The Israeli law of abortions (1977) legally authorises hospital committees to decide upon women's requests for selective abortion. One of the law's clauses determines that abortions can be approved in cases of an embryopathy. However, the law does not provide any clear definitions of those fetal ‘physical or mental defects’ in terms of severity and/or likelihood, which remain open to interpretation by the committee members. This paper aimed to determine which ethical methodologies are used by committee members and advisors as they face the dilemma of abortion approval due to mild to moderate possible embryopathy. Twenty interviews demonstrated that they use mainly a combination of deontology and a contextual–relational model. Their ethical considerations are both contextual such as the family's/woman's relational network and are influenced by the ethical principles of autonomy and in cases of late abortions the value of life. The findings reveal a paradoxical picture: on the one hand, committee members hold liberal perceptions and in practice abortion requests are very seldom rejected. On the other hand, the Israeli abortion law and practice of abortion committees is still problematical from liberal and feminist rights perspectives. This paradox is discussed further by reflecting upon the relevant theory as well as the Israeli context. The paper concludes by suggesting that within the specific Israeli sociopolitical climate the requirement for committee approval of what should be a private decision might be necessary in order to placate religious or other opposition to abortion.
- Abortion committees
- abortion counselling
- contextual–relational model
- embryos and fetuses
- ethics committees/consultation
- genetic counselling/prenatal diagnosis
- interests of woman/fetus/father
- mild–moderate/likely embryopathies
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- Abortion committees
- abortion counselling
- contextual–relational model
- embryos and fetuses
- ethics committees/consultation
- genetic counselling/prenatal diagnosis
- interests of woman/fetus/father
- mild–moderate/likely embryopathies
Prenatal diagnosis is extremely popular in Israel,1–5 and in many instances leads to selective abortions. The Israeli abortion law (1977) generally prohibits abortion. However, the law defines four clauses under which abortions will be approved:
The woman is under the age of 17 years or over the age of 40 years.
The pregnancy occurred as a result of criminal law-forbidden relations, incest or out-of-marriage relations.
The embryo/fetus may have a physical or mental defect.
Continued pregnancy may risk the woman's life or cause the woman physical or mental damage.
In addition, the law obligates the establishment of an abortion committee in each hospital. Each committee includes two medical doctors (one of them a gynaecologist) and a social worker. Every woman who wishes to stop her pregnancy is required to appear in front of a committee, which holds the legal authority to approve or reject such requests.
In this paper, we focus on the committees' process of decision making in cases of abortion requests due to mild to moderate or likely fetal defects. The third clause of the law is very ambiguous and does not provide any clear definitions of the ‘physical or mental defects’ (in terms of severity or likelihood of expression) that will justify an abortion, which thus remain open to interpretation by the committee members.6 In addition, the Israeli law is an exception as it allows late-term abortions (at all stages of pregnancy). However, it should be noted that the Israeli Ministry of Health addressed the issue of late abortion in two secondary legislations. The first (memorandum 76/94, issued 28 December 1994) institutes the establishment of ‘high-level regional abortion committees’—that discuss applications for late abortions (from the 24th week of pregnancy). Each ‘high-level committee’ includes five members: three ‘nominated by law’ (the head of the hospital, the head of the women's department and a senior social worker) and two other members who serve merely as advisors (thus have no vote in the actual decision: the heads of the neonatological department and the genetic institute). The second legislation (memorandum 23/07, issued 19 December 2007) presents those ‘high-level’ committees with some guidelines according to which late abortion will be approved in cases in which the embryopathy can be medically defined as ‘severe’ (or ‘moderate’ up to week 27) as well as substantially probable (probability of at least 30%). Those guidelines still do not provide clear-cut definitions of the classifications it presents,6 7 and as our research was conducted before the issue of the new regulation, we cannot provide any information regarding their effects.
According to the Israeli Ministry of Health (2010), in the years 2006–9, 98–99% of all abortion requests were approved by abortion committees; the majority, 92–97% of all late abortion requests were approved; 87–90% of all late abortions were performed on the basis of the third clause.8 In addition, statistical data show that late abortions are far more common in Israel (five to ten times) than in the USA and western Europe.4 9
Indeed, it has been claimed that the Israeli Jewish secular society is generally pro-eugenic,1–6 10 and that the Israeli abortion law enables abortions for embryopathic reasons even when its severity or probability of expression are mild or likely,2 6 11 and in cases of late abortions.6 9
Previous research stressed the socialising role of Israeli abortion committees, which subject women to forms of symbolic control through rituals of moral education,12 reflecting the stigma of abortion in a pro-natalist collective.12–14 However, in the case of an embryopathy, this role becomes irrelevant, presumably because the woman does not take the blame for acting “irresponsibly”, nor for not meeting the normative–collective reproductive requirements.2 6
This paper deals with committees' abortion decisions in cases of mild to moderate or likely embryopathies (as opposed to ‘severe’ or ‘clear’). In those cases one cannot rely totally on the medical findings, thus the decision may become not only medical but also ‘ethical’ by including other, more ethical considerations on which this paper focuses.
Examples of ‘mild–moderate or likely’ embryopathies (discussed in the interviews) include: treatable genetic conditions such as the mildest form of Gaucher and congenital deafness; the milder form of dwarfism (hypochondroplasia); some repairable heart defects; and an absence of a limb.6
It is important to clarify that we do not wish to imply that when facing an abortion decision due to an embryopathy, committee members and advisors do not relate first and foremost to medical considerations or that they do not relate to the abortion decision seriously. On the contrary, our findings indicate that abortion committees will do their best to achieve a clear and reliable diagnosis by referring the mother to further medical examination and by consulting relevant medical experts.
In this paper we explore how committee members and advisors (in both regular as well as ‘high-level’ committees) make their decision from an ethical point of view, meaning what ethical theories or methodologies are reflected in their decision-making process.
We will argue that they use a combination of two ethical methodologies: (1) deontology; and (2) a contextual–relational model.
While deontological ethics emphasises the adherence to moral principles/rules/duties as determining the rightness of an ethical choice,15 16 feminist moral reasoning has been identified with adherence to contexts and relationships (that can also be found in non-feminist bioethics, which turned from reliance on abstract theories to an emphasis on particular circumstances).16
Several feminists have criticised deontological ethics for emphasising abstract universal standards while focusing on the abstract individual. Those critics emphasise the necessity of attending the concrete and personal by reflecting on the contextual details of the situation as well as the individual's relationships and moral experiences.15–18
Relating to the abortion issue, while deontological moral reasoning approaches the issue abstractly by setting women's autonomy and rights against the embryo's/fetuses' value of life, feminist moral reasoning will approach the issue contextually by reflecting on the situational conditions (including the pregnant woman's wider social world (eg, partner, family members, friends, government agencies, religious affiliation and so on)), the ways in which the abortion decision may influence specific relationships and the ways in which the mother relates to the fetus.15–20
Nevertheless, it is important to note that feminist ethics goes further than concerning itself with contexts and relationships (as we do), to raising questions of power and politics. It emphasises patterns of domination and oppressive practices used against subordinate social and economic groups,16 particularly the unequal burdens borne by women.16 21 As such, feminist ethics recognises the complex hierarchical set of political and personal relationships and contexts that shape individuals' lives.16
The issue of selective abortion due to fetal anomalies poses a different ethical question compared with (mostly first trimester) abortion for other reasons. It can thus challenge both the deontological balance between the principles of (women's) autonomy and (embryo's/fetuses') value of life,22 as well as feminist attitudes and type of moral reasoning.23 Generally speaking, some of those who support the deontological notion of the ‘value of life’ nonetheless approve of selective abortions; while others, such as supporters of the disability critique, tend to present a rather feminist attitude by not objecting to abortion per se, but yet object to abortion due to fetal impairment, to which they relate as a form of ‘soft’/‘weak’ eugenics.22 23
Within the Israeli context, however, this type of specific objection to selective abortion does not exist. It was found that unlike their North American counterparts, even leaders of Israeli support groups and organisations for disability rights generally support prenatal diagnosis and selective abortion.10 This lack of objection to selective abortion also appeared among committee members and advisors. The issue of selective abortion does not appear as challenging in terms of their moral reasoning, as they tended to relate to the deontological principle of autonomy as well as women's context and relationships when discussing selective abortions.
As committees' deliberations are confidential we conducted a qualitative research using semistructured interviews with committee members and advisors.
Twenty representatives of the medical establishment who were members of (two physicians and eleven social workers) or advisors/recommenders of abortion committees (but not actual committee members: seven geneticists/genetic counsellors) were interviewed. Seven respondents were members of ‘regular’ (early) committees, six were members of ‘high-level committees’, and seven were geneticists/genetic counsellors. Interviews were conducted from January 2006 to April 2007. Respondents came from a variety of hospitals. Some were directly approached and some were detected through a ‘snowball’ sample (in which previous respondents refer the researcher to new possible respondents).
Interviews were conducted in Hebrew, usually held in the office of the respondent, and lasted between 1 and 2 h. When requested by the respondents, interviews were conducted over the telephone using the same interview protocol. The interviews were based on a predetermined set of questions. Even so, the order of the questions was flexible, and the interviewees could freely respond and raise arguments. Interviewees were specifically asked about their experience with actual cases of requested abortions due to mild to moderate or likely embryopathies, their conflicts and dilemmas, the actual decision that was made and their personal positions and considerations.
Interviews were tape recorded (with the respondent's permission), transcribed and analysed through thematic-coding process based on a constructivist version of the grounded theory method.24 Using a qualitative inductive content analysis method enabled us to detect recurrent considerations, ideas and ethical arguments that can be further interpreted in terms of the main categories of ethical methodologies.
Results: committee members' and advisors' decision making
A contextual–relational model
As part of their decision making, several of our respondents (mainly social workers) took the women's social and/or relational context into consideration.
Such a reference was indicated by a social worker, a high-level committee member, who expressed positive attitudes towards the ambiguity of the abortion law, which enables them to make their decision on a case by case basis while taking different contextual factors into account:
‘Every case is different […] we evaluate the family’s strength, its capacities to deal with a defect, what it says in terms of the specific family […] in terms of its support systems […]. What kind of children are there in the house? Sick? Crippled? I really wouldn't like for the law to restrict us.'
As this quotation suggests, committee members and advisors tend to take several contextual factors into consideration. For example, they evaluate family's ‘strength’ and capacities. They may also take into account more ‘objective’ familial difficulties such as whether there are other sick children or whether the parent himself has the same medical condition (eg, cleft lip). They may also relate to the mother's mental situation (which is also connected to the law's fourth clause) as a contextual factor:
‘I want to see who the person in front of me is […] how she understands, how she relates to it […] what is her level of anxiety, is she (emotionally) available.’
This quotation (made by the same committee member) shows that in cases in which the mother is in a difficult mental state, or feels that she cannot cope with the situation committee members takes that into consideration. Nevertheless, it is important to note that the mother's mental situation can also be analysed as reflecting the principle of non-maleficence or as reflecting a consequential ethical methodology.
Several committee members and advisors also related to relationships as a factor influencing their decision. First of all, they seem to pay attention to the way the woman relates to the fetus (eg, as unwanted):
‘Usually when women come to us […] they have already made the decision. […] If the woman is determined, if she knows she cannot handle a disabled baby, I am definitely with her. We are here to support that decision, not to raise more questions […] to be there for her in the difficult moments.’ (a social worker regular committee member)
In addition, a few of our respondents emphasised the importance of familial relationships as well as relational networks, which can serve as support systems (whether they have friends or family that will help them cope with the situation of having a different child) as can be seen in the first quotation.
Another contextual argument raised by a few of our respondents reflects a reference to the wider Israeli social context and more specifically its lack of an adequate social support system:
‘I lived for a little while in Netherland and in USA […]. They have a lot of institutions, daycares, social answers for different children. We don’t. So it's not fair to come to parents and tell them: “you need to live with this child” […] when we have no social answers.' (a social worker ‘high-level’ committee member)
Similar to our findings, Weiner and Hashiloni-Dolev,19 found that Israeli medical professionals' perceptions regarding the status of the fetus stem from the relevant familial contexts and relationships (mainly the mother's/parents' attitudes towards the fetus).
It is important to note that even though most of our interviewees did not relate to questions of justice, hierarchy or women's oppression (thus cannot be analytically related to feminist ethics), some of them did view their attention to contextual details and relationships as intended to help and serve women's interests.
There are two main contradictory principles relevant to the ethical dilemma of abortions, also common among our respondents: the women's autonomy (their rights and freedom of choice over their own body and fertility) and the value of human life, which support the exercise of potential human life (the value of the fetus' life as such and his right to live even if he has a congenital defect).22 25 26
An expression of the principle of autonomy apparent in the majority of our interviews is presented in the following quotation made by a social worker who serves as a ‘high-level’ committee member:
‘Until the fetus is born, I give full credit to the parents. They are adults […] and they know what’s good for them and for their child […] they are the ones who need to raise the child […] not me. I have a great deal of respect for them.'
Indeed, most of our respondents tended to value the women's autonomy more than the fetuses' value of life. However, the question of the fetuses' value of life was raised in late term pregnancies discussed in ‘high-level committees’, as mentioned by a committee advisor (a genetic counsellor):
‘For me, week 35 is a human being […]. Somehow it is obvious that it is much easier to terminate a pregnancy in week 12, 13 than […] after week 30. You really see babies being born. […] The period of pregnancy is very crucial.’
Therefore, it seems likely that abortions due to embryopathies will be rejected only in late stages of pregnancy, and only in borderline cases. Only then can the principle of the value of life overcome the principle of autonomy as well as the contextual–relational situation.
It is important to note, however, that some of our respondents did express difficulties in dealing with the ethical questions of abortions due to mild to moderate or likely embryopathies, which increased in cases of late abortions. A few of them even expressed criticism regarding for example, the law's ambiguity and the popularity of prenatal diagnosis in Israel (relating to the financial interests involved as well as the social implications).6
In summary, it seems that a distinction needs to be made between early and late abortions: in early abortions committee members and advisors are influenced both by the deontological principle of autonomy and by the context and relationships. On the other hand, in late abortions another ethical principle is considered—the value of life, which intensifies the ethical dilemma and ambivalence. Nonetheless, taking the fetus' right to live into consideration is often contradictory both to women's autonomy as well as their personal, social and relational contexts. Therefore, we would like to suggest that our findings may serve as one possible explanation for the fact that although the law is restrictive, abortion requests are very seldom rejected.27 Our findings seem to correspond to claims made by Gross,9 who identifies the Israeli abortion policy as concerned only with the interests of the mother and the Israeli law and social norms as denying fetuses (including late-term fetuses) any moral or legal rights, personhood or protection. Therefore, committees have difficulty refusing late-term abortion requests often based on the parents' determination to avoid giving birth to an impaired child; thus abortion committees function to restrain ‘wholly arbitrary abortion’ (9 454).
Surprisingly, the majority of our respondents did not relate to the question of ‘wrongful life/birth’ suits, as part of their considerations (this is maybe due to a relatively high number of social workers in our sample, who are less prone to be affected by those suits). Since the Israeli Supreme Court in the famous Zaitsov v. Katz, verdict (1986) recognised the legal claim of ‘wrongful life’,4 5 7 25 26 which was later excepted in a variety of different cases,26 it seems likely that committee members and advisors who would not want to expose themselves to the risk of law suits will tend to approve or recommend abortions even when the embryopathy is mild to moderate or likely.4 25 The tendency to approve abortion may thus reflect a fear of law suits.6 In addition, those rulings may have signalled a normative-cultural implicit message to committee members and advisors, suggesting some life is unworthy of living or wrongful.4 25 Those rulings may also be seen as reflecting an emphasis on the future child's dignity, body integrity and quality of life.26 This emphasis may be seen as relying on the constitutional law of the dignity of man and his freedom, and may in turn relate to a perception according to which as some life is wrongful, prevention of such life serves the fetus' interests,4 sparing him a lifetime of disability or rejection, a position expressed by several of our respondents.
While such a position may be interpreted as fetus focused, it is a limited one, as was claimed by Hashiloni-Dolev:5 ‘It seems that the only right the Israeli fetus holds is the right not to be born handicapped.’ (p. 138). Indeed, some scholars claimed that the message according to which some life is unworthy of living, undermines the principle of the (fetus') value of life.4 25 26 In addition, these rulings can be seen as connected to or should have been based on (among other negligence possibilities) women's autonomy and primary rights in this process of medical decision-making (reflected in the medical experts' obligation by law to supply the pregnant woman with all the relevant information that will enable her to reach an informed decision).4 7 11 25 26 Those messages may be interpreted as implicitly connected to our findings.
Our findings, which indicate that even in mild to moderate or possible embryopathies, and in cases of late pregnancies abortions are being approved and performed in Israel,2 6 9 may be further discussed in terms of a critical selective abortion perspective.6 Different scholars have identified the Israeli Jewish secular society as generally pro-eugenics;1–6 10 as a pro-natalist society on the one hand, but as a society that encourages the birth of only healthy children and thus promotes the use of prenatal diagnosis (which leads to selective abortion) on the other hand.1–6 10 In addition, there is no critical public debate regarding such abortions, fetal rights or depreciation of life with disability in Israel,4 5 while the Israeli abortion law and policy does not grant the fetus moral status and protection.9
The Jewish doctrine, although clearly opposing abortion, is generally less restrictive than the Catholic doctrine. According to some rabbinical authorities, Jewish law perceives full personhood as acquired only after birth, does not regard abortion as murder and is generally supportive of medical technologies.4 5 27 Indeed, according to Rapp,21 US Jews generally express positive views towards prenatal diagnosis and tend automatically to choose abortion after a positive fetal diagnosis. In conclusion, the tendency to approve abortion due to mild to moderate or likely embryopathies, may be explained not only in terms of context-sensitive and liberal perception, but also in terms of society's desire for the perfect child.1 2 6
Our research reveals a rather paradoxical picture: committee members and advisors hold liberal perceptions and in practice abortion requests are very seldom rejected. However, the Israeli abortion law and practice of abortion committees is still very problematical from liberal, feminist and human rights ethical perspectives.
The practice of abortion committees can thus be critically viewed in terms of the violation of women's basic rights over their own bodies: the right to bodily integrity and/or privacy and the right one has to decide on whether or not to serve another person's body.15 28 29 Tong15 further presents other feminist approaches (such as Alison Jaggar's), which overall resist medical interference with women's reproductive autonomy and support the idea that the pregnant woman herself should hold the sole legal and moral right to make the abortion decision, as she is the one mostly affected and properly situated to assess and weigh all the relevant factors and interests involved.
Regarding the Israeli context, the current legal situation and practice in Israel does not acknowledge abortion on demand, unlike other abortion laws in the western world (eg, the US law and the famous Roe v. Wade decision, which allows abortion on demand during the first trimester of pregnancy). Israeli feminist researchers identified the Israeli abortion law as patriarchal and patronising: as depriving women of their reproductive autonomy and bodily rights.12–14 They claim that in Israel, both women's as well as fetuses' rights are absent from the abortion discussion. Instead the abortion issue is defined as a collective demographic and/or social welfare-related issue, which needs to be formally regulated by the state.13 Abortion committees thus serve as a mechanism of social control within which Israeli women are being both used to achieve collective demographic (pro-natalist) goals as well as morally educated and supervised.12–14
Nevertheless, our current findings suggest that committees' interpretation and everyday application of the law in cases of mild to moderate or likely embryopathies do not attest to such a patriarchal position. Committee members and advisors emphasise women's autonomy and report trying to see the situation from the woman's point of view by relating to the contextual and relational details.
We would like, however, to suggest several directions for future studies that will further examine our claims. First we believe that a study that will focus on abortion requests for other reasons, not only fetal anomaly, might be useful. It will enable a clear picture regarding the level of committee liberalism and/or eugenic perception (if for example, it is found that they hold liberal positions only in cases of abortions due to embryopathies). In addition, research that will include more medical doctors is needed, and will enable a re-examination of the wrongful birth/life suits issue. Finally, it may be useful to study the personal experiences of Israeli women who go through abortion—do they experience the process of abortion approval as just, context sensitive and enabling or as demeaning and patriarchal.
A recently published paper dealing with 13 Israeli women who went through feticide, described a paradox that corresponds to our discussion: a;though women perceive themselves as the main decision makers and took the responsibility for the abortion decision (as those late abortions were approved by committees), yet women experienced little control over the decision. This is mainly due to an emphasis on the necessity of ending the pregnancy made by healthcare providers and family members, as well as the legal requirement to receive committee approval.30
Finally, we would like to suggest an additional practical observation. Israel is a country consistently trying to synthesise the Jewish ancient tradition with modern life.31 Therefore, the Israeli abortion law may be interpreted as representing an attempt to reach a bioethical consensus between fundamentally differing bioethical outlooks (secular and religious) over the issue of abortion. As religious parties are central actors in Israeli politics, such disagreements also hold political implications.31 We would thus like to suggest that in the current political climate in Israel, the requirement for committee approval might have its advantages for women's interests through a pragmatic status quo.6 On the one hand, the forbidding penal law of abortion, which prohibits abortion on demand and formally appoints abortion committees, reflects and paternalistically conveys an ideological message of pro-natalism and the stigmatisation of abortion, which mutes moral and religious (and maybe even collectivist: demographic or ‘educational’) objections to abortion,6 which may call for further regulation and restriction of abortion. On the other hand, the ambiguity of the law; the leniency of hospital committees,5 and in the case of mild to moderate or likely embryopathies, committees' reference to the women's autonomy as well as relational and contextual details (which suggests that the current ‘generation’ of abortion committees is rather liberal), reveals that in practice almost every Israeli woman who wishes to have an abortion will probably receive it.6 13 Thus feminist liberal objections to the law are also muted. Indeed, according to Amir and Shoshi13 as the current abortion practice is rather permissive, Israeli feminists fear that raising and politically discussing the issue may result in further restrictions of abortion. We would thus like to suggest that within the specific Israeli sociopolitical context, the requirement for committee approval of what should be a private decision might be necessary in order to placate religious or other oppositions to abortion, and thus may have its advantages for women's interests.
The authors would like to thank Professor Shimon Glick and Professor Aviad Raz for their useful comments and suggestion. They would also like to thank the anonymous reviewers for their helpful comments.
Competing interests None.
Provenance and peer review Not commissioned; externally peer reviewed.