Tuesday, February 5, 2019

Life Before Birth

Life Before Birth      
The right and wrong of life itself is fast becoming the crucial moral and legal issue of our society. 
When does life itself begin, and when does it end? 
May I prevent a life, may I hasten its end? May I tamper with the way in which we begin life? 
Can I change my genes, so that my descendants will all have blond hair and blue eyes and be six-feet tall?
            Surely a whole list of names come to our mind with these thoughts- from Karen Quinlan, to Dr. Kevorkian, to  Dr. Jiankui and  the first designer gene babies -- names and cases that were undreamed of half a century ago.
            Can we find guidance in Jewish sources, sources going back two, three thousand years, for issues that face people today, in our Jewish 58th century, the gentile' s 21st century?
            Abortion has come to the fore as an issue again, as state legislatures weigh in on the topic of late term abortion.          
            Clearly, the most vocal answers, the ones that get in the press, are either the complete “pro-life” anti-abortionists, for whom all abortion, no matter the reason, is murder, or the very abstract “pro-choice” for whom, it seems , is very simply, a matter of a woman’s choice.
            What is the historic Jewish stance on this painful issue.
            For the Catholic Church, as for many evangelical Protestant groups, abortion is a grave sin, and for many, it is seen as murder.
            In classic Christian doctrine, unique to the Christian fathers, and borrowed from Greek mystic movements, the moment the infant is conceived, the soul, the eternal, individual soul, enters the egg, and from that moment on, we have a full fledged human , with all rights and safeguards.
In order to make light of the Jewish teachings, one must first look at Jewish teachings on protecting children at birth.
 Jews were very well known in antiquity for an exceptional trait: we did not abandon deformed infants.  You well know the Spartan practice of abandoning deformed babies to the wolves. Only fully healthy children could serve as warriors; therefore, any infant less than properly formed was doomed.
Here is the law as it was recorded in The Twelve Tables of Roman Law: "Deformed infants shall be killed" (De Legibus 3.8). It was clear in Roman law that any baby less than fully desirable could be disposed of freely , and that applied, very often to baby girls who could be exposed to the beasts. Roman law gave the father “ius paterfamilias”, absolute power of authority over life and death of any of his children. Jewish concern for the newborn was abhorrent to the Romans. Thus, the Roman historian, Tacitus condemned Jews for their opposition to infanticide. It was another proof of the  "sinister and revolting practices" of the Jews.( Histories 5.5.)

Having said that, we can now turn to our topioc:
So, what is our stance? What are our sources?

Our key text is from Exodus, the portion of Mishpatim, Chapter 21, in the context of assault and battery and accidental and intentional murder.It is the context of the famous “ eye for eye.”

וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃
When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may exact from him, the payment to be based on reckoning.
וְאִם־אָס֖וֹן יִהְיֶ֑ה וְנָתַתָּ֥ה נֶ֖פֶשׁ תַּ֥חַת נָֽפֶשׁ׃
But if other damage ensues, the penalty shall be life for life,
עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת שֵׁ֑ן יָ֚ד תַּ֣חַת יָ֔ד רֶ֖גֶל תַּ֥חַת רָֽגֶל׃
eye for eye, tooth for tooth, hand for hand, foot for foot,
כְּוִיָּה֙ תַּ֣חַת כְּוִיָּ֔ה פֶּ֖צַע תַּ֣חַת פָּ֑צַע חַבּוּרָ֕ה תַּ֖חַת חַבּוּרָֽה׃ (ס)
burn for burn, wound for wound, bruise for bruise.
Mishpatim ( Exodus 21:22)

The Catholic Church based its position on the Greek translation , Septuagint, in which the text seems to deal of death to the fetus, but this does not appear to be our text.  
            The Torah speaks only of a miscarriage, caused in a fight. If the fetus is killed, the aggressor pays only a penalty. He has not committed murder, nor has he caused an accidental death. By implication, in Jewish law, the fetus is not yet a living independent human being.

We go to our next source, the Mishnah :
If a woman is in hard travail, one cuts up the offspring in her womb and brings it forth member by member, because her life comes before the life of her foetus. But if the greater part has proceeded forth, one may not set aside one person for the sake of saving another.
As for the penalty for hitting the pregnant woman, the Talmud Bava Kama 40a makes it clear that what is involved in this fight is a valuation of the fetus in terms of material damages, not in terms of taking a life.
            In later Jewish law, also, in the Mishnah and the Talmud, the embryo is not yet a living entity. The fetus has no legal rights; it can not inherit property, nor can any purchase be made in its name, for one can make no legal transactions on behalf of someone who does not yet exist. In Jewish law, the fetus is ubar yerech emo--the fetus is a part of the mother, just as her thigh is, or any other organ, stomach, heart, bones.
            The Talmud explicitly calls for abortion, up to the moment of birth, for the sake of the mother's life, because clearly, as Rashi explains, before physical birth, it is not considered alive. Only after birth is it alive." Clearly, terminating a pregnancy is not in and of itself an act of murder.
            From this perspective, Rabbis required abortion in the case of physical danger to the mother, or even mental danger to the mother even up to the moment of birth. The Rabbis actually considered the fetus to be the equivalent of a “ rodef”, a very harsh term, a word used to indicate one intent upon killing another—the fetus, in this case is the “hunter”. Other rabbis used it to indicate “ rodef” as, even though Heaven itself is pursuing the mother, as if to kill her, we must perform an abortion. There are those Rabbis who justified fear of pain, or mental anguish or shame as legitimate grounds for abortion in earlier stages. In all cases, the operative concept is that the active ( mother) takes precedent over the  potential ( fetus). However, the moment, any part of the fetus emerges, whether naturally or by Caesarian, it is at that moment, considered a full human being who must now be brought to full birth.
       Great sages authorized abortion in cases which involved, not only the life, but also the mental and emotional health of the mother. The great philosopher, Ramban ( Nachmanides), himself performed an abortion for a gentile woman in order protect her form future sterility. They were, clearly, more lenient at the earlier phases of pregnancy, before the fetus began to take recognizable shape.
As an example of modern application, in the State of Israel, abortion is allowed with the approval of a termination committee if the woman is unmarried, because of age (if the woman is under the age of 17 - the legal marriage age in Israel - or over the age 40), the pregnancy was conceived under illegal circumstances (rape, statutory rape, etc.) or an incestuous relationship, birth defects, risk of health to the mother, and life of the mother
            Abortion at will or personal choice?
Perhaps instead there needs to be a greater general principal between the extreme ends.
            Abortion is not murder, nor is the unborn fetus yet a full human being, yet on the other hand we also are concerned, lest we lose our sensitivity to the potential of life in each pregnancy.
            As Jews, we recognize that we must confront moral responsibility from both ends of the equation, never from an abstract absolute.
                        In our tradition, every child born is a special event. May we make every effort possible, so that, when life begins, at birth, that life is a blessing, a joy, and a comfort for all. Amen.
For a summary of classic Jewish positions ( always more than  one) :https://www.torahmusings.com/2013/08/abortions-that-are-kosher/
For a position paper of the Conservative moevement:https://www.rabbinicalassembly.org/sites/default/files/assets/public/halakhah/teshuvot/19861990/feldman_abortion.pdf
For a position paper from the reform movement: http://religiousinstitute.org/denom_statements/when-is-abortion-permitted-ccar/
For a summary of the debate within the Orthodox community: https://jewishjournal.com/analysis/293441/open-debate-is-n-y-s-abortion-law-halachic/

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