Vicki Polin
Social Justice Activist

Incest, Pregnancy, Abortion and Halacha (Jewish Law)

It is always difficult to talk about abortion, and even more so when religion is part of the conversation. Aside from the religious/Halachic questions, much of the debate becomes highly political. Nevertheless, The Awareness Center feels that it is imperative to address the extremely delicate issue of abortion, particularly when it comes to incest, sexual abuse, and sexual assault.

There is no doubt that life according to Jewish teaching is sacred. Pregnancy and procreation are encouraged as one of the most important “mitzvahs” (good deeds) for both Jewish men and women. Every person born, every “nefesh” (soul), is “as if a whole world is created” (Maimonides). That said, according to the Jewish view, we don’t just make human beings: we are obligated to make humane human beings. As Jews, we are encouraged to follow a life of “Tzedaqah”, a word that not only refers to justice, but to proactive use of good, such as mercy to the poor and needy. Justice, “Tzedaqah”, is a prime Jewish virtue and needs to be applied to those already living, to our children, to their mothers, to our communities. Pregnancy is imperative to the survival of the Jewish nation. However, the life of those already living comes before the life of those yet to be born. A fetus, though precious, is not seen as having equal standing as a born person. Rashi, in his commenting on Sanhedrin 72b, says that a fetus is not deemed “nefesh”—a person—until the head emerges in the birthing process. Indeed, as a rule, the Halacha (Jewish Law) rules that a mother’s health comes first. The Talmud says: “If a woman suffers hard labor and travail…her life takes precedence over it’s (the fetus) life” (Mishne 6).

This precedence isn’t limited to life and death situations. Take the case of a pregnant woman who had an ear infection. The doctors said that she could become deaf if she carried to term. The rabbinical response was that deafness “will ruin her life, make her miserable in all her days, make her undesirable in the eyes of her husband…therefore, she should be permitted to abort her fetus…” (Ben Zion Uziel, Mishpetei Uziel, Hoshen Mishpat, 3:46). Most religious authorities agree that not only physical health, but also the mental health of the mother is included. Under some conditions, such as to avoid disgrace in a case where a married woman got pregnant by another man, abortion is not only allowed, “it even may hold the reward of a mitzvah” (Jacob Emden, Responsa She’elat Ya’avetz, No. 34).

How can one possibly call abortion a “mitzvah”? Because sometimes the circumstances are that it is a meritorious action, a sacred choice. The right to choose an abortion has deep religious roots that are based in the “sanctity of life” and on the particular circumstances of each conception.

If a woman who strayed and got pregnant by another man might be allowed to abort the fetus—how much more so if the woman was raped? What if the fetus is the product of incest? What if the woman is still a child herself?

We at The Awareness Center believe it is up to each individual to decide for themselves the best way to handle their particular situation—and hopefully with the aid of compassionate and qualified help. Adults might have access to a support network of people to assist them. However, children often do not have such access, nor do they have the knowledge of how to handle the problem of pregnancy, or the burden of misplaced shame. For their sake, and the sake of adults without support, we find that it is of importance to suggest the following basic guidelines:

A. We strongly advocate that a minor, or an adult without a support network, find an adult with whom they can confide.

B. This person should be someone who is more than just trustworthy and someone the victim feels comfortable with, but someone who can give guidance and direction.

C. The supportive adult need not be the minor’s parent (especially if the pregnancy is due to dysfunctional family patters and/or incest…): he or she could be a teacher, rabbi, neighbor, therapist, rape crisis counselor, medical doctor, or another trained professional.

D. Schools and communities need to provide sex-education programs that include information about rape-prevention, rape-crisis centers and hot-line numbers, so that minors in need know where to go.

E. Teachers and rabbis need to educate themselves about resources in their community, the legal and ethical issues of reporting child-abuse, and the Halachic ruling and/or resources in cases of pregnancies that are the product of rape and/or incest.

Perhaps it could be efficacious to further discuss these delicate situations anecdotally. Case histories of survivors who faced these dilemmas can help us gain critical insight for how to best address such troubling issues.

Diana was thirteen when she became pregnant by her father. She had no idea what was happening to her body. She’d gotten her period for the first time just the year before. When her period was late, she didn’t feel like she could tell her mother—so she told one of her friends, Mandy, who had an older sister named Sarah. The three girls spent a lot of time talking and together they decided to call pregnancy hotlines to see what they suggested. What they learned was that if Diana said she was 15 or 16, she could have an abortion without telling her parents, but if she was younger she needed a parent’s permission to abort. Diana would have to lie. The three girls made a plan: Mandy and Sarah would tell Diana’s parents that Diana was coming to spend the weekend with them, and tell their parents that Diana’s parents were going out of town and wanted Diana to stay with them. That Friday, the three girls cut school and went to the abortion clinic. When they were done they came home, and the sisters told their parents that Diana had the flu—an excuse for Diana to stay in bed for a few days to heal. If these girls had a trusted adult to approach, they would not have had to sneak around. Diana wouldn’t have had to lie and possibly risk her life. The incest could have been stopped. Had their school provided a sex education program that included information on rape prevention and education, the girls would have known who to go to, Diana would have learned that there was help available to her. She would have known she was not to blame.

Esther was the typical teenager. Coming from a modest, religious home, she was an average student, very active in high school, and had many friends. However, she also had a secret. One she never shared. Esther was an incest survivor. Her father began molesting her at very early age, so much so that Esther couldn’t remember her father not bedding with her. As she matured, Esther faced a dilemma—at sixteen, she had a boyfriend, Joel, and wanted to be sexually active with him. However, how could she sleep with Joel if she was also “sleeping” with her father? Having grown with incest as part of her life, and with secrecy, she couldn’t see at the time how this conflict was intrinsically wrong! Esther decided that she would refuse her father, even though she knew such refusal would come at a price—refusing her father meant that he would become even more physically abusive to her than before. Esther knew the sacrifice she was making but wanted to be “true” to Joel.

Late every night her father would try to enter her bed, but Esther would tell him no. And every following day he’d find some reason to punish her, often to beat her. When her father’s violence started getting to her, Esther remembered how her father would never sleep with her if she had her period. So every night before she went to bed, she would insert a tampon, and when her father came would tell him “not tonight daddy, I’ve got my period.” At first he’d leave, and she was safe for another night, but after several weeks, when she told him once again that she had her period, her father erupted with rage, punched her, and pulled the tampon out, stating “I knew you were lying!” He then raped her.

Two weeks went by and Esther realized that she didn’t get her period. As more days passed, she got very scared. She was never late before! Somewhere inside she knew she was pregnant. She didn’t know what to do. Also, was she pregnant by Joel, or was she pregnant by her father’s sexual assault? Joel had no idea that Esther was an incest survivor. He knew of the physical violence, but didn’t know what to do about it. Esther decided to tell Joel that she was pregnant by him, and the two of them decided that it would be best for her to get an abortion. Esther was relieved—her real fear was that the baby was really a result of the rape… She needed help, but she didn’t know what to do or who to talk to. Imagine how horrible it must be to be sixteen and not sure if you are pregnant by your boyfriend or your father!

As extreme as Esther’s case might seem there are all too many like her, and if not properly addressed the ramifications of these situations can last a lifetime. Esther knew that she could never go to her mother for advice—her mother was herself a battered woman and as it was Esther felt responsible for her mother being hurt, often putting herself between her mother and father so that she would get hurt instead of her mom. Esther ended up keeping a terrible secret and going through the abortion by herself.

Unaddressed trauma can often last a lifetime. From the time she was 11 until she was 17, Varda was repeatedly raped by her older brother. She, too, had an abortion when she was 15. She, too, had to go through it alone. Telling her parents that she was going to visit summer-camp friends for a long weekend, Varda took a train out of state and paid for an abortion and a three-day stay at a motel with the money she earned baby-sitting. She had no one to ask for references about the abortion clinic she found in the yellow-pages, no one to help her when her fever shot up and she bled heavily and could barely keep down food or drink. Her parents never asked any questions. Twelve years later, at the age of 27, Varda is single. She makes excuses when she is offered dates and fears getting close to anyone—she is too scarred inside to have children. She is too ashamed to say why. Varda now lives alone and gets panic attacks whenever she goes to visit her family and sees her nephew play with her nieces or whenever she has to sit to the same table as her brother. She has difficulty sleeping and tends to withdraw from social activities. She suffers from severe clinical depression. Though there’s no guarantee that early emotional support and clinical intervention could have prevented Varda’s long-term consequences of trauma, maybe if she had someone to talk to, she wouldn’t have ended up in a shady clinic, would be able to deal with the incest and raise a family of her own. She’d be spared the pain she is still going through now.

Jewish law teaches us that life is sacred, and that we are to cherish the living over the unborn. All the more so when the unborn was conceived through inconceivable acts. Following the teachings of “Tzedaqah”, we are called to provide the needy and destitute with compassion and real-life help. Incest and rape can and do result in pregnancies. While we work to end sexual assault in our communities, we need to open our hearts and minds to support the victims of such crimes and to offer them information and help in their time of excruciating decisions. We need to let survivors of rape and incest see and feel that they hold no shame in our eyes—the shame is on those who hurt them. Let’s educate our children so that they are no longer vulnerable, and educate ourselves so that we can help the ones who were taken advantage of. Abortion is never an easy thing to do, but in some cases it is not only allowed, it can even hold the reward of a Mitzvah!

Michael J. Salamon, Ph.D and Na’ama Yehuda, MSC, SLP also contributed to this article that was originally published by The Awareness  Center in 2004.

About the Author
Vicki Polin is a feminist who has been a Social Justice Activist since her childhood. Vicki is also an award winning, retired psychotherapist who worked in the anti-rape field for just under forty years. For fun Vicki is an artist and nature photographer.
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