THE TAY-SACHS PROGRAM

QUESTION:

A number of rabbis in Philadelphia have organized a Tay-Sachs counselling program. Prospective brides and grooms are advised to be examined to determine whether their genes are so affected. If both bride and groom carry such genes, the danger is great (one in four) that their child will be afflicted with this fatal disease. Therefore, the counselling urges that such carriers should not marry each other. An Orthodox rabbi refuses to participate in this program. To what extent is his refusal based upon traditional law? (Asked by Rabbi Howard S. Berman, Abington, Pennsylvania.)

ANSWER:

The letter raising the above question is not detailed enough to state the full objection of the Orthodox rabbi to his participation in this counselling program. It seems to be based upon two objections, the first implied and the other stated. The first is that by discouraging certain Jewish couples from marrying each other, he is leading to the violation (or at least a neglect) of the first commandment in the Bible: “Increase and multiply.” The second objection, more clearly stated, is that if this couple would marry and it was later discovered that the fetus carried by the pregnant young wife is afflicted with Tay-Sachs, the rabbi would then refuse to permit an abortion. Are these objections justified by traditional law?

1. The implied objection that the discovery of the effective genes in the couple would lead to a discouragement of their marriage and thus would be a violation of the commandment to “increase and multiply” is hardly sound for the following reasons: Such genes seem to be found in one out of thirty examined. Since the danger is when both husband and wife have such genes, the likelihood is only one in nine hundred that they both will have it. Therefore, the occasion that the rabbi would discourage the fulfillment of a commandment would be only one in nine hundred which, in all probability, would never come up in all the rabbi’s experience, and for such a distant probability it is hardly justified to refrain from a program which can save a couple from great tragedy. Furthermore, the commandment to increase and multiply is incumbent only upon men. Therefore, for example, a man may not be made surgically or medically infertile (unless he already has had one son and one daughter) but a woman may, if necessary, be made infertile, since the commandment is not incumbent upon her (see Yevamot 65b and Minhat Hinukh, the first commandment). Furthermore, since the percentage of danger is so small, neither couple is thereby prevented from marriage at all. There are hundreds of others whom they can safely marry. Hence, the fear of violating the first commandment is vague enough to be virtually meaningless.

2. The stated objection that in case this couple married and the fetus proved to be infected with Tay-Sachs, the rabbi says that he will not be able to sanction an abortion. Is this objection justified? It must be stated at the outset that the attitude of an Orthodox rabbi as opposed to that of a non-Orthodox rabbi is not necessarily a contrast between the traditional law and modernism. There is a powerful (although unprofessed) emotional element involved. The Orthodox rabbi (justly from his point of view) is protecting the law itself against its violation by non-observant people. Hence, he is often much more strict than the law actually requires, He is, as the legal phrase goes, “building a fence” to protect the law. The less Orthodox rabbi certainly respects the law, but his attitude and aim is to adjust the law and the people to each other. Hence, whatever liberal opinions are found in the law are especially important to him.

This psychological or emotional distinction between the two types of rabbinical scholar applies especially in the matter of abortion which is here at issue. Actually, there is strong grounding in the law to permit abortion when necessary. See especially the references cited in Recent Reform Responsa, pp. 188 ff. (also published in the Central Conference Yearbook, 1958). Perhaps a balanced summary of the situation is given by the former Chief Rabbi of Israel, Ben Zion Uziel (Mishpatei Uziel, III, 46 and 47). He said that an unborn fetus is actually not a person at all (not a nefesh). It is simply part of the mother’s body; and just as a person may sacrifice a limb to be cured of a worse sickness, so this fetus may be destroyed for the mother’s benefit. Of course he reckons with the statement to the Tosfot to Hullin 33a, that a Jew should not destroy a fetus. As to that, he says, “Of course, nothing must be destroyed without reason.” In the specific case with which he dealt, there was a strong reason for abortion, namely, that the woman was threatened with permanent deafness if she went through with the pregnancy. So he concluded that since the fetus at all events is not an independent person, there is no sin involved in destroying it for the mother’s sake.

When we consider, in the situation involved in our present discussion, the anguish that would come to parents if a fetus afflicted with Tay-Sachs would be born and die very soon thereafter, it would surely be a true benefit to the parents if, following the judgment of Ben Zion Uziel, the fetus were destroyed by abortion. Of course an Orthodox rabbi may, because of his own feelings and attitude, be strict on the matter; but there is enough justification to say that he is stricter than the law requires.

To sum up: The objection that participation in the Tay-Sachs counselling program might keep certain people from marrying each other and would thus violate (at least negatively) the commandment: “Increase and multiply,” is not a valid objection. The probability of both parents having these genes are one in nine hundred and preventing this marriage would simply result in the couple marrying other with a better prospect for a wholesome family.

Secondly, the objection against the possible abortion is based upon a strictness of choice not necessarily founded in the law which, on the basis of many opinions, would permit abortion if it is clearly for the mother’s benefit.

ADDENDUM

In Volume V (1979) of the Proceedings of Orthodox Jewish Scientists, there is an article (p. 11 ff.) on the Tay-Sachs disease by Emanuel Jakobovits, now the Chief Rabbi of the British Empire. The question he deals with is whether to adopt for English Jewry the plan developed in America of testing bride and groom as to whether they are carriers of the Tay-Sachs disease. The official decision on this matter by the Board of Deputies (the governing body of Orthodox British Jewry) was as follows:

According to Jewish law, there is no objection to these tests being carried out within the Jewish community, as proposed by the British Tay-Sachs Foundation, and to synagogues and other communal agencies giving whatever assistance they can in carrying out of this program.

As to the question of whether ffe fetus of the child, if diseased, may be aborted or not, they left this question open by saying, “No general rulincan be given on the termination of pregnancies,” etc. However, Jakobovits himself, at the end of the article, gives important references favoring such an abortion. His statement (p. 17) is as follows:

Several leading authorities generally sanction the termination of a pregnancy with a high risk of abnormal birth, e.g., through German measles, provided the abortion is performed within the first forty days or in special cases, even within the first three months (J. Weinberg Seridei Esh 3:17; S. Israeli, Amud Hayemini 35; E. Waldenberg Tzitz Eliezer 9:51., see Noam 9 pp. 193-213, and 16; Kunteres Harefuah 27). Dayan L. Grossnass of the London Bet Din, too, is inclined to permit an abortion if Tay-Sachs is confirmed, since such a child would in any event not be viable (Lev Aryeh 2: 205, see also my Jewish Medical Ethics 1975 pp. 262 f. and 274-275); Noam Vol. 21 p. 312:

If in the case of a woman after three months of pregnancy it is discovered that the fetus has Tay-Sachs disease, may abortion be permitted? (Answer) It is permitted to abort up to seven months of pregnancy, provided it is certain that the child has Tay-Sachs disease, and also provided that the abortion will not harm the mother.