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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 IN JEWISH LAW * 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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