Defining the Beginning of Human Life: Embryo Status and Abortion in Islamic and Jewish Legal Traditions

Abstract

The question of when human life begins is one of the fundamental issues at the intersection of religious ethics, law, and bioethics. This article examines the legal status of the embryo and abortion in Islamic and Jewish legal traditions through a comparative approach. The study analyzes primary religious sources, including the Qur’an and Hadith in Islam and the Torah and Talmud in Judaism, together with classical legal interpretations and contemporary scholarly debates. Using a comparative legal and textual methodology, it explores key concepts such as the gradual status of the fetus and ensoulment in Islamic law, as well as the position and legal status of the fetus in Jewish law. The findings indicate that both traditions regard the embryo as a developing form of human life worthy of protection, yet they differ regarding the stage at which full legal and moral status is attained. In Islamic law, fetal protection acquires greater significance following ensoulment, while contemporary discussions increasingly emphasize the importance of fertilization. In Jewish law, full legal personhood is generally associated with birth, and the fetus is understood primarily in relation to the mother. These differing approaches lead to distinct legal outcomes in matters such as maternal health and fetal abnormalities. The study concludes that, despite their differences, both traditions seek to balance the protection of fetal life with the preservation of the mother’s life and well-being.

1. Introduction

The family, as the smallest unit of society, has been the most important structure that has survived from the creation of humanity to the present day, although its characteristics have varied. In both Islamic and Jewish societies, the family has been an indispensable institution. Indeed, every society that has existed on Earth has been able to maintain its existence through the family. In Islam, marriage is given great importance. Undoubtedly, one of the most important reasons for marriage is ensuring the continuation of the lineage. One of the five fundamental principles of Islam is the preservation of the lineage. The preservation of the lineage depends on the protection of the rights of children. The most important of these rights is the right to life (Al-Shāṭibī n.d., p. 4). The Holy Qur’an (The Glorious Qur’an 1930), the fundamental source of Islam, demands the protection of the right to life of children (The Qur’an 30:21; 17:31).

In Judaism, ensuring the continuation of the species is among the fundamental religious duties given to humanity. Indeed, in the Torah, God’s command to humanity to multiply and fill the earth immediately after creating male and female forms the theological basis of this obligation. The command in the Book of Jeremiah, “Be numerous and do not diminish,” reveals that increasing the population is seen as a continuous religious responsibility (Jer 10). Similarly, the command in Genesis, “Be fruitful and multiply and fill the earth,”(Gen 1:27–28) further reinforces this understanding. Such texts demonstrate that, within Jewish tradition, procreation is viewed not merely as an individual choice but as a religious obligation to be fulfilled. In both religious traditions, human beings are considered to possess a unique dignity because they are created in the image of God (Ibn Ḥanbal 2001, vol. II, p. 519; Gen 1:26–28). Furthermore, the Ten Commandments, which express the essence of Judaism, prohibit taking a life, and other sacred texts contain explicit commandments against killing the innocent and blameless (Exod 20:13; Gen 9:6; Exod 23:7; Prov 6:17).

The question of when human life begins in the womb has long been a subject of debate in law, religion, philosophy, and bioethics. Beyond its theoretical significance, this issue has profound practical and normative implications, particularly for discussions concerning abortion, fetal rights, and the moral status of the embryo (Steinbock 2011). Advances in modern medicine have made it possible to monitor embryonic and fetal development with unprecedented precision and to intervene at various stages of pregnancy. These developments have prompted renewed reflection on classical religious and legal approaches to the beginning of human life. Consequently, determining when human life begins involves not only identifying a biological event but also addressing broader questions of personhood, moral status, and legal protection (DeGrazia 2008). Islamic and Jewish legal traditions provide a rich intellectual framework for addressing questions related to the beginning of human life. Drawing on sacred texts, interpretive traditions, and legal precedents, both traditions have developed sophisticated approaches to determining the moral and legal status of the embryo and the permissibility of abortion (Brockopp 2003). Despite important commonalities, Islamic and Jewish legal traditions differ significantly in their understanding of the beginning of human life. In Islamic jurisprudence, embryonic and fetal development is typically conceptualized in successive stages, and the moment of ensoulment is widely regarded as a decisive threshold in the attribution of full moral and legal status to the fetus (Sachedina 2009). In contrast, Jewish law traditionally holds that the fetus does not possess full legal personhood prior to birth. Rather, it is generally regarded as an entity whose status remains closely linked to that of the mother (Feldman 1968). These differences in opinion directly shape the ethical and legal approaches to the legitimacy of abortion.

A review of the existing literature on the beginning of human life, the fetus, and abortion indicates that studies in Islamic law have generally focused on inter-sectarian differences in opinion, debates concerning ensoulment, and contemporary fatwas. By contrast, the literature on Jewish law addresses the legal status of the fetus and the principle of maternal priority primarily through analyses of Talmudic texts and rabbinic interpretations (Dorff 2003). In addition to these observations, it should be noted that there are relatively few studies that systematically and comprehensively compare the two legal systems. In particular, comparative analyses of fundamental concepts such as the ontological status and legal position of the fetus remain a notable gap in the literature. Furthermore, a considerable proportion of existing studies are primarily descriptive in nature and fall short of developing a normative and analytically robust comparative framework.

This article comparatively examines the beginning of human life, the status of the fetus, and abortion within the frameworks of Islamic and Jewish law and aims to address the aforementioned gap in the literature. The primary research question concerns the conceptual foundations upon which these two legal traditions define the legal status of the fetus and how these definitions shape their respective approaches to the permissibility of abortion. In this context, the study provides a theoretical and jurisprudential analysis of the issue based on classical sources while also exploring the ways in which these approaches intersect with and respond to contemporary debates.

Methodologically, this study combines a comparative legal approach with textual analysis. With regard to Islamic law, the Qur’an, the Hadith literature, and classical juristic works within the Hanafi, Shafi‘i, Maliki, and Hanbali schools of Islamic jurisprudence constitute the primary sources of data; with regard to Jewish law, the Torah (The New American Bible n.d.), the Talmud (Rodkinson 1903), and rabbinic interpretations constitute the primary sources of data. These texts are examined not only within their historical contexts but also in light of contemporary interpretations, allowing for a more holistic understanding of the normative structures of both traditions. Furthermore, the study seeks to establish a comparative analytical framework by employing concepts such as ensoulment, legal personality, and legal protection as analytical tools. This study examines the issue within the framework of the Jewish tradition. In this context, it draws primarily on interpretations developed in the Mishnah, Talmud, and later rabbinic legal literature. The approaches of medieval Jewish jurists and modern responsa literature are examined as continuations of this rabbinic legal tradition. Therefore, the study does not aim to encompass all perspectives on the beginning of human life throughout the entire history of Judaism; rather, it focuses on the legal and theological approaches concerning the status of the fetus, ensoulment, and abortion within the rabbinic legal tradition. In this respect, the study adopts a historical–legal framework comparable to the classical jurisprudential traditions of Islamic law.

2. Conceptual and Theoretical Framework

2.1. The Concept of Human Life

The question of when human life begins is not merely a technical matter of determining at what stage a biological process qualifies as “life.” It also encompasses multifaceted issues concerning the value and legal status of human existence. Accordingly, the concept of human life is understood and interpreted differently across various disciplines. Although modern embryology generally recognizes that human biological life begins at fertilization, this does not necessarily imply that the fetus simultaneously acquires full legal personality. Indeed, contemporary bioethical literature draws an important distinction between biological life and legal personhood (DeGrazia 2008, pp. 182–85).

While secular ethical thought generally determines the beginning of human life on the basis of functional criteria such as consciousness, rationality, and the capacity to feel pain, natural law and religious ethical traditions assess the value of human life in terms of the ontological nature and inherent dignity of the human being. Accordingly, human life is understood not merely as a biological phenomenon but also as a moral and legal category to which sanctity and inviolability are attributed (Finnis 2011, pp. 221–25).

In Islamic and Jewish sacred texts and legal traditions, human life is considered an element of divine creation, thus possessing a metaphysical dimension. Furthermore, the understanding of when human life begins differs in some respects between the two religions. In Islamic law, the development of the fetus is evaluated through specific stages, with the infusion of the soul being a particularly important process (Sachedina 2009). In Jewish law, the fetus is understood to possess a distinct moral and legal status; however, full legal personhood is generally recognized only upon birth (Dorff 2003, pp. 58–60). This approach demonstrates that both religions’ legal systems address the beginning of human life as a matter encompassing biological, legal and existential dimensions.

Therefore, this study approaches the concept of human life not only in terms of biological origins but also as a multifaceted concept that determines the stage at which the fetus acquires moral protection and legal status. This perspective moves discussions on the beginning of human life beyond reductionist biological explanations and enables a comparative examination of the interpretive frameworks developed within different normative systems.

2.2. The Ontological and Legal Status of the Fetus

The ontological and legal status of the fetus is central to debates concerning the beginning of human life. Ontological status refers to the question of what the fetus is, whereas legal status concerns the rights, protections, and legal recognition accorded to it. Although these two dimensions are closely related, they differ significantly across modern legal systems and religious traditions.

According to modern embryology, human development is a continuous process that begins with fertilization and proceeds through implantation, organogenesis, and fetal growth. Clinically, gestational age is calculated from the first day of the last menstrual period and is conventionally estimated at 40 weeks (280 days). However, the actual period of biological development from fertilization is approximately 38 weeks (266 days) (Moore 2013; Sadler 2015).

The first eight weeks after fertilization are defined as the embryonic period, while the period from the ninth week until birth is defined as the fetal period. This scientific framework indicates that the 40- and 120-day thresholds do not correspond exactly to modern obstetric weeks. This discrepancy arises because the time calculations found in classical texts and the methods used to calculate gestational age in modern medicine are based on different starting points. Nevertheless, modern embryology contributes to a better understanding of the biological background of discussions concerning fetal development in the classical Islamic jurisprudential literature. However, biological stages alone do not determine the fetus’s religious or legal status.

In Islamic law, the existence and status of the fetus are generally understood within the framework of the stages of creation. Qur’anic verses concerning human creation emphasize the gradual development of the fetus, and classical Islamic jurisprudence (fiqh) assigns distinct legal implications to these developmental stages. The concept of ensoulment, in particular, plays a significant role in determining the legal status of the fetus. However, a careful examination of the classical literature reveals that interpretations suggesting that the fetus acquires value only after ensoulment do not fully reflect the complexity of the tradition. Indeed, many jurists accorded the fetus a certain degree of legal protection even before ensoulment and regarded abortion, to varying degrees, as reprehensible or prohibited (Brockopp 2003, pp. 25–39). Thus, in Islamic law, the status of the fetus is understood as developing progressively within a gradual process of creation grounded in the concept of fitra (human innate nature).

In Jewish law, the fetus is generally neither regarded as a fully independent person nor viewed merely as a part of the mother’s body. In Talmudic literature, the characterization of the fetus as “mere water” during the first forty days of gestation reflects its limited legal status during the early stages of development (Feldman 1968). However, the view that the fetus is closely connected to the mother and described as “mere water” should not be interpreted as implying that it lacks moral or legal value. Rabbinic literature contains a range of legal provisions concerning the protection and preservation of fetal life. Accordingly, the status of the fetus in Jewish law should be understood primarily in the context of its relationship with the mother rather than solely in terms of full legal personhood or the absence of legal status.

For the purposes of this study, the ontological and legal status of the fetus is not merely a theoretical issue. It constitutes the foundation for debates concerning the permissibility of abortion, the rights and limitations associated with the fetus, and the protection of the mother’s health and life. Therefore, differing conceptions of fetal status reflect broader ethical commitments and distinct legal perspectives.

3. The Beginning of Human Life and the Stages of Fetal Development in Islamic Law

The Arabic term janīn (fetus) is derived from the root j-n-n, which conveys the meanings of “to cover,” “to conceal,” and “to hide.” It is used to refer to the child developing in the mother’s womb (Fayyūmī n.d., 1:56; Bilmen 1999, 3:11). Although, in its lexical sense, the term encompasses the developing human being from fertilization until birth, al-Shāfiʿī noted that, in religious and legal literature, janīn is more commonly used to describe the stages following ʿalaqah and muḍghah, when distinct human features and physical characteristics begin to emerge (Al-Muzani 1998, 1:249).

Although the developing human being in the womb is generally referred to as a fetus from fertilization until birth, Islamic jurisprudential literature does not provide a clear and independent technical definition of the term specifically for the purpose of determining the legal status of the fetus. Islamic faqihs generally regarded the fetus as a distinct entity that, while dependent on the mother from the moment of conception, gradually develops into an independent human being. Nevertheless, the explanations offered by jurists concerning the legal rulings related to the fetus implicitly reflect their understanding of its nature and status. Indeed, although jurists predominantly employ the term janīn in its lexical sense, their discussions suggest differing views regarding its technical definition.

Ḥanafī faqihs maintain that certain legal rulings concerning a child in the womb become applicable only once the fetus has reached a particular stage of development and distinct human characteristics have become discernible (Al-Sarakhsī 1993, 3:213). According to Ḥanafī faqihs, the fetus, whose developmental process has not yet become clearly defined, is still considered a mass of flesh (muḍghah) and is not fully described as a “child” (Al-Kāsānī 1986, 6:414; 3:582). Mālikī jurists define the fetus as a being even before its full formation has taken place (Al-Bājī 1914, 7:80). Ḥanbalī jurists, on the other hand, generally define the fetus as the child in the mother’s womb (Ibn Mufliḥ 1980, 7:356). According to them, the emergence of human form at the muḍghah stage signifies the beginning of fetal characteristics (Ibn Qudāma 1992, 8:318), and stages prior to this are generally not regarded as falling within the scope of the fetus in a strict legal sense.

According to Ibn Rajab, Ibn Ḥajar, and Ibn al-Qayyim, however, fetal development begins from the ʿalaqah stage (blood-clot stage) (Ibn Rajab 2006, pp. 173–77; Ibn al-Qayyim al-Jawziyya n.d., p. 212; Ibn Ḥajar al-ʿAsqalānī 1970, vol. 11, p. 481). Hanbali jurists and some other Islamic legal scholars connected various legal rulings to the beginning of pregnancy, which they associated with the establishment of conception in the uterus and the initiation of embryonic development. This perspective indicates that, in classical Islamic legal thought, the legal recognition of the fetus was not viewed as beginning exclusively with ensoulment; rather, it was understood as a gradual process of formation that commenced with conception and continued through successive stages of development (Al-Khatib 2021, p. 157). In general, the definitions of the fetus provided by classical Islamic jurists encompass both the embryonic and fetal stages. Nevertheless, scholars such as Ibn Rajab, Ibn al-Qayyim, and Ibn Ḥajar include all developmental stages of the fetus within the legal conceptualization of pregnancy. Indeed, when compared with modern medical definitions, this more comprehensive approach finds substantial support (Pala 2010, pp. 887–88).

The fetus develops in the mother’s womb through various stages of growth. Some of these developmental stages are mentioned in the Qur’an and Hadith, and Islamic jurists examine these processes in relation to whether the fetus can be regarded as a living and independent individual. Examining fetal development in light of contemporary scientific data is important for determining the stage at which it may be considered alive, as well as for assessing whether classical approaches to abortion require re-evaluation.

In medical literature, the developmental process of the fetus in the womb is divided into two main periods. The period covering approximately the first eight weeks of pregnancy is referred to as the “embryonic” stage (Kocatürk 1994, p. 248), while the period from the third month until birth is referred to as the “fetal” stage (Atasü and Türkmenoğlu 1994, p. 23). However, both stages are generally encompassed within the broader concept of the “fetus.”

3.1. Approaches Based on the Qur’an and Hadith

Islamic conceptions of the beginning of human life are grounded in Qur’anic verses that describe the stages of human creation. The Qur’an states that human beings were created from “water” (semen) (The Qur’an 36:77). And outlines the stages of embryonic development as follows: “O mankind! If you are in doubt about resurrection, then indeed We created you from dust, then from a drop of fluid, then from a clinging clot, then from a lump of flesh, formed and unformed, so that We may make it clear to you…” (The Qur’an 22:5). Another verse elaborates these stages in greater detail: “Then We placed him as a drop in a secure place (the womb). Then We made the drop into a clinging clot, and We made the clot into a lump of flesh, and We made the lump of flesh into bones, and We clothed the bones with flesh; then We developed him into another creation. So blessed is Allah, the best of creators” (The Qur’an 23:12–14).

The stages of human creation mentioned in the Qur’an are generally identified as follows: nuṭfah (a drop of semen), ʿalaqah (a clinging clot) (The Qur’an 36:77), which corresponds to the embryonic period up to approximately the eighth week (Şeftalioğlu 1996, p. 119), muḍghah (a chewed-like lump of flesh), corresponding to the fetal period(Şeftalioğlu 1996, p. 133), followed by the formation of bones (ʿiẓām) and the covering of bones with flesh (laḥm) (The Qur’an 23:12–14). These stages are interpreted as a gradual ontological transformation in human development.

The Qur’an also refers to the ensoulment process, as in the verse: “Then He fashioned him and breathed into him of His spirit…” (The Qur’an 32:7–9). Since the Qur’an does not specify the exact timing of ensoulment, one of the central debates in Islamic thought concerns when the soul is breathed into the fetus.

In a well-known hadith narrated by ʿAbdullāh ibn Masʿūd, the Prophet Muhammad (peace be upon him) said: “The creation of each one of you is gathered in the womb of his mother for forty days as a drop, then it becomes a clinging clot for a similar period, then a lump of flesh for a similar period. Then an angel is sent to him, and the soul is breathed into him…” (Al-Bukhārī 2001, al-Qadar, 1; Muslim ibn al-Ḥajjāj 1956, al-Qadar 1:2643; Al-Tirmidhī 1997, al-Qadar 4:2138). Based on this narration, many jurists conclude that ensoulment occurs on the 120th day of pregnancy.

3.2. Evaluation of Abortion in Islamic Law

A significant number of Islamic jurists have regarded ensoulment as the primary criterion for recognizing the fetus as a fully living human being. Within this framework, they have discussed the legal and moral status of the fetus prior to ensoulment and examined the stages of fetal development in the womb in light of scriptural sources in order to determine the legal ruling on interventions during pregnancy.

Islamic jurists generally agree that once ensoulment occurs, the fetus acquires full human status, along with dignity and inviolability. Due to the absence of an explicit and direct ruling on abortion in the Qur’an and Sunnah, divergent opinions have emerged among jurists. Based on general textual principles such as the prohibition of unlawful killing in the Qur’an, as well as financial penalties in hadiths related to causing miscarriage (Al-Bukhārī 2001, Kitāb al-Farāʾiḍ, 11; Al-Tirmidhī 1997, Kitāb al-Farāʾiḍ, 19), jurists have developed different legal assessments regarding abortion.

Within the Ḥanafī madhhab, three main approaches can be identified. According to the first view, terminating a pregnancy from the moment of conception is considered ḥarām (forbidden). The second view holds that abortion may be permissible up to 120 days, corresponding to the period of ensoulment. The third view allows abortion within the first forty days of pregnancy (Tüfekçi 2013, p. 135).

Among Ḥanafī jurists, Qāḍīkhān argues that the prohibition of abortion begins at the moment of fertilization. According to him, since the fetus has the potential to develop into a fully formed human being once conception occurs, abortion without a valid legal justification cannot be considered permissible (Al-Sarakhsī 1993, 26:38; Bilmen 1999, 3:149).

Fuqahāʾ who adopted the second view maintain that during the muḍghah stage, when the formation of organs is not yet clearly distinguishable (Al-Kāsānī 1986, 7:325; Ibn ʿĀbidīn 1966, 6:590), the fetus has not yet fully attained a clearly defined fetal status. Accordingly, in this approach, the prohibition of abortion begins at the stage when the organs of the fetus become distinctly formed. Indeed, within the Ḥanafī madhhab, terminating a fetus with partially formed organs is treated in a manner similar to terminating a developing human being (Ibn Nujaym n.d., 1:225).

Islamic fuqahāʾ generally agree that abortion after ensoulment is absolutely prohibited, as it constitutes the unlawful taking of a human life. Within the Shāfiʿī madhhab, however, different opinions exist regarding abortion. According to one view, the fertilized egg represents the initial stage of pregnancy and contains the potential for human life; therefore, any interference with its development is regarded as a violation of human life (Al-Ghazali n.d., 3:204). Another view considers abortion permissible within the first forty days of pregnancy (Al-Bujayrimi 1995, 4:392), while yet another permits it before ensoulment (Al-Qalyubi 2005, 4:160; Al-Ramli 1969, 8:442).

The Mālikī madhhab considers abortion prohibited from the fortieth day of pregnancy onward. This is because Mālikī fuqahāʾ accord the same legal consideration to the fertilized egg (nuṭfah) as to the developing fetus, provided it has the potential to progress to the muḍghah stage (Al-Hattab 2007, 5:133).

Ḥanbalī scholars such as Ibn Taymiyya, Ibn al-Jawzī, and Ibn Rajab argue that abortion is not permissible once the fetus reaches the ʿalaqah stage. This view is based on the understanding that fertilization has already occurred and that the developing structure has begun to take form. According to these scholars, the fertilized stage cannot be equated with non-impregnated sperm, since the post-fertilization structure already contains the potential for human life.

Contemporary Islamic jurists generally adopt two different approaches regarding abortion. One group permits abortion under certain conditions, arguing that the fetus has not yet attained full human status during the early stages of pregnancy. Ali al-Tantawi maintains that spouses have the right to terminate a pregnancy in its initial stages (Al-Tantawi 1987, p. 312), while Muhammad Salama Madkur argues that it is permissible to prevent the development of the embryo before its implantation in the uterus. Mustafa al-Zarqa and Muhammad Saʿid Ramadan al-Buti likewise regarded abortion as permissible under certain conditions during the early stages of pregnancy, when the fetus’s organs have not yet developed. According to their view, abortion becomes prohibited once organ formation begins (Al-Zarqa 1939). Al-Buti also permits abortion within the first forty days of pregnancy, drawing an analogy with the practice of coitus interruptus (ʿazl) in cases where the fetus has not yet acquired distinct human features (Al-Buti 1988, p. 85).

In contrast, the majority of contemporary scholars maintain that human life begins at fertilization and therefore regard abortion as impermissible from the very beginning of pregnancy. Scholars such as Wahbah al-Zuhayli, Yusuf al-Qaradawi, Mahmoud Shaltut, and Hayrettin Karaman emphasize that the fetus represents a form of human life deserving protection from the moment of fertilization and consider interventions aimed at terminating it to be a violation of its right to life (Al-Zuhayli 1985, 3:556–557; Al-Qaradawi 1993, 2:547; Shaltut 1983, p. 292; Karaman 2026). In light of contemporary medical findings concerning embryonic development, the view that prioritizes the protection of fetal life from the moment of fertilization appears to rest on a more comprehensive ethical and biological foundation.

In cases where the mother’s life is in serious and imminent danger, and continuation of the pregnancy would result in her death, abortion may be permitted to preserve the mother’s life, particularly when the fetus is at such an early stage of development that it cannot survive outside the womb. This approach is based on the general legal principle in Islamic law of “choosing the lesser of two evils” (Erfis 2000, pp. 435–36).

Similarly, intervention may be permitted in cases of ectopic pregnancy, in which the fetus cannot develop normally and the mother’s life is at risk. This approach is grounded in the principle that the mother’s certain and viable life should not be sacrificed for the sake of preserving a fetal life whose survival is uncertain (Bilmen 1999, 3/149).

According to Hanafi jurists, when the fetus is in the stages of ʿalaqa and muḍgha, before its organs have become clearly differentiated, and the mother faces a health condition that seriously threatens her life, abortion may be permitted following the necessary medical examination and assessment by qualified physicians. In such circumstances, the procedure is not considered jināya (a legally punishable offense against the fetus) (Ibn ʿĀbidīn 1966, 1/302; 5/591).

4. The Beginning of Human Life and Embryonic Development in Jewish Law

The earliest significant account of the origin of human life in Jewish sacred literature appears in the Book of Genesis, which describes God’s creation of humankind. According to the text, God “formed man from the dust of the ground” and then “breathed into his nostrils the breath of life,” whereby the human being became “a living soul” (Gen 2:7). This narrative suggests that human life acquires its full significance not merely through physical formation but through the divine breath imparted by God. Accordingly, breath is understood not only as a physical phenomenon but also as a theological symbol representing the divine source of life.

A similar understanding appears in the account of the Flood, where it is stated that “everything on dry land in whose nostrils was the breath of life died” (Gen 7:22). This passage establishes a close relationship between breath and life, presenting the presence of breath as a sign of life and its absence as an indication of death. Indeed, in classical Jewish thought, respiration has often been regarded as one of the fundamental markers of independent human existence.

At the same time, the Torah does not provide a clear and systematic explanation of when embryonic life begins. Rather, discussions concerning the beginning of human life have largely emerged from legal deliberations on issues such as abortion, the status of the fetus, and the protection of the mother. Consequently, in Jewish law, the ontological and legal status of the fetus has been shaped not directly by the creation narrative itself but by rabbinic interpretations and legal rulings concerning abortion. This demonstrates that, within Jewish thought, the question of when human life begins is approached not merely as a biological issue but also as a theological and legal one.

In Jewish law, the full legal status of human life is generally associated with birth. According to this understanding, the presence of the soul (neshamah) in the fetus before birth is not, by itself, sufficient for the fetus to attain the status of an independent human being.(Gen. Rab 34:10) Although many Talmudic references to the neshamah are homiletic and interpretive in nature, some rabbinic traditions maintain that the soul is imparted at conception (the Babylonian Talmud: Sanh. 91b; Nid. 31a). Nevertheless, this is not generally understood to confer full legal personhood upon the fetus. Rather, it may signify the beginning of biological life or the emergence of vitality.

Rabbinic literature describes the embryo during the first forty days after conception as maya be-alma (“mere water”) (m. Nid. 3:7; Yev. 69b). From the forty-first day onward, and until the pregnancy becomes clearly recognizable, the fetus occupies an intermediate stage of development (m. Nid. 3:7). Moreover, a pregnancy is not regarded as fully established until approximately the third month. (Neusner 2002, t. Nid. 1:7; m. Nid. 1:4) Consequently, while the fetus possesses considerable moral and legal value, Jewish law generally does not recognize it as an independent nefesh prior to birth (Rashi and Yad Ramah on b. Sanh. 72b).

At the same time, the fetus possesses considerable moral significance as a potential human life. Jewish law therefore distinguishes between a born person and a fetus without treating the latter as a mere biological entity (the Babylonian Talmud: Sanh. 84b). This distinction has also shaped the Jewish legal approach to abortion. While the fetus is accorded substantial value and protection, the life and well-being of the mother are generally given priority when the two come into conflict. Accordingly, the fetus occupies a unique legal and moral status in Jewish law: it is neither equivalent to a born person nor reducible to a simple biological organism, but rather is recognized as a developing human life possessing significant moral worth.

4.1. Approaches Based on the Torah and Talmud

The application in the Mishnah of ritual purification regulations (Adler and Grunwald n.d.; Lev, 12:2–5) originally prescribed for childbirth to certain cases of miscarriage (m. Nid. 3) may be regarded as an indication that Jewish law attributes legal and religious significance to the fetus from a particular stage of development onward.(Danby 1933) The inclusion of a woman who has miscarried within the same legal framework as a woman who has given birth suggests that the fetus is viewed not merely as biological tissue but as an entity that has begun to acquire human characteristics. For a fetus to fall within this category, however, it must be sufficiently developed and possess a recognizable human form.

By contrast, the exclusion of anomalous or non-viable fetuses from these provisions indicates that the status of the fetus in Jewish law is determined not solely by conception itself but also by the degree of fetal development and the potential for continued life. This approach treats the emergence of human characteristics as an important criterion for the attribution of legal consequences.

Accordingly, the relevant Mishnah passages suggest that discussions concerning the status of the fetus take embryological development into account. Distinctions are drawn between different stages of development, such as the unformed fetus (shefir), the partially formed embryo (meruqqam), and the fully developed fetus possessing a recognizable human form (mi-zurat adam). These classifications indicate that the legal and moral value of the fetus is evaluated within a gradualist framework rather than through a single, fixed developmental threshold (m. Nid. 3).

Rabbinic literature contains various discussions concerning fetal development and the stages at which the fetus becomes recognizable as male or female. One such tradition, attributed to R. Samuel, portrays him as having expert knowledge of embryological development and as being capable of determining the age and developmental stage of a fetus. He maintained that the primary stages of fetal formation were completed by the end of the sixth week of pregnancy (the Babylonian Talmud: Niddah. 25b). The same authority also held that the sex of the fetus could not be determined with certainty before the fourth month of gestation. Other rabbinic discussions associate the recognition of male and female fetal development with different stages, including the forty-first day for a male fetus and the eighty-first day for a female fetus. These accounts should not, however, be understood as representing a single, universally accepted rabbinic position. Rather, they reflect the diversity of rabbinic discussions concerning fetal development, in which empirical observations were also accompanied by an awareness of uncertainty and the possibility of error (the Babylonian Talmud: Niddah. 30b).

Rabbinic sources also provide more detailed descriptions of the developmental stages of the fetus. In this context, it is stated that soft tissues develop before bones (Gen. Rab 14). Taken together, these observations indicate that discussions of embryology in the Talmud and rabbinic literature were not limited to theological or metaphysical explanations. Rather, the developmental stages of the fetus and issues such as sex differentiation were explained on the basis of the observational and experiential knowledge available at the time. Although some of these descriptions do not fully correspond to the findings of modern embryology, they nevertheless demonstrate that fetal development was regarded as an important consideration in legal and moral evaluations within Jewish thought (Freedman and Simon 1939, Gen. Rab. 14; the Babylonian Talmud: Nid. 23b–24b; Nid. 25b; Nid. 30b)).

The passage of Exodus 21:22–23 is widely regarded as one of the foundational texts in Jewish law concerning the legal status of the fetus. According to this passage, if a pregnant woman is injured and a miscarriage results, the offender is subject to financial compensation if no further harm occurs. If, however, more serious harm follows, the principle of lex talionis (“life for life, eye for eye”) applies. Jewish legal tradition has generally understood this distinction as indicating a difference in legal status between a fetus and a born human being. In rabbinic and later responsa literature, the passage has often been interpreted to mean that the offense of homicide applies only to the taking of an independent human life. Accordingly, although abortion is generally regarded as a prohibited act, it is not typically classified in the same legal category as the killing of a born person.

This approach reflects the broader understanding in Jewish law that, while the fetus is entitled to legal protection and possesses significant moral value, full legal personhood is acquired only at birth. Consequently, classical Jewish law does not generally equate the beginning of human life with either fertilization or fetal existence. Rather, although the fetus is accorded considerable legal and moral significance, it is not regarded as having the same legal status as a born human being. This interpretation has played a central role in shaping subsequent Jewish legal discussions concerning abortion and fetal rights (Schenker 2008, pp. 271–72).

4.2. Debates on Abortion in Jewish Law

In Jewish legal tradition, the status of the fetus is generally understood within a gradualist framework of development. In a discussion recorded in the Babylonian Talmud, Rav Ḥisda states that, if a woman is pregnant, “until forty days [the fetus] is merely water” (the Babylonian Talmud: Yev. 69b). This statement indicates that, during the earliest stage of gestation, the fetus was not regarded as possessing the same legal status as a fully developed human being. Although the fetus is accorded greater legal and moral significance after the fortieth day, it is generally not considered an independent nefesh until birth.

At the same time, the fetus is not viewed as a mere biological entity. Rather, it is regarded as a developing life with the potential to become an independent human being and is therefore entitled to legal protection. Nevertheless, Jewish law maintains that full legal personhood is acquired only at birth. This understanding reflects the broader view that the fetus occupies an intermediate position: it is neither equivalent to a born human being nor devoid of value, but instead possesses a unique legal and moral status as a potential human life.

Accordingly, Jewish legal discussions concerning abortion and fetal rights take into account both the potential value of the fetus and the central importance of the mother’s life. Within this framework, birth remains the primary criterion for the acquisition of full legal personhood and independent human status.

In Jewish law, discussions concerning abortion are rooted in the Torah’s provisions regarding the protection of human life and their subsequent rabbinic interpretations. In this context, the verse, “Whoever sheds the blood of a human being, by a human being shall his blood be shed; for in the image of God He made humankind” (Gen. 9:6), is regarded as a fundamental expression of the sanctity and inviolability of human life. In the Talmud, Rabbi Ishmael interprets this verse as extending to the killing of a fetus and argues that such an act constitutes a grave transgression for the descendants of Noah (the Babylonian Talmud: Sanh. 57b). This interpretation, however, represents one strand of rabbinic reasoning rather than a universally accepted position within Jewish legal tradition.

At the same time, Exodus 21:22–23 presents a different legal framework concerning the loss of a fetus resulting from an assault on a pregnant woman. According to this passage, if the mother survives, the offender is liable only for monetary compensation rather than capital punishment. Rabbinic jurists have traditionally understood this ruling as evidence that a fetus does not possess the same legal status as a born human being. Accordingly, classical Jewish law generally maintains that full legal personhood and independent human status are acquired only at birth (m. Ohal. 7:6; the Babylonian Talmud: Sanh. 72b; Yev. 69b). These biblical provisions were further elaborated by major rabbinic commentators in different ways. Rashi, in his commentary on Exodus 21:22–23, interprets the provision concerning the monetary compensation for the loss of the fetus and distinguishes the harm suffered by the woman from the legal consequences associated with the loss of the fetus. Ramban likewise discusses the same passage and further examines the legal implications of fetal loss. Their interpretations illustrate that the legal status of the fetus was developed through an ongoing process of rabbinic interpretation rather than through a single, uniform position.

One practical manifestation of this principle appears in the laws of conversion (giyur). According to Jewish law, when a pregnant woman converts to Judaism, the child subsequently born is not required to undergo a separate conversion process. This is because the fetus is regarded as part of the mother’s body at the time of conversion and is therefore not considered to possess an independent legal identity (the Babylonian Talmud: Yev. 78a; (Karo 2015, Yoreh De‘ah, 268:6). This ruling reflects the broader understanding that legal personhood and independent individual status begin only with birth.

In Jewish law, the fetus is regarded neither as a mere biological entity nor as a being possessing the same legal status as a born human person. Rather, it occupies a unique legal and moral position: it is closely associated with the mother’s body, entitled to protection, and recognized as possessing the potential to become an independent person in the future. This approach reflects an intermediate status within Jewish law, whereby the fetus is accorded significant value and protection, while full legal personhood is reserved for the period following birth ((Lauterbach 1933, Nezikin 88); the Babylonian Talmud: Yev. 78a; Shulḥan Arukh, Yoreh De’ah 268:6).

At the same time, because the fetus is recognized as a developing human life with future potential, arbitrary or unjustified abortion is generally prohibited. Consequently, interventions affecting the fetus are subject to moral and legal restrictions. However, the fact that the fetus is not accorded the same legal status as a born person allows Jewish law to permit abortion under certain circumstances. One of the principles relevant to rabbinic discussions is the prohibition against unnecessary bodily harm (ḥabbalah). Within this framework, intervention may be permitted when it is necessary to protect the mother’s health or well-being (the Babylonian Talmud: B. Qam. 90b). Since the fetus is generally regarded as part of the mother’s body prior to birth, abortion may be permitted in certain situations when necessary to protect the mother’s physical or psychological well-being. This approach seeks to balance the protection of fetal life with the principle that the life and health of the mother constitute a paramount legal value.

Jewish law not only permits abortion under certain circumstances but may also regard it as obligatory, particularly when the mother’s life is endangered. According to the Mishnah, if a woman’s life is threatened during childbirth, the fetus may be dismembered and removed in order to save her, because the mother’s actual and existing life takes precedence over the potential life of the fetus. However, once the fetus’s head—or, according to some interpretations, the greater part of its body—has emerged during delivery, it is regarded as an independent nefesh, and intervention is no longer permitted, even for the purpose of saving the mother (m. Ohal. 7:6).

Some rabbinic authorities, however, have argued that intervention may remain permissible even during the final stages of labor when necessary to preserve the mother’s life (Zvi Hoffmann n.d., Melammed Le-Ho’il, II: YD, no. 69) In such cases, the physician is understood to be acting in fulfillment of the legal obligation to preserve human life.

Maimonides provides a more systematic legal justification for this position. In the Mishneh Torah, he explains that when a fetus endangers the mother’s life during a difficult labor, it may be classified as a rodef (“pursuer”) and may therefore be removed in order to save the mother’s life. However, once the fetus’s head has emerged from the birth canal, it may no longer be harmed, since “one life should not be sacrificed for another” (Maimonides 2000, Hilkhot Rotze’ah u-Shemirat Nefesh 1:9). Consequently, although the fetus acts without intention, it may nevertheless be terminated when it poses a direct danger to the mother’s life. The removal of the threat is therefore considered legally justified the approach of Judaism cases involving severe genetic disorders, fatal fetal anomalies, or conditions incompatible with postnatal survival. The CJLS has also recognized that continuing such pregnancies may impose a substantial psychological and emotional burden on the mother. These responsa treat maternal mental health as a significant legal consideration, particularly when the fetus has little or no prospect of survival or is expected to be born with profound congenital abnormalities (Reisner 1995). In such cases, the preservation of the mother’s psychological well-being may justify the termination of pregnancy. Similarly, some contemporary Jewish legal authorities have permitted abortion in pregnancies resulting from traumatic circumstances such as rape or incest, taking into account the severe psychological harm that continuation of the pregnancy may cause to the mother (Waldenberg 1985, Tzitz Eliezer 13:102).

This demonstrates that Jewish law evaluates abortion not solely on the basis of the biological status of the fetus, but also in light of the mother’s psychological, emotional, and social well-being. Consequently, modern Jewish legal interpretations generally regard maternal mental health as a value deserving protection alongside physical health.

Some authorities in Jewish legal literature have extended the grounds for permitting abortion beyond direct threats to the mother’s health and have also taken into account the welfare of existing children. Accordingly, it has been argued that if a new pregnancy substantially reduces a nursing mother’s ability to breastfeed and thereby jeopardizes the health of her infant, abortion may be permitted in order to safeguard the child’s well-being (Beit Yehudah 1746, p. 14). This position illustrates that Jewish legal deliberations concerning abortion are not based exclusively on the legal status of the fetus but may also take into account the health and welfare of the mother and her existing children.

Modern Jewish legal authorities have adopted different approaches regarding the prohibition of abortion. Isser Yehudah Unterman, Immanuel Jacobovits, Shlomo Zalman Auerbach, Joseph Soloveitchik, and Moses Feinstein, drawing upon Rabbi Ishmael’s interpretation of Genesis 9:6 (the Babylonian Talmud: Sanh. 57b), maintain that the prohibition of abortion is fundamentally rooted in the Torah. By contrast, Ovadiah Yosef and Yitzchok Lichtenstein argue that although the prohibition ultimately derives from Torah principles, its legal force is closely connected to the stage of fetal development. According to this view, the prohibition assumes greater severity during the later stages of pregnancy, whereas early-term abortion may be understood primarily within the framework of rabbinic law. Consequently, abortion may be permitted under certain circumstances, particularly when the mother’s physical or psychological well-being is seriously threatened.

For this reason, it is difficult to characterize Jewish law as adopting a single, uniform position on abortion (Dudziak et al. 2025, p. 14). Moreover, the Torah contains no explicit provision that directly prohibits abortion. Rather, Jewish legal rulings on the subject have largely developed through rabbinic interpretation, taking into account factors such as fetal development, the life and health of the mother, and, in some rabbinic discussions, the welfare of existing children and the family. In cases where the mother’s life is seriously endangered, the underlying principle in many rabbinic discussions is that an existing and endangered human life may be given precedence over a potential life that has not yet attained independent legal status. This principle does not deny the value or moral significance of fetal life; rather, it reflects the distinctive legal status accorded to the mother as an existing nefesh. Accordingly, Jewish legal reasoning seeks to protect fetal life while also recognizing circumstances in which the preservation of the mother’s life takes precedence (Mecham and Lipinsky 2022).

5. Comparative Analysis

It is difficult to characterize Islamic and Jewish legal traditions as sharing a single, historically unchanging, and universally binding approach to the beginning of human life, the legal and moral status of the embryo, or the permissibility of abortion. Within both traditions, these questions have been addressed across different historical periods by diverse legal schools and interpretive authorities. As a result, varying assessments have emerged concerning such issues as the stages of embryonic and fetal development, the value and protection of human life, legal personhood, and the rights and interests of the mother. Accordingly, a meaningful comparison of the two traditions requires attention to the legal approaches that have developed over time within each tradition, including areas of partial convergence, rather than the construction of a simple and definitive opposition between “the Islamic view” and “the Jewish view.”

One of the principal areas of common ground between the two traditions is that the embryo and fetus are not regarded merely as ordinary biological entities devoid of legal or moral significance. In Islamic law, different degrees of legal and moral significance have been attributed to various stages of prenatal development, with jurists offering differing assessments of such stages as fertilization, embryonic development, and the ensoulment of the fetus. Similarly, in Jewish law, although the fetus does not possess the same legal status as a person who has been born, it is nevertheless regarded as an entity deserving protection and capable of giving rise to legal consequences. Thus, in both traditions, the legal and moral status of the fetus is not understood in terms of either complete lack of value or full legal personhood from the earliest stages of development. Rather, it is assessed through a gradual and context-sensitive framework that takes account of the developmental process.

Nevertheless, the religious concepts and legal categories used to explain the status of the fetus have developed within distinct historical and doctrinal frameworks in the two traditions. In Islamic law, embryonic and fetal development has been evaluated in light of Qur’anic descriptions of human creation and hadith reports concerning the process of ensoulment.

There is no complete consensus among classical Muslim jurists regarding the legal implications of the various stages of prenatal development, including fertilization, the formation and development of the embryo, and ensoulment. While some jurists regard ensoulment as a decisive threshold in determining the legal and moral status of the fetus, others emphasize the need to protect the fetus even before ensoulment and have developed differing legal rulings concerning abortion. Among contemporary Muslim jurists, some approaches, informed by modern embryological understandings of biological development and continuity, maintain that human life begins at fertilization.

Similarly, in Jewish law, the status of the fetus cannot be reduced to a single legal principle. Although birth is regarded in rabbinic legal sources as a crucial threshold for the acquisition of full legal personhood, this does not imply that the fetus lacks legal or moral significance before birth. In different legal contexts, the fetus has been characterized as part of the mother’s body, as developing life, or as a potential human being who acquires full legal status at birth. These differing characterizations have contributed to varying legal conclusions concerning the protection of the fetus, the permissibility of abortion, and the rights and interests of the mother. Moreover, different rabbinic authorities and Jewish legal traditions have developed diverse interpretations concerning the circumstances under which abortion may be permitted.

In both traditions, assessments concerning abortion take into account such factors as the stage of fetal development, the circumstances surrounding the pregnancy, and the condition of the mother. In Islamic law, differing assessments exist, particularly with regard to the periods before and after ensoulment, and different legal schools and jurists have developed varying positions on the permissibility of abortion under specific circumstances. Although greater legal and moral significance is generally attributed to the protection of the fetus after ensoulment, the permissibility of abortion is generally recognized when the continuation of the pregnancy poses a serious threat to the mother’s life.

In Jewish law, assessments concerning abortion take into account both the legal status of the fetus before birth and the interests of the mother, particularly the protection of her existing life and health. The existence of a serious threat to the mother’s life or health has been recognized by various Jewish legal authorities as an important ground for permitting abortion. However, Jewish legal traditions do not adopt a uniform approach to the consideration of physical and psychological health, severe fetal anomalies, pregnancies resulting from rape or incest, or exceptional social circumstances. Approaches to these issues have varied across historical periods and among different rabbinic authorities. Therefore, rather than characterizing Jewish law’s position on abortion as a single and unchanging rule, it is more accurate to examine it in light of the views developed by different legal authorities and interpretive traditions.

In both traditions, the protection of the mother’s life constitutes a decisive principle in legal assessments concerning the status of the fetus and the permissibility of abortion. When the continuation of a pregnancy poses a serious threat to the mother’s life, the protection of the fetus must be weighed against the protection of the mother’s existing life, with priority generally being given to the mother’s life. This shared approach demonstrates that, in both traditions, the legal and moral status of the fetus is not assessed in absolute terms or independently of context. Rather, legal and moral judgments are shaped through a balancing of competing rights, interests, and values.

From this perspective, the comparison does not reveal two monolithic and mutually opposed positions—one Islamic and the other Jewish. Rather, it shows that both traditions have historically developed a range of legal approaches that overlap in certain respects. The two traditions differ in the theological concepts, legal categories, and interpretive methods through which they explain embryonic and fetal development. Nevertheless, they also share important points of convergence concerning the recognition of the fetus as possessing legal and moral significance before birth, the relevance of developmental stages to legal assessment, the gradual consideration of fetal status, and the priority accorded to the protection of the mother’s life. Accordingly, the relationship between the two traditions should not be understood through a simple model of similarity or difference. Instead, it should be examined within the broader framework of historically developed and partially overlapping ranges of legal and interpretive approaches.

6. Conclusions

This study examines the beginning of human life, the legal and moral status of the embryo and fetus, and the issue of abortion in Islamic and Jewish legal traditions from a comparative perspective. The study demonstrates that neither tradition possesses a single, historically unchanging, and universally binding legal doctrine concerning the beginning of human life or the status of the fetus. Rather, these issues have been addressed by diverse legal schools and interpretive authorities across different historical periods, resulting in varying assessments of embryonic and fetal development, ensoulment, birth, legal personhood, and the rights and interests of the mother. Accordingly, presenting the approaches of Islamic and Jewish law as a single “Islamic view” or a single “Jewish view” would not adequately reflect the historical and doctrinal diversity within either tradition.

One of the study’s key findings is that neither legal tradition regards the embryo or fetus merely as an ordinary biological entity devoid of legal or moral significance. In Islamic law, the stages of prenatal development, particularly ensoulment, constitute important considerations in legal and moral assessments. Nevertheless, classical Muslim jurists have expressed differing views regarding the legal implications of these stages and the circumstances under which abortion may be permissible. In Jewish law, although birth is regarded as a significant threshold for the acquisition of full legal personhood, the fetus is nevertheless understood to possess legal and moral significance before birth. Different rabbinic sources and legal authorities have offered varying interpretations of the status of the fetus and the circumstances under which abortion may be permitted.

A comparative assessment demonstrates that the relationship between the two traditions cannot be adequately characterized as a simple opposition. Islamic and Jewish legal traditions differ in the historical and doctrinal frameworks, theological concepts, legal categories, and interpretive methods through which they understand embryonic and fetal development. Nevertheless, both traditions recognize that the legal and moral status of the fetus is related to the developmental process, that prenatal life possesses a degree of legal and moral significance and is therefore worthy of protection, and that priority is generally accorded to the mother’s life when the continuation of pregnancy poses a serious threat to it. These points of convergence indicate that, when the historical range of views within both traditions is taken into account, important areas of overlap emerge despite certain doctrinal differences.

In this context, the study highlights the importance of distinguishing among biological existence, legal personhood, and moral status in religious legal discussions concerning the beginning of human life and the status of the embryo and fetus. The fact that the embryo constitutes the beginning of human biological development does not necessarily mean that it simultaneously acquires full legal personhood in all legal traditions. Similarly, recognizing birth as a significant threshold for the acquisition of full legal personhood does not imply that the fetus lacks legal or moral significance before birth. This distinction may contribute to a more careful and contextually sensitive assessment of both classical religious legal sources and contemporary discussions in biomedical ethics.

Modern embryology indicates that a genetically distinct human organism begins to develop at fertilization and provides important evidence concerning the biological continuity of embryonic development. However, scientific findings concerning the beginning of biological development do not, by themselves, resolve the normative question of when legal personhood or moral status should be recognized. These questions continue to be addressed through the normative concepts, historical interpretations, and ethical evaluations developed within religious legal traditions. Accordingly, the question of the beginning of human life is not limited to the identification of a biological starting point. Rather, it remains an interdisciplinary field of inquiry requiring careful consideration of the relationship among biological development, legal personhood, moral status, and religious norms.