Should Halacha Take Precedence Over Women's Health? by the Forward

Should Halacha Take Precedence Over Women's Health?

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In a story from the operating theater of the absurd, Israel’s Channel 2 news reported on July 8 that a woman was denied a scheduled D&C for a missed abortion because of an arcane aspect of halacha. The report is in Hebrew, but there is a related English language blog post in 972 Magazine.

According to the report, a woman in her second month of pregnancy was wheeled into an operating room at Assuta Hospital in north Tel Aviv for a procedure to remove the fetus which had died inside her, but which the woman had not naturally miscarried. Just as the procedure was about to begin, the OR director rushed in and announced that it could not proceed. The reason was that this particular operating room did not have an adjoining small room designed to prevent Cohanim (descendants of ancient Israelite priests) from becoming ritually impure through contact with the dead. Apparently, abortions and D&C procedures must be performed only in operating rooms with an adjoining room that supposedly captures the soul of the dead fetus and prevents it from exiting to the hospital corridor and possibly contaminating a Cohen.

The article was accompanied by a photo of the sign affixed to the doors of all the operating rooms “kosher” for such procedures. It says, “In this place, the doors are equipped with a system to prevent ritual impurity of Cohanim. When the light above the door is on, do not open the door. Please wait patiently until the light has been turned off.”

The woman was told she would have to come back the next day for a rescheduled procedure in one of the sanctioned operating rooms.

“I’ve never heard of such a thing,” said Rabbi Leonard Sharzer, MD,, Senior Fellow in Bioethics of the Finkelstein Institute of Religious and Social Studies at The Jewish Theological Seminary. “My initial thought, without researching this case, is that people can die any place in a hospital at any time. So how can a Cohen always be prevented from coming in to contact with the dead in a hospital?”

However, Rabbi Joel Roth, of Rosh Yeshiva of the Conservative Yeshiva in Jerusalem and an expert in halacha, was not as surprised by the report. He spoke to The Sisterhood in Israel, where he said he has seen hospitals post signs warning Cohanim that a death has occurred on the premises.

“For a Cohen to be ‘in contact’ with the dead, it means he is in the same air space as the dead individual. He believes the use of special rooms to separate between the operating room and common areas in the hospital is not a bad idea. There needs to be sensitivity not only toward hospital visitors, but also toward doctors and staff who are Cohanim,” Roth suggested. He also pointed out that taking such precautions would naturally come up in Israel, but not in other places, such as America, where the majority of people at a hospital on any given day are most likely non-Jews. (Notions of and law relating to ritual impurity only apply to Jews).

Then, there is the issue of whether an aborted fetus is considered a dead person according to halacha. Sharzer told The Sisterhood he had never heard of contamination of a Cohen from a dead fetus. “I’ve never seen this kind of case in the Jewish bioethical literature.”

Roth suggested that the stage of the fetus’ development might have come into play in the case at Assuta. “Did it have the shape of a human body yet?” Roth wondered. According to Sharzer, an embryo is “like water” until 40 days gestation, as far as the Rabbis are concerned.

With all this discussion of halacha, it is important not to forget the very important fact that a woman who had just lost a potential child was lying on the operating table. Was anyone really asking what the implications of stopping the procedure would be for her?

Both Sharzer and Roth expressed concern for the woman’s welfare. They wondered (as I am sure most people would) why the procedure had not been booked for one of the sanctioned operating rooms in the first place, or why the woman could not have been moved to one of those rooms immediately (or at least the same day).

Even if no harm was done to the woman’s physical health by sending her home with the dead fetus still inside her, there was, I would expect, harm done to her emotional state. I can attest from personal experience, that suffering a missed abortion is a very hard thing. I cannot imagine having been prepped for my D&C (something I remember in detail even 20 years later, despite having gone on to experience the joy of giving birth to three healthy sons) and then being told it couldn’t be done and that I’d have to reschedule for another day.

You are in a kind of state of limbo when you have a missed abortion. It is impossible to really move forward with your grieving until the fetus is physically separated from you. The hospital clearly focused on the separation of Cohanim from the dead at the expense of the one far more important to the woman’s wellbeing. And the sad — and infuriating — thing is that it need not have been so.

Should Halacha Take Precedence Over Women's Health?

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