Obstetrics and the Curse of Eve

I sincerely apologize to all of my readers for my prolonged absence from posting on this blog.  The difficulty of posting on a regular basis was something I never realized when I started, but I really will try to make this something more regular.  So please forgive me, and feel free to make suggestions if there are topics that you would like me to cover.  I am going to stop the genetic screening thread for now (with the intention of coming back to it sometime in the future), to deal with an article that was published in the Hakirah Journal in their Winter 2013 issue, Volume 16.  The title of the article is "Obstetrics and the Curse of Eve".

It would benefit the reader to click on the link to the article above, and read it for yourself in order to appreciate what I have to say.  You may also find it worthwhile to refer to the article as I develop my overall theme in my upcoming blog posts.  So let's begin.

The overall theme of the article is to argue that modern obstetrical practices have influenced modern halakhic practice in ways that need to be reconsidered.  The primary four areas that the article attacks are modern halakhic attitudes toward:

1. Use of drugs in pregnancy and in labor and delivery
2. The practice of having male attendants during delivery
3. The ease with which Shabbat restrictions are violated
4. The practice of hospital birth vs. home birth 

All four of these areas need to be addressed, as they are all extremely important, and I will attempt in this blog series to address them all.

The first topic discussed starts on page 145 of the Journal, and it is called "Birth on the Sabbath". According to the authors:

"Halakhic literature has always recognized that the rules of Sabbath can be transgressed to aid a birthing woman. Nevertheless, medieval halakhic codes made a clear distinction between the birthing woman and the standard critically ill patient (ḥoleh she-yesh bo sakkanah), since “the birthing woman’s pains and strain are natural and less than one in a thousand die in childbirth.” Whenever possible an act of transgressing the Sabbath for the sake of a laboring woman was to be done beshinnui, in a different manner than it would have been done on a weekday. In fact, before the final stage of labor, no transgressions of the Sabbath were permitted, except for summoning the midwife."

The authors quote three sources for these statements.  The Rambam Hilchot Shabbat 2:11, the Maggid Mishna on site, and the Shulchan Arukh OC 330:1. It is of course worthwhile for the reader to check these sources for themselves.  It is clear that the intent of the authors is to give the impression that a woman in childbirth is not quite as much in danger as is the standard critically ill patient.  This sets up their argument advocating home birth as an alternative to hospital birth, and that the use of drugs should be minimized, and so on.  So according to the authors, a birthing woman is halakhic category that is not quite as severe as an ordinary critically ill patient. 

This assertion however, is extremely misleading, and the halachic sources do not at all reflect what the authors claim that they reflect.  It will take me some time to make my point, as this requires a thorough review of the halakhic literature.  I will begin this thread by analyzing the assertion made by the authors of the article in this paragraph, and then I will move on and continue with the rest of the article in a series of posts. Eventually we will be able to summarize our findings and decide what our final approach to this issue will be.  I will also try to remain true to the rationalist approach to medical halacha, and draw from both Torah sources and the relevant scientific and historical sources when appropriate.

Let's start with the Rambam:

"A woman giving birth, her life is considered in danger and one may transgress the Shabbat for her, we can call the midwife from one place to another, and one may cut the cord and tie it, if she needs a light when she is crying out in pain from labor one may light it for her, even if she is blind (one may light for her) because she becomes more calm when there is light even though she herself cannot see.  If she needs oil or any similar thing one may bring it to her.  In any way that one can change (the way it is usually done during the week) then one should change (do it with a "shinuy") at the time one brings it such as her friend can carry a vessel hanging in her hair, but if this is not possible one may bring it the usual way."

And now the Maggid Mishna:

"From the language of our teacher (the Rambam) it seems that a critcally ill person is not included in the need for attempting to do things differently (a "shinuy") but only a midwife must.  This is why he writes that she is "like" she is in danger of death but he did not mention the need for a shinuy when he discussed a person with a critical illness ... And it seems that the reason for this is because the pain of a woman in labor is like a natural thing for her, and not even one in a thousand die from childbirth and therefore they were stringent that one should change the usual way whenever possible but they weren't stringent by a critically ill person ..."

The Shulchan Arukh brings this halachah as well, however the language he uses is a little different, in that he uses the same language as the Tur.  The Tur specifically says that "a Yoledet has the same laws as a critically ill patient" and the Shulkhan Arukh follows suit.  It seems that they are purposefully choosing a language even stronger than the Rambam, as the Rambam only stated that she is considered in danger, while they equate the woman in labor to the critically ill patient.  We will return to this point later.

The Magen Avraham on site brings the Maggid Mishna to explain why the Shulkhan Arukh only requires a shinuy by a woman in labor, but not by an ordinary critically ill patient.  Since the woman in labor is a natural process therefore the Rabbis were more stringent and they required, whenever possible, a shinuy.  The Shulchan Arukh HaRav OC 330:1, and the Mishna Berurah also understood the Maggid Mishna and the Rambam in this way.  They follow the path of the Magen Avraham, and understand that Chazal were more stringent with a birthing woman than a critically ill patient because labor is a natural process and only a small minority of women die in childbirth. 

So all of this so far would seem to support the claim of the authors, that the "medieval halakhic codes made a clear distinction between the birthing woman and the standard critically ill patient."

However, a complete analysis of the poskim actually does not support this contention at all. Allow me to explain.

The primary difficulty that the Maggid Mishna is trying to explain, is why the Rambam mentions by a woman in labor the need for a shinuy, but not by a critically ill patient.  His answer, as described above, was that a woman in labor is a natural process.  Let's think about that for a minute.  The Rambam just stated, following the Mishna and the Gemara in Shabbat 128b, that a laboring woman is considered to be in life threatening danger, and that one is permitted to transgress the Shabbat for her.  If this is true, why then does it matter if it is a natural process or an illness? Even if death is rare, as the Maggid Mishna said, the Gemara already told us that this is sufficient to allow us to transgress the Shabbat!  So why is this any different than an ordinary ill patient?  What if you told me that a particular illness had a 1/1000 chance of death, wouldn't you be allowed to transgress the Shabbat to save such a person?

There must be something deeper here, something that we are missing, and indeed the poskim are bothered by the same questions that we are asking.  So let's see how they deal with it.

Prior to explaining our difficulties with the Maggid Mishna's explanation of the Rambam, we need to mention that this entire discussion is of course only relevant according to the Rambam who seems to differentiate between the woman on childbirth and an ordinary critically ill patient.  The opinion of the Ramban however, is very different.  The Ramban actually brings proof from the gemara that discusses using a shinuy by a birthing woman that one must use a shinuy by all critically ill patients.  The Ramban obviously does not agree with the assertion of the authors that there is "a clear distinction between the birthing woman and the standard critically ill patient".  According to the Ramban, no such distinction exists at all, despite the fact that birthing is a natural process.

Let us return though to our analysis of the opinion of the Rambam and the explanation of the Maggid Mishna.

The Arukh HaShulkhan in OC 330:2 is bothered by our difficulties with the differentiation between the two cases.  He also brings the idea of the Maggid Mishna that labor is a natural process, but he explains it a bit further.  He notes that the gemara only applies this rule of using a shinuy to the lighting of a candle and bringing oil to the woman in labor in order to calm her down ("leyashev da'atah").  That is, since labor is a natural process, most women are calm and able to bear the pain.  However, if the woman requires something just to calm down, though it isn't medically necessary, we can still violate the Shabbat for her, because fear itself can harm her.  However, since it isn't really medically necessary, one should try to use a shinuy.  For things that are medically necessary though, one need not use a shinuy.

Interestingly, the Arukh HaShulkhan can find support for his assertion in the words of the Meiri.  The Meiri in Shabbat 128b describes the need for a shinuy for a birthing woman only in reference to things that are being done LeYashev da'atah.  He describes how things can be done LeYashev Da'atah for a birthing woman even if they require transgressing an Issur De'Oraytah, but then says that a shinuy should be done when possible.  He explains the reason for  requiring a shinuy to calm the birthing woman as opposed to calming a critically ill patient because, "a birthing woman is different because for most of them the danger isn't as great."

At least according to the Arukh Hashulkhan, the author's claim has just fallen apart.  The Shulkhan Arukh and the Tur specifically compare the laboring woman to the critically ill patient, because their laws are exactly the same. Not only can we violate the Shabbat for both of them, we can do it without a shinuy.  Only when we are doing something Leyashev da'atah, only then are we required to try a shinuy first.

These words seem clear from the language of the Rambam himself. As he states:

In any way that one can change (the way it is usually done during the week) then one should change (do it with a "shinuy") at the time one brings it ("Besha'at hava'ah")

This makes it clear that the need for a shinuy only applies at the time of bringing these items, but not when one needs to intervene medically to save her life.

But we are far from finished.  Other poskim as well have dealt with these questions, and it is worth looking at some other approaches.

The sefer Yitzchak Yeranen (R' Elyakim Guttenov d. 1795), is also bothered by the same questions.  He explains the difference based on the well known halachah (see Rambam earlier this perek se'if 3) that when it comes to treating the ill on Shabbat, one should not do it through a gentile or a child, but rather the "Gedolay Torah", the Rabbis themselves should violate the Shabbat, in order to teach the public not to hesitate in similar future situations.  According to R' Guttenov, the same rule applies to a shinuy.  That is to say that in truth, even for any critically ill patient a shinuy should be used.  However, we specifically prohibit the use of a shinuy in order to teach the public not to hesitate in future situations.  By a laboring woman though, there is no need to prohibit the shinuy. That is because despite the fact that the risk to life is there, the chance of death is small, and coupled with only a suspicion that maybe in the future someone might hesitate for a woman in childbirth, that is not enough of a concern to prohibit using a shinuy.

This approach of R' Guttenov also specifically equates the laboring woman to the critically ill patient, only that the Rabbis went out of their way in more critical situations to prohibit the use of a shinuy for the reasons we just described.  Although using R' Guttenov's approach the author's claim that there is a difference between the two cases remains true; it is not because the Rabbi's were more lenient for the birthing woman.  Rather it is because the Rabbis added an extra stringency by more severe illnesses.

The Beit Yehuda (R' Yehuda Ayash d. 1759) in OC 59, is also bothered by our questions, and he strongly disagrees with the entire premise of the Maggid Mishna that there is any difference at all between a birthing woman and a critically ill patient.  According to R' Ayash, the Rambam is of the opinion that one must always do something with a shinuy if possible, and that the Rambam completely agrees with the Ramban in this matter.  It is worthwhile to review his response in its entirety, but for our purposes, our summary should suffice.  Once again, the premise of the authors has fallen short.

The Divrei Yirmiyahu (R' Yirmiyahu Lau d. 1874) also offered an explanation of the Maggid Mishna.  R' Lau explained that the difference between a woman in childbirth and a critically ill patient has to do with the actual presence of illness at the time of the required intervention.  When a person is actually critically ill, one need not use a shinuy when intervening on his/her behalf. However, a woman during the natural process of labor is not ill at this moment, rather she is at risk of becoming ill if we don't intervene.  Thus, says Rav Lau, our interventions are only preventative, not curative, and therefore require a shinuy.  Thus the difference has nothing to do with labor versus illness, as to do an intervention that is only preventative one would always be required to use a shinuy, not just for a birthing woman.

R' Yehuda Navon (d. 1760) , in his sefer Kiryat Melekh Rav, disagrees with the Maggid Mishna in his interpretation of the Rambam, because of the problems we pointed out.  He feels that despite the fact that most women survive childbirth, it is still considered a life threatening situation, just the same as any critically ill patient. Therefore, even for a critically ill patient we would require a shinuy, just like we do for a birthing woman.  However, since in most cases a shinuy for a critically ill patient would cause a delay in care, we therefore never allow a shinuy because we are afraid that one may inadvertantly cause a delay in care. However, by the birthing woman, a delay in how one carries an item to her won't usually cause a delay, so we require a shinuy whereever possible. 

In more modern times, R Yosef Kaddish Bransdorfer, in his sefer "Orah VeSimchah", asks our questions on the Maggid Mishna as well.  He also proposes, like the other poskim we just mentioned, that the Rambam does not differentiate at all between a birthing woman and a critically ill patient. He also mentions the proof from the language of the Rambam when he says, " then one should change (do it with a "shinuy") at the time one brings it ("Besha'at hava'ah")".  He claims, that the only reason why we require a shinuy by a birthing woman, is because labor is something that should be anticipated, so we should be prepared before Shabbat as the end of the pregnancy is approaching. However her status as a person in a life threatening situation is no different at all from the status of any critically ill patient.

R' Bransdorfer points out another interesting observation.  It seems (see the Frankel Rambam for more on these different versions of the Rambam) that the Maggid Mishna, in his version of the Rambam, the "bet" in the word "B'sakanat nefashot" was replaced with a "kaf".  Therefore his Rambam text read as follows:

"A woman giving birth, her life is considered as if she is in danger and one may transgress the Shabbat for her ..."

This is possibly what led the Maggid Mishna to state that:

"From the language of our teacher (the Rambam) it seems ..." 

The "kaf" sounds like it is merely a comparison, but not an exact equation with a critically ill patient, as though there are some inherent differences. However, if he had the wording with a "kaf", like we have in most printed versions of the Rambam today, it would not have led him to believe that there is any difference between the two, as it would have been a clear and unambiguous statement:

"A woman giving birth, her life is considered in danger and one may transgress the Shabbat for her ..."

A much earlier authority, R' Chaim Abulafia (d. 1743) in his sefer Mikra'ey Kodesh, also noted that it seems that the Maggid Mishna had a "kaf" instead of a "bet" in his version of the Rambam.  R' Abulafia goes on to say as well that there is no reason at all to assume that the Rambam disagrees with the Ramban, rather he feels that the Rambam also does not distinguish at all between a birthing woman and a critically ill patient. 

We have thus demonstrated clearly, that the contention of the authors of the article that there is a clear halakhic distinction between a birthing woman and a critically ill patient is not so clear at all. It is true that according to the Magen Avraham, who was quoted by the Mishna Berurah and the Rav Shulkhan Arukh as well, and his interpretation of the Maggid Mishna, that the Halakhah treats a birthing woman as if she is in less of a danger than a standard critically ill patient. However, many other authorities did not understand the Rambam, or the Shulkhan Arukh, in this way.  Certainly the Ramban did not make such a distinction.

This concludes the halakhic discussion for today and my analysis of the first half of the paragraph we started with. The paragraph ends:

"In fact, before the final stage of labor, no transgressions of the Sabbath were permitted, except for summoning the midwife."

I will deal with that statement in the next post.  However, before I sign out, allow me to discuss some non-halachic but very relevant thoughts.

The Maggid Mishna asserts, that "not even one in a thousand die from childbirth".  I find this statement troubling for numerous reasons.

For starters, we are not only concerned about the health of the mother, as we are concerned about the health of the newborn as well.  The halacha states clearly that one can transgress Shabbat even to save the life of an unborn fetus.  Many of the interventions of modern medicine are designed to prevent infant mortality, not just maternal mortality.  To claim that in the time of the Maggid Mishna that the infant mortality rate was less than one in a thousand defies common sense and defies our knowledge of historical reality.

However, this question may not have been relevant to the Maggid Mishna, because in his time there was very little anyone could do if an infant was not born full term and healthy.  However, in our time, when there is a lot that modern medicine can offer, one cannot simply say that “the birthing woman’s pains and strain are natural and less than one in a thousand die in childbirth.”  One must also remember that everything needs to be done to ensure a healthy baby, and the baby is also in a state of life-threatening danger.

Furthermore, I am somewhat baffled by this idea of "less than one in a thousand".  While this have been comforting to the Maggid Mishna, that could be because of the limited interventions they had available in his time.  Don't forget, in the time of the Maggid Mishna, most critically ill patients succumbed to their illness.  Today though, with modern medicine our attitude is usually to fight with everything modern medicine has to offer.  We aren't so ready to accept defeat to "natural processes."

Let me illustrate my point with some real numbers. According to the Israel Central Bureau of Statistics, there were 171, 207 births in Israel in 2013.  If, God Forbid, one in a thousand women died in childbirth, that would mean that 171 women would die every year during childbirth in Israel alone! What a horrible horrible thought.  One in a thousand may sound like a small number, but in a large population, that's a lot of people.  I think most of would argue that everything should be done, even on Shabbat, to save those 171 women's lives, just as one would do for any critically ill patient.

For your reference, according to the US Department of Health and Human Services:

"Maternal mortality in the United States has declined dramatically over the past century. The rate declined from 607.9 maternal deaths per 100,000 live births in 1915 to 12.7 in 2007." 

it is interesting that the 1915 numbers in the US are almost exactly the same as the assessment of the Maggid Mishna.  1,000 per 100,000 births would be "one in a thousand", and the Maggid Mishna said "not even one in a thousand" which is roughly the same as 607.9 per 100,000.  Cool.  But even more cool is the fact that modern medicine has improved upon those numbers significantly, and we haven't even discussed infant mortality statistics yet.

If we assume that 1/7 of all births occur on Shabbat, that's 608 (maternal deaths in 1915) - 13 (maternal deaths in 2007) = 595 women saved every year/ 7 (days of the week) = 85 women per year whose lives we've saved by treating them on Shabbat!  I think that speaks for itself, especially if one of those lives saved was you or your wife.

I will deal with the issue of the safety of home births later, I promise. I am fully aware that much of the decline in maternal mortality in the US is not necessarily because of doctors, drugs, and hospitals etc.  At this point I am just demonstrating (I still do adhere to the famous "five principles" that I set down in my first post) that according to the "common sense principle" of Rationalist Medical Halacha, childbirth is a life threatening situation, even though, in the days before modern medicine, "not even one in a thousand" women died from childbirth.

Hope to see you next time, as we continue our analysis of "Obstetrics and the Curse of Eve".

Dor yeshorim and the Non-disclosure policy

I am so sorry that it took me so long to post again, life is just catching up with me, but I will really try to keep up the pace of at least two posts each week.  We ended last post with a discussion of genetic counselling, and I want to really start getting into the main purpose of this discussion.  I described to you last time the basics of modern genetic counseling, and now I would like to discuss the common and popular approaches of the orthodox community towards this important issue at the current time.

I could summarize the way this issue is dealt with by the orthodox community by dividing it into in three distinct approaches.

1. The first approach is to ignore the topic altogether.  In rare cases, this is a deliberate decision on the part of the parties involved, and sometimes even involves religious justifications, such as the claim that they are "having simple faith" in God.  However, usually it is simply out of sheer ignorance, misplaced fear, or lack of education.  Clearly this approach is extremely dangerous and can lead to unnecessary suffering and terrible consequences.
2. The second approach is the Dor Yesharim approach, which will be described in detail later in today's discussion
3. The third is an educated and thorough discussion with a qualified physician or genetic counselor as we described in the last post.

Since we described the third approach last time, I will paste here a description of the Dor Yesharim approach so that everyone can familiarize themselves with it.  I will freely admit that I cut and pasted this from wikipedia and other online sources, but it is a pretty reasonable and unbiased description of the program, and enough to get the idea of how it works.  The Dor Yesharim approach has had major success in the "Chareidi" world, and has become the primary exposure for most people in that population to genetic testing.  It has received endorsements from major "Gedolim" and has been quite successful.
 
Dor Yesharim is an organization founded to prevent recessive genetic diseases. It is based out of New York and was founded by in the early 1980's by Rabbi Josef Ekstein, who had four of his own children die of Tay-Sachs disease. It is endorsed by many physicians and several major Torah authorities, and is the most commonly used genetic screening program for Jewish diseases in the yeshivish world. (Indeed, it is not uncommon for Orthodox Jewish day schools to sponsor screenings for all their high school students). As of September 2006, over 800 incompatible matches had been prevented.
 
The Dor Yesharim screening program is most effective with those of entirely Ashkenazic descent. Anyone with even a small heritage other than Ashkenanic descent (even one grandparent), may experience reduced reliability. (This may be of special concern to those with Sephardim or Geirim (Converts) in their background). This general background information is noted at the time of testing, to assist interpreting the results.

The program itself is designed to protect the privacy of the individuals involved, and and avoid the risk of stigmatizing a young single or their family members.

An article about Dor Yesharim was published in the June 2006 issue of the Where • What • When magazine, entitled "An Avoidable Tragedy".

Here's how it works, in a nutshell:

Singles have blood taken and their samples labelled with an anonymous identification number, and a control number. These are sent to special labs in New York where they are tested and catalogued. In addition, a contact telephone number is sent along with the sample, and results will only be given via return call to the phone number submitted with the samples, at the time of testing. The singles are normally given a booklet when they are tested, with their identification and control number stickers affixed, as well as, other information about Dor Yeshorim included. The booklet also contains a place to record information, in case the booklet is lost. All results are identified anonymously by number, not by name. The results are kept confidential and will not be released to any individual, not even to the persons themselves. The only information typically released is the response regarding a particular shidduch's genetic compatibility: compatible or incompatible.

However, if a couple is found to be incompatible, and if they request this information, the couple will be informed of the disease for which they are incompatible, the symptoms, and the specific risks they face.
If an individual has a family history of a genetic disease, even a "non-Jewish" one, Dor Yeshorim recommends that they be informed of this, as well (for example, they might run additional tests, if aware of this risk). They can provide confidential counseling, referral, and support services to families afflicted with genetic disease.
Before a shidduch begins (or as early as possible), one or the other parties in the shidduch contacts Dor Yeshorim, and using both each person's anonymous identification number and the birth date of each person, to check if the individuals together are genetically compatible (as noted above). The only information normally revealed is whether the specific couple are incompatible genetically with each other. However, if the couple requests, they will be informed of the disease for which they are incompatible, the symptoms, and the specific risks they face.
There are several rules specific to to Dor Yeshorim:

• Individuals who are engaged, married, already tested, or otherwise aware of their carrier status are not eligible to participate in this program.
• Results will only be left with the phone number registered at the time of testing. If your phone number changes, Dor Yeshorim needs to be notified as soon as possible.
• If you lose your identification number, you will need be re-tested all over again. Since it is entirely anonymous, Dor Yeshorim cannot connect you with your test results, if you lose your identification number.

Currently, the Dor Yeshorim program generally tests for:

• Tay-Sachs Disease
• Cystic Fibrosis
• Canavan Disease (patent-pending)
• Fanconia Anemia
• Familial Dysautonomia (Riley-Day Syndrome)
• Glycogen Storage (Type 1a) / Von Gierke Disease
• Bloom's Syndrome
• Gaucher Disease (on demand only)
• Niemann-Pick Disease
• Mucolipidosis IV

In addition, Dor Yeshorim may also test for other genetic diseases and mutations of existing diseases in a research capacity, unofficially, and proports to be the most thorough program of testing with regards to Jewish genetic diseases.

Those who have already been tested through another screening program, or who are already married or engaged are not eligible for Dor Yeshorim's screening program.The costs and processing times vary by screening venue.For those tested at mass screenings (e.g. Jewish high school-hosted screenings), the cost per person is typically $150 per person, and results may take 3-4 months to process.

For those tested individually, the cost is $200, and results may take 2-3 weeks, from the time the sample is received in New York (so, realistically expect 4-6 weeks, if tested in the Mid-Atlantic area).
If tested in New York, should it be absolutely necessary, there is an emergency, expedited processing available.

In the next post we will talk in more detail about the philosophy of Dor Yesharim, and try to analyze their approach from a rationalist perspective.

Premarital or Preconceptional Genetic Counselling and Testing - a Brief Introduction

In my last post, I summarized the different categories of genetic testing that we will be dealing with in this thread.  As you can imagine, each category has numerous issues of its own and needs to be analyzed through our Rationalist Medical Halachic (RMH) lens separately. Those of you who are new to this blog should review the Five Principles which define the RMH approach. Though many of you might already be very familiar with this subject, it is important to introduce the basics for everyone now. This way, when we start the fun part in our next post, we will all understand the basic issues involved.

Let's start with the second category, which I called premarital or preconceptional testing. The goal of such testing is to determine the risk of a given person or couple for having offspring with a particular genetic disorder.  In theory, if someone can know what he/she is at risk for begetting a child with a particular problem, then he/she will have several choices. (Please try to keep this issue separate from prenatal testing, which refers to testing a fetus that has already been conceived.  We will take on that issue on its own later.)

Those choices will include any of the following:  They could choose not to marry (or if already married - not to get pregnant); they could choose to take the risk; they could choose to do some intervention to either decrease the risk of conceiving such a child or prevent it altogether; or they could choose to take the risk and then to abort the fetus if indeed it is found to have this disorder.

It should be obvious that the moral implications of each of the above choices are incredibly important, difficult, and complicated.  Every single one of the above choices leaves in its wake a potential minefield of ethical and Halachic conundrums.  Our purpose in this post is not to give guidance regarding the choices themselves once a problem is discovered, but rather I will focus on the counseling and testing itself.  How does one decide what type of testing is appropriate for him/herself and what is the rational Halachic way to proceed with this type of genetic testing.

The first question, to which I will not devote much time to at all, is the question of whether such testing should be done at all.  The argument against it would come from a religious perspective and sound something like: "Tamim Te'Hyeh Im Hashem Elokachah" that one should have simple faith in God and not try to mess with God's plans.  This perspective was already treated by R' Moshe Feinstein in Iggerot Moshe Even Ha'ezer 4:10 in a landmark teshuva regarding Tay Sachs testing.  The bottom line is that virtually every Halachic authority agrees with R' Moshe that a simple risk free test that can prevent suffering would be Halachically required of any person as part of his/her responsibility to protect his/her health and that of his/her offspring.  R' Moshe compares this is closing one's eyes from seeing the obvious, which is certainly not indicative of simple faith in God, but rather it is indicative of willful stupidity.

So now that we let that issue rest, let's discuss what genetic testing is like today, and then we will analyze how it is (or isn't!) done by Halachic Jews today. Then we can apply our rationalist lens to determine what the Halachic approach should be.

The field of genetic counseling has grown in the last few decades into a significant player among the various medical specialties.  As our knowledge has grown, available tests has grown, and available treatment choices have grown, this specialty has of course grown more and more important. The knowledge base today is so extensive, that ordinary family doctors can no longer possibly have all the knowledge necessary to appropriately counsel their patients in this area.  So we turn more and more often to trained genetic counselors, or physicians who concentrate specifically on this area.

The meeting with a genetic counselor is typically a long one, like 30-45 minutes, and by its nature it will include filling out a long questionnaire beforehand, and discussions about relevant topics.  The topics first investigated include (but are not limited to): an extensive family history of the potential father and potential mother; extensive personal medical histories; a review of any genetic tests that may have already been done on the potential parents; and a review of ethnic and racial backgrounds of the potential parents.  All of this information is processed by the counselor to determine the specific level of risk this couple may have to transmit various genetic disorders to their potential offspring.

It is extremely important to remember that EVERY person has around a 3% risk of transmitting genetic disorders to his/her children.  The problem is that there are thousands upon thousands of potential disorders, and the risk for transmitting any particular one of them in any given couple is so minuscule that testing for every one would be extremely inefficient, ineffective, and and just a really bad idea.  The trick is to identify the problems that each couple is at a significantly increased risk of transmitting, and then to discuss whether or not testing for that particular problem might be warranted.

Any given Jewish couple will have baseline risks for certain problems, simply because they are Jewish.  The fact that we are aware of genetic diseases common to Jews is a blessing of modern medicine and of our unique heritage.  The average non-Jew (at least in the US) doesn't know very well what he/she is at risk for, because the population is so heterogeneous and therefore impossible to track the risk factors unless they have a specific family history. But being a Jew generally means that you come from a specific genetic population that (at least until recently) has had relatively minimal mixing with the society around it.  This is a blessing because it allows us to target specific disease that are known to occur in our population.

The couple in question may then also identify family specific problems, and then they will be presented with some complicated decisions to make.  Primarily they will have to decide two things.  What should we test for?  What would we do with the results of these tests should they uncover something?

The answers to these questions will vary tremendously according to the circumstances and the personal preferences of the people involved.  They will take into account numerous factors including, but not limited to:

1. How high is our risk for carrying this disorder?
2. How high is the risk of transmission?
3. What are the risks and/or costs of the test?
4. What would be the consequences of transmitting this disorder to our child (how severe is the problem, are there treatments for it etc...)?
5. What options would be available to prevent having a baby with this problem (i.e. prenatal testing, abortion, Preimplantation diagnosis, and so on)
6. What options would Halachically be available to us?

As you can see, this process is very complicated and potentially very stressful, but also very very important.  Closing one's eyes to this information is similar to closing one's eyes when crossing the street.  In today's world, it is imperative for potential parents to go through this process.  Of course the decisions made will vary for every couple and every individual. But to ignore it completely is nothing less than willful stupidity.

Now that I gave you a summary of what genetic testing should be, in my next post I am going to discuss some of the programs that are in place today in the Halachic community, and use our rationalist lens to decide the merits and/or critical problems with some of these programs.

Genetic Testing - What is it and Let's get Started Again!

I sincerely apologize to everyone who has followed this blog in the past for my prolonged absence from the "blogosphere".  I attribute my absence to my busy life as a father, physician, and simply being an active participant in the community that I live in. So blogging had to take a back seat for a while. However, after much soul searching, i realized that this blog afforded me the opportunity to express my ideas to the people who could most benefit from them, but more importantly, the opportunity to get feedback from those very same people.

So here I am, ready to pick up where I left off a while back, the topic of genetic testing from a rationalist medical Halachic perspective.

Before I begin, let me say with a measure of both pride and humility, that the three topics (Time of death, treating gentiles on Shabbat, and abortion) I covered so far and my treatment of those subjects, has made significant waves in the Jewish community.  This blog has positively influenced the thinking of many leaders in the field, and I am proud of that achievement.  But there is so so much more work to do, and the list of issues we need to tackle grows daily.  

Please feel free to suggest topics, and as always, please feel free to speak your mind in the comments section, I really enjoy and learn from the feedback you give me.

Several weeks ago, a pamphlet published by YU landed in front of my seat in shul called, "To-Go" and the topic of this pamphlet was strengthening marriage and relationship-building.  Naturally I picked it up and perused through it, with my mind settling on an article by Dr Eddie Reichman about the Halachic "Mandate of Genetic Testing".  Naturally, any article by Dr. Reichman deserves my attention, so I read it carefully and enjoyed it, and will be referring to it as we progress through this blog topic.

But most importantly for me, this article gave me the "kick in the pants" that I needed to get back to blogging!

So here we go!

The term genetic testing conjures up all sorts of images in the popular imagination. It seems to me that any discussion of genetics stimulates more fear and trepidation than other types of medical testing, especially among Jews.  There are obvious historical reasons for this, but the purpose of this blog is not to delve into the history of the relationship between anti-semitism and genetics.  However, it is imperative for any Jew who believes that being informed about his/her health is part of the biblical mandate of "VeNishmartem Me'od L'Nafshoteikhem" to get him/herself educated about this incredibly important topic.

Just for a "heads up", I am going to be discussing various programs for genetic testing that are currently being used in the Orthodox Jewish community.  I hope to analyze through our "Rationalist" lens  some of the advantages and disadvantages of several of these approaches.

What does the term "genetic testing" mean?

The term genetic testing refers to any medical test that is meant to determine any part of the genetic makeup of any individual or future individual (such as an embryo).  It is thus a very broad term, and I first need to describe the basic areas in modern medicine in which genetic tests are used.  There are many different types of genetic testing that are used by physicians today.

1) Prenatal testing - This refers to testing of a fetus during the various stages of development during pregnancy.  The purpose is to diagnose any possible medical conditions that the fetus may be afflicted with, specifically medical conditions that are known to be genetically caused.

2) Premarital or preconception testing - This refers to testing that prospective parents might get in order to determine what types of genetic disorders they may be at risk of transmitting to their potential offspring, should they decide to have children together in the future.

3) Individual Testing - This refers to testing a person who is not currently afflicted with any known genetically caused disorder in order to determine his/her risk for developing a particular disease that is at least partially caused by a known genetic defect. The most common example of this is the BRCA gene which is known to significantly increase the risk of breast cancer in those people who carry the gene.  The purpose of such testing is to determine if interventions might be able to be done in select individuals that would reduce the risk of them ever contracting the disease.

4) Diagnositic testing - This is done in a person who is afflicted with an illness, and it is suspected that it may be due to a certain genetic disorder.  By checking off specific genes, this may help determine exactly what is causing the problem, which may help to properly treat the afflicted person.

5) Testing embryos, ova or sperm for eventual fertilization or  implantation - Such testing is usually done during the process of infertility treatment.  In such cases, embryos are tested before implanting them into the mother's uterus.  The purpose is to diagnose which embryos nay have certain desirable or undesirable characteristics which will help determine which embryos to implant and which to discard.

6) Forensic and paternity testing - This refers to testing of blood or materials for DNA with the purpose of determining the identity of the origin of the DNA. In the case of paternity testing it is to determine the father of a particular individual, in the case of forensic testing it is to determine the person from whom the material originated, usually for the purpose of criminal investigation.

With that behind us, let's move on to my next post, in which I will discuss some of the reasons why from a religious perspective, genetic testing is such an important part of taking care of our health.

Genetic Testing

This is the start of a new series in this blog, one which has been on my mind for quite some time, and one which has been on my mind for quite some time.  It seems to me that each topic I have chosen so far has something unique and special about it that makes it stand out as a paradigm for what i believe is a fresh "rationalist" approach to medical Halacha. 

The first topic we discussed, brain death, represents the difficulty one has when contemporary Halacha has to consider the medical knowledge that led to the Halachic precedents that are recorded in Chazal and earlier poskim.  We described how important it is to understand why the gemara said what it did regarding the determination of death, and what chazal's understanding of physiology was.

Our second topic, treating goyim on shabbos, represents the problems one encounters when Halacha seems to conflict with our basic moral sense of right and wrong.

The third topic, abortion, was a rationalist approach to a subject which had no clear Halachic consensus, and the decision making process that should be involved in dealing with something this unclear and complex.

This new thread, will deal with a Halachic topic that is unique for several reasons, which I plan on demonstrating during the writing of the series.

1)  This topic is unique, because the scientific knowledge in this area increases so quickly and so dramatically, that a Halachic treatment of the subject that may have been valid two years ago may be no longer valid.  I am going to argue, that not only is the knowledge that we accumulate quantitatively increased, but qualitatively as well.  Thus, not only do we know more "stuff", but the accumulated knowledge needs to fundamentally change the way the religious community deals with this subject responsibly and consistent with Halacha.

2) This topic is also unique because it forces us to consider fundamental Jewish concepts in ways that our great leaders of the past could not possibly have foreseen.  Concepts and ideas such as fate, predestination, divine guidance of wordly events ("hashgachah pratis"), hishtadlut, bitachon, and many other most fundamental concepts have to be reconsidered in light of the challenges of this wonderful new area of knowledge that science has given us.  It is my contention, that the approach one takes to genetic testing is highly dependent upon how one approaches the above mentioned concepts and their relative value in Judaism. The intersection of "Hashkafah" and "Halacha" is especially relevant when considering this topic.

The question then becomes, how much should scientific knowledge change the level of importance that we give to certain Torah values.  I know this sounds a bit heretical at first, but please give me a chance to explain exactly what I mean before you make any judgements.

3) This topic is also unique, in that a primary issue involved is the value of knowledge itself. Most Halacha revolves around actions.  Halacha usually forces one to consider such questions like, "what am I allowed to do?" or, "What am I obligated to do?"  However, when it comes to genetic testing, the question is very different. This is because one is asking, "what knowledge should I seek to find out?" or "Is it better to know some piece of information or not to know it?"  This is not the usual Halachic quandary, and it forces us to inquire into the fundamentals of the Jewish values of seeking knowledge and learning vs. faith and trust in God.

I must beg your patience as we work through this subject, as it will take me some time to develop my ideas.  Please forgive me, because I also have a "day job" ;-). So if I miss a few days, please be aware that it is not because I have given up on this enterprise.

My general plan will be as follows, though I may change it here and there as we progress through the subject.

First I plan on giving some background.  I will review the state of genetic testing in practical medicine today, and review the options, treatments available, and enough science that you will hopefully understand the basics.  I will then review the sources that the poskim bring from chazal and rishonim acharonim etc. that are used when discussing the subject.  Then we will discuss the various major contemporary poskim and how they dealt with (or deal with) these issues.  Then we will embark on our rationalist analysis, using the five principles of Rationalist Medical Halacha.

A Halachic Rationalist Approach to Abortion

Today’s post is a result of years of research and reading, a career full of practical experience, pondering the three thoughts that I told you to ponder at the end of my last post, and applying the five principles of rationalist medical halacha. In this post I hope to wrap up this issue, and I beg you to patiently read it through until the end before you form your opinion about it.  I truly hope, that after you read this blog series, and after you read this post, you will have a well-founded and comprehensive Torah approach to this difficult subject that you can take with you for life.

Let me start by telling you just a little bit about what we know about the development of a fetus from conception until birth.  This will be the fastest and briefest course in embryology that you will ever have, so listen carefully, and hold on to your seats.

After fertilization occurs of the ova (egg) with the sperm, there is one single microscopic cell with the entire DNA in it for a future human being. However, it is still only one single tiny cell.  It begins to divide and divide rapidly into thousands, then tens of thousands, then millions of cells, and it implants into the wall of the uterus somewhere around 5-7 days after fertilization.  It continues to grow and grow, and by around 6-7 weeks or so from the beginning of the last menstrual period (LMP), anyone that knows how to use an ultrasound machine can see a heartbeat, but still no limbs or anything resembling a human being.  This roughly corresponds to the time that Chazal call “arbaim yom” (recall that Chazal date a pregnancy from conception, while modern doctors date from the LMP, so 40 + 14 days = 54 days or somewhere close to 6-7 weeks). 

During the next 6-8 weeks or until around 12-14 weeks since the LMP the organ systems and limbs begin to develop. By the time a fetus reaches 12-14 weeks, anyone can easily see limbs and organs that resemble a human being.  This roughly corresponds to the time that Chazal call “Hukar Ubbarah” or what laypeople call “three months”.  By this time, most women cannot fit into their normal clothing, and they are already looking for clothing that will fit, and their friends are asking, “are you pregnant?”  This is also the end of what doctors call “the first trimester”.

The next period, from 14 weeks until around 22-24 weeks, is the “second trimester”.  During this time, the organs are maturing and growing, but if the baby is delivered now, there is no chance of survival at all.  By the end of this period, almost all women are feeling the movement of the baby, though some feel it as early as 16 weeks, and some don’t until as late as 22 weeks.  So the end of the second trimester roughly corresponds with the period Chazal called “Hargashat tenuah” or “feeling movement”.

I am not aware of any other writer who has made these connections, so I stake my claim to originality on this point.  But at this point things become much more complicated for Chazal.  Until this point, there is every reason to assume that Chazal understood these stages of development.  I say this for the following simple reasons:

1.       The period of arbaim yom, which Chazal called “mayim be’alma” or “just like water” was clearly understood by Chazal to be the time of earliest likelihood of miscarriage.  Surely there is every reason to assume that Chazal and people of antiquity knew that very often a woman would be late for a period, and then have a heavy period several weeks later resulting in a loss of the pregnancy.  It is obvious from the gemara in Yevamot that this was the case.  People in those days would have noticed that all they saw were some formless and shapeless clumps of tissue, which gave rise to the term “just like water”.

2.       The period of Hukkar Ubbarah, is also obvious. By definition, when a woman’s belly was recognizably growing the famous “baby bump”, clearly it does not take millions of dollars in modern hi tech science to tell you that she has reached a new stage in pregnancy.

3.       The period of hargashat tenuah, likewise was a stage that was well known without science, for obvious reasons.  It is clear from the ancient literature, that the arrival of this time was a great reassurance that the pregnancy was going well.

However, once we get beyond that, it is very difficult to calculate any longer exactly when the baby is mature enough to survive.  When does the “kalu Lo chadashav” (KLC) stage happen?  This was something that was a great conundrum in Chazal’s time.  Over and over again throughout the Halachic literature this mystery is pronounced.  The best evidence they had throughout history was in retrospect.  So once a woman is in labor, then it must be that she has reached that stage! Because “Rov nashim Meyaldot B’nai Kayama!” (“most women deliver healthy (full term) babies”).  So the best evidence that KLC was reached was when it was ne’ekar letzeit (NLT).  This works with natural processes, but what about when an abortion is caused in an unnatural way? How can we know if it was KLC?  The bottom line is that this could not possibly be known until modern technology came along and gave us those answers.

In contemporary times, once a fetus reaches past the 22-24 week stage, the baby will usually survive with proper care, though with many difficulties along the way. A baby is considered “full term” if he/she is born after 37 weeks, but 40 weeks is considered a woman’s natural due date. It should be obvious though, that before the days of neonatal intensive care units, modern medications, and incubators, that any baby born between 24 weeks and 37 weeks was preterm, and very likely would not make it and survive.  Maybe 35-37 weeks some might have made it, but earlier then that it is hard to imagine it possible.  That is what a nefel was, a preterm baby that may or may not make it.

This situation remained virtually the same throughout the ages, all the way from the time of the gemara until the twentieth century.  The obstetric knowledge of the Chavos Yair, was not very different from the obstetric knowledge of Rabbi Yishmael.

If we rethink all of the poskim that we have learned in this light, a few things become obvious.  If something does not look like a human being, it is not a baby and there are grounds to be more lenient.  Anyone that has learned even three lines of Massechet Niddah would know this intuitively.  In the time of Chazal, in order to determine whether or not something had the halacha of a baby, they looked at the tissue and decided, “does it have the form and shape of a baby or not?”  This is the origin of the mayim be’alma statement.  See the entire third chapter of Massechet Niddah for more details.  The gemara there discusses scores of cases of women passing tissue of all sorts, which is almost all undoubtedly early first trimester miscarriages.  Chazal invariably held that if there was no human form, it was not considered a birth, and if there was a human form, it was considered a birth. In numerous places in Massechet Niddah, Chazal even assumed that tissue that had an appearance somehwat animal-like, was thus not human, and therefore not a birth.  It is almost certain that they were looking at miscarried tissue in many cases, or fetuses that aborted early due to severe congenital anomalies.

It is almost inconceivable that Chazal would have applied the concept of murder to something that they Halachically did not even consider to be a human birth.  I would even submit that it is very possible that Chazal wouldn’t even have given such a fetus the halacha of an Ubbar.  I mean to say that even a gentile according to Rabbi Yishmael would be permitted to abort such a fetus.  Simply because Chazal didn’t believe that it was considered human yet, so it would not fulfill the pasuk of “shofekh dam ha’adam ba’adam”.

This is the Common Sense Principle in action. Common sense would dictate that something that isn’t even human according to Chazal, cannot possibly be considered murder.  Common sense would dictate that tissue without a brain, limbs, or organs (at least until 6 weeks or so) could not possibly be subject to the restrictions of murder.

On the “flip side”, the overwhelming majority of the poskim were more stringent once we got to the point of KLC (full maturity and able to survive on its own).  Many were more stringent only at the point of NLT (onset of labor), but only because many of them assumed that NLT was the only time we could be at least reasonably certain that KLC had been reached.  If these poskim had known that the baby was fully developed and formed and could survive outside the mother, it is almost inconceivable that they would not have applied the concept of Avizrayhu de’retzichah or maybe even full-fledged murder.

I can’t imagine that even the most lenient poskim, would have allowed abortion at this late stage, had they known that there was a fully developed baby with ability to survive outside the womb.  It is hard to imagine the Rishonim saying “Ubbar Yerekh Imo” (the baby is just a limb of the mother) of the baby is capable of surviving without the mother.  Even the Radvaz, who famously stated that “even though the baby is moving it is no better than the wiggling of the tail of a lizard” and therefore not murder at all, I submit that he almost certainly never would have allowed an abortion had he known that we could prove that the baby was well developed enough to survive on its own.

This is the application of the Halacha is Moral principal in action.  A basic sense of morality would dictate that after 24 weeks, when the baby can survive, that abortions should be at least close to murder and should be forbidden.

But what about the time in between these two periods? What about the time when the baby looks like a little human being, but is incapable of surviving on his/her own? Herein lies the “Nekudat Ha’Machloket”.  The Nekudat Ha’Machloket refers to the middle ground where the debate is occurring.  The extremes we all agree to, but here in the middle the debate continues to rage.

During this stage of pregnancy there is definitely, at least at some level, a human being inside its' mother. This would seem true even though he/she is totally dependent upon his/her mother for survival.

Is it like murder because it seems to be a small human being? Or is it not murder, because it is
totally dependent on the mother and therefore just like a limb of the mother?  We look over all these opinions, but we still must decide;  is there a general consensus on what is and isn’t permitted?  Are there guidelines that we can give to the general public?  How do we proceed?  What can we glean from our entire discussion that has practical value to the general public? What can we learn from everything we have spent the last few months discussing that can be understood by this conflicted and desperate young religious Jewish woman who is sitting before us and asking “what does the Torah tell me to do?”

So we just spent several months together looking at the sources, and what have we seen?  What have we learned?  We delved into the Halachic process, we studied the Torah, and have we found anything to help us?

Yes. The answer is yes. We have found a lot that can help us, but we haven’t found a simple yes or no answer to our question.

We found out that throughout the centuries hundreds of rabbis were consulted by women going through all sorts of terrible personal dilemmas.  We found that each received an answer from her rabbi that was appropriate for her time and place.  We found that hundreds of rabbis looked at abortions from different angles and came up with different conclusions based on their perspective, and based on what made sense to them.  We found that throughout history, attitudes changed among the rabbis, so that their advice and guidance changed as well.  Some rabbis were ready to permit abortions for single girls due to their shame and embarrassment, some were ready to permit abortions for married women that became pregnant in adulterous affairs, we found that some were willing to permit abortions out of concern for the welfare of the other children that the woman was trying to nurse.

We also found rabbis who were concerned about promiscuity, rabbis who were concerned about the future of the Jewish people, and those who were concerned about the value of life and the incredible waste of life that an abortion could represent.  We found Rabbis who were concerned about the moral standing of Judaism vis a vis the outside world, and Rabbis who were concerned for the health and welfare of the fetus and the woman involved.

The sum total of everything that we have found, is that the Torah does have guidance for this young women who has asked for advice from her religion, and seeks the guidance of God.  This is the guidance she deserves, and this is what she needs to hear from her rabbi, mother, friend, sister, teacher, or whomever she seeks out to get counsel and support:

“There is a little baby developing inside you.  This baby is a future human being, a future Jewish young man or young woman.  The overwhelming majority of poskim believe that in cases of extreme need for the mother, an abortion can be performed.  The level of what is considered “extreme need” is unclear and subject to much debate.  There is no yes or no answer.  You are the only person who knows yourself and your needs.  I cannot tell you how much pain you are in, I cannot tell you how much suffering you are enduring.  No Rav, no doctor, no person has ever been able to divine just how much pain someone else is in. There has not yet been invented a “painometer” to measure objectively what level of suffering you have.”

“I am just a Rabbi, I am just your mother/father, I am just your friend, I am just your fellow Jew, or I am just your teacher.  I am not you.  You must understand the incredible value of this future life inside you, and understand that some poskim even consider it close to murder to terminate this pregnancy. You need to seriously evaluate with mature and competent advisors who you trust what kind of discomfort and pain you would be in if you chose to keep this baby vs. abort this pregnancy.  You must speak with advisors who value life, who value Jewish life, and those who appreciate and understand your suffering and your unique perspective. If you determine that your pain and suffering would be so great that it is justifiable to terminate the pregnancy, and this is an honest and true assessment, then there is Halachic basis and support for your decision.”

Let us look at the following story. A man comes to his rabbi on Yom Kippur afternoon, to ask a question as follows, “I feel sick today, and I would like to eat something. I think my life is in danger if I don’t eat something. As you know I have diabetes, and I just don’t feel right.”   The man doesn’t appear to be so ill, so the rabbi tells him, why don’t you speak to Dr. Goldberg who is sitting right there in the third row.  Dr. Goldberg, who is Chief of the Endocrinolgy Department at the University of Anytown, and he is well qualified to determine if indeed this is life threatening.

The man goes over to Dr. Goldberg, who pulls out his handy glucometer (a device which checks levels of blood sugar) and checks his glucose.  Dr Goldberg reads the results, and discusses with the man his history and what medications he is on etc…  Based on the results and all of the information, Dr. Goldberg tells the man that he does not feel he is in any imminent danger, and therefore he can complete the fast.  The man then goes back to the rabbi with Dr. Goldberg’s answer, and he is not satisfied. 

“I feel like I need to eat or I will be in danger!” 

“But Dr. Goldberg has just reassured you that you will be fine, and halachically, you really may not eat unless your life is threatened!”

“I don’t care what Dr. Goldberg says, I know my own body, and I need to eat!”

What should the Rabbi’s response be to this man? Should he throw him out of shul for being insolent and trying to disobey halacha? Should he try to convince him some more to last without eating until the end of the day? Or should he tell the man, “If you feel that your life is truly threatened, and you truly understand the importance of Yom Kippur, then go ahead and eat”

The Halacha is clear on this question.  As the pasuk in Mishlei (Proverbs) 14:10 says, “a [person’s] heart knows the bitterness of his soul”. The Gemara in Yoma 83a quotes this verse and concludes with the definitive Halacha regarding our question (my own translation):

“If a person says, “I need to eat” then all the experts are as if they do not exist, and we therefore give him to eat…”

Only the woman herself in our case knows how much pain she is in.  How can anyone else decide for her what kind of suffering she is having?  How can we judge her motives if we cannot possibly put ourselves into her shoes?  Only she has the right to decide what is considered a great need that would warrant an abortion.

If this is true about a clear Issur De’Oraytah like eating on Yom Kippur, how much more so should it be true when it comes to something like abortion.  As we’ve seen, numerous poskim hold that abortion is an issur derabbanan. Even of those who held it was a De’Oraytah, the overwhelming majority of those poskim hold that it is a De’Oraytah due to other prohibitions such as Chavallah (wounding), wasting seed, stealing, and so on.  All of these as we’ve seen during our discussion can be permitted in cases of great need.  The only person who knows what she is going through is the woman herself. As King Solomon taught us, only within a person’s heart can her suffering truly be known.

That is what we can say to her, that is sound Torah based advice, and that is the truth.  If you read the entire blog until this point, you will see that it is consistent with the sum total of what we learned about abortions in Halacha.  That is what the Torah teaches, and this is how the Torah can give her guidance.  That is the role of the Rabbi, to teach what the Torah teaches, not to teach what he thinks someone else’s pain is like.  Only a prophet with a direct line to God Himself can tell someone else what they are thinking and feeling, and no such people exist today.  If it sounds like Judaism is “pro-choice”, then maybe Judaism is.

The Halachic Stages of Pregnancy and Some Points to Ponder

Everything we have discussed until now regarding the topic of abortions in halacha, represents the traditional Halachic approach to this subject.  One studies the sources, the sugyos in shas, the Rishonim, the poskim, and the modern decisors then apply these principles to the shaalot at hand.  However, more than any other topic in medical halacha, something about this issue has bothered me for years, but I couldn’t seem to “put my finger on it” until recently, when I started to use the rationalist approach to which this blog is devoted.  Once I began to look at this topic through the Five Principles of Rationalist Medical Halacha, I finally realized that I may have “cracked” the code and understood the right way to approach abortions from a Halachic perspective.

This revelation occurred to me as I studied the discussions of the poskim regarding the different stages of pregnancy.  Throughout my lengthy presentation of the different shitos regarding abortion, you must have seen (if you managed to make it through the discussion without losing interest!) little hints that I dropped here and there along the way about how different poskim treated different stages of pregnancy differently.  The “Halachic” stages of pregnancy are as follows:

1.       Tokh Arbaim Yom – Within the first 40 days

2.       Hukar Ubbarah – when a woman is recognizably pregnant, generally understood to be around three months of gestation

3.       Hargashat Tenuah – when a pregnant woman begins to feel movement, usually a little bit after hukkar ubbarah

4.       Kalu Lo Chadashav – its’ months are completed, which is generally understood to be mature enough to survive outside the womb.  We will not get into the “seventh month” fetus issue here.

5.       Ne’ekar latzeit – when the baby is “uprooted and starts to come out” usually meaning after the onset of labor

6.       Yatzah Rosho – the delivery of the head, at which point we view the baby as a separate being from the mother

All of these terms were used throughout our discussion by the poskim, and they all have ramifications for psak halacha (Halachic decisions) when Rabbis make decisions regarding the permissibility/prohibition of abortion. To go through the extensive examples and bring more mareh mekomot (sources) for all of these stages and what their Halachic ramifications are would be a lengthy and exhausting process, and I won’t force you to suffer through that now.  We do need to at least touch upon each stage, and describe how it affects halachah at least in a most basic way.  I will only bring one or two sources for each stage, if anyone wants more sources they are welcome to request it via email.

Stage 1; “within the first 40 days”:  This stage has its origin in the gemara Yevamot 69b, where the gemara states that “until 40 days, it is just like water”. Many poskim consider this gemara a reason to be lenient and allow abortions prior to 40 days.  It is important to note, that the gemara is dating the pregnancy from conception, not like modern medicine that dates the pregnancy from the first day of the last period (usually somewhere around 11-14 days prior to conception).  So what the gemara calls 40 days, we would call around 7-8 weeks gestation.

Stage Two; Hukkar Ubbarah: This is usually defined as around three months of pregnancy.  The primary origin of this stage is the gemara in Niddah 8b, and this is known to the Gemara as the time from which women stop having their menstrual bleeding due to pregnancy.   Although we now know that in a healthy pregnancy bleeding should stop as soon as a woman becomes pregnant, this discrepancy is an interesting subject that we will not deal with right now.  Few poskim use this as an important time regarding the laws of abortions, though it does pop up from time to time in various contexts.  However, it is very important for my analysis, as you shall see soon.  That is because until this point, in ancient times, there was no way to confirm whether or not a woman was pregnant, so this creates a doubt as to how far along she is in gestation in later stages.  Once she is recognizably pregnant, we know that at least from that point on she was pregnant. Give or take three months or so, that may be your best way to guess in ancient times as to the stage of pregnancy.

Stage Three; Hargashat Tenuah: This usually occurs somewhere after stage two, around 4 or 5 months into gestation, depending upon the woman.  This milestone is rarely used in Halachic discussion, but it does pop up occasionally.  It pops up during discussions that revolve around when others can testify that they knew a woman was pregnant because they saw or felt movement (as opposed to just having a large belly), for example here in the Noda beYehuda, and also pops us in its negation – that those who hold that abortion is not murder, will say something like “even though it is moving…it is still not murder..” for example here  in the Radvaz.

Stage Four; Kalu Lo Chadashav (KLC): This is a very important stage halachically.  This stage is important because it is assumed that a baby can only survive if it is born at a time that its gestation period has been long enough that it has reached the stage of KLC.   For example, of the poskim who hold that abortion is prohibited due to murder, some explain that the reason why one is not liable for death is because we can never know for sure that the fetus has reached KLC see Moshav Zekeinim here.  It also seems that many of the poskim who hold a fetus is not a nefesh and therefore abortions are not murder would be more stringent in a case if we could know for sure that the fetus had reached KLC..  Another posek who discusses this topic at length is the Noda beYehuda here.

Stage Five; Ne’ekar Latzeit:  This is also synonymous with the term “yoshva al hamishbar (sitting on the birthing stool)” as it refers to after the onset of labor.  This milestone in fetal development is used in the gemara here which talks about a woman who is liable for death, that once she is in labor, we do wait for delivery before we carry out her sentence. It is also assumed from the mishna in Oholot that the halacha that the woman's life takes precedence over that of the fetus is applicable even after this milestone, as that is the context of this Mishna.  It seems from the poskim, that once a woman reaches this stage, we can assume that KLC has been reached, at least in the majority of occasions, as most women do not deliver prematurely.  This is an especially important concept in a time when we had no other way of determining gestational age, and the stage of KLC could never be certain.  This is clear from the poskim, see the Noda beYehuda here who makes this clear in his classic teshuva on the topic.

Stage Six; yatzah rosho: From the mishna in Oholot, and regarding this issue there is no serious Halachic debate, that once the head is delivered, the baby is a full fledged human being, and is not considered a fetus anymore, and if one should deliberatelky harm or kill (God forbid) this child, he/she would be liable for appropriate punishments just like one who harms any child or adult.

When thinking about all I have learned, and trying to digest everything and make sense of it all, a few thoughts occurred to me that led me to try the rationalist approach to this topic.  The first most glaring aspect of this issue is the incredible diversity of opinion. I have discussed this with numerous poskim and Rabbanim of great stature, and none could find me any other topic which even comes close, or to which this can even be compared.  Despite the fact that the Torah itself discusses the issue of causing abortions, and the fact that there are numerous references throughout shas, and literally thousands of pages of shaalot ve’teshuvot (rabbinic responsa), there has been no consensus reached. In fact, it seems that the more poskim write about it, the more confused the situation gets.

A second glaring aspect of this issue is how things have changed over the centuries. The notion of abortion being equivalent to murder is virtually non existent among the Rishonim (which the notable exception of the Moshav Zekeinim L’daas baalei Tosfos see here).  In fact the Rishonim emphatically insist that this abortion is not murder at all, including Ramban, Ran, Rosh, Behag, Meiri, Ramah and more, as we have extensively discussed (I purposely didn't mention Tosfos and the Rambam in this list because their opinions are so surrounded with controversy). 

Then the earlier acharonim, begin to discuss much more extensively exactly why it should be prohibited. They generally take the lead of the Rishonim and assume it is not murder, so they seem to attempt to find other reasons why it may be prohibited whether D’Oraytah or derabbanan, as we saw in detail during our discussion.

Then we suddenly find a sea change of opinion as the nineteenth century ends, and then as we progress toward modern times.  Suddenly, beginning with the Maharam Schick, and then the Sdei Chemed, the poskim begin to insist that abortion is like a “chatzi shiur” (a “partial: murder) of murder.  They continue to insist further as the twentieth century wears on that it actually is murder, as we saw from the Ohr Sameach, and then Rav Unterman (see the Torah Journal: Noam Volume 6, in a teshuva that I chose not to include in our discussion until now only because nothing new was added that hadn’t already been discussed), and Rav Moshe Feinstein.

A third point which “shines forth” from the data we have analyzed together, is the fact that no posek that I have read has seriously and comprehensively entertained the possibility that modern medical knowledge may shed some light on this issue.  This came to me most obviously when researching the issue of the stages of pregnancy.  Are these stages still relevant in the 21^st century?  In our times, we know so much information about fetal development. We now can identify when the fetus develops organ systems, brain tissue, when it can survive with medical assistance, and when it can survive on its own. We can identify with certainty close to 99% in most cases which fetuses have anomalies that are survivable,, and which are not, and which are questionable.  We can identify which gestational ages will do well, and which won’t.  Does all information this affect the halacha?  Is it still relevant to be discussing stages like “kalu Lo chadashav” when we can identify viability by modern methods of dating pregnancies and by ultrasound?  Can modern medicine help us apply the rules of the Torah in a logical and consistent way?

Ponder these three thoughts of mine a little bit (1 – the diversity of opinion, 2 – the historic development of the halacha, 3- modern medical understanding of fetal development).  Then apply the five principles of rationalist medical halacha.  Then you may come to the same conclusion I did, or maybe you will come up with an even better conclusion?  Stay tuned for my next post, in which I plan on presenting my ideas.  I would love to know what you think.