Abortion: Islamic and Jewish views on when a soul enters a human fetus

Although several Trump states in the USA have recently passed very restrictive laws concerning abortion, the supposedly restrictive government of Iran has done the opposite thing. Abortion in Iran was first legalized in 1978 only one year before the Iranian revolution. In April 2005, the Iranian Parliament approved a new bill easing the restrictions on legal abortion by allowing abortion in cases when the fetus shows signs of serious handicap, and the Council of Guardians accepted the bill in June of 2005.

Abortion in Iran is currently legal in cases where the mother’s life is in danger, and in cases of fetal abnormalities that might endanger the child’s life in the future. There is no need for consent from the father. Legal abortion is allowed up to 19th week of pregnancy. This is in line with Shia views of Islamic law.

All the continuing political disputes over abortion in the USA and other countries ignore the fundamental religious issue: when does the fetus in the womb of a woman’s body become a human fetus? At conception it is a living physical body, but when does this soul become a spiritual human being?

All mammals begin life as a fetus. What makes the fetus/embryo in the womb of a woman’s body into a human fetus/embryo from a religious point of view is the entrance into the fetus/embryo of a spiritual human soul (ensoulment).

According to many Muslim legal scholars (fuqaha), who are the only ones who have a fairly clear scriptural bases for their view, the soul (ruh) enters the fetus/embryo at around 120 days (4 months) after conception.

There is no clear statement of when ensoulment occurs in the Hebrew Bible or in the Gospels. Only the Qur’an offers an answer. Muslim legal scholars base the time of ensoulment on a Qur’anic verse that states:

And verily We created mankind from a quintessence (of clay). Then We placed him in a place of rest (the womb), firmly fixed (into the uterine lining). Then We made the sperm/egg into a clot of congealed blood. Then of that clot We made a (embryo) lump. Then We made out of that embryo/lump bones and clothed the bones with flesh. Then (finally) We developed out of it another creature (by breathing a human soul into it). So blessed be Allah, the most marvelous Creator”

[23:12-14]

There is also a Hadith (religious tradition) that says:

“Sayyiduna Abd Allah ibn Mas’ud narrated that the Messenger of Allah said: ‘Each one of you is constituted in the womb of the mother for forty days, and then he becomes a clot of thick blood for a similar period, and then a piece of flesh for a similar period. Then Allah sends an angel who is ordered to write four things. He is ordered to write down his (each person’s) deeds, his livelihood, his (date of) death, and whether he will be blessed or wretched (in religion). Then the soul is breathed into him…’” (al-Bukhari no: 3036).

The second part of the Hadith teaches us that what makes a human soul different from an animal soul is that God keeps records of how humans behave. Humans have very many ways to earn their livelihood, they know in advance that they will die although only God knows exactly when, and whether he or she will end up in the garden or in the fire.

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Thus, when the age of a fetus reaches about 120 days (4 months), it no longer remains a pre-human living object; rather, it becomes a living human being. At this point, all organ differentiation is almost completed and the child acquires the shape of a human body.

More importantly, now that the soul has entered the body, the fetus is truly human; and may not be killed unless it becomes a danger to the mother. In the case of premature births that survive; the soul enters just prior to birth.

Looking now at the Jewish perspective, the rabbis in the Talmud all agree that ensoulment does not begin at conception. The question of the fetus’ human vitality is addressed in two places in the Talmud: in Yevamot 69:2, a fetus in the first forty days of pregnancy is likened to water, “עד ארבעים יום מיא בעלמא”; in Nida 8:2, the fetus is recognized as a human soul from the second trimester (13 weeks into the pregnancy).

The Torah (Exodus 21:22-23) states that if two men are fighting and injure a pregnant woman, causing her to miscarry, and if no other harm is done, the person who caused the damage must pay compensatory damages. The rabbinic interpretation of this verse is that if the only harm to the woman is the loss of her fetus, it is treated as a civil tort, and not a criminal case. So abortion is not a prohibited crime, but it is damaging and thus discouraged.

An early, authoritative rabbinic legal text, the Mishnah, discusses the question of a woman in distress during labor. If her life is at risk, the fetus must be destroyed to save her. Once its head starts to emerge from the birth canal, however, it becomes a human life, or “nefesh.” At that point, according to Jewish law, one must try to save both mother and child.

In the time of Aristotle, it was widely believed that a human soul entered the forming embryo at 40 days (male embryos) or 90 days (female embryos), and quickening was an indication of the presence of a soul; although it is clear that female quickening occurs much closer to 40 than to 90 days after conception.

In the Middle Ages, most Roman Catholic theologians (including Thomas Aquinas) taught the “serial ensoulment ” theory which holds that there is a progression from vegetative soul, to animal soul, to human soul as the principle of animation that occurred during the first 2-4 months after conception. Many learned Catholic scholars of theology during pre-modern times held this theory.

Because of the much higher rate of miscarriages in the past, one favorite early sign of animal ensoulment was when the mother first detected ongoing movement from the embryo (quickening). Since that varies greatly from mother to mother, it is not a good standard for law making. The first trimester (13 weeks) seems to be a good bases for making legal decisions.

According to a 2017 Pew survey, 83% of American Jews believe that abortion should be legal in most cases. All the non-orthodox Jewish movements support reproductive rights, and even ultra-orthodox Jewish leaders have resisted anti-abortion measures that do not allow religious exceptions.

This broad support reveals the Jewish commitment to the separation of religion and state in the U.S., and a reluctance to legislatively force moral questions on everyone when there is much room for debate.