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Orthodox law sends surprising messages about reproductive rights

Authorities in Jewish law have shown a notable openness towards integrating new technologies, though philosophies on abortion remain divided.
Nomi Kaltmann
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question mark that looks like a foetus

Illustration: Avi Katz

Published: 6 March 2024

Last updated: 21 March 2024

This year, I’m completing an advanced Halachic (Jewish Law) fellowship on Zoom through Yeshivat Maharat, in New York. Focusing on fertility, IVF, miscarriage, abortion and anything related to women’s reproductive rights, it’s been a fascinating learning journey.

It extends my four years of previous study, culminating in my graduation in June 2023 as one of the world's inaugural female Orthodox rabbis.

Learning about these topics has opened my eyes. In certain aspects, Jewish law has demonstrated a progressive and adaptive approach to emerging technologies. Unlike the Catholic stance, which has prohibited IVF due to its departure from natural conception, authorities in Jewish law have shown a notable openness and permissiveness toward integrating new technologies, acknowledging the evolving landscape of medical advancements.

Jewish law develops through Piskei Halacha, where rabbis who possess a deep understanding of Halacha, interpret and apply Jewish law to address diverse situations through Halachic responsa. This involves a meticulous analysis of traditional Jewish texts, including the Torah, Talmud, and legal codes, such as the Shulchan Aruch, to derive fitting responses to modern challenges or dilemmas.

Think of it like a court that interprets legislation. Decisions written by rabbis are called Psak Halacha and hold significance within the community or groups that acknowledges the authority of the issuing rabbi. Distinct Jewish communities may adhere to varying Halachic authorities.

authorities in Jewish law have shown a notable openness toward integrating new technologies.

Within the realm of intricate Jewish legal matters, various rabbis engage in extensive correspondence spanning centuries. This extensive exchange encompasses debates on minute details, featuring instances where rabbis countermand one another or offer alternative interpretations of the law.

In the 20th century, perhaps the two greatest arbiters of Jewish law were Rav Moshe Feinstein, originally from Eastern Europe, who moved to America in 1936 and Rabbi Eliezer Waldenberg from Jerusalem. Their responses span various topics, encompassing inquiries about smoking, cosmetic surgery, and the use of electricity on Shabbat.

In the 20th century, amid rapid advancements in reproductive technologies, both rabbis extensively addressed issues related to fertility, miscarriage, abortion, and women's reproductive rights.

Like so many areas of Orthodox Judaism, their decisions also deal with women and their bodies. My fellowship delves into the perspectives of these rabbinic authorities and their impact on shaping Orthodox Jewish law's treatment of women and their bodies in the 21st century.

Born in Belarus, but living in America, Rav Moshe is known for his compassionate responses to women who wrote to him about a range of issues including birth control and the participation of women in wedding ceremonies.

When looking at the range of Feinstein’s Halachic responses, one can see that he carefully weighed numerous factors, including medical information, individual backgrounds, and Orthodox Jewish legal principles, when making his legal decisions. Through his responses, we gain insights into women facing challenges, experiencing heightened emotional stress, and for whom the prospect of bearing another child posed an overwhelming burden.

As a woman, discovering his responses in these areas is heartening. It reveals an uncommon consideration for the modern woman, a perspective frequently missing in other aspects of Jewish law where women are mentioned casually or sometimes without due consideration.

And yet, Rav Moshe’s approach to birth control and abortion was famously hardline. In contrast to earlier interpreters of Jewish law, he categorised abortion as akin to murder. Unless the pregnancy carries a very serious threat to the mother’s life, Rav Moshe did not permit abortion at all. Although he died in 1986, his approach became the normative Jewish law approach for many decades.

It seems incomprehensible that concerns related to the sexual revolution resulted in a stricter stance in Jewish law.

Why did Rav Moshe adopt such a stringent stance, deviating from the traditional Jewish perspective on terminating pregnancies, which had never seen it as murder? Describing it as murder seems excessively harsh and unjust to women. The key lies in considering the timing and context.

Rav Moshe penned his Halachic responses during the tumultuous 1960s and 1970s, a period marked by a sexual revolution and societal upheaval in America. This era witnessed transformative shifts with the advent of the contraceptive pill, the women’s liberation movement, and changing views on marriage, reshaping attitudes toward sexuality.

Situated in the midst of these profound changes in his New York home, Rav Moshe inevitably felt the impact of evolving perspectives on sexual rights. Perhaps driven by concerns over the sexual revolution, it appears that he struggled to separate sexuality from reproduction, leading to his opposition to birth control and abortion.

With this stringent stance, categorising abortion as murder except in the gravest circumstances, the trajectory of Halachic innovation in this domain takes a sombre turn. A void in Halachic responses on this matter persists for over two decades until Rabbi Waldenberg, who wrote his responsa under the pen name of the Tzitz Eliezer introduces a significantly more lenient perspective on abortion, in line with previous arbiters of Jewish law.

Rabbi Waldenberg’s Halachic response on abortion reflect his firm belief that the foetus should not be regarded as a "person," allowing for a more permissive approach to abortion.

Exploring the absence of American Halachic progress during that 20-year span between Rav Moshe’s ruling and Rabbi Waldenberg, evokes a sense of sadness in me. Not because I advocate for widespread abortions, but because I champion the importance of providing women with choices.

It seems incomprehensible that concerns related to the sexual revolution resulted in a stricter stance in Jewish law, which had been notably more lenient for centuries. Unjustly, women, the bearers of pregnancies, were guided by one of the greatest Torah scholars of the 20th century to perceive terminating an unwanted pregnancy as equivalent to murder.

Understanding the evolution of Jewish law and involving women in the study of these texts is crucial. It not only breaks the barriers that have excluded us from decision-making, especially in matters concerning our experiences and bodies but also secures our presence at the table.

As a mother who loves her children dearly, I cannot fathom the guilt and distress that any woman would endure when labelled a murderer for choosing to terminate an unwanted pregnancy.

In my pursuit of a more compassionate and nuanced understanding of Jewish law, which takes into the account the voices of women, I’m enjoying navigating the intricacies of Jewish law, striving for a future where women's choices are met with empathy rather than judgment.

I know that even being able to study these texts, after four years of rigorous training to become a female Orthodox rabbi, is a privilege that no one in previous generations had.

But I know in the future, there will be more women who will be able to add their voices to the canon of tradition.

About the author

Nomi Kaltmann

Nomi Kaltmann is a Melbourne lawyer who writes regularly on Jewish life and culture. Nomi is also the founder and inaugural president of the Jewish Orthodox Feminist Alliance Australia (JOFA).


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