STUDY OF FOETAL MATERIAL

QUESTION:

The British government’s Department of Health and Social Security is inquiring of the various religious groups as to their attitude regarding use of foetuses and foetal material for research. Would such use of the material be permitted by Jewish tradition? (Asked by Mrs. S. B. Rosenberg, Organising Secretary of the Union of Liberal and Progressive Synagogues, London, England.)

ANSWER:

IT IS UNDERSTOOD that the question is not whether abortion should or should not be permitted; in other words, whether or not the foetus, while in the body of the mother, may be destroyed or removed. The question of the intentional destruction of the foetus is a moot question in Jewish law, and the answer would depend upon many considerations as, for example, whether the woman was condemned to death (for a capital crime) and then the foetus might be destroyed before the mother was executed. It depends also upon whether the unborn child is endangering the life of the mother. These and other cases are cited under the heading “Abortion” in Recent Reform Responsa, p. 188 ff.

The question here is different, namely, whether after the foetus is available (as for example, after a miscarriage), the foetus must be handled reverently as if it were a deceased human being, or whether it may be simply disposed of or, as this question specifically asks, whether it may be used for scientific research. In other words, does a foetus have sanctity, as the body of the dead has? If it does have sanctity, then just as there is objection to autopsy, so there would be objection to dissection of a foetus.

Although the question asked here is not the same as the question of abortion, nevertheless some of the considerations involved in the question of abortion are basic, also, to the present inquiry. These questions are: 1) Is the foetus to be considered human; that is to say, is it the body of a deceased person? 2) Does Jewish law require that the foetus be buried?

The justification for the first question arising at all is that there are religious traditions in which a foetus is deemed sacred, no matter what its age is. For example, the Catholic Church requires a Catholic nurse to baptize even the most primitive and shapeless foetus resulting, let us say, from a miscarriage. Is there, then, a similar sanctity ascribed to a foetus in Jewish tradition?

As to the possible sanctity of the foetus, the question asked here does not refer to the potential sanctity of the foetus while it is still in the mother’s body, which would bring us back to the question of abortion. In this case there is some relevance in the question of the age of the foetus. For example, there is no objection to destroying a foetus that is less than forty days old (see Solomon of Skola, in his Responsa Beth Sholomo, Lemberg, 1878, Choshen Mishpot 132). But even if the foetus is older than forty days, there is a strong line in the Jewish legal tradition which does not consider the unborn child to be a separate soul (see Rashi to Sanhedrin 72b) and also Joshua Falk (16th- 17th century) in his classic commentary M’iras Enoyim to the passage in Choshen Mishpot 425, end of his section 8: “Every foetus that does not come out or has not come into the light of the world is not to be described as a nefesh, i.e., a living soul.”

A modern summary of the law was made by the late Sephardic Chief Rabbi of Israel, Ben Zion Uziel, who said in his Mishp’tey Uziel, III, 46 and 47, that after a general analysis of the subject, an unborn foetus is actually not a nefesh at all and has no independent life. As a matter of fact in Talmudic times, we are told that there was a place outside of the city in which people disposed of amputated limbs and where women buried their stillbirths. It is evident that foetuses were just informally disposed of (Ketubos 20b).

The second question involved is whether the foetus must by Jewish law be buried. This question is, of course, bound up with the preceding question as to whether the foetus is to be deemed as having been a living soul, since all human beings must by Jewish law, when deceased, be buried in the earth. This special question has received a great deal of discussion in Jewish law. Its source is the Tosefta in Sabbath 15:7 and the Talmud, Sabbath 135b. The law is summed up by Joseph Caro in his Beth Joseph to the Tur, Yore Deah 266, and in modern times by Jacob Ettlinger of Altona-Hamburg (1798-1871) in his Binyan Zion, # 13 3. The overwhelming weight of authority is that a stillborn does not require burial by law.

Although there is no mandate to bury the stillborn, there is nevertheless some reason why it might be preferable to bury it, namely, the possibility of ritual uncleanliness. Ritual uncleanliness is generally not applicable since the destruction of the Temple. See Maimonides, Yad Tumas Ochlin 16:8. But it is still held to be applicable to people of priestly descent (Cohanim). Therefore there is objection in the traditional law for a man of priestly descent to study medicine if that study involved dissection of dead bodies. This question comes up, practically, whenever amputated limbs from a living patient are to be disposed of. Must they be buried or not? The clearest opinion on this question is given by the outstanding authority, Jacob Reischer of Metz (died 1733) in his Shevus Yaacov, Vol. II, # 10. He says there is no mandate to bury amputated limbs; it is sufficient if they are put away and thus kept from contact with priests. It is not irrelevant that in the Talmudic discussion indicating that a foetus is not a separate living being, the foetus is called yerech immo, “the limb of the mother.” At all events, we may say that when the Talmud tells us in Ketubos 20b that people who had limbs amputated buried the limbs and that women who had a miscarriage buried the foetuses in a certain place, that this was not because there was a mandate to bury these objects, but just to dispose of them and keep them out of the way because of possibly defiling priests. Hence the answer to the question asked must have this footnote: The same objection that there is to a Cohen dissecting a corpse in the study of anatomy would hold, also, with regard to his working on the dissection of a foetus, since the one objection to such handling of the foetus is a question of the Cohen’s ritual uncleanliness.

Other than that one exception, one may sum up as follows: The overwhelming bulk of opinion in the law is that the foetus is not to be considered to have been a living being; that, therefore, it does not require burial. Hence we may say that the general opinion of Jewish legal tradition is that it has no sanctity and may well be used for scientific study, especially if such a study leads to the saving or safeguarding of human life, which is always a prime virtue in Jewish tradition.