The FETUS: Breeding Legal and Moral Confusion

Recently, in the state of Utah, a woman was charged with first degree murder for refusing to undergo a Caesarean section that might have saved the life of her unborn child. Essentially, the woman was informed, earlier this year, that her fetus was in distress and a caesarian section was necessary in order to save it. She refused. The child eventually was stillborn. Applying Utah law, the prosecution is maintaining that the woman is thereby guilty of murder.

Under the landmark United States Supreme Court case of Roe v. Wade, abortion is permitted. Conforming to this, the Utah statute specifically exempts abortion from the definition of murder. Therefore, if this woman had aborted her child, she would not have been charged. In not agreeing to a c-section, however, and thereby passively allowing the fetus to die as a result of the natural conditions of the womb, this woman became open to the charge of murder.

This result seems surrealistic. For an active, conscious act of abortion, the woman would have been exempt. For a passive act, she is potentially guilty. This inconsistency, simply, does not make sense. It is, though, the natural result of the present confusion in the United States and elsewhere on the status of the fetus.

Of course, defining this status clearly does present some complexity. Is the fetus a part of the body of the mother, or an distinct being? This is the underlying question at the core of the abortion issue with Roe v. Wade basically supporting the former view. Advocates of the latter view, however, have been able to make inroads in legislation affecting crimes against pregnant women and their fetuses. Many American states -- and now the U.S. Federal government -- have created laws that make crimes against a fetus punishable as separate offenses from crimes against the mother. In declaring a fetus a separate victim, these laws are seen by many as supporting and advocating a recognition of the fetus as a separate being. This conflict in perception is effectively the underlying reason for the confusion in Utah. Two independent and separate tracts in law, built upon contradictory views of the fetus, have found voice in legislation. This duality, no doubt, emerged because the different underlying facts, to which these the two laws are responding, elicit disparate visions. In the case of abortion, with the mother's presence and circumstances powerfully felt, there is more of an impetus to see the fetus as part of the mother. In the case of a violent crime, with the fetus tragically victimized, there is more of an impetus to see the fetus as an independent being. Still, there is contradiction -- and when this contradiction becomes manifest, the potential for absurdity arises.

Nevertheless, simply choosing one view or the other, simply declaring a fetus a part of the body of the mother or an independent being, ignores the complexity of the situation. These two tracts in law exist because the matter is difficult and American society is perplexed; a simple solution of one or another just does not seem to be the answer. The present case in Utah clearly demonstrates that an ad hoc approach to this problem leads only to setting dangerous precedents. One cannot weigh in on the very matter of the definition of life by reacting to specific circumstances and determining a view in response to political agendas. The fetus' relation to the mother is the same in the case of abortion as in the case of crime...and any definition of life must affect this relationship in a consistent way.

Within Halacha, although there is also a spectrum of differing opinions in regard to the status of the fetus, the key distinction is that the matter is seen within the context of two focal points: the fetus is part of the mother's anatomy/ the fetus is a distinct entity. In the American system, opposing political forces each attempt to create a vision around one of these focal points and then apply that vision in different circumstances. This is why the absurdity in Utah was able to emerge. By contrast, Halacha recognizes that the fetus is both a part of the mother and a distinct living being; it thus demands a recognition of both factors in viewing the matter -- in viewing the matter in all circumstances. Halacha also recognizes that the nature of these two focal points may change over time; that is, the status of a week-old fetus and its relationship to the mother is different from that status eight months later.

The key is the recognition of the unique and somewhat contradictory nature of this being; the fetus is dependent in some ways and independent in others, it is part of the mother and a distinct living entity. Halacha balances these two characteristics, adjusting the weight of each factor to suit the reality of the development of the fetus over the gestation of the pregnancy.

It is for this reason that those committed to Halacha could not be fully supportive of the pro-life forces in the U.S. society and, in fact, why organizations such as Agudath Israel, based on the psak (halachic decision) of Rav Moshe Feinstein, officially were supportive of the pro-choice camp. Both the pro-life and pro-choice camps want to respond by seeing only one focal point and ignoring the other. Pro-life wishes to see the fetus only as a separate being. Pro-choice wishes to see the fetus only as part of the mother. But Halacha rejects both these approaches; the fetus must be seen from two focal points. The fetus' right to life can be curtailed in the presence of the mother but the mother also does not have full dominion over the fetus. The only reason why pro-choice became the default position of Agudath Israel was that, by advocating choice, it would also allow individuals committed to Halacha to decide according to Halacha.

And how would Halacha look at the case in Utah? Again, the dual focal points become most significant but in a most interesting way in this matter. In viewing the fetus as a distinct being, for the mother to have a C-section in order to save the fetus, we would be calling upon her to place herself in danger in order to save another. To what extent does one person have to place himself/herself in danger in order to save the life of another? The Halacha, to a great extent, leaves such a decision to the individual. In viewing the fetus as part of the mother, however, saving the fetus becomes part of the overall concern for one's well-being. It must be remembered that Halacha does not give total dominion over one's body to an individual and, as such, even within the focal point that the fetus is part of the mother, Halacha would not give total choice to the mother. The Halacha does demand of an individual to take care of himself/herself. As such, if the fetus is part of the mother, there may be an obligation to act to take care of the fetus. Still the fact that the overall health of the mother may be at risk through a C-section operation may somewhat alter this obligation. Interestingly, in that Halacha may find the possibility of the death of the fetus and a stillborn birth as problematic to the health of the mother, it may be deemed a greater risk to the mother not to have a c-section. In addition, Halacha recognizes that even within the perspective of the fetus as a separate being, the mother and fetus are intertwined. These are some of the issues that would be involved in determining the mother's obligation.

To further consider the halachic view of the Utah case, we would also have to investigate the passive nature of this violation. Passivity and activity are distinct and it should not be surprising that Halacha considers the distinction with different results considering the circumstances. Ultimately, through Halacha and the application of such perspectives as dual focal points, the complexity of this case is revealed and considered in the depth of a necessary analysis leading to a conclusion. The full range of emotions and issues within the case are presented. How does the state of the fetus affect not only the health of the fetus but the health of the mother? How do we respond to a fear in the mother of the
danger of operations? The generic response of Halacha, not knowing the full specific details of the case, would, most likely, be to demand a c-section in a case such as the one in Utah. But, then again, that is what most women would do in such a case. The question in this case is not only what should have been done but how one should respond to a violation. In fact, this is a strange case and there are clear indications that the mother in Utah may also be suffering from mental illness. The response to charge her with murder is thus absurd for many reasons. But most significantly it is absurd because it, even, could be seen as a possibility. This absurdity emerged because people attempt to avoid the true complexity that is life. They want simple answers. They don't want to hear that a fetus is both independent and dependent. This is the problem with much legislation. People want black and white. People want the fetus to be either a separate living being or part of the mother. But the truth is that it is both. This is the genius of Halacha. It deals with the black and the white of the grey.

Rabbi Benjamin Hecht

2004 NISHMA