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Personhood in Jewish Tradition8 min read

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One of the points at which I disgree with my fellow conservatives is on the "point of personhood" of an embryo.  While the standard evangelical and Catholic point of view is that the embryo is a person with rights beginning at fertilization, I think we should legally define it at some later point, perhaps around 4-6 weeks into gestation.  At that point, the fetus has a heartbeat and brainwaves, and should logically be protected by law.

As I have been reading some of Wm. Gallston’s works, I found an interesting 2004 essay he wrote entitled RELIGIOUS PLURALISM AND THE LIMITS OF PUBLIC REASON. One of the things that he discusses is that Jewish tradition doesn’t give the fetus personhood until 40 days.  I feel vindicated. 

Here’s some relevant passages.  In the first, he is paraphrasing Neuhaus on the point that reason can help us elucidate some public values, but not all:

The distinction between good and bad is more than a variable human contrivance, but goods are multiple, heterogeneous, not reducible to a common measure of value, and not definitively rank-ordered. Human reason can rule out certain courses of action or states of affairs as intolerable, indecent, inhumane. But after what is unacceptable has been excluded, reasonable people can and do differ about what to affirm, and there is no neutral authority to resolve these disagreements.

That is to say, reason can not help us rank values definitively, and while it can help us determine what is definitely OUT of bounds, it can not really help us decide what to affirm (e.g. gay marriage).

  1. The Talmud distinguishes between an embryo prior to the 40th day and those that develop past that point. A number of otherwise binding legal requirements do not apply to a woman who miscarries before the 40th day of pregnancy. Accordingly, serious genetic defects or medical problems that do not endanger the life of the mother may justify abortion during this period.
  2. According to Rabbi Breitowitz, a pre-implantation embryo should not be entitled to more halachic protection than a pre-40 day implanted embryo, and there are grounds to afford it less. Thus,

"if genetic testing uncovers a defect which would justify abortion of a pre-40 day embryo, destruction of the preembryo may be similarly permitted." Many, though not all, contemporary authorities go farther, permitting the destruction of so-called surplus pre-implantation embryos even when the actual abortion of the same embryo, once implanted, would be forbidden."

Rabbi Moshe Dovid Tendler summarizes the classical Jewish position in the following terms:

"The Judeo-biblical tradition does not grant moral status to an embryo before forty days of gestation. Such an embryo has the same moral status as male and female gametes, and its destruction prior to implantation is of the same moral important as the "wasting of human seed" . . . The proposition that human hood begins at zygote formation, even in vitro, is without basis in [Jewish] biblical moral theology."

Interestingly, he also discusses how Jews address Catholic and Protestant conservatives on this issue:

It might well be thought that this stance is morally risky, because it may lead to a slippery slope at the bottom of which is the taking of human life. The Jewish tradition is sympathetic to this line of argument. Indeed, much of rabbinic law consists in the effort to build a protective outer perimeter (a "fence") around the law of the Torah.

For this reason, says Rabbi Tendler, Orthodox Judaism "respects the effort of the Vatican and fundamentalist Christian faiths to erect fences that will protect the biblical prohibition against abortion. But a fence that prevents the cure of fatal diseases must not be erected, for then the loss is greater than the benefit."

This last sentence does not seem to want to justify embryonic experimentation beyond the 40 days, but chastises conservatives who want to presume the embryo is a person before that, and in doing so, eliminate that route of possible medical benefits based on such a presumption.

Interestingly, in such moral questions, Gallston suggests that neither reason nor revealed truth can decide for us, but perhaps a third method is possible:

To find a public resolution, one might try to appeal to something between reason and revealed theology—namely, our everyday moral experience.

However, this too is subjective, and in the end, does not solve our dilemma.

Alas, this changes the venue of controversy without resolving it. Consider, for example, the outcome of the deliberations of President Bush’s Council on Bioethics. While ten-member majority of the Council favored a moratorium on cloning for biomedical research, a seven-member minority would have permitted such research under suitable regulation. A noted conservative scholar, James Q. Wilson, joined the dissenters. His justification rested on an account of moral experience:

A fertilized cell has some moral worth, but much less than that of an implanted cell, and that has less than that of a fetus, and that less than that of a viable fetus, and that the same as of a newborn infant. My view is that people endow a thing with humanity when it appears, or even begins to appear, human; that is, when it resembles a human creature.

The more an embryo resembles a person, the more claims it exerts on our moral feelings. Now this last argument has no religious or metaphysical meaning, but it accords closely . . .with how people view one another. . . This fact becomes evident when we ask a simple question: Do we assign the same moral blame to harvesting organs from a newborn infant and from a seven-day-old blastocyst? The great majority of people would be more outraged by doing the former than by doing the latter.

This last paragraph is thought provoking, and I think outlines the progressive moral weight of abortion as we move down the gestational timeline.  At what point do we protect the child by law?

In the end, Gallston, who all along has really been paraphrasing Neuhaus, merely suggests a couple of principles which I agree with, though they don’t resolve this entirely.

One argument, which I advance with hesitation for discussion, takes as its initial premise the old Jewish principle that "Anything for which there is no reason to forbid is permissible with no need for justification."

The second premise of the argument is that to justify coercive public law across the boundary of diverse faith communities, only what Neuhaus terms public reason counts as a reason to forbid a practice.

In other words, if we want to outlaw abortion, we have to justify it with reason, not with appeals to religious authority.  Of course, I have said this same thing many times.  While we may be motivated by religious values, our public arguments must appeal to reason. 

It is interesting that Jewish tradition seems to assign personhood to the fetus at around 40 days.  I think that conservative Christians, whose faith is built on Jewish scripture, should well consider this in making their own conclusions about the personhood of the fetus.  Additionally, I think that they should admit that, based on reason and our sense of moral rightness, when the fetus has the obvious qualities of a human instead of just a glob of cells, we have a defendable argument in the realm of public reason to limit abortions – I have called this "reasonable abortion limits."