Pregnant at 13 weeks, Tamara Mann was told that tragically, her fetus would not survive (she tells her story here). She opted to terminate the nascent pregnancy early, but since the fetus had already developed a heartbeat, her insurance company and the state of Ohio characterized the termination as an elective abortion. That designation brought along with it mandated abortion counseling and defined waiting periods – all aimed at preventing hasty elective abortions. After a tiring and harrowing experience, she was able to have the procedure. And all she wanted was to be pregnant and have a baby.
In relating her story, Tamara grappled with accurately describing what she was experiencing – was her baby alive or not? To her, the answer to that question defined whether she was undergoing an elective abortion or a therapeutic D&C. On the advice of her rabbi, she opted for an early termination; since the fetus would not survive, waiting would just put her at increased risk. While Jewish law generally forbids abortion, in Tamara’s case, there would be virtual unanimous support for her decision. In fact, as her rabbi indicated, Jewish law would encourage an early termination.
The reason that her rabbi ruled in this case as an exception to the general rule sheds a clarifying light on how Jewish law views the unborn. While emotionally charged, the permissive ruling in this case has little to do with whether or not the fetus is alive, but rather only on whether it can survive to term. A fetus that is not viable is considered a nefel; the prohibition of abortion only applies to fetuses that have the potential for survival outside the womb (for at least 30 days).
Interestingly though, Tamara’s descriptive difficulty may have ancient roots.
Medieval Talmudic commentators debate the source for permitting violating Halakhah, Jewish law, to save a fetus. One approach notes that when the Torah obligates performing mitzvot “so that we should live by them (va-hai ba-hem),” it demands that we place life saving – be it of a full-grown adult or a fetus – as an ultimate ideal that pushes aside even Torah prohibitions. A second approach disagrees, distinguishing between a fetus (not yet ‘fully alive’) and a baby already born. Rather, permission to save a fetus even at the expense of Torah prohibitions is granted by the potential contained within the growing fetus; it is a future full of mitzvot, not its current status, that allows the transgression.
On the opposite end however, Halakhah is quite clear in prohibiting abortion. With few exceptions, routine abortion is certainly forbidden. The nature of the prohibition though is vigorously debated. Some view it as a type of wounding, while others find it akin to murder. But even those advocating the latter view must nonetheless contend with the Mishnah (Ohalot 7:6), which states unequivocally that when a fetus puts its mother’s life in danger, we sacrifice the fetus to save the mother. This is not true when it comes to adults. While Halakhah mandates a third party to intervene to prevent an attacker (rodef) from harming his victim – even using lethal force if necessary – the same is not necessarily true in a duel. When two people are trying to kill each other, Halakhah cannot identify one person as the attacker and his foe as the victim. Since there is no victim to be saved, a third party observer must sit back and not intervene.
Regarding a fetus, the situation is both similar and different. The fetus does not intend to harm the mother in any way; nor does the mother have any malicious intent toward the fetus – her life threatening situation simply puts her in an impossible position. Nonetheless, the Mishnah is quite clear in demanding sacrificing the fetus. Isn’t this just a tragic and unfortunate variation on a duel?
The answer, R. Moshe Feinstein explains, hints at the very crux of our problem. Although he adopts a view of abortion as murder, it is not the murder of a person, but rather of a fetus. The duel only presents a dilemma since the two combatants are on an equal level; the same is not true of a mother and her fetus. The mother has certain moral advantages over the fetus – most importantly, her ability to live physiologically independent of anybody else. Until the point in pregnancy where the fetus could survive on its own outside the womb (according to many opinions), there is no moral equivalency between the two. Here we can choose and must choose, since the choice is between two players of unequal statuses. It is the halakhic status of the fetus as physiologically dependent that grants it a lesser status, irrespective of the baby’s physiological development. Whether the baby already has a heartbeat or developed nervous system – so long as its status is less than that of its mother – the equation is the same.
Tamara implicitly touched on a very basic aspect of the ‘abortion debate’ in America. The heart of the issue is not a question of facts or statistics; it is decidedly not a medical question. Rather, it is a debate about values and ethics – how to balance the rights and obligations of a potential life with those of its mother, in whose body it is developing. Realizing this, she put significant weight on the question of whether her fetus was considered ‘alive’ – because, when you think about it, even that is not a medical question, but rather a value judgment.
The descriptive terms we use are fraught with implicit meanings and often, value judgments. She was quite on target when identifying her question as a moral dilemma, requiring a value driven discussion. However, the Halakhic value judgment on this issue rests more on the status of the fetus as distinct from a fully grown person and less so, on whether or not the fetus is considered alive.
Tamara Mann’s trauma is indeed tragic; it reflects quite poorly on the medical establishment’s ability to communicate with other value systems and take them into consideration when arriving at conclusions. In trying to draw a positive lesson from a terrible situation, let us reflect on the inherent value judgments necessary to evaluate this situation and look to our heritage for guidance in making them.