It’s time for another post in the Writing Jewish Characters series – specifically in the Pregnancy/Birth section.
This time, we’re covering abortion – which unsurprisingly, is a controversial topic.
An abortion would fall into the same category as a miscarriage or stillbirth – it is not yet a life and should not be treated as one. But it is still a potential life, and that does have some standing… but not as much as the life of the mother.
Hence, abortion is not only legal in Judaism, it is sometimes required – if the mother’s life is in danger, abortion is absolutely called for. As I have said many times before, almost any commandment can be broken to save a life.
In Judaism, the mother is definitely a life.
The fetus is not.
Other reasons for abortion are often debated, but that one is not. If the mother would die because of this pregnancy, you end the pregnancy, because up until the moment the baby’s head emerges, you sacrifice the potential for life in favor of the certainty of life that already exists. Once the head emerges, you can’t sacrifice the baby in favor of the mother anymore – it’s a life on its own now – but up until then, the Talmud explicitly states that the child can be dismembered within the mother’s womb to save the mother’s life. To be honest, that’s not a likely scenario, and nowadays a c-section would be preferable – let both the mother and child live. But if it’s a choice, you choose the mother.
It’s better not to even have the pregnancy in the first place, however (because abortion is still destroying potential life), so if a woman is told by her doctor that getting pregnant would kill her, she should use contraception to avoid getting pregnant rather than getting pregnant and having an abortion.
Sometimes, abortion is very much the ethical choice, and you don’t have to go all that far back in Jewish history to find an obvious example.
During the Holocaust, Gisella Perl saved hundreds of lives by performing abortions (so that the women wouldn’t be killed or experimented on… and let’s just say that I’m really really not interested in getting into a discussion on Mengele’s experiments) and it is agreed that she did the right thing considering the terrible circumstances. If you want to read more on the subject, she has written an account of her time in Auschwitz. And that’s all that I have to say about that.
So now that we’ve discussed the most straightforward reason to have an abortion in Judaism, let’s move on to the more debated ones.
Orthodox Jews are less likely to have abortions for any reason other than health of the mother, but even they tend to be fairly permissible in cases of either rape or severe health deformities of the fetus. Conservative, Reform, and Reconstructionist Jews tend much more toward the pro-choice side of things. While you can have a pro-life Jew (and they will generally be Orthodox), their arguments are not going to be the same as a Christian’s would be (and be aware that the American movement for pro-life is very Christian, and particularly very Protestant Christian). And, like in much of Judaism, it will be an argument.
Let’s talk about some of the arguments you will and won’t see!
The fetus will definitely not be classed as a person, so it won’t be called murder. It may, however, be compared to murder – in Jewish law, comparing one thing to something else is an established way of figuring out what the laws should be (there’s an, uh, well-known example of that when we get to a full explanation of keeping kosher). Pro-choice Jews will however compare abortion to losing a limb, with a consequently lower bar for allowing abortion. If the pregnancy is less than 40 days old, the fetus is described as “mere water,” for instance – even in the Talmud.
But even the most rigid pro-life Jews will argue in favor of abortion if the mother is truly about to die, no matter that they’ll compare it to murder otherwise.
In Israel, abortion is legal (and paid for by the state), but it must be agreed upon by a termination committee, which consists of two physicians and one social worker. There are requirements for the specialties of the physicians, and at least one committee member must be a woman.
The reasons they list for allowable abortion are more permissive than the strictest Orthodox rules but less permissive than the Reform rules. Those reasons are a) the mother is under 18 (the legal marriageable age in Israel) or over 40, b) the pregnancy is a result of rape, incest, or a relationship outside of marriage, c) the fetus will have a mental or physical birth defect, and d) continuing the pregnancy would damage the mother physically or mentally.
This is not full freedom of choice, and I would not be surprised to hear that some women who are refused abortions by these committees leave the country and get them elsewhere (much like how Israelis who don’t want to get married under Israel’s religiously-based marriage laws will go to Cyprus). Approximately 98 percent of abortions are approved by the committees – though I don’t know how much of that is because women who know it won’t be approved don’t bother trying. Considering approximately half of Israel’s abortions are conducted illegally at private clinics (though apparently the general rule of thumb is for authorities to look the other way), I suspect I’m correct in my analysis.
On to a fandom example!
We’ll go MCU this time – Darcy Lewis has gotten kidnapped by Hydra (damn you Hydra!) and forcibly impregnated with their newest version of a super baby. (While Darcy is not canonically Jewish, she’s also not canonically any religion, and she’s one of the more commonly written-as-Jewish characters in the MCU.) There’s even a tag!
Eventually, she’s rescued by the Avengers, and now she has to decide what to do with Hydra!baby.
Scenario 1: She was rescued after only a few days in Hydra’s “care” – awesome! So she’s barely pregnant, and a test reveals it quickly. Full medical workups for all former Hydra captives, thank you very much.
Naturally, she considers abortion. As the fetus was conceived via rape, only the most right-wing ultra-Orthodox people would even be anywhere near iffy on her considering an abortion, and most of them would still be fine with it. If she’s talking to, say, her Conservative or Reform rabbi, said rabbi wouldn’t tell her not to have the abortion if she wanted it.
If she’s in Israel (hey, why not, they’re anti-Hydra too presumably!), she’ll go to a termination committee and state her case, and being that she’s a) unmarried and b) raped, she’ll get that abortion. If she’s in America, she’s going to have to abide by state laws, but most will allow it at this point… albeit they sometimes have some very big hoops to jump through.
Jewish law at this point follows the same rules as miscarriage, so she’s not required to do any mourning and can go on with her life as though the impregnation was a nightmare (…hopefully along with lots and lots of therapy).
Scenario 2: Welp, the Avengers didn’t realize she was missing for a few weeks (Hydra caught her two days into that planned six week backpacking trip across Asia with minimal cell service), and then it took a lot longer to find her, so by the time they’ve rescued her, she’s 22 weeks pregnant.
All non-Orthodox Jews (and most Orthodox Jews) are still going to support her right to have that abortion. She was raped, she’s mentally not okay, let’s help her rather than the fetus. Israel will still go with the termination committee, but again, she’s almost certainly going to pass it.
America? Here’s where you’re going to have to go by state. New York will still allow abortions at that point but not for much longer. (New York has one of the most permissive abortion laws in the country.) Other states in the US… not so much.
But she manages to get that abortion (woo!) and now she’s got to bury the baby, because the fetus was over 21 weeks. It may feel more real to her, but she still won’t have to follow full Jewish mourning rules. And unlike Willow in the post on miscarriage and stillbirth, who wanted the kid, Darcy didn’t – so that may impact exactly what she chooses to do.
Scenario 3: Hydra kept her really well-hidden, and by the time she’s rescued, she’s 28 weeks along.
At this point, I don’t know if Israel would allow a termination, and even the most permissive states in the US might not unless there’s an actual danger to Darcy or the baby isn’t viable. New York, for instance, only allows abortion after 24 weeks “when necessary to protect a woman’s life or health” or in the absence of fetal viability. Does mental health count? You’d have to ask a lawmaker or maybe a doctor.
So while most rabbis would still tell her to terminate if she’s not mentally able to handle it, the state might not allow her to. At this point, you’ll want to check the civil laws where your story is taking place as much as, if not more than, the Jewish laws.
Scenario 4: Darcy has decided to keep the baby.
Why, I hear you asking.
Well, the sperm they used happened to belong to one Bucky Barnes, who Darcy also happens to be dating, and while they didn’t expect a baby now… they’re choosing to view it as a blessing. And everything seems to be going hunky dory.
Great! They’ve got a baby on the way!
Unfortunately, there’s some problems.
That over-powered super-serumed kid (made even stronger by Hydra) is literally trying to kick its way out of her womb, and Darcy’s non-superpowered body can’t handle it.
Basically, if she stays pregnant, she’s going to die.
Her rabbi? Is going to tell her to get that abortion, because her actual life matters more than the fetus’s potential life. If she’s far enough along, they’ll likely try to do a C-section and save both the baby and the mother, but with the knowledge that you save the mother first. If she’s not far enough along… save her first.
Alternately, the extra tinkering Hydra did to make the baby stronger actually… well, it’s not viable any longer. (Bad Hydra! Bad!) The brain’s missing, it’s dead inside the womb, there’s something severely wrong. Again, Darcy’s probably getting that abortion, and at this point it’s definitely treated like a late term miscarriage.
Luckily for Darcy, these scenarios were all hypothetical (let’s avoid getting kidnapped by Hydra), but I hope that helped you figure out how to write this into your story with a Jewish character!
And that’s it for abortion! We still have at least one more post in the Pregnancy and Birth section, so look for that in the future!