Wednesday, March 15, 2023

The states' antiabortion laws violate the Jewish approach to abortion TB Nazir 51

When a nazir comes into contact either by touching, carrying, or being in the same room as a full ladle [tarvad-תַּרְווֹד] of dust from a corpse (rakav-רָקָב), he becomes ritually unready, tamei, and has to go through the process of becoming ritually ready and begin his nezirut all over again from the very beginning. Today’s daf TB Nazir 51 discusses the exact definition of dust from a corpse (rakav-רָקָב) and how much is the minimum amount of this dust to render a nazir tamei.

The only way to become rakav is to be from an unadulterated body. If something is decomposing along with the corpse like a wooden casket, the remains would not be considered rakav. “The Sages taught (Tosefta, Oholot 2:3): Which is a corpse that has the halakha of dust, i.e., whose dust imparts impurity? A corpse that was buried naked in a marble coffin or on a stone floor; this is a corpse that has the halakha of dust that imparts impurity. Any dust found there must have come from the corpse. However, if it was buried in its cloak, or in a wooden coffin, or on a brick floor, this is a corpse that does not have the halakha of dust that imparts impurity. In the latter cases it is assumed that the dust from the corpse includes particles from the clothes, wood, or bricks that disintegrated, and there is a tradition that the impurity of dust applies only to dust that comes solely from the corpse, not to a mixture from different sources.” (Sefaria.org translation)

The Gemara raises many questions what would be considered part and parcel of the body and what would you consider adulteration. One question has practical implications concerning a Jewish view of abortion. Is the fetus consider part of the woman’s body or a separate entity unto itself when comes to rakav?

“§ Rabbi Yirmeya raised yet another dilemma: Does a dead fetus in its dead mother’s womb form a mixture with regard to her, so that the bodies are considered like two corpses buried together, or not? The Gemara explains the two sides of the dilemma: Do we say that since the Master said that a fetus is considered as the thigh of its mother, it is therefore like her body and it does not form a mixture with it? Or perhaps one should maintain: Since in most cases a fetus will ultimately emerge from the womb at birth, it is already considered separated from her, and it is like any other corpse buried with the woman. And if you say that a fetus, which will ultimately emerge, is considered separated from her and is not part of her body, one must still ask this question” (Sefaria.org translation)

Adena Berkowitz writes in the journal Conservative Judaism, volume 2, number two, 1991 “We find reference in the Talmud that during the first 40 days, the fetus should be considered mere fluid (TB Yevamot 69b). In other Talmudic passages, the fetus is described as ‘ubar yerkh ‘imo [lit. A fetus is a thigh of his mother]. (TB Hullin 58a; TB Gittin 23b)” Throughout the rabbinic literature we find recognition the fetus is not a person. (See, e.g. TB Sanhedrin 72b and Rashi’s understanding that the fetus may be forfeited in utero because it is not a person (lav nefesh hu).” According to Jewish law, the fetus becomes a distinct and individual person only when his head crowns out of the womb.

All streams of Judaism believe that abortion is permitted under certain circumstances. They disagree whether or not a specific abortion is permitted depends upon when in the pregnancy and why the mother needs an abortion. Because the fetus represents a potential life, it is to be treated with a certain reverence when considering why and when to abort it.[1] The bottom line though is the rationale behind the states antiabortion laws are contrary to the spirit and letter of Jewish law.

Even though the Gemara never answers Rabbi Yirmeya’s the question, based upon the Jewish view of the fetus’ status, I feel safe in saying it is considered as the thigh of its mother; therefore, it is like her body and it does not form a mixture with it.

 

 



[1] I paraphrased Berkowitz in order to emphasize that the fetus is not an individual life separate from the mother, but considered like a limb.

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