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Abortion for Rape and Incest
Our biblical history teaches us that giving birth and adoption are much better choices than child sacrifice after rape and incest. Recent research and testimonies from women who have been sexually assaulted underscore the need to understand the issue more fully so that everyone involved can make safe, life saving, long term solutions.
This is the fifth of seven Jewish legal opinions regarding the status of unborn human life that depart from the protections for unborn human life stated clearly in Tanakh. We are offering these seven opinions in parallel with the seven Haftorot of Consolation that fall on the seven consecutive Shabbats between Tisha B' Av and Rosh Hashanah. This week we examine the opinion that allows for abortion in cases of rape and incest.
Judaism was the first religion in human history to criminalize sexual assault. Torah imposed severe penalties for rape and incest. This distinguished Jewish culture from the sexually unrestrained pagan societies that surrounded them.
Deuteronomy 22 tells us that rapists who violate betrothed women are stoned to death. If they rape single woman, they must marry them to save them from destitution.
Leviticus 18 lists forbidden sexual activities, including incestuous relations. The penalty for incest is the same as the penalty for adultery, gay sex, child sacrifice, and bestiality. Perpetrators are banished from the community. If they are tolerated, the whole nation faces expulsion from the land.
Killing a baby conceived in rape and incest does not appear in the Torah. In fact, child birth and adoption are endorsed in most miraculous way!
Genesis 34:1-2 tells the story of Dina, Jacob’s only daughter. She is raped by Shechem, the son of a Canaanite ruler. In the book of Esther, we learn that Dina gives birth to a daughter named Asenat, Dina’s brothers mistreat the little girl, so Jacob protects her with a blessing inscribed on a necklace that she wears. Asenat is eventually adopted by a barren couple, the Egyptian Supreme Clerical Authority, Potiphar, and his wife.
In Genesis 41:45, Pharaoh arranges a marriage between Anesat and Joseph. This marriage secures Joseph’s place in the government and produces two sons, Menashe and Efraim, two of the 12 tribes of Israel.
Dinah’s Daughter: A Vital Link
Two incest stories in Torah set in motion an elaborate generational epic that teaches us to trust in Divine wisdom, to err on the side of life in the difficult cases.
In Genesis 19, we read about the destruction of Sodom. In the Jewish year 2048, after the meteor storm, Lot and his two daughters are living in a cave, convinced that they are the only survivors on earth. Lot is a drinker who remembers nothing of his escapades after he sobers up. To save humanity, the daughters get Lot drunk on two consecutive nights. They have sexual relations with him, producing two sons. One son is Moab, the progenitor of the tribe of Moabites.
In the Jewish year 2196, a second genealogical thread emerges that will intertwine with the first. Judah’s daughter-in-law remains childless after two levirate marriages that end in the deaths of Judah’s sons. Judah refuses to risk his third son, so Tamar disguises herself as a prostitute, who entraps Judah. From this union, Tamar has twin boys, Perez and Zerah.
Seven generations later, Boaz emerges from Perez’s lineage. He meets Ruth, a descendent of Moab. David arrives three generations later. The prophetic promise of David’s messianic line is possible only because the children produced by these two incestuous relationships were born and produced children.
We first find rabbinic opinion about abortion in cases of adultery and incest in the late 17th and early 18th century. The discussion centers on a mamzer, a child born from incest or adultery.
Abortion of a Bastard Fetus
Rabbi Moses Yekutiel Kaufman said giving a woman an abortifacient to destroy a bastard fetus is absolutely forbidden. Thank you, Rabbi Ksufman!
Rabbi Yair Chayim Bacharach opposed abortion, commenting that the embryo of such a child is no different than any other. Thank you, Rabbi Bacharach!
Rabbi Jacob Emden argued quite creatively for abortion in these cases. He reasoned that because the mother had committed the sin of adultery or incest, a crime punishable by death, she may commit suicide without fear of sin. If the mother may destroy herself completely she may certainly destroy a part of her body. Hence he concluded there can be no prohibition against the destruction of a bastard fetus since its life is legally forfeit. We now know that an unborn baby is a separate entity, not part of a woman's body, making this opinion invalid.
In the early 20th century, two influential opinions emerge in the legal record, again one for and one against. Rabbi Ben-Zion Meir Hai Uziel was the Sephardic chief rabbi of Mandatory Palestine from 1939 to 1948, and of Israel from 1948 until his death in 1953. Rabbi Uzeil authorized destroying the baby in these cases. He explained that the whole community rejects bastard sons, who then seek the company of heathens and idol worshippers. The parents who produced this man incur a curse because they caused this to happen. The baby must be killed so the parents avoid the curse of producing a pagan worshipping son. Really? Wouldn't sexual sin and then child sacrifice incur double curses?
Rabbi Isser Yehuda Unterman was the third chief rabbi of Tel Aviv, and later the third Ashkenazi Chief Rabbi of the State of Israel from 1964 until 1972. He argued in favor of life, citing Talmudic commentary that directs a court to delay the trial of an adulterous woman until her child is born. Hence, no legal justification exists to kill the unborn baby in cases of incest or adultery. Thank you, Rabbi Unterman!
Rabbi Unterman also advocated for unborn babies in cases where mothers have mental and emotional distress anticipating the social problems they will face after the baby is born. Rabbi Unterman argued that the instinct for self-preservation is so deeply ingrained, and suicidal tendencies are so rare, that one cannot consider mental illnesses as falling under the category of diseases which imperil life.
Thank you, Rabbi Unterman!
Peninei Halakha provides current legal guidelines. If a pregnancy results from rape or incest and the mother has ‘psychological difficulties,’ the baby can be killed up to 40 days gestation, but not after this milestone. Rabbi Eliezer Melamed advises medical examination and the morning after pill to avoid this problem.
We’ve already studied and found fault with the permissive opinions for abortion in the first 40 days of gestation and for maternal mental illness, or ‘psychological difficulties’ as they are now described. Before deciding to kill an unborn baby to alleviate the pain and problems of rape and incest, it’s important to remember that abortion is dangerous and that the product of an unfortunate conception is an innocent human being.
Our biblical history teaches us that giving birth and adoption are much better choices than child sacrifice. Recent research and testimonies from women who have been sexualy assaulted underscore the need to understand the issue more fully so that everyone involved can make safe, life saving, long term solutions. Here are some resources that can help.
The Pro-Life Reply to: "Abortion in Cases of Rape”
https://youtu.be/dUEomZ-O7t0?si=Xu8oz4W0q5YIolSs
Abortion Doesn’t Help Rape Victims, Say Women Who’ve Been There
https://afterabortion.org/abortion-doesnt-help-rape-victims-say-women-whove-been-there/
The Hard Cases New Facts. New Answers
http://www.theunchoice.com/pdf/OnePageFactSheets/HardCasesSheet1.pdf
Rape Pregnancy and Late-Term Abortion
https://sarahterzo.substack.com/p/rape-pregnancy-and-late-term-abortion
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Cecily Routman
May there be abundant peace from Heaven, and good life upon us and upon all Israel. Amen.
Cecily Routman is the founder and president of the Jewish Pro-Life Foundation. She opposes abortion homicide in general and among Jews in particular and laments secular policy making in Israel that results in loss of Jewish life and delays the messianic redemption. She envisions a Torah based holy Land of Israel and a world that respects the life of every human being from conception.