Multifetal Pregnancy Reduction In Jewish Law.
Is it permissible to abort some of the fetuses so that the others stand a reasonable chance of living?
January 18, 2004 GRAND RAPIDS, Michigan (AP) -- A woman pregnant with sextuplets has given birth to the five remaining babies more than a week after delivering the first, a hospital official said Saturday.
With the birth in January of a set of live sextuplets in Grand Rapids, Michigan, it is timely to examine the Jewish view of a common complication of infertility treatment, multiple gestations. Such excitement has not occurred since 1998, when the first known set of live septuplets occurred in the United States. Such multiple gestations are rare, with 6,742 sets of triplets, 506 sets of quadruplets, and 77 sets of quintuplets or higher order pregnancies in 2000.1
Normally, a woman produces one mature egg per month. A common infertility treatment requires a woman to take ovulatory drugs which cause her to hyperovulate, producing many mature eggs at one time. These multiple eggs may be allowed to proceed naturally through the fallopian tubes to be fertilized or they may be extracted and used for in vitro fertilization. In the former case, a multiple pregnancy may occur without any other intervention. In the latter case, a decision must be made as to how many eggs to implant following the in vitro fertilization procedure.
Because of the high cost of treatment and the relatively low success rate of such treatments (which is improving every day), a decision is sometimes made to implant several fertilized eggs. The expectation is that only a few of the eggs will result in a viable pregnancy and that hopefully, at most one or two children will be born.
Therefore, an undesired result of infertility treatment is the situation of a woman pregnant with up to seven fetuses. Women who have multiple gestations are at increased risk for many types of complications, including gestational diabetes, premature delivery, eclampsia (severe high blood pressure and seizures), and birth defects. They are usually forced to spend much of the pregnancy in bed to minimize the risk of complications. The complication rate for twins is higher than for singletons, and the rate of complications only increases as the number of fetuses in the womb increases, with a steep jump with quadruplets.2 Not only does the danger to the mother increase with more fetuses, but also the risk of miscarriage, ending the lives of all of the fetuses increases. As a result, many physicians recommend selectively aborting some of the fetuses to reduce the pregnancy to twins or triplets at most.
Is it permissible to abort some of the fetuses so that the others stand a reasonable chance of living? If so, how should we choose which ones to abort? While there are few accepted indications for abortion in Judaism, the consensus among experts in Jewish law is that under certain circumstances, multifetal pregnancy reduction is permitted. Nevertheless, even those experts who allow reduction, disagree sharply on the reason to allow selective abortion.
Abortion is permitted when a pregnancy poses a realistic threat to the life of the mother because the fetus is considered a rodef, or "pursuer" of the mother's life.3 (See "Abortion in Jewish Law") Therefore, in the opinion of all Jewish legal experts, abortion is permitted if the multiple gestations endanger the mother's life.4
The more difficult and intellectually interesting question is whether one may selectively reduce a multifetal pregnancy for the sake of saving the lives or the health of the remaining fetuses. It is important to understand that this question is not at all similar to the issue of selective termination of "defective" fetuses. Multifetal pregnancy reduction does not entail a value judgment regarding the worth of each fetus, but rather is an attempt to deal with the medical repercussions of multiple gestations.
The Committee on Ethics of the American College of Obstetrics and Gynecology points out this distinction between multifetal pregnancy reduction and selective termination of an abnormal fetus:
"[I]nsofar as the intention of selective termination is different from that of other multifetal reductions, its ethical rationale is importantly distinctive. That is, the intention in selective termination is to avoid having a child with a known medical problem, whereas the intention in multifetal reduction is to prevent problems that are secondary to multifetal gestation and premature birth."5
Can we justify selective reduction when the mother's life is not in danger? Some rabbis have applied the same reasoning that is used to justify abortion to the fetuses themselves, arguing that the fetuses are rodfim, or pursuers of each other. They reason that if left alone the multifetal pregnancy will almost certainly result in an early miscarriage, with a loss of all of the fetuses. They contend that if we can save any of them, it is permissible to abort some of them. But if each fetus is pursuing the others, why may we abort any? Usually, if two people are pursuing each other, we cannot choose one life over another. (See "Stem Cell Research in Jewish Law") As we shall see, it is not clear that this rule applies to fetuses who are not yet born.
Rabbi Yitzchak Zilberstein, a prominent contemporary halachic authority, approaches the question in a rather original way.6 He first suggests that if the pregnancy is not a threat to the mother, then aborting some of the fetuses might not be permitted due to concerns of choosing one life over another. Rabbi Zilberstein then proposes two approaches that would suggest that multifetal reduction might be permissible even if only to save the lives of some of the fetuses.
Rabbi Zilberstein brings an analogy to a case in the Talmud,7 where a group of people who are attacked and are asked to turn over one member of the group (to be chosen by the group) for execution or all will be killed. While most halachic experts rule that all must die, rather than choosing an innocent party to be killed, Rabbi Zilberstein points out that there are authorities who restrict the prohibition of choosing someone to cases where the chosen victim could theoretically escape. But if it was clear that all would die if one were not turned over, then some authorities allow an innocent person to be chosen by lottery and sacrificed to save the others in the group. If this conclusion applies to already born people with full human status, then certainly it should apply to fetuses who do not yet have the status of being viable. That is, so long as the fetuses are in utero, they do not necessarily fall under the prohibition of not choosing one life over another. Therefore, multifetal reduction should be permitted as an act of life-saving fetal protection and not as an act of fetal destruction.
Rabbi Zilberstein also compares pregnancy reduction to using a tractor to save people trapped in the rubble of a collapsed building. If all will die if nothing is done, then he argues that some scholars would permit the use of the tractor to plow through the rubble. Even if some of the doomed people are killed sooner by the tractor, many people may be saved who would have died. Similarly, since all of the fetuses will likely die, he argues that it is permissible to kill a few prematurely to save the rest.
Both of Rabbi Zilberstein's conclusions seem predicated upon the assumption that none of the fetuses would survive to term if multifetal reduction were not performed. If the medical reality was that some might survive, even if impaired, then his logic might not support multifetal reduction.
Rabbi Chaim Dovid Halevi, in the same compilation of halachic articles, takes a more lenient approach.8 He contends that there is a spectrum of opinions regarding abortion (from very restrictive to allowing abortion for Tay Sachs up to seven months) and that most authorities agree that aborting a non-viable fetus is not murder. He hence he argues that multifetal reduction is permissible if by not performing the reduction, the fetuses will be born prematurely and with severe mental or physical defects. He allows reducing to the point necessary to allow the remaining fetuses to be born healthy.
An interesting, yet controversial approach can be derived from a 13th century Talmudic commentary of Rabbi Menachem Ha'Meiri.9 In discussing the case of the group attacked by bandits upon which Rabbi Zilberstein based his opinion, Rabbi Ha'Meiri contends that there is an exception to the rule that everyone must give up their lives rather than choose on victim for the bandits. He states that "it goes without saying that if within the group is one whose sickness will kill him within a year, then it is permitted to turn him over [regardless of whether he was singled out] and not let themselves be killed, since one who kills such a person is not guilty of murder." We might propose that since all of the fetuses will die within a year if the number of fetuses is not reduced, there is reason to rule that fetal reduction is permissible according to this opinion.
For some rabbis, another mitigating factor is the age of the fetuses. While the fetus is considered to be a potential person from conception, before 40 days of gestation the Talmud calls the fetus "mayim b'alma" (mere water), and therefore many authorities feel that in a situation when an abortion is permitted, it should be performed as early as possible.10
Rabbi Shlomo Zalman Aurbach, who was among the most influential rabbinic experts of the late 20th century, was not concerned with the 40 day limitation. He was approached with two cases, one involving a woman pregnant with sextuplets and the other involving a woman whose pelvis was too small to support her quadruplet pregnancy. He permitted multifetal reduction in cases where continuing the pregnancy had a high risk of ending in miscarriage of all of the fetuses, ruling that each fetus had the law of a rodef. Therefore, Rabbi Aurbach allows a doctor to abort one or more fetuses after 40 days gestation when the procedure is safer.11
Which fetuses should one choose to abort? The most common answer given is to abort whichever fetuses maximize the chances of success for the procedure while minimizing risk to the remaining fetuses.12 This boils down to aborting the most accessible fetuses at the time of the operation. What if one of the fetuses is abnormal? Pregnancy reduction to abort a defective fetus and to leave a normal fetus depends on whether one is permitted to abort a defective fetus. Since the fetal abnormality itself is not the cause of the risk to the mother and other fetuses, this would not in itself represent a basis for aborting the abnormal fetus. However, according to at least one opinion, if one fetus is abnormal to the point that it might die in utero and thus endanger the other healthy fetuses, it is permissible to abort it in order to save the healthy ones.13 Rabbi Eliezer Yehuda Waldenberg rules similarly and writes that he was told that Rabbi Yosef Shalom Eliashuv concurred.14
While there is much discussion regarding how many fetuses to abort, the consensus is that this is a medical issue which must be evaluated by the physician in each individual case.15 However, the rule is clearly that the minimal number of fetuses should be aborted to ensure a good outcome for the mother and other fetuses. There are no halachic authorities that allow fetal reduction for personal convenience or as a matter of choice, such as reducing from twins to singletons.16
In conclusion, most Rabbinic decisors agree that multifetal pregnancy reduction is permitted in certain circumstances; some permitting it only in situations where the continuation of the pregnancy threatens the mother's life, others also allowing it if the pregnancy itself is threatened. Nevertheless, there is a serious question whether it is permissible to purposefully implant multiple embryos in the first place, knowing that the difficult situation of multiple gestations might arise.
1 Robert K. Creasy, Jay Iams, Maternal-Fetal Medicine: Principles and Practice, Chpt. 29: Multiple Gestation-Clinical Characteristics and Management, W.B. Saunders, 2003.
2 Ibid. See also the ACOG Educational Bulletin, No. 253, November 1998. Special Problems of Multiple Gestation which is summarized at http://www.medem.com/medlb/article_detaillb.cfm?article_ID=ZZZH26TXMFC&sub_cat=3.
3 Moses Maimonides, Mishneh Torah, Laws of Murder 1:9
4 Mishnah Oholos, 7:6
5 American College of Obstetrics and Gynecology Committee on Ethics. Multifetal pregnancy reduction and selective fetal termination. Opinion number 94, April 1991
6 Rabbi Yitxchak Zilberstein, "Induced abortion for multiple fetuses,", Assia, volume 8, 1995, pp. 7-13 (Published by the Dr. Falk Schlesinger Institute for Medical-halachic Research at Shaarei Zedek Medical Center, Jerusalem). Originally published in Assia magazine, no. 45-46 (12:1-2), 1989.
7 Jerusalem Talmud, Trumot, 8:10--"if one group of people says to another, 'give us any one of you and we will kill him, and if not then we will kill all of you,' even if all will be killed, one may not turn over even one person of Israel." See also Moses Maimonides, Mishneh Torah, Yesodei HaTorah, 5:5.
8 Rabbi Chaim Dovid Halevi, "Induced abortion of multiple fetuses and the status of test-tube babies ," Assia, volume 8, 1995, pp. 3-6.
9 Rabbi Menachem Ha'Meiri, Beis Ha'bechira, Sanhedrin 74B
10 Rabbi Mordechai Eliyahu, Techumin Vol. 11, 1990, p. 272.
11 English Nishmat Avraham, Choshen Mishpat, 425:2 (A:25), p. 295. The procedure is usually done between nine and 12 weeks of gestation.
12 Rav Aurbach cited in Nishmat Avraham, ibid.
13 Rabbi N.A. Rabinowits, Techumin Vol. 17, 1997, p. 340. See Steinberg, Dr. Abraham; Encyclopedia of Jewish Medical Ethics, "Abortion and Miscarriage," for an extensive discussion of the indications for abortion.
14 Rabbi Eliezer Yehuda Waldenberg, Tzitz Eliezer, Vol. 20:2.
15 Rabbis Zilberstein, Eliyahu, and Halevi, and probably Rabbi Aurbach.
16 Richard V. Grazi, MD, Joel B. Wolowelsky, PhD, "Multifetal Pregnancy Reduction and Disposal of Untransplanted Embryos in Contemporary Jewish Law and Ethics," American Journal of Obstetrics and Gynocology 65:5 (November 1991).