Fertility and Jewish Law: Feminist Perspectives on Orthodox Responsa Literature
My contention that halakhah is markedly masculine and that gender biases are often a feature of halakhic decisions does not refer exclusively or even necessarily to those areas where there appears to be actual discrimination against women. . . . The ideological underpinnings of halakhic decision making in these areas [issues related to reproductive technologies] reflect essentialist concepts of gender that often relate to women as objects rather than subjects and fail to take their interests and perspectives adequately into account.
(12) One who fatally strikes a person shall be put to death.
(א) הַנּוֹגֵף אֶת הָאִשָּׁה וְיָצְאוּ יְלָדֶיהָ אַף עַל פִּי שֶׁלֹּא נִתְכַּוֵּן חַיָּב לְשַׁלֵּם דְּמֵי וְלָדוֹת לַבַּעַל וְנֵזֶק וְצַעַר לָאִשָּׁה:
(1) One who strikes a woman and causes her to miscarry, even though this wasn't his intent, he must pay the value of the fetus to the [woman's] husband, and damage and pain to the woman.
“But if anyone has a contest with a woman who is pregnant, and strike her a blow on her belly, and she miscarry, if the child which was conceived within her is still unfashioned and unformed, he shall be punished by a fine, both for the assault which he committed and also because he has prevented nature, who was fashioning and preparing that most excellent of all creatures, a human being, from bringing him into existence. But if the child which was conceived had assumed a distinct Shape in all its parts, having received all its proper connective and distinctive qualities, he shall die; for such a creature as that is a man, whom he has slain while still in the workshop of nature, who had not thought it as yet a proper time to produce him to the light, but had kept him like a statue lying in a sculptor’s workshop, requiring nothing more than to be released and sent out into the world.”
רַבִּי הִיא דְּאָמַר הַמְשַׁחְרֵר חֲצִי עַבְדּוֹ קָנָה וְחַד אָמַר מַאי טַעְמָא דְּרַבִּי בְּהָא קָסָבַר עוּבָּר יֶרֶךְ אִמּוֹ הוּא וְנַעֲשָׂה כְּמִי שֶׁהִקְנָה לָהּ אֶחָד מֵאֵבָרֶיהָ
It is in accordance with the opinion of Rabbi Yehuda HaNasi, who says: With regard to one who emancipates half of his slave, the slave acquires freedom for half of himself, and one of them added an explanation and said: What is the reasoning of Rabbi Yehuda HaNasi for this ruling? He holds: A fetus is considered as its mother’s thigh, i.e., a part of its mother’s body, and it is as though the master transferred ownership of one of her limbs to her.
איתיביה רב חסדא לרב הונא יצא ראשו אין נוגעין בו לפי שאין דוחין נפש מפני נפש
Rav Ḥisda raised an objection to Rav Huna from a baraita: If a woman was giving birth and her life was being endangered by the fetus, the life of the fetus may be sacrificed in order to save the mother. But once his head has emerged during the birthing process, he may not be harmed in order to save the mother, because one life may not be pushed aside to save another life.
יצא ראשו - באשה המקשה לילד ומסוכנת וקתני רישא החיה פושטת ידה וחותכתו ומוציאתו לאברים דכל זמן שלא יצא לאויר העולם לאו נפש הוא וניתן להורגו ולהציל את אמו אבל יצא ראשו אין נוגעים בו להורגו דהוה ליה כילוד ואין דוחין נפש מפני נפש
its head came out: With a women that is experiencing difficulty giving birth and is in danger. And it is taught in the first section [of this teaching], "the midwife extends her hand and cuts it up and extracts [the pieces];" as the entire time that that it has not gone out into the air of the world, it is not [considered] a soul, and [so] it is possible to kill it and to save its mother. But when its head came out, we cannot touch it to kill it, as it is like a born [baby]; and we do not push off one soul for the sake of another.
(ט) אַף זוֹ מִצְוַת לֹא תַּעֲשֶׂה שֶׁלֹּא לָחוּס עַל נֶפֶשׁ הָרוֹדֵף. לְפִיכָךְ הוֹרוּ חֲכָמִים שֶׁהָעֻבָּרָה שֶׁהִיא מַקְשָׁה לֵילֵד מֻתָּר לַחְתֹּךְ הָעֵבָּר בְּמֵעֶיהָ בֵּין בְּסַם בֵּין בְּיָד מִפְּנֵי שֶׁהוּא כְּרוֹדֵף אַחֲרֶיהָ לְהָרְגָהּ. וְאִם מִשֶּׁהוֹצִיא רֹאשׁוֹ אֵין נוֹגְעִין בּוֹ שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נֶפֶשׁ וְזֶהוּ טִבְעוֹ שֶׁל עוֹלָם:
(9) This, indeed, is one of the negative mitzvot - not to take pity on the life of a rodef. On this basis, our Sages ruled that when complications arise and a pregnant woman cannot give birth, it is permitted to abort the fetus in her womb, whether with a knife or with drugs. For the fetus is considered a rodef of its mother. If the head of the fetus emerges, it should not be touched, because one life should not be sacrificed for another. Although the mother may die, this is the nature of the world.
“One who kills his children--the fetus carried by his wife, causing it to be killed in her belly, destroying the formation of the blessed Holy One and God's Handiwork. There are those who kill a person, but this one kills his own children! Three evils he perpetrates, which the whole world cannot bear; so the world disintegrates little by little, with no one realizing. The blessed Holy One withdraws from the world, and sword, famine, and pestilence come upon the world. These [three evils] are: killing his children, demolishing the structure of the Monarch, and driving away the soul--which goes wandering through the world, unable to find rest. For these the Holy Spirit weeps, and all those punishments are inflicted upon the world. Woe to that man! Woe to him! Better for him if he had never been created!”
אמנם נדון השואל בא"א שזנתה שאלה הגונה היא. וקרוב בעיני להתירה...וגם בעובר כשר הי' צד להקל לצורך גדול. כל כמה דלא עקר. אפי' אינו משום פקוח נפש אמו. אלא להציל לה מרעתו. שגורם לה כאב גדול וצ"ע.
Rabbi Jacob Emden Responsa She’elat Ya”vetz 1:43 (1739-1759)
The questioner asks about an adulterous married woman (who is pregnant) is a good question. It appears to me to permit her (to abort)...And even in the case of a legitimate fetus there is reason to be lenient if there is a great need, as long as the fetus has not begun to emerge; even if the mother’s life is not in jeopardy, but only so as to save her from an evil associated with it that would cause her great pain…
Mental-health risk has been definitely equated with physical-health risk. This woman, in danger of losing her mental health unless the pregnancy is interrupted, would therefore accordingly qualify.
כשנשקפת סכנה לאשה בהמשכת ההריון יש להתיר הפלת העובר בשופי. גם כשמצב בריאותה של האשה רופף מאד ולשם רפואתה או השקטת מכאוביה הגדולים דרוש לבצע הפלת העובר, אע“פ שאין סכנה ממשית, גם כן יש מקום להתיר לעשות זאת, וכפי ראות עיני המורה המצב שלפניו.
Rabbi Eliezer Waldenberg, Tzitz Eliezer 9:51.3 (1967)
If there is a danger to the mother from continuing the pregnancy, one should permit abortion without hesitation. Also, if her health is poor and to cure her or to relieve her from great pain it is necessary to abort the fetus, even if she is not in actual danger, there is room to permit it, based on the halachic authority’s evaluation of the situation.
There is clear precedent in the tradition...to permit abortion of a fetus to save a mother’s life, to safeguard her health, or even for “a very thin reason,” such as to spare her physical pain or mental anguish.
These texts are primarily sourced from Igros Moshe, a collection of his responsa
Reb Moshe Feinstein was adamant that abortion is not permissible except in an instance where halakha would mandate it, namely, where the fetus poses a direct threat to the life of the mother. Thus, there is no “choice.” One is either mandated to abort, where it appears halachically/medically necessary, or may not abort, where such a danger does not exist...
R’ Moshe is adamant that abortion constitutes a form of murder. The halachic concept of Din rodef permits one to kill someone who is threatening to murder someone else, and R’ Moshe says that by invoking din rodef to permit killing the fetus, Rambam was also teaching that a fetus is considered a living person. Only the status of a rodef permits one person to kill another person. Without this justification, the killing of a fetus would in fact be an act of murder, the same as killing any other person. R’ Moshe writes, explaining the Rambam: “It is even more clear in the Rambam that killing a fetus is murder, for he based the permission to cut a fetus to save a mother on the fetus’s status as a pursuer attempting to kill her.”
Therefore, when not actually threatening the mother’s life, killing a fetus is murder: "Abortion is forbidden as murder both for gentiles and Jews … Therefore, the law is… that there is a complete prohibition of murder, derived from the verse, “You shall not murder” (Shemot 20:13), even regarding a fetus, except that the killer is not liable for the death [penalty]... It would be forbidden to kill it even to save someone’s life. The exception would be to save the life of the mother during childbirth, not for any other need of the mother, which would be definitely forbidden."
“Killing a fetus is prohibited until the doctors have great reason, close to certainty, that the mother will die. Since the permission is due to the fetus’s status as a pursuer, it must be near-certain that he is a pursuer.”
In the same teshuva, he explains that in a case where a woman is pregnant and has an illness that cannot be treated while she’s pregnant, we cannot consider the fetus a rodef because the fetus is not threatening her life technically. The fetus is only preventing her treatment, and one who prevents a life-saving act is not considered a rodef.
In addition, Reb Moshe vehemently denies that there is any possibility to abort in instances of fetal anomaly or disease:
“Even for children for whom the doctors predict a very short life span, such as those children who are born with the disease called Tay-Sachs, which through newly developed tests can be diagnosed prenatally, it would be forbidden since there is no danger to the mother and the infant is not a rodef. One cannot permit an abortion even though there is very great suffering involved … It is incontrovertible and clear as I have written, a straightforward halacha according to the words of our Masters, the traditional commentaries and halachic authorities, that abortion would be forbidden as bona-fide murder, for any fetus; legitimate or a mamzer, genetically normal or afflicted with Tay-Sachs, are all included in the prohibition according to the law.”
See more here: https://blogs.timesofisrael.com/abortion-and-the-igros-moshe/
Here it is clear that saving a life is not the only sanction for permitting an abortion. This is evident from the Talmudic passage that permits a nursing mother to cohabitate using a mokh (a barrier of cotton or wool) to prevent pregnancy… Since this prohibition is waived to facilitate normal family relations (which is why the emission in this context is not “wasteful”), it would follow that other ethical and humane factors may also be taken into account. It would seem to me that issues such as kevod ha-beriyot (dignity of persons), shalom bayit (domestic peace) and tza’ar (pain), which all carry significant halakhic weight in other contexts, should be considered in making these decisions.
Today, the Supreme Court of the United States overruled Roe v. Wade, the 1973 decision establishing a woman’s constitutional right to abortion. Agudath Israel of America welcomes this historic development.
Agudath Israel has long been on record as opposing Roe v. Wade’s legalization of abortion on demand. Informed by the teaching of Jewish law that fetal life is entitled to significant protection, with termination of pregnancy authorized only under certain extraordinary circumstances, we are deeply troubled by the staggering number of pregnancies in the United States that end in abortion...
To be sure, there are certain extraordinary circumstances where our faith teaches that a woman should terminate her pregnancy. Agudath Israel fully supports her right to abortion in such situations, both as a matter of constitutional free exercise and moral principle. However, it must be reiterated that these cases are indeed extraordinary, rare exceptions to the rule that fetal life is entitled to protection.
The Orthodox Union is unable to either mourn or celebrate the U.S. Supreme Court’s overturning of Roe v Wade. We cannot support absolute bans on abortion—at any time point in a pregnancy—that would not allow access to abortion in lifesaving situations. Similarly, we cannot support legislation that does not limit abortion to situations in which medical (including mental health) professionals affirm that carrying the pregnancy to term poses real risk to the life of the mother.
The Supreme Court’s ruling, which overturns federal constitutional protections of privacy and abortion rights that have stood since the landmark 1973 Roe v. Wade decision, will devastate the lives of women across the United States who will lose personal agency over their lives and bodies.
Dobbs v. Jackson Women’s Health Organization furthermore violates the religious liberty of the Jewish community by undermining women’s ability to follow halakha (traditional Jewish law), which permits and even requires, abortion in certain circumstances, particularly when the life or health of the woman is at stake.
As a matter of faith, Jofa supports every woman’s legal right to make decisions about, and have control over, her own body, without the involvement of the government or any other entity. Every woman should have the right to make her own decisions about religious and medical matters, including abortion, with counsel from clergy and doctors, free from stigma, and retaining human dignity.
The RA is outraged by the decision of the U.S. Supreme Court to end the Constitutional right to abortion and deny access to lifesaving medical procedures for millions of individuals in the U.S., in what will be regarded as one of the most extreme instances of governmental overreach in our lifetime...
For American Jews and those of other faiths, this decision is a restriction on our religious freedom...
The Committee on Jewish Law and Standards of the Rabbinical Assembly has repeatedly affirmed the right of a pregnant person to choose an abortion in cases where ‘continuation of a pregnancy might cause severe physical or psychological harm, or where the fetus is judged by competent medical opinion as severely defective.’ This position is based on our members’ understanding of relevant biblical and rabbinic sources, which compel us to cherish the sanctity of life, including the potential of life during pregnancy, and does not indicate that personhood and human rights begin with conception, but rather with birth as indicated by Exodus 21:22-23.
The Central Conference of American Rabbis condemns, in the strongest terms, the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization and deplores the reversal of the precedent set a half-century ago in Roe v. Wade. Roe guaranteed a right to reproductive health care, enabling tens of millions of pregnant people to terminate pregnancies that threatened their wellbeing. Now we face a terrifying future: hundreds of millions of Americans, in about half of the fifty states, will lack access to safe and legal abortion care...
This decision violates the First Amendment’s guarantee of the right to free exercise of religion for Jews and others whose religious traditions, like ours, permit abortion. Moreover, this ruling is a violation of the principle of the separation of church and state, a cherished ideal of our unique American democracy.
JERUSALEM — Israel has eased access to abortion in response to the U.S. Supreme Court decision to overturn Roe v. Wade, a move that the country’s health minister said has set back women’s rights by “one hundred years.”
The new policy, approved on Monday by an overwhelming majority in the parliamentary committee, will grant women access to abortion pills through Israel’s universal health system and will exempt women from appearing before a special committee, whose approval has been required for decades for the termination of a pregnancy.
The committee, made up of a social worker and two doctors, will not be abolished, but it will review applications digitally and only conduct hearings in the very rare case it initially denies the procedure. The changes will take effect over the next three months...
Israel’s 1977 abortion law stipulates four criteria for termination of pregnancy: if the woman is under 18 or over 40; if the fetus is in danger; if the pregnancy is the result of rape, incest or an “illicit union,” including extramarital affairs; and if the woman’s mental or physical health is at risk. Around 98 percent of those who apply for an abortion receive one, according to Israel’s Central Bureau of Statistics.
By Sheila Katz and Rabbi Danya Ruttenberg
This is not just a matter of Jewish law, but of Jewish values. We consider pikuach nefesh, preserving life, to be one of our most critical commandments, and, more broadly, building a just society to be of ultimate Jewish concern—and, with abortion access, safety, justice, freedom, and lives are at stake. The U.S. has the highest rate of maternal mortality and morbidity among industrialized countries, with African-Americans and American Indian/Alaska Natives three times more likely to die of pregnancy-related causes than white Americans. Those who lack access to reproductive health care—disproportionately low-income people, people of color, young people, immigrants, and LGBTQ individuals—are more likely to live in poverty and to remain in abusive relationships, and unsafe abortions are a leading cause of death worldwide.