The aim of this paper is to examine the tension between the demands of rational morality(1) on the one hand, and, on the other hand, the exclusion of feticide and the killing of a terminally ill individual(2) from the category of culpable homicide in Jewish criminal law. In that law a fetus is not a person for the purposes of the law of homicide,(3) and feticide is not a capital crime. The killer of an individual suffering from a fatal condition is also exempt from the death penalty because his victim was not viable, and capital punishment is imposed only for the taking of a viable life.(4) Jewish criminal law is basically Biblical, and the standard punishment for any crime in the Bible is death.(5) Exemption from the death penalty is, therefore, a strong indication that a particular act does not constitute a crime. This situation is hardly an acceptable one from the perspective of the value of human life in Jewish law and the principles of rational morality which constitute a part of it. The aim of this paper is to investigate the mechanisms employed by the halakhah(6) in order to defuse this tension in these two areas of Jewish law. The scope of the paper, however, is not limited to Jewish law sources. Reference is also made to a similar tension between the provisions of the criminal law and rational morality in Islamic jurisprudence and to the defense of necessity in the Common Law.
The Bible stipulates that the killer of a fetus is not liable to the death penalty, and excludes a fetus from the category of legal persons for the purposes of the criminal law. Indeed, the sole consequence of fetus destruction would appear to be the obligation to pay compensation to the husband of the woman whose fetus was destroyed.(7) It is interesting to note that both the Greek and Latin translations of the Bible read the passage in question somewhat differently, with the result that the destruction of a "formed" fetus does, in fact, constitute an act of homicide for which the perpetrator is liable to the death penalty. A possible explanation for this divergence is that the translations were influenced by Greek thinking on feticide and abortion in which the distinction between the "formed" and the "unformed" fetus is a significant one.(1) An exposition of the historical background to this difference between the various versions of the Bible and the divergent paths taken by the Jewish, Christian, and Common Law traditions in this field is clearly beyond the scope of the present article.(9) In analytical terms, however, it is important to note that the Rabbinic tradition does not accept that the stages of fetal development are definitive in the determination of the legality of abortion, especially in the therapeutic context.(10) Although halakhic literature refers to both a forty-day stage and to the first trimester, these stages of development are used only as secondary arguments in cases involving indirect threats to the mother's life.(11) The purely biological issue of fetal formation is not of primary legal relevance in the halakhic tradition relating to questions of feticide and abortion.(12)
The non-personhood of the fetus in the criminal law provides a firm basis for therapeutic abortion. According to the Mishnah, the mother's life takes precedence over that of her fetus until birth. Once this stage has passed, the "life of one person does not override that of another."(13) Clearly, the Mishnah excludes a fetus from the category of legal persons, and this exclusion is cited by the majority of commentators as the reason for mandating therapeutic abortion in Jewish law.(11) Fetal non-personhood also serves as the starting point for a liberal approach to the limits of therapeutic abortion in Jewish law. A striking illustration of the way in which a liberal approach to abortion is anchored in the criminal law notion of fetal non-personhood is a relatively recent decision by R. Eliezer Judah Waidenburg permitting the abortion of a Tay-Sachs fetus until the seventh month of pregnancy. …