Abortion: Halakhic Perspectives
Halakhic perspectives and discussions about abortion have evolved through Jewish history. Biblical sources discuss spontaneous abortion due to injury, which requires monetary compensation. Rabbinic sources determine that a fetus only gains the status of human (nefesh) at birth, and Talmudic sages maintain the fetus’s dependency on its mother. They also discuss the difficulty of pregnancy and to some extent the mother’s desire to be pregnant. Some premodern and modern legal decisors (poskim) refer to the threat to the physical well-being and/or psychological health of the mother in discussion of her right to abort. The modern discussion focuses on women’s control over their bodies, choice, and prenatal diagnosis of congenital and other defects, and their impact on the ability or desire of a woman to raise such a child.
Biblical and rabbinic sources on abortion have an entirely different context than the modern discussion of the topic. The modern discussion focuses on women’s control over their bodies, choice, and prenatal diagnosis of congenital and other defects, and their impact on the ability or desire of a woman to raise such a child. Biblical sources relate to a spontaneous abortion due to injury, which requires monetary compensation. Rabbinic sources relate to difficulty in birthing even a full-term infant and the right or obligation to dismember the fetus for the mother’s safety. In other discussions, the fetus does not have the status of human (nefesh) until birth. The fetus in a difficult birth is considered a pursuer (rodef), who can or must be dismembered to save the mother’s life. Talmudic sages maintain the fetus’s dependency on its mother (treating it as the limb of its mother). They also discuss the pain and difficulty of pregnancy and to some extent the mother’s desire or lack thereof to be pregnant. Some premodern and modern legal decisors (poskim) refer to the threat to the physical well-being of the mother and/or her psychological health in the discussion of her right to abort
Bible and Post-Biblical Sources
Exodus 21:22-25 discusses two men fighting who injure a pregnant woman and cause her to abort spontaneously or go into labor. The death of the fetus is not treated as a criminal offense but rather one that requires monetary compensation to the father for the loss of his potential offspring. If the woman was injured, she is also entitled to compensation for her injuries. If she dies (the term used is a rare word, ason, which biblically refers to a tragedy such as death), the man or men are liable for her death. The Masoretic text does not mention the duration of the pregnancy.
The Septuagint interprets ason as if it refers to the developmental status of the fetus. If the fetus has reached a stage of formation where it clearly resembles a human and perhaps its movement can be felt (quickening), its death is considered murder. The contemporary Roman Catholic position claims that ensoulment occurs at conception and that without baptism the fetus would be damned eternally or consigned to limbo. This makes abortion a severe sin in the eyes of the Catholic church.
Philo, in Special Laws (II, 19), has a similar approach to the Septuagint, referring to the stage of formation of the fetus. Josephus, in Antiquities (IV, 278), concurs with the monetary fine in Exodus, apparently accepting the non-human status at least in terms of legal liability, while in Against Apion (II, 202) he considers women who abort as murderers, although this may be moral rhetoric as opposed to a legal position. Ensoulment is not a halakhic issue, as in Jewish law, a non-viable aborted product of conception never attained the status of human (nefesh), which is attained only at the birth of a full-term infant. The position represented by Philo, Josephus (Against Apion), and the early church stands in opposition to the position of Josephus (Antiquities) and that which developed in the Land of Israel and became normative Jewish law, which never considered abortion to be homicide.
The midwives in Exodus: 1:15-21 refused to kill the boy children at birth. It is presumed that they refused to abide by pharaoh’s command out of moral compunction for which they were rewarded. The context there is normal birth with a viable child, and the midwives refused to commit infanticide.
Status of Embryo/Fetus in Rabbinic Sources
The halakhic status of an embryo/fetus depends upon the stage of its development. Most of the references to ensoulment (placing of the neshamah) in Talmud are homiletical and consider it as occurring at conception (B. Sanhedrin 91b, B. Niddah 31a). Placement of the neshamah may simply refer to a biological vitalizing factor, or recognition of some level of biological life, rather than conferring the status of human on the embryo. During the first forty days, the embryo is considered merely water, and from day forty-one until the pregnancy is recognized, it is considered only a doubtful embryo/fetus (M. Niddah 3:7). A pregnancy is not even “recognized” as such until the completion of three months (M. Niddah 1:4; T. Niddah 1:7).
An aborted product of conception that does not have the form of a human being is not considered a fetus and does not cause corpse impurity (M. Niddah 3:2). Rabbinic sources include disputes about what constitutes human form (T. Niddah 4:5,7; B. Niddah 23b), with most definitions centering on facial features. There are also references to other malformations, many of which are incompatible with life [T. Niddah 4:15; B. Niddah 24b; Y. Niddah 3:2 (50cd)]. These descriptions occur in discussions about whether a woman is ritually impure due to birth or whether the product of conception causes corpse impurity. A woman who aborts a compressed fetus (sandal) or a placenta is considered to have given birth.
The central rabbinic text concerning abortion, M. Ohalot 7:6, states that if a woman is having difficulty giving birth, the midwife dismembers the fetus in utero to extract it to save the mother’s life, even in a full-term pregnancy. In such a difficult birthing situation, the fetus is considered a pursuer (rodef), pursuing the mother to kill her, and therefore can be killed to protect her. In Talmudic discussions concerning a pursuer, it is deemed appropriate to kill the pursuer (without incurring liability) to save the life of the one pursued (B. Sanhedrin 72b). Another position holds that the fetus, prior to the birth of its head, has not attained the status of human (nefesh). Whichever position is accepted, the fetus is to be dismembered in the case of a difficult birth.
B. Sanhedrin 72b also discusses why the rodef status of the fetus changes once its head is born. [Birth is also considered complete if the majority of the body is born in a breech delivery (M. Niddah 3:5).] The text determines that once the head is born, the woman is no longer being pursued by the fetus, rather she is being pursued by Heaven. In Y. Sanhedrin 8:9 (26c), the reason given is that we do not know whether the mother or the fetus is the pursuer. Rashi’s interpretation of the Bavli (Babylonian Talmud) here is that the fetus does not have the status of nefesh until its head (or the majority of the head, B. Niddah 29a) is born, at which point the rabbinic principle of “we do not push aside one nefesh in favor of another” becomes primary. Minors are not subject to punishment yet nevertheless fall into the category of pursuers who could be killed even without warning. The woman certainly has a right to defend herself but may not be able to do so; for example, she may be near death and be unable to voice an opinion.
Rabbi Ishmael (B. Sanhedrin 57b) uses Genesis 9:6 to establish that non-Jews consider abortion a capital crime. The verse reads: “Whosoever sheds the blood of a man, by a man shall his blood be shed.” What is translated as “by a man” (ba-adam) is interpreted as “in a person,” that is, killing the fetus inside the woman’s body. Rabbi Ishmael’s report of the practice of non-Jews becomes an example of the later anonymous statement “whatever is forbidden to non-Jews is certainly forbidden to Jews” (B. Sanhedrin 59a); his statement is interpreted as a proscriptive anti-abortion stance, although it may simply have been a statement about Christian practices. Some Jewish theologians have presented the interpretation “whatever is forbidden to non-Jews is certainly forbidden to Jews” as the standard Jewish position to claim common ground with Catholics. Some twentieth-century rabbinic authorities used it to claim that the Jewish prohibition to abort is biblical (for example, Rabbis Isser Yehudah Unterman, Immanuel Jacobovits, Shlomo Zalman Auerbach, Joseph Soloveitchik, and Moses Feinstein). Others like Rabbis Ovadiah Yosef and Yitzchok Lichtenstein accept that the prohibition is biblical but only after three months of gestation (before which it is only a rabbinic prohibition), and thus health issues of the mother may be considered as grounds for abortion even if they are not life-threatening. Still others consider the prohibition to be biblical but consider, to varying degrees, the physical and mental health of the woman. To be clear, no biblical text explicitly prohibits abortion, Rabbi Ishmael’s statement is certainly rabbinic, and verses from Genesis were almost never used to justify rabbinic halakhah.
The Fetus as Limb of its Mother
Another description of the fetus is that it is “a limb of its mother” (B. Ḥullin 58a, B. Bava Kama 78b-79a, B. Sanhedrin 80a, B. Nazir 51a, B. Gittin 23b, and B. Terumot 25a), indicating that it has no independent existence. These sources in turn deal with an animal fetus if its mother was dedicated as a sin offering or has become terefah (invalid for eating or sacrifice), whether the sale of a pregnant animal includes the fetus, and whether the liability of the goring cow extends to its fetus; for humans, the sources address whether the fetus imparts Levitical uncleanness and whether an enslaved mother has agency over the fetus to receive its writ of emancipation. The rabbis considered that the fetus’ existence is entirely dependent upon the mother and therefore it is not an independent being. By transferring this paradigm of a pregnant animal to humans, the fetus’s dependence on the mother became a primary factor in determining that abortion does not constitute homicide. If a fetus is a limb of its mother, the mother should have control over it. To some extent, that position reverberates in the modern abortion debate about the power a woman has over her own body.
M. Arakhin 1:4 prohibits delaying the execution of a pregnant woman liable to capital punishment, indicating that the fetus is a limb of the mother and its existence is entirely dependent upon her. Only if she is in an advanced stage of labor (pushing) is her execution delayed. There seems also to have been a belief that the fetus was involved in initiating labor, making it somewhat less dependent on its mother and thus considered by some a separate body (B. Arakhin 7a).
B. Yevamot 78a deals with the status of the fetus if a pregnant Gentile woman converts to Judaism. Because the fetus is part of the mother, it too is converted to Judaism.
According to B. Niddah 44a, a fetus has no power of acquisition. Only gifts or transactions made on the fetus’ behalf by its father are binding (B. Bava Batra 142a). These sources demonstrate that the fetus has no juridical standing. Premature infants are in a category of doubtful viability until they have survived for thirty days (B. Niddah 44b).
If the fetus is a limb of the mother, does she have a right to injure herself via that limb? According to Maimonides, Mishneh Torah, hilkhot ḥovel umeziq 5:1, it is forbidden to injure oneself. This position does not consider that pregnancy may be a greater threat to the woman’s health and safety than abortion would be; though abortion was quite dangerous in antiquity, it is permitted to injure oneself for the sake of a cure.
Is abortion a crime in Jewish law? Abortion is certainly not murder. It seems to be a crime that requires monetary compensation to the father, and some argue that abortion causes human presence in the world to be diminished. It may be prohibited due to “do not destroy” or semen destruction. Those positions do not reckon with the repercussions the pregnancy may have on the mother. The discussions we have seen thus far have very little to do with a woman’s perspective.
Health, Safety, and Suffering of the Mother
Women were not considered to be obligated in the commandment of procreation (M. Yevamot 6:6). The discussion in B. Yevamot 65b deals with the case of Yehudit, the wife of Rabbi Ḥiyya, who suffered greatly with very difficult pregnancies—two sets of twins, one in which one baby’s birth preceded his twin by almost three months. Yehudit disguised herself and went before Rabbi Ḥiyya to ask whether women were obligated in procreation. When he responded in the negative, she partook of sama d’akarta/d’akara. This has been normally understood as being a contraceptive drug, but the root ’kr means both infertile and uprooting. It could, therefore, refer to an abortifacient uprooting a pregnancy.
The significance of this source is the consideration given to the suffering of women during pregnancy and birth. At the very least, contraception was allowed or required both to avoid pain and danger and because the woman was not obligated in procreation. We see references to drugs as a means of abortion in later poskim and in earlier Egyptian and Greek sources. It was well-known that many women die in childbirth (M. Shabbat 2:6), which was attributed to their not being circumspect in keeping laws of menstrual separation, separating the dough offering, and lighting the lamp for Sabbath and Festivals. Blaming the victim is one way to avoid the theological problem involved in innocent women dying in childbirth, which continues to happen even today.
B. Arakhin 7a states that according to Shmu’el, the woman to be executed is struck on the abdomen to kill the fetus first. This is to prevent birth from occurring after the woman’s death. Birth involves uterine bleeding, which according to the rabbinic sages would be a disgrace for the executed woman, as it would occur in a public place. Despite the unlikelihood of a post-mortem birth, this source does indicate concern for the honor of the executed woman, even after her death.
According to M. Yoma 8:5, if a pregnant woman smelled food and became faint because of it on Yom Kippur, she is to be given food until she feels restored. If the food is prohibited, she is first offered food dipped into the juice of the prohibited food, but if that does not suffice, she is given the prohibited meat itself (B. Yoma 82ab), as her life was considered endangered. Although these cravings were considered to have been due to the fetus, she was treated with the food. This certainly speaks to the woman’s needs.
Medieval Commentators and Poskim
According to Rabbi Solomon ben Isaac; b. Troyes, France, 1040Rashi, the fetus in utero does not have human status (nefesh). As a result, its destruction would not be considered murder. Moses ben Maimon (Rambam), b. Spain, 1138Maimonides (Mishneh Torah, hilkhot rotze’aḥ, 1:9) considers the fetus in a difficult birth “like a rodef.” He states that one must not have mercy on the fetus as a pursuer but rather must dismember it to save the mother’s life. He, like Rashi, accepts the change in status of the fetus once the head is born and applies the principle of “we do not push aside one nefesh over another.” There are, however, obstetrical situations [such as entrapment of the head in a breech birth, maternal hemorrhage, impaction of the shoulder (shoulder dystocia), conjoined twins, or interlocked twins] in which even after a fetal head is born the woman cannot give birth and will die. Maimonides refers to such cases as “the nature of the world,” that is, inevitable. In such cases the fetus will also die. Delay during the process of a difficult birth, in hopes that fetal inversion or some other process may allow the birth, creates a situation of inevitable death for both the mother and the fetus. Doubtless some women were saved by obstetrical interference, but it must be remembered that any interference in the birth process that involves inserting a hand or instrument into the vagina or uterus could introduce infection, which may prove fatal.
Medieval commentators and poskim espoused divergent opinions concerning permission or obligation to abort. Lit. "additions." Collections of comments made by Rashi's students and descendants who undertook to expand, elaborate and develop Rashi's commentary on the Talmud.Tosafot (B. Sanhedrin 59a, d.h., leka midam; B. Ḥullin 33a, d.h., eḥad oved kokhavim) extended the Gentile prohibition of abortion to Jews but without legal liability; in other words, they considered it forbidden, but with no legal consequences. Elsewhere (Tosafot, B. Niddah 44b, d.h., ihu maet bereisha), they stated that it is permitted to kill the fetus. Isaac Alfasi, the Rif (d. 1103), states (B. Ḥullin 58a) that there is no delay in the execution of a pregnant woman, which reflects M. Arakhin 1:4. Only if a woman liable to capital punishment is in an advanced stage of labor (pushing stage) is the execution delayed. The Rosh, Asher ben Yeḥiel (d. 1327), discussing B. Arakhin 7a, maintained that the fetus was only doubtfully subject to preservation of life and that it may be possible to kill it. Rabbi Abraham ben Yom Tov (d. Spain 1320), on B. Niddah 44b, claimed that the fetus was not a nefesh to create liability for capital punishment or to push its mother’s life aside, but it could be treated as a nefesh in reference to saving its life on the Sabbath (M. Shabbat 18:3). (Miscarriage was considered dangerous for the mother and also warranted transgression of the Sabbath.) Rabbi David ibn Zimra (originally Spanish, d. 1573) espoused Rashi’s nefesh argument for a fetus, even arguing that a convulsing fetus after its mother’s death had no true viability.
Although Maimonides’ position is quoted in Shulḥan ‘arukh, ḥoshen mishpat no.425, not all later rabbinic authorities accepted the pursuer argument. Rabbi Yehoshua Falk (Poland, d. 1614) accepted Rashi’s nefesh argument. Rabbi Yosef Trani (Turkey, d. 1639) accepted Tosafot’s position that Jews are prohibited from aborting, but only if there is insufficient reason to do so. Rabbi Yair Bakhrakh (Germany, d. 1702) maintained that feticide does not constitute murder and that the life of the fetus prior to the onset of labor does not warrant setting aside Sabbath laws, and he claimed that Maimonides would probably accept Rashi’s view that the fetus is not a nefesh. He also interpreted M. Ohalot 7:6 as referring to life-threatening situations but otherwise saw abortion as prohibited due to a waste of seed/semen. Rabbi Jacob Emden (Germany, d. 1718), when asked whether it is permitted to abort a bastard (mamzer) fetus, responded that since the woman’s life is forfeit due to adultery, aborting the bastard fetus is not prohibited. Although he accepts that there is a prohibition against abortion, leniency is not limited to life-threatening situations and can be extended to situations of “great need.” If both mother and fetus will die during birth, some poskim explicitly give preference to the life of the mother (Rabbi Meir Eisenstadt, Panim Meirot 3:8 referring to a breech birth). Rabbi Ayash (Algiers, d. 1760) made a distinction between using drugs to cause an abortion and physical dismemberment of the fetus while the mother is nursing another child. He also held that abortion is prohibited generally by “do not destroy.” Since women are not obligated in procreation and are, therefore, allowed to use a “cup of roots” (kos shel ikarin, a sterilizing drug or an abortifacient), such drugs would be allowed because at most only a rabbinic prohibition may be involved. Nursing mothers were supposed to use contraception so as not to endanger the life of the nursing child. Rabbi Isaac Schorr (Galicia, eighteenth century) maintained that Maimonides also accepted the nefesh argument and concluded that even if the fetus were not the cause of the danger for the mother, it could nevertheless be aborted.
We see in these poskim concern not only for the physical state of the pregnant woman but also for her psychological state, in reference to the stigma of a bastard child, and for the welfare of an older child who is still nursing.
Nineteenth- and Early Twentieth-Century Authorities
Rabbi Schneur Zalman (Lubin, nineteenth century) understood Maimonides as using the pursuer principle once labor had begun and changed the status of the fetus from being a limb of its mother to being a pursuer. Rabbi Yehudah Perilman (Minsk, nineteenth century) permitted immediate post-coital contraception in the case of rape and extended this uprooting to later periods in the pregnancy. Rabbi Ḥayyim Soloveitchik (Poland, d. 1918) created two new halakhic categories the semi-rodef and the semi-nefesh, for a stringent reconciliation of the positions of Maimonides (fetus=pursuer) and Rashi (fetus is not nefesh), that is the fetus is only partially a pursuer and partially not a nefesh so the laws of pursuer and non-nefesh do not apply. Rabbi Yosef Ḥayyim Al-Ḥakham (Baghdad, d. 1909) allowed the abortion of a mamzer because the situation constituted a great need and would create disgrace for the family. Rabbi Ḥayyim Ozer Grodzinsky (Lithuania, d. 1940), when asked if a woman suffering from lung disease could abort, maintained that both Rashi and Maimonides would allow abortion to save the mother from the fetus (who is a limb of the mother) even if her life would not be threatened until the actual birth. Rabbi Ben-Tzion Uziel (Jerusalem, d. 1953), the Descendants of the Jews who lived in Spain and Portugal before the explusion of 1492; primarily Jews of N. Africa, Italy, the Middle East and the Balkans.Sephardi Chief Rabbi of Palestine/Israel, allowed abortion for a woman at risk of deafness due to her pregnancy. He required some need to justify abortion, but that need could be slight. He also permitted the abortion of a mamzer because of the ongoing curse on the parents for adultery. In the case of a pregnant single woman, no curse was involved; therefore, he prohibited abortion.
At no point in the responsa literature up to the twentieth century, then, is abortion considered murder. Many responsa allow abortion even when the mother’s life is not at stake, and lenient positions outnumber more stringent positions. Many more such responsa may have been given privately and not published. The bottom line is that the mother’s life always takes precedence over the life of the fetus until the head or majority of the body is born. Even then there is a preference to save the life of the mother if both will die. Disputes arise when the health and well-being of the mother are at stake.
Prior to the mid-twentieth century, abortion was generally prohibited by civil law and abortion procedures were often quite dangerous, but many countries began to allow abortion in the second half of the twentieth century. The 1973 Roe v. Wade decision by the United States Supreme Court embedded abortion rights in American law, and in 1988 anti-abortion legislation in Canada was struck down as contrary to the Charter of Rights.
The militant pro-life position of the Catholic Church and various fundamentalist Christian groups became the model for some rabbinic positions on abortion. The pro-choice position was considered morally reprehensible because of the principle of “whatever is forbidden to Gentiles should certainly be forbidden to Jews” (B. Sanhedrin 59a). Some rabbis responded to changes in sexual norms with repugnance and sought to prevent what they saw as licentiousness by forbidding abortion. Rabbis and Orthodox writers sometimes espoused positions that had no basis in traditional Jewish sources and used such language as “appurtenance to murder” (Rabbi Isser Unterman), “crime” (Rabbi Immanuel Jacobovits), and “moral murder” (Fred Rosner). Even those who wrote more comprehensively on abortion deemphasized, dismissed, or denigrated lenient positions.
The major distinguishing factor between most Orthodox positions published in English and non-Jewish pro-life positions was when the woman’s life was endangered. Poskim disagree upon the level of damage the pregnant woman must incur in order to allow abortion. All agree that if the woman’s life is at stake, dismemberment or destructive surgeries or drugs are not only allowed but mandated. Severe damage to the woman, such as loss of a major organ (e.g. a kidney) or a sense (e.g. sight) and permanent damage to a major organ are generally considered grounds for abortion. Loss of a less significant organ (e.g. a limb) or permanent or passing damage to such an organ are more problematic. The greatest point of contention is the woman’s psychological state. For some, psychological damage as a result of pregnancy or as a result of the consequences of caring for a physically or mentally compromised child or a bastard (mamzer) constitutes severe damage, which would allow for abortion (variously Rabbis Yisraeli, Y.J. Weinberg, Yosef Ḥayyim Al Ḥakham, and Eliezer Waldenberg). Others reject this position absolutely (variously Rabbis Unterman, M.I. Zweig, and Moshe Feinstein). Rabbi Tzuriel considers the health status of the fetus as a possible reason to permit abortion but only if that status would constitute mortal danger to the mother (for example, suicidal tendencies or unbearable additional physical or psychological burden in caring for a severely disabled child). These decisors do not see economic conditions, career, limited living space, etc. as acceptable reasons to allow abortion.
In articles appearing in English, the situation is often presented as if none of the poskim were willing to consider the physical condition of the fetus/child because that would interfere with God’s plan. Rabbi Eliezer Waldenberg permitted the abortion of a Tay-Sachs fetus up to the seventh month of gestation (the rabbinic definition of viability of the fetus), but only because of hardship to the parents. He referred to this position when asked about abortion of a fetus with Down syndrome. Rabbi Shaul Yisraeli, a member of the Supreme Rabbinic Court of Israel and head of Yeshivat Merkaz HaRav Kook, rejected the claim that abortion should be forbidden because of “wounding” the mother or the prohibition against destroying property. Regarding a drug commonly given in Israel in the mid-1960s that yielded fetal abnormalities, he allowed abortion because of the “great need” of the parents, that is, the psychological difficulties in raising such a child and the potential destabilization of the family. He also suggested that such a child would not be capable of performing A biblical or rabbinic commandment; also, a good deed.mitzvot. Most Israeli poskim allowed abortion to women who were possibly exposed to German measles in early pregnancy during the epidemic in the late 1970s. This may reflect the political reality of a healthcare system and social services that were unable to cope with large numbers of severely disabled children.
Multi-Fetal Pregnancy Reduction and Disposition of Fertilized Ova
Halakhic discussions of abortion have also focused on two other issues. The first is multi-fetal pregnancy reduction (dilul ubarim), in which in the course of in vitro fertilization several fertilized ova have been inserted in the uterus and implanted successfully. Early in the development of in vitro fertilization, several fertilized ova were generally inserted into the uterus in the hope that one or two would successfully implant. When several implanted successfully, some were often in parts of the uterus more favorable for optimal development. Multiple pregnancies were more dangerous for both the mother and the developing fetuses. To ensure the most favorable outcome, the less well developed or well-placed embryos were sometimes uprooted (aborted), while the others were allowed to develop. Each individual fetus was considered to be a pursuer of the other fetuses. Rabbis allowed the physicians to make the choices of which embryos to uproot. More recently, preparation of the uterus and sustaining the pregnancy have become more successful, and as a result it is now much more common to insert only one, or possibly two, fertilized ova into the uterus at a time. Rabbis Ḥaim David Halevi (the late chief Rabbi of Tel Aviv) and Mordechai Eliyahu (former chief rabbi of Israel) allowed disposal of pre-embryos that were not transferred to the uterus, but Rabbi Shmuel Halevi-Wosner considered them like semen, which cannot be destroyed without a reason.
Pre-implantation genetic diagnosis has advanced sufficiently and become the norm. While still in the petri dish, the fertilized ova are examined genetically and chromosomally to determine their health status, and those ova with genetic or chromosomal abnormalities are discarded. Rabbinic authorities determined that fertilized ova while still in a petri dish do not constitute human life and therefore may be discarded.
Israeli Legislation and Practice
The Israeli Criminal Law Amendment (Interruption of Pregnancy) of January 31, 1977, established four situations in which abortion would be allowed: 1) the woman is under seventeen or over 40; 2) the pregnancy was the result of criminal law or forbidden relations (e.g. rape, incest); 3) the embryo/fetus may be physically or mentally compromised; and 4) the pregnancy may risk the woman’s life or cause physical or psychological damage. Each hospital was required to establish an abortion committee consisting of two medical doctors, one of whom is an OB/GYN, and one social worker. Additional clarifications (Memorandum 76/94 and Memorandum 23/07) established higher committees to deal with late-term abortions (from week 24 onwards) and set guidelines for decisions. Definition of fetal defects (mild to severe) and probability of their presence remain ill-defined. The committees generally approve requests for abortion, and in many cases the cost of the procedure is covered by healthcare plans. Private abortion clinics also operate. The 1977 clauses have some common ground with halakhic positions but also reflect democratic legislation, which tends to take into account more strongly women’s autonomy and the physical and expected mental condition of the fetus.
Contemporary Position of Movements in Judaism
The Orthodox Jewish position on abortion is not at all monolithic, as seen in the great range of perspectives reviewed above, all relating to the same classical Jewish texts. The opinions can be further classified as ultra-Orthodox, modern Orthodox, national Orthodox, and ortho-practice. Some have suggested that those rabbis who are connected to hospitals and who interact with the community tend to be more lenient in allowing abortion, having observed first-hand the pain and suffering of families burdened with a compromised child, a suffering child destined to die within a few years, or an injured or overwhelmed mother. Rabbis attempting to control sexuality or what they deem promiscuity are more likely to be very rigid and stringent in their decisions about abortion and prenatal diagnosis. Some have prohibited abortion as a means of punishing a promiscuous or adulterous woman.
All streams of orthodoxy agree that when the woman’s life is at stake, abortion is justified and should be performed. Whether other damage to the health and welfare of the woman is sufficient to allow abortion is in dispute. There is general agreement that the safety and health of the woman is the focus of the decision to abort, rather than status of the fetus and the quality of its life. For some rabbinic authorities, the suffering of a severely compromised infant can have sufficient negative impact on the health and welfare of the mother and other family members to warrant abortion. Some need on the part of the woman is required for even the most lenient Orthodox rabbinic authorities to allow abortion. The rabbinic authorities most stringent in their positions against abortion use very harsh terms to describe those who opt for abortion; they frame the topic in moral rhetoric absent in the classical sources and use the prohibition as a mechanism of control. It should be noted that women’s voices in the classical Jewish sources are almost entirely absent.
The Conservative movement’s Committee on Jewish Law and Standards has discussed and voted on positions concerning abortion, but its positions have changed with advances in technology and diagnostic procedures, as well as with evolving safety issues. Like orthodoxy, the Conservative movement discourages abortion on demand or for trivial reasons. There is greater agreement about the welfare of the mother (e.g., as of 1983, psychological threat to her well-being, as well as physical health), and abortion of compromised fetuses. The main questions that arise concerning the mother are whether her compromised physical or mental health is treatable or will have negative effect on family stability. Certain genetic or chromosomal abnormalities in the embryo/fetus are considered legitimate grounds for abortion. Whether a disease that only manifests itself in middle age should be grounds for abortion is debated. Like Reform, Reconstructionist, and Humanistic Judaism, Conservative Judaism generally supports pro-choice legislation and devotes serious thought to abortion in individual cases.
Reform Judaism accepts the gradual increase of status of the fetus over time as found in the traditional sources. The movement’s responsa are considered advisory as opposed to authoritative. Rabbi Solomon Freehof (1958) aligned himself with Rabbis Jacob Emden and Ben-Zion Uziel to allow abortion due to the mother’s mental anguish after contracting rubella early in the pregnancy, resulting in high likelihood of fetal defects. The mother’s mental anguish was then expanded to include pregnancies as a result of rape or incest (1985). Rabbi Walter Jacob (1987) focused on the physical and mental well-being of the mother but also considered the future physical and mental status of the fetus. In a later responsum, he relied heavily on medical opinion, deeming an indisputable diagnosis of a physically or mentally compromised fetus sufficient reason to abort. Rabbis Gunther Plaut and Mark Washofsky (1997) maintained that the mother’s anguish was legitimate grounds for abortion but the anguish of other family members was not. Other Reform theologians see personal autonomy as a primary value, with moral authority invested in individuals, thus allowing individuals to choose abortion as they see fit. These theologians view classic rabbinic texts as sources of knowledge but not authority.
In a 1981 position paper reaffirmed in 1982, the Reconstructionist Rabbinical Assembly (RRA) posted its position on abortion. The RRA values human life and recognizes in it the divine image. It sees abortion as a most serious matter but not murder. If the mother’s life is endangered, abortion is obligatory. The mother’s mental anguish is grounds for abortion, which is her personal decision. The RRA supports pro-choice positions and opposes limiting access to abortion, limiting funding for abortion, and antiabortion legislation.
The Society for Humanistic Judaism strongly supports reproductive freedom and personal choice. It has publicly supported equal access to abortion and medical coverage of it. Rabbi Tamara Kolton (2019) analyzes the attempts to limit abortion not as care for the unborn but as a means of maintaining power and control over women and their bodies.
Discussions concerning abortion after the mid-twentieth century occur in the shadow of the Holocaust and the loss of six million Jews, many of them children. The impact of the feminist movement, with its emphasis on female autonomy, higher education and careers for women, and freedom of sexual expression, created a crisis in Orthodoxy, with its conservative gender ideology that often bound women to the domestic sphere and motherhood. The possibility of a safe caesarean section birth, antibiotics to combat infection, and hemorrhage control when needed led to a much safer birthing experience. Advances in medical science and technology allowed evaluation of the impact pregnancy or birth might have on the mother’s life and health, which would have been impossible in antiquity. Great advances have also been made in diagnosis of genetic or chromosomal abnormalities in the embryo or fetus, which can determine the fetus’s viability and health status. The fact that abortion was required in full-term pregnancies when the mother’s life was at stake, combined with these advancements, have created great diversity in contemporary rabbinic positions on abortion. The status of the fetus competes with the autonomy of women. Since there is no precedent in Jewish law demanding that women endure a difficult pregnancy, many rabbis have interpreted the classical rabbinic texts with ideological agendas that lean toward leniency or stringency.
In June 2022, the conservative Supreme Court of the United States struck down the 1973 Roe v. Wade decision, putting abortion rights and access in the hands of individual states. There are still medical situations in which women’s lives are at stake at the time of giving birth. All streams of Judaism maintain that a woman’s life has precedence over the life of the fetus in a difficult birth. Will physicians have the right to choose the woman’s life over the life of the fetus? Many Orthodox poskim include the health and well-being of the woman as legitimate reasons for abortion. Will existing and forthcoming legislation interfere with Jewish religion? Will such interference be grounds to legislate religious freedoms to compensate for the loss of women’s rights?
Bar-Ilan, Yehiel Michael. “Abortion in Jewish religious law.” Review of Rabbinic Judaism, 8 (2005): 1-34.
Bar-Ilan, Yehiel Michael. "Her Pain Prevails and Her Judgment Respected—Abortion In Judaism." Journal of Law and Religion 25/1 (2009): 97-186.
Bar- Ilan, Yehiel Michael. “Judaism, Human Dignity and the Most Vulnerable Women on Earth.” American Journal of Bioethics 9/11 (November 2009): 35-36.
Ben- Sefer, Ellen. “Forced Sterilization and Abortion as Sexual Abuse.” In Sexual Violence Against Jewish Women During the Holocaust, edited by Sonja M. Hedgepeth and Rochelle G. Saidel, 156-177. Hanover, NH: University Press of New England, 2010.
Berger, Ari. “Abortion of the Diseased Fetus in Jewish Law.” In And You Shall Surely Heal: The Albert Einstein College of Medicine Synagogue Compendium of Torah and Medicine, edited by Jonathan Wiesen, 115-151. Hoboken, NJ: KTAV, 2009.
Bleich, J. David. “Abortion in Halachic Literature.” In Jewish Bioethics, edited by Fred Rosner and J. David Bleich, 155–196. Hoboken, NJ: KTAV, 2000. Reprinted from Tradition (Winter 1968).
Breitowitz, Yitzchok A. "Halakhic Alternatives in IVF-pregnancies: A Survey"
The Jewish Law Annual 14 (2003): 29-121.
Carmy, Shalom. "Halakhah and Philosophical Approaches to Abortion." Tradition: A Journal of Orthodox Jewish Thought 16/3 (1977): 126-57.
Davis, Dena S. "Abortion in Jewish Thought: A Study in Casuistry." Journal of the American Academy of Religion 60/2 (Summer 1992): 313-24.
Dorff, Elliot N. “Jewish Bioethics; The Beginning of Life.” In The Oxford Handbook of Jewish Ethics and Morality. edited by Elliot N. Dorff and Jonathan K. Crane. 313-325. Oxford: Oxford University Press, 2018.
Freehoff, Solomon B. Reform Responsa for our Time. Cincinnati: Hebrew Union College Press, 1977.
Feldman, David M. Marital Relations, Birth control, and Abortion in Jewish law. Westport, CT: Greenwood Press, 1987.
Ganzel, Tova and Deena Rachel Zimmerman. “Hormonal Intervention for Religious Concerns: A Halakhic and Ethical Discussion.” Nashim: A Journal of Jewish Women's Studies & Gender Issues 21 (2011): 114- 129.
Haimov-Kochman, Ronit and Drorith Hochner-Celinkier. “Contraceptive Counseling for Orthodox Jewish Women.” The European Journal of Contraception and Reproductive Health Care 12/1 (March 2007): 13–18.
Irshai, Ronit, “Gender Perspectives in Halakhic-Decision Making: Abortion as a Test Case.” In New Streams in Philosophy of Halakhah, edited by Aviezer Ravitsky and Avinoam Rosenak, 417-453. Jerusalem: 2008. [Hebrew]
Irshai, Ronit. "Abortion: Halakhah and Ideology." De'ot 72 (November-December 2015): 9-18. [Hebrew]
Irshai, Ronit and Joel A. Linsider. Fertility and Jewish Law: Feminist Perspectives in Orthodox Responsa Literature. Waltham, MA: Brandeis University Press, 2012.
Jacobovits, Immanuel. “Jewish Views and Abortion.” In Jewish Bioethics, edited by Fred Rosner and J. David Bleich, 137–154. Hoboken, NJ: KTAV, 1979, 2000. Reprinted from Abortion and the Law, edited by D. T. Smith. Cleveland: 1965.
Jotkowitz, Alan. “Abortion and Maternal Need: A Response to Ronit Irshai.” Nashim: A Journal of Jewish Women's Studies & Gender Issues, 21 (Spring 2011): 97-109.
Jotkowitz, Alan B., Riad Agbaria and Shimon M. Glick. "Medical Ethics in Israel
– Bridging Religious and Secular values.” The Lancet 389/10088 (May 8, 2017): 2584-86.
Kukin, Marrick. "Tay-Sachs and the Abortion Controversy." Journal of Religion and Health 20/3 (1981): 224-42.
Lichtenstein, Aaron. “Abortions—Halakhic Aspects” Teḥumin 21 (2001): 93-99.
Loike, John D., Ruth L. Fischbach and Moshe D. Tendler. “Jewish Views on the Beginnings of Human Life and the Use of Medical Intervention to Produce Children.” The American Journal of Bioethics 9/11 (November 2009): 45-47.
Meacham, Tirzah “Rabbi Yannai Shrieked: You Have Purified the Birthing
Woman!” Te’uda: The Chaim Rosenberg School of Jewish Studies Research Series 13 (1997): 67-77. [Hebrew]
Mordhorst-Mayer, Melanie, Nitzan Rimon-Zarfaty, and Mark Schweda. "'Perspectivism' in the Halakhic Debate on Abortion Between Moshe Feinstein and Eliezer Waldenberg - Relations Between Jewish Medical Ethics and Socio-Cultural Contexts." Women in Judaism: A Multidisciplinary Journal 10/2 (Spring 2013): 1-55.
Rimon-Zarfaty, Nitzan and Alan Jotkowitz. "The Israeli Abortion Committees'
Process of Decision Making: An Ethical Analysis." Journal of Medical
Ethics 38/1 (2012): 26-30.
Rimon- Zarfaty, Nitzan, Aviad E. Raz, Yael Hashiloni-Dolev. "When Does a
Fetus Become a Person? An Israeli Viewpoint." Journal of Family Planning
and Reproductive Health Care 37/4 (Oct 2011): 216-24.
Rosner, Fred. Biomedical Ethics and Jewish Law. Hoboken, NJ: KTAV, 2001.
Rosner, Fred. “The Jewish Attitude Toward Abortion.” Tradition: A Journal of Orthodox Jewish Thought, 10/2 (1968): 48–7.
Rosenberg-Friedman, Lilach. "Abortion in the Yishuv during the British Mandate Period: A Case Study of the Place of the Individual in a Nationalistic Society." Jewish History 29, 3/4 (2015): 331-59.
Schiff. Daniel. Abortion in Judaism. Cambridge and New York: Cambridge University Press, 2002.
Sinclair, Daniel B. “Abortion.” In Jewish Biomedical Law: Legal and Extra-Legal Dimensions. edited by D.B. Sinclair, 12- 64. Oxford: Oxford University Press, 2003.
Sprinkle, Joe M. “The Interpretation of Exodus 21:22-25 (Lex Talionis) and Abortion.” The Westminster Theological Journal 55/2 (1993): 233–53.
Stadlan, Noah. “Abortion from the Perspective of Orthodox Judaism.” In Abortion, Global Positions and Practices, Religious and Legal Perspectives. edited by Alireza Bagheri, 23-35. Cham, Switzerland: Sprinter International Publishing, 2021.
Steinberg, Avraham. “Abortion and Miscarriage.” In Encyclopedia of Jewish Medical Ethics, translated by Fred Rosner, 1-29. Jerusalem and New York: Feldheim, 2003.
Steinberg, Avraham. “Abortion for Fetal CNS Malformations: Religious Aspects.” Child’s Nervous System 19/7–8 (August 30, 2003): 592–95.
Taragin- Zeller, Lea. “’Conceiving God’s Children’: Toward a Flexible Model of Reproductive Decision-Making.” Medical Anthropology38/4 (2019): 370–383.
Washofsky, Mark. “Abortion and the Halakhic Conversation: A Liberal Perspective.” In The Fetus and Fertility in Jewish Law: Essays and Responsa, edited by Walter Jacob and Moshe Zemer, 39-89. Pittsburgh, PA: Freehof Institute of Progressive Halakhah, 1995.
Weiner, Jason. “Jewish Guidance on the Loss of a Baby or Fetus.” Hakirah: The Flatbush Journal of Jewish Law and Though 23 (2017): 87-92.
Winkler, Gershon, Peter H. Schweitzer, Goldie Milgram, Fred Scherlinder Dobb, Laura Novak Winer, Amy Walk Katz, Yitz Greenberg, Shmuley Boteach, and Yitzchok Adlerstein. “Jewish Law or Tradition Offer any Guidance on Contraception?” Moment (March- April 2014): 26-27.
Zweig, M.I. “On Abortion,” Noam 7 (1964): 35-56.