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Is a Fetus a Person? Is AI? Wrong Question.
An interview with Sara Ronis on the rabbinic approach to human-like beings
Personhood has been a big word in public discourse lately. Anti-abortion advocates have adopted fetal personhood as a legal strategy. Animal personhood has been suggested as a way to confer rights upon certain types of non-human life. AI personhood will have major implications for copyright law and developer liability. There isn’t much overlap between these debates, but as I wrote in Slate last year, they should be considered together as one of the major moral questions of the 21st century.
But “personhood” isn’t a universal concept. It is rooted in the Western philosophical tradition, it’s frequently deployed for legal reasons rather than ontological ones, and it might be too crude a tool for modern purposes.
Now, I’m generally skeptical when people reflexively say that ancient Jewish wisdom has something to offer contemporary conversations, but on this particular issue it really does. Rather than getting stuck on definitional questions, the rabbis of the Talmud took a very different approach to human-like beings, including fetuses, and it’s an approach that has real utility today.
One of my favorite thinkers in this area is Sara Ronis. Ronis, who is an associate professor of theology at St. Mary’s University, wrote her first book on demons, which the rabbis of the Talmud understood to be quite human, perhaps even descending from humans. Her current project, on fetuses, also contends with beings on the margins of humanity.
In this edited interview, Ronis and I discuss how the rabbis dealt with humanlike entities, and what their framework has to offer contemporary conversations about both AI and abortion.
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David Zvi Kalman
Your first book was about demons. Your next book is about fetuses. What's the connection between the two?
I've always been interested in the gray areas. The pieces of human society that are invisible, unseen, and liminal are sites for creativity and imagination, and they’re also sites of identity formation for the folks trying to create marginal identities, to figure out what it means to be a human being in a complicated world.
David Zvi Kalman
Fetuses are liminal because it’s not clear if they should be treated as human persons. What does it mean for demons to be liminal?
They’re liminal in that they are between the divine and humankind, liminal in the sense that they are dangerous but perhaps benevolent, and also liminal in the sense that they are both part of our community and not.
“The question that I’m interrogating in my work on the rabbis isn’t ‘Is a fetus a person?’ but rather ‘What kinds of person is a fetus?’”
It can be very hard for some modern readers to remember that demons were understood to be real and embodied—not symbolic, but real forces in the world, and many communities today still believe that they are. It can also be hard for modern readers to remember that people in the ancient world never saw living fetuses. They did not have sonograms. They did not have technology that would allow them to see a fetus alive. That fraught invisibility is shared across both groups.
David Zvi Kalman
American society is in the middle of several debates around the personhood of liminal entities. There are debates around the personhood of animals, around the personhood of artificial intelligence, and also the personhood of fetuses. The “personhood” framing, I know, is not a Jewish one. It's a framing that comes up in Christian sources and is connected to the idea of ensoulment. What’s the rabbinic framing?
The idea that questions of fetal personhood are as simple as, “Is the fetus a person? Because if it is, then we can't kill it. And if it isn't, then we can”—this is an incredibly reductive false binary. Both we and the late antique rabbis live in worlds where being a person does not actually mean you have a right to be alive more than other people. I live in Texas, which is currently in the middle of passing a series of laws around fetal personhood, and is also the state with the highest execution rate in the United States. So the idea that those two things are connected in some way isn't always played out through the law.
The question that I’m interrogating in my work on the rabbis isn’t “Is a fetus a person?” but rather “What kinds of person is a fetus?” For the rabbis, is a fetus a person in criminal law? In ritual law? Is it the kind of person who can inherit, or accept a gift? Are they the kind of person who can be purchased and sold in the context of enslavement? These questions not the ones that we normally ask about today, but they’re the questions that interest the Talmud.
In trying to understand why the Talmudic discussion looks so different, people will sometimes say to me, “Oh, well, that's because they didn't have abortion.” They absolutely had abortion. There are numerous texts across religious traditions, though not in the Talmud, that criminalize or decry abortion, sometimes in ways that almost read like a how-to. That’s just not what the rabbis think is most interesting or most important in thinking about fetal personhood.
David Zvi Kalman
It sounds like you're saying that the question of personhood is distracting because it’s never been true that all beings called “people” always have the same rights and responsibility. The real discussion is about what rights and responsibilities to assign to different beings, not asking abstract ontological questions.
And I think it's also contextual.
David Zvi Kalman
Right, so I want to ask you about that. You recently published an article in which you explore the Talmudic idea that a fetus is comparable to a mother's body part. Can you talk through the ways that you're problematizing what seems like a pretty straightforward description of a fetus’s status?
First, it’s not just a body part; it's specifically a thigh. I emphasize that in the translation because when the Talmud talks about the fetus as a thigh of its mother, they did not yet live in a world where a thigh could be amputated and the person would live. So it's important that we understand that they're talking about a thigh because it really emphasizes that they were not talking about removing it.
Now, this phrase becomes incredibly important to medieval thinkers trying to come up with a coherent and consistent Jewish approach to abortion, and it continues to be used in legal codes and responsa today. I want to be extremely clear that in the way that the Jewish legal process works, this is a completely legitimate and authentic usage. In the medieval period, what they're doing is trying to find analogies, because the Talmud doesn't talk about abortion. My critique is not about their conclusions.
“We like to talk a good talk, but definitions of humankind and personhood are profoundly contingent on all kinds of cultural and political and legal and physical factors beyond just questions of physiology.”
In the article, what I'm doing is asking: What did it mean in its original context? What I note is that the expression “the fetus is the thigh of its mother” really only appears in Talmudic discussions about non-human animals and enslaved humans. In both of these cases, and only in these cases, do the rabbis see the idea that the fetus is the thigh of its mother as operative in issues around purchase, sale, and impurity.
In a couple of places, the rabbis turn to a case regarding a free woman and ask whether the principle is operative, and they conclude that it's not. This is to say that the rabbis were using the phrase to create bodily difference—not between pregnant people and fetuses, or people and animals, but between the subjugated human/animal body and the free body, which is really different from how the phrase is used today.
The idea that all humans are the same and are different from other kinds of beings—that should not be assumed in the ancient world, or even today. We like to talk a good talk, but definitions of humankind and personhood are profoundly contingent on all kinds of cultural and political and legal and physical factors beyond just questions of physiology.
David Zvi Kalman
I want to turn this conversation towards AI. Some of the anxiety around artificial intelligence being able to mimic human behaviors is that it challenges the idea that human beings are unique. In Judaism and Christianity, that uniqueness is manifest as the idea that we’re created in God’s image and therefore have a value that far exceeds other creatures.
But my sense is that the rabbis don’t see this human/non-human binary. In the new book When a Human Gives Birth to a Raven, Rafael Neis notes that the rabbis talk with complete seriousness about how a cow could give birth to a donkey or a human could give birth to all kinds of things that look like animals, and they have serious debates about the status of those beings, asking: Is it connected to what they look like, or is it connected to their parentage?
Regardless of what they decide, they are acknowledging that there is not a perfect distinction between different species. So how do the rabbis square the idea of humans as “images of God” with these blurred lines between human and non-human?
Here I think it's helpful to go back to the discussion of demons. One of the chapters in my book, and this is a chapter that I get the most feedback about, is the discussion of Joseph the Demon. There's a tradition in Tractate Eruvin, where Joseph the Demon—who, as his name suggests, is a demon—is well known for teaching Torah in two rabbinic centers on the same Shabbat, which is a problem because Shabbat is only 25 hours a week, and they are a 37 hour walk from each other.
So you have this demon who, like all demons, can fly and move between places in the blink of an eye, uses that supernatural power to give shiur [Torah lecture] in multiple yeshivas on the same Shabbat.
One of the things that frustrates a lot of people who study the Talmud is that very often inconsistency and contingency are a feature, not a bug. They are frustrated because we want a rule. But I think that these are both an invitation and a perhaps even commandment, to use a biblical term, to sit with contradiction. When somebody claims to be entirely consistent, they open themselves up to criticism when they aren't. But if we’re honest about the contingency and contextuality of so many of the conversations that the rabbis are having and that people today are having, I think that there is real value in sitting with that.
Students who've come from primarily Christian contexts are often very frustrated when we're looking at ancient texts because they're like, but what's the answer? And one of the most exciting parts of my teaching is when they begin to develop the skills and the comfort in saying, oh, there might be three answers that could all make sense.
David Zvi Kalman
In your book on demons, you cite a rabbinic text that I find very helpful.
Six things were said about humans: they are like animals in three ways and like ministering angels in three ways.
Three like animals: they eat and drink…procreate…excrete like animals.
Three like ministering angels: they have wisdom…walk upright…and speak the holy tongue (i.e. Hebrew) like angels.
Six things were said about demons: they are like humans in three ways and like ministering angels in three ways.
Three like humans: they eat and drink…procreate…and die like humans.
Three like ministering angels: they have wings…they know the future…and they go from one end of the world to another like ministering angels.
(Avot de-Rabbi Natan Version A 37)
I could imagine AI receiving a similar treatment, where you don't have to say yes, AI is human or is not human, but rather say it is like human beings in these ways and it is like some other entity in these other ways.
One of the things that I think is so powerful about that text is that it’s value neutral. It's not saying that these ones are closer to God and these ones are further from God, or these ones are the most powerful and these ones are the least powerful. It is just: here's the diversity.
David Zvi Kalman
So what does this all mean practically? Is it possible to imagine an artificial intelligence being created in the image of God if it exhibits human behavior?
I have a firm policy of not thinking that I have a handle on everything God can do and create. I think, quite frankly, these ideas are all so new that when somebody tells me they do know and have the answer, I'm more skeptical.
In the case of the fetus, I don't think the question is, is the fetus a person, but rather what kinds of person is the fetus. The same goes for AI. As we've seen, what it means to be humans is contextual. The real question for AI isn’t whether they are persons, but what rights and responsibilities we have to them and they have to us.
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