TCS Daily

"Mere Water," Potential Life, or Both?

By Michael Rosen - October 6, 2005 12:00 AM

Editor's note: This is the second in a series of articles exploring and reflecting on several aspects of the Embryonic Stem-Cell Debate from a traditional Jewish perspective. The first installment can be found here.

These days, religiously observant Jews and devout Christians seem to agree on just about everything this side of the divinity of Jesus.

From foreign policy matters, such as support for Israel, to national security concerns, like the worldwide War on Terror, to divisive social issues, including gay marriage, the Terri Schiavo case, and the public display of the Ten Commandments, Orthodox Jews -- or at least their mainstream representatives -- have stood shoulder to shoulder with their Christian brothers and sisters. This alliance has coincided with an unmistakable surge in support for the Republican Party among observant Jews and has occasioned hand-wringing and nervous concern among many liberal and/or secular Jews.

But one major social/domestic issue has driven a wedge between Orthodox Jews, on one side, and traditional Catholics and Protestants, on the other: human embryonic stem-cell research (ESCR, or hESCR to some).

While the majority of mainstream Christian groups denounce ESCR because of the "destruction" (or "killing", in the parlance of opponents of the research) of embryos inherent to the research, religious Jewish groups -- mainly, although not exclusively, the Union of Orthodox Jewish Congregations of America, or Orthodox Union -- have embraced with open arms certain forms of ESCR. This dichotomy was most recently on display when the Orthodox Union officially endorsed the Castle-DeGette bill, presently before the Senate, which promises additional federal funding for the research.

Yet while the fissure between Jews and Christians on this issue appears deep, the Orthodox Jewish position in fact offers a fertile middle ground in a battle marred by the scorched-earth tactics of bitterly opposed ESCR enthusiasts and foes. An exploration of this position will possibly provide a pragmatic but principled argument in favor of some forms of ESCR.

Of course, because the topic implicates irreducible first principles, compromise may be unreachable. But if nothing else, examining the Jewish approach offers an opportunity to further civil discourse on a topic that has provoked an unyielding and incendiary struggle between polarized sides of the debate.

"A Full-Fledged Human Being... But Not Quite"

To begin with, some obligatory caveats: as with virtually every issue, there exists no single Jewish or even Orthodox Jewish opinion on or approach to embryonic stem-cell research; as the old saw goes, "Two Jews, three opinions." The same holds among Catholics and Protestants where the positions on ESCR are as widely various as they are deeply held. Nevertheless, it is important and useful to generalize (without caricaturing) the mainstream positions of the various groups for the purposes of comparison and analysis.

The analysis begins in the Bible, which religious Jews believe to be divinely authored (or at least inspired). In Exodus 21:22-23, a passage whose Hebrew is treacherously difficult to translate but whose meaning is clear, God instructs the Israelites:

        If two men struggle and injure a woman who is pregnant so that her offspring 
        be expelled, but there be not harm [befalling her], then [the injurer(s)] 
        shall be fined as the woman's husband shall determine, and the matter 
        shall be referred to the judges. But if there be harm [befalling her], then 
        you shall give life for life.

The universally recognized understanding of these crucial verses is that punishment more severe than a mere monetary fine is imposed only if the woman -- not the fetus -- is killed (the fetus presumptively dies in both situations after being "expelled"). Thus, the first commandment God issues concerning unborn human beings distinguishes sharply between the born and the not-yet-born.

This line of reasoning is picked up by the Rabbis in the Talmud, the 4th and 5th century compilation of Jewish law rooted in the Bible and organized by tractate. On one hand, in Tractate Arachin, the Rabbis permit the violation of the Sabbath -- normally authorized only when human life is at stake -- in order to save a fetus. And in Tractate Sanhedrin, Rabbi Yishmael holds a fetus-killer liable for capital punishment.

On the other hand, Tractate Nidda discusses the status of an embryo and fetus within the first forty days of life and concludes that a woman who miscarries during these first forty days does not endure the ritual impurity that accompanies birth. Furthermore, in Tractate Yevamot, the sages espouse the view that a fetus in its first forty days is considered maya be'alma -- mere water.

Moreover, until the baby's head surfaces through the birth canal, a fetus whose existence threatens its mother's life is considered a rodef -- "pursuer" -- and may be killed to save its mother. Once the baby has been delivered, however, it is endowed with full personhood; its murder is punishable by death. All born humans merit equal protection, so to speak, from being killed by others; the blood of an adult is "no redder than" that of a child, as the Jewish maxim goes. In fact, if one is ordered to kill another or face death oneself, under Jewish law he or she must submit to death. Thus, there can be no analysis on the basis of intent or utility. when it comes to valuing the lives of persons, defined as human beings who have been born.

Later Jewish legal authorities struggle mightily to reconcile these various texts. To the extent any exists, the general consensus today holds that abortion is not categorically forbidden, but neither is abortion on demand permissible. Stated differently, as one commentator has put it, Judaism considers a fetus "a full-fledged human being -- but not quite."

Full-Fledged and Potential

I would describe the traditional Jewish approach to pre-birth life as follows: an embryo and fetus are full-fledged human lives and they are potential lives. In other words, embryonic and fetal life are worthy of protection, since they are human lives. But they are also potential lives whose existence as persons does not become fully established until birth. Accordingly, they are not afforded the same protection that born humans receive. The blood of fetuses and embryos is not quite as red as that of those who've been born.

Yet another way to put it is that one may not undertake a utilitarian analysis that places relative values on the lives of born persons but one may do so with regard to the unborn. Thus, to take an extreme example, it would be forbidden to kill a one-year-old child, even if such killing would somehow save 1,000 lives. But it may be permissible to kill a one-month-old fetus if its death would save a thousand people.

The applications to the realm of ESCR are fairly obvious. An overwhelming majority of rabbinic scholars from the major streams of Judaism -- Orthodox, Conservative, and Reform -- have concluded that the potential life-saving benefits accruing to embryonic research are significant enough to mitigate the inherent loss of embryonic life, however tragic. They are specifically motivated by the 16th century Code of Jewish Law, which mandates healing as a religious obligation, especially when saving lives is involved. Just as while traditional Judaism generally proscribes "abortion on demand", it permits abortion to save a mother's life, so too is wanton embryo destruction forbidden but embryonic stem-cell research sanctioned.

Because embryos, according to traditional Judaism, are both life and potential life, they are worthy of protection -- up to a point. And because the destruction of unborn life may be subjected to utilitarian and intent-based calculi, there is no intrinsic moral prohibition against ESCR, especially because it entails destroying life in its very first hours and days.

This overview, of course, may raise more questions than it answers. The next installment will attempt to explain why the born-unborn distinction looms so large and will consider dissents from and objections to this mainstream traditional Jewish consensus. But regardless of inevitable differences of opinion, as the Jewish community rings in the New Year, we are mindful of the Biblical injunction to "choose life" and all the befuddling, magnificent complexity that the verse implies.

Michael M. Rosen, a TCS contributor, is an attorney in San Diego.


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