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Is Judaism Pro-Choice?

Is Judaism “abortionist”?

A question that may bother many. A sensitive issue that divides societies and, in American society, it seems to have suffered a setback.

The first thing we must understand is there is no such thing as “Judaism.” There are, as always, and as in most Jewish legal issues, divergences of positions. In general, they are all based on biblical or talmudic sources that generate one or more legal positions regarding the subject consulted and treated. These legal verdicts are what we call “Responsa” or “Shut”, in Hebrew, derived from the acrostic made out of the words “SHeelot UTshuvot”, questions and answers.

The Hebrew term used to talk about abortion is hapalah, which comes from the verb to fall. Abortion is the fall of a potential life. We already know that the almost unanimous position in the Talmud sacralizes human life, saying that all the laws concerning Shabbat can be violated to save a single life, even that of a fetus. Not only is it an obligation to transgress Shabbat laws to save a “constituted” person, but we must also do our best to save a fetus, even though it is not a full life (lav nefesh hu, in Rashi's words). The value of life is sacred.

In any case, and despite the sacred value of life, the Jewish tradition has always considered abortion as a legitimate possibility in certain circumstances.

In Genesis 9:6 we read “Whoever sheds the blood of man that is found in man, his blood shall be shed by man; for in the image of God He made man.”

Rabbi Ishmael in the Talmud interprets that this verse speaks in relation to someone who harms a fetus, since it speaks here of the blood of the human being that is inside the human being. What blood can there be inside a human being that is not his own blood? Our sages taught it was that of another being, meaning a fetus.

In this way, the Talmud maintains that there is a general prohibition in relation to abortion, since whoever sheds that blood, his own blood will be shed as punishment.

Let us see the other positions: The fetus is not considered a full life (bar kayama, in talmudic terminology) until after thirty days of being born. The number of dead babies during the first month of life was very high and the sages established that if they completed their first month of life they would have a greater chance of surviving and reaching adulthood.

During the months of gestation, the fetus is, according to talmudic opinions, a thigh of the mother, one of her limbs. The term used by the Talmud is ubar yerech imo, which refers to the fact that the fetus is not an autonomous being and that it is an intrinsic part of the mother's body until the moment she breaks the womb. From this notion, if a woman converts to Judaism while pregnant, the child at birth does not have to convert, since he was a part of his mother at the time of conversion. Furthermore, “If a woman is about to be executed, one does not wait until she gives birth. However, if she has started her labors, one waits until she gives birth.” The fetus is not an “autonomous life” until it leaves the mother's body and becomes an autonomous entity with full life.

From the moment the zygote is formed until it is 40 days old, it is considered merely water (maya bealma hi). Until that moment, it is not even a fetus, it is water, a mere liquid, not even an extension of its mother's body as of yet. This makes the abortion within those first 40 days not being even debatable. The pill commonly known as the “morning after pill” is allowed in rabbinical legislation since it is preferable to act quickly before that potential life continues to develop.

The Mishnah (legal codification of the third century) brings us the first explicit reference to legislation on abortion: “A mother who finds it hard to have her child, you must beat her belly and remove it organ by organ so that she may live. If most of the body comes out, we do not usually do this because we don't replace one life with another.”

Abortion in advanced pregnancies is allowed only in cases where the life of the mother is in real danger. If the fetus endangers the life of the mother, it can be terminated so that the mother can live. If a fetus was considered to be a life per se, this reasoning would make no sense, because as we already quoted “ein dojin nefesh mipnei nefesh”, we do not replace one life with another or in favor of another. That is why the fetus is considered a rodef, a persecutor who puts the mother in danger. The fetus that threatens the life of the mother must be terminated, and it is no longer a possibility but an obligation to do so. It is considered an aggression that must be interrupted to avoid the loss of a full life. (Rambam, Mishne Torah, Hilchot Rotzeach Ushmirat Nefesh 1:9)

Until the 7th century, Jewish law only allowed abortions for therapeutic reasons. However, since the beginning of modernity, various rabbis have expanded the considerations to allow abortion. At the end of the 19th century, with psychoanalysis, certain rabbis understood that the “harms” referred to in the Mishnah are not only physical, but also psychological. Some considered if the mother suffered serious psychological disorders, or serious depression from continuing the pregnancy, then the option of aborting would be possible.

It is not a matter of being or not an abortionist. Abortion, like any extreme measure, should only be considered in extreme cases. When we think and reflect about it, we should do so under the idea of irat shamaim and kvod haberiot—of a reverential fear of God and respect for the human being, realizing that our decisions will have an immeasurable impact on our lives and on the lives of so many others. The law and the agencies that regulate and execute it must support and accompany mothers and fathers, administering the inalienable right to decide on the continuity of a good life and well being.

In conclusion, as CJLS co-chairs Rabbi Eliott Dorf and Pamela Barmash made clear, neither viability nor a woman's right to choose is the basis of Jewish law on abortion; they play a role only indirectly and it is not even a topic up for discussion: what matters in Jewish law is the woman's life and health, both physical and mental.

Rabbi Gustavo Geier


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