Jewish Law Concerning the Beginning of Life

Halakhah, Jewish Law, has much to offer to discussions surrounding stem cell research and abortion as rabbis are currently debating this issue. To see what the poskim (rabbis having authority to decide matters of halakhah), have to work with, one must examine previous rulings regarding IVF, abortion, the status of pre-embryos, and the obligation to preserve life. The poskim often times represent differing and even contrasting opinions, which again shows that these are not questions with black and white answers.

As all Jewish men must fulfill a mitzvah to procreate, a large number of authorities expressed the opinion that IVF was allowed as long as the husband's sperm was used to fertilize his wife's eggs. The question of what should be done with the leftover embryos brings us again to the question of, what is the status of those embryos? Abortion is allowed by halakhah, but only in situations where the fetus is a threat to the mother's life. Once the head has emerged from the womb the child is considered to be a life equal to that of the mother and can not be killed. Due to the improvement of medical technology and caesarean sections, it is not very common that an abortion would be deemed necessary today.

According to halakhah, Jews should not have abortions for any reason other than a threat to one's own life. Most influential poskim also forbid abortion for an abnormal or otherwise unhealthy fetus. Rabbi Waldenberg is an exception to the rule, allowing abortion during the first trimester of a fetus with a deformity, and up until the end of the second trimester for a fetus with a terminal defect or disease.

When it comes to interpreting Exodus 21:22, the rabbis see this verse as showing that the life of a fetus is not equal to the life of an adult. There does not seem to be ambiguity surrounding this verse as there are with the contemporary Christian translations as there is no mention of rabbinic debate over the meaning of this passage. In Rabbi Yehuda Ashkenazi's commentary on The Code of Jewish Law it is stated that a fetus is not a person with full rights as is an adult, because the man who hits the woman and causes her to miscarry is obligated to pay a monetary value for the child but is not executed. Some poskim do consider abortion to be murder, but do not advocate the death penalty for the perpetrator. To complicate matters further, it is said in the Talmud that a pregnant woman who is about to be executed should have a court-assisted miscarriage prior to her execution (Arachin 7a). It is also said in the Talmud that in order to save a fetus, the Sabbath may be desecrated. Only in order to save a life, pikuach nefesh, may one break the Sabbath. This is also interesting to note because in another rabbinic passage a nefesh, or a soul, is said not to enter into the body of a newborn until 30 days after birth.

"And Onan knew that the seed should not be his; and it came to pass, when he went in unto his brother's wife, that he spilled it on the ground, lest that he should give seed to his brother. And the thing which he did displeased the LORD: wherefore he slew him also" Genesis 38:9-10 KJV

Jewish men must also obey the prohibition of "wasting seed." Emission, destruction, or otherwise misuse or waste of sperm is not allowed, but some poskim have come to the conclusion that sperm leftover at IVF can be destroyed. This is a case where a halakhic ruling is overridden in order to fulfill the mitzvah of procreation.

But if "seed' should not be wasted because of its life-giving potential, then what about embryos? Embryos are another step closer to personhood and have more potential to become a person than an individual sperm ever will. In order for a sperm to create life it must join with an egg. By destroying embryos or allowing them to sit in freezers, is one technically wasting seed?

Usually when a woman gives birth or suffers a miscarriage she remains ceremonially unclean for a number of days and then must go to the temple to be cleansed. The Mishnah, rabbinic traditions which were gathered in the first and second centuries AD and became part of the Talmud, asserts that a woman does not have to go through this process if she has a miscarriage during the first forty days of pregnancy. In Yavamot 69b, a fetus up to forty days is treated as mayim b'alma meaning "mere water." There does not seem to be any consensus on the status of a fetus before forty days, as several prominent rabbis argue that abortion is forbidden even during these first forty days.

Some rabbis have given opinions on pre-implantation diagnosis used during IVF. This allows a couple to diagnose possible genetic diseases before choosing to implant an embryo into the mother's body. "Rabbi Yosef Shalom Eliyashuv, possibly the most influential posek in Israel today, has permitted pre-implantation diagnosis and destruction of affected zygotes to prevent cases of Fragile-X" and other similar cases. A few rabbis are already speaking up in support of stem cell research.

David Eisenhower challenges the current position of the Christian Coalition of America and the Roman Catholic Church regarding stem cell research. He admits that in Jewish tradition rabbinic laws, known as gezerot, have been created to "erect fences" around Biblical laws. Gezerot serve to protect laws that have been clearly defined from the Torah.

"Surely our tradition respects the effort of the Vatican and fundamentalist Christian faiths to erect fences that will protect the biblical prohibition against abortion. But a fence that prevents the cure of fatal diseases must not be erected, for then the loss is greater than the benefit. In the Judeo-biblical legislative tradition, a fence that causes pain and suffering is dismantled. Even biblical law is superseded by the duty to save lives...."

Source:

Eisenberg, Daniel M.D. "Stem Cell Research in Jewish Law." Jewish Law. 2001.

Further Reading by Heather Carreiro:

What are Stem Cells?

The Bush Administration and Stem Cell Research

End of Life: What Does it Mean to be Brain Dead?

Stem Cell Research: A Christian Perspective