Life of The Newborn

Rabbi Shabtai A. Rappoport

A. was married for several years, and was now pregnant for the first time. The forthcoming motherhood seemed to her a most timely development of her successful life, and unbroken happiness of her marriage. As this was her first delivery, A. was unaccustomed to the manner of the maternity ward, and was not over-worried when the baby was not brought to her immediately following birth. The doctor who had to break to her the bitter news that even though her baby was born alive, he would not survive more than a few hours, had another painful mission - making a strange request.

A.'s baby was anencephlic - that is he was born without most of the brain, and the spinal cord. In this condition the cranium - the portion of the skull where the brain should have been contained - is open or missing. Hence, his death was a matter of hours, or a couple of days at most. The doctor asked A. for her consent to use her baby's heart for transplanting into another infant's body, who was born with a malfunctioning heart, thus saving his life. After a short consideration A. gave her consent - at least another life will saved through her pregnancy. But then the doctor explained that the heart will be have to be removed before A.'s baby was actually brain dead, that is while he was still breathing on his own. This posed a most difficult problem. Does not this removal of the baby's heart consist of murder?

Usually the time that is left for a person to live, even if it is very short, has no relevance to the absolute prohibition against murder. Maimonedes states (Laws of Mourning 4/5):

"A dying person is considered alive in every aspect... and whoever touches him (to handle his body as if it was dead) is a murderer. Such a person is rather like a candle that is about to be extinguished, when one but touches it the candle will be put out. Thus whoever closes a dying person's eyes while he is dying is a murderer...".
A well known rule in halacha is that one cannot kill one person to save another person's life, unless the former actively risks the latter's life (Maimonedes, Laws of Murder 1/8-9). Hence, it seems obvious that however short the anencephalic baby's life expectancy is, it is forbidden to kill him even in order to save another baby's life, who could grow up and live normal life.

The rules stated above relate to an adult. The question is whether a newborn baby is different in any manner from an adult. Actually, the rule that one person's life cannot be saved by killing another, is illustrated by a case of a baby being born, while labor endangers the mother's life, where the only way to save the mother is by cutting the baby apart, killing him and extracting him from the womb, thus terminating the mother's labor. It is forbidden to do so. This is not because the baby's life takes priority over the mother's in any way. It is forbidden to kill the infant, because when any person, an adult or a child, is in deadly danger, his life may not be saved by killing another innocent person. A newborn is considered to be a person who may not be killed in order to save another, even his mother. The mishna (Nida 5/3) puts it vividly: "A newborn infant ... is to his father, his mother, and all his relative, exactly like a perfect bridegroom". However, a baby born with a syndrome as a result of which he cannot survive, is considered differently.

Talmud presents three categories of newborns. The first is a full term baby, who was born after full nine months of pregnancy. The second is a baby who was born between six and eight months, and the third is an infant born during the eighth or the ninth month. All three categories relate to infants born alive. An infant of the first category, is the one who is "like a perfect bridegroom" immediately following birth. In case he dies from whatever reason he is mourned like an adult.

An infant of the second category is an uncertainty. He may die because he is premature. If he survives for thirty days, he is considered to be like a baby of the first category. An infant of the third category is not considered to be alive at all, in several aspects that we shall examine. It is quite surprising that a baby born after six month is considered to have a better chance of survival than a baby born during the eighth or ninth month. Maimonedes (Mila 1/13) explains:

"An infant born during the eighth month, and his hair and fingernails seem to be perfect, is a well developed newborn, and is (really) a seven month baby (of the second category) that lingered extra time in the womb ... But if he was born with defective hair, and fingernails not complete as they should be, then he is considered to be a true eight month baby, that should have been born after nine months, and was born prematurely (a baby of the third category)".
There is no clear idea in today's pediatrics what is regarded as defective hair or incomplete fingernails, in relation to a premature baby. It might be possible that Maimonedes being a most noted physician himself, describes a method of diagnosing disorders suffered by premature babies by examining their fingernails and hair. Hence, the third category defines newborns that cannot survive.

Laws governing infants of the third category, who cannot survive, relate to several domains. The main ones are those of circumcision, murder, mourning, marriage, and transgressing laws in order to save human life.

Saving the lives of premature babies of the third category does not justify transgressing any other laws (Maimonedes Laws of Shabbat 25/6). Similarly even though the circumcision of a baby takes place on the eighth day of its life, although that day happens to be the Shabbat, a premature baby of the third category is not circumcised on Shabbat. The reason given to both laws is that such a baby is not considered to be alive. A murderer is given the benefit of doubt when capital punishment is considered. That is why one who murders a premature infant, even of the second category who does have a good chance to survive, but before the baby is thirty days old, is not punished (ibid. Laws of Murder 2/6. It should be noted that capital punishment is mandatory, according to biblical law, in case of homicide. Sentencing a person to that punishment entails an absolute certainty of the sentenced person's guilt. However, exemption from capital punishment, does not mean a license to kill. In cases where courts suspect that people murder in such a way to escape punishment, they, or the government, may impose any such punishment on them, as they see fit to deter them - ibid. 2/4). The relatives of an infant who was stillborn, or a premature baby who died within thirty days, or one who belongs to the third category, are not obliged to mourn them (ibid. Laws of Mourning 1/8). All these laws show that a baby who is born without a chance of survival, is legally quite like a stillborn one.

A possible deviation from this attitude we find in the laws of marriage. According to biblical law, a widow of a person who died childless may marry only his brother, in order to perpetuate the dead person's name. This law is called yibum. This applies only in case that the deceased was not survived by a descendant. If he was survived by a living descendant, even for a very short time, and the child died after him, his widow is exempt from yibum. In case the deceased's wife gave birth, after his death, to a stillborn baby, he was not survived by a child at all, and consequently yibum law apply Still, if the deceased's wife gave birth, after his death, to a premature baby, even of the third category, who lived even for a short time, she might be exempt from that obligation - according to biblical law (ibid. Laws of Yibum 1/5 according to the simple meaning of the text. However, there is a disagreement about the interpretation of this text of Maimonedes). An explanation is required as to why a premature baby of the third category might be considered to be a live baby only regarding the law of yibum.

It seems that there are two concepts of life in Jewish law. One defines life as a continuous process, with a beginning, and a possibility for a future. Saving life applies to this concept - it is the perpetuation of this process. Similarly circumcision is an ongoing covenant between the Jew and G-d. Hence it applies only to an ongoing process of life. Murder and mourning apply to the termination of that process. Regarding these areas, a premature baby, born without hope for future life, is not considered to be alive. Hence, he is not circumcised, is not mourned, his murderer is not punished, and no law may be transgressed in order to save his life. It follows from this reasoning that a baby born with a syndrome that precludes future life, is exactly like a premature baby of the third category, even though he might be a full term baby. A normal person, even upon his deathbed, had once life with a future, thus even his last minute is an ending of a process of life. A baby who is born without a chance of survival, has no future from the moment his life began, and therefore is not alive according to that concept.

The second concept of life is that of momentary life, life that may have no future, and consequently have no past. This is the life of a premature baby of the third category. There is no reason for the exemption from the law of yibum to require ongoing life of the child of the deceased. It is enough that the deceased was survived by a child even for one moment. Hence a baby who has life defined only by the second concept exempts his mother from the law of yibum.

There is no doubt that hope of future life depends on current medical achievements. A baby born with a malfunctioning heart has life with a future, because of a possibility of an organ transplant. On the other hand an anencephalic baby, has life with no future. It is arguable whether it is permitted to kill a baby with such life. All authorities agree that such killing is not murder, as quoted above from Maimonedes' Laws of Murder. Homicide as we saw before, is defined only as terminating an ongoing process of life, that is life that was defined by the first concept, and not the life of an anencephalic baby. Still, Rabbi Moshe Sofer, an outstanding rabbinical authority of the nineteenth century sides with the opinion that even though such killing is not defined as homicide, it is still forbidden Chatam Sofer Yore Dea Res 247). This prohibition to terminate momentary life, is probably rooted in a general halacha principle against needless destruction.

When we come to weigh the possibility of saving the life of the baby with the malfunctioning heart, who is considered to possess normal life nevertheless, against the killing of the anencephalic baby by removing his heart, before he is brain dead, we note that only murder is absolutely not allowed even in order to save life. But the killing of the anencephalic baby, even though normally forbidden, is not considered to be murder, and should be allowed in these circumstances, if there is absolutely no way to wait until the baby is brain dead. Thus A. could have given her consent to the heart donation from her baby.

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