivalent to hurting one’s self.  

With rights always comes responsibility, and so from a traditional Jewish perspective, abortion is criminal without basing the argument on anything to do with the rights of the fetus.  This part of the argument is based entirely on the rights and responsibilities of the woman.

But Judaism and the Rabbis of 2000 years ago additionally take other ethical considerations into the decision making process, and has a concept known as “secrets of God”.  This is the understanding that there are certain issues that we can theorize about, but can never really know for sure.  They are not unknown, they are unknowable. 

One of these secrets is “ensoulment”:  at what point does the soul enter the body?  There is a lot of discussion and varied opinions on it among the Sages and texts.  Some say that ensoulment happens at conception; others at 40 days; and still others say that there is no soul until the crown of the baby is exposed.