During the 3,000-year history of Jewish law, there is not one single legal opinion about abortion written by a woman. Shocking as that is, there is no doubt that in a conflict between the rights of the pregnant woman and the foetus, she comes first.
Exodus 21:22 is clear that any miscarriage that results when a pregnant woman is struck during a struggle between two fighting men, the loss is punishable only by a fine, calculated by her husband. Although it may seem as though her pregnancy is only of material value, this key text establishes her life as having precedence; she is not a mere receptacle for the foetus she carries within her.
Later on, the rabbis of the Mishnah (Oholot 7:6) say that during labour, if her life is at risk, the foetus is dismembered, because her life comes first. Once the majority (which is later defined as the head) emerges, one life cannot supersede another.
In the 12th century, Maimonides, who was himself a physician, went as far as to say that during childbirth a foetus could be deemed a potential killer who can be killed in order to save another person’s life. Although his view was accepted, it is controversial to this day.
Judaism teaches that the soul is always pure. Nevertheless, up to 40 days of life, the embryo is ‘mere water’, and unstable like all fluid. After this point, most halachic thinkers agree with abortion in the case of maternal danger, to safeguard the mother’s health or protect her from anguish. Not all agree about terminating a pregnancy purely to prevent the birth of a child with genetic or developmental illness or disability. After all, who can say what the outcome will be for every condition?
Classical halacha does not treat the newborn as viable until she or he lives for 30 days. Progressive Judaism treats all babies as viable from birth.
Today, advances in medical care mean that our understanding of viability itself is profoundly different. A foetus in late-term pregnancy has the potential to enjoy future life. One can also say that while the foetus does not have an equal claim, it has something of life. At the same time, it is also dependent, and any harm to it will cause harm to the mother. Self-harm is something we guard very carefully against.
While there are no planned changes to medical abortion, the changes to the Policing and Crime Bill will decriminalise a woman who has undergone a later term abortion by herself, without medical intervention. The question is, who will be held responsible when a woman is coerced, deceived or terrified into ending her pregnancy? Since Covid, medication is easily obtainable online without medical oversight.
The Torah challenged the prevailing world view of the Ancient Near East, where women were receptacles, and their babies were ultimately valuable as soldiers and social assets.
In today’s world, where autonomy is so often the supreme value, it is time for a rethink, to apply our evolving ethics to the fragile, transitory and vulnerable reality of human beings at the beginning and the end of life.
Rabbi Shulamit Ambalu is Chair of the Assembly of Reform Rabbis and Cantors
