Friday, February 1, 2019

Parashat Mishpatim and Reproductive Health


CW: Abortion          
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 Shabbat Shalom. This week’s Torah portion, Parashat Mishpatim, opens, as I read, with some outdated and seemingly obscure laws regarding the care of slaves. These laws were actually hugely important and progressive in their time, and really, continued to be ahead of their time for millenia if you compare how the Torah describes slavery versus the realities of American chattel slavery in the 17th through 19th centuries. It is through these laws that the Haftarah connects, as the Prophet Jeremiah passes on the judgment of God that because the elite of Jerusalem and the Kingdom of Judah recaptured their slaves after the obligatory freedom granted to them at 6 years, these transgressors shall be delivered into the captivity of the Babylonians.
Parashat Mishpatim, you see, is entirely concerned with how Jewish people deal with one another, particularly concerning the sanctity of life, and how society must hold accountable those who cause harm. It is in this context that we hear one of the most famous quotes of the Torah, though the quote is probably most famous in its turnaround phrase commonly attributed to Gandhi. “If there is a fatality, you shall give a life for a life, an eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, and a bruise for a bruise” (Exodus 21:23-25). Of course, Gandhi’s famous response is “An eye for an eye will cause the whole world to go blind.” Most rabbis even in ancient times agreed that the Torah isn’t literally talking about plucking out eyes or exacting brutal physical punishment; it’s talking about creating proper laws and ordinances that people should live by, including the proper payments and punishments for breaking them.
            But what counts as a fatality that should be repaid in kind? What is a life that deserves “life for life”? Essentially, when does life begin, and when does death really count? The verse immediately prior to the famous “A life for a life” quote states that if men are quarrelling and one happens to hit a pregnant woman, causing her to miscarry, he shall surely be punished. The woman’s husband may make demands of the man who struck her and a judge may enforce some sort of restitution. However, continues verse 23, “if there is a fatality, you shall give a life for a life,” clearly distinguishing the termination of a pregnancy with the death of a living person. The fetus is not yet considered a life. The harm to the woman, the couple, and the potential family they are deprived of by the termination of the pregnancy is clearly considered a tragedy and the one responsible must may restitution, but he is not liable for murder or even manslaughter.
            Based on this Torah verse, the rabbis of the Talmud asked themselves similar questions regarding the concepts of “life” and “death” and determined that within forty days of conception the zygote is “simply water.[1]” The rabbis had a pretty sophisticated understanding of the development of the fetus considering their general access to medical science in the 5th century, and further established a difference between the first trimester from the rest of gestation. These distinctions were not meant to allow abortions without consequence for those first few months. As in the case with the man that pushes a pregnant woman and must be fined for causing her to miscarry, intentional termination of the pregnancy is also considered forbidden. However, unlike in the Christian-informed arguments we often hear in the secular world, this injunction is not on the basis that the fetus is a life. Rather, it comes from the prohibition on self-harm. The fetus is considered by the Talmud as “like the thigh of its mother,” and since our bodies are considered to be the property of God, in the image of God, we are discouraged from causing harm to them unless it will save our lives.
Going further, Tractate Ohalot in Seder Tohorot of the Mishnah establishes that even up to the moment of childbirth, a pregnancy might be terminated for the sake of the life of the mother. If the childbirth is proving very difficult and there is concern the mother will live through it, the Mishnah says that the “the embryo within her should be dismembered limb by limb,” which seems an unnecessarily grotesque way to phrase that, because her life takes precedence. However, once the head emerges (or more than half the body, in the case of a breach), then the birth must be allowed to continue, even at the peril of the mother because once it is partially born, it is a life. Although saving a life is a priority mitzvah, we should not end one for another. And yet, as the Gemara comments on this Mishnah, we are sometimes compelled to end one life for the sake of another, as in the case of one who pursues murder. Tradition tells us that we should kill a potential murderer in order to save him from the grave sin of murdering, as well as to save the life of his intended victim. So, the Talmud asks itself if this is the case with the baby killing its mother in the process of being born. Although emotionally a big jump, the logic follows. If one life force is killing another, are we not obligated to stop that killing? Sanhedrin 72b concludes that because the baby cannot be intending to kill, it is considered that “the mother is pursued by heaven.” It is a complicated answer to a complicated series of questions.
            The mitzvah of pikuach nefesh, or saving a life, is of utmost importance in Judaism. Therefore, we are permitted to break almost any other rule if it will mean protecting a life. In the case of abortion, the question remains what counts as “saving a life” – and whose life? In the traditional sense, it has meant that the pregnancy has put the woman’s life in imminent mortal danger. In this case, as the Talmud makes very clear, abortion is not only allowed, but required. Jewish law is equivocating in saying that a woman should never be forced to carry to term or give birth if her body is not physically able to do so safely. Traditional sources also permit, but do not require, abortion in a situation where it seems that the pregnancy causes a greater risk than most but is not putting the mother’s life in clear and present danger. Arakhin 7a[2] even includes in this category the possibility that the pregnancy causes such psychological anguish that the mother becomes at risk for other self-destructive behaviors, the Talmud specifying in this case a pregnancy with a “deformed child”, though in modern circumstances, we might think more to cases involving pregnancy from non-consensual sexual acts rather than assuming a child born with a physical abnormality is psychologically harmful to the parents.
            This last exception by the ancient rabbis opens the door for many possible claims of mental anguish that would allow for a halakhic abortion in more progressive modern responsa. It seems to me that rabbis throughout history generally found the practice unpleasant and wanted to dissuade women or couples as much as possible, but found ways to allow it when it was clear that some women would feel they truly need it. Later rabbis also permitted abortion in cases of a fetus’s presumed deafness (Ben Zion Uziel, 20th century pre-state Palestine), in cases when rubella occurs in early pregnancy (Uziel Weinberg, 20th century Europe), and in cases of Tay-Sachs disease and other serious abnormalities that might cause early death in the child anyway (Eliezer Waldenberg, later 20th century Jerusalem).
            A few years ago, the New York Times published a story about a woman who was pregnant with twins and decided to abort one of them[3]. The twins were a result of egg donation and in vitro fertilization, in which it is common practice to fertilize many eggs at once because of the likelihood that many will not effectively conceive. If there had been more zygotes that took, reducing the pregnancy would have been considered more halakhically acceptable and is, in fact, done by Jewish doctors if the number of fetuses is unusually high and pose a danger to each other and the mother. However, in this case, the twins did not pose great danger to the mother’s life, and was viewed by the article as just another choice in a series of choices in her family planning. I am not in the business of passing judgement on others’ life choices, but I bring this case up simply for the sake of distinguishing where Jewish law falls on this issue. Even Reform Judaism, the most liberal stance on Halakha, would discourage this choice, especially since the woman was already fourteen weeks pregnant. As I said earlier, the law is most lenient in the first forty days after conception and in cases where there is an abnormality for the baby or mother. Being a twin is unusual but doesn’t really count as a dangerous medical abnormality.
            There are no easy answers in any of this. If there were, there wouldn’t need to be over a thousand years’ worth of rabbis re-examining the topic and issuing new responses, fresh perspectives, and considering new details. Every case is different and should be looked at by its own merits. In the part of this parasha that does discuss the treatment of slaves, the repercussion for a slave who refuses to accept their freedom after their 6 years of servitude is to have an awl driven through their ear and into the doorpost of their master’s house. The ear is mutilated because in choosing to become a lifelong slave, they give up their autonomy, their ability to hear God and hear reason and hear different points of view for themselves. It is of utmost important that each Jewish person tries to learn and understand our Scripture and Law for themselves, understand our traditional stances on things, and come to an informed opinion that they may be able to articulate their own ideas from a Jewish perspective. Influence from our teachers, parents, leaders, and others we respect is normal, but ultimately it is up to each person to maintain their right to discern God’s Law for themselves, and govern themselves accordingly. Especially when it comes to the particularly sensitive and controversial topics, where it can be emotional and difficult to maintain healthy and nuanced conversations, we have a responsibility as Jews to understand the complexities and the legitimacy of a range of perspectives, and to do our best to uphold the sanctity of all life in these discussions.  May we always consider every living soul as sacred, and treat it with the proper care it deserves, as our tradition has taught us.


[1] Dorff, Elliot. Matters of Life and Death. Philadelphia: JPS, 1998. E-book.
[2] CCAR Responsa. January 1985. http://ccarnet.org/responsa/carr-23-27/
[3] Padawer, Ruth. “The Two-Minus-One Pregnancy.” New York: The New York Times Magazine, 2011. Web.

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