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Salient. Newspaper of the Victoria University Students' Association. Vol 41 No. 15. July 3 1978

The "Pursuer" Theory

The "Pursuer" Theory

Moses ben Maimonides (a major Jewish scholar, theologian and rabbi) expanded the Mishna's interpretation by adding that the foetus endangering a mother's life should be considered a "pursuer", and in the case of a man pursuing another in order to kill him, the pursuer may be killed first to defend the victim. This argument advanced by Maimonides produced numerous controversies because it could either complement the Mishnaic principle that the mother's life has prededence or reject it by maintaining that except when it is a "pursuer" the life of the foetus has equal status.

Consequently two positions emerged out of this complication. The first position upheld the strict interpretation which requires the foetus to pursue (endanger life) the mother for abortion to be permissible. The rabbis who so ruled developed the idea of pursuer to include suicidal tendencies in a pregnant woman or when it might endanger an existing child (due for instance to a change in the pregnant mother's milk). In all of these cases the foetus is considered a "pursuer" and may be aborted.

The second position upheld the Mishna's injunction that, "her life takes precedence over its life". These rabbis held without compromise that foeticide is not homicide, but sought to determine what circumstances other than danger to life and health constituted just grounds for an abortion. In other words, they were prepared to grant abortion in some cases where the foetus is not actually a "pursuer".

These liberal rabbis take their precedent from a rather brutal case cited in the Mishna: "A woman who goes forth to be executed, we do not wait for her to give birth". This ruling refers to a woman executed for a capital crime who is found to be pregnant after the judgement. In the Talmudic discussion Rabbi Shmuel argues that if the woman is going to be executed while pregnant, an abortion should be performed beforehand so that the execution does not cause extrusion of the foetus to the disgrace of the woman. Thus, abortions are permitted in order to save the woman from shame - certainly a much lesser severity than suicidal tendencies.

The rabbis in the Middle Ages further explain that the reason for executing the woman immediately, which seems additionally cruel, is to prevent her from the suffering of awaiting her own execution. Even though she is to be executed, her human feelings are paramount. In no case is there an argument that the foetus has a right to life.

This brings us back to the claim made at the beginning that the foetus is not regarded as an independent being. One might object that the foetus is, in effect, executed with the mother and is being judged guilty. However just as the women's hand or foot has no judicial character and cannot be deemed to be guilty, so the foetus has no share in the woman's guilt. Rather it has no existence at all independent of its mother. Only the mother's feelings are taken into consideration.