A great deal of discussion on the abortion issue has centred around the question of religious attitudes and interpretations. In this respect. New Zealanders are familiar with the stands taken by the Roman Catholic and Protestant Churches, but little acquainted with Orthodox Judaism's view. To appreciate the latter it is necessary to turn to the Bible, to Rabbinical interpretation and to the Halacha (the entire body of Jewish law). This article draws heavily on David Feldman's book "Marital Relations, Birth Control and Abortion in Jewish Law" which uses the above-listed sources in order to explicate and clarify for Jews and non-Jews Judaism's stand on abortion.

As there is no direct injunction in the Bible against abortion, its biblical status must be inferred from the following question: is foeticide (ie. abortion) equal to homicide? The first consideration is whether the foetus is a human being. The Talmud (the Jewish oral law) clearly states that a foetus, prior to birth, is regarded as being like the "thigh of his mother (¹) and is therefore not considered viable until 30 days after its birth. However this does not negate the chance for the foetus to attain viability.

The foetus's status is more definitely established in Exodus (21:22) "If men strive and wound a pregnant woman so that her fruit be expelled, but no harm befall (her) then he shall be fined as her husband shall assess....but if harm befall (her) then you shall give life for life". This passage clearly indicates that foeticide is not sufficient grounds for capital punishment.

In contrast to Exodus the Septuagint (the oldest Greek version of the Old Testament), either as the result of a variant text or mistranslation makes a distinction between the foetus unformed and formed when it states: "If men strive.....if there is no form to it he shall be fined,...but if there is form to it you shall give life for life".

The Christian translation is based upon this version and thus maintains that there was a Biblical argument for equating foeticide with homicide, at least when the foetus is formed. From this point on however, Christianity and Judaism take separate paths. Judaism looks to the Halacha for further interpretation.

A Moral Question

Although the above-quoted passage distinguishes between foeticide and homicide, Rabbi Ishmael's (2nd century CE) interpretation of one of the commandments to the sons of Noah puts the issue in a different frame of reference. Ishmael understands the injunction in Genesis 9:6: "He who spills the blood of man, by man, his blood shall be spilt" to mean that, "he who spills the blood of a man within a man (ie the foetus within the woman), his blood shall be spilt".

Thus Ishmael believed that for the sons of Noah (the nation of the world), foeticide is homicide. However it must be made clear that Ishmael's interpretation is not legal, because it plainly contradicts the passage in Exodus; it is a moral interpretation. For both Jews and non-Jews the question of equating foeticide with homicide is a moral one.

Further evidence of this non-legal equation of foeticide with murder can be found in the Talmudic maxim: "Violate for him this Shabbat that he may keep many Shabbats", which is applied to the foetus. Since Shabbats may only be violated for Pikuah Nefesh (saving a life), the violation of Shabbat for a foetus constitutes Pikuah Nefesh. Thus the foetus is considered to be a nefesh, a living person.

We therefore find a distinction in Talmudic sources between the legal status of abortion (not a legal crime) and its moral status (morally forbidden). Hence in the Middle Ages some rabbis ruled abortion as not punishable but forbidden.

Having determined the legal and moral status of foeticide we must ask if there are any circumstances which may alter it. Does a threat to the life of the mother justify abortion? The Mishna (the section of the Talmud consisting of the edited oral laws) states unequivically: "If a woman has (life threatening) difficulty in childbirth, one dismembers the embryo within her ...because the life takes precedence over its life. Once its head has emerged it may not be touched for we do not set aside one life for another".

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.

Flexibility

The Halacha, then, does not consider foeticide as homicide although it considers it a grave, moral transgression against potential life. There can be extenuating factors which permit abortion, which is not the case with homicide (eg if a man is ordered to kill another, he may not obey). In the definitions of these circumstances, opinions vary from only danger to the mother's life to the more lenient consideration of the mother's feelings, even if unrelated to the liklihood of her death.

From the brief examination of Judaic legal material it becomes apparent that the attitude of the rabbis towards the question of abortion was much more flexible, and as such, more complex than one associates with modern-day orthodoxy, either Jewish or Christian. While not all the rabbis of the Middle Ages were necessarily liberal, the legal precedent for abortion already existed in the Bible and the Mishna.

Consequently, rather than taking a rigid uncompromising position Judaism presents a whole spectrum of views on abortion, ranging from ultra-conservative to ultra-liberal. However within Judaic law we find a continuous "liberal" stand which provides the basis for a contemporary position that favours abortion.

Dianne Davis