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