Abortion in Ancient and Bible Times by B. S. Talmey, M.D., 1916
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THE social problem of the limitation of the number of children is of modern date. Not that the limitation of offspring was not practiced at all times, among all peoples, in all countries. The interruption of pregnancy is of ancient origin. The practice is recorded in the history of the earliest nations. But at those times limitation of offspring did not constitute a problem.
In primitive society, among all nations, little value was placed upon the products of conception. During the period of historical antiquity, among the classic Greeks and Romans, children had no rights whatsoever, even after they were born; hence the exposure of children among the Greeks, and the "jus vitae ac necis," the right of the father over life and death of his children, among the Romans. On the other hand, among the votaries of the cult of the ancestors, such a thing as birth control was entirely unthinkable. Among them it was a matter of the highest pride and of the greatest happiness to have large families. Men and especially women would rather suffer death than be afflicted with childlessness. "Give me children, or else I die" (Genesis XXX, 1), says Rachel to Jacob.
Hence, while birth control was unthinkable among the Jews, among the Greeks and Romans, where even the born child had no rights, complete impunity for the practice of the destruction of the fetus in utero was a matter of course. The greatest philosophers of these nations recommenced these means to get rid of undesirable offspring.
Aristotle defends the practice of emptying the uterus of the fruit of conception, because the embryo is not human yet. Consciousness, he claims, which characterizes man has its entrance into the organism only with the first breath.
Plato teaches that the male embryo becomes animated on the thirtieth and the female embryo on the fortieth day after impregnation. Still he does not see anything criminal in induced abortion (De republica).
The sophist Empedocles maintains that the fetus becomes a living being only after birth with its first inspiration. The sophist Diogenes of Apollonia teaches that all beings are born without souls. They put on their souls only after birth. (Plutarch V, 15.)
Even in the Bible (Exodus XXI, 22) the fetus has not yet the rights of a human being. An accidental induction of abortion is punished by a fine, while accidental homicide is punished by banishment. At the times of the prophets, the fetus was considered an animated being. "Before thou earnest forth out of the womb I sanctified thee" (Jeremiah, 1, 5.)*
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The Talmudists, probably influenced by the doctrine of Plato, put the moment of the junction of body and soul on the fortieth day after conception. (Menachoth, 99a.) Still the induction of abortion is nowhere treated as a crime in the Talmudic jurisprudence. Flavius Josephus, on the other hand, (Contra Appionem) claims that the Jewish law forbids the Jewish woman to destroy the fruit of conception.
The Roman law does not prohibit the destruction of the fetus. The Justinian law says that the husband has no rights to the fetus, because it is only a part of the mother, "portio vel pars viscerum mulieris." Only after the child leaves the womb has the father a right in suits for damages. This principle of the fetus because it is only a part of the mother, portio vel pars of volitional abortion was widespread among the Romans. Tacitus (Annalia, XIV, 63) sees in this practice the cause of the decadence of the Roman empire.
With the advent of Christianity a great change took place in the status of the fetus. Christianity teaches that the soul enters the embryo in the male on the fortieth day and in the female on the eightieth day after impregnation. From this moment, the embryo, as a fetus animatus, had its legal rights. The canonical laws put on feticide the death penalty, just as on homicide. The interruption of pregnancy before this moment, i.e., the destruction of the fetus inanimatus, was punished by a fine only.
The right of the fetus to life in the early laws of all the germanic European nations was based upon this Christian doctrine of the soul of the embryo. This legal standing of the embryo remained in full force in most of the penal codes, to the present day.
*[From A Critical Commentary and paraphrase on the Old and New Testament and the Apocrypha by Patrick, Lowth, Arnald, Whitby and Lowman 1822 On Exodus 21:
Ver. 22. If men strive, and hurt a woman with child.]
Who interposed between the contending parties; or came perhaps to help her husband.
So that her fruit depart from her.] She miscarry.
And yet no mischief follow.] She do not die, as the Hebrew doctors expound it. (See Selden, lib. iv. de Jure N. et G. cap. 1. p. 461.)
He shall be surely punished, according as the woman's husband will lay upon him.] Her husband may require a compensation, both for the loss of his child, and the hurt or grief of his wife. Yet he was not to be judge in his own case; but it was to be brought before the public judges, as it here follows.
And he shall pay as the judges determine.] Who considered in their decree what damage was done; which was estimated by the hurt his wife received in her body; and by the lessening of her price, if she were a slave and might be sold. Unto which several other mulcts were added, to be given to the woman herself, as Mr. Selden observes in the place abovenamed.
Ver. 23. And if any mischief follow.] If the woman did die.
Thou shall give life for life.] In the interpretation of this, saith Jarchi, our masters differ. For some by life understand that which is properly so called, or the person himself: so that it should signify, being put to death: but others understand by it, a pecuniary mulct; that so much money should be paid to the heirs, as the person killed might have been sold for. The LXX. carry it to quite another sense; which is, that if a woman miscarry, and the child was not yet formed and fashioned, that the man who occasioned the miscarriage was to pay a fine. But if it were formed, then life was to be given for life. So that this whole law is to be understood of an abortion; and according to the condition of the abortive (not the life or death of the mother), so the punishment was to be inflicted. And thus Philo takes it, and hath a large discourse upon it. (See Selden, lib. iv. de Jure N. et G. cap. 1. p. 464. and Constantino L'Empereur in Bavakama, p. 200, &c.)]
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