“Is a Fetus Considered a Full-Fledged Life? Differences in Approaches Between Judaism and Christianity”

This week’s Torah reading, Parshat Mishpatim, presents us the details of how we are meant to engage with others in the daily thoroughfare of life. After the “Ten statements” of Aseret HaDibrot, which speaks in broad categories, Mishpatim translates these statements unto the specifics of how we should interact with each other.

The parasha opens with “V’elah haMishpatim” – and these are the laws. Exodus 21:1 The vav adds to the previous statements and serves as juxtaposition to them. It connects the ethereal revelation on Mount Sinai to the quotidian reality of human relationships and accentuates the point that the holiness of Mount Sinai is found in the everyday ways in which we engage the other.

There is one interesting set of verses in Parshat Mishpatim that relates to a current debate in the United States Congress and in the courts. This conversation is part of a major theological discussion, deriving from different ways of understanding the Biblical text in our parasha.

The verse states:  ve’chi yinatzu anashim; if, when two people are fighting, ve’nagfu isha hara, and they hit, by accident, a pregnant woman, ve’yatzu yeladeha ve’lo y’hiye ason.  (Let us hold off interpreting the last part of the verse: ve’yatzu yeladeha ve’lo y’hiye ason.) The Torah goes on to say that if this incident occurs, compensation has to be paid.

Ve’im ason y’hiye, but if there is a tragedy, ve’natata nefesh tachat nefesh, then there is a capital punishment. Exodus 21: 22-23

The verse teaches us that if two people are fighting and they injure a pregnant woman ve’yatzu yeladeha ve’lo y’hiye ason – in this case, if there is no tragedy, then monetary compensation must be paid.

But if there is a tragedy, then the result is a life for a life.

What exactly does this mean? How do we understand the text?

This is why our oral rabbinic tradition is so crucial to understanding how this should be applied.

This is the current debate in Congress and the US courts.

According to Christian theologians, this is how the text should be read: If two people are fighting, and a woman is hurt, and she is pregnant, ve’yatzu yeladeha, and she has an early birth, ve’lo y’hiye ason, but the fetuses are fine, they are just born prematurely, then there has to be payment for this trauma.

Ve’im ason y’hiye, but if the fetuses are killed, if the fetuses are destroyed, then capital punishment is incurred. The fetuses are to be considered just like any other human life. If this is the case, then abortion, according to the interpretation of the Catholic Church is tantamount to murder, and using fetal cells for cloning, or stem-cell research would be strictly forbidden. This approach is based on their reading of our Torah portion.

But that is not the way that our rabbis read this verse.

 Ve’chi yinatzu anashim, if two men are fighting, ve’yatzu yeladeha, and she has a miscarriage, ve’lo y’hiye ason, but nothing happened to her, other than that trauma, and she is otherwise physically unharmed, then since she lost fetal matter, there needs to be compensation.  Ve’im ason y’hiye, but if she is damaged, if she is killed, then, it is a sin, or an act, that requires nefesh tachat nefesh, then this is a capital crime demanding punishment. Rashi on Exodus 21:23

How do we look at fetal matter? Do we regard it as a full human being, or can we use fetal matter for genetic research to save lives?

It all depends on how we read these verses. 

The argument going on in Congress and in the courts is predicated on how different traditions read Parshat Mishpatim. Let’s recognize the wisdom of Chazal, the sages of our oral tradition, when they teach that fetal matter is not yet life, and therefore it can be used in different ways to help safeguard life, to help scientific research, and to find opportunities for us to be God’s junior partners in Tikkun Olam.

Understanding our tradition sometimes makes all the difference. It’s not just the text, but the context that the Rabbis have given us. 

Shabbat Shalom.