Librarian's Lobby
by Daniel D. Stuhlman
December 2004

Practical Halakha “What if?”

Frequently in the study of Talmud we learn and discuss hypothetical cases. We ask “what if” questions. Even when these scenarios seem very probable, they are not always representative of an actual case or event. In Mishnah Ohalot 7:6, Tosepfta Yevamot IX, TB Sanhedrin 72b, and TP Shabbat 14,4 a case is discussed about a woman in a life threatening difficult childbirth when the fetus is trying to emerge from its mother. The Mishnah discusses at what point the child a viable neonate. If the fetus’s head has not emerged the fetus is considered an “aggressor” [rodef] and the doctor is permitted to save the mother at all costs, even to take the life of the fetus. [For a fuller discussion on the subject see: Feldman, David, Marital relations, birth control in Jewish law (New York, Schocken Books, 1974 p.275-294) [1]]

At Thanksgiving dinner, my cousin, who is a pediatrician at a Catholic hospital discussed this issue. As you know the Catholic and Jewish views on birth control and saving a mother’s life strongly differ. He was asked what would happen in his hospital if there was a life threatening childbirth. Would the mother be saved and child dismembered as described in the Talmud? This question bothers us because we view the Catholic viewpoint as unfair to mothers or illogical based on our knowledge of halakha. My cousin said that in his ten years working in that hospital there has never been a case that would require choosing the life of a mother over the life of the fetus. The doctors have always tried to save both. I checked with other medical professionals who deal with childbirth and they agree with him. They could remember no case in their careers when the question of choosing the mother’s life during childbirth over the child’s life happened. They did point out there are cases concerning medical treatment on pregnant women that could affect the embryo or fetus. (For example radiation or chemotherapy for cancer would harm the embryo. In these cases there would be a therapeutic abortion or treatment would be delayed. This is not an option in a Catholic hospital.) Most maternal deaths occurring after a live birth are because of excessive bleeding, cardiac problems, or aspirated stomach contents into the lungs[2], not occluded deliveries. In other times and places maternal deaths occurred as a result of infections from unsanitary conditions[3]. Sometimes the child dies in the womb and the doctors have to extract the dead fetus, but this involves no moral dilemma for the Catholic or Jew.

I found articles that dealt with women forced to abort fetuses because of life threatening situation (for example: “Refusing to terminate a life-threatening pregnancy,” by N. Dresner  V. Raskin L.S.Goldman. Gen. Hosp Psychiatry. 1990 Sep;12(5):335-40. There are many articles dealing with life-threatening health risks of a pregnancy, but I did not find any articles describing the need for a craniotomy or dismemberment as described in the Talmud. There is an article, found on the Internet “Conjoined Twins Give Birth to Moral and Legal Debate,” by John L. Allen Jr. ( http://www.parkridgecenter.org/Page473.html  c2003 by the Park Ridge Center that quotes without attribution this Talmud case. A Catholic couple from the tiny Maltese island of Gozo , gave birth on August 8, 2000 to conjoined twins in Manchester, England. Their doctors told the couple only one could survive. This article is summarizes the ethical debate of the medical procedure.

In Catholic theology the principle of performing an action on one party in pursuit of a good end in full knowledge that the action will also bring about detrimental results to a second party is called, “double effect.” Catholic theologians discuss the relative moral value of the actions. They discuss what is the intended action and what is the consequence.  This is discussed with a bibliography in the web page “Doctrine of Double Effect” (from Stanford Encyclopedia of Philosophy) http://plato.stanford.edu/entries/double-effect/.[4]

Partial birth abortion, also called late term abortion, from a Jewish point of view is discussed in the article, “Partial-Birth Abortion,” by Miryam Z. Wahrman ( http://www.jewishvirtuallibrary.org/jsource/Judaism/partial.html which is part of The Jewish Virtual Library).  The author quotes, Rabbi David Feldman telling about a case from the Hackensack Hospital and Medical [N.J.], where the decision regarding an Orthodox Jewish woman was particularly complicated.   The mother was carrying a hydroencephalic fetus with a head too large for a normal birth.  She did not want a C-section because she was afraid that the operation would affect the strength of her uterus and endanger some future fetus. She wanted the doctors to puncture the head of the fetus and extract the body. Her rabbinic authorities agreed and the hospital complied[5].

The Talmud case is mentioned frequently in medical ethics classes. However, even though I found an exact medical description of the procedure to cut a skull and remove the brain, I found nothing written about an actual case of craniotomy used to save a mother’s life. The principle involved is the intellectual exercise of the examination of the moral and halakhic situation. Unlike many practical cases in the Talmud, the fetus as a rodef (aggressor) is hypothetical in light of modern medicine. The study of this situation is important for the implications on other areas of halakha and daily life. Pisqei halacha (Jewish legal opinions) dealing with life and death situations are based on the understanding of the Talmud texts of this case.

“What if” is an important methodology for learning how to think and learn about more situations than you could encounter in your daily life. When it comes to legislation, provisions of the law are “if then.” If a person does action ABC, then the consequence is DEF. By thinking ahead one is prepared to deal with the practical situations. In addition to the study of halakha this methodology helps us think and expand our understanding of the connections between the learning about something to its practical applications to our lives.


[1] Reprinted by New York University Press in 1995  under title: Birth control in Jewish law : marital relations, contraception, and abortion as set forth in the classic texts of Jewish law. When this book appeared in 1968 New York State had laws limiting how birth control and abortion could be discussed. Advocating abortion was forbidden. Feldman’s discussions had to be academic when describing the halakha of birth control and abortion so that he did not appear to recommend the procedure.

[2] Aspirating stomach contents occurs during anesthesia. According to my OB/GYN source these cases could be reported as cardiac arrests because problems during anesthesia would reflect poorly on the medical care.

[3] Abortion and birth control are burning issues and I have no intention to express my opinions. My intention is examine the process and give some sources for the discussion. Here are two more books on abortions in Jewish law. Abortion in Judaism / Daniel Schiff. Cambridge, UK< ; New York : Cambridge University Press,2002.    Abortion / Daniel Sinclair. Tel-Aviv ; Boston : Open University of Israel Publishing House, Institute of Jewish Law ; Boston University School of Law, c1994.

[4] Unborn Victims of Violence Act of 2004 (S. 1019) signed into law by Pres. Bush on April 1, 2004 has been a source of controversy in the religious and secular communities. The act provides for a separate punishment for an act of violence against a child, who is in utero. The law states an action (killing of an unborn child) has a consequence of punishment as if the action was done on a live human being. The language of the law uses “child” rather than “fetus.” The medical definition of fetus is: The unborn offspring from the end of the 8th week after conception until birth. Planned Parenthood Federation of America (PPFA) denounced the passage of this law. The right to life movement lauded its passage.

[5] Since I could not find a full write-up of the case I contacted Rabbi Feldman via e-mail. He was not involved in the case and he only heard about it at a meeting of the Bioethics Committee of Hackensack Hospital.  He did not even know the names of the rabbi(s) consulted or their basis for making the decision. The description of the case raises many questions that could not be answered from the small summary or even Rabbi Feldman’s understanding of the events. The woman claimed her future child was in danger and did not claim her own life was in danger. Since women routinely have normal birth babies after a C-section, this situation with future births has no basis in current medical practice. However, every operation and use of general anestisia has risks. Even medications that most consider routine, such as baby aspirin, cold medications, and some vitamin preparations have possible negative effects on a developing fetus and also possible effects on a nursing infant as well.

This is a current issue of concern. The November 29, 2004 issue of the New York Times had an article, “Trying to Avoid 2nd Caesarean, Many Find Choice Isn't Theirs,” By Denise Grady. Grady reports that some doctors and hospitals refuse to allow a vaginal birth after Caesarean, or VBAC saying that it is too risky. Letters to the editor published in the Times on December 6 argue both sides of the issue.

 Daniel D. Stuhlman is president of Stuhlman Management Consultants, Chicago, IL, a firm helping organizations turn data and information into knowledge. We are looking for new clients and opportunities. Visit our web site to learn more about knowledge management and what our firm can do for you. Previous issues of Librarian's Lobby can be found at: http://home.earthlink.net/~DDStuhlman/liblob.htm.
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 ©2004 by Daniel D. Stuhlman. All rights reserved.
Last revised December 8, 2004