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(22) And should men brawl and collide with a pregnant woman and her fetus come out but there be no other mishap, he shall surely be punished according to what the woman's husband imposes upon him, he shall pay by the reckoning. (23) And if there is a mishap, you hall pay life for life, (24) an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, (25) a burn for a burn, a wound for a wound, a bruise for a bruise.
(2nd century Aramaic translation)
(22) If men will fight and they strike a pregnant woman, causing her to miscarry, but there is no fatal injury [to the woman], he [the guilty one] is to be punished with a [monetary] penalty when the husband demands compensation. He shall pay as determined by the judges. (23) However if there is a fatal injury [to the woman], you shall give [up] a life for a life. (24) [Compensation of] an eye for an eye, [of] a tooth for a tooth, [of] a hand for a hand, [of] a foot for a foot.
(11th century France)
ונתן HE SHALL PAY — i. e. the man that struck the woman shall give the value of the offspring.
ואם אסון יהיה BUT IF OTHER DAMAGE ENSUES — in the case of the woman,
(3rd century Greek translation)
22 ἐὰν δὲ μάχωνται δύο ἄνδρες καὶ πατάξωσι γυναῖκα ἐν γαστρὶ ἔχουσαν καὶ ἐξέλθῃ τὸ παιδίον αὐτῆς μὴ ἐξεικονισμένον, ἐπιζήμιον ζημιωθήσεται· καθότι ἂν ἐπιβάλῃ ὁ ἀνὴρ τῆς γυναικός, δώσει μετὰ ἀξιώματος· 23 ἐὰν δὲ ἐξεικονισμένον ᾖ, δώσει ψυχὴν ἀντὶ ψυχῆς,
Now if two men fight and strike a pregnant woman and her child comes forth not fully formed (i.e. with a birth defect), he shall be punished with a fine. According as the husband of the woman might impose, he shall pay with judicial assessment. But if it is fully formed (i.e. and dead), he shall pay life for life, eye for eye...
(The Didache, also known as The Lord's Teaching Through the Twelve Apostles to the Nations, is a brief anonymous early Christian treatise written in Koine Greek, dated by modern scholars to the first or second century CE.)
Now the second command of the teaching: Thou shalt not kill…Thou shalt not murder the child in the mother’s womb nor kill the newly born
(4th Century BCE)
What makes each of us to be what he is, is nothing else than the soul, while the body is a semblance which attends on each of us, it being well said that the bodily corpses are images of the dead, but that which is the real self of each of us, is that which we term the immortal soul.
Soul and Body Conceived, Formed and Perfected in Element Simultaneously.
(2nd century CE)
How, then, is a living being conceived? Is the substance of both body and soul formed together at one and the same time? Or does one of them precede the other in natural formation? We indeed maintain that both are conceived, and formed, and perfectly simultaneously... Now we allow that life begins with conception, because we contend that the soul also begins from conception; life taking its commencement at the same moment and place that the soul does.
(c. 200-500 CE)
§ The Sages taught: There are three partners in the creation of a person: The Holy One, Blessed be He, and his father, and his mother. His father emits the white seed, from which the following body parts are formed: The bones, the sinews, the nails, the brain that is in its head, and the white of the eye. His mother emits red seed, from which are formed the skin, the flesh, the hair, and the black of the eye. And the Holy One, Blessed be He, inserts into him a spirit, a soul, his countenance [ukelaster], eyesight, hearing of the ear, the capability of speech of the mouth, the capability of walking with the legs, understanding, and wisdom.
(ו) האשה שהיא מקשה לילד, מחתכין את הולד במעיה ומוציאין אותו אברים אברים, מפני שחייה קודמין לחייו. יצא רבו, אין נוגעין בו, שאין דוחין נפש מפני נפש.
(c. 200 CE)
(6) A woman who was having trouble giving birth, they cut up the fetus inside her and take it out limb by limb, because her life comes before its life. If most of it had come out already they do not touch it because we do not push off one life for another.
(ז) הַמַּפֶּלֶת לְיוֹם אַרְבָּעִים, אֵינָהּ חוֹשֶׁשֶׁת לְוָלָד. לְיוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה. רַבִּי יִשְׁמָעֵאל אוֹמֵר, יוֹם אַרְבָּעִים וְאֶחָד, תֵּשֵׁב לְזָכָר וּלְנִדָּה. יוֹם שְׁמוֹנִים וְאֶחָד, תֵּשֵׁב לְזָכָר וְלִנְקֵבָה וּלְנִדָּה, שֶׁהַזָּכָר נִגְמָר לְאַרְבָּעִים וְאֶחָד, וְהַנְּקֵבָה לִשְׁמוֹנִים וְאֶחָד. וַחֲכָמִים אוֹמְרִים, אֶחָד בְּרִיַּת הַזָּכָר וְאֶחָד בְּרִיַּת הַנְּקֵבָה, זֶה וָזֶה לְאַרְבָּעִים וְאֶחָד:
(c. 200 CE)
(7) If a woman miscarried on the fortieth day, she need not be concerned that it was a valid childbirth. On the forty-first day, she sits as for both a male and a female and as for a menstruant. Rabbi Ishmael says: [if she miscarried on] the forty-first day she sits as for a male and as for a menstruant, But if on the eighty-first day she sits as for a male and a female and a menstruant, because a male is fully fashioned on the forty-first day and a female on the eighty-first day. But the sages say: the fashioning of the male and the fashioning of the female both take forty-one days.
(ט) אף זו מצות לא תעשה שלא לחוס על נפש הרודף. לפיכך הורו חכמים שהעוברה שהיא מקשה לילד מותר לחתוך העובר במיעיה. בין בסם בין ביד מפני שהוא כרודף אחריה להורגה. ואם משהוציא ראשו אין נוגעין בו שאין דוחין נפש מפני נפש וזהו טבעו של עולם.
(12th century CE)
(9) The Torah commands that we show no mercy to the life of the pursuer. The Sages therefore ruled that when a pregnant woman experiences a dangerous childbirth it is permitted to dissect/destroy the fetus in her womb, whether by means of a drug or by surgery, because it is akin to a pursuer (k’rodef) seeking to kill her. But once its head has emerged it may not be harmed, because one nefesh is not sacrificed on behalf of another nefesh. This is the nature of the world.
(ד) האשה שהיא יוצאה להרג, אין ממתינין לה עד שתלד.ישבה על המשבר , ממתינין לה עד שתלד.
(c. 200 CE)
(4) If a woman is about to be executed, we do not wait for her to give birth (before carrying out the sentence of death). But once she goes into labor, we do wait for her to give birth
Rabbi Eliezer Waldenberg (Orthodox), 1975
It is clear that in Jewish law an Israelite is not liable to capital punishment for feticide.... An Israelite woman was permitted to undergo a therapeutic abortion, even though her life was not at stake.... This permissive ruling applies even when there is no direct threat to the life of the mother, but merely a need to save her from great pain, which falls within the rubric of "great need." Now, is it possible to imagine a case in which there is more need, pain, and distress, than the present one, in which the mother is confronted by the [prospect of a] suffering child whose certain death is only a few years away and nothing can be done to save it?
1. Abortion is not murder, because the fetus is not a nefesh. True, progressive responsa regard abortion as a morally fraught decision. If the fetus is not a legal person, it is a potential legal person that makes a claim upon our protection. At the same time, abortion is a morally justifiable procedure: if a woman has good and sufficient cause for abortion, then her fetus may be sacrificed on behalf of her physical and emotional well-being.
2. The definition of “good and sufficient cause” is difficult to specify in the abstract, but as we have seen, it is not limited to situations where childbirth poses mortal danger to the woman. The decision must be made on a case-by-case basis, in the context of each particular set of circumstances. And - here is where the line has to be drawn –it cannot be fixed in advance by legal or religious authorities who do not know the woman in question and who are in no position to determine just what counts as her physical or emotional wellbeing. She is the only one in that position. Therefore, the decision for abortion can only be made by the woman herself.
3. For this reason, we ought to oppose legislation that would ban or restrict access to abortion. Such legislation may (or may not) be motivated by good intentions, but in almost every case it denies a woman the option to make a choice that our halakhic tradition would recognize as morally justifiable. This would be an unacceptable violation not only of her personal dignity but also of the freedom of religion that liberal and democratic societies guarantee to their citizens. Indeed, it is more than ironic that the loudest opponents of abortion rights in our communities tend also to be the loudest advocates of “religious liberty.” They should not deny to Jews and to others the possibility of making a choice that, according to our understanding of the halakhah, they have every right to make.
Dr. Michal Raucher
The problem is that the Halakhic sources promote what we call a justification framework for thinking about abortion and for this, I must cite my wonderful friend and colleague, Dr. Toddie Peters, who has written extensively about Christian support for the pro-choice movement, Christian support for abortion. And the problem with the justification framework is that it assumes, first of all, that abortion is a moral or a legal wrong except in certain circumstances.
This kind of thinking is an act of social control. One has to prove they have a good enough reason to have an abortion in order for us to think of it as morally okay. It shames people for exercising their right to reproductive health care. People end up spending a lot of time and energy thinking about the circumstances under whether one can have an acceptable abortion. And the whole conversation is framed as one of judgment.
There’s no surprise, then, that people feel a great deal of shame about their reproductive choices when we’ve framed it, as you have to justify your decision. And moreover, it suggests the fact that there are some cases where abortion cannot be justified and if abortion can not be justified, then what we’re talking about is forced pregnancy and childbirth
Ephraim Frisch, et. al.
Yearbook of the Central Conference of American Rabbis 36 (1926): 103.
...the bringing in of a disproportionate number of children born within those classes of society where destitution, unhygienic condition or irresponsibility prevail; these circumstances resulting in a comparatively poor progeny, to the detriment of the families concerned as well as of the nation. There is a growing and justified widespread opinion that citizenship material ought to be more carefully and eugenically selected.
Yearbook of the Central Conference of American Rabbi 39 (1929): 85-86.
Recognizing the need of exercising great caution in dealing with the delicate and complicated problem of birth regulation in view of the widespread dissolution of the old sanctions affecting the institution of marriage and the ties of family life; earnestly desiring to guard against playing into the hands of those who undermine the dignity and sanctity of these precious bonds through reckless notions and practices having to do with sex relations; especially mindful of the noble tradition obtaining among the Jewish people with respect to the holiness and the crucial importance of domestic relations; but realizing at the same time the many serious evils caused by uncontrolled parenthood among those who lack the prerequisites of health and a reasonable measure of economic resources and intelligence to give their children the heritage to which they are entitled...
Reproductive Justice (RJ) means the human right to control our sexuality, our gender, our work, and our reproduction. That right can only be achieved when all women and girls have the complete economic, social, and political power and resources to make healthy decisions about our bodies, our families, and our communities in all areas of our lives.
At the core of Reproductive Justice is the belief that all women have
- the right to have children;
- the right to not have children and;
- the right to nurture the children we have in a safe and healthy environment.