Wednesday, February 17, 2016

The Zika virus and Jewish Law

When does life begin asks the old joke.  A Catholic priest replies, “Life begins with conception.  That’s why abortion is forbidden. It is murder.” A Protestant Minister disagrees and says, “Life begins at birth; therefore under some circumstances abortion may be permitted.”  A Rabbi responds: “You are both wrong.  Life begins when your last child graduates from college and the dog dies.  That is when life really begins!” Often, the abortion debate has been framed by a question that asks, “When does life begin?”  “When does life begin” is the wrong question.  Of course, a fetus is living.  The question is whether it’s a person, an independent human being. 
The outbreak of the Zika virus shines a bright light bringing in great relief a difference between Judaism and Catholicism (and perhaps other streams of Christianity) when it comes to the theological concept of when the fetus is ensouled and becomes a human being. 
The New York Times reported on February 13, 2016:
As the Zika virus spreads in Latin America, Catholic leaders are warning women against using contraceptives or having abortions (despite the) of the risk of birth defects.
After a period of saying little, bishops in Latin America are beginning to speak up and reassert the church’s opposition to birth control and abortion
“Contraceptives are not a solution,” said Bishop Leonardo Ulrich Steiner, the secretary general of the National Council of Bishops of Brazil, and an auxiliary bishop of Brasília, in an interview. “There is not a single change in the church’s position.”
Cardinal Odilo Scherer of São Paulo said recently that mothers must accept babies born with microcephaly “as a mission,” and that abortion was out of the question. However, he appeared to open a door to using condoms, saying that is “personal choice” because a new life has not yet been formed.
The papal encyclical Humanae Vitae, issued by Pope Paul VI in 1968, said that artificial contraception was forbidden because sexual intercourse must always be open to procreation.
The Church believes that life begins with conception.  Abortion is muder.  When a decision is made to save the mother or the fetus, church doctrine teaches to save the mother since she has already been baptized and saved.  The fetus has not and will be doomed if it is aborted without the possibility of being baptized.
We Jews understand the status of the fetus completely differently. Although the fetus represents potential life, throughout rabbinic literature, we find that the fetus isn’t a separate person in the judicial sense, but a limb of the mother (yerech emo).  In fact until forty days after conception, the fertilized egg is considered as “mere fluid.” 
The proof text in the Torah that the fetus isn’t a person is found in Exodus 21:22-3. “When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be fined according as the woman’s husband may extract from him, the payment to be based upon reckoning….” If the miscarriage was considered murder, the man pushing the woman would be culpable of a capital offence.  The Talmuld (Sanhedrin 84b) teaches: “It was necessary for the Torah to write ‘He who fatally strikes a man (ish) shall be put to death (Exodus 21:12). For had the Torah written “who kills any person (nefesh) the murderer shall be put to death (Numbers 35:30), one would have concluded that capital punishment is applied to one who kills a fetus.”
 Describing a woman have trouble giving birth and her life is in danger one may abort the fetus in utero to save the mother’s life because the fetus is not a human being (lav nefesh hu) (Sanhedrin 72b).  Since the mother is alive and the fetus is only a potential life, we must save the actual life over the potential life.  The Mishnah in Ohalot 7:6 teaches: “If a woman in labor has a life-threatening difficulty, one dismembers the embryo within her, removing it limb by limb, for her life takes precedence over its life.  But once its greater part (of the head) has emerged it may not be harmed, for we do not set aside one life aside one life for another.” Only when the head has emerged it is considered a living person and cannot be touched.
Not only are we concerned about the mother’s physical wellbeing, but also concerned about her mental health.  “In a contemporary responsum, R. Eliezer Walderberg concludes that in principle, an abortion is permissible as late as the sixth month of pregnancy if tests reveals a Tay Sachs or Down’s Syndrome afflicted fetus. In justifying an abortion even at that late date, his concern was not the possibility of a physical threat to the mother, but rather the mental health of the mother who bears a fatally ill or deformed child. As R. David Feldman explains ‘(T)he principle that the mother’s pain ‘comes first,’ however, is the most pervasive of all factors in the consideration of the abortion question.”[i]
If a mother wishes to raise a child with the birth defect of microcephaly, we would support her.  However, if she would choose to abort the fetus because of the mental anguish it would cause her, Jewish law would also support her.
According to Jewish Law, the obligation to be fruitful and multiply falls solely on the male. Consequently, he is forbidden to use a condom as a birth control method.  Since the woman doesn’t have the obligation, certain forms of birth control are permitted.  Nevertheless, I remember when the Aids epidemic started hearing an orthodox rabbi permit in a sermon the use of condoms for a health measure to protect the lives of the partner and fetus, but not as a birth control.
Finally we disagree with the Church about sex.  At the conclusion of Creation, God views everything He has created and saw that it was very good. That includes sex between two loving partners.  In fact the Torah teaches us that “It is not good for man to be alone.” ( Gen.2:18) So God created Eve to be his partner and not just a hothouse to incubate his babies. Judaism permits sex without the intent of procreation.  Otherwise it would be forbidden to marry a barren person which it is not.  Otherwise it would be forbidden for a couple too old to have children to marry which it is not.  People are not meant to be alone and lonely.  Making love is the deepest and most intimate communication two people can have and God saw that as being very good indeed.

[i] Thinking about Women inAbortion Controversies by Adena K. Berkowitz A Journal of Philosophy, Law and Judaism Vol 2: No 2 1991, page 26.