Abortion is defined as the artificial termination of a woman's pregnancy. The traditional Jewish view on abortion does not fit conveniently into any of the major "camps" in the current American abortion debate - Judaism neither bans abortion completely nor does it allow indiscriminate abortion.
- In the Biblical Period
- In the Talmudic Period
- In the Codes
- Contemporary Authorities
- In the State of Israel
- Abortion & Halacha
In the Biblical Period
A monetary penalty was imposed for causing abortion of a woman's fetus in the course of a quarrel, and the penalty of death if the woman's own death resulted there from. "And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow – he shall be surely fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine. But if any harm follow – then thou shall give life for life" (Ex. 21:22–23). According to the Septuagint the term "harm" applied to the fetus and not to the woman, and a distinction is drawn between the abortion of a fetus which has not yet assumed complete shape – for which there is the monetary penalty – and the abortion of a fetus which has assumed complete shape – for which the penalty is "life for life." Philo (Spec., 3:108) specifically prescribes the imposition of the death penalty for causing an abortion, and the text is likewise construed in the Samaritan Targum and by a substantial number of Karaite commentators. A. Geiger deduces from this the existence of an ancient law according to which (contrary to talmudic halakhah) the penalty for aborting a fetus of completed shape was death (Ha-Mikra ve-Targumav, 280–1, 343–4). The talmudic scholars, however, maintained that the word "harm" refers to the woman and not to the fetus, since the scriptural injunction, "He that smiteth a man so that he dieth, shall surely be put to death" (Ex. 21:12), did not apply to the killing of a fetus (Mekh. SbY, ed. Epstein-Melamed, 126; also Mekh. Mishpatim 8; Targ. Yer., Ex. 21:22–23; BK 42a). Similarly, Josephus states that a person who causes the abortion of a woman's fetus as a result of kicking her shall pay a fine for "diminishing the population," in addition to paying monetary compensation to the husband, and that such a person shall be put to death if the woman dies of the blow (Ant., 4:278). According to the laws of the ancient East (Sumer, Assyria, the Hittites), punishment for inflicting an aborting blow was monetary and sometimes even flagellation, but not death (except for one provision in Assyrian law concerning willful abortion, self-inflicted). In the Code of Hammurapi (no. 209, 210) there is a parallel to the construction of the two quoted passages: "If a man strikes a woman [with child] causing her fruit to depart, he shall pay ten shekalim for her loss of child. If the woman should die, he who struck the blow shall be put to death."
In the Talmudic Period
In talmudic times, as in ancient halakhah, abortion was not considered a transgression unless the fetus was viable (ben keyama; Mekh. Mishpatim 4 and see Sanh. 84b and Nid. 44b; see Rashi ; ad loc.), hence, even if an infant is only one day old, his killer is guilty of murder (Nid. 5:3). In the view of R. Ishmael, only a Gentile, to whom some of the basic transgressions applied with greater stringency, incurred the death penalty for causing the loss of the fetus (Sanh. 57b). Thus abortion, although prohibited, does not constitute murder (Tos., Sanh. 59a; Ḥul. 33a). The scholars deduced the prohibition against abortion by an a fortiori argument from the laws concerning abstention from procreation, or onanism, or having sexual relations with one's wife when likely to harm the fetus in her womb – the perpetrator whereof being regarded as "a shedder of blood" (Yev. 62b; Nid. 13a and 31a; Ḥavvat Ya'ir, no. 31; She'elat Yaveẓ, 1:43; Mishpetei Uziel, 3:46). This is apparently also the meaning of Josephus' statement that "the Law has commanded to raise all the children and prohibited women from aborting or destroying seed; a woman who does so shall be judged a murderess of children for she has caused a soul to be lost and the family of man to be diminished" (Apion, 2:202).
The Zohar explains that the basis of the prohibition against abortion is that "a person who kills the fetus in his wife's womb desecrates that which was built by the Holy One and His craftsmanship." Israel is praised because notwithstanding the decree, in Egypt, "every son that is born ye shall cast into the river" (Ex. 1:22), "there was found no single person to kill the fetus in the womb of the woman, much less after its birth. By virtue of this Israel went out of bondage" (Zohar, Ex., ed. Warsaw, 3b).
Abortion is permitted if the fetus endangers the mother's life. Thus, "if a woman travails to give birth [and it is feared she may die], one may sever the fetus from her womb and extract it, member by member, for her life takes precedence over his" (Oho. 7:6). This is the case only as long as the fetus has not emerged into the world, when it is not a life at all and "it may be killed and the mother saved" (Rashi and Meiri, Sanh. 72b). But, from the moment that the greater part of the fetus has emerged into the world – either its head only, or its greater part – it may not be touched, even if it endangers the mother's life: "ein doḥin nefesh mi-penei nefesh" ("one may not reject one life to save another" – Oho. and Sanh. ibid.). Even though one is enjoined to save a person who is being pursued, if necessary by killing the pursuer (see Penal Law ), the law distinguishes between a fetus which has emerged into the world and a "pursuer," since "she [the mother] is pursued from heaven" (Sanh. 72b) and moreover, "such is the way of the world" (Maim., Yad, Roẓe'aḥ 1:9) and "one does not know whether the fetus is pursuing the mother, or the mother the fetus" (TJ Sanh. 8:9, 26c). However, when the mother's life is endangered, she herself may destroy the fetus – even if its greater part has emerged – "for even if in the eyes of others the law of a fetus is not as the law of a pursuer, the mother may yet regard the fetus as pursuing her" (Meiri, ibid.).
Contrary to the rule that a person is always fully liable for damage (mu'ad le-olam), whether inadvertently or willfully caused (bk 2:6, see Penal Law , Torts), it was determined with regard to damage caused by abortion, that "he who with the leave of the bet din and does injury – is absolved if he does so inadvertently, but is liable if he does so willfully – this being for the good order of the world" (Tosef., Git. 4:7), for "if we do not absolve those who have acted inadvertently, they will refrain from carrying out the abortion and saving the mother" (Tashbeẓ, pt. 3, no. 82; Minḥat Bik., Tosef., Git. 4:7).
In the Codes
Some authorities permit abortion only when there is danger to the life of the mother deriving from the fetus "because it is pursuing to kill her" (Maim. loc. cit.; Sh. Ar., ḤM 425:2), but permission to "abort the fetus which has not emerged into the world should not be facilitated [in order] to save [the mother] from illness deriving from an inflammation not connected with the pregnancy, or a poisonous fever … in these cases the fetus is not [per se] the cause of her illness" (Paḥad Yiẓḥak, S.V.Nefalim). Contrary to these opinions, the majority of the later authorities (aḥaronim) maintain that abortion should be permitted if it is necessary for the recuperation of the mother, even if there is no mortal danger attaching to the pregnancy and even if the mother's illness has not been directly caused by the fetus (Maharit, Resp. no. 99). Jacob Emden permitted abortion "as long as the fetus has not emerged from the womb, even if not in order to save the mother's life, but only to save her from the harassment and great pain which the fetus causes her" (She'elat Yaveẓ, 1:43). A similar view was adopted by Benzion Meir Ḥai Ouziel , namely that abortion is prohibited if merely intended for its own sake, but permitted "if intended to serve the mother's needs … even if not vital"; and who accordingly decided that abortion was permissible to save the mother from the deafness which would result, according to medical opinion, from her continued pregnancy (Mishpetei Uziel, loc. cit.). In the Kovno ghetto, at the time of the Holocaust, the Germans decreed that every Jewish woman falling pregnant shall be killed together with her fetus. As a result, in 1942 Rabbi Ephraim Oshry decided that an abortion was permissible in order to save a pregnant woman from the consequences of the decree (Mi-Ma'amakim, no. 20).
The permissibility of abortion has also been discussed in relation to a pregnancy resulting from a prohibited (i.e., adulterous) union (see Ḥavvat Ya'ir, ibid.). Jacob Emden permitted abortion to a married woman made pregnant through her adultery, since the offspring would be a mamzer (see Mamzer ), but not to an unmarried woman who becomes pregnant, since the taint of bastardy does not attach to her offspring (She'elat Yaveẓ, loc. cit., S.V.Yuḥasin). In a later responsum it was decided that abortion was prohibited even in the former case (Leḥem ha-Panim, last Kunteres, no. 19), but this decision was reversed by Ouziel, in deciding that in the case of bastardous offspring abortion was permissible at the hands of the mother herself (Mishpetei Uziel, 3, no. 47).
In recent years the question of the permissibility of an abortion has also been raised in cases where there is the fear that birth may be given to a child suffering from a mental or physical defect because of an illness, such as rubeola or measles, contracted by the mother or due to the aftereffects of drugs, such as thalidomide, taken by her. The general tendency is to uphold the prohibition against abortion in such cases, unless justified in the interests of the mother's health, which factor has, however, been deemed to extend to profound emotional or mental disturbance (see: Unterman, Zweig, in bibliography). An important factor in deciding whether or not an abortion should be permitted is the stage of the pregnancy: the shorter this period, the stronger are the considerations in favor of permitting abortion (Ḥavvat Ya'ir and She'elat Yaveẓ, loc. cit.; Beit Shelomo, ḤM 132).
Contemporary halakhic authorities adopted a strict approach towards the problem of abortion. R. Isser Yehuda Unterman defined the abortion of a fetus as "tantamount to murder," subject to a biblical prohibition. R. Moses Feinstein adopted a particularly strict approach. In his view, abortion would only be permitted if the doctors determined that there was a high probability that the mother would die were the pregnancy to be continued. Where the mother's life is not endangered, but the abortion is required for reasons of her health, or where the fetus suffers from Tay-Sachs disease, or Down's syndrome, abortion is prohibited, the prohibition being equal in severity to the prohibition of homicide. This is the case even if bringing the child into the world will cause intense suffering and distress, to both the newborn and his parents. According to R. Feinstein, the prohibition on abortion also applies where the pregnancy was the result of forbidden sexual relations, which would result in the birth of a mamzer.
Other halakhic authorities – foremost among them R. Eliezer Waldenberg – continued the line of the accepted halakhic position whereby the killing of a fetus did not constitute homicide, being a prohibition by virtue of the reasons mentioned above. Moreover, according to the majority of authorities, the prohibition was of rabbinic origin. In the case of a fetus suffering from Tay-Sachs disease R. Waldenberg ruled: "it is permissible … to perform an abortion, even until the seventh month of her pregnancy, immediately upon its becoming absolutely clear that such a child will be born thus." In his ruling he relies inter alia on the responsa of Maharit (R. Joseph Trani) and She'elat Ya'veẓ ( R. Jacob Emden ), who permit abortion "even if not in order to save the mother's life, but only to save her from the harassment and the great pain that the fetus causes her" (see above). R. Waldenberg adds: "… Consequently, if there is a case in which the halakhah would permit abortion for a great need and in order to alleviate pain and distress, this would appear to be a classic one. Whether the suffering is physical or mental is irrelevant, since in many instances mental suffering is greater and more painful than physical distress" (Ẓiẓ Eliezer, 13:102). He also permitted the abortion of a fetus suffering from Down's syndrome. Quite frequently, however, the condition of such a child is far better than that of the child suffering from Tay-Sachs, both in terms of his chances of survival and in terms of his physical and mental condition. Accordingly, "From this [i.e., the general license in the case of Tay-Sachs disease] one cannot establish an explicit and general license to conduct an abortion upon discovering a case of Down's syndrome … until the facts pertaining to the results of the examination are known, and the rabbi deciding the case has thoroughly examined the mental condition of the couple" (ibid., 14:101).
In the dispute between Rabbis Feinstein and Waldenberg relating to Maharit's responsum, which contradicts his own conclusion, R. Feinstein writes: "This responsum is to be ignored … for it is undoubtedly a forgery compiled by an errant disciple and ascribed to him" (p. 466); and regarding the responsum of R. Jacob Emden, which also contradicts his own conclusion, he claims that "… the argument lacks any cogency, even if it was written by as great a person as the Ya'veẓ" (p. 468). In concluding his responsum, R. Feinstein writes of "the need to rule strictly in light of the great laxity [in these matters] in the world and in Israel." Indeed, this position is both acceptable and common in the halakhah, but in similar cases the tendency has not been to reject the views of earlier authorities, or to rule that they were forged, but rather to rule stringently, beyond the letter of the law, due to the needs of the hour (see Waldenberg , ibid., 14:6).
In the State of Israel
Abortion and attempted abortion were prohibited in the Criminal Law Ordinance of 1936 (based on English law), on pain of imprisonment (sec. 175). An amendment in 1966 to the above ordinance relieved the mother of criminal responsibility for a self-inflicted abortion, formerly also punishable (sec. 176). In this context, causing the death of a person in an attempt to perform an illegal abortion constituted manslaughter, for which the maximum penalty is life imprisonment. An abortion performed in good faith and in order to save the mother's life, or to prevent her suffering serious physical or mental injury, was not a punishable offense. Terms such as "endangerment of life" and "grievous harm or injury" were given a wide and liberal interpretation, even by the prosecution in considering whether or not to put offenders on trial.
The Penal Law Amendment (Termination of Pregnancy) 5737–1977 provided, inter alia, that "a gynecologist shall not bear criminal responsibility for interrupting a woman's pregnancy if the abortion was performed at a recognized medical institution and if, after having obtained the woman's informed consent, advance approval was given by a committee consisting of three members, two of whom are doctors (one of them an expert in gynecology), and the third a social worker." The law enumerates five cases in which the committee is permitted to approve an abortion: (1) the woman is under legally marriageable age (17 years old) or over 40; (2) the pregnancy is the result of prohibited relations or relations outside the framework of marriage; (3) the child is likely to have a physical or a mental defect; (4) continuance of the pregnancy is likely to endanger the woman's life or cause her physical or mental harm; (5) continuance of the pregnancy is likely to cause grave harm to the woman or her children owing to difficult family or social circumstances in which she finds herself and which prevail in her environment (§316). The fifth consideration was the subject of sharp controversy and was rejected inter alia by religious circles. They claimed that the cases in which abortion is halakhically permitted – even according to the most lenient authorities – are all included in the first four reasons. In the Penal Law Amendment adopted by the Knesset in December 1979, the fifth reason was revoked.
The Israeli Supreme Court has also dealt with the question of the husband's legal standing in an application for an abortion filed by his wife; that is, is the committee obliged to allow the husband to present his position regarding his wife's application? The opinions in the judgment were divided. The majority view (Justices Shamgar, Ben-Ito) was that the committee is under no obligation to hear the husband, although it is permitted to do so. According to the minority view (Justice Elon), the husband has the right to present his claims to the committee (other than in exceptional cases, e.g., where the husband is intoxicated and unable to participate in a balanced and intelligent consultation, or where the urgency of the matter precludes summoning the husband). According to this view, the husband's right to be heard by the committee is based on the rules of natural justice, that find expression in the rabbinic dictum: "There are three partners in a person: The Holy One blessed be He, his father and his mother" (Kid. 30b; Nid. 31a; C.A. 413/80 Anon. v. Anon., P.D. 35  57). Elon further added (p. 89): "It is well known that in Jewish law no 'material' right of any kind was ever conferred upon the parents, even with respect to their own child who had already been born. The parents relation to their natural offspring is akin to a natural bond, and in describing this relationship, notions of legal ownership are both inadequate and offensive" (C.A. 488/97 Anon. et al. v. Attorney General, 32 (3), p. 429–30). This partnership is based on the deep and natural involvement of the parents in the fate of the fetus who is the fruit of their loins, and exists even where the parents are not married, and a fortiori is present when the parents are a married couple building their home and family. When the question of termination of a pregnancy arises, each of the two parents has a basic right – grounded in natural and elementary justice – to be heard and to express his or her feelings, prior to the adoption of any decision regarding the termination of the pregnancy and the destruction of the fetus.
Abortion & Halacha
To gain a clear understanding of when abortion is sanctioned, or even required, and when it is forbidden, requires an appreciation of certain nuances of halacha (Jewish law) which govern the status of the fetus.
The easiest way to conceptualize a fetus in halacha is to imagine it as a full-fledged human being - but not quite. In most circumstances, the fetus is treated like any other "person." Generally, one may not deliberately harm a fetus, and sanctions are placed upon those that purposefully cause a woman to miscarry. However, when its life comes into direct conflict with an already born person, the autonomous person's life takes precedence.
It follows from this simple approach, that as a general rule, abortion in Judaism is permitted only if there is a direct threat to the life of the mother by carrying the fetus to term or through the act of childbirth. In such a circumstance, the baby is considered tantamount to a rodef, a pursuer after the mother with the intent to kill her. Nevertheless, as explained in the Mishna (Oholos 7:6), if it would be possible to save the mother by maiming the fetus, such as by amputating a limb, abortion would be forbidden. Despite the classification of the fetus as a persuer, once the baby's head has been delivered, the baby's life is considered equal to the mother's, and we may not choose one life over another, because it is considered as though they are both pursuing each other.
Judaism recognizes psychiatric as well as physical factors in evaluating the potential threat that the fetus poses to the mother. However, the danger posed by the fetus (whether physical or emotional) must be both probable and substantial to justify abortion. The degree of mental illness that must be present to justify termination of a pregnancy is not well established and therefore criteria for permitting abortion in such instances remains controversial.
As a rule, halacha does not assign relative values to different lives. Therefore, almost all major poskim (Rabbis qualified to decide matters of Jewish law) forbid abortion in cases of abnormalities or deformities found in a fetus. Rabbi Moshe Feinstein, one the greatest poskim in this century, rules that even amniocentesis is forbidden if it is performed only to evaluate for birth defects for which the parents might request an abortion. Nevertheless, a test may be performed if a permitted action may result, such as performance of amniocentesis or drawing alpha-fetoprotein levels for improved peripartum or postpartum medical management. While most poskim forbid abortion for "defective" fetuses, Rabbi Eliezar Waldenberg is a notable exception. Rabbi Waldenberg allows first trimester abortion of a fetus which would be born with a deformity that would cause it to suffer, and termination of a fetus with a lethal fetal defect such as Tay Sachs up to the end of the second trimester of gestation.
The question of abortion in cases of rape, incest, and adultery is a complex one, with various legal justifications propounded on both sides. In cases of rape and incest, a key issue would be the emotional toll exacted from the mother in carrying the fetus to term. The same analysis used in other cases of emotional harm might be applied here. Cases of adultery interject additional considerations into the debate which are beyond the scope of this short essay.
I have attempted to distill the essence of the traditional Jewish approach to abortion, but in reality, the parameters determining the permissibility of abortion within halacha are subtle and complex. It is crucial to remember that when faced with an actual patient, a competent halachic authority must be consulted in every case.
Sources:Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved; Maimonides: Health in the Jewish World, Vol. 2, No. 1 (Spring 1996), The Institute for Jewish Medical Ethics; Section on Abortion & halakhah written by Dr. Daniel Eisenberg - [email protected], www.daneisenberg.com
J. D. Bleich, Judaism and Killing (1981), 96–102; M. Elon, Jewish Law (Mishpat Ivri): Cases and Materials (Matthew Bender Casebook Series, 1999), 609–24; J.D. Bleich, "Abortion in Halakhic Literature," in: Tradition, 10:2 (1968), 72–120; E.G. Ellinson, "Ha-Ubar be-Halakhah," in: Sinai, 66 (1970); M. Feinstein, "Be-Din Harigat Ubar," in: Sefer Zikharon le-Grych Yehezkel Abramsky (1975); D. Feldman, Birth Control in Jewish Law (1968). ADD. BIBLIOGRAPHY: D. Frimer, "Ma'amad shel ha-Av be-Hapalat ha-Ubar be-Mishpat ha-Ivri," in: Gevurot le-Elon (2005); A. Lichtenstein, Nispaḥ le-Doḥ ha-Ve'adah al Hapalot Melakhutiot (1974); D. Maeir, "Abortion and Halakhah: New Issues," in: Dinei Yisrael, 7 (1970), 137–150, Eng. section; C. Shalev, "A Man's Right to be Equal: The Abortion Issue," in: Israel Law Review, 18 (1983); D. Sinclair, "The Legal Basis for the Prohibition on Abortion in Jewish Law (with Some Comparative References to Canon, Common and Israeli Law)," in: Shenaton ha-Mishpat ha-Ivri, 5 (1978), 177–218; idem, Jewish Biomedical law (2003), 12–61; A. Steinberg, Hilkhot Rofim ve-Refu'ah (1978); I.Y. Unterman, "Be-Inyan Piku'aḥ Nefesh shel Ubar," in: No'am, 6 (1963); E.Y. Waldenberg, Ẓiẓ Eliezer (1959), 1:14; I. Warhaftig, "Av u-Veno," in Meḥkarei Mishpat, 16 (2000), 479 ff.; M. Weinfeld, "The Genuine Jewish Attitude Toward Abortion," in: Zion, 42 (1977), 129–42, Heb.
In many ways, the Jewish approach to medicine is the opposite of the secular approach. As I described in my in my previous article, many ethical lapses over the past century have been the result of placing the good of society before the good of the individual. In Jewish theology, the individual is of paramount importance. This is aptly stated by Rabbi Jonathan Sacks, current Chief Rabbi of the British Commonwealth, in his book, A Letter in The Scroll, regarding the contribution of the Jews to the world's concept of morality. He writes: "In eras that worshiped the collective- the nation, the state, the empire- they (the Jews) spoke about the dignity of the individual." In another section, Rabbi Sacks crystallizes the crux of the Jewish contribution to civilization:
"In terms of ethics, Judaism was the first religion to insist upon the dignity of the person and the sanctity of human life. For the first time, the individual could no longer be sacrificed for the group. Murder became not just a crime against man but a sin against God."1
This lesson is apparent from the first chapters of the Torah where we learn about the circumstances of man's creation. The Torah2 tells us that "God created man in His own image" to teach us that every individual person is Godly. If every person has the spark of God within him, how could we ever contemplate treating any individual with anything less than the utmost respect and dignity?
The Talmud teaches that the Almighty first created mankind as a single individual, rather than a group of people, to teach us that one who saves a single life saves a world, and one who destroys a single life, destroys an entire world.3 According to the Jewish view, the individual is a microcosm of the entire world.
We see that the individual is of intrinsic importance manifested in Jewish law in a multitude of areas. For example, an innocent person's life may never be sacrificed to save someone else or even a group of people. Nevertheless, although we recognize the validity and necessity for triage and rationing in some situations, we do not sacrifice one person's life to save someone else's life. If two people are drowning and we can only save one, or if several people need a medicine and we only have enough for one, what do we do? Mainstream Jewish law would have us save one even if others will die. Although we choose to save a particular individual and others may die, we have not directly caused their deaths. However, we could not kill one person in order to save another, unless the party we are killing is a rodef, someone pursuing another to kill them (see: Abortion in Jewish Law).
Regardless of how sick an individual may be, we may never harm him to save someone else. While the secular word entertains the idea of removing organs from very ill patients by obtaining consent to withdraw life-support, halacha unequivocally rejects the idea of sacrificing the life of even the sickest patient to save the life of another. This does not imply that halacha bars cadaveric or live organ donations, only that one may not kill one person to save another.
A General Approach
1. Good ethics start with good facts. 2. There is no distinction between Jewish law and ethics.The Jewish approach to any ethical question relies on two important concepts: that good ethics start with good facts and that in Judaism, there is no distinction between Jewish law and ethics. Judaism does not deal with armchair philosophy; it deals with real, practical cases. I learned the first rule after speaking at the International Conference on Jewish Medical Ethics in San Francisco several years ago. At that time a major scandal had just come to light in Israel. It was revealed that the Magen David Edom, the Israeli version of the Red Cross, was throwing away the blood of Ethiopian blood donors without informing them, for fear that the blood was tainted with HIV. There were angry accusations of racism. Dr. Avraham Steinberg, a pediatric neurologist at Shaarei Tzeddek hospital in Jerusalem and prolific author on Jewish medical ethics, was asked whether it was ethical to secretly discard the Ethiopians' blood. He replied: "Good ethics start with good facts." He explained his analysis of the situation in a most ingenious way. If the HIV rate in the Ethiopian population is not significantly higher than the general population, then discarding the blood is immoral. But if the HIV rate in the Ethiopian population is significantly higher than the general population, then other factors come into play. It must be understood that testing donated blood was expensive and there was a window of time between HIV infection and conversion to a positive HIV test. If the yield of clean blood after expensive testing for HIV is so low that it is not economically viable to test, and the risk of HIV tainted blood entering the blood supply is high enough, then secretly discarding the blood is not only prudent from a medical and economic point of view, but shows respect for the Ethiopians by not publicly labeling them as diseased.
If one questions the wisdom of such an approach, one need only look to the American Red Cross. After a potential donor is finished donating his or her pint of blood, the donor chooses a bar code that indicates whether their blood should be used or should be discarded. Why should such a system be necessary? Why would someone donate blood and then ask to have it discarded? Because the drive to avoid embarrassment could force a person to donate due to peer pressure even if they know that their blood is, or could be, tainted. So the Red Cross offers a tactful, confidential way out that prevents embarrassment to the donor.
What is ethical is not always obvious. The question of whether an action is ethical can only be made with respect to the exact facts and merits of each specific case.
The second rule, that there is no distinction between Jewish law and ethics, is more straightforward. From a traditional Jewish approach, Jewish Law, halacha, defines ethics. Halacha is the code of conduct by which the traditional Jew leads his or her life. Extra-halachic ethics is somewhat of a non-sequitor. We apply Jewish law to each case and the answers that we reach should represent an ethical paradigm. For this reason, Jewish medical ethics is merely the application of Jewish law to medicine, just as kashrut is the application of Jewish law to food, or Jewish tort law is the application of Jewish law to monetary damages.
How are medical ethics questions approached?
Every day, new medical and technological breakthroughs occur, widening the panorama of therapeutic options. While the march of technology continually improves our health, it creates new scenarios and novel questions. How does the Torah approach what sometimes appear to be unprecedented situations?
Regardless of how unique as situation may appear, the approach of the halachic system remains unchanged.
Regardless of how unique as situation may appear, the approach of the halachic system remains unchanged. As the book of Ecclesiastes states: "There is nothing new under the sun." 4 Infertility treatments (including IVF and surrogacy), artificial prolongation of life, abortion, rationing, self-endangerment, and a myriad of other contemporary ethical issues have been dealt with in Jewish law for millennia. The challenge is to appropriately recognize the salient issues in order to properly apply Jewish law.
The Jewish legal system
When one approaches a rabbi with an ethical question, whether in medicine or any other facet of life, how does the rabbi determine the appropriate answer? While the secular approach of a hospital ethics committee relies heavily upon personal feelings and experiences, the Jewish approach relies upon an evaluation of pertinent information from a rich heritage of over 3000 years of Jewish existence.
To understand how any specific question of medical ethics is answered, one must understand the Jewish legal system. The methodology for investigating any halachic or ethical dilemma is similar. The posek, or rabbi who has been extensively trained in Jewish law, gathers technical and situational information about the case at hand. He then surveys Jewish legal sources from the Bible to the 20th century, identifying precedents from previous cases that might be applicable to the current case. He then carefully traces the relevant issues through the Torah, Mishna, Talmud, Rishonim (early Talmudic commentaries), and Achronim (later Talmudic commentaries), using prior halachic literature to guide the application of Jewish law to modern problems. After tracing the path of Jewish law from the Torah to modern responsic literature, he renders an opinion.
Structure of the halachic system
The structure of Jewish law is in many ways analogous to that of Western legal systems. While the analogy is somewhat simplistic, it is instructive to give a sense of how the halachic process is organized.
Just as the written basis of the United States legal system is the constitution, the Torah5 is the basis of the halachic system. The Torah is a written Divine document that God presented to the Jewish people on Mount Sinai and which contains all of the mitzvos and other important concepts of Judaism.
American law rests on a long tradition of common law extending back many centuries to Great Britain and even to ancient Rome. This component of the secular legal tradition is much larger and more far-reaching, but is equally authoritative and comprises the basis for much of the case law generated by the courts. Similarly, the Mishnah, 6 Talmud7 and other components of the Oral Law are much more extensive than the written Torah and equally authoritative. The Oral Law is the corpus of Jewish law that traces back to the revelation at Mount Sinai and which includes later rabbinical legal decisions, which flesh out and explain the Torah. The Oral Law deals with the day-to-day practical aspects of Jewish life.
Like any Western legal system, our laws are compiled into statute books. Just as there are tomes of federal and state laws, we have compilations of Jewish law dating back over 800 years. The earliest extensive organized compilation of Jewish law was performed by Moses Maimonides, a great rabbi and physician of the 12th century. His Yad Ha'chazaka, also known as the Mishneh Torah, 8 covers all areas of Jewish law and remains one of the most authoritative legal guides in Judaism. The next great statute book, the Arbah Turim, was written by Rabbi Yaakov ben Asher9 in the early 14th century. Probably the most famous compilation of Jewish law is the Shulchan Aruch (Code of Jewish Law), written by the Sefardi posek Rabbi Yosef Karo who lived in Safed, Israel, with glosses by the Polish Ashenazi posek Rabbi Moshe Isserles. 10 This seminal work was completed in the late 16th century, and while hundreds of subsequent commentaries have been written, it remains the preeminent guide to Jewish law.
Where do we find the final decision?
Probably the most useful halachic literature for evaluating medical ethics issues from a Jewish perspective are the many thousands of responsa written over the last thousand years that deal with every conceivable aspect of life. This is akin to the corpus of Western case law dating back many centuries that has formed the precedents for modern court cases.
While many great rabbis dealt with a broad range of issues, some were considered to be particularly expert in the area of medical ethics. 11 In America, Rabbi Moshe Feinstein (1895-1986), author of the multivolume Igros Moshe, was widely accepted as the preeminent posek in all areas, but particularly in the area of medical ethics. His decisions span all areas of medical ethics. In Israel, Rabbi Shlomo Zalman Aurbach (1910-1995), author of Minchas Shlomo, was accepted by many as the greatest authority in these areas. Of course there are many other great rabbis who deal with medical ethics. Among the greatest living experts are probably Rabbi Yosef Shalom Eliashiv, author of Kovetz Tshuvos, and Rabbi Eliezer Yehuda Waldenberg, author of the 20 volume (so far) Tzitz Eliezer.
Judaism has very rich tradition of medical ethics. Questions that the rest of the world finds novel have been dealt with in a variety of ways in halachic literature for hundreds, if not thousands of years. We have a comprehensive system that has been field-tested for reliability and which does not bend to the transient whims of society or the changing winds of fashion. Without a gold standard for comparison such as the Torah, situational ethics can become a very slippery slope. Murder becomes "mercy killing," destruction of fetal life becomes a "personal choice," and the basic rules of human dignity upon which society should be grounded erode beneath our feet. With our extensive, proven track record of morality that stems from a Divine source and that stresses the nobility of all human beings, we are highly qualified candidates to enter the societal debate over public policy issues involving medical issues.1 Sacks, Rabbi Jonathan, A Letter in the Scroll, p. 75
2 Genesis 1:27
3 Sanhedrin 4:5
4 Ecclesiastes 1:9
5 The Torah was presented to the Jewish people in 1313 BCE
6 The Mishnah was compiled by Rabbi Yehuda HaNasi in approximately 190 CE.
7 The Babylonian Talmud was compiled by Rav Ashi and Ravina.in approximately 500 CE. The Jerusalem Talmud was compiled by Rabbi Yochanon in approximately 350 CE. Exacts dates vary.
8 The Mishneh Torah was written around 1180 CE. Maimonides lived from 1135 to 1204 CE.
9 Rabbi Yaakov ben Asher lived from 1270 to 1343 CE.
10 Rabbi Yoseph Karo lived from 1488 to 1575 CE and Rabbi Moshe Isserles lived from 1530 to 1572 CE.
11 See Fred Rosner, Pioneers in Jewish Medical Ethics, Jason Aronson Press, 1997