by: Rabbi Jeremy Rosen - Last updated: 2006-03-31
Rabbi Jeremy Rosen
Recently, the European Court of Human Rights ruled that a woman left infertile after cancer treatment cannot use her frozen embryos to have a baby.
Natallie Evans started IVF treatment with her then partner Howard Johnston in 2001 following a diagnosis of ovarian cancer. The embryos were created and placed in storage. After the couple split up, Johnston withdrew consent for the embryos to be used. Ms. Evans went to the Strasbourg court after exhausting the UK legal process. The judgement said, "The Court, like the national courts, had great sympathy for the plight of the applicant who, if implantation did not take place, would be deprived of the ability to give birth to her own child."
Nevertheless it decided, in a majority verdict, that even in such exceptional circumstances, the right to a family life (set forth in article eight of the European Convention of Human Rights) could not override Mr Johnston's withdrawal of consent. It also ruled unanimously that the embryos did not have an independent right to life. UK laws require both the man and woman to give consent, and either party may withdraw that consent at any point before the embryos are implanted.
This is a good example of how Judaism differs from many other systems of legislation and 'morality'. It is true, as several rabbis I know like to assert, that Judaism is a system of obligations rather than rights. Now I'm no civil lawyer so I do not presume to talk about anything other than religious law and ethics. But in Jewish Law the very concept of an obligation implies a right, either a human right or a Divine right. I have an obligation to give the corners of my fields, the gleanings and the leftovers to the poor. But they, for their part, have a right to these. I have an obligation to provide certain things for my wife and she has the right to receive them or else require that she be given a divorce. Conversely a foetus has no rights or obligations but one is not allowed to harm it let alone destroy it as a general rule.
In many respects the obligations of Jewish civil law share a great deal with most civil systems. In both you can find reference to natural law and the idea that there are basic, human, rational standards ( though I as a sceptic am delighted that there are contrary opinions for I do not accept the concept ). Human life, the privacy of the human body, protection of the family, property rights, damages and rights of governments to impose fair and equal impositions are all there in Biblical law. Of course its origins are thousands of years old, but that does not mean the constitution is any less capable of interpretation and modern application than say Roman Law or William the Conqueror's.
But there is in Judaism another layer over and above the law best described by the phrase 'You must do that which is good and just (right) in the eyes of YHVH your God' (Deuteronomy 12:28, and Chronicles 31:20 adds the word 'true' for good measure). This is often taken to imply 'Imitatio Dei' ( Imitating God). As Maimonides puts it, 'As He is just so must you be.' But I would argue it means that there is a level of morality that is above the law. The law fixes the basic rules. Spirituality adds a higher dimension. Or at least it ought to. So one has obligations to God as well, which is why when we commit a crime against a human we must make it up and atone to that human and then to God.
There are two levels of obligation, civil and religious, and one may call on both of these to protect one's 'rights'. However there are two important qualifications and safeguards. One is that the obligation or, if you prefer, the right to life overrides virtually all laws except for blasphemy, murder and adultery. And, secondly, Jewish Law is predicated upon seeking answers from an expert to specific questions so that in one set of circumstances a strict ruling may be given and in another a lenient one, in answer to the exact same question. Except of course the prevailing circumstances may differ. Some might argue that this relativism, that morality has no standards and keeps on changing. But it is not. For the principles remain, just the application can vary.
All this is meant to give some basic background to the question of how we deal with modern issues. Biblical Judaism did not face issues of artificial insemination or test tube babies or clones. This does not mean that Jewish Law does not or cannot deal with them. But we will do so on the basis of our system and our laws whilst recognizing that, under alien authorities, 'The law of the land is the law.'
A rabbi, when faced with these issues, will bring several principles to bear. There is a principle that 'one can benefit a person even without his knowledge.' We would see the possible birth of a child in most cases as a benefit, even out of wedlock. There is a principle that it is an obligation to have children. Of course there are other issues--marriage as being the only way of effecting reciprocity between two people in such a situation is one. There is no legal principle giving paternal rights to a donor father who is unmarried to the mother. But there is indeed a moral obligation.
A child has obligations towards its parents of care and respect. Indeed, a community can even force a child to take care of its elderly or incapacitated parents. But legally parents have limited legal responsibility for their children ( educating them, marrying them off and teaching them to swim!) because, being representatives of God, they are assumed to reflect all the expressions of God's care for humanity onto their child. Which is preferable? In a society where people have little or no religious obligation and child abuse is rampant, then clearly society needs to enforce rights as well as obligations. But where parents accept religious values, their obligations towards their children do not need to be spelt out.
It is essential that a judge or rabbi be a caring sensitive human being. A judge in Jewish Law must be married and have children so that he will understand the stress and strains of life when making judgement. Even where one may have to carry out the law and convict a thief who stole to feed his family, a judge also has a religious obligation to ensure that the thief's family is fed.
The trouble with all of this is that, sadly, most religions have large numbers of followers who do not abide by their laws. And equally many religious judges apply the laws from positions of narrow and political perspectives. Many religious judges are all too susceptible to bribes, pressure and prejudice.
This is why in the end I believe that it is very valuable to have to juxtapose our own laws with others. Interaction can be productive and creative. Hiding behind one's own walls can be narrowing, not to say claustrophobic.
Issues such as this one forces us to evaluate our own responses, and to make sure that we do indeed follow the principles of doing that which is good and just and true, and that we are behaving in a way that glorifies our religion instead of bringing into disrepute or odium.
I regret that so few Jews are aware of the majesty of our legal and moral system and how it works, and automatically assume that their state civil laws are preferable. I would like to argue for greater familiarity with our way of doing things. And I think Ms. Evans may well have got a very different judgement had she done so!
Visit Jeremy Rosen on the web: www.JeremyRosen.com