Jewish perspectives on bioethics: Post-birth abortion and other fictions

The recent murder convictions in Dr. Kermit Gosnell’s trial for killing just-born infants sparked outrage and disgust from both sides of the “pro-life” – “pro-choice” debate. Could these gruesome atrocities really be taking place in our society? In reality however, such actions are not limited to ‘back-alley’ physicians of ill repute. Articles in prestigious medical journals have recently advocated not only for the permissibility, but even for the expansion and acceptance of these procedures.

In  last March’s issue of the Journal of Medical Ethics, ethicists Giubilini and Minerva argue that current arguments permitting abortion should extend beyond birth to the postnatal period. Surveying various pro-abortion rationales, they conclude that these arguments justify far more than simply a woman’s right to terminate her pregnancy. Rather, they argue, a woman has the right to choose whether or not to bring a child into this world. Therefore, they find no substantive reason to distinguish between the prenatal and postpartum periods. If a woman has the right to choose not to bring a child into this world, it should not necessarily be limited to while she is pregnant. Giubilini and Minerva therefore propose allowing for “after-birth abortions,” albeit limited, in their argument, to children born with serious deformities and defects.

Understandably, this proposal shook many readers to their core. No amount of philosophical double-speak or bioethical lexicon can obscure the fact that “postpartum abortion” is simply put, a justification for infanticide and the basis for which Dr. Gosnell was sentenced to life in prison.

No matter how one feels about the propriety of abortion generally, so long as there are even extenuating circumstances when abortion is permissible – as is true according to Halakhah – there is, and must be, an absolute and fundamental distinction between a fetus in utero and a born child. From a halakhic perspective, regardless of the nature of the prohibition (and it is indeed debated [see this previous post for a brief summary]), the universally accepted leniency in cases where the fetus is endangering the mother’s life (Ohalot 7:6), is predicated upon the status of the fetus as compared to its mother.

Once born, the baby undergoes a radical and fundamental change in status. The Mishnah (Niddah 5:3) makes this distinction quite clear, noting that, as opposed to aborting a fetus, killing a just-born child incurs capital punishment.

In less dramatic fashion, the same Mishnah depicts the death of a one-day-old child as that of a “complete groom” (hatan shalem). When a groom, about to embark on building a family and ensuring the transmission of our sacred Tradition to another generation is suddenly taken from this world, our emotions come to a jarring halt. We see the built up potential about to be actualized suddenly shattered right in front of us. It is a horrific tragedy.

The Mishnah’s point, according to many commentators, is that we should experience the same emotional anguish at the death of a one-day-old. The Mishnah is specifically rejecting the notion that an infant’s death is less tragic in any way, either because of its lack of life experiences, accomplishments, abilities, or any other difference we may conjure up. Every death is tragic and we dare not comfort ourselves, warns the Mishnah, in the fact that the deceased was only one day old.

This is such a basic tenet of morality that Maharsha (Sanhedrin 57b) explains that Pharaoh originally only demanded killing the Israelite babies while in utero, realizing that once born, the matter was entirely different. It was only after his plan failed that his evil scheme developed a new layer of viciousness. Only once turning cold to any sense of morality did his passion to subjugate the Israelites extend further.

It is perhaps against this backdrop that the Zohar (Shemot 3b) explains that it was precisely the Israelites’ rejection of this mentality that was deserving of redemption. Despite the severe absence (and even rejection) of spirituality (see Yehezkel 20:7-8), descending to the deepest levels of tum’ah [spiritual defilement] (Zohar Hadash, Shemot 52b), it was the Israelites’ adherence to these basic tenets of morality that kept them true to God and deserving of His Divine redemption.

Reflecting on Giubilini and Minerva’s article, we need to stand firm and state clearly and unequivocally, that murder of innocents is wrong, regardless of how a group of bioethicists choose to dress it up with descriptive sophistry. This proposal is indeed frightening – not only in terms of what it proposes and where it may lead to, but as a chilling realization that these are the types of arguments being proposed in serious academic journals.

It is precisely because of the objectionable nature of the arguments put forward that it may be important to get these ideas out in the open – for the public to realize that some “ethical arguments” are in fact a boldfaced affront to basic tenets of ethics and morality.