15 Isr. L. Rev. 109 (1980)
The Legal Basis for the Prohibition on Abortion in Jewish Law

handle is hein.journals/israel15 and id is 119 raw text is: THE LEGAL BASIS FOR THE PROHIBITION ON ABORTION
Daniel B. Sinclair **
1. Introduction
One of the main issues in almost every treatment of abortion in Jewish
Law is the legal basis for its prohibition. The recent trend in Rabbinic
literature to categorise abortion as a form of homicide, proscribed by Biblical
law, seems to constitute a break with the classical Rabbinic view, according
to which abortion is neither homicide, nor directly prohibited in the major
literary sources of Jewish Law, i.e. the Bible and the Talmud. Moreover, in
the few instances in which abortion is discussed in these sources, it would
seem that no such prohibition exists.
This article will analyse the Biblical and Talmudic passages which deal
with abortion, and survey the various Rabbinic opinions as to the legal basis
for its prohibition. Particular attention will be paid to the argument that
abortion is a biblically-proscribed form of homicide, and to the reasons which
may underlie the adoption of that argument by a number of authorities in
recent times. We will also analyse the significance in Jewish Law of the
stages of foetal development.
Our analysis will be both historical and normative, and in this context it
will be a valuable exercise to compare the position in Jewish Law to that in
the Canon Law of the Church of Rome. Although the Church Fathers held
that abortion was a form of homicide, and the contemporary position of the
Catholic Church reflects this attitude strictly and unswervingly, the Medieval
Canonists adopted the distinction between the formed and the unformed
foetus, based on a tradition derived from the Septuagint version of the
Biblical passage dealing with the consequences of striking a pregnant woman
(Ex. 21:22-23). Accordingly, they held that only the abortion of a formed
foetus constituted homicide. This distinction became a most significant factor
in the Canon Law until the sixteenth century, when a combination of various
factors served to bring it into disrepute, and finally led to its abolition in the
late seventeenth century.
The article is based on a thesis submitted to Monash University, Melbourne,
Australia, for the degree of Master of Laws. An article in Hebrew also based on
this thesis appeared in Shenaton Hamishpat Haivri (Institute for Research in
Jewish Law, Jerusalem, 1978) vol. 5.
*   LL.B. (Hons.), LL.M., Assistant, Institute for Research in Jewish Law, Faculty
of Law, The Hebrew University of Jerusalem. Doctoral candidate.

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