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Publication Date: 
March, 1996
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At exactly the same week that Pope John Paul II published his \"Evangelium Vitae\"-\"Gospel of Life,\" the Israeli Supreme Court declared that fertilized eggs \"are not carriers of life in the common sense of the term\". Both statements were issued a short time before the Christian Easter and the Jewish Passover of 1995. The dates are peculiarly significant because the Israeli Supreme Court is not a religious institution, and the date of the ruling, in an appeal of a decision by a lower court, was entirely incidental. Nevertheless, the two statements brought forth not only differences in approach to such profound questions as the meaning of life, human dignity and individual choice, but also the ancient conflict between Rome and Jerusalem. This aspect of the proclamations was also enhanced by the fact that in both, Christianity and Judaism, Easter and Passover represent the most profound symbols of a new life and a new beginning.

The Pope's evangelical plea calls for the creation of a \"culture of life\" as an alternative to what he, with the full teaching authority of the Catholic Church, deems to be an encroachment of \"a culture of death,\" with special reference to abortion and euthanasia. In the Pope's view, the taking of life, in any form and for any reason, desecrates human dignity and freedom. Yet, the Pope's encyclical is more than a condemnation of such acts; it is an attack upon a very distinct world view. The Pope sanctifies life because it is God given, while the view he is opposing holds life dear because of its potential to evolve and disclose such values that would endow it with dignity. Dignity, in this view, is an extra added value that can be brought about by a way of life rather than by mere life. The potential for dignity is in the human capacity for choice, e.g. choice between good and evil, right and wrong, humane or inhumane-all the things to which the Bible refers as a choice between life and death. Euthanasia in this sense is an act that forces us to choose between mercy and heartlessness, compassion and insensitiveness. Euthanasia allows us to help a person who wants to preserve the dignity that it took him a life long effect to acquire, besides preventing unnecessary suffering in cases of incurable and denigrating maladies.

This kind of logic is apparent in the January 11, 1996, decision by the Vice President of the Israeli District Court in Tel-Aviv, who decreed that if a terminal patient so wishes, not only should the patient not be connected to a respirator, but should be disconnected in case one is already attached to a life supporting device. In the exposition of this precedent setting decision the judge, Moshe Talgam, commented that, \"it seems to me that not to respect the will of a person who does not wish to turn into the deformed configuration of a vegetable or a paralytic who is being fed and made to breathe against his own will-does not signify a preservation of the human image, even when we consider the sanctity of life to be of the highest value. The main point of consideration should be the dignity of the patient.\" The judge rejected, therefore, the request of a medical insurance company that a committee of three doctors should decide the terminal stage in a patient's life, as long as the patient is over eighteen and a psychiatrist has established that the patient is sane and aware of the nature of his decision. The judge did approve the establishment of such a committee in cases of patients who are unable to make a decision, underage or unconscious.1

About a month after this precedential decision (February 15, 1996) the General Manager of the Israeli Health Ministry, Dr. Meir Oren, issued a directive indicating that terminally ill patients should not be connected to life supporting instruments against their will. Dr. Oren stipulated that the patient's terminal condition should be confirmed by two disassociated doctors, that a psychiatrist should verify that the patient is fully aware of the meaning of his decision, that the decision should be made out of the patient's free will and not under outside pressure and that it should be validated that he is well aware of the nature of the alternative treatment and does not just yield to a pessimistic disposition. The directive also articulated that the doctor in charge should find out what the exact reasons are that led to a patient's decision and correct any misconception in relation to the patient's true condition. It also stipulated that no doctor should perform such an act against his will and in case the doctor feels that it is against his conscience to disconnect the patient from a respirator, he should ask another doctor to take over.

The decision of the Israeli Supreme Court does not deal with questions of human dignity and the meaning of life but it rather focuses upon the rights of parents in a specific case of an in-vitro fertilization of eggs taken from a woman who meanwhile was separated from her husband. In a decision of four judges against one minority opinion, the court decreed that no person has the right to force parenthood on his spouse. \"In the same way that the husband cannot object to his wife's decision to have an abortion, the woman has no right to oppose the husband's demand to terminate the process of fertilization.\" Accordingly, the court decided that the fertilized eggs should be terminated, as \"a fertilized egg is not in a stage in which it deserves a protection of its life' because it is not a carrier of life in the common sense of this term.\" The court concluded therefore that a fertilized egg has no positive right which requires \"parents\" to continue the process which can lead to the creation of human life, nor has the state an interest in protecting this form of \"life\" by forcing one of the donators of the genetic load to continue the process. (The quotation marks are in the original decision). An interesting and somewhat startling possible deduction is that as a fertilized egg is not a living entity, an in-vitro embryo may be utilized in medical and pharmacological experiments. It may be because of such inference, as well as because of the \"general nature of the problems created by the fast technological development hi our time,\" that the then president of the Supreme Court, Meir Shamgar, conceded to the request of the plaintiff's lawyer to further review the principal questions raised by this case before a forum of nine judges (the original five plus four).2

The decision of the Israeli Supreme Court is intriguing, and even much more so, because of the Pope's references in his encyclical to the Jewish Bible: \"From the story of Cain and Abel, through the Prophets and the Psalms, the Pope sees the Hebrew Bible as a testimony to the God-given gift of life-and to the killing of the innocent as a denial of humankind's dignity as creatures formed in God's image . . . and to those who argue that an embryo is not yet a human being, the Pope replies: 'it would never be made human if it were not human already.'\"3

From a Jewish perspective the Pope's assertion that \"the killing of the innocent is a denial of humankind's dignity as creatures formed in God's image\" can be very repugnant. Considering the long history of the Catholic church's treatment of Jews, and the recent refusal of Pope Pious XII to condemn the mass killing of the Jews (in which Polish, Croatian and Latvian Catholics played a prominent part) in the German extermination camps, such a statement can be interpreted as implying that the Jews are not innocent or not formed in the image of God. Unintentionally, it presents a potential for a justification of another Holocaust, in spite of the fact that John Paul II was the first Pope to ever visit a Jewish synagogue, publicly denounced anti-Semitism and recently (12/31/93), approved the exchange of ambassadors between the Vatican and Israel.

A comparison between the Jewish and the Catholic Christian approach is very revealing. Even more so, because the interpretation of the text of the same Bible which was used by Jesus during his life and the time of his ministry has been a major point of controversy between the two religions for almost two millennia. As Christianity came into being only after Jesus' death and resurrection, we may assume that during his hie time, Jesus followed all Jewish customs, including the law regarding abortion.4 The closest we can get to the law at Jesus' time is a passage in the Mishnah (Ca. 200 CE) which states that the fetus is like a limb (a thigh) in his mother's body.5 This assumption was questioned in certain cases by some later Talmud scholars, but it is interesting to note the similarity between the Jewish and the Roman law that also viewed the fetus as a limb (pars viscerum matris). The Fathers of Christianity however, chose to follow the teaching of the Pythagorean Greeks, according to which, the soul enters the body of the embryo at the time of conception. This view was presented first by the third-century Church Father Tertullian and was confirmed by St. Gregory of Nyssa in the fourth century.6 St. Augustine (fifth century) introduced the distinction that only the killing of a \"formed\" fetus (after 40 or 80 days) should be considered homicide. The Catholic Church vacillated between the two approaches until 1869, when Pope Pius IX asserted that the soul indeed enters the embryo's body at the moment of conception and therefore abortion is tantamout to murder. This conclusion has been part of the Catholic Canonical law since 1918.

As stated above, this was not the Jewish view, and very likely therefore, not the view held by Jesus during his lifetime. The Pope rejects abortion because the embryo is in the image of God, a defiled image we should add, because according to the Catholic doctrine it is contaminated by the original sin, but nevertheless in God's image. Because of the original sin, according to Catholic belief if the embryo dies unbaptized his soul is condemned for eternal perdition. \"The result was that abortion came to be considered worse than murder.\"7 Judaism, however, does not believe in original sin and considers the soul immortal in all cases. In the Jewish view abortion is justifiable on ethical grounds, as an act that can save a woman pain and suffering, both physical and mental. In the Jewish tradition the embryo may have a soul from the moment of conception, but it is not considered a person until the moment of birth.8 Decrees issued by the Catholic Holy Office in 1884, 1888 and 1895 forbade risking the life of a fetus by a surgical operation even when the operation can save the mother's life.9 In the Jewish Mishnaic law, on the other hand, \"if a woman has [life threatening] difficulty in childbirth, one dismembers the embryo within her, limb by limb, because her life takes precedence over its life.\"10

The Jewish justification for sacrificing the fetus for the sake of saving the mother's life is based on the duty of any observer to kill a \"pursuer\" when he attempts to take the life of somebody else.11 However, this is forbidden if the birth has already started and the head of the embryo is out, as it is forbidden to \"set aside one life for another.\" The law of \"pursuer\" is extended to a much wider area than the physical, as Judaism recognizes also mental anguish as forming a risk for the mother. So much so, that according to the Jewish law, if a woman sentenced to death is discovered pregnant after her conviction, she should be executed immediately in order to save her from unnecessary distress and mental torment. However, if the pregnancy were known beforehand, the trial should be postponed. \"The law of Israel, just as it requires that the fetus be sacrificed to save the mother's physical life, likewise requires that it be sacrificed to save her spirit from torture and suffering.\"12 The care for the mother's state of mind is carried to cases where the mother is worried that the embryo is deformed, on the ground that \"the fetus is unknown, future potential, part of 'the secret of God'; while the mother is known, present, alive, and asking for compassion.\"13 The same is true if the woman is afraid of excessive pain after a bad experience in a previous birth, \"her pain comes first.\"14

The mere decision of the president of the Israeli court to reconsider the case in a forum of nine judges, even though a formation of five is already exceptional, is also very much in the Jewish tradition. While the Pope is presumed infallible, no Jew can ever assume that he has a hold on anything but a partial truth. This concept is beautifully expressed in the Jewish belief that although in Sinai God spoke to all the Jews, each person, including Moses, apprehended only part of the message. The whole truth can be obtained, therefore, only by the mutual sharing of knowledge, i.e. through a continuous dialogue among all Jews, past, present and future. Jews don't believe that they are contaminated or deformed because of a sin of their forefathers-what is deformed is the ability of any one person to get hold of the whole truth. Being human should be distinguished, therefore, by a pursuit of knowledge through a continuous dialogue with other people. Dignity is acquired by the degree of knowledge any individual person can achieve in his/her pursuit of the truth. What is dignified is not life per se but the way of life, and the ideal of the Jewish way of life has been distinguished by a pursuit of knowledge, attentiveness and respect for others' opinions, and humbleness in one's approach toward himself and his own ideas. Like all ideals, this one in particular is also more coveted than possessed and leaves a lot to be desired. Nevertheless, it does delineate the ideal type of Jewish life as it was conceived throughout most of Jewish history. Most notably this ideal is apparent in the concept of martyrdom, which was introduced by Judaism already two centuries before Christ, stating in effect that the way of life is more important than staying alive. The ideal of a Jewish way of life is prescribed by a pursuit of the meaning of things. This is the \"sore task\" that God assigned to humanity, the task of nomenclaturing (Genesis 2:19), and accordingly, \"to seek and to search out by wisdom concerning all things that are done under heaven\" (Ecclesiastes 1:13). In the Jewish view, life deprived of such a quest is valueless,15 leading to the treating of partial truths as if they were whole and final truths, and therefore, to a life of idol worship and sacrilege.

The Pope's appeal for \"a culture of life\" seems to broaden the gap between the spirits of \"Jerusalem\" and \"Rome,\" between an unbending and merciless following of a dogma or law and an approach in which human compassion bends the dead spirit of the law. It is most interesting that the secular courts of Israel preserve the original Jewish spirit, and most likely also that of Jesus-the compassionate Jew. It is most interesting also that after the Reformation and with the Enlightenment, this compassionate approach spread also in the wide post Enlightenment society.

The most striking difference between the approaches of the Israeli Supreme Court and the Pope is not so much in their distinct worldviews, but rather in the mode of their relating to the world. Unlike the Pope, the Israeli court is ready to confront all the practical and ethical effects of the advances in scientific understanding and technology. The Pope's views makes sense, even religiously, only within the framework of a very simplistic, archaic and bounded setting of reality. However, abortion can no longer be discussed only within the framework of the beginning of life. The more prevalent current question is: what is life? Is there any point in talking about an embryo as a human being because it can become one, at a time when we are on the verge of cloning the DNA in every cell of the body into another human being? In an age of genetic engineering, when do we stop being in the image of God? Is a person with an installed heart of a pig still in the \"image of God\" and therefore dignified? Does an in vitro fertilized egg have a soul? Is a genetically planned person a creation of God or of human ingenuity? The more we are aware of global interdependency and interconnectedness the more we have to question whether human life can be considered as a separated entity. Since we cannot survive without air and water, should the pollution of the air or a river be considered a form of gradual mass murder?

The Pope's approach is similar to responses to challenges by orthodoxy in many religions e.g. Judaism, Islam or Evangelical Christianity. When a religion is in crisis, the pat, furnished answers define the scope of the field of vision. Fundamentalism starts when the search stops, when the content can no longer cope with the changing reality. We have already reached, however, a new level of understanding of ourselves and the world that calls for reevaluation of old concepts and modes of conduct. This is an awesome process and an unsettling experience. For in order to be reborn the Phoenix first has to die. What the Phoenix feels first is the process of disintegrating, of limbs falling apart, no longer functioning, of messages that no longer reach their destination. The first instinct is to keep it together, to glue conjointly the dwindling limbs and force them to function-to no avail.

1 Yediot Aharonot, January 12, 1996 (Hebrew)

2 The husband's lawyer appealed this decision, claiming double indemnity, but a forum of 11 judges (out of 14) decided in August 1995 that the decision by the the now retired president-M. Shamgar, is valid. The case will be reviewed in some future day.

3 Newsweek, April 10, 1995, 59.

4 \"Think not that I am come to destroy the law, or the prophets: I am not come to destroy but to fulfill\", Matthew 5:17.

5 Hullin 58a.

6 David M. Feldman, Birth Control in Jewish Law, NY University Press. 1968, 268.

7 Ibid. 270.

8 Ibid. 273.

9 Ibid. 282.

10 Oholot 7, 6.

11 The rabbis who justified the murder of the Israeli Prime Minister Izhak Rabin, also based their opinion on the law of the \"pursuer\".

12 Feldman 290.

13 Ibid. 292.

14 Ibid. 294.

15 In the Jewish tradition, even a regular meal which is consumed without a discussion on the meaning of a Torah passage is tantamount to \"sacrifices to the dead\" (idolatry).

Moshe Amon, Ph.D.

Moshe Amon, Ph.D. is a graduate of the Hebrew University, Israel and Claremont Graduate School, Claremont, California. Widely published in Hebrew and English and the Founder of the Institute of Applied Philosophy, Dr. Amon is retired from the Department of Philosophy, The University of North Carolina, Wilmington, NC. Address correspondence to the National Institute of Applied Philosophy, 4938 Pine Street, Wilmington, NC 28403.