Jewish Bioethics : Rabbinic Law and Theology in Their Social and Historical Contexts 9781107503588, 9781107024663

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Jewish Bioethics Rabbinic Law and Theology in Their Social and Historical Contexts

This book presents the discourse in Jewish law and rabbinic literature on bioethical issues, highlighting practical problems in their sociohistorical contexts. Yechiel Michael Barilan discusses end-of-life care, abortion, infertility treatments, the brain death debate, and the organ market. Barilan also presents the theology and spirituality of Jewish medical law, the communal responsibility for healthcare, and the charitable sick-care societies that flourished in the Jewish communities until the beginning of the twentieth century. In addition to the representation of Jewish bioethics to practitioners, the book couches rabbinic law in contemporary legal philosophy and social history, offering insights into the very nature of religious law and its functions in society. Yechiel Michael Barilan is a practicing clinician, expert in internal medicine, and associate professor of medical education in the Sackler School of Medicine, Tel Aviv University. He received his medical degree from the Israel Institute of Technology (Technion) and his master’s degree, in bioethics, from the University of Leuven. His first book, Human Dignity, Human Rights and Responsibility, was published in 2012.

‫דע מאין באת‪.‬‬

Jewish Bioethics Rabbinic Law and Theology in Their Social and Historical Contexts

YECHIEL MICHAEL BARILAN Sackler School of Medicine, Tel Aviv University

32 Avenue of the Americas, New York, NY 10013-2473, USA Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107024663 © Yechiel Michael Barilan 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication Data Barilan, Yechiel Michael, 1966– Jewish bioethics : rabbinic law and theology in their social and historical contexts / Yechiel Michael Barilan, Sackler School of Medicine, Tel Aviv University. pages cm ISBN 978-1-107-02466-3 (hardback) 1. Medical laws and legislation (Jewish law) 2. Medical laws and legislation – Israel. 3. Jewish ethics. I. Title. KBM3098.B37 2014 2013029437 296.30 693–dc23 ISBN

978-1-107-02466-3 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. URLs

Contents

An Overview, Explanations about Style, and Acknowledgments

page vii

1

Introduction Judaism, Jewish Law, and Ethics On Religion and Religious Law Methodological Issues

1 1 16 19

2

An Outline of “Jewish Bioethics” From the Bible to the Talmud The Secularization of Medicine Toward a Rabbinic Definition of “Effective and Reliable” Therapies The Fundamental Maxim of Recovering a Soul or Saving Life Western and Rabbinic Meta-Narratives of Medical Ethics

22 22 25 30 34 40

3

Health and Healthcare Health, Regimens of Health, and Preventive Medicine Sickness, Temporary Life, and Open-Ended Life “Visiting the Sick” and the Fundaments of Spiritual Care An Outline of a Halakhic Model for Healthcare Saving Life, Nursing Care, and Infertility Medicine: A Critical Appraisal of Contemporary Halakhah The Value of Life and Setting Priorities in Healthcare Risk and Futility Circumcision and the Problem of Risk to Health

43 43 50 51 62

Doctor–Patient Relationship The Status of the Doctor and His or Her Duties Truth Telling and Disclosure of “Bad News” Refusing Medical Care and Coercive Treatment Human Vulnerability in Feinstein’s Responsum and Israeli Law

81 81 84 85 94

4

65 67 73 75

v

vi

Contents

5 The Human Body Unusual Anatomies and Disability Between a Person and His or Her Body The Dead Human Body (and a Comment on the Use of Animals) Medical Experiments on Humans

99 99 103 106 119

6 Fertility and Very Early Prenatal Life The Commandment and Value “Be Fertile and Increase” Fertility and Its Control Infertility Treatments Artificial Insemination and Fertilization The Status of Extracorporeal Embryos and Anthropoids Surrogacy, Cloning, and the Essence of Parenting 7 Childbirth and Abortion A Historical Survey of the Discourse on Abortion Feinstein’s Philosophy of Halakhah, Abortion, and the Holocaust Cesarean and Other Destructive Obstetric Surgeries Contemporary Teachings on Abortion Lessons from the Rabbinic Discourse on Abortion 8 Care for Premature Neonates Prematurity, “Monstrosity,” and the Social Disability of Bastardy Contemporary Halakhah and Care of Very Premature Infants

123 123 127 139 143 152 155 159 159 169 175 180 186 187 187 196

9 Organ Transplantation and the Brain Death Debate The Timing of Death before the Invention of “Brain Death” Heart Transplantation: Initial Responses The Brain Death Debate in Israel and the Sheep Experiment Brain Death and Halakhah: A Critical Reflection Brain Death Criteria: Hybrid or Chimera?

200 200 209 217 221 225

10 Terminal Care and the Ends of Life Sociocultural Background Action and Inaction in the Face of Death Toward a Comprehensive Approach to Terminal Care The Israeli Law on the Patient Nearing Death Epilogue: Terminal Care and the End of Life

228 228 232 240 242 246

References

253

Index of Hebrew and Halakhic Terms Subject and Name Index

277 279

An Overview, Explanations about Style, and Acknowledgments

This is a scholarly book on medical ethics in Jewish law (Halakhah). My field of inquiry is rabbinic or Orthodox halakhic discourse, which is a body of normative knowledge and modes of reasoning that have been developing for many centuries and whose teachings have ramifications in the lives of hundreds of thousands of Jews worldwide and in Israeli law. Healthcare providers, ethicists, chaplains, patients, and their families will find in this book a brief yet comprehensive and up-to-date survey of the rabbinic discourse, teachings, and rulings on healthcare. Here and there, the book also delves into theoretical questions about the nature of religious law and its relationship with morality, and with other manifestations of the religious phenomena. The book proposes internal and external explanations. Internal explanations are based on those modes of reasoning internal to the halakhic discourse as a relatively discrete discipline; external explanations call on history, sociology, and similar extra-halakhic sources to shed light on the halakhic texts and the actual advocacy and practice of those who adhere to the traditional ways of Jewish life. But the understanding of “tradition” is tricky. Most bioethical problems are quite new, and, as I will show, many of the “traditional” teachings rely on novel – sometimes counterintuitive – hermeneutics of old sources. This book is not concerned with such questions as the identification of Biblical leprosy or the medical sciences of Maimonides. Nor is this a story about Jewish doctors or the Jewish contribution to medicine; rather, it is about the ways rabbis have guided ordinary, observant Jews in coping with illness and with the regulation of healthcare. Through the prism of legal and theological writings, it might also be possible to get a glimpse into the social reality of Jewish life – the behaviors and modes of thinking of ordinary Jews in the past, when virtually all Jews belonged to autonomous religious communities, and in the present, when hundred of thousands of Jews seek to color with religious values their healthcare choices in democratic and multicultural industrial societies. vii

viii

An Overview, Explanations about Style, and Acknowledgments

Bioethical problems reach to the fundaments of human existence: the struggle between life and death, the expression and regulation of sexuality, intergenerational relationship of control and care, the complexities of body and soul, the individual facing the powers of state and finance, communal responsibilities for the vulnerable, the meaning of suffering, and the boundaries between reason and unreason, order and disorder, self and others. Some topics, such as mental illness, have been left out owing to lack of space; other subjects, such as care for minors, are elaborated in a scattered manner, as secondary themes of the main lines of discussion. By the end of the book, I hope the reader will have been informed about specific issues (e.g., disconnecting life support from terminal patients), as well as background values (e.g., personal autonomy in rabbinic thought) and have gained some theoretical insights imported from legal theory, cultural studies, comparative theology, moral theory, and similar academic disciplines. At its heart, so I have come to learn, studying ethics is about helping people, as well as ourselves, in living the good life through reflection, proper conduct, and good decision making. Bioethics is committed to the same goals, but through engagement with the hardships of common humanity, as well as through confrontation with and acceptance of human finitudes seen through a broad intercultural and pluralistic lens and combining respect for human life and dignity with shared solidarities and responsibility for the vulnerable. Therefore, this book might be of interest to every person who cares for personal and spiritual growth through critical learning, contemplative thinking, and genuine participation with the human condition by means of reflection on a historically unfolding body of knowledge, value, and practice. I owe much to my father, who is a rabbi and who has helped extensively with my work on Jewish bioethics, especially in its first phase, from 2000 to 2006. Father–son and teacher–student relationships are complex matters. God knows how much each word and each sentence in this book expresses emulation, rebellion, inspiration, criticism, or some mixture of them all. Tuvia Shlomo, my youngest brother, who is a student of rabbinic law, has helped with finding and clarifying many sources. Cécile Bensimon, Hagar Weinberger, and Joseph Lehman assisted in proofreading the final manuscript. Sharon Neeman has always been helpful with questions of language, style, and translation. I thank my research assistants in this project, Rabbi Avishai Elboim and Ms. Theresa Sophie Fuchs. My patients, students, and colleagues are also present in every page of this work. I thank Rabbi Prof. Avraham Steinberg, Rabbi Dr. Mordechai Halperin, Rabbi Shabbtai Rappaport, Rabbi Tendler, Rabbi Yuval Cherlow, and Rabbi Shlomo Aviner for their time and willingness to give interviews and answer questions. The seeds for this book were planted in my contributions to the Encyclopedia of Judaism. I thank Alan Avery-Peck and Jacob Neusner for entrusting me with these commissions. A generous grant by the Simma Lior Memorial Fund for Medical Research, Sourasky-Tel Aviv Medical Center, allowed me to transform the encyclopedia essays and other papers into this book. The chapters on clinical

An Overview, Explanations about Style, and Acknowledgments

ix

and nursing ethics and the final editing of the book were supported by the Israeli Scientific Foundation (ISF grant 197/10). The sections on public health were supported by a grant from the Israeli Ministry of Science (2011). My acquisition editor, Lewis Bateman, was especially kind and encouraging. I wish to express similar gratitude to Cherline Daniel and the whole team at Cambridge University Press. Studying and writing on rabbinic law and ethics have forced a critical and creative confrontation with my own formation; this book is dedicated to the person who is most responsible for my own transformation, and happiness – Margherita Brusa.

1 Introduction

judaism, jewish law, and ethics The identity of the Jewish people is rooted in the Hebrew Bible. There, we find two master narratives. The first is about the direct relationship between God the Creator and humankind, culminating in the Covenant with Noah, which articulates a mutual commitment to procreation and respect for human life. God will not annihilate life, as happened in the deluge; humans and animals will not spill human blood, which is tantamount to offense against the image of God in each and every human being.1 The Covenant is universalist, devoid of worship, ritual, dogmatic teachings (e.g., commitment to a specific conceptualization of the divinity), idiosyncratic taboos (such as the one on eating from the Tree of Knowledge2), and particularistic practices. The story of the Tower of Babel may indirectly explain why humanity has forgotten both God and the covenant and why the Bible shifts from the first, universalistic narrative, to the second, particularistic one.3 The second Biblical master narrative is about a special relationship that developed between God and one small Mediterranean clan, which ultimately became the Chosen People, the Nation of Israel, or the Jewish People. The founding father of this clan was Abraham, the Patriarch. God’s angel gave the name Israel to Abraham’s grandson, the Patriarch Jacob,4 whose twelve sons became the tribes of Israel. In a period of famine, the Israelites left Palestine and moved to Egypt. They did not assimilate culturally and ethnically there and later were enslaved by the Egyptians. God acted on his promise to the Patriarchs and redeemed Israel from Egypt, converting them to a monotheistic worship whose center is in the Land of Israel (Palestine). The Pentateuch, which comprises of the five books of Moses, holds a special theological and legal status because God 1 2 3 4

Genesis 9. Barilan 2012, 28–39 Genesis 2:17 Genesis 11:1–9. Genesis 32:28

1

Jewish Bioethics

2

revealed it (at least parts thereof) in the Covenant of Sinai to Moses, the leader of the Exodus from Egypt. In Judaism, Torah is a master concept pertaining to the Pentateuch, as well as to all the teachings of the rabbis and the works and insights of all devout learners, past and present. The traditional Jewish way of life is centered on the Torah – loving it, studying it, developing its insights and teachings, and living by its values, stories, and laws. According to the Jewish tradition, the commandments of God, His laws as prescribed in the Torah, are much more than mere instruments of regulation and worship. They are special benefits, gifted to Israel by God, tokens of the singular and irrevocable covenant He struck with the nation of Israel.5 Every Jew is expected to live “a life of Torah,” one that combines “love of Torah and fear of the Lord.”6 Engagement with the Torah is the ultimate human freedom and source of moral and spiritual growth.7 This process is inescapably interlinked with respect for a very detailed normative system that bears on every aspect of life – diet, agriculture, the Shabbat and festivities, three daily prayers, rituals of the lifecycle, sexual life, private and public law, and the administration of communities. Judaism is not a proselitizing religion. Although every human may freely choose to convert to Judaism, the Jewish religion expects non-Jews neither to convert nor to observe Jewish law. The non-Jew is expected to abide by the Covenant with Noah. The Bible never offers explanations for its laws and instructions. Except for the Shabbat (the weekly day of rest), the annual festivities, and a few other laws, the Bible holds the justice and wisdom of the laws of the Torah as self-evident to the whole of humanity.8 This confidence has been lost. The first paragraph of the sixteenth-century codex of Jewish law, Shulhan Arukh, goads the reader to ignore those who ridicule life according to the Torah.9 The rabbis have tried neither to rationalize nor to medicalize religious law. Rather, recourse to rational justification as the basis of faith and practice characterized the “enlightened” or “Enlightenment” (maskil)10 Jew, even when he or she was observant of the traditional laws and ways of life.11 Indeed, one may notice alternating tones in the Jewish sources. In certain periods and schools, the Jewish way of life is represented as wisdom to be appreciated and even learned by all of humanity;12 alternatively, numerous teachings and practices are represented as meaningful only within the special, intimate relationship between God and Israel. Rather, the primary Jewish commitment to the Torah is derived from the Covenant of Sinai and not from the 5 6 7 8 9 10 11 12

M. Makkot 3:16. From the prayer for the new month – ‫חיים שיש בהם אהבת תורה ויראת שמיים‬. M. Avot 6:2. Deuteronomy 4:5–8. Orah Haim 1:1, Remma; Cf. I Corinthians 1:23. ‫ משכיל‬- literal meaning: educated, rationally inclined. Katz 1973, Chapter 4; Efron 2001, 190–195. Hirshman 1999.

Introduction

3

intrinsic rationality that God’s ways and precepts might have. Observant Jews do not perceive a need to explain Jewish religious practices; they do feel strong responsibility for the conduct of other Jews, including the nonbelievers, an attitude that is associated with a lower level of tolerance of deviant individuals and communal practices. With the growth of secularization and assimilation, the rabbis had to find ways to communicate with Jews who were only ethnically Jewish but culturally integrated into the non-Jewish culture. In addition, the governance of intensive care, organ transplantation, infertility medicine, and other exploits of biomedicine cannot be carried out within the confines of the family and community. At least with regard to biomedicine, the Jewish way of life, especially Jewish law, Halakhah, must be expressed in words comprehensible to the lay public. The Hebrew word for religious law is Halakhah,13 whose etymology is derived from h-l-kh14 – to walk. Whereas the etymology of Torah is “to show/ to teach,” Halakhah is about action – walking the ways of life according to the Revelation of the Torah, as interpreted by its loyal followers. Even when natural morality coincides with Halakhah, the prevalent opinion in the rabbinic literature is that all normative aspects of life are derivative from the positive law of the Torah and not from natural morality, which is embodied by the covenant with Noah.15 Rabbis have always been keen on avoiding conflicts and apparent conflicts between widely accepted fundamental moral norms and Jewish law. Sometimes rabbis have forbidden a practice that was licit according to Jewish law only because it was considered abominable by the gentiles (i.e., non-Jews). On other occasions, rabbis have prohibited a licit action by the standards of Jewish law out of fear of hostile reaction by gentiles who might interpret the practice as immoral or impolite. In Judaism, there is no need for salvation of the soul, nor are there any sacraments. Life is a journey to be walked communally, along the “way” (i.e., according to Halakhah), in expectation of bliss in the afterlife, the redemption of the nation of Israel by the Messiah, and, ultimately, the uplifting of the whole of creation and the eventual resurrection of the dead. This way of life combines governance of society with issues of personal morality and ritual. Halakhah is always bifunctional. Fulfillment of the commandments of the Torah cultivates the virtues, and it also has beneficial, cosmic, salvific, and theurgic effects in the spiritual world. The laws of God regulate life and sanctify the person, the community, and, by extension, the whole of creation.

13 14 15

‫הלכה‬ ‫הלך‬ Barilan 2004b; Last Stone 1991, Last Stone 1992–1993, 843–844. See Statman (2010) and the commentary contributions in the same issue for a well-referenced and updated discussion on the relationship between Halakhah and morality. Much of this discourse focuses on public and family law, not bioethics. It also tends to ignore communal law (takkanot haKahal) and specific bylaws, such as the sick care societies’. Hence, I do not engage myself directly with this body of literature.

4

Jewish Bioethics

According to Maimonides, life according to Halakhah, sometimes with a little predilection to the more demanding side, is the virtuous life. The medieval stream of Ashkenazi Hasidim beheld the law as a minimal threshold of conduct, whereas God expects of people much higher standards of piety and social justice.16 Despite this enormous philosophical gap (let alone the differences in style, theology, and moral anthropology), both sources have contributed to the development of Halakhah and its tacit norms, such as those pertaining to acceptable arguments and opinions within its pluralist and multivocal discourse. It may be generally stated that Jewish normative values may be characterized by a commitment to the laws of the Torah (positive law) and a few general moral precepts: neighborly love, which is considered the most fundamental one;17 respect for imago Dei; walking in God’s ways18 – in imitation of God (which typically covers acts of charity [Hessed]19); and “do[ing] the right and the good”20 and “in all thy ways acknowledg[ing] Him.”21 The last value is also known as “the way [to walk on] earth.”22 It encompasses what in Western ethics are called “the civic virtues” and sometimes prudence, politeness, and natural, universal, commonsense morality.23 The rabbis stated that “there is no Torah without ‘the way [to walk on] earth’; there is no ‘way [to walk on] earth’ without Torah.”24 Because this very maxim is part of the first Jewish code of law, it is evident that a dialectical interdependence of the Torah and morals (or some aspect of naturalist normativity) is part of the religious law.25 Moreover, and especially in relation to medicine and other lay domains of life, Halakhah recognizes common professional and administrative standards, as well as the prevalent habits of well-ordered societies (or “decent societies”), as Halakhahrelevant standards; these are referred to as “the way of the world.”26 These standards may include traffic laws, regulations of product safety, and informal habits, such as the circumstances in which people usually visit a hospital’s emergency department. Relying on the verse “Her ways are ways of pleasantness and all her paths are peace”27 the Talmud rejects the use of noxious plants in a festivity ritual, even though they meet the criteria for use specified in the

16 17 18 19 20 21 22

23 24 25 26 27

Maimonides, Introduction to Gloss on M. Avot, chapter 4; Schweid 1989, chapter 4; Beer 1938. T. Yerushalmi, Nedarim, 9:4; Barilan 2009. Deuteronomy 28:9. ‫חסד‬ Deuteronomy 6:18. See Nahmanides’s gloss. Proverbs 3:6. ‫ דרך ארץ‬The etymology is derived from the expression “the way of the tree of life” – the way leading to the Torah, which is the Tree of Life (Midrash Yalkut Shimoni 3:43 on Genesis 3:24). M. Avot, chapter 3; Masekhat Derekh Eretz; T. Berakhot, 63a. M. Avot, 3:17. Kook 1985, 35 (O’rot HaTorah 12:2). ‫דרכו של עולם‬ Proverbs 3:17.

Introduction

5

Torah.28 In his codex of law, Maimonides writes an unusually long explanation to the talmudic maxim, discussed in Chapter Two, that saving human life takes precedence over the observance of most religious laws. In addition to the talmudic explanation, Maimonides writes that this maxim reflects the fact that the Torah’s laws are “mercy, charity and peace.”29,30 I conjecture that because Jewish law, and especially Maimonides, advocates (whenever necessary) harsh measures in the name of public peace and order, the word “pleasantness” is omitted. Indeed, the “pleasantness” motif is hardly found in the premodern halakhic literature. It is not considered a halakhic maxim.31 Often, the rabbis and the communities vigorously suppressed deviance from religious practice. Much is still unknown about the differentiation of diversity from deviance occurs within a religious community. An additional maxim is that “The laws of the kingdom are laws [of the Torah],”32 indicating a religious duty to observe the laws of the state, such as those concerning taxation, commerce, public order, and other aspects of secular life. Although some rabbinic authorities give this maxim the highest legal level in Halakhah, as if the law of the king is the law of the Torah, secular law has no power to overrule Halakhah. It is also evident that rabbis have bolstered this maxim’s importance to show loyalty to the state, dispel anti-Semitism, and secure everybody against crime and anarchy. Jewish religious literature appeared in the first few centuries before the current era. In it, we find diverse traditions that claim continuity with the Bible, each presenting its own interpretations, ideas, and idioms. The rabbinic branch is traceable to the talmudic literature, whose basis is the first codex of law, the Mishnah, which is a third-century compilation of teachings from the previous four centuries. The Talmud is actually two compilations of discussions based on the Mishnah’s text. The larger and more accessible compilation is the Babylonian Talmud, summarizing the scholarship of the rabbinic academies in Babylon; shorter and more difficult to read, the Palestinian Talmud (or Yerushalmi) summarizes the scholarship of Palestine in a terse, often obscure style. The Talmud contains legal, folkloric, theologic, esoteric, and allegorical discourses. Other compilations of biblical exegesis and legal deliberations are recognized as part of the talmudic literature (e.g., the Tosefta). The Midrash is a general name given to the hermeneutic sections in the talmudic literature, but these texts are less authoritative than the canonized Talmud. Aggadah is the name typically given to sections in the narrative and homiletic genres in the talmudic and immediate post-talmudic literature. Sometimes the terms Midrash and Aggadah overlap. 28 29 30 31 32

Sukkah 32a–b. ‫רחמים חסד ושלום בעולם‬ Hilkhot Shabbat 2:3. See Elon, 1962, and Talmudic Encyclopedia, entry “Darkhei No’am.” T. Bava Batra 55a.

6

Jewish Bioethics

A typical halakhic discussion begins with a relevant talmudic law or deliberation and then develops it by means of casuistry and with the aid of other relevant sources. Halakhah’s mode of reasoning prefers rational engagement with the formative sources, even if rather remote, to unmediated value inquiry or rule-based exposition of the case at hand. A notable example is the problem of disconnecting life support from terminally ill patients. The halakhic formative sources are a story on the second-century martyrdom of a rabbi and a medieval teaching regarding folk remedies. Even though the analogy of these sources to contemporary life support and terminal care is quite tenuous, these sources nevertheless serve as stepping-stones to the halakhic discourse. It may be concluded that Halakhah’s semantic and normative structure embodies positive law, not in the sense of subjugation to a centralized source of social power, but in the sense of acceptance of a sort of “language game” encompassing given assumptions (such as the primacy of talmudic laws and case discussions) and norms of reasoning and expression, of which critical rational deliberation is central. Such acceptance is a kind of “interpretative commitment” of community.33 It is commonplace to identify the rabbis of the Mishnah with the pharisaic sages mentioned by Flavius and in early Christian writings. But we have to keep in mind that, in those days, the boundaries between the diverse social and religious groups and teachings were quite fluid and obscure. It may be more accurate to state that each generation of observant or “Orthodox” Jews professes commitment to life according to the Jewish law and values as prescribed by the talmudic literature and in continuity with the traditions of law and life handed down by the preceding generation of Orthodox Jewry. In Greek, the word orthodox means “the true way.” According to the self-perception of Orthodox Jews, of all possible tracts that rabbinic Judaism could have taken, the only authentic way is the one traceable generation after generation, from contemporary Orthodox Jews back to the Talmud. Most Jews living today would not agree. Many are merely secular; their religious awareness is too thin, or they are indifferent to the debate on “the right way” of religious Jewish life. In Israel, when secular Jews face a characteristically religious choice (e.g., marriage, burial), they usually default to the Orthodox way. Although Israeli society is divided into “religious” (usually meaning “Orthodox”) and secular categories, outside of Israel, Jews who cultivate their religious or national identity are more likely to associate themselves with one of the two other major denominations of Judaism, who branched off the traditional communities during the nineteenth century. Reform Judaism finds in Jewish law a source of inspiration, rather than legal authority.34 Conservative Judaism is committed to Halakhah, but its versions of Halakhah diverge from orthodoxy on issues such as the role of women in religious practice 33 34

Cover 1983–1984, 7. In some countries, this stream is known as “progressive” or “liberal” Judaism.

Introduction

7

and the structure of prayer. Conservative Judaism is more open to modern sensibilities and more repudiating of those habits and practices entering religious life during the last few hundred years, mainly with regard to modern technology and through the influence of Kabbalah (Jewish mystical and esoteric traditions). Electric light is a case in point. When this technology began spreading, rabbis debated whether switching on light bulbs violated the laws of the Shabbat. Ultimately, a consensus settled that, indeed, it did. But Conservative rabbis deferred, constructing their legal reasoning on the basis of talmudic texts, premodern authorities, and alternative halakhic conceptualizations of electricity and electric light. The Conservative rabbis’ arguments are in line with some Orthodox rabbis’ opinions on the matter, which were expressed a hundred years ago. However, today, no Orthodox rabbi questions this turn in the history of Jewish law. Rather, every rabbi or person endorsing the turning on and off of electricity on the Shabbat is automatically identified as non-Orthodox. The “orthodox” road on that matter has already been taken. This road is mildly positivist.35 While on it, it is quite difficult to ignore an explicit prohibition; but, conversely, as rabbi Lifshitz wrote in the first half of the nineteenth century, “Without a known reason to prohibit something, it is permitted without a need for justification.”36 Lifshitz wrote this at the height of the struggle with reformatory trends during the first halakhic response to technology and scientific medicine. His legal positivism is weak because Lifshitz does not explain what might be a “reason” to prohibit something. Additionally, rabbis often prohibit a practice in consideration of public morals while acting in their capacities as pastors and leaders and while being aware that the prohibition has no intrinsic halakhic basis. The Ultra-Orthodox ban on television is a case in point. Another factor accounting for the mildness of positivism in Jewish law is the law’s own commitment to bend and stretch itself for the sake of accommodating human values and the law’s tolerance of inaction in the rare situations in which law and morality collide.37 35

36 37

In legal positivism, the authority of the law is derived from its legitimization, the authority behind it, independently of the merit or demerit of the law’s intentions, contents, or consequences. The law is socially “posited” – ordered, decided, practiced, and tolerated. In the rabbinic worldview, one is first committed holistically to the Torah and its norms regardless of the justification and value of any particular law or set of norms within it. Obedience to the internal conventions of Halakhah and its historical consolidation is one such set of norms. Within ordinary positivist structures, a practice that is not prohibited by law is legally permissible. There is no legal need to weigh the moral or prudential probity of that practice. According to legal naturalism, in order to have a normative, action-guiding authority, the factual presumptions of the law (or legal ruling) must be scientifically valid, and there must be a rational moral justification to the law’s content (or at least to obeying the law). According to legal formalism, every inference of a legal decision must follow, as much as possible, a predetermined set of rules of reasoning (e.g., adherence to the “ways of induction from the Torah” (‫) מידות שהתורה נדרשת בהן‬. Gloss Tif’e’ret Israel on M. Ya’dayim 4:3. See Tosefta Sanhedrin 7:4. Chapter Ten, last section.

8

Jewish Bioethics

So-called Ultra-orthodox Jews (or Haredim) are marked by a stronger commitment to all aspects of traditional life, including cultural aspects not contained in Halakhah, such as wearing black clothes cut in the same style as those of their ancestors in Eastern Europe. In addition to increased self-awareness of cultural differentiation from others, including other religious Jews, Ultra-orthodox Jews tend to adopt more demanding interpretations of the law. Even when the law tends toward leniency, the Ultra-orthodox embrace the stricter minority opinion as a matter of supererogatory piety. Additionally, when lenient reading of the law is at risk of association with liberal social values, the Ultra-orthodox communities are likely to adhere to the more rigid codes of behavior. Many Ultra-orthodox circles are also opposed to Zionism. The word “orthodox” was coined during the struggles of traditional Jews with both reformist and secular trends during the Enlightenment, but, even before this word was in use, rabbinic Judaism always had to define itself against heteronomic trends, such as Sabbatianism (seventeenth and eighteenth centuries), Karaites (early and High Middle Ages), and minim (the talmudic word for early Christians and gnostic sects). As an academic scholar and practicing physician, I find it inappropriate for me to assert either who represents “authentic Judaism” better or whether such judgment is at all meaningful. Hence, I prefer the term “rabbinic Judaism” to “orthodoxy.” The fodder for bioethical discourse appeared only in the second half of the twentieth century – the ethics of scientific experimentation on humans, the use of life support machines, genomics, infertility treatments, and the administration of large-scale healthcare services. Thus, time has been too short for a consensus on these issues to consolidate within the rabbinic discourse and the Orthodox lifestyle. The Halakhah of bioethics is still raw and fresh, open to a broad variety of opinions. This situation renders rabbinic bioethics an especially stimulating field of inquiry, a mini-laboratory to explore the possibilities and limits of a very old and traditionalist system of religious law in its encounter with science, technology and multicultural democratic state apparatuses. At the hub of Jewish law we find two post-talmudic codices of law. The first was written by Maimonides, in twelfth-century Egypt, under the name Mishneh Torah (“deputy of the Torah”). The later codex of law was written in sixteenthcentury Palestine by a refugee from Spain who was closely associated with the emergent circle of Lurianic Kabbalah, Rabbi Yosef Karo. His contemporary, Rabbi Moshe Isserlish from Cracow, also known as Remma, inserted comments to Karo’s text, highlighting the opinions and practices common among Ashkenazi Jewry (i.e., the European communities whose origins are traceable to Medieval German Jewry). Since then, Karo’s text, along with Isserlish’s comments, is considered the most authoritative codex of law. It is called Shulhan Arukh. Karo’s codex developed from his gloss on earlier codices, Maimonides’s Mishneh Torah, and the Tur, which was written by Rabbi Jacob (early fourteenth century), son of Rabbi Asher ben Yehi’el, also known as Rosh (1250–1327). In

Introduction

9

addition to Maimonides and Rosh, Karo relies heavily on Rabbi Isaac Alfasi (1013-1103). The Tur and Shulhan Arukh are comprised of four main sections – Orah Haim (on daily practice, Shabbat, and holidays), Yo’reh De’ah (on religious taboos, such as kosher food), Ev’en HaE’zer (family law), and Hoshen Mishpat (contract and criminal law). Rabbinic books and treatises rarely stand alone as academic monographs. A book is either a gloss on an earlier canon (mainly the Pentateuch, Talmud, or one of the codices of law) or a collection of responsa, which are usually arranged thematically (e.g., following the four sections of the Shulhan Arukh). Many rabbinic works have been printed along with the text they interpret or follow. For example, the text of Alfasi (Rif) is found at the end of the books of the Talmud; and the gloss Rashi is located on the inner edge of the pages of the Talmud. In the rabbinic literature, rabbis may be referred to by name (e.g., Isserlish), by acronym (e.g., Remma), or metonymically, by the title of their most famous work (e.g., Igrot Moshe). The responsa literature (Shut38 is a Hebrew acronym) is comprised of published anthologies of practical questions brought before a rabbi and the answers given, usually in the form of a private letter. Each rabbi publishes his own collection of responsa, often with the help of disciples who selected, edited, and updated the original texts. This and other genres of halakhic literature are hermetic but not esoteric discourses in jargonized Hebrew. It is hermetic because the rabbinic literature does not tend to make references to external works, such as in philosophy and science. It is not esoteric because the principles of halakhic argumentation are rational. In the past century, a genre of rabbinic journals in an academic style has been flourishing. These journals use academic formats such as footnotes and interdisciplinary dialogues. Among these journals one may count Assia on Halakhah and medicine; Tehumin, which is dedicated to the convergence of technology, applied ethics, and Jewish law, and Tradition, which is broader in scope and is published in English in the United States. In Israel, the state’s system of rabbinic courts exercises jurisdiction over marriage, divorce, and related aspects of family law. The rulings of these courts are systematically archived and comprise a new trove of halakhic creativity whose impact on Jewish biomedical law is still underexplored.39 Overall, the main corpus of evolving halakhic tradition is the sets of responsa published by individual rabbis, not rulings and guidelines signed by rabbinic courts, joint committees, and similar bodies. A small genre of Jewish religious literature is dedicated to coping with illness, dying, and death. The first book of this kind, To’rat HaAdam,40 was written by the halakhist and mystic Nahmanides, who lived in thirteenth-century Cataluña. 38 39 40

‫ שו"ת‬,‫שאלות ותשובות‬ Westreich 1996. Nahmanides 1964.

Jewish Bioethics

10

In parallel with the advent of Jewish burial and sick care societies in the early modern period, a genre of books containing special prayers, mystical teachings, descriptions of habits, and folk medicine has flourished.41 No comprehensive research has been done so far on this body of Jewish manuals of sick care. It is unclear why almost all of the books in this genre were not written by halakhists, let alone national-level authorities like Nahmanides. Perhaps this is because most such books were written by or in the name of the burial and sick care societies, articulating communal consensus on stock situations, rather than personal opinions and creative answers to complicated and unusual problems. The halakhic literature mainly embodies the rabbis’ role as legal rulers, decisors, or poskim. However, as we will see throughout the book, rabbis also act as judges, counselors, and public leaders. It is not easy to distinguish among these roles, which often overlap and metamorphose, even within the very same responsum. However, each role implies different conventions of style, reasoning, and normative authority. Whereas secular law is a first-order normative system (i.e., it is deontic, telling people what is permitted and prohibited), Halakhah contains a second-order dimension, directing people’s wishes and values. Hence, for example, we will see that Halakhah instructs patients who suffer to cling to life despite their agony; but Halakhah is also permissive with patients who suffer terribly and wish to die. The latter norm is of the first order, whereas the former is of the second order. First-order rulings fit the rabbis’ role as decisors; second-order norms better fit their role as counselors. Jewish law distinguishes between principled rulings, such as the public texts of the responsa, so-called Halakhah, and the counseling given to actual people who are about to act on the rabbi’s ruling in a given circumstance – halakhah le’ma’a’seh.42 Hence, in Judaism, a certain gap, even if usually minor, exists between the formal law and what rabbis actually tell those who ask for their advice and directives. In medicine, however, the gap between formality and reality might be enormous. In Halakhah, situations labeled as “in case of need” or “in great necessity,”43 such as occur in the dire straits of tough medical decision making, justify – indeed, may oblige – the stretching of the limits of the law or even creatively manipulating the law to meet pressing and fundamental human needs and respect human dignity. Some people might find this practice disrespectful of the law and see it as mere trickery, but the rabbis find in it the superiority of the value of neighborly love over all other normative tenets.44 Within certain limits, God would rather bend the law than let a human being suffer. This tenet does not posit human values above the law; it is part of the law, and it has its own legal limits that must not be transgressed even in the face of 41 42 43 44

Goldberg 1996, 101–107. ‫הלכה למעשה‬ ‫צורך גדול‬ Barilan 2009 in reference to T. Yerushalmi, Nedarim, 9:4

Introduction

11

enormous suffering. Precisely because humans cannot outwit God, the permissibility of trickery in this legal domain dealing with passages “between persons and God”45 (rather than between persons46), such as the laws on the Shabbat and kosher food, is part of the Torah because it expresses God’s wisdom, and love.47 Additionally, persons may forgo and forgive. But the duties owed to God with regard to other persons are stronger and less alienable than direct interpersonal duties.48 When a person is acting in good faith, the rabbis tend to be very lenient in their interpretation and specification of the law. In a telling vignette, Rabbi Halperin recounts how the prominent late Rabbi Auerbach, who was opposed to the abortion of embryos with Down syndrome, would send agonized women seeking permission to abort such embryos to Rabbi Waldenberg who was lenient on the matter.49 Gaps also exist between the public teachings of leading rabbis and their actual policies and opinions. While being open and lenient in practice, rabbis tend to wear a reactionary mask in public. With a growing perception of the pressures posed by the power and allure of the secular and ever more liberal environment, the rabbis have cultivated a public image of being hard-liners because they fear slippery-slope trends and, probably, because they fear public censure by their Ultra-orthodox followers, whose self-professed identity is of Haredim50 (i.e., anxious for the Word of God) and sometimes ka’na’im51 (i.e., zealots, fanatics). An illustrative example is the Israeli law pertaining to the patient nearing death (2005), discussed in Chapter Ten. Leading rabbis who endorsed every letter of the law and actually oversaw its drafting nevertheless directed Ultra-orthodox members of the Israeli parliament (the Knesset) to abstain from the final vote. Knowing that the law would pass regardless, they did not wish their names to be associated with a law that also received support from secular activists promoting the legalization of euthanasia (the law legalized certain forms of life support discontinuation). The Jewish ways of life have been established over eighteen hundred years of dispersal and autonomous communal life, mainly in Europe and the Middle East.52 Jewish communities were governed by means of a council elected by the rich households (the kahal, tovei haIr53) of the community. The rabbi and the local court of justice (bet din54) shared power with the community council that elected them. 45 46 47 48 49 50 51 52 53 54

‫בן אדם למקום‬ ‫בן אדם לחברו‬ Berkowitz 1983, 121. Levinas 1994, 12–29. See Gloss Rosh (Asher b. Yehiel) on M. Pe’ah 1:1. Halperin 2008, 5. ‫ חרדים לדבר השם‬,‫חרדים‬ ‫קנאים‬ See Katz 1971, chapter 9. ‫ טובי העיר‬,‫קהל‬ ‫בית דין‬

Jewish Bioethics

12

Regardless of the geographical location and wide variations in customs and material culture among the diverse Jewish communities (e.g., clothes, music in prayer), the language of the learned rabbis has always been Hebrew (more precisely, a rabbinic literary dialect based on biblical Hebrew and a talmudic mixture of Hebrew and Aramaic). For example, a rabbinic court in Yemen would recognize a divorce made in Prague, and a conversion by an Argentine rabbi would be equally valid in Iraq and Lithuania. Both the divorce document and the act of conversion, as well as marriage contracts and other religiously relevant documents, have been written in Hebrew (or a dialectic mixture of Hebrew and Arameic). In this manner, until the breakup of the communities during the reformatory movements in the early nineteenth century, the Jewish people have maintained legal, ethnic, calendric, ritualistic, and linguistic (high language only) unity all over the Diaspora. Many rabbis did not speak the vernacular; they were able to communicate in writing with other rabbis thousands of miles away but depend on mediators when they want to communicate with their non-Jewish neighbors. Because Judaism is not a socially organized religion and has no official system of recognition and entitlement, it is difficult to distinguish genuine leadership and scholarship from esotericism and charlatanism. Principally, a reputed rabbi may examine rabbinical candidates and grant them permission to instruct others.55 But many men dress like rabbis and are respected like rabbis, especially when they are pious or teach or represent religious values. Prominent rabbis have won their reputation and authority by means of knowledge of the sources and a sophisticated and creative style of argumentation, as well as through personal piety and charisma. Some have been elected as rabbis of large and powerful communities and as judges in rabbinic courts, whereas others have lived in poverty, having no significant official position of their own. Some benefit from the material support of their community or of rich patrons (usually fathersin-law); others must work to eke out their livelihood and provide for their families. Isaac Beer, Ben Zion Dinur, Rafael Mahler, Jacob Katz, and other historians offered a sociological and even socialist-oriented criticism of the rabbis and other elite strata of traditional communities. They pointed at the symbiotic interdependence between rabbis and the plutocrats who supported them and highlighted the socioeconomic gaps between the intellectual elite and the working and indigent classes. These scholars brought social issues to bear on our understanding of Jewish history and the development of rabbinic law. Today, scantily researched webs of influence, dependence, and power enmesh the halakhist leaders, politicians, advocates, administrators, the philanthropic class supporting religious academies, and the populace. In addition to the complex structure of Halakhah as a system of law based in the Talmud and the rabbinic academies, nonhalakhic religious influences loom 55

‫סמיכה‬

Introduction

13

large over religiously motivated healthcare choices. It is difficult to overestimate the roles of mysticism, mystical teachings (Kabbalah), and popular movements of religious revival (e.g., Hasidism) in the development of the “ethics of the body” or “regimes of corporeal self-conduct” in Judaism. Esoteric streams and mystical teachings have always been present in Jewish life, but they emerged publicly and widely only in the High Middle Ages, when the book Zohar was disseminated all over the Jewish world. Since then, mystical doctrines – Kabbalah – have been assimilated in rabbinic discourse. A second wave of kabbalistic creativity and social influence erupted in sixteenth-century Safed (Northern Palestine), giving birth to the Lurianic Kabbalah, whose historical, social, and theological impacts are present in every aspect of Jewish religion and culture. Although almost all streams of rabbinic Judaism recognize Kabbalah’s theological clout, the rabbis have given Kabbalah a minor and inferior halakhic authority. The Hasidic movement appeared in the late eighteenth century in Eastern Europe, challenging both the organized communities and the hegemony of learned rabbis who upheld the intellectual study of the Torah as the supreme Jewish value. Hasidism was more receptive of kabbalist influences, especially in liturgy and spirituality. The hasidic leader, the rebbe, is expected to be charismatic even though his authority is usually inherited from his father or father-inlaw. His followers, his group of Hasidim, may be scattered over different communities, and their loyalty to him is expressed by emphasis on habits unique to the group and devotion to the rebbe, and some customs particular to the group. Hasidic leaders aspire to combine leadership with theological and – much less frequently – even halakhic authority. But none of them has gained direct influence on Jewish bioethics. The rebbe of Gur (the largest hasidic group in Israel) masterminded the campaign against the Israeli law on abortion during the 1970s and 1980s, but he did not publish legal opinions or treatises on the subject. When practical questions surface, he and other hasidic rebbes send their followers to legal experts they trust, such as Rabbi Wosner, whose work is cited often in this book. Jewish law gives special authority to the community rabbi over his congregation. Its members may follow his teachings even when the majority of rabbis disagree.56 Unless a pastoral relationship exists between a specific rabbi and a person, it is considered inappropriate for a rabbi to instruct those persons who come from other communities. It is also inappropriate to shift from rabbi to rabbi until one hears what one wants (the terms “pastoring” and “counseling” do not exist in the halakhic vocabulary.). The study of contemporary Jewish bioethical law requires an awareness of the subtleties of hierarchy and influence. The highest esteem is given to a small group of rabbis who are widely considered “the rulers of the generation.”57 One may identify these personalities by three distinct signs. 56 57

T. Shabbat 130a. ‫פוסק הדור‬

Jewish Bioethics

14

First, these are the people other prominent rabbis consult, not vice versa. The leadership does not ask legal advice from anybody. Within “orthodox” circles, and across differences in worldview and lifestyle, there is neither a social group nor a leading rabbi who gainsays the status of the “rulers” of the generation as decisors at this top level. Collective halakhic endeavors by schools of rabbis were common in medieval Ashkenazi (Germany and France) circles, but, for many centuries now, rabbinic books are individually authored. The exchange of epistles and published opinions is much more common as a means of interaction than are regular interpersonal deliberations, either formal (e.g., committees) or informal. In Chapter Nine, I narrate the failure of bringing together three leading rabbis to mutually deliberate on the brain death issue. All three lived in Jerusalem but declined a joint meeting, and never even tried to sort out the issue over the telephone. The younger strata of rabbis often convene and deliberate; they pass messages from one prominent rabbi to another. Second, the leadership sometimes appeals directly to the public, mainly through street posters and newspaper pamphlets (older rabbis discourage the use of electronic media). One recent example is an announcement in support of mammography screening, issued and signed by rabbinic leaders on February 26, 2012 and reported in leading Israeli newspapers. Not only are such announcements not accompanied by detailed legal and theological justifications, the signatories of this one have never published reasoned justification for their directive. Moreover, some of the signatories, such as Rabbi Yehuda Steinmann (b. 1914), publish neither halakhic rulings nor halakhic treatises. It may be observed that when famous legal experts join other religious authorities to appeal directly to the public, these experts may be identified sociologically as belonging to the uppermost stratum of authority. Their authority may be in the area of religious law, but they appeal to the public in the name of an informal theocracy. Lower ranking rabbis would risk loss of prestige, if they tried to disseminate such directives. Endorsement, at least passive, by the upper stratum of halakhists is prerequisite to the active participation of the Orthodox in a problematic biomedical intervention. Expert rabbis look up to the most authoritative rabbis with special reverence and take lessons from their indirect conduct, such as refusing to respond to certain questions.58 This is the third sign of rabbinic leadership. Regarding bioethics, this leadership is historically situated. These are the few rabbis whose authority consolidated in the second half of the twentieth century; in other words, their rulings and influence coincided with the reconstruction of Jewish life after the Holocaust, with the apogee of scientifically based and bureaucratically governed medicine (1950s–1970s) and with the advent of bioethics (early 1970s). Because to rise in rabbinic authority is a very slow process, these rabbis had to reach a very old age and publish on medical problems in Jewish law. Those of their contemporaries who died young and those who did 58

See, e.g., Halperin 2004; Faur 1986, 144.

Introduction

15

not issue reasoned halakhic rulings have not gained supreme authority over all Orthodox Jews. It seems that the uncontestable rabbinic authorities of the “first generation” are Rabbi Moshe Feinstein (1895–1986), Rabbi Shlomo Zalman Auerbach (1910–1995), Rabbi Eliezer Yehudah Waldenberg (1915–2006), Rabbi Shmuel HaLevi Wasner (b. 1913), Rabbi Yosef Shalom Elyashiv (1910– 2012), and Rabbi Ovadia Yosef (b. 1920). It may be observed that “rabbinic bioethics” is the product of a specific historical context, a window of time of approximately fifty years, during which the “first-generation” leadership grappled with the emergent problems characterizing the bioethics discourse. Throughout this book, I will argue that, at the end of the Second World War, the halakhic teachings on medicine and the body did not predicate the “Halakhah on Bioethics” that was developed by the “first generation” rabbis, whose influence transcends communal boundaries and spreads all over the Jewish world. Rather, rabbinic rulings on refusal of care, smoking, the medicalization of “infertility,” abortion, neonatal care, commerce in blood and organs, the determination of death, and anatomy were quite different from the contemporary mainstream of rabbinic discourse, which, despite its professed loyalty to tradition, depends heavily on novel concepts, unprecedented interpretations of old sources, and disregard of others. This is the paradox of rabbinic bioethics: a stringently conservative legal system whose teachings on body and healthcare are based on legal novelties that constitute a de facto reformation of rabbinic law. My working hypothesis explaining this paradox is that extralegal factors, mainly sociocultural, explain best why Halakhah developed in certain ways and not in other ways that are no less reasonable and substantiated by intrinsic halakhic standards. Especially in relation to medicine, a few major and interrelated revolutions in post-Holocaust Jewish life are worth mentioning. The poor, marginalized, small, and autonomous Jewish communities have disappeared. Almost all practicing Jews live as equal citizens in relatively affluent nations (e.g., Western Europe, the United States, Israel). The world wars wiped out the traditional communities of Eastern Europe; the establishment of the state of Israel brought with it mass migration that liquidated the oriental communities in Muslim countries. These social shifts entail the move of childbirth, sick care, and death from the privacy of the home and parochial assistance to modern hospitals and the inevitable reliance on modern, technologized, and multicultural healthcare settings. Another revolution is the establishment of the state of Israel. Although many Orthodox Jews (and most Reform and Conservative communities) were not initially Zionists, the responsibility for running a Jewish community at the state level was a new and unavoidable challenge, especially in the administration of healthcare. From a poor country of fewer than three-quarters of million Jewish citizens in 1948, Israel has become a prosperous 8 million-strong member nation of the Organization for Economic Cooperation and Development (OECD), seventeenth among all nations in the Human Development Index, with the largest Jewish community ever known, including the largest anti-Zionist and

Jewish Bioethics

16

Ultra-orthodox Jewish concentration on earth. It would be a serious mistake to study Jewish bioethics without taking into consideration this socioeconomic and political transformation. Overall, it is estimated that 14 million Jews are alive today, 6 million in Israel, 5 million or so in North America, a 1.25 million in Europe, and half a million in Latin America. According to the Israeli Bureau of Statistics, 20 percent of Israeli Jews self-define as Orthodox, 13 percent as “borderline,” and 25 percent as secular Jews who respect some aspects of the tradition.59 Orthodox identity entails adherence to the laws of Shabbat, kosher food, and menstrual purity.60 Almost all Orthodox Jews frequent synagogue at least on the Shabbat and send their children to religious schools (either state religious school or semiprivate and fully private schools). The men usually cover their head regularly with a kippah (Yarmulka). At least 90 percent of all Israeli Jews circumcise their male babies. The rates of observance in the Diaspora are much lower. Nobody knows how many Jews overall resort to the teachings of Jewish religious law when biomedical life-and-death questions are at stake. Overall, in this book, I will argue that three historical factors account for the paradox of Jewish biomedical law: (1) the relationship between the novelty of the problems and the positivist nature of Halakhah, (2) the dissolution of the old communal ways of life along with the advent of affluent industrial and democratic society, and (3) the legal novelties introduced during the nineteenth-century battles against secularism and reformation, which shook the formal scaffolding of halakhic reasoning and authority and stretched the “rule of recognition” within rabbinic Judaism.61 The radical conservative trends would embrace modern technology but keep it away from religious practice and the discipline of the body. This might have worked in relation to the baking of matzot (Passover’s unleavened bread) and burial of the dead, but not in the context of modern biomedicine. The regulation of life-and-death decisions must be based on certain understandings of life, body, health and similarly natural concepts.

on religion and religious law Writing on religion, I have in mind three different meanings of the term “religion.”62 The first is formal religion, that is to say, texts produced and respected by the relevant religion and recognized by its followers as embodiments of the teachings of their religion. The formal aspects tend to develop within the learned and powerful strata of society and to be promoted as more authentic and authoritative than others. Focusing on formal religion is at risk of further 59 60 61

62

Central Bureau of Statistics, 2011. P. 128. The “rule of recognition” is the overall set of conventions by which officials – in our case, rabbis – decide which norm is a law. This includes norms about legislation and adjudication. (Hart 1961). See Lamgmuir 1990, chapters 4, 9, 10.

Introduction

17

marginalizing the “subaltern” – the most vulnerable “others” and perhaps even the most vulnerable dimensions of the self.63 Mere legal analysis can be quite misleading when one tries to make inferences regarding value and practice. For example, Italian law negates a doctor’s right to conscientious refusal to perform an abortion that is needed to save the mother’s life.64 Israeli law has no similar clause. A hasty conclusion might be that Israeli society is more respectful of communal values and less protective of maternal life than is Italian society. But the truth is just the opposite, in the sense that only in a Catholic country like Italy would conscientious refusal to lifesaving abortion be in need of legal containment. Moreover, the very notion of conscientious refusal as a formal legal concept is alien to Halakhah and traditional Jewish society. Rabbis insisted that Israeli law recognize patients’ and families objection to the diagnosis of death by the brain death criteria, but, despite the fact that some Orthodox doctors and nurses do not subscribe to the “brain death” criteria of death, no request has been made to exempt doctors from participating in brain death committees and organ transplantation from the brain-dead. In Israel, it has been taken for granted that formalization is unnecessary to avoid conflicts between personal values and the provision of healthcare.65 In addition to the legal prescriptions, another important aspect of studying a legal system is close attention to those paradigmatic cases on which a legal system focuses and those about which a legal system is silent. For example, whereas the only case of abortion discussed in the Talmud is abortion undertaken as the only way to save the mother’s life, even contemporary official Catholic manuals to healthcare practitioners ignore this problem as if it does not exist all over the developing world.66 It is evident, therefore, that the role of law is not to match “cases” with normative instructions (i.e., “in case X, do/do not do/may do Y”). No less crucial for understanding the law, formal theology, and even social reality are questions such as which problems the law addresses, which problems adherents of a normative system bring before the legal system for arbitration, and which normative ideals and cognitive schemata a legal system internalizes and constructs for the people. The descriptive language and expressive norms of a legal system are no less informative than its directive messages. The second meaning of religion addresses its social expressions. These include habits, relationships of power, public opinion, and other factors constituting the manifestations of religion in social and material reality, its “etic” aspects; that is to say, all religious phenomena that are observable without reference to firstperson points of view (what people think, feel, believe, and otherwise experience 63 64 65

66

See Prakash 1994. Law 148 [1978], Article 9. See Rabbi Ovadia Yosef’s instructions in a letter by the Chief Sefaradi Rabbi Ammar, March 24, 2008. Printed in Assia 2010; 87–88:78. Pontificio Consiglion della Pastorale per gli Operatori Sanitari 1994, 104–109.

Jewish Bioethics

18

subjectively).67 The social dimension may be overtly religious, as in pilgrimages and donations to synagogues. Other social processes develop within a religious society and are clear products of its particular cultural environment. One such practice is the consultation clinics run by “rabbis” who refer the sick to experts and specialized hospitals. These rabbis also operate enterprises of voluntary help, lending medical equipment or having biopsies flown overnight for a second review on the other side of the globe. These activists are “rabbis” because they have been educated in religious academies (Yeshivah), because they dress like rabbis, and because they openly advocate the Orthodox way of life. But they also act in the function of respected advisors, sometimes as medical consultants without license. The third meaning of “religion” is religiosity, which is the psychological or psychospiritual experience of religion, what people feel and experience in their religious life and while acting or perceiving reality in religious terms. Religiosity encompasses mental events such as elation and guilt, whenever they are informed by and felt in religious idioms. The three meanings of religion may or may not overlap. One example would be the harvesting of organs for transplantation from non–heart-beating donors, which all halakhists endorse. However, many devout Jews decline donation of organs, fearing the fate of an incomplete body at the time of the resurrection of the dead. In this case, we find the formal law at odds with social reality and with the religious sentiments of the people. Elective abortion is another case in point. Although Jewish religious law is one of the most permissive legal systems with regard to abortion, many women are terrified at the prospect of terminating the lives of their children, perceiving abortion as in violation of their most cherished religious values. The “pro-life” activists in the Jewish world are religious people, led by rabbis. A third example is opposition and refusal to cooperate in vaccination programs and newborn screening. These phenomena are quite marginal, socially negligible, and yet manifested almost exclusively by observant Jews whose religiosity is a blend of Judaism and a proclivity toward “natural” medicine along with a suspicion of the medical establishment and adherence to doctrines such as homeopathy (which has nothing to do with Judaism). In light of its association with paganism, pantheism, and other “New Age” trends, the alliance of “naturalist” beliefs with Jewish theology is mind-boggling. And yet, the eldest and most pious and influential rabbis have reaped only partial success in their efforts to mobilize compliance with pediatric public health initiatives.68 This book aims to explain and reconstruct the formal aspects of Jewish bioethics and to couch them in their sociohistoric realities. Rabbis expert in religious law, whose writings and activities are studied in this book, also believe that formal Halakhah is, indeed, the normative face of Judaism. But this is a judgment an academician like me can neither endorse nor criticize. I have only 67 68

On the distinction between emic and etic, see Harris 1979, 32–34. Muhsen et al. 2012.

Introduction

19

made a methodological choice to focus this research on the study of rabbinic law and to enrich it with awareness of and insights coming from the other manifestations of religion and relevant academic disciplines.

methodological issues In the introduction to his book Jewish Biomedical Law, Professor Rabbi Sinclair observes that “Halakhah has been applied for over three thousand years, but its academic study in terms of any type of sophisticated legal theory is new.”69 Sinclair and other contemporary scholars usually pick up topics regulated by legal systems, such as common law, and scrutinizes the rabbinic literature in search of corresponding halakhic rulings, maxims, and modes of reasoning. As a matter of fact, the academic research of Jewish law on applied ethics and the discourse of Jewish law share a very similar paradigm. In this sense, Sinclair’s methodology is a self-fulfilling enterprise. In this book, I wish to depart in some ways from this style of thinking. First, one has to bear in mind that, as a historical phenomenon, “Jewish law” is not exhausted by the rabbinic normative literature. Rather, the internal regulations of the communities by means of codes of law70 and practices of law enforcement fit better the contemporary semantic range of “law.” Another kind of “law” is customary law, the oral traditions that pass from generation to generation. In Jewish history, some key bioethical issues belong to this domain; for example, the determination of death and issues of women’s health, including abortion care. Much overlap and symbiosis existed between the rabbinic discourse, with its idealized models of order, and the pragmatic administration of the communities. Sometimes, domains of regulation move from customary to formal ranges of influence, as is the case of the determination of death. A portrait of Jewish normative life will always remain distorted and partial until a fuller and more integrative study of rabbinic literature and communal law has matured. One notable example of the intricate relationship between rabbinic literature and communal administration is the charity of “visiting the sick” (Chapter Three). Until the Middle Ages, it was praised as a personal charity rather than an enforceable duty. Sick care was a private matter; only the poor were provided for by the community. From the sixteenth century until the demise of the poor Jewish communities in Eastern Europe and the Orient, local communities oversaw, usually by means of burial and sick care societies, an elaborate system of home care for the sick and hospital care for the indigent and itinerant. In 1933, there were in Poland more than 3,500 beds in fortyeight Jewish hospitals.71 Only a few were under the control and supervision of Orthodox rabbis, the first of which was established in 1831, in Posen, by Rabbi 69 70 71

Sinclair 2003, 4. ‫תקנות הקהל‬ Kottek 1981.

Jewish Bioethics

20

Akiva Eger (1761–1837). It contained thirteen rooms for patients, and the poor received care free of charge. In the prime of his rabbinic authority and power, Rabbi Eger visited the sick personally, even twice a day, and participated in night vigils by their bedside.72 Eger also hired men whose job was to survey Jewish homes daily and report whenever someone fell ill.73 This hagiographic account highlights the piety and efficiency of the rabbi. But the broader context is no less relevant for understanding the history of Jewish care. Following the Congress of Wien (1815), Posen was annexed to Prussia, and Jews were granted permission to exit their very crowded neighborhood. Because major German cities at the time did not tolerate large Jewish communities, small towns like Posen contained a large fraction of the overall Jewish population. In 1815, the Posen community numbered more than 1,000 souls – 5 percent of all German Jews. Like all other German Jewish communities, its population was growing by leaps and bounds,74 and the social problems of Posen Jewry began to exceed the capacity of small-scale communal life. The emancipation of the Jews amplified their rate of geographic mobility, with growing numbers of itinerant merchants and fortune seekers with nobody to rely on in case of illness. When a benefactor donated money to be used by the rabbi in the benefit of the community, Eger chose to build a hospital and a place for studying Torah (Bet Midrash75) inside it. His donor expressed trust in the “piety learnedness and faithfulness of the rabbi” and decreed that community leaders not interfere with the management of the hospital.76 This was also one of the earliest examples of the contemporary Ultra-orthodox (Haredi) tenet, according to which rabbis expert in religious law, “the opinion of the Torah,”77 are the ultimate arbiters of all public affairs, even in nonreligious and legal matters such as the regulation of healthcare. Entrusting the fund to the hands of the rabbi rather than to community administrators also started off a long legal and political struggle between the community and the hospital.78 At the time, the relationships between the German communities and their sick care societies were unraveling as well.79 One might naively think that it was natural for the traditional community to subordinate its affairs to the discretion of its learned rabbi. But, in actuality, as early as the thirteenth century, the learned rabbis lost their dominance in the Ashkenazi communities.80 At that time, a split opened between the learned 72 73 74 75 76 77 78 79 80

Yavetz 1875, 8. Bleichrade 1922, 5b. Lewonstein 2005, 95–102. ‫בית מדרש‬ Blum 1938, 85–86. ‫דעת תורה‬ Blum 1938, 86–87. Panitz 1990, 343–350. Handlesman 1980, 112–122, 250–280.

Introduction

21

rabbis and those appointed by their communities, and whose vocation was mainly pastoral and political. In the sixteenth century, the learned rabbis in Poland battled with rabbis who bought their positions with money (a kind of simony). The complex history and the struggle over the Jewish hospital and the tension between community leaders and rabbis on the study of anatomy are two examples of the complex relationship between “Jewish law” and rabbis expert in Halakhah. Thus, even though Eger was the community’s rabbi and even though the community was a traditional Jewish one, there was much room for tension between the rabbi and the elders regarding the management of their hospital. On other issues, they cooperated. In 1832, the rabbi disseminated detailed measures of public health practice to prevent contagion during the long and crowded synagogue services of the high holidays, restricting synagogue occupancy to less than 50 percent; he also ordered that worshipers who feel weakness should go home before the end of the service and eat.81 Whereas the latter instruction is relevant to his role as a rabbi, the former has nothing to do with Halakhah but with the kind of communal leadership over which the rabbis and the elders had been cooperating and struggling for centuries. Jewish communities regulated, sometimes harshly, deviant behavior such as gambling, child neglect, and spouse abandonment.82 But there is no evidence that these communities tried to regulate abortion; the sale, distribution, and use of contraception; and other practices that make fodder for the contemporary discourse on “Jewish bioethics” and “Halakhah and medicine.” These apparent gaps do not necessarily reflect tensions or differences between the rabbis and the civil leadership of the communities. Rather, we learn that many potent social norms thrive below the threshold of legal discourse. This book is committed first and foremost to the explication and historical and moral analysis of the rabbinic teachings on medical ethics. Hence, more abstract questions such as the role of “naturalism” in Jewish law and its position on “the value of life”83 will be dealt with sporadically, when the subject matter calls for it, and, consequently, not necessarily fully. The reader will find orderly treatment of the biomedical subjects at the price of a need to cull the scattered but interconnected excursions into abstract legal and moral analyses. In sum, this book offers rich and updated discussions on many staple topics in bioethics – from infertility treatments to brain death. However, my conceptualization of law and ethics in this book is broader than the image of a large menu of rules, with each one fitting a different yet specific problem. Jewish religious law and, perhaps, other legal and normative systems, is about ways of perceiving, thinking, articulating, feeling, reacting, and envisioning ideals of personal conduct and social life through critical engagement with the ultimate questions of life, death, human identity, and cultural heritage. 81 82 83

Eger 1971, 70–71 (mark 20). Baron 1942, vol. 2, chapters 14, 16. Barilan 2009.

2 An Outline of “Jewish Bioethics”

from the bible to the talmud From the distance of the twenty-first century, it is difficult to fully appreciate the almost complete absence of medicine in the Bible in general and in the Pentateuch – the five books of Torah – in particular. Health and healing played central roles in ancient religions; however, the first time medical doctors are mentioned in the Pentateuch is when Joseph orders his doctors1 to embalm the body of Jacob.2 The biblical acknowledgment of then world-famous Egyptian medicine3 is tinted with irony: the doctors in the Bible are slaves, and their expertise is sought only after Jacob has died. The Talmud does not take medicine for granted. It seeks permission to heal and finds it in the biblical verse “and shall cause him to be thoroughly healed.”4 Some talmudic rabbis do not accept this permission. Others limit it to the kind of healing discussed in the biblical text – man-made external trauma, such as the case of a man injured in a brawl.5 The code of the Babylonian King Hamurabbi on the same case mentions “payment to a doctor”; medical agency is not explicit in the biblical text. The second-century gloss Unkelos, which is the official rabbinic version of the Torah in Aramaic, translates this verse as referring to doctors. It is evident from later sources that attempts at healing need special permission, not only because of possible transgression into God’s jurisdiction over life and death, but because a doctor might accidentally harm or even kill a patient.6 According to the medieval sage 1 2 3 4 5 6

‫רופאים‬ Genesis 50:2. See The Odyssey, 4:257–259. Exodus 21:19. T. Berakhot 60a; see Brown 1995. Nahmanides 1964, 43; gloss Shakh on Yo’reh De’ah, 336:1.

22

An Outline of “Jewish Bioethics”

23

Rashi, this is why the Talmud proclaims hyperbolically, “the best of doctors [go] to hell.”7 The talmudic ambivalence regarding medicine is borne out in other subtle ways. For example, the Talmud counts “visiting the sick” but not healing or doctoring as emblematic of the virtue of “imitation of God.”8 When the Talmud lists occupations that are worth pursuing, medicine is conspicuously absent.9 In another place, the Talmud says “Medicine is not human’s [natural] way, but [people] practice it regularly nevertheless.”10,11 Maimonides and other rabbis attenuated this statement, which was made in association with bloodletting, arguing that medical use of dietetics and herbs is natural.12 In the Middle Ages, a significant number of Jews practiced medicine, many of whom were leading rabbis, such as Maimonides himself. People consulted practitioners regularly, sometimes regarding almost every minor symptom.13 In stark opposition to the talmudic reservation regarding the provision of medical care, the sick need no special permission to call on medicine. According to the Talmud, obtaining medical care is paradigmatic of sevara,14 a truism that is beyond questioning: “Whoever has a pain goes to the doctor.”15 It is notable that the Talmud does not mention disease, but pain. Rabbi Jakobowitz, Chief Rabbi of the United Kingdom and the “founding father” of Jewish bioethics, observes that “Jewish law, in its concern for the human weal, makes little distinction in principle between proper ill-health and mere physical pain.”16

Beyond empiricist trends and sensitivity to suffering, such as articulated by Jakobowitz, the sources may also reflect an awareness that even a slight symptom may be the harbinger of a fatal disorder.17 The Midrash says that all sick people should be treated as if their lives are in mortal danger (until proven otherwise).18 The question of whether a certain condition is a genuine “disease,” a source of agony, or only a sign of possible illness is of no importance to the rabbinic justification of medical treatment. The subjective perception of symptoms (root h-i-sh19) is enough. The talmudic sympathy with the common man who is anxious to diagnose and relieve his pain is contrasted with the biblical ideal, according to which obedience to God is the ultimate preventive medicine, 7

8

9 10 11 12 13 14 15

16 17 18 19

T. Kiddushin, 82. Ambiguity toward physicians was common in the Greek and Roman cultures (HaLevi 1983, 132–133). T. Bava Metzi’a, 30b. See Maimonides, Hilkhot A’vel, 14:1 and HaMe’i’ri gloss on T. Nedarim 39b. Kiddushin, 82a. .‫שאין דרכם של בני אדם לרפאות אלא שנהגו‬ Berakhot, 60a. Hilkhot De’ot 4; Karelitz 1979, 9–10; Waldenberg 1988, mark 2. Goitin 1963. ‫סברה‬ Bava Kamma, 46b. The Talmud writes that it is not allowed to live in a town without a physician (‫( )רופא‬Yerushalmi Kiddushin 4:12), but this is probably because there would not be an expert who could circumcise safely. See T. Avodah Zarah, 26b; T. Menahot, 42a; gloss Rashi on T. Sanhedrin, 17b; and Azulai (1795, part 1, mark 58). Jakobowitz 1975, 99. T. Shabbat, 32a, and Rashi’s gloss. See also Bet Yosef gloss on Tur; Orah Haim, mark 328:17. Ecclesiastes Rabbah, 3:2. ‫חיש‬

Jewish Bioethics

24

and God is the healer of Israel. Indeed, the only medicus20 mentioned in the Pentateuch is God himself: [I]f thou wilt diligently hearken to the voice of the Lord thy God . . . I will put none of these diseases upon these, which I have brought upon the Egyptians: for I am the Lord that heal thee.21

The Hebrew words may be read both as “that cures you” and “who is your medicus.” It is natural for any religion to promote the idea that a deity is the agent of sickness and healing, that sin and virtue are associated with sickness and healing, and that religious powers and knowledge bear therapeutic values. It is also natural for any religion to focus its religiosity and rituals on human finitudes – illness, disability, dying, and recovery. But the Hebrew Bible is conspicuously silent on these issues. The relatively rich system of biblical laws does not cover coping with illness, birth and death. The diseases mentioned in the verse just quoted are the supernatural plagues that God visited on the Egyptians, not ordinary maladies such as influenza, toothache, arthritis, or epilepsy. In the Bible, old age is associated with a general decline in the powers of the body.22 Infertility, such as befell the Matriarchs, is the only bodily condition (or disease) that naturally afflicted the Chosen People. Discussing Jacob’s last illness, the Talmud places natural disease as a blessing that allows people to prepare for their death. In this context, disease exists neither as a crisis during life nor as a treatable, horrible, or reversible condition, but as a premonition, a useful message from the body.23 This strange “disappearance” of sickness and dying from the biblical law is accompanied by an unprecedented marginalization of the healing powers of religion and its agents. In ancient civilizations, priests ministered to the sick, the deformed, and the disabled.24 According to the Pentateuch, Jewish priests (Kohanim) are involved in the care of only one condition – leprosy – and their role is limited to diagnosis, not to active therapy. Leprosy and “running issue” from the flesh25 are nonfatal skin conditions, with no apparent impact on internal physiology or physical fitness. They are construed more as religious conditions of the body, signs on the skin, rather than biological diseases. In comparison to the centrality of healing in Jesus’s mission, it is also worth comparing the characterization of Moses in relation to medicine. The Hebrew Bible is very careful in its description of Miriam’s leprosy: Moses prays for her deliverance, but he neither treats nor cures her. The Midrash describes Moses as an apprentice to God the Physician, a man who threatens (sic) to cure Miriam if 20 21 22 23 24 25

‫רופא‬ Exodus 15:26. E.g., Genesis 21:1, Deuteronomy 34:7. Bava Metzia, 87a and Rashi’s gloss. Barilan 2002. ‫ – זיבה‬Leviticus 15:2.

An Outline of “Jewish Bioethics”

25

God does not do so.26 The Midrash conveys the notion that when Moses received the Torah in Sinai, he also acquired the art of medicine.27 But this idea has not been developed (or rather, it was suppressed) in rabbinic literature. In the Bible, we find God’s wrath with Israelites who consulted “foreign” healers and prognosticians.28 Scholars have pointed out the suppression of mythology in the Hebrew Bible,29 and I conjecture that disease and healthcare were similarly suppressed to keep the Israelites away from pagan culture and to bolster the sovereignty of priests and sages at the expense of miracle workers. The biblical and rabbinic secularization of medicine entails strict rejection of religious healing of any kind, along with acceptance, and sometimes enthusiastic endorsement, of human care that is based on good faith, rational knowledge, and technical competence. Within this paradigm, healing a wound would be an art just like masonry and navigation, a vital worldly pursuit.30 It is noteworthy that a similar process of secularizing medicine, at least in the sense of independence of medical theory from theology, was typical of the Middle Ages, when medical treatises were based on nonreligious sources such as Hippocrates, Aristotle, and Galen. This process facilitated the emergence of “Western biomedicine.”

the secularization of medicine In the first century, and probably even earlier, there was considerable activity in religious healing among the Jews. Christianity was one offshoot of SecondTemple Jewry that placed emphasis on disease and healing. Mingling with the sick and curing them is so central to the Gospel and to early Christianity that Jesus became known as Christus Medicus, verus medicus, solus medicus. He is both the physician and the medication.31 All such practices and attitudes were harshly condemned by the talmudic sages who lived after Jesus.32 Judaism had to face the same dilemma that all other religions do with regard to medicine. Reliance on human agency challenges the belief in an omnipotent and just God. Either repentance is the only work of healing necessary, or disease should not have occurred in the first place. The other side of the dilemma is even more challenging. Reliance on pure religious healing might undermine faith whenever patients do not recover. Even worse, a successful healing by a rival religion might have a devastating effect on one’s own faith. 26 27

28 29 30 31 32

Deuteronomy Rabbah 6:6. T. Shabbat, 89a; Eisenstein 1928, 307. The sages read Psalm 68:17 as referring to Moses’s ascent to Mount Sinai, forcing his way against the angel’s resistance. Then they acknowledge the giving of the Torah to Israel and grant Moses the secrets of medicine ciphered in it. Cf. Genesis 32:24–32. II Kings 1:6; II Chronicles 16:12; discussed in Brown 1995, 47–53. Graves and Patai 1965, 11–15. See T. Berakhot, 60a. Arbesmann 1954; Crossan 1998, 293–304; Schipperges 1965. E.g., M. Sanhedrin, 10:1, T. Sanhedrin, 101a; Tosefta, Hullin, 2:22.

26

Jewish Bioethics

Institutions of mutual aid to the sick and the frail flourished among early Christian communities and might have contributed to the phenomenal success of the fledgling religion.33 Some scholars attribute the reassimilation of religion into classical medicine to the surge of epidemics and the disruption of social life that characterized the decline of the Roman Empire.34 It is with this historical context in mind that we should read the talmudic approach to medicine. The Mishnah asks regarding the “brazen serpent” of Moses,35 Does a serpent heal? Can a serpent bring life? No! As long as Israel looked at the serpent and thus turned their hearts to their Father in Heaven, they were cured, and those who did not [turn their hearts to God] were decimated by the plague.36

Since the Mishnah was redacted during the formative years of Christianity, it is striking that it does not even suggest that Moses was a mediator of healing. It is either the image or the believer who is the locus of cure. In another example, the sages commend King Hezekiah for scrapping the brazen serpent and for putting away a certain “Book of Medicines,” about which no further details are provided.37 Rashi, in his gloss on the Mishnah, explains that the Israelites used the book mechanistically, with no regard for God, whose will dominates over sickness and healing.38 Israel gazed at the serpent, but they would not turn their hearts to God; they would not repent.39 In his gloss on the Mishnah Maimonides disapproves strongly of this religious explanation, contending that the real reason for the action was that people abused the book’s medical knowledge. According to Maimonides, religious considerations cannot interfere with medicine; only reasons internal to it, such as safety and medical ethics, may account for deliberate rejection of a medical book. The Talmud discusses the biblical scene in which Elijah and the prophets of Baal set their altars next to each other on Mt. Carmel. The altar upon which heavenly fire would descend would bear witness to the deity to which it is dedicated. Elijah cried “Answer me God, answer me.”40 The Talmud asks why the Prophet had to repeat his words. The first time, the Talmud explains, was a supplication for a miracle, for a divine fire to descend from above. The second time was a request for recognition. Elijah pleaded with God that, when the miracle occurred, the audience acknowledge it as God’s miracle and not 33 34 35 36 37 38 39

40

Stark 1996. Castiglioni 1947, 244–247. Numbers 21:4–9. M. Rosh HaShana, 3:8 on II Kings 18:4. M. Pesahim 4:9 in relation to II Kings 18:4. T. Pesahim 56a Gloss Metzudat David on 2 Chronicles 16:12 reads “did not seek the Lord but Physicians” to mean “only physicians.” A different interpretation is offered by Nahmanides (Spain, 1194–1270) and Avraham b. Ezra (Spain and North Africa 1089–1164) in their glosses on Leviticus 26:11 and Exodus 21:19, respectively. I Kings 18:37.

An Outline of “Jewish Bioethics”

27

attribute it to witchcraft. It seems that divine intervention is needed to open people’s hearts to seeing miracles no less than it is needed to making miracles. It follows that, in the absence of special providential intervention, humans cannot distinguish God’s works from mere magic and, consequently, that not only are miracles as such not sufficient as religious testimonials, they might undermine faith unless a secondary, psychological miracle occurs as well. The reasonable conclusion might be that the providential assistance and virtuous personality that empower a person to recognize a miracle should probably suffice to recognize God’s hand in ordinary affairs as well. Going back to the Talmud, we find two formative statements that actually seem to separate faith from health and foretell Maimonides’ interpretation. The first is about harm prevention: Everything is under the control of Providence except for exposure to thorns and snares since it is said, “Thorns and snares are in the way of the perverse. He who guards his soul will be far from them.”41

The medieval commentaries Rashi, Tosafot, and other authors translate the archaic Hebrew words in the Bible “‫ ”צנים פחים‬into “cold and heat,” not “thorns and snares,” as in the King James Version of the Bible. This reading shifts attention from precautions to avoid accidents to Galenic preventive medicine (i.e., avoidance of excessive heat and cold). This placing of responsibility for prevention on human shoulders is a novelty. This is the second talmudic statement: Everything is under the control of Providence except for godliness.42

These two similarly structured aphorisms mark together a significant alteration of the biblical ethos. Whereas the Bible promoted piety and obedience to God as a surety for health, these maxims instruct people to strive in parallel. Every person is fully responsible for both his or her religiosity and his or her good health. It is not hinted that securing one track should guarantee the other. Although rabbinic Judaism has separated health and healthcare from acts of faith and even from the religious realm, Jewish law expects people to take care of their health, and Jewish theology teaches them to pray for healing when sick, to be grateful to God on recovery, and to accept His judgment when things turn to the worse. The special duty of self-care is secular or technical. Post-talmudic rabbis extirpated any trace of religious healing from the Talmud.43 One example is the talmudic saying that studying Torah is “a remedy to the body.”44 Although it makes sense to read this saying allegorically, gloss Magen Avraham (seventeenth century) on the codex of the law Shulhan 41 42 43 44

T. Ketubbot, 30a, on Proverbs 22:5. Berakhot, 33b. T. Bava Metzi’a, 107b. Eruvin, 54a.

Jewish Bioethics

28

Arukh45 writes that these words were said only regarding prevention, not treatment. The author of the gloss did not even try to shift the meaning to the allegorical; he shifted the literal meaning from treatment to prevention. Evidently, even in his time there were Jews who read the message literally. The rabbinic sources praise repentance, prayer, charity, and intensified religious devotion as essential to proper coping with adversity, including disease and suffering. The rabbis also approve of secular medicine and clearly extol a balanced combination of spiritual striving and worldly efforts.46 But repentance, prayer, charity, and religious devotion are not considered instruments of healing. The talmudic rabbis relentlessly struggled against the use of incantations in healing, even the use of biblical verse.47 Nowhere do we find Tefilin (phylacteries), Tzitzit, Shofar, Mikveh (ritual bath), and similar religious articles and practices within the context of medical use. Maimonides explains that religious articles and practices are “the cure of the soul” and must not be used to cure the body.48 Although scholars and lay people explain various Jewish practices, such as washing hands before eating bread, as hygienically valuable, such explanations have been external to Jewish law and theology. Rather, religious healing in Judaism has thrived in association with symbols that have no special role in religious law, most notably amulets and the tombs of holy men. Many halakhists have tried to suppress such norms, almost always to no avail. One partial exception is the habit of checking the mezuzot in response to serious illness and similar adversity. The mezuzah is a folded scroll inscribed with verses from the Bible that is placed, usually in an adorned case, beside every entrance in a Jewish home. People tend to leave it untouched for decades, but when opened for examination, it might be discovered that some script has faded away. Because it is held that the mezuzah confers providential protection, its natural degradation might explain a misfortune. The book of Kabbalah Zohar says that the mezuzah drives away demons and other threats.49 The codex of law Tur mentions this special power of the Mezuzah, but warns the reader to observe the practice out of obedience to God, not as a means of protection.50 The codex of law Shulhan Arukh omits this warning, but writes that negligence of the practice shortens life.51 Nonetheless, even the protective use of the mezuzah is limited to proper observance of religious law, as a generally protective item, not to the use of the mezuzah as a medicinal object. Many famous rabbis have been physicians as well, but they did not use their religious knowledge and authority in the administration of medical care. Some rabbis minister to psychosomatic conditions and mild conditions of anxiety and 45 46 47 48 49 50 51

Yo’reh De’ah, 239:7. Karelitz 1955, 140–141. Sanhedrin, 90a; Preuss 1978, 144–146. Maimonides, Hilkhot Avodah Zarrah, 11:13. Vol. 3, 260a. Yo’reh De’ah, 285:1. Yo’reh De’ah, 285.

An Outline of “Jewish Bioethics”

29

depression.52 The eighteenth-century German Rabbi Jacob Meir Segal discusses twelve different medical conditions that he managed to cure by means of combining foodstuffs with amulets. Only a patient suffering from a psychiatric problem of “bad thoughts”53 is told to study a certain tractate of the Talmud as a remedy.54 The rabbi collected his medical advice under the title “sciences,”55 explaining that although only expert physicians have permission to practice medicine, in their absence, every person who knows what to do should try to help. At the time, a shortage of physicians compelled the learned to publish treatises in the vernacular so as to assist the populace in coping with illness.56 In line with Jewish medieval practices, absent from his list of treatments are exotic and nauseating remedies derived from substances such as sweat and menses.57 In the Renaissance and early modern period, doctors taught that “great and terrible maladies” call for “great and terrible medicines,” and that homo hominio salus –“there is no part of the body or any excrement of the same, from which the physician will not be able to draw considerable fruit on behalf of the ill.”58 The rabbis have always been reluctant to forbid “treatments” that experts promoted, but, at the same time, they have never endorsed extreme and exotic interventions either. The rabbinic literature contains numerous discussions about religious methods of coping with supernatural afflictions such as “the evil eye,” bad dreams, and spirit possessions. Virtually all contemporary halakhists would send people with psychological and psychiatric symptoms to professional counseling. Charismatic healing and religious healing, including exorcism, are found in Judaism outside the circles of halakhic discourse and on the periphery of its legitimization. The rise of Kabbalah, and especially that of Lurianic Kabbalah and early Hasidism (mid sixteenth to early nineteenth centuries), is associated with the development of religious medicine and with the medicalization of theological language.59 It is also associated with the proliferation of sick care societies and spiritual manuals for sick care.60 Some hasidic rebbes revived the tradition of preferring pure faith healing to medical care. One obvious factor in this process is the implicit competition between the Tzaddik (hasidic rabbi, the rebbe) and

52 53

54

55 56 57 58 59 60

Schachter-Shalumi 1991, 248ff; Littlewood 2001, 97–109. ‫ – הרהורים רעים‬probably intrusive or obsessive thoughts. The word “hi’hur” indicates inchoate, less-voluntary thoughts or images passing through one’s mind. Koblentz 1788, 33b. The other conditions discussed are fever (‫)קדחת‬, trauma, epistaxis, irregular menses, postpartum loss of sensation, blain (‫)שחין‬, urinary incontinence, bloody vomit, colic, “internal heat” (‫)חמימות פנימית‬, and insomnia. ‫מדעים‬ Efron 2001, 80–82. Trachtenberg 1939, 202–203. Camporesi 1995, 30. See Shemesh 2013, 522–524. Idel 1995, 77–78; Fine 2003. Goldberg 1996, 85–92.

Jewish Bioethics

30

doctors. Hasidic rebbes did not receive salaries from organized communities, as rabbinic judges and community bureaucrats did; instead, they depended on donations from their followers. Many of these rebbes had to support a relatively lavish lifestyle and a vast entourage.61 Fear of the Enlightenment ideas of humanism and secularism might be another factor. Both elements are evident in an epistle by a prominent early rebbe (i.e., leader of a hasidic group), Isaac of Ziditchew.62

toward a rabbinic definition of “effective and reliable” therapies Some pre-Christian Jewish sources openly acknowledge the physician as the human mediator of God’s healing powers.63 But something changed in the rabbinic approach to medical care, in parallel and, in my view, in response to the advent of Christianity. The talmudic sages knew that it was impractical and even immoral to proscribe medicine, and they clearly did not wish to form a medical system of their own. At any rate, Jewish material culture was too poor to match Hellenic and Babylonian medicine. Moreover, the rabbis were aware of the dangers involved in entering into competition with numerous and diverse charismatic healers, one of whom was Jesus of Nazareth. Consequently, the talmudic rabbis were willing to embrace any medical theory and practice that might work. They only excluded healing practices whose power was ideologically associated with heterodoxy. Even though the Talmud is filled to the brim with all kinds of eclectic medical advice whose roots dig deep into the fertile soil of folklore and contemporaneous science and pseudoscience, for the talmudic sages, medical practice – diagnosis, prognosis, and therapy – had to be either secular or secularized. The sages did not endorse particular medical and scientific schools and theories either. One example is the permission to carry around a nail from a cross on the Shabbat, a very popular folk-therapy of the time.64 The sages may have been skeptical, but they would rather not pass judgment on medical questions.65 Maimonides explains that if a certain therapy works, it cannot be forbidden on grounds of emulating the pagans. In the Middle Ages, and for many centuries afterward, Maimonides was the only leading rabbinic authority who completely denied the power of magic and witchcraft, taking the supernatural arts as mere sleight of hand. Hence, according to Maimonides, any medicine that works empirically cannot be considered magic, even if people attribute its efficacy to magic and the natural mechanism is unknown.66 Rabbi 61 62 63 64

65 66

‫חצר‬ Steinman n.d., 198. See also Margalit 1962, 175–194. Ben Sira 18:19, 34:17, and 38:1–15. T. Shabbat, 67a; T. Hullin 77b. On medicine and folk medicine in the rabbinic sources see Shemesh 2013. See Urbach 1987, 85. Maimonides, Guide to the Perplexed, 3, 37.

An Outline of “Jewish Bioethics”

31

Shlomo b. Aderet (aka Rashba, thirteenth-century Spain) permits the use of magic only for medical purposes (a search for lost objects and inducement of love are two examples of popular nonmedical uses of magic).67 The Talmud forbids feeding the liver of a rabid dog to its victim.68 In his gloss on the Mishnah, Maimonides labels this cure as a “special medicine,”69 a term used in the Jewish sources to denote magical or idiosyncratic treatment. Maimonides rules that such a cure cannot justify the consumption of nonkosher meat. In his medical writings, Maimonides explains that “special medicine” is therapy without any rational basis; only experience testifies to its efficacy. He also warns that reliance on empirical observation alone might be dangerous.70 Rashi offers a sociological definition to “special medicine.” He explains that even though it is not an “established medicine”71 in terms of safety and efficacy, doctors prescribe it.72 Gloss Tosafot, which is an anthology from Rashi’s school, defines “established medicine” as treatment that is not considered experimental.73 The early medieval Geonic literature seems to distinguish between safety and efficacy. Although it is forbidden to resort to a treatment that expert doctors do not endorse as safe, tradition passing from generation to generation is a reliable source regarding efficacy. Amulets are presented as an example of safe treatment.74 It seems that the only relevant difference between carrying a nail from a cross and eating the liver of a rabid dog is the safety of the former.75 Hence, in my reading, the Talmud would tolerate every nonreligious therapy whose efficacy is questionable, but whose safety is not. Eating the liver makes sense as a sort of primitive vaccination or as a homeopathic measure. Nevertheless, the obvious risk involved in eating meat from a sick animal combined with the taboo on dog’s meat disqualifies its medicinal use, even though doctors prescribe it. Medieval rabbis granted permission to desecrate the Shabbat only when using “known cures recommended by experts.”76 It seems that the presence of two conditions justifies taking a medical risk – when both expert opinion and independent observation uphold the efficacy of the intervention in question.77 For desecrating the Shabbat, one must show that experts prescribe the treatment and that it is either risk-free or effective. Some rabbis were not content with 67 68

69 70 71 72 73 74 75 76

77

Shlomo b. Aderet 1997, mark 167. Yoma, 83a. Rabbis tended to permit because it is not “ordinary eating” (‫)אכילה שאינה כדרכה‬, and because it consists of low quantity. Engel 1958, mark 12. ‫רפואה סגולית‬. See Shemesh 2013, 525–541. Muntner 1959, 18. ‫רפואה גמורה‬ T. Yoma, 83a. See also Aderet 1990, part 1, mark 413 in the name of Nahmanides. T. Berakhot, 38b. Levin, 1941, 152. For a different explanation, see Mizrahi 1905, mark 2. Magen Avraham gloss on Shulhan Arukh, Orah Haim, mark 339:1. See a very comprehensive survey in Yosef 1995, Orah Haim, 37, and Glochovsky and Halperin, 2005. Tosefta Oholot 4:2, T. Nazir, 52a. This settles the unanswered question in Kahana 1950, 63–65.

Jewish Bioethics

32

safety and required some reasonable grounding for its use. In the only codex of law coming from the Hasidic movement, Rabbi Schneerson writes that repeated success in the hands of an expert is such grounding, even if that expert has a record of failures as well.78 Put in contemporary jargon, reliable medicine must be endorsed by recognized professionals on the basis of “evidence-based” studies. A more modest and more open reading, coming from the Schneerson’s Hasidic stream is “a cure that is either recommended by experts or known to all.”79 This reading would exclude idiosyncratic folk remedies. In his commentary on the Mishnah, Maimonides writes: One may violate a religious taboo [in the context of healing] only by [an act of] cure, which is something clear, which reason and experience mandate [doing]. But treatment with special [medicines] – no, because their [power/epistemic certainty] is weak, they are not supported by reason, and there is not much [valid] experience [doing it], it is just [derived] from mere saying/claim.80

In his Codex of Law, Maimonides also writes: It is permitted to chant [magical formula] over a fresh snakebite, even on the Shabbat. It will not help the patient at all. However, because life is at stake, [the sages] gave this permission [to chant], lest he loses his mind.81,82

In many places in this book, we will see this rabbinic naturalist presumption: that patients in danger are at special risk of lethal mental anguish or trauma. This worry justifies many leniencies, even to the extent of lying to the patient and the performance of apparently pagan gestures. When life is not at stake and the context is not therapeutic, rabbis may find medical opinion too weak to dispel a worry over sin (e.g., when the question is whether a spot of blood comes from the uterus and is hence a source of impurity that prohibits intercourse). Some rabbis write that since “expert doctors” often disagree with each other, the reliability of expert opinion is problematic.83 The rabbis did not tend to distinguish between university-ordained doctors and wise,84 knowledgeable85 female practitioners,86 but it seems that they trusted wise women and suspected professional doctors of being subjected to bias and conflict of interest.87 Although the Talmud says that women are

78 79 80 81 82 83 84 85 86 87

Schneerson 1884, O’rah Haim, mark 36. Shneur Zalman of Liadi 1875, mark 139:1. Commentary on M. Yoma, chapter 8, based on translation from Arabic in Kappah 1964, 173. ‫תטרף עליו דעתו‬ Hilkhot Avodah Zarrah, 11:11. For a discussion on the reliability of doctors ‫ נאמנות הרופאים‬see Kahana 1950, 63–67. ‫ – נשים פקחות‬this expression is from Landa 1880, mark 42. ‫נשים בקיאות‬ Landa 1880, mark 49. Halbershtam 1875; Yo’reh De’ah, mark 79.

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33

typically insouciant,88,89 the early medieval authority Alfasi (Rif) explains that because midwifery is an art of women, midwives are not considered insouciant, but are fully trustworthy in life-and-death decisions.90 However, when money is at stake (e.g. the divorce fine), midwives’ physical exam of virginity has no legal power.91 Rabbi Weiss, who would become the chief of the Ultra-orthodox Rabbinic Court of Jerusalem, wrote that critical decisions should be taken by a special majority of experts in the ratio of at least two to one, out of concern for insouciant doctors.92 Post-talmudic authorities did not hesitate to forbid the use of medicines advocated by the Talmud.93 Maimonides and other medieval rabbis distinguished between talmudic rules, which bear a status similar to “the laws of Moses from Sinai,” and other statements of wisdom, whose validity is not absolute.94 All medical advice was placed under the latter category, thus further neutralizing the religious dimensions of Jewish medicine. The author of the rabbinic codex of law Shulhan Arukh, Rabbi Karo, explains that talmudic medicine was relevant only in the context of the Babylonian milieu;95 other authorities assert that human nature has changed much since the times of the Talmud.96 Evidence of the full separation of medicine from religion in Halakhah is found in a late nineteenth-century commentary on the law of “special medicine.” The author treats supplication by a pious/holy man97 like a “special medicine,” by forbidding the desecration of the Shabbat for the sake of sending a notice to a holy man with an urgent request for prayer for the life of a patient. Rabbi Burstein, writes that “prayer may not work.”98 Burstein, who was himself a Hasidic rebbe, could have certainly applied Schneerson’s criterion to the supplication of a holy man – it has worked many times, even though it has a record of failure. In summary, the Talmud crafts an approach to religious dialogue with medicine that combines trust in practitioners (even if they are not organized as a profession) and objective criteria of efficacy. Whereas this approach is useful for handling the problem of risk and for differentiating medicine as a technology from religious healing, it is still necessary to determine the power of medical care to compromise adherence to religious law.

88

89 90 91 92 93 94 95 96 97 98

‫ דעתן קלה‬meaning hasty in reaching conclusions; unable to form a stable opinion, disinclined to process difficult information. T. Shabbat, 33b. Yoma, 4b Levin 1937, 148–150 (mark 348). Weiss 1968, 9; Reischer 1897, Yo’reh De’ah, mark 75. Gloss Tosafot on Mo’ed Kattan, 11a; Levin 1941, 152. Zimmels 1952, 8–9. Kessef Mishne gloss on Maimonides’s Hilkhot De’ot, 4:18. Zimmels 1932; Steinberg 1991, 244–303. ‫צדיק‬ Burstein 1905, 145–146.

Jewish Bioethics

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the fundamental maxim of recovering a soul or saving life Respect for human life is the first moral principle in the Bible. From the story of Cain and Abel, we learn that the taboo on homicide is self-evident. Cain was severely punished for killing his brother, even though God never proclaimed a prohibition on murder. Only to the survivors of the Deluge, and possibly because humanity had failed to interiorize this self-evident taboo, was prohibition on bloodshed formulated as an offense against the Image of God and formalized in the covenant with Noah, which was the first and only covenant between God and all of humanity.99 The proscription of murder appears in the Ten Commandments, which are the essence of the covenant between God and Israel.100 Maimonides writes, “Although there are sins graver than bloodshed, nothing destroys the world like bloodshed.”101 In the Torah, we find much emphasis on personal and social responsibility for safety,102 as well as a direct prohibition on refraining from rescue: “neither shalt thou stand against the blood of thy neighbor.”103 Rashi’s gloss cites a talmudic Midrash, “[do not stand idle] witnessing him dying while you can rescue, for example, [if] he is drowning in the river or ambushed by bandits.” The latter example might be a direct referral to the Good Samaritan story.104 At least in some Jewish medieval circles, the injunction against “standing idle on the blood” was relevant to competent medical care and not only to direct and simple acts of rescue.105 Nahmanides adds “[the person] who despairs and refrains from doing [medicine] is certainly a spiller of blood.”106,107 Rabbi Karo, the author of the codex of law Shulhan Arukh, cites Nahmanides with one subtle alteration. He clearly directs the admonition against despair to the patient, not the doctor.108 The Talmud proclaims that saving a single soul is like saving the whole world.109 Nonetheless, since biblical law prescribes the death penalty for violation of the Shabbat and other offenses, and early (mishnaic) law – later overruled by the Talmud – instructs a person not to interrupt his prayer even if “a snake is embracing his ankle,”110 it is not unreasonable to suppose that the duty to save life is not stronger than fundamental religious values such as the observance of

99 100 101 102 103 104 105 106 107 108 109 110

Genesis 9. Exodus 20:12. Hilkhot Ro’tze’ah, 4:9. Deuteronomy 21:1–9, 22:8. Leviticus 19:16. Luke 10:30. Wistinetzki 1924, mark 178. ‫וכל שכן המתייאש ואינו עושה‬ Nahmanides 1964, 42. Beit Yosef, Yo’reh De’ah, 336:1. Sanhedrin, 37a. See p. 99, footnote 2. Berakhot, 30b.

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the Shabbat. Indeed, one of Jesus’s challenges to the pharisaic Jews was his cure on the Shabbat: And it came to pass also on another sabbath, that he entered into the synagogue and taught: and there was a man whose right hand was withered. And the scribes and Pharisees watched him, whether he would heal on the sabbath day; that they might find an accusation against him. But he knew their thoughts, and said to the man which had the withered hand, Rise up, and stand forth in the midst. And he arose and stood forth. Then said Jesus unto them, I will ask you one thing; Is it lawful on the sabbath days to do good, or to do evil? to save life, or to destroy it? And looking round about upon them all, he said unto the man, Stretch forth thy hand. And he did so: and his hand was restored whole as the other. And they were filled with madness; and communed one with another what they might do to Jesus.111

We may first notice that religious healing is not perceived as prohibited, but that the desecration of the Shabbat is. This observation may bolster my contention that rabbinic hostility to religious healing developed in reaction to dissenting and charismatic practitioners like Jesus. Whereas the legal prohibition on taking medicines on the Shabbat is mild – it is derived from a worry that people might grind drugs on the Shabbat112 – the broader context of the talmudic deliberation addresses the problem of trust in non-Jewish practitioners and sectarian faith healing.113 Second, it seems from the story that healthcare as such is prohibited on the Shabbat. But the talmudic law that prohibits work on the Shabbat does not consider medical care as “work.”114 Only care activity that involves violation of specific taboos on work, such as the grinding of medicines, might be prohibited. Last, although Jesus spoke about saving life, the cure of the man with a withered hand cannot be considered lifesaving; it was not even an emergency. The rabbis might have agreed with Jesus on the permission to save life on the Shabbat, but they might also have been upset by the provocation and by the performance of non-lifesaving and nonurgent cure on the Shabbat. The rabbis would not accept Jesus’s proclamation that “the Sabbath was made for man, not man for the Sabbath”115 as justifying the saving of a poor man’s domestic beast on the Sabbath.116 But the rabbis could account for the violation of the Shabbat in terms of the value of Shabbat. As one talmudic rabbi explains, “Desecrate for him [the person in need of rescue] one Shabbat, so as to enable

111 112 113 114 115 116

Luke 6:6–11. T. Shabbat 53b; Steinberg 1998b, 351. T. Avodah Zarah, 28a–28b. ‫מלאכה‬ Mark 2:27. Matthew 12:11. It appears contra to Halakhah that Jesus and the pharisees share the presumption that it is permissible to desecrate the Shabbat for the sake of this animal. Perhaps the people tolerated the rescue of the animal, which entails minor breaches of the laws of Shabbat (it transgresses a lower level prohibition) in order to prevent more serious breaches. See T. Yoma, 85a, on the recovery of a dead body from the fire.

36

Jewish Bioethics

him to observe many shabbatot [in the future].”117 In the sugya (talmudic deliberation), we also find a permissive opinion similar to Jesus’s. “Rabbi Jonatan b. Joseph says, because it is said ‘Observe the Sabbath, because it is holy to you,’118 the Shabbat is in your hands, [and] you are not given in her hand.” Overall, the early talmudic deliberation, citing Mishnaic rabbis, offers six different explanations accounting for the duty to violate the Shabbat for the sake of saving life; none is found satisfactory. The seventh closing argument is brought in the name of a talmudic rabbi who was also a physician. Citing the rabbi and physician Shmuel, the Talmud concludes that, when life is at stake, it is imperative to desecrate the Shabbat and almost all other religious taboos because it is written “Ye shall therefore keep my statutes, and my judgments: which if a man do, he shall live in them: I am the Lord.”119 This fundamental formulation does not place the laws at the service of man, but rather frames human life as more valuable than refrainment from occasional religious transgressions. The Talmud observes that only from Shmuel’s mode of reasoning do we learn that it is imperative to desecrate the Shabbat even in cases of doubt.120 A very similar talmudic deliberation is in search of a reason why the Biblical law of talion, “eye for an eye,” must not be applied literally but in terms of pecuniary reparations. The Talmud first proclaims that literal interpretation is unreasonable, and then scrutinizes a long list of jurisprudential justifications to the protection of human life and bodily integrity.121 The Talmud condemns a pious man who refrains from saving a drowning damsel, labeling such a person “a foolish pious, [a person] who brings destruction to the world.”122,123 Devout men took special precautions in their care of women.124 The premodern rabbis applied this precept to medical care, expressing reservation with regard to men nursing female patients.125 Some contemporary rabbis encourage women to consult female doctors, especially in the area of gynecology, provided that the female practitioner is as competent as the male alternative.126 Rabbi Feinstein gave permission to a man whose doctors prescribed swimming to go to a public pool where women bathe as well.127 These permissions are based on the talmudic maxim that people who are focused on one task (e.g.,

117 118 119 120

121 122 123 124 125 126 127

Yoma, 85b. Exodus 31:14. Leviticus 18:5. Yoma, 85b. This particular discussion makes reference neither to Shmuel’s vocation nor to medicine. Bava Kama 83b–84a. ‫חסיד שוטה ומבלה עולם‬ T. Sottah, 21b, and see gloss HaMe’i’ri. For further discussion, see Jakobowitz 1975, 95–96. T. Ta’anit, 21b. Ayyash 1998, 21. See Jakobowitz 1975, chapter 10. E.g. Wasner 1986, 278; Yosef 1990, 222. Feinstein 1964, Even Hae’zer, mark 56.

An Outline of “Jewish Bioethics”

37

healthcare) are not likely to be aroused erotically.128 Moreover, the sexual taboos apply in lustful circumstances,129 not in health-promoting activity.130 The rabbis do not say that saving life is more important than respect for sexual taboos and etiquette, but they rely on a psychological presumption that people who are busy with care are not prone to erotic distraction.131 The paradigmatic rescue situation in the literature is a person trapped under the rubble of a collapsed building, a common hazard in those days.132 The halakhic maxim is “recovery of a soul [from under the rubble] pushes aside the Shabbat.”133 This maxim is known by the name Pi’ku’ah nefesh – recovering a soul. The Talmud explains that asking a rabbi whether to desecrate the Sabbath while engaged in saving life is like spilling blood, and the rabbi who is approached with such questions deserves condemnation.134 This is because a person might die during the deliberations, and the rabbi had a duty to inculcate in his congregation prompt action rather than contemplation whenever life is in danger.135 The talmudic and post-talmudic rabbis ruled that the rabbis and the respectable people of the community should be the first to act, so as to dispel any worry about proper conduct on the Shabbat. The principle of recovering a soul is also applicable when it is possible to extend life only temporarily.136 As powerful and universal as the principle of recovering a soul has become, it has a few exceptions – the taboos on idolatry, on adultery/incest, and on assault against another person.137 Most rabbis also think that it is forbidden to steal for the sake of saving a life.138 Rabbi Ettlinger forbids one to save one’s life by an act that humiliates another person.139 Within modern medicine, there is no need to save life by means of idolatry or adultery, and a person is certainly expected to consent to the use of his or her property for the sake of saving a life. Hence, the dominant factor in the limit on saving life is assault, nonconsensual harm. The duty to life is bidimensional. It is an interpersonal duty in respect of other people’s best interests, and it is also part of the Covenant between God and Israel. Rabbi Pinhas HaLevi Horowitz (eighteenth century) infers that a non-Jew who is not bound by the laws of the Covenant of Sinai (has no

128 129 130 131 132 133 134 135 136 137

138 139

Avodah Zarrah, 20a. ‫דרך תאווה‬ Ishmael HaCohen 1823, mark 116. Ettlinger 1868, mark 75. E.g., T. Ta’anit 22b. ‫פקוח נפש דוחה שבת‬ Yerushalmi, Yoma 8:5. Israel Meir HaCohen, gloss Mishna Brura on Orah Haim, mark 328:6. T. Yoma, 84b–85a. See Rashi’s gloss. T. Pesachim, 25a. Maimonides, Hillkhot Yesodei Hatorah, 5, 7. Compare with Rashi on T. Sanhedrin, 74a. T. Bava Kamma 60b. Nahmanides gloss on T. Ketubbot, 19a. Ettlinger 1868, marks 170, 173.

Jewish Bioethics

38

“commandments” to act on) may conscientiously undertake risks that a Jew is not permitted to do.140 Dr. Reiness argues that fear of social disintegration, and not mere respect for spiritual values, is the reason why the taboos on idolatry, adultery, and assault may not be violated even for the sake of saving life.141 His attitude is borne out by a story of a man who became mortally infatuated with a virgin, a sort of “love sickness.” The doctors opined that the only way to cure the man and save his life was by at least having the girl strip naked in front of him, a lesser violation than full sex. The Talmud conspicuously refrains from questioning the validity of either diagnosis or prescribed treatment. The Talmud does not suggest that it is better to die than to defile one’s soul with acts of fornication. Nobody suggests that the woman had better marry the man, or altruistically expose herself for a few minutes. The reasons given by the Talmud against this cure is protection of the woman and of the dignity of her family.142 The contemporary consensus among rabbis is that the healthcare system should continue its routine urgent care (i.e., inpatient service, emergency operations) even on the Shabbat. A few Jewish religious hospitals employ non-Jews to reduce the work performed by Jews on the Shabbat (e.g., since writing is a “work” prohibited on the Shabbat, these gentiles write what the Jewish doctors dictate). It is also acknowledged that because deviations from routine healthcare procedures are inherently risky, doctors should abide by routines of care and not strive to reduce to the minimum possible “work” on the Shabbat. Hence, although writing with the left hand is a more minor offense to the Shabbat than writing with the right, healthcare providers do not try to make this laborious effort.143 As a rule, medical care should be given without the interruption of religious considerations. A notable example is a ruling by Rabbi Auerbach, according to which it is permitted to perform an operation on the Shabbat even if, by good medical standards, it would be safe to postpone it by a day or two. Even though the doctors consider such delay as safe, the psychological distress of the patient is considered unacceptably risky.144 At this point, the halakhic construction of the maxim of saving life departs from its naturalistic boundaries and professional standards. Rabbi Auerbach explains that in the face of life-threatening illness (presumably, this is determined by doctors), anything that alleviates pain and “relaxes and refreshes” the patient is considered part of the maxim of saving life, even when all doctors believe that withholding this support or, for that matter, postponing surgery or withholding intravenous morphine might not increase medical risk.145 We can see that

140 141 142 143 144 145

Horowitz 1851, 155b. Reiness 1953. Sanhedrin, 75a. See Halperin 1996. Avraham 1997, 26. Avraham 1997, 27.

An Outline of “Jewish Bioethics”

39

neither medical science nor professional risk stratification count toward the permission to desecrate the Shabbat, but the vulnerability of the patient whose life is at stake does. The most striking example in this regard is Rabbi Neuvirt’s permission to drive a car on the Shabbat in order to accompany a woman on the way to give birth in a hospital. Even if someone is already accompanying the parturient woman, a person whom she trusts may drive his or own car in order to be with her in the hospital, lest she “lose her mind.”146,147 This radical permit was given in the face of a obstetric mortality that is lower than 1 in 10,000 and despite no evidence that hospital birth without the company of a trusted friend or kin carries any psychiatric or medical risk whatsoever.148 In one case, Rabbi Neuvirt, who is considered an Ultra-orthodox authority on the laws of Shabbat, told family members to ride in a car on the Shabbat in order to be at the bedside of a son who was hospitalized for an injury. He said that it is “self-evident” that the quality of care is better when doctors see family members at the bedside. One famous Tzaddik (pious, holy man) had the habit of lying to healthcare teams, telling them that he was a relative of the anonymous sick people he charitably visited.149 The rabbis have not swept away the laws of Shabbat in respect to all parturient women, however: as long as she can walk and water has not broken, the leniencies do not obtain.150 But once active labor has begun and mental strength is at stake, the rabbis seem to have given up on proportionate judgment, scientific risk assessment, and evidence-based reasoning. In the face of professionally recognized risk, one may always desecrate the Shabbat, but the power of the halakhic-naturalist presumption that birthing women’s lives are especially vulnerable to anxiety, even when professionals think otherwise, depends on the positive-halakhist distinction between a kind of “latent” and “active” birthing process. However, throughout pregnancy, a woman who craves for food on a day of fast may eat until “her soul relaxes”; like a child, she benefit from the status of a sick person who may eat if he or she feels a need to.151 Indeed, in addition to professionally determined circumstances of danger, special halakhic remissions apply to well-defined situations, which Halakhah beholds as risky regardless whether professionals consider them risky or not. On the basis of the codex of law and its exegetical literature, Rabbi Kahana summarizes the key categories of illness relevant to leniencies of the laws of the Shabbat:152

146 147 148

149 150 151 152

‫תטרף עליה דעתה‬ Avraham 1983, 224. Rabbi Dr. Halperin believes that birthing women constitute a special category of patients, toward whose mental state of mind Halakhah is extraordinarily permissive (Halperin 1994). Catane 1997. Avraham 1993, 227. T. Yoma 82a. On the sick status of the child, see p. 188. Kahana 1950, 67–68.

Jewish Bioethics

40

A person who has mere symptoms,153 but he walks about like a healthy person – no leniencies. A patient who is either in bed or suffers from pain “all over his body,” but without risk to life – a non-Jew may prepare medicines for him. A patient whose illness poses risk to life – it is mandatory to desecrate the Shabbat and other religious taboos if this is necessary for reducing that risk.

Even trauma to the teeth and to any tissue more internal to the teeth may be considered as risk to life. Risk to an eye is like risk to life.154 Whenever in doubt, one must also desecrate the Shabbat for the sake of life. Neither the Talmud nor the later sources ask why a risk to one eye is like a risk to life and a risk to another organ or a set of organs is not. Since the talmudic deliberation sets the teeth at the boundary between “external” and “internal” conditions, assuming that “internal” ones are risky, I conjecture that the internal position of the eye within the skull is responsible for its classification as an “internal” organ. In the Code of Hammurabi, loss of an eye is considered like loss of life.155

western and rabbinic meta-narratives of medical ethics Contrary to Christianity and Islam, the rabbis have allowed medicine complete freedom from religious authority.156 Rabbinic respect for free entrepreneurship, private property, and the freedom of science is so strong that only “sound evidence of direct harm to persons” and not mere “slippery slope” considerations may disqualify an enterprise or a business of any kind.157 The immunity of medical endeavors from communal regulation is even stronger.158 Whereas in the Occident moral theology in the past and bioethics in the present act as the watchdog of medicine, science, and technology, Halakhah usually sees its role in lifting religious and other potential impediments on medical practice and progress. Halakhah’s inclination toward empiricism and away from metaphysics is expressed in its reluctance to classify acts by their “essence” as either good or bad. Desecration of the Shabbat for the sake of saving life is not an act of violation at all. Proper observance of the Shabbat in such circumstances calls for the action that is otherwise tabooed.159 The halakhic nonessentialist approach is borne out by comparison to medieval Roman Catholic moral theology. For example, in the Fourth Lateran 153 154 155 156 157 158 159

‫מיחוש בעלמא‬ T. Avodah Zarah, 28b. Clause 218. Jakobowitz 1975, 1–10. Steinberg 2003. Feinstein 1959, mark 127. Gloss Or HaHaim on Exodus 13:13 and detailed discussion in Steinberg 1998b, 289–290.

An Outline of “Jewish Bioethics”

41

Council, Pope Innocent III forbade clergymen to practice surgery on the grounds that consecrated life is incompatible with the shedding of blood.160 Pope Innocent III did not distinguish between spilling blood for the sake of healing and that which is done maliciously or wantonly. He declared the very act of cutting the body by means of sharp metals as “un-Christian.” In the talmudic discussion on the permission to practice medicine, the sugiyah161 (deliberation) actually contrasts two kinds of man-made injuries to the human body: an assault and its surgical treatment.162 Nahmanides, who was contemporaneous with Innocent III, and who tended to prefer mere trust in God to human medicine, writes that a surgeon fulfills the duty of neighborly love when cutting the patient. For the word “cutting,” Nahmanides uses the very same biblical word as that designating physical assault.163,164 In the same vein, contemporary rabbis discussing cosmetic surgeries opine that the main consideration is neither the violation of the natural body nor self-risk (as long as it is reasonable and freely chosen) and injury but the interpersonal context. Only assault that is “like in a brawl”165 is forbidden.166 This rabbinic openness to well-intentioned and scientifically based medical intervention – however radical – does not entail endorsement of paternalism. In one talmudic story, Shmuel, who was both a rabbi and a physician, tricked Rav, a famous rabbi in his own right, into receiving a therapy for gastroenteritis. The treatment first induced painful constipation and then forceful evacuation. Although Rav recovered from a life-threatening illness, the “patient” cursed Shmuel that he would become childless.167 We have seen in this chapter that Shmuel is the sage who formulated the definite and most far-reaching argument in support of the principle of “recovering a soul.” In other places, the Talmud praises Shmuel as a physician and as a scientist.168 Even this story testifies to his medical competence. However, the talmudic narrative neither approves of nor condemns either Rav’s noncompliance or Shmuel’s paternalism and vitalism. The fundamental question of medical ethics – balancing beneficence with respect for autonomy – is left unresolved. It seems that the Talmud deliberately avoids closure here, indicating the possibility that the exigencies of life might impose on people two opposing and equally cogent points of view and voices: the competent person must save life; the patient may decline unbearable treatment even at the price of life. The legal mind seeks principled and coherent resolution to such dilemmas; the stories within the corpus of legal authority impart doubts about 160 161 162 163 164 165 166 167 168

Catholic Encyclopedia 1910, vol. 9, 18. ‫סוגיה‬ Bava Kama, 85b. ‫חובל‬ Nahmanides 1964, 43. See T. Sanhedrin, 84b. ‫דרך נציה‬ Gutman 2004. Shabbat, 108a. Niddah, 25b; Bava Metzia, 85b and 113b.

42

Jewish Bioethics

the feasibility of the legal enterprise. People’s fundamental desire to live in peace with their good actions may remain forever unfulfilled. Halakhah does not guarantee closure. When food is brought to a rabbi with a question about its kosher status, Halakhah is as close as it can be to a deontological system. But the Halakhah of intimate, sexual life essentially involves counseling, second order decisions (what is good to desire; ideals of conduct) and spiritual-psychological support. In religious studies, this dimension of normative guidance is referred to as “pastoral”. Much of it is present indirectly, even non-verbally. The other dimension of the pastoral role of religious authority is public leadership. As we will see in this book, in the past, private pastoral work in intimate life was the turf of intimate circles of feminine care. Voluntary sick care societies counseled and serviced the gravely ill and dying. Outside of Hasidic circles, little is known about the routes of pastoral socialization of Jewish men, especially in matters of sexuality. Principally, the community rabbis exercised authority over all of these and other social processes; but in actuality, unless questions were brought to their judgment, they hardly interfered. Rather, they often deferred to the complementary routes of traditional wisdom and guidance. The growth of the national state’s bio-power – provision and regulation of fertility and infertility medicine, for example, has inflated the roles of legal formulations at the expense of other dimensions of normativity. The internet has also facilitated rich halakhic discourse on intimacy and sexuality, much less on clinical ethics. Many open-access e-responsa are collectively signed by groups of rabbis who do not interact personally with their interlocutors. In many ways this genre resembles popular self-promoting websites on health, wellness, sexuality and normativity. The diverse disciplinary discourses – state and institutional regulation on one hand and externalized impersonal and anonymous ideals of intimacy on the other hand – might reflect back passing, prevailing mentalities rather than reveal historically thick traditional values. One must be careful to idealize neither the past nor its shape-shifting representations. Especially in the light of these new disciplinary discourses, one is at risk of missing the openended, non-essentialist and pluralist approaches of Halakhah to bioethical questions.

3 Health and Healthcare

health, regimens of health, and preventive medicine In the Hellenic world, in India, and in other cultures, health is much more than the absence of disease, disability, deformity, and suffering. Aristotle saw health as a special state of excellence, a perfect balance of all opposing forces that operate in an organism. Health brings the person into accord with nature.1 Health is cultivated by means of regimens of health, for example, dietetics, gymnastics, and body-manipulations.2 Rabbi Jakobowitz points out that the rabbinic sources ignore Egyptian and Hellenic regimens of health. He attributed this to the Babylonian environment of the dominant talmudic corpus, the Babylonian Talmud.3 The rabbis endorsed medicine as a means to cultivate and preserve the body. In the talmudic literature, wholesomeness in the body means sexual purity, which is implicitly associated with large and strong progeny.4 Yet, in Judaism, the emphasis is on care and maintenance rather than on physical and biological excellence or “super health.”5 In response to a sectarian Jew who argued that medical care offends against the will of God who is responsible for illness, the rabbis retorted, Man is like a tree, if it is not trimmed, manured, watered and weeded, it does not survive. The body is like a tree; the physician is like the farmer and the medicine is like the fertilizer.6

1 2 3 4 5 6

Belfiore 1992. Jaeger 1943, 45; Stewart 1997, chapter 4. Jakobowitz 1975, 25. Genesis Rabbah 49:1. See Alter 1999. Buber 1893, 54. See Ben Sira, 18.

43

44

Jewish Bioethics

The tree metaphor stands in stark contrast to the Hellenic conceptualization of the human body as a muscular and graceful shape in motion.7 The other rabbinic metaphor for the human body – the body as a house – also conjures images of a static and stable nature.8 In this chapter, in the section on sickness, we will see that, within rabbinic imagery, ambulation is implied in the conceptualization of sickness. Throughout the ages, the rabbis accepted the cultivation of health by means of dietetics, but disapproved of athletics and other forms of exercise and competition.9 The marginalization of sport culture in Judaism is rooted in hostility to Hellenic paganism and to warrior values. Maimonides praises calisthenics.10 In his code of Jewish law, he includes advice on the preservation of health in the section dedicated to ethics.11 In a story about the sage Hillel (first century B.C.), washing the body is described as an act of piety – care of the body, which is the vessel of the soul.12 Maimonides writes that caring for the body is a way of worshipping God, in whose image it is created.13 The author of the rabbinic codex of law, Rabbi Karo, writes that a person has a duty to wash his face, hands, and feet daily, out of respect for God, in whose image he is created.14 These exhortations are in line with a very old Jewish reading of Imago Dei, as referring holistically to the human body and person alike.15 Rabbi Elijah of Vilnius (“The Gaon of Vilnius”) wrote that a person should eat with appetite and not restrict eating to the amount and quality needed for survival.16 A hasidic rabbi said, “When a small damage occurs in the body, a large damage occurs in the soul.”17 Ascetic rabbis wrote that because each person has a different character and “humor” (temperament), it is impossible to give a generalized estimate regarding needed and sumptuous consumption.18 And yet, all this endorsement of corporeal existence and pleasures is concerned with care as maintenance and with simple enjoyments, not with the cultivation and relish of strength, beauty, and other physical excellences. Halakhah does not separate the needs of the soul from those of the body. An unhealthy body cannot fulfill spiritual goals.19 The Talmud writes that unjustified self-deprivation of pleasures, such as avoidance of good wine, is an offense 7 8 9 10 11 12 13 14 15 16 17 18 19

Kuriyama 1999. M. Niddah, 2:5; T. Nedarim, 32b. Dorff 1986, 12–13. Guide to the Perplexed, 3, 25. Hilkhot De’ot. Leviticus Rabbah, Margaliot ed., 23:3; T. Shabbat, 40b. Hilkhot De’ot, 3:3. Bet Yosef gloss on Tur, Orah Haim, 92. Barilan 2009 Elijah of Vilnius 1887, 83 (Deuteronomy 12:20). Schachter-Shalumi 1991, 243. Horowitz 1997, Seventh Essay (Ma’amar She’vi’i), mark 201. Maimonides, Hilkhot De’ot, 4:1.

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against one’s soul.20 A prominent talmudic rabbi, Yohanan, extolled washing hands and feet, which was a customary practice in the East. Yet, his words indicate that failure to do so is neglectful of the soul.21 When other rabbis condemned the Roman culture of public baths, Rabbi Yohanan writes that Jacob the Patriarch built public baths.22 Rabbi Yohanan used to sit by the entrance of the bathhouse where women washed before intimacies with their husbands. On the basis of the doctrine of maternal impression, he believed that the sight of his physical beauty would cause them to conceive handsome children.23 The Jewish sources are confident in the religious value and scientific efficacy of preventive medicine. In relation to prevention, the Talmud declares “the risk is a graver concern than a religious prohibition.”24,25 When Maimonides discusses the duty to preserve life, he mentions only preventive measures, not actions taken to restore lost health.26 Nahmanides, who praises the preference of faith healing to human medicine, also rules that there is a duty to follow physicians’ advice on how to preserve one’s health.27 The rabbis were early adopters and promoters of smallpox inoculation (late eighteenth century). Since making a livelihood justifies entry into mild danger, such as voyages in the desert and seafaring, the desire to spare oneself from the plague certainly justifies the risks in novel and experimental treatment.28 Rabbi Nahman of Bratslav, who probably held the most extreme antimedical position in the history of rabbinic Judaism and who heaped scorn on the doctors of his time,29 also advocated vaccination against smallpox, labeling those who do not vaccinate their children “spillers of blood.”30 It may be concluded that the halakhic construance of the duty “to be on the safe side” in the face of danger means action, no less than precautionary inaction. But recent voices are less proactive. Rabbi Aharon Leib Shteinman, who is a prominent Ultra-orthodox leader, but not an author of halakhic writings, orally instructed people to refuse vaccination during the outbreak of the Mexican influenza (in 2010), contending that the risk seems to outweigh the benefits.31

20 21 22 23

24 25 26 27 28 29 30 31

T. Ta’anit, 11a. T. Shabbat, 25b. T. Shabbat, 33b. T. Berakhot, 20a. See Barilan 2009b. According to a different talmudic source, beautiful children are begotten when the man avoids fantasizing on another woman during intercourse with his wife (Nedarim 20a). On maternal impression see Park and Daston 1981. ‫חמירא סכנתא מאיסורא‬ T. Hulin, 10a. Hilkhot Ro’tze’ah, 11:4; Hilkhot De’ot, 4:1. Gloss on Leviticus 26:11. Avraham b. Shlomo 1785, 7; Ishmael HaCohen 1796, mark 32. Green 1979, ch. 6; Sternhartz 1928, 88–89; Nahman b. Simha n.d., mark 50. Hazzan 1998, mark 34. Weiss 2010.

46

Jewish Bioethics

Interestingly, despite the strong rabbinic endorsement of preventive medicine by means of lifestyle and even medical interventions (such as vaccination), rabbis have expressed reservations regarding screening tests.32 Screening is defined as the mass testing of populations at risk in search of a smoldering but asymptomatic serious disease whose cure depends on early detection. Alas, Jewish religiosity and law are inclined against the active search for hidden threats and problems. Immediately after the Torah’s admonition not to seek soothsayers and prognosticians, the Bible decrees, “Thou shalt be perfect with the Lord thy God.”33 Rabbis have construed this perfection as wholesomeness of faith,34 as avoidance of excessive worry and scrutiny. In support of this approach, rabbis as well as ordinary people invoke the talmudic maxim “Blessing reigns only in things hidden from the eye,”35,36 which means that as long as people are not aware of a problem, God may intervene clandestinely. Once the problem is known, such intervention would be considered a known miracle, something God tries to avoid.37 The rabbis also advocated against reliance on unseen miracles.38,39 But the maxim against reliance on miracles is deployed by the Talmud as an admonition against risky behavior, never as an encouragement to actively search for possible danger. Rather, when the health risk is remote, but the activity important, such as circumcision, the rabbis say: “God preserves the simple.”40 As well, screening tests often produce a certain level of anxiety in many (e.g., “the false-positive syndrome”) and may push some of the affected into despair.41 Folk psychology has its role as well, as the medieval anthology Sefer Hasidim states “the evil forces42 harm those who provoke their attention.”43 When one’s illness becomes public knowledge, one’s luck might turn to the worse.44 In my view, since the building blocks of the rabbinic vocabulary on ill health speak of “discomfort” and “inability to stand up,”45 the notion of illness simmering beneath a perception of well-being is alien to the rabbinic mentality. Indeed, Rabbi Elyashiv was disposed against testing for the BRCA gene in women whose relatives are carriers.46

32 33 34 35 36 37 38 39 40 41 42 43 44 45 46

Barilan 2009; Silberstein 1999, 36–37. Deuteronomy 18:13. ’‫תמים תהיה עם ה‬ ‫אין הברכה שורה אלא בדבר הסמוי מן העין‬ T. Bava Metzi’a, 42a; Barilan 2009. Gloss Rabbenu Bah’ye, introduction to tractate Ki Ti’ssa, Exodus 30; See T. Berakhot, 54a. ‫אין סומכין על הנס‬ Yerushalmi Yoma, 1:4; T. Yevamot, 72a; T. Yevamot, 12a and below, pp. 80, 151. .’‫ שומר פתאים ה‬See pp. 93, 129. Cohen 1998, chapter 34; Feinstein 1985, Even HaEzzer, mark 10. ‫מזיקים‬ Margaliot 1957, mark 469. T. Nedarim, 40a. See next section. Avraham 2009, 359.

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The first cooperative effort in Palestine between scientific medicine and rabbis regarding routine testing occurred when the first hygiene department (i.e., department of public health) opened in Jerusalem in 1919. The Orthodox community (then called “the Old Settlement47”) resisted routine follow-up of babies’ body weights, hoping that God’s blessing prevails when these crucial data remain unknown. The chief of medical services, Yaski, wrote to Chief Rabbi Kook and to the Chief Rabbi of the Ultra-orthodox community, Yosef Haim Sonnenfeld, securing their support for infant health services. The responses of the rabbis have not been found, but, ultimately, the community cooperated with the secular public health services.48 Relative to the abject poverty and staggering infant mortality among the Jewish community of Jerusalem during and immediately after the First World War,49 contemporary Ultra-orthodox Jews live in unprecedented conditions of good health and healthcare services. One thing has remained unchanged – the dynamics prevailing in a social triangle comprised of the lay devout populace, public health authorities, and the elite of religious leadership. In the name of piety, some devout people, local rabbis, and charismatic preachers tend to object to public health initiatives. The secular public health authorities establish trust and direct communication with the elite rabbis. In the name of public safety and the value of life, they secure their endorsement of public health policies. Success of rabbinic public announcements varies, from full acceptance of monitoring of babies’ weights, to enclaves of resistance to immunizations, to mild impact on smoking. A contemporary notable example of this cooperation is a public announcement, a kind of pamphlet, calling on women to be tested for “the disease of women,” a euphemism for breast cancer.50 Because of its short format of an open letter directed to the lay public with the intention of encouraging or prohibiting some kind of behavior, the genre of public announcements is not hospitable to nuances and balanced positions. The signatory rabbis mention the stock list of warnings to preserve life and health; they also use the strong and legally inappropriate words “saving a life.”51 The religious arguments against screening, such as the one on perfect trust in God, are not mentioned at all. Rather, the rabbis describe screening in enticing words that hide the complexity of the issue: “Today, there is an easy way, allowing everybody to thoroughly examine oneself regarding one’s own body.” Like other pronouncements on medicine by the uppermost stratum of rabbinic authority, the announcement contains inaccuracies in its clinical details. It speaks about “prevention,” not early detection, and it ignores the debate within the medical community with

47 48 49 50 51

‫הישוב הישן‬ Shehory-Rubin and Schwartz 2003, 167–169, 129–130. Friedenwald 1944, 520. Greindinger 2012. ‫פקוח נפש‬

48

Jewish Bioethics

regard to the ultimate benefit of screening programs.52 The announcement was printed on the official stationery of an Ultra-orthodox hospital. Even though they were endorsing a service marketed by the hospital, the rabbis did not even try to differentiate their opinion about this medical service from its provider. Avoidance of tobacco has not been as strongly advocated by rabbis as vaccination. Long before the medical community discovered the health hazards associated with smoking, one of the most influential rabbis of the pre-Holocaust generation, Rabbi Israel Meir HaCohen of Radin (Hafetz Haim), condemned smoking on the grounds of its “obvious health harm” and as a source of wasting time and money.53 Probably because this was published in a book on morals and not in Rabbi Israel Meir’s influential halakhic treatises, and because it ignored a corpus of pre-modern rabbinic rulings that accepted smoking as salubrious and enjoyable54, opposition to smoking has never reached the level of a halakhic prohibition.55 The smoking rate among Ultra-orthodox Israelis is 13 percent, lower than the average.56 A controlled trial to influence tobacco use among adolescent Ultra-orthodox adolescents by means of rabbinically signed pamphlets has failed.57 Although, on the grounds of “modesty,” tightly regulated Ultra-orthodox newspapers and magazines refuse any advertisement with a feminine image on it, they do not refuse advertisements for tobacco products.58 Perhaps the rabbinic tolerance of smoking is traceable to a responsum from 1981 by Rabbi Feinstein. There Feinstein presented a novel line of argumentation. He first declared that the special duty to avoid danger applies to a universal danger, such as walking into a field of snakes, but, whenever only a minority of people are susceptible to a certain food or activity, people are not obliged to avoid the risk, even when they do not know whether they are personally susceptible to it or not. Second, Feinstein says that the Talmud already writes that “God protects the simple” in relation to a risky behavior that ordinary people are nevertheless used to be engaged in.59 A third line of argumentation begins with the assumption, taken from Maimonides, that a human’s ultimate goal is the knowledge of God. He posits that a mild health imbalance is likely to interfere with the capacity to know God, that the suffering of withdrawal is greater than hunger and thirst, and that the risk associated with smoking is “very small”; therefore, those who are already active smokers may continue smoking in order to avoid the travails of withdrawal, but those who do not smoke had better not start.60 52 53 54 55 56 57 58 59 60

E.g., Woolf and Harris 2012; Harris 2011. Israel Meir HaCohen 1925, 16–17 and 54, 55. Kahana 1973, 317–325; Shemesh 2013, 321–323. Feinstein 1973, Yo’reh De’ah, part 2, mark 49; Bleich 1977; Waldenberg 1983, mark 39. Minister of Health’s Report on Smoking in Israel, 2010, chapter 11. Knishkowy et al. 2012. Tsarfaty and Zeevi 2012. ‫ שומר פתאים השם‬,‫מקום שדשו בו רבים‬ Feinstein 1985, Hoshen Mishpat, mark 76.

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In this responsum, we find the rabbinic conflation of “discomfort” and disease, as well the rabbinic sensitivity to the financial interests of the poor, since Feinstein counts a consideration for those who produce and sell tobacco products as an additional factor in his lenient ruling. As in the influential and contemporaneous series of responsa on brain death, we see Feinstein’s tangential knowledge of the medical facts. He writes, Your Highness, who is a physician, observes daily that there are more smokers among cancer patients than non-smokers. And this [observation] is made in other hospitals as well. Nevertheless, it is certain61 that all [cancer] patients, in and out of hospital, are a minority relative to [smokers] that are at home because they are not ill at all. In the face of such a worry [of contracting cancer from smoking] we say, “God protects the simple.”

When this responsum was written, it had been known already for at least twenty years that smoking is associated with a significant increase of risk of death from a variety of diseases. The relative risk of dying from lung cancer was as high as more than fivefold relative to nonsmokers.62 Feinstein’s social view seems to be premodern, with no awareness of the possibilities of reforming habits and of social mobility. Tobacco control has proven both successful.63 But although it is evident that the nonhalakhic assumptions of Feinstein’s ruling are wrong, in the absence of a halakhic authority at Feinstein’s level, for the average Orthodox Jew, his ruling remains a valid opinion in Jewish law. An abolitionist opinion, based on scientifically valid assumptions, is a valid option as well.64 When restoration of health is no longer possible, the duty of the patient to actively prolong life and overcome disease is weaker. The sources do not grant permission to discriminate against incurable patients, but if the incurable patient or his or her guardians genuinely wish to prevent suffering, it might be permissible to forgo nonrestorative care. For example, Rabbi Auerbach ruled that it may be permissible to withhold lifesaving surgery from an incurably disabled girl. Auerbach explains that efforts that bring about suffering but do not promise healing may be withheld from an incompetent person who is suffering from a serious and incurable condition.65 Auerbach’s permission is not motivated by considerations of scarce resources, but by genuine care for the well-being of the child. Undoubtedly, any neglect of the care of incurable patients is morally unacceptable. But if we have good reasons to suppose that, owing to terrible suffering, the patient might choose not to go on living, it is possible to take advantage of the weakened duty to save the life of incurable patients and refrain from care that is not in their benefit. Put in other words, in Halakhah, only when health is restorable might the value of life be stronger than autonomous or presumptive wishes to escape suffering. This does not entail that health-restoring 61 62 63 64 65

‫ודאי‬ Rogot and Murray 1980. Koh, Jossens, and Connoly 2007. Berman, Bulka, Landes, and Woolf 2005. Auerbach 1986, mark 91:24.

50

Jewish Bioethics

and lifesaving care should be imposed on unwilling patients; it only means that if a patient asks a rabbi whether his wish to die may allow him to refuse lifesaving care, the rabbi would answer that if the patient is likely to return to full health, he should accept care.

sickness, temporary life, and open-ended life I have not found a definition for health in the rabbinic literature. An applied definition of disease or sickness was formulated only by the twentieth-century Israeli Rabbi Waldenberg: If a person is missing anything in order to be complete, like other human beings, [that person] is called sick . . . [if anything in an organ] prevents it from fulfilling its intended function.66

It is noteworthy that, for Waldeberbg, wholesomeness in the body, “being complete,” means existence “like other human beings” and not a special state of perfection and achievement. The sources distinguish between mere discomfort67 and sickness. The co-author of the codex of law Shulhan Arukh, Rabbi Isserlish, writes that only a bedridden person is considered sick and “moribund.”68 He or she deserves special religious leniencies, and his or her wishes and subjective feelings regarding his or her medical condition should be respected.69 In this context, sickness is defined by terms of social roles. One who is sick is one who is confined to bed.70 He or she cannot perform his or her social functions, including the role of selfcare. The Hebrew word holi71 means “debility,” and, in the Talmud, it is associated with an inability to maintain an erect position. Erectness is invoked literally (the person cannot stand up), metaphorically (he cannot live to his full potentials; he is under bending pressures), and psychologically (he or she is too depressed to stand up).72 The codex of law Shulhan Arukh rules that a condition affecting the whole body and causing suffering or worry should be considered as illness even if the person is ambulatory.73 In halakhic jargon, open-ended life74 is defined in opposition to temporary life.75 Open-ended life is a life expectancy of longer than one year. Restoration of 66 67 68 69 70

71 72 73 74 75

Waldenberg 1976, mark 45. ‫מיחוש‬ ‫שכיב מרע‬ Isserlish 1971, mark 124. T. Bava Metzi’a, 152a, gloss Bet Yosef on O’rah Haim, mark 338 following Rabbenu Nissim’s (Ran) gloss on the Alfasi [Rif], Shabbat, 32b. ‫חולי‬ T. Berakhot, 5b. O’rah Haim, mark 328:7; see also Yehuda Liva b. Bezalael 1972, 102; see T. Bava Me’tzi’a, 108b. ‫חיי עולם‬. In other contexts, this term indicates “eternal life [after physical death].” ‫ חיי שעה‬See p. 243–245.

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such a prognosis is considered tantamount to cure.76 According to Maimonides, doctors have to determine whether a certain injury renders the person terefah.77 However, the distinction between open-ended and temporary life does not come from naturalistic or scientific reflections, but originated within the internal structure of Jewish law, which has only one category of reduced lifespan – terefah.78 Since terefah is defined as a life expectancy of less than one year, expectancy of only two years bears the same legal status as of that of sixty years. We may observe that although natural morality does not create halakhic categories, once they exist as positive legislation, their precise definition might be relegated in the hands of experts. Halakhic medical expertise is entrusted to the locally recognized physician.79 At this stage, we may observe four main contexts for the discussion of sickness in the rabbinic literature. The first pertains to specific conditions, such as “impure” emissions and leprosy, that bring with them certain religious rules, such as exclusion from eating certain kinds of food (e.g., Terumah). These conditions are either symbolic, such as leprosy, or stable, such as blindness, and bear no special implications to medical care. The second domain, discussed in the previous chapter, relates to the leniencies of rabbinic law in light of the special and fundamental duty to preserve life. In this context, expert opinion is one source of knowledge; another is lay perception of morbid debility or trauma that penetrates deeper than the teeth (teeth included).80 The third, discussed in the first chapter, relates to the permission to consult doctors: every sensation of pain or disconcerting symptom may qualify as a condition worthy of professional attention. The fourth conceptualization of illness relates to the duties and virtues of others in relation to “the sick.”

“visiting the sick” and the fundaments of spiritual care For the readers of this book, and probably for their parents as well, “healthcare” connotes access to doctors and the tests and treatments they prescribe. But for the earlier generations, “healthcare,” first and foremost, meant nursing care – helping the patient cope with the daily tasks of self-care, such as washing and cooking, and with the psychosocial burden of illness, mainly social isolation, poverty, and despair. Whereas the rabbis have perceived medical care as a risky, doubtful domain dominated by an elite coterie of experts, “visiting the sick”81 is the Jewish word 76 77 78 79 80 81

Feinstein 1985, Hoshen Mishpat, mark 75. Hilkhot Rotzei’ah, 2:8. P. 232. Maimonides, Hlikhot Shabbat, 2:1. P. 40. ‫ביקור חולים‬

52

Jewish Bioethics

for lay nursing and assistance, for holistic support to both body and spirit. We have seen that the Jewish sources seek permission to practice medicine and express reservations about the role of doctors. Nothing of this hesitancy is to be found in references to and laws on “visiting the sick.” Whereas in certain circumstances the sick may forgo medical care, in Jewish law and ethics withholding or refusing nursing care is rather inconceivable. Visiting the sick is a personal good but a communal responsibility. Caregivers (i.e., “visitors”) are not personally bonded to the sick in the way that a doctor is personally committed to his patient. But the community has a duty to provide basic care (“visiting the sick”) to needy patients who do not have families and other relations to care for them. The communities often deployed their services of care in order to ensure patient compliance with medical advice and the overall compliance of the sick and his or her social network of support.82 This section has two interrelated goals. The first is to explicate the ethos of “visiting the sick” as it has been developed in the Talmud and later rabbinic literature. This ethos is formulated in terms of personal virtue and ideals of practice. Similar to other interpersonal charities – gemilut hessed83 – visiting the sick “has no measure,”84 meaning that there is no law prescribing who should visit, when, how much, and in what conditions. The second goal of this section is to bring to light how communities strove to provide every sick person with the care he or she needed but could not afford. In the Talmud, “visiting the sick” – but not medical care – counts among the paradigmatic acts of interpersonal charity.85,86 Visiting the sick is also paradigmatic of imitatio Dei – emulating God – and of walking in His ways.87 Although healing is an exemplary divine faculty, nowhere do the halakhic sources imply that the practice of medicine is a kind of imitatio Dei.88 In my view, the reason is the obvious hubris entailed in such an attitude. We have seen that any kind of pain might be a reason to consult a doctor,89 but, in the Bible and talmudic literature, serious illness means an inability to stand up and walk. The sick person lies in bed, “shekhiv.”90,91 According to the Talmud, this inability to stand up is a sign of a situation of “recovering a soul.”

82 83 84 85 86 87 88

89 90 91

Rivlin 1991, 89–93. ‫גמילות חסד‬ M. Pe’ah, 1:1. ‫חסד‬ Shabbat, 127a. Sotah, 14a. The kabbalistic manual Ma’avr Yabbok writes that the doctor must not receive payment because he walks in the ways of God. (Aaron Berechiah of Modena 1860, 132 [Siftei Tzeddek, chapter 8]). P. 23. ‫שכיב‬ See also, Ben Sira 38; Yalkut Shimoni on Numbers, mark 652; Luria1962, 21, probably after Zohar vol. 3, 299a; Benner 2001.

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Put in other words, it is permissible to violate religious taboos whenever it is essential to do so as part of the care for such a person. The etymology of “nursing” is derived from breastfeeding; the etymology of the corresponding Hebrew word reflects the spatial confinement of a fallen person – visiting the sick and “si’ud”92 – physical support. The sick patient is like a prisoner in his home,93 a victim of his or her morbid instability. Visiting the sick is about reaching out to the patient at the place of his or her confinement. The visitor enters the space of the patient with the goals of either restoring personal and social mobility or accompanying the person on his or her last journey. The Talmud specifically links the word “walk” with “visiting the sick.” It is about walking into the space of the person who cannot stand up; it is also about “walking in the ways of God.”94 The Talmud says that the sick person needs “vigil/protection.”95,96 According to Rabbi Kook, this means “friendship and immersion in human society.”97 Great efforts must be made to not leave the sick person alone, even for a few minutes,98 and rabbis permitted certain violations of the laws on the Shabbat in order to visit a lonely patient.99 In the first known Jewish religious book dedicated to health and dying, the thirteenth-century Catalan halakhist and kabbalist Nahmanides explains that “visiting the sick” encompasses three goals: the provision of the patient’s needs, psychological comfort among friends,100 and prayer.101 A similar manual written in seventeenth-century Germany by halakhist and kabbalist Rabbi Horowitz proclaims, The commandment to visit the sick is in the body, in the soul and with money.102 How in the body? [The person] will run and take care of [the patient’s] needs [such as] fetching medicines. And he will labor with his body in order to meet the patient’s other needs [as well]. How in the spirit? [The person] will cry out his soul beseeching God to send the patient full convalescence. How in property? [The person] will check whether the patient has enough money to meet his needs, because the sick have plenty of expenses.103

92 93 94 95 96 97 98 99

100 101 102 103

‫סיעוד‬ Eisenstein 1928, 412; Zohar III 299. T. Bava Metizi’a 30b ‫שימור‬ Kook 1987, 255. ‫רעות‬ Klein 1934, 8. Shulhan Arukh, Orah Haim 306:9; Nathanson 1875, Part 3, Yo’reh De’ah, mark 180; see p. 39. ‫נחת רוח מחבריו‬ Nahmanides 1964, 17. ‫ממון‬ Horowitz 1717, part I, 144 (Pessahim, mark 76); Kitzur Shulhan Arukh, mark 193:1; Waldenberg 1985, Rammat Rachel, mark 3.

Jewish Bioethics

54

The religious duty to visit the sick must be carried out “with the person’s own body” and cannot be forfeited by money.104 Because of its personal and holistic nature, it is impossible to fulfill the religious calling to visit the sick by means of a proxy or a telephone.105 One must be in the presence of the sick in order to discern and fully understand the patient’s needs106 and to develop the empathy needed for sincere prayer on his or her behalf.107 The visitor must leave the epistemological and psychological safety of his or her environment and, with like-minded visitors, enter the space of the sick, experience his or her situation directly, and be moved to act, perceive, and react in ways that are not possible without such unmediated encounter with the needy and frail “other.” The corporeality, concreteness, and discipline of nursing care are the vehicles of psychological support and spiritual growth. The ideal of visiting the sick combines holistic nursing care with psychological and spiritual support in ways that facilitate the spiritual growth of both caregivers and patient. According to the Talmud, the shame experienced by patients with diarrhea is a reason not to visit them at all.108 Obviously, necessary care must not be forgone. But the interpersonal psychological support does not outweigh the shame. Rabbi Reischer explains why a hired caregiver is exempt from the duty to eat in a tabernacle during the Feast of the Tabernacles (Succot). The law exempts a person from staying in the tabernacle whenever this is a cause of inconvenience. According to Reischer, the empathy of the caregiver should be so great as to produce in him anguish whenever he leaves the patient alone.109 Indirectly, we witness here the rabbinic preference to hired care over voluntary care. In this context, as well as in others, such as organ transplantation from live donors, the rabbis have not construed payment as detracting from the virtue and interpersonal power of the benefitting act. Payment relationship creates stronger commitment.110 Maimonides writes that, depending on need, one should visit the sick many times in one day, so long as the visit is not too burdensome to the patient. Neglect to visit the sick is akin to bloodshed.111 Nonetheless, Maimonides writes that the community imposes compliance with the commandment to give to charity and the commandment to accompany travelers, but not with the commandment to visit the sick.112 Because visiting the sick is not an enforceable and quantifiable

104 105 106 107 108 109 110 111 112

Maimonides, Hilkhot A’vel, 14:1. Gloss Pe’rishah on Yo’reh De’ah, 338; Feinstein 1960, mark 223. Codex of law Tur, Yo’reh De’ah, 338. T. Berakhot, 12b. ‫לחלות עצמו עליו‬ Nedarim, 41a. Reischer 1861, Part 3, mark 51. T. Bava Kamma 85a and Gloss Rosh; Steinberg 1998b, 91. Maimonides, Hilkhot A’vel, 14:1; Karelitz 1979, mark 114. Maimonides, Hilkhot A’vel, 14:3–4.

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commandment (they are “beyond measure”), the relevant laws were written by voluntary associations, not by halakhists. Jewish society has never had nuns, monks, and other persons whose vocation was public charity; neither did the Jewish people have a centralized and powerful church or caliphate able to build and maintain large hospitals. The Jewish communities were much less stratified socially; all shared the perennial risk of dispossession and exile. The first social institution to assume responsibility for sick care was the voluntary societies of charity, whose historical roots are traceable at least to the Spanish Jewry of the High Middle Ages. Their internal regulation was very similar to that of the Christian fraternities and guilds.113 The by-laws of the societies were approved by the community and its rabbi. From a sociohistorical perspective, they constituted part of Jewish law. One of the earliest set of by-laws to have survived was signed in Ferrara in 1515. It opens with the nomination of two officers114 who Will cast lots to determine the [members] who would spend shifts of duty . . . to serve the poor sick as much as needed, and to stay awake with them days and nights, and to service them in honor of God until they recover from their illnesses, and to take care of the dead, as much as needed.115

In case a member of the society becomes seriously ill, We undertake upon ourselves, that ten of us will fast, as determined by lots . . . and go and in the name of the whole society to visit this sick man or sick woman, to strengthen his heart and to tell him that they fast for his sake . . . so God turns from his fierce wrath and restore him to health.116

This system preserves the impersonal communal obligation to enter into personal relationship of care. The volunteers are committed to helping the needy; specific caregiver–patient relationships are determined by a lottery, not personal choice. In contrast, and probably owing to the aspect of risk-taking in medical care, personal choice is at the heart of the rabbinic understanding of the doctor– patient relationship.117The by-laws of the societies contain laws on the duties to the society, the trappings bestowed by it, the annual feast, and other rituals outside of the direct delivery of care, but little is known about the societies’ standards of care and clinical ethics, so to speak.118 Most of the laws of the Ferrara society address the responsibilities and honors of the members, as well as the prescribed fines for failure of duties and similar administrative issues. Fifty-seven men and thirteen women signed the laws. Since 113

114 115 116 117 118

See Baron 1942, vol. 1, 352–353; Levitats 1943, 105–122; Marcus 1947, 61–94; Farine 1973; Ruderman 1976; Goldberg 1996, 85–92. ‫ – ברורים‬literally: the chosen ones. Ruderman 1976, 259. Exodus 32:12. P. 133. Levitates 1943, chapter 6, and Rivlin 1991, chapter 2.

56

Jewish Bioethics

seven of these women have names that match the names in the men’s list, it is reasonable to assume that six women joined the society independently of their husbands, fathers, and brothers. Female doctors in the Middle Ages were expected to deal with women’s health,119 but, at least in the by-laws of the Ferrara society, it is explicitly stated that the women care for both men and women. From the fifteenth century until the twentieth, these associations were known as “societies of visiting the sick” or “holy societies of true charity.”120,121 Membership was hierarchically structured, lavishing honors on its members while alive and guaranteeing their souls ceremonious memorial care after death. In many cases, the societies vouchsafed high standards of care to members who fell ill, thus functioning as mutual insurance on one hand and as a charitable service for universal and basic care on the other. It seems that the typical society monopolized burial services in the community.122 And, although it charged for sick care services, it guaranteed free care for the needy. The motivation to enroll in the societies was bolstered by honors, a spirit of camaraderie, and the guarantee of top-level material and religious services when a member fell ill or died. A stream of mystical revival that appeared in the sixteenth century, Lurianic Kabbalah, boosted the motivation to join these societies and shifted much attention to spiritual efforts, piety, and care for the dying and the dead. In the twelfth century, Maimonides wrote that nobody heard of a Jewish community without a fund of charity.123 In 1678, the new Jewish community of London declared that, on the establishment of their society of visiting the sick, It is a general virtue of all the congregations of Israel, in all the places where they dwell, to establish and form a society, which shall practice the meritorious and urgent charity which is due to the sick and the dead.124

In 1747, this society founded one of the first Jewish hospitals dedicated to the provision of care, and not only to sheltering the needy. Such hospitals were usually located in the society’s house, containing a few beds for the indigent and the occasional traveler. It also contained the society’s registry of burials and probably other documents.125 Sometimes, the communities and their societies rose to extraordinary standards of excellence. The whole community mobilized its medical and lay resources in order to provide every poor person with medical care and nursing, “until it 119 120 121 122

123 124 125

Shatzmiller 1994, 110. ‫גמילות חסד של אמת‬ Baron 1942, vol. 2, 328–333. This is the situation in Israel to this very day. Almost all Jewish burial is religious, managed by not-for-profit voluntary societies. Israeli law guarantees funerary and burial expenses for every person. Those who wish to choose their burial site and erect special tombstones have to pay. Maimonides, Hilkhot A’vel, 14. Barnett 1921. The original text is in Portuguese. Aaron Berechiah 1860, 108.

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was impossible to find a poor person from our nation whose needs have not been fully satisfied.”126 Even if a little overstated, one cannot help admire this testimony arising from the siege and plagues which devastated Mantua in 1630.127 The Christian communities took similar measures of charitable and organized care, but without the presumption of universal coverage.128 The societies also struggled with a perennial lack of compliance with the duties of care, preoccupation with honorary titles and other accessories of membership, and favoritism.129 Rapid population growth, high rates of migration, vagrancy, plagues, and wars harbored strong stimuli to the expansion and growth of these societies from the sixteenth through the eighteenth centuries. But these factors also eroded the capacity of the societies to meet their lofty ideals. The weakness of community structure and lack of effective law enforcement worsened the problem. A probably typical structure of operation was described by Rabbi Pappo (1786–1827, Balkans). He writes that the society dispatches two people to call daily on every sick person in the community. Fines were levied on those who failed this duty. Pappo protests: “If a rich man has a headache and does not show up in the market, everybody comes to check on him at home; but nobody minds the poor.”130 Rabbi Epstein (nineteenth-century Lithuania) writes that a man may visit a woman and vice versa. Only when a sick woman needs round-theclock care of her intimate body parts131 is a man expected, if possible, to avoid caring for the woman. The code of the Society of Mantua explicitly forbade men to tend to women patients; only prayer at their bedsides was permitted.132 Algerian Rabbi Ayyash was disposed against men caring for women.133 Separation of the sexes was probably typical of Mediterranean communities. In order to deter against debauchery and brawling, some Italian communities excluded from care (or from ordinary care) victims of syphilis and of violence.134 126 127

128 129 130

131 132

133 134

Masaran 1634, 12a–b. According to the Encyclopedia of the Early Modern World (London: Charles Scribner, 2003, entry on Mantua), two-thirds of the population perished. This is about twice the average mortality in Europe during the Black Death. Lindemann 1999, 157–162. Ruderman 1976, 256. Pappo 1987, 233. Teams of pairs or four were common in Germany as well – Marcus 1947, 130– 131. ‫ – חולי מעיים‬disease of the bowel, diarrhea. Codex of regulations of the society of visiting the sick, Mantua, 1792, clause 14. ‫סדר משפטי חברת בקור חולים מקהלתנו מנטובה‬ The Italian societies preceded those in Northern Europe and were much influenced by Lurianic Kabbalah (Marcus 1947, 65–67). These probably were more oriented to spiritual care and purity. Ayyash 1998, 21; Masekhat Semahot 12:1. Rivlin 1991, 93. This is quite ironic in light of the fact that the biblical permission to practice medicine is rooted in the care of victims of brawls. Partially because they were not allowed to carry arms, Jews usually did not take part in the street violence endemic to early modern European life (Ruff 2001).

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The Ashkenazi (Northern European) Jews were either much less worried about sexual improprieties or were needier of willing care. Epstein rules out the possibility of sexual abuse, mentioning only worry about involuntary loss of semen.135 Otherwise, the male visitor “may lift the woman and put her in bed and serve her [in any way needed].”136 The historical records show high rates of feminine participation in mutual aid societies; sometimes, women had their own associations.137 Rabbi Waldenberg wrote that since a married woman depends on the permission of her husband to undertake commitments outside her home, she is not bound by the duty to visit the sick in general and to participate in night vigils in particular.138 Many societies relegated these chores to young, unmarried men, many of whom were hired for money.139 To Western mentality, this is counterintuitive, but the evidence is that, in the Jewish communities, sick care was mainly masculine, often performed by young bachelors. An explanation for the exemption from ordinary standards of modesty may be found in the talmudic maxim attributed to Rabbi Akiva: “He who does not visit the sick is like a spiller of blood.”140 In the early twentieth century, Rabbi Israel Meir HaCohen contended that visiting poor patients is a case of “recovering a soul,” a matter of risk to life that justifies the suspension of religious taboos.141 Usually, such a man does not have proper food, and has no idea how to take care of himself while sick. He has money neither for the doctor nor for medicines. In the winter, when the bitter cold bites his bones, heavy worries join in, he realizes how he is lying in bed and nobody is at the door coming to inspect and revive him. All these factors debilitate his mental stamina and strengthen his disease, [up to the point of] causing his death.142

In many medieval communities, the physician was responsible for medical advice and care, whereas the community assumed responsibility for all other needs of the patient.143 Many communities licensed physicians and paid them a fixed fee in exchange for free care for the poor and availability to care for the rest on a fee-for-service or fixed-rate basis. But many communities could not afford a physician: in Poland and other places, communities and voluntary societies offered basic care to the poor while tightly regulating the healthcare market.144 135 136

137 138 139 140 141

142 143 144

Epstein 1908, Yo’reh De’ah 335:11. Code of law Arukh HaShuhan 336:11; Azulai 1756, Yo’reh De’ah, 335; gloss Taz, Shulhan Arukh, 339:5. Mahler 1938; Marcus 1947, chapter 6. Waldenberg 1985, mark 16. Marcus 1947, 132, 141. T. Nedarim, 40a. Because saving life does not condone illicit sex, the authorities underscore the unlikelihood of sexual sin. However, refusal to provide care on grounds of modesty might have been conceived as akin to the “foolish pious” who would not rescue a drowning damsel – p. 62. Israel Meir HaCohen 1968, 96. Abrams 1932, 353–359. Marcus 1947, 37; Balaban 1948, 51–52.

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Rabbi Israel Meir HaCohen (1838–1933) describes the societies that existed in Eastern Europe before the Holocaust: Many holy communities have set up societies of visiting the sick whose goal is to mind the miserable and poor when sick, tending to their medical care and food and all of their needs. . . . There is a society of respectable people who cast lots to determine who will sleep over with the sick person to supervise his affairs, in case he needs help or medicine or anything else he might need. It had been better if such societies existed in every town, because, sometimes, it is really a matter of saving life. Those who turn the blind eye [on the sick] transgress the prohibition “thou shall not stand idle on the blood”145,146

Similar arrangements existed in Palestine and in the Oriental communities as well.147 According to Rabbi HaCohen, visitors should deliver friendly comfort,148 encouraging the patient to confess and repent – “You might recover following repentance; and if you die, you die clean.”149 The rabbis have concluded that even wicked people150 and slaves151 deserve sick care. Moreover, it has been argued that the rabbi should visit the wicked person before he visits other sick people because the spiritual needs of the wicked person are more urgent. As it is said, “Peace, peace to him that is far off, and to him that is near, saith Lord; and I will heal him.”152 God first greets those who are “far off.”153 Slavery disappeared from Jewish society during the Middle Ages,154 yet the rabbinic habit of exploring theoretical possibilities along with practical ones often serves as a heuristic tool.155 In this case, the inclusion of non-Jewish slaves within the circles of sick care conveys a powerful message against the exclusion of any marginalized person conceivable in the community. Whereas Jewish law grants the sage156 certain priorities, such as exemption from standing in line in the market, the charitable society must not grant priority 145 146 147 148 149 150 151 152 153 154

155

156

Leviticus 19:16 Israel Meir HaCohen 1968, 96. See also Be Isaac 1972. Freiden 1983; Bashan 1979. ‫נחת רוח עם חבריו‬ Israel Meir HaCohen 1968, 97. ‫רשע‬ ‫עבד כנעני‬ Isaiah 57:19. Stern 1978. Assaf 1943, 223–256. In some oriental communities, domestic slaves were kept as late as the eighteenth century; in India, until the nineteenth. Jewish law on slavery forbids physical punishment, sexual use of slaves, and working the slave on the Shabbat. See also the use of the laws on capital punishment in the context of maternal–fetal conflicts, p. 162. Adopting George Steiner’s words, it may be said that typical cases such as the Canaanite slave and the birthing woman facing capital punishment are “alternities,” a largely fictive symbolic milieu that produces an effective semantic system. They constitute “the other than the case,” which brings into relief hidden contexts of the actual cases in hand (Steiner 1998, 232– 233). The alternity is a complementary vision, the impossible and absurd that sheds light on the possible and the tragic. ‫תלמיד חכם‬

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to the sage over the simpleton. Rather, the presumption is that sages already have people tending to them, whereas the wretched are at higher risk.157 For the same reason, the poor should be visited before the rich.158 In 1804, the by-laws of the sick care society of Biržai (Birzh) stated, If a servant (domestic) takes ill, and he or she does not have relations in town that may support them while ill and host them in their homes, then, when the landlord announces the illness of the servant to the officers [of the society], the servant may lie sick at the home of his or her employer for three days. Then, the officers will move the patient to the special home dedicated by the community to the poor. The employer will pay the officers the salary due to the servant for work performed until he or she took ill. The rest [of the expenses] will be covered by the fund of the society.159

Evidently, in collaboration with the community, some societies expanded their home care missions to the legislation and enforcement of laws protecting poor laborers, thus constituting rudimentary health insurance. Some premodern rabbis forbade visiting the victims of the plague unless one’s livelihood depended on sick care. In such cases, they must be paid well160.161 Other rabbis demurred, instructing the people to visit all sick patients.162 Rabbi Medini (nineteenth-century Crimea and Palestine) weighs both opinions and avoids a conclusion on whether it is permissible to visit plague patients voluntarily (assuming they are not alone and without any care). According to Medini, care for victims of the plague belongs solely to the sick care societies.163 Following Nahmanides, the codex of law Shulhan Arukh rules that provision of material aid only (e.g., bringing food, cleaning the patient) without prayer for the sick does not count as fulfillment of “visiting the sick.”164 Key to convalescence is the love and friendship that visitors radiate toward the patient.165 The visitors should urge the patient to repent, but they must not preach. Rather, they may find spiritual growth in their visit. The Talmud says that the visitor of the sick should be humble “like a student in front of his mentor” because the Holy Spirit166 hovers above the patient’s head.167 Lonely death, dying without the 157 158 159 160 161 162

163 164 165 166 167

Levin 1985, 70. Margaliot 1957, mark 361. Hassidah and Zinovic 1965, 18. ‫בבצע כסף ובכסף מלא‬ Molkho 2003, Vol. 5, 248. Isserlish 1971, mark 20. In some editions, it is mark 18. The serial counting of responsa was affected by local censorship. Medini 1949, 78. Yoreh De’ah, 338, Remma. Israel Meir HaCohen 1943, 31; Kook 1987, 29. ‫שכינה‬ Neddarim, 40a. In the imagery of the Ars Moriendi, angels and demons were struggling over the soul of the patient. If he or she dies well, the angels stand at his or her head and the demons at his or her feet. Both the Christian and Jewish sources share the idea that demons (or the Angel of Death) lurk at the feet of the moribund (Barilan 2014; Aaron Berechiah of Modena 1860, 94).

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company of visitors who care for the material, psychological, and spiritual wellbeing of the person from an attitude of love, is akin to inhumane and nonhuman death, a horrible fate.168 Medieval rabbis drew analogy from neglect of the sick to the sin of idol worship. Allowing the sick to “be cast away in the garbage [unattended]” is like “forgetting God” [in whose image is the human body].169 Although the sources associate care for the body as a token of respect for the image of God,170 I have not found any reference to medicine being associated with this value. We must be careful not to idealize social reality. Between the lines of the written sources, we may discern huge gaps between abstract norms and actual compliance. At times, communities would send sick vagabonds away in order to avoid the expenses of care and burial. Some of the regulations were quite cruel, like the prohibition against hosting deformed people on the Shabbat; these unfortunates had to stay in a public shelter. The isolation of people with unsightly deformations was prevalent in the non-Jewish societies of the time as well.171 The societies of charity disappeared along with the dissolution of traditional Jewish comminutes. The Bolshevik Revolution, the Holocaust, and the world wars wiped out autonomous Jewish communities. The Oriental communities disappeared along with the mass immigration of Jews to Israel and Western countries during the era of decolonization. As equal citizens in affluent countries, Jews now benefit from modern, secular, and state-run social services and healthcare. Today, in the Jewish communities of the Diaspora, rabbis help patients retain their Jewish identity in the public system – offering spiritual counseling, kosher food, and the like. The Bikur Cholim of Satmar Hasidism, founded in 1957 in New York, is one of the few attempts to revive the tradition of communal sick care after the Holocaust. In Israel, many functions of “visiting the sick” have been absorbed by the state. Ironically, this is not always in line with the values of “visiting the sick.” Nursing care – either at home or in an institution – is not covered by the National Health Insurance Act of 1994 (Frail old people receive two hours of home-care assistance a day). Night and day, numerous old and immobile patients, some incontinent, are confined to the loneliness of their apartments without seeing a soul. Most hospitals do not employ rabbis-chaplains whose chief role is the provision of “spiritual care.” As a matter of fact, perhaps because it has always been part of ordinary nursing, there is no analogous term in Hebrew and rabbinic jargon to “spiritual care.” A new kind of voluntary charity has evolved in Ultra-orthodox communities. These charities – gemilut hesed – are private initiatives instituted by individuals 168 169 170 171

Shlomo Ephraim 1864, 115 – gloss Kli Ya’kar on Numbers 16:29. Shimshon b. Zaddok 1556, mark 533. See p. 44. Marcus 1947, 9–11.

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62

or families, dedicated to one service, such as lending breast-milk pumps, inhalation machines, wheelchairs, and also wedding dresses and other nonmedical goods. These activities are similar to monetary charities172 because they distribute goods rather than personal services.

an outline of a halakhic model for healthcare Following the exploration of the values of saving life, medical care, and visiting the sick, one may sketch out a model of healthcare that is comprised of four distinct kinds of services and their corresponding religious duties and values. The first kind of care is emergency lifesaving aid, which is derived from the maxim “neither shalt thou stand against the blood of thy neighbor.”173 This duty obliges every competent member of the community, and it is directed at any person whose life is in immediate peril. It appears to be the Jewish parallel to “the rule of rescue.”174 This special duty applies only in circumstances of high epistemic certainty of cause (risk of death), immediacy, and effectiveness of intervention, and of low level of self-risk. Hence, the stock situation in Halakhah is a rescue from under the rubble of a collapsed building. Tampering with wrecked buildings might kill the victims accidentally. Yet best efforts at rescue are considered safe because, in the absence of action, the victim will certainly die. Very few clinical situations meet these strict standards, but it seems that the rabbis have translated the maxim of saving life to the language of biomedicine, granting the status of saving life to every service that is considered by society as lifesaving and indispensable. For example, Israeli, American, and other countries’ laws guarantee “emergency medical care” to every person, even uninsured noncitizens. It might be reasonable to conclude that all care locally defined in the context of such legislation as “emergency” would be recognized by Halakhah as being at the level of “rescue.” Whereas the “rule of rescue” is applicable only when effective action is possible, the talmudic construction of this rule entails a duty to create the circumstances for effective action that saves people from common calamities, such as fire. If someone cannot save personally, then he or she must hire others who can do so.175 This extended responsibility may entail a personal and communal duty to operate basic healthcare services. Most medical treatments save life neither directly nor with a high degree of certainty. These treatments contribute to the restoration of health, and they fall under the duty of charity and the duty to restore lost goods. The good in question

172 173 174 175

‫צדקה‬ Leviticus 19:18. McKie and Richardson 2003. T. Sanhedrin, 73a.

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is health.176 The analogy from the duty to return lost goods underscores the consequentialist essence of medical care (but not of nursing and psycho-spiritual care). There is a duty to restore a lost good only if one can reasonably and reliably do so. Whereas a patient may try all sorts of remedies in search of relief, there cannot be a duty to provide care unless it stands on firm grounds of scientific knowledge, competence, and safety. Hence, the Torah gives permission to try to heal the injured person by any means the victim chooses, as long as treatment is reasonable (e.g., not charlatanism) and not excessively risky. One may infer from the patient’s right to choose such treatment and from the assailant’s duty (in the case of other-caused harm) to defray it that the doctor has the permission to administer it. But it does not follow that every doctor has a duty to provide such care when asked. It is more reasonable to argue that doctors have a religious duty to provide medical interventions with a high index of efficacy and safety, even in non-lifesaving situations; that doctors have permission to provide, upon informed consent, especially risky or less effective care; and that some kinds of care are too unfounded or too hazardous to allow their administration, even if the patient pleads with the doctor to try it. A patient with “temporary life” may accept higher risk for the sake of his or her life. In the previous chapter, we saw that the rabbis are reluctant to intercede against riskfree means, their bizarre and shaky nature notwithstanding. There is no question that the sources considered medical care as bearing charitable dimensions, especially when care is extended to community members or citizens of a modern state.177 At least since the Middle Ages, it was taken for granted that the physician has a duty to care even when the patient is too poor to pay. Some young men shunned the study of medicine in order to avoid this obligation, an attitude that the rabbis condemned in strong words.178 The most reasonable legal foundation for this duty to care for the poor free of charge is the duty to return lost goods, which is relevant even when the beneficiary cannot pay the benefactor for his or her time and efforts. Rabbi Professor Sinclair maintains that post-medieval Halakhah declined to consider medical care a religious duty.179 As evidence, he cites the law, rooted in the talmudic literature, that a physician who kills a patient is liable to the penalty of exile.180 If medical care is a religious duty, this would be incompatible with a halakhic maxim according to which accidental killing in the context of fulfilling

176

177 178 179 180

Rashi gloss on T. Sanhedrin, 73a; Maimonides’s gloss on M. Nedarim, 4:4; gloss Torah Temimmah on Exodus 21:19; Waldenberg 1985, mark 21; Feldman 2000, marks 5, 20; Sinclair 2003, 154–159. See Maimonides, Hilkhot Matnot A’ni’im, 9:12. Wistinetzki 1924, mark 1469. Sinclair 2003, 155–156. Deuteronomy 19. This punishment is for unintentional homicide – “an accident that is close to pre-meditated homicide” (‫ )שוגג הקרוב למזיד‬in the talmudic jargon.

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a religious duty (e.g., a father castigating his son) is exempt from exile.181 Rabbi Lamm believes that medical care bears a religious value only when successful.182 In my view, physicians’ unique responsibility for the lives of vulnerable patients is the reason why physicians are not immune to exile. Every doctor must foresee the risk of nosocomial harm, whereas fathers castigating their children are not expected to anticipate accidental death. On the slightest risk of death, the father must not punish his son physically; he certainly does not fulfill any religious duty by knowingly inflicting a potentially lethal punishment. We might tell fathers never to beat frail children. However, it would go against the nature of medicine if we tell doctors to avoid fragile patients.183 Because fulfillment of the duty to return lost goods depends on actual restoration to the owner, it is a purely material and consequentialist duty. In contrast, charity that effectively solves the material need of the poor does not count as a religious value unless it has been performed humanely. Maimonides writes that “even if he has given him a thousand gold coins, [it] does not count, and he has lost the merit of the good deed” unless it is given with a humane attitude, in gentility and joy.184 In a similar vein, it may be argued that successful treatment that is conducted rudely does not qualify as fulfillment of the charitable aspects of medical care. Why does Halakhah need to frame medical care in terms of the duty to return lost goods? Is the duty of charity insufficient? Although the duty to return lost property is a complete duty (one must fulfill it whenever one finds lost goods), charity is an incomplete duty in the sense that a person may refrain from responding to a beggar because he or she dispenses charity duties to other people. This exemption does not allow the rejection of pleas for food, but Halakhah construes such pleas as situations of rescue, of “recovering a soul.”185 The hallmark of the duty to return lost goods is the proscription “thou must not hide thyself,”186 which fits contemporary sensibilities regarding medical need. The framework of the duty to restore lost goods extracts the regulation of healthcare from the near-absolutist mindset of rescue. Altogether, Jewish law contains tools for separating basic and indispensable care from other medical modalities, including many forms of curative medicine. Put in technical jargon, the duty of returning lost goods is a complete duty with agent-centered restrictions. It does not require excessive efforts, such as those that are not cost effective or not in keeping with the dignity of the agent. However, the duty to restore lost goods makes claims on property. One has to sacrifice (reasonably) property for the sake of returning another’s lost goods.187 181 182 183 184 185 186 187

T. Makkot, 8a. Sinclair 2003, 157–158; Lamm 1984. See Turk 1959. Maimonides, Hilkhot Matnot A’ni’im, 10:4. T. Ta’anit, 21a. Deuteronomy 22:3. Israeli 1966, 16:14. Israeli does not discuss healthcare.

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The Talmud rules that there is no duty to return the lost goods of a non-Jew unless such behavior defames Judaism.188 Rabbis have advised Jewish doctors to try to refrain from care for non-Jews on the Shabbat, but not at the price of selfrisk or anti-Semitic reaction.189 The analogy would be that there is no duty to provide healthcare for noncitizens unless such practice is repugnant to the public. Since many countries do not provide healthcare coverage to noncitizens, but all countries prohibit discrimination on the basis of race and faith, it might be reasonable to conclude that Jewish law would not require the provision of healthcare to noncitizens, but still suggest that entitlement to healthcare cannot be based on either Jewish identity or practice. The third kind of care is nursing care in the form of “visiting the sick,” which was discussed in detail in the previous section. Little effort has been put into studying the modern ethos and practice of modern professional nursing through the prism of “visiting the sick.”190 The fourth kind of care is helping people fulfill or rehabilitate their social roles. Social work may serve as a contemporary analogy. According to Maimonides, the highest degree of charity is helping a person find gainful employment.191

saving life, nursing care, and infertility medicine: a critical appraisal of contemporary H A L A K H A H When Rabbi Cherlow was a member of the national “health basket” committee, which is authorized to determine which medical services should be covered by Israeli national health services, he promoted the idea that lifesaving services must not always take precedence over those that promise improved quality of life.”192 Because they serve as the template for Jewish law on therapeutic medicine, I wish to draw from the laws on returning lost goods to craft an argument in support of Cherlow’s position. Every person has a religious duty, a mitzvah, to honor the elderly, and even to respect old people who are not wise or pious.193 The elderly have priority in accessing some forms of charity.194 The sick and the elderly are exempt from the duty of returning lost goods whenever it is “not in accord with their dignity,” as in leading a straying animal, for example.195 Since the duty to contribute financially to the effort of saving life is based on the duty to restore 188 189 190 191 192 193

194 195

T. Bava Kamma, 113b. Sirkis 1785, mark 2; Hazzan 1876, mark 8 Avital 1986. Hilkhot Matnot Ani’im, 10:7. Cherlow 2009. Maimonides’s Book of Commandments, positive commandments, number 209; Sefer Hahinukh, mark 257. T. Ta’anit, 6b. T. Bava Metzi’a, 30a.

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lost goods,196 it may be claimed that when it comes at the price of their own dignity, the elderly are exempt from sharing the burden of others’ healthcare, and that, indeed, from a halakhic point of view, diverting monies from terminal care to curative medicine might be a kind of theft197 from the elderly and the chronically ill. Conversely, although elders might be exempt from the duty to restore lost goods, there is no exemption from the chores of visiting the sick.198 The most likely reason is that visiting the sick also aims at respect for human dignity and that nursing care, even when unpleasant and abject, is not construed in Judaism as being below anybody’s dignity. In a similar vein, rabbis rule against “opting out” schemes of organ transplantation from the deceased (including from non–heartbeating cadavers). They permit only transplantation schemes on full informed consent (opting in). The justification given to this apparent disregard to the maxim of saving life is derived from a talmudic observation that a person is likely to forsake all of his or her property to protect one’s dead kin from disgrace.199 Since the duty to save life does not exceed the sacrifice of all of one’s property, it follows that Halakhah does not expect people to tolerate disrespect for their dead, which is valued as equal to all of one’s property. If direct lifesaving acts may not compel the price of disrespect for the dead, it is even less likely to suppose that therapeutic medical care will always take priority over nursing care. Alas, in reality, too many old and frail people are prisoners to loneliness, poverty, and neglect in their homes. Children do not live and raise families in the vicinity of their aging parents; affluent lifestyle comes at the price of longer working hours, increased commitments to career development, and unprecedented rates of geographic mobility.200 The industrial culture and economy marginalize the “hidden economy” – the labor invested in the home and in the care of family members.201 Rabbis rebuke women for using birth control for the sake of personal fulfillment and career development.202 However, paradoxically, even though women are legally exempt from the duty to procreate and nobody is exempt from the duty to personally visit the sick and care for them, rabbis do not campaign for the diversion of resources and personal attention from the begetting of children to the care of the lonely and sick, or even to needy family members. Because nursing care may be available for hire, Rabbi Feinstein told the mother of a leukemic toddler not to use contraceptives and, if she became overburdened by pregnancy and birth, then to employ a nanny to mind the sick child.203 196 197 198 199 200 201 202 203

Sanhedrin, 73a. ‫גזל‬ Maimonides, Hilkhot A’vel, 14:4; Feinstein 1960, mark 222. Bava Kamma, 86b, 93a; Sanhedrin, 75. See p. 111. Offer 2006, 323–327. Himmelweit 2002. Pp. 135–137; Englander and Sagi 2013, 130–142. Feinstein 1985, Even HaE’zer, mark 73.

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the value of life and setting priorities in healthcare According to the Ge’onim, the immediate post-talmudic Babylonian rabbis, life seems to be a fundamental value; without it, religious life is impossible.204 The medieval authority Rashi writes that “God loves the soul of Jews more than the commandments [of the Torah],”205 thus placing the love of God as the basis for the value of life. The founding father of Jewish bioethics, the former chief rabbi of the United Kingdom and the Commonwealth, Sir Rabbi Jakobowitz (1921– 1999) concluded that the words “sanctity of life” are not to be found in the halakhic literature. He therefore refers to life as having “supreme” and “infinite” value in Judaism.206 Rabbi Wasner (twentieth-century Israel) rules that an individual is not obliged to sacrifice more than one-fifth of his or her property for the sake of saving another person’s life. This is the level of sacrifice required to fulfill the duty of charity. Only when no other source of help is available, as in the case of two people lost in the desert, is it possible to expect one to sacrifice all of his or her belongings for the sake of saving another’s life.207 The codex of law Shulhan Arukh gives permission to borrow money at interest for the sake of saving life.208 With the exception of assault, a non-Jew has the permission to violate the Covenant with Noah for the sake of saving life.209 It is a matter of indisputable common sense that nobody may kill a person in order to save another.210 According to the Talmud, God’s special love for Israel is the source of the suppression of the religious taboos within the Covenant of Sinai (i.e., the laws of Moses) for the sake of saving life. Jewish law does not expect humans to forsake all of their interests for the sake of saving life. The Talmud rules: “your life comes first.”211 Therefore, the halakhic-ethical stance is not an objective and impersonal point of view, but the prime commitment to the vital needs of oneself and one’s kin. All Jews are considered part of a larger family. Discrimination against a non-Jew or disregard for his or her needs is unjust and unwise, an “act of hostility”212 – if you do not save the life of others, they will not save yours, and they may even aggress on you.213 Lack of proper respect for life, limb, and 204 205 206 207

208 209 210 211 212 213

Levin 1934, T. Yoma, 85b. Rashi’s gloss on T. Yoma, 85b. Jakobowitz 1975, 45. Wasner 2002, Part 5, mark 174, relying on Maimonides’s gloss on M. Pe’ah 1; Israel Meir HaCohen 1968, 80. Yo’reh De’ah, 160:22. Rosanis 1904, 24; Babad 1988, mark 295; Karelitz n.d., 91–92. T. Yoma 82b. Bava Metzi’a, 62a. ‫משום איבה‬ T. Avodah Zarah, 26a. According to Jewish law, Jews are not obliged to save gentiles, and gentiles are not obliged to save Jews (Israeli 1966, mark 16:14). The duty of Jews to save nonJews and to do so indiscriminately is derived from concerns of reciprocity.

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people’s interests might denigrate Judaism in the eyes of non-Jews. In this sense, offense against the interests of the non-Jew might be a graver wrongdoing than harming the interests of a Jew.214 However, when resources are limited, preferential regard to self and kin is not disrespectful of more distant persons. Not only does Halakhah posit one’s vital interest before strangers’, it sometimes gives permission to mind one’s own nonvital interests at the expense of the interests of distant communities. According to Rabbi Yossi, the residents of a city may wash their laundry in the river, even though their neighbors downstream need this water for survival.215 Rabbi Berlin explains that because neglect of personal hygiene might cause illness, Rabbi Yossi grants higher priority to possible self-risk over risking the lives of remote people.216 Rabbi Halbershtam, who was a hasidic rebbe and the only rabbi to establish and supervise a modern hospital and a chain of nursing homes, writes that the law on the two cities sharing the same river obtains only when setting priorities between communities because the “convenience of many” may be a vital need for the vulnerable few among them. Thus, whereas a daily bath, for example, might be considered luxurious, a few sick individuals’ lives might depend on daily washing. Halbershtam argues that there is no permission for an individual to consume resources that are not vital for one self while those same resources are vital for another.217 Because halakhic discourse depends strongly on formative early talmudic discussions, the deliberation on consumption of water by the two cities has become the stepping-stone to the contemporary bioethical discussions on the allocation of scarce resources. Rabbi Tendler, who does not cite Berlin and Halberstam, develops the distinction between individuals and communities (or groups of people). Although an individual must resign him- or herself to inconvenience and not consume a resource that is another person’s vital need, the community bears responsibility for its future needs. Hence, the community may retain resources that might be necessary for its future needs and that might be vital for a few of its members, even though distant communities might need these resources now and for the sake of survival. When people compete over scarce resources inside the community, distribution should follow the triage system, according to which priority is granted to those who are likely to benefit most.218 Other halakhists concur, expressing preference for the utilitarian distribution of resources in which an immediate need of one person takes precedence over the future, equally salient, need of another.219 When it is not possible to estimate

214 215 216 217 218 219

Tosefta Bava Kamma, 10:15. T. Nedarim, 80b; Dichowski 1990. Berlin 1867, 60. Halbershtam 2001, mark 79. Tendler 1984. Unterman 1983, gate 1, chapter 8.

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which need is more urgent or more likely to be met, allocation should follow lottery, queuing, or any other form of fair “pure procedural justice.”220 The notion of a “right to healthcare” does not exist in Halakhah, which is a duty-oriented not rights-based system of normativity. Hence, one intrinsic limit on spending on healthcare will be derived from the lack of duty to give to charity more than one-fifth of one’s property. Jewish law discourages excessive spending on charity lest the giver becomes dependent on charity in the distant future.221 This mode of reasoning is similar to the scholastic distinction between “ordinary” care that society must furnish to the needy and “extraordinary” care, which, owing to its excessive burden on the public, society has no responsibility for. The latter is too burdensome to either patient or society to sustain routinely.222 The Talmud decrees, “One does not ransom captives at more than their value.”223 The Talmud offers two explanations to the limit on the duty to ransom captives. The first is “good order”224 – worry about giving incentives to bandits and pushing up the prices of ransom. The second explanation is a wish to avoid “overburdening of the public.”225 Both explanations, which belong to commonsense morality rather than to specific Jewish values, have been accepted as relevant to Halakhah.226 Rabbi David HaLevi Segal in his gloss Taz on the codex of law Shulhan Arukh writes that one should not sell a synagogue to ransom captives, but it is permissible to sell a Torah scroll for the sake of that same purpose.227 He explains that although a Torah scroll is much holier than a synagogue, “the world” does not sell houses for the sake of ransom.228 Since it is even permissible to sell a scroll of Torah for the sake of marriage,229 we may infer that the permission to sell the Torah for the sake of ransoming captives is not derived from the unique duty to save life but from adherence to well-established communal practices. Taz does not stress the value of saving captives whose lives, dignity, and bodily integrity were in immediate danger. Nor does he prioritize potential sacrifices (e.g., selling a Torah vs. selling a synagogue). As a halakhist, 220

221 222 223 224 225 226

227

228 229

Steinberg 1996, 518–525; Avraham 1993b, 113–115. On “pure procedural justice,” see Rawls 1971, 83–90. T. Ke’tubot, 50a. Kelly 1951; Wildes 1996. Gittin, 45a. ‫תיקון העולם‬ ‫דוחקא דציבורא‬ Rabenu Nissim’s gloss (Ran) on T. Gittin, 45a; Rabbi Shabtai Cohen’s gloss (Shakh) on Shulhan Arukh, Yo’reh De’ah, 252:4. Yo’reh De’ah, 252:1. Ransom of captives is the only context in which a community may sell materials dedicated to building a synagogue; Moses of Coucy 1547, Positive commandments, mark 162. Apparently, the problem in selling a synagogue is its certain destruction or change of use by the buyer. Taz on Yo’reh De’ah, 252:1. T. Yevamot, 62b.

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he shuns direct interventions in such matters. His duty as a rabbi is to uphold “the way of the world”230 as long as it is fair and reasonable. Occasionally, in the face of an intricate dilemma that pits an apparent medical need against a fundamental religious value, a rabbi may criticize “the way of the world.” In 1976, Rabbi Klein wrote against the “recent habit” of women receiving routine checkups from gynecologists. The rabbi cannot and would not retract the principled permission to seek gynecological care, but he also loathes routine physical exams of women by male doctors: Most doctors today are corrupt . . . the doctors of the past were not [much] better. . . . [Nevertheless] we [the rabbis] cannot prohibit [needed and justified] medical care. . . .231 Hence, certainly, most women who consult [their] doctor before and after they get pregnant, and they do it only for the sake of seeing the doctor and undergoing medical examination, and this examination does not contribute to health, but, rather, according to the big experts,232 it might even be harmful, but the doctors create an appearance as if they do something [beneficial] for the money they make, so patients come for [follow ups] on a monthly basis or even more often. But sometimes [the doctors] cause harm and even induce miscarriages.233

In the Western world, the medicalization of fertility and pregnancy has been subjected to criticism.234 Conflicts of interests are a perennial malady of medicine. One may question the need to perform Pap smears on Orthodox Jewish women who are at much lower risk for cervical cancer than other American women.235 Conversely, they are at higher risk of being underscreened for cancer.236 Amniocentesis carries a certain risk of miscarriage, and women’s perception of risk of fetal loss, as well as of fetal defect, deviate from actual risk.237 In the absence of an Archimedean point for criticizing medicine, Rabbi Klein invokes the authority of “big experts,” as if they constitute a tangible moral and professional elite, instead of questioning the cultural construction of medical authority and the ubiquity of expert power. In my own view, the maxim limiting the ransom on captives should encourage the public to negotiate with pharmaceutical companies more aggressively and to refuse the purchase of care at exorbitant prices, even at the price of patients’ lives. So far, public committees deliberating the allocation of health resources have tended to set priorities rather than to examine the acceptability of price tags set by the industry, as if prices reflect hard facts rather than the dynamic equilibria of supply and demand. This insight may be found in the writings of 230 231 232 233 234 235 236 237

‫דרך העולם‬ .‫ אין לנו כח לאסור‬. . .‫ולכן מה שהוא באמת לרפואות‬ ‫לפי הרופאים הגדולים‬ Klein 2009, part 7, mark 232. E.g., Barker 1998. Menczer 2003. Albert et al. 2004. Marteau et al. 1991.

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eighteenth-century Rabbi Pappo. Immediately after he underscores the duty of the community to protect life and save it, Pappo calls for rules that relieve the burden of vital public services.238 In the twentieth century, Rabbi Waldenberg points out that the only practical way to enable each person to access the doctor he or she trusts is to establish communal funds for healthcare and to hire physicians on a fixed tariff and not on the basis of “fee for service.”239 Waldenberg actually endorses the nineteenth-century system of mutual aid clubs, which in England were crashed by a coalition of doctors’ associations and the state.240 In Israel, until the nationalization of healthcare in 1994, similar, but socialistically oriented, sick funds or mutual aid funds were the bedrock of healthcare for the Jewish population. Rarely do we find an Orthodox rabbi praising a socialist endeavor, but How good and splendid are the various sick-funds in our Holy Land. They embody the three great virtues in which our nation excels – mercy, modesty and charity.241

Although rabbis agree that it is possible to set limits on the initiation of new care, some believe it is always forbidden to terminate ongoing care, to abandon one patient for the sake of a new one with a more promising prognosis.242 Decisions on hypothetical patients and remote needs are endlessly easier psychologically, perhaps even morally. The most taxing tragic choices occur when a responsible person faces directly the vital needs of concrete patients, with the inevitable challenge of choosing one life over another. The Mishnah sets clear priorities – a man comes before a woman, a Jew before a non-Jew, and a learned rabbi243 before all others, even before an unlearned High Priest.244,245 A similar discussion is found in the writings of the Mishnah’s contemporary, the Roman philosopher Cicero. He concluded that social status must not bear on life-anddeath decisions.246 Already in the early modern period, rabbis tried to evade the literal meaning of the old law. Because it is not possible legally and theologically to ignore an explicit Mishnah, Rabbi Karo, the author of the codex of law Shulhan Arukh, wrote that sages of the kind preferred by the Mishnah did not exist anymore.247 Rabbi Karo and his circle of kabbalists in sixteenth-century Sefad (north Palestine) did not lack in self-esteem. Karo documented his personal mystical

238 239 240 241 242 243 244 245 246 247

Pappo 1987, 637. Waldenberg 1985, mark 24:6. Green 1985. Waldenberg 1985, mark 24:7. Rappaport 1992; Auerbach 1999, mark 82:2. ‫תלמיד חכם‬ ‫כהן גדול עם הארץ‬ Horayot, 12:1. De Officiis, 3:23. Yo’reh De’ah, 243:2.

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visions in which God’s angel revealed to him the secrets of the Torah.248 The halakhic technique of Okimta249 (literally: making [a saying] stand [on an assumption]) aims at avoiding authoritative statements by rendering them relevant only to certain assumptions or circumstances and not others. In this case, it is the constraining of the prerogative of the sage to a quasi-mythical idealization of ancient piety and learnedness. Undermining class entitlements, Rabbi Mat wrote that a pious simpleton comes before a learned sage who is not Godfearing.250 In the twentieth century, Rabbi Auerbach seized on this mishnaic law for the sake of prohibiting ageism. He wrote that since the law does not give preference on the basis of age, allocation of scarce resources must be blind to age as well.251 This is a striking example of how halakhic reasoning can harness an anachronistic law to a relevant end and transform a discriminatory principle into an egalitarian ruling. The mishnaic set of priorities is worth appreciating for its sincerity. By openly acknowledging in-group favoritism as a legitimate consideration, the rabbis actually alert the public to its own inherent bias – when life is at stake, the rabbis tell us that their own class takes priority over all others. I find in this Mishnah a warning or a disclaimer rather than a directive. This is worth pointing out, because the mindset expressed in this old Mishnah permeates contemporary rabbinic thought. For example, Rabbi Sternbuch writes that because the sage is of service to the community, it is permissible to self-sacrifice for the sake of saving a sage.252 This ruling by a sage is not much different from medical and bioethical guidelines that give preference to doctors and other people of “broad social value” in situations of mass disaster.253 Halakhah still upholds certain claims to the priority of sages.254 In the absence of major religious institutions and hierarchy, the social status of the learned rabbis depends solely on the esteem of the people. Beyond pretensions to a preferential treatment, they also produce warnings such as “there is no cure for the illness of a person who insults sages [i.e., a learned rabbi].”255 Although the attribution of ill health to sin is a common religious association, meting out incurable illness as punishment is one step ahead in severity. In my reading, the sages’ claim for privilege and priority betrays social weakness as well: the powerful do not need to threaten in the name of the divinity. In sum, when a choice of allocation is personal, one may give preference to self and kin but not to a nonvital interest over a vital one. When the public faces 248 249 250 251 252 253 254 255

Werblowski 1965, chapter 8. ‫אוקימתא‬ Mat 1876, 218. Auerbach 1999, mark 82. Sternbuch 1992, mark 892. See Silberstein 1999, 87. White et al. 2009; http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5810a1.htm Gloss Shakh on Yo’reh De’ah, 251:16. T. Shabbat, 119b.

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dilemmas of allocation, the minor (but nontrivial) needs of the community may take precedence over more salient needs of distant communities. Inside the community, distribution must be fair and principally utilitarian (most lives saved). The rabbis tend to endorse every legitimate and reasonable system as “the way of the world.” This “way of the world” may not require universal healthcare coverage at public expense because most medical services are not emergency measures analogous to ransoming captives and rescuing souls from under rubble and because Halakhah recognizes limits even on the efforts to ransom captives. Moreover, there is no halakhic reason to prioritize clinical care above other basic services, such as preventive medicine, road safety, and education. One kind of healthcare service appears different. This is the duty to “visit the sick.” The universality of this duty is twofold. It is a nonforfeitable personal duty incumbent on every community member who can perform it, without exception, and it targets every needy person. Whereas every good interpersonal deed fulfills the ideal of neighborly love, only a few acts of charity are also considered “walking in the ways of God,” imitatio Dei. Of these acts of charity, only two have been considered tokens of respect for the image of God in man – visiting the sick and burial of the dead. Of these two, visiting the sick is the only charity that also fulfills the supreme duty to save life, even if, according to medical standards, the visit does not have any measurable impact on life and health.

risk and futility The rabbinic idioms of risk are qualitative. To understand terms such as “remote worry,” “great doubt,” and the like,256 one has to know about the circumstances under discussion and compare the use of different risk-related vocabularies, a scholarly enterprise that has been conducted neither in the rabbinic nor in the academic literature on Halakhah. In the late eighteenth century, Rabbi Ishmael HaCohen from Modena wrote that people should inoculate their children against smallpox “even if the risk is one to a thousand.”257 This is quite striking. Since inoculation is cutting the skin of the child and infecting the wound with pus taken from a sick patient, one would expect the rabbis to advocate hopeful inaction rather than action that might kill the child. The rabbi writes that he trusts the testimony of expert doctors that not even one in a thousand died. This was a gross underestimation of actual risk. Moreover, in the 1790s, most “expert doctors” in Europe were against inoculation, which was considered unsafe. In one survey, less than onethird of doctors inoculated their patients. This is why most people procrastinated inoculation until danger was palpable.258 This tendency was familiar to 256 257 258

‫ ספק קלוש‬,‫ ספק גדול‬,‫ ספק וספק ספקא‬,‫חשש וחשש רחוק‬ Ishmael HaCohen 1796, mark 32. Watts 1997, 114–115; Lindemann 1996, 331–336.

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the rabbi. At the end of his discussion, he adds another consideration. Inoculation is performed only when the plague is already raging in town, when the danger is clearly imminent. In the same year as the publication of HaCohen’s book – but unknown to the rabbi – Edward Anthony Jenner published his method of vaccination against smallpox, which used an agent derived from cowpox, and the era of safe vaccination had begun. Overall, there seem to be three possible conceptualizations of risk in Halakhah. The first is derived from professional standards of risk. Today, this would be the construance of risk within the framework of “evidence-based” medicine and good clinical practice. The second is derived from the risk perception and risk-related behavior of ordinary people. These two ways of understanding risk are secondary to “the way of the world” – either the professional world or psycho-social reality. Since both clinicians and patients are involved in more subjective and context-dependent risk-related behavior,259 within the second framework of risk, Halakhah would respect any reasonable risk-related choice. Contemporary rabbis lean toward this psychosocial standard of risk.260 A third approach relies on intrinsic halakhic criteria, such as the maxim categorizing every parturient woman within the first three days after birth as a person “at risk.”261 Usually, the rabbis behold teachings of this kind as positive legislation and do not try to extrapolate them from one context to a similar one. Hence, criteria of risk that spring from the halakhic discourse are sporadic, such as in the laws of visiting the sick and the worry about psychological trauma to young children, gravely ill people, and women in active labor. A few rabbis have assigned absolute numerical values to risk. The lowest I have found is “one in dozens of thousands,”262,263 but this ratio might be typological. Rabbi Klein (1923–2011, United States) reports that a surgeon told him that if the risk of surgery is four out of thousand, the surgeon informs the patient that the surgery works a “hundred percent.” If the patient dies nevertheless, the surgeon tells the family that the patient was unlucky. The rabbi rejects this style of “informed consent,” affirming that Jewish law is sensitive even to a risk of one in a thousand.264 It is not clear whether the rabbi thinks that a risk lower than one in a thousand is negligible – thus setting an objective halakhic threshold lower than the one accepted by the medical profession – or, if according to Rabbi Klein, every scientifically quantifiable risk to life should be taken into consideration. It is noteworthy that even though the responsum was probably written in 1993, Klein did not study the bioethical, legal, and sociological literature on risk, but

259 260 261 262 263 264

E.g., Keller 2009. Neuvirt 1979, 429; Farbstein 1994; Avraham 1997, 36. Auerbach 1986, mark 7. ‫כמה רבבות‬ Azulai 1795, mark 25. Klein 2009, part 13, mark 177.

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chose to recount a vignette, a quip with an anonymous American surgeon, as background to his halakhic conceptualization of medical risk. Rabbi Silberstein (b. 1934) wrote that the community is not obliged to provide a lifesaving service whose chances of success are less than 5 percent.265 Doctors wanted to give a patient a heart transplant, but he was worried about the risk. Since his prognosis was longer than one year, Rabbi Elyashiv, Silberstein’s father-in-law, gave the patient permission to refuse surgery because “many patients have lived longer than the doctors’ prediction.”266 It seems that this approach reflects epistemic doubts (doctors’ long-term estimates are less reliable) rather than some sort of halakhic “future discounting,” which is people’s tendency to value major future gains less than immediate minor ones. But, similar to Rabbi HaCohen’s ruling on inoculation, we find a general attitude of discounting the saliency of future risks relative to the immediate risk involved in medical care. As this ruling by Elyashiv illustrates, rabbis have also been careful not to encourage the aggressive treatment of doomed patient.267

circumcision and the problem of risk to health Male circumcision, which is usually carried out at the eighth day of life, is one of the most cherished and widely preserved Jewish practices. However, regarding the maxim of “saving life,” circumcision is no different from all other halakhic laws; when in doubt, circumcision must not be performed. The Talmud rules that if two brothers have died following circumcision, the other siblings must be left uncircumcised.268 I suppose that the talmudic requirement of two circumcision-related deaths as precondition to the exemption reflects the high infant morbidity and mortality of the premodern period, in which context it is very difficult to attribute neonatal death to any particular factor. But everybody knew that circumcision of any kind might be risky: the Talmud refers to a practice of “sucking” [the wound orally immediately after the operation] as a well-established and essential preventive measure, A surgeon/circumcisor who does not suck should be removed [from practice] because of the danger. This is evident, because [sucking] is permitted on the Shabbat [so, it has the status of a lifesaving act].269

We find here three legal layers. The principal law on circumcision does not require sucking; talmudic law incorporates the preventive measure of sucking in its codification of the ritual, and it also articulates the communal system of 265 266 267 268 269

Undated printout number 130 of Silberstein’s classes on medicine and Halakhah ‫חוג רפואה והלכה‬ Silberstein 1999, 60. Sarna 1971, 79. Yevamot, 64b. Shabbat 133b.

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regulation, endorsing the requirement to suspend circumcisers who neglect to suck. The talmudic text presents all three layers as if belonging to one normative fabric; as a matter of fact, their very inclusion within the Talmud creates a fusion that culminates in a confrontation between internal and external modes of halakhic development. The internal mode gives primacy to the internal principles of Halakhah, distinguishing health advice from the essence of a commandment, for example. But the external mode is, first and foremost, committed, to the greatest extent possible, to the preservation of the teachings of the Talmud as a holistic tissue of normative tradition. In the early nineteenth century, in the wake of a few cases of infant deaths from syphilis, some Jewish doctors pointed out that the talmudic advice was actually a source of medical danger.270 The first proposal to refrain from sucking on grounds of safety was published in 1831, by a Jewish physician.271 In 1838, Dr. Wolfers, the director of the Jewish hospital in Vienna, who was also a university professor, sought to abolish the practice, and the first halakhist responding to this request was inclined in favor of his proposal. He also received endorsement for the new practice from Rabbi Sofer, the staunch leader of Orthodox Judaism.272 This may be considered a successful interaction between the rabbis and the emergent class of Jewish doctors, who only a few years earlier were first able to enter German universities to acquire a state-of-the-art medical education, as part of the novel trend of “medical reform.” Alas, the emancipation of the Jews also brought with it secular and reformatory winds that sought to abolish circumcision along with many other traditional religious habits, which, in the eyes of the educated, appeared strange, outdated, and even repellent. Some rabbis initiated a reactionary defense of the traditional ways of life, not differentiating between fundaments of Halakhah and folk practices, even when the latter were clearly superstitious, even harmful. One has to bear in mind that whereas contemporary sensibilities of hygiene and good manners are established on avoidance of bodily contact and fluids, premodern medicine relied heavily on physical contact and the alleged medicinal qualities of blood, saliva, and urine. Sucking is a particularly sensitive issue, because it originated in the Talmud as a measure of safety. Even by modern standards, it is quite likely that the mouth of the average person was safer than the alternative means of cleansing that were available to the poor. When talmudic naturalist presumptions are found to be scientifically wrong (e.g., the presumption that lice do not procreate but self-generate from sweat,273 or the belief that the birth of an infant at the end of a seven-month pregnancy is full term274), some rabbis find the halakhic rules that are based on the false 270 271 272 273 274

Katz 1992, 150–183; Efron 2001, 222–233. Wolfers 1831, 43–51. Horowitz 1845; Horowitz 1870, mark 55. T. Shabbat, 107b; Maimonides, Hilkhot Shabbat, 13:3. See p. 191.

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presumption irrelevant; others tend to keep them because obedience to tradition has its own intrinsic value and because traditional practices are supported by more than one reason – some of these additional motivations may go unseen or be beyond human comprehension.275 The rabbis tend to refer to scientific truths that contradict talmudic teachings as historical “changes in nature.”276 Sometimes the rabbis take an empiricist trend, taking into halakhic consideration only the phenomenal world277 while remaining open to the possibility that the prevailing scientific truth might change. The traditionalist Rabbi Ettlinger wrote in 1846 that whereas the risk of contagious diseases may be prevented by proper measures, such as medical check-ups of the mohel (circumciser), it is impossible to ignore the warning in the Talmud, even if the risk is “one to thousands or dozen of thousands.”278,279 In the first half of the nineteenth century, a debate raged over whether diseases such as cholera and puerperal fever were spread by contagion. In 1847, Iganz Semmelweis published his groundbreaking finding that hand washing can reduce the rate of postpartum sepsis. Not only did this pioneering work give support to the contagion theory, it also highlighted academic doctors as disseminators of illness. The Jewish debate on sucking in the 1830s anticipated this debate by presenting circumcisers as potential vectors of disease. In comparison to the hostile reception of Semmelweis’s suggestions by the medical establishment, the rabbinic response to the criticism of oral sucking is nothing but openminded. Avoidance of hand washing by medical personnel bore no cultural or professional ramifications, but the reformers of circumcision set to exclude a safety measure bolstered by religion and traditional practice. Wolfers provoked traditional Jews by labeling sucking as “disgusting”280; Semmelweis alienated colleagues by his arrogant style and by the very laborious and noxious disinfecting method he was promoting.281 The debate on oral sucking is far from resolved, having been recently renewed following reports of infants who contracted herpes virus.282 An Israeli retrospective study from five hospitals found that one-third of neonatal herpes was associated with circumcision. But the absolute numbers are relatively small – 7 out of 22 cases in eight years. One has permanent disability.283 When Jewish law and tradition are under secular pressures, rabbinic cooperation with the medical establishment wanes. In a letter to Rabbi Chajes, written

275 276 277 278 279 280 281 282 283

Feinstein 1964, E’ven Hae’zer, 3:2; Issachar Dov b. Tanhum 1896, mark 97 (p. 5a). ‫השתנות הטבעים‬ Bleich 2002, 83. See p. 23. ‫אחד מני אלף או מני רבבות‬ Ettlinger 1868, mark 23. Ekelhaft. Nuland 2003; Owen 2013, 33. Centers for Disease Control and Prevention 2012. Koren, et al. 2013

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in 1836, Rabbi Sofer refers to delayed burial284 and other novel practices introduced by Enlightenment-oriented reformative trends. Sofer affirms a few legal measures and tactics. He encourages the concealment from the populace of potentially lenient rulings, the “upgrading”285 of the significance of laws under attack, and a priori rejection of novel habits and practices – “novelties are prohibited by the Torah.”286,287 Perhaps, Ettlinger’s dismissal of medical risk (albeit a low risk) and concern about a risk of one in ten-thousand when a talmudic warning was at stake was a similar kind of “stepping up” tactic.288 One may read the sucking controversy as a clash between inflexible traditionalism and scientific medical reform. But it is also possible to understand the events differently. The exposure to germs and the counterintuitive possibility that apparently healthy healthcare providers might be a source of contagion alerted people to the fragility of medical knowledge, to the nosocomial side of medical power, and to unobservable and surprising sources of morbidity and mortality. If doctors may care for patients despite the risk of nosocomial harm, why should circumcisers abandon their own preventive measures? Doctors cannot help but touch infected patients. But syphilis and herpes are sexually transmitted diseases. What may parents think about their own society if they have to worry about infected circumcisers? The suction debate brings into relief two competing conceptualizations of Halakhah. The “legalist” conceptualization hinges on commitment to a legal system that differentiates among diverse levels of obligation, between the so-called essence of ritual and medical advice, as well as among halakhic, kabbalist, and folk sources. Not only is the legalist conceptualization open to external factors, such as emergent expert opinion on risk, it underscores the centrality of preventive medicine within the legal system and the special authority this system grants to expert opinion.289 The “holistic approach,” conversely, expresses commitment to a way of life, with little openness to the possibility that traditional practices may be harmful or otherwise unacceptable. For the latter approach, the talmudic origins of sucking count more than its minor status within the conventions of the halakhic literature, and the widespread acceptance of the practice is stronger evidence of reasonable safety than are sporadic case reports and medical fads. The holistic approach is less keen on reconciling cultural narratives with scientific theory. Doctors might not have the full picture, God preserves the simple, and a measure of courage is expected of believers. The holistic approach is reluctant to acknowledge the fact that tradition does change historically; it is hostile to self-conscious changes, especially in response to

284 285 286 287 288 289

Pp. 202–206. ‫העלאת האיסור‬ .‫חדש אסור מן התורה‬ Chajes 1842, 19b–20a. Westreich 2009, 56. P. 27.

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external, critical pressure and on the assumption that the Jewish way of life is divisible into an essential, authentic core and a weak, dispensable periphery. Whereas mere halakhic “holism” characterizes many oriental Jews, the battles with assimilation, reformation, and hostile ideologies (the big “isms”) of the nineteenth and twentieth centuries produced a new kind of religious holism. In reaction to reformism and secularism, “hedging,”290 protection of the law, is construed as no less crucial than the law itself. The Talmud says that one must obey a rabbi who gives orders to temporarily and exceptionally violate religious law for the sake of defending the faith.291 The Ultra-orthodox mentality embodies an alliance between the holistic approach and a reactionary defense of Judaism. Usually, the holistic approach is ready to pay the price of nonselective traditionalism – to wear the “hasidic” outfit, for example, and to defend temporary and minor laws as if they belonged to the heart of Halakhah. But when the price of reactionary holism is an alleged health risk, the Ultra-orthodox mentality is undecided. This ambiguity may result in epistemic denial and even skepticism, as is evident from the rulings of Rabbi Klein (in the previous section) and the readiness to dismiss the minor and seemingly controllable risk of passing venereal infections from circumcisers to infants. Many Jews practice “partial holism,” in which some laws and habits are strictly observed while others are neglected. The “legalist” approach would insist on concentrating efforts on the fundaments of religious law, even at the expense of formally peripheral practices. Partial holism cuts the pie of religious normativity and prioritizes its slices differently and sometimes idiosyncratically. People might drive a car on the Shabbat (violating a fundamental religious taboo), but these same people would never enter a synagogue without a head covering (a matter of propriety and tradition). A version of partial holism is found in healthcare decisions as well. Recently, an Israeli court deliberated a case of wrongful life brought against a gynecologist. The parents had consulted with the chief Sephardi rabbi, Eliyahu, whether to abort a child that was developing despite the presence of a contraceptive intrauterine device (IUD).292 Such a pregnancy is very rare and carries a very high risk of malformations. The parents testified that the rabbi advised against abortion, “promising” them a healthy child. The court ruled in favor of the parents, contending that had the doctors fully explained the risks, the parents would have not heeded the rabbi.293 This is not a clash between religious law and autonomy and the “good of the child,” but a confusion of the legal and spiritual roles of a rabbi. It is impossible to affirm the parents’ version of the story, but many people who consult rabbis with such questions often receive encouragement and blessings of providential protection rather than direct 290 291 292 293

‫למגדר מילתא‬ Yavamot, 90b. An IUD is a mechanical contraceptive implanted in the uterus. District Court (Jerusalem) 5193/03, Darmoni v. Kuppat Holim Me’uhedet.

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halakhic answers. Such ambiguities surface in the face of risk, not near certainties, and posit the question of faith and trust in traditional teachings and religious leaders – whether the occasional dismissal of professional warnings is a virtue worthy of providential protection or a foolish transgression of the fundamental tenet of protecting health given in religious law. As contemporary healthcare providers and consumers are becoming mindful of ever lower rates of risk, the religious and faithful face the challenge of choosing between life according to “risk management” and the “bio-power” of the secular, consumerist, state system on one hand and life according to one’s traditional values and personal sensibilities on risk, faith, and health – even in defiance of certain measures of professionally and politically construed risk – on the other.

4 Doctor–Patient Relationship

the status of the doctor and his or her duties In Western medical ethics, the doctor–patient relationship is a special social domain marked by the values of the medical profession. The word “profession” is etymologically derived from the Latin word for public oath. In the spirit of the famous Hippocratic Oath, doctors take upon themselves special sets of duties toward their colleagues, patients, and society. Each doctor and the medical profession as a whole professes their commitment to standards of excellence and to ethical self-regulation. In Western culture, the construction and regulation of medicine does not allow practice without licensure of some kind nor for licensure without commitment to the values and discipline of the profession. A Jewish variation of the Hippocratic Oath is found in the Early Middle Ages, in the earliest Jewish medical book known, Sefer Assaf HaRofe. It is titled as a covenant1 between a master physician and his pupils, not in the terminology of vows and oaths.2 Halakhah has developed a strong aversion to vows of any kind.3 The by-laws of the sick care and burial society of Ferrara explicitly prohibit any kind of oath in the name of God.4 Nonetheless, some Jewish groups of practitioners, such as the surgeons of Prague, had their own guild-like organizations and their own oaths, which did not include Jewish themes.5 Today, Jewish graduates of medical schools often “declare” but not swear the Hippocratic and similar oaths. Some remain mute during the ceremony. In the Occident, medical ethics has developed from within medical circles. The Hippocratic Oath is, first and foremost, a pledge to respect the profession and its internal codes of conduct. The promise to assist colleagues and teachers or to teach 1 2 3 4 5

‫ברית‬ Katzenelson 1979. Maimonides, Hilkhot Sh’vu’ot, 12:12. Ruderman 1976, 261. Kisch 1935, 152–153.

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their children is not to be found in Judaism. Limiting medical education to those who take a similar oath might be against Halakhah, which opposes the retention by small groups of technical knowledge that is of great value to the public.6 For example, one talmudic sage stole from a practitioner the secret of curing a certain disease. Although he broke an oath made in the Holy Name of God and although this might have caused disgrace to Judaism,7 the Talmud commends the exploit.8 Intellectual rights do not exist in Jewish law. Yet, the rabbis understood their value in the dissemination of Jewish books, and the rabbinic world adopted an inchoate copyright system.9 I suspect, however, that it will be very difficult to sustain in Jewish law a similar utilitarian argument in favor of copyrights over medical information and drugs whenever this might result in a compromised quality of lifesaving care, especially when a access to information is essential to the care of a specific patient. The presence of a patient pleading for help carries a strong moral imperative. The codex of law rules that, A [physician] who abstains from caring for a patient is like a spiller of blood. Even if other physicians are available for that patient [the physician must not decline a request to care], because a patient may not benefit from every physician.10

We may observe that a subjective sense of need and personal dependence may create a duty on behalf of the physician (obviously, within the limits of his or her capacity). This is striking because Western medical ethics prohibits patient abandonment, but does not oblige doctors to accept anybody as a patient (with the exception of emergencies). The halakhic discourse on the administration of healthcare, as well as of other basic public goods, is conducted at two levels – direct and indirect. At the direct level, we find teachings about the duty of a doctor to care for every patient seeking his or her personal help. We will see that the direct discourse barely recognizes the clinical or therapeutic relationship as a privileged domain. Rather, as the following example illustrates, a rabbi may infer a physician’s duty from the duty incumbent on ordinary persons. Rabbi Auerbach ruled that if no risk is involved, society should impose donation of bone marrow despite the inconvenience and even some pain. From this ruling, Rabbi Dr. Avraham concludes that a doctor must respond to a needy patient despite possible inconvenience.11 Halakhic duty is derived from the objective circumstances of need and capacity to help, not from socially sanctioned roles. The second level of halakhic discourse is indirect: it is the halakhic recognition of the autonomous administration of public life by legitimate authorities. At this level, Halakhah would expect people to pay taxes and abide by traffic laws. 6 7 8 9 10

11

M. Yoma, 3:11. ‫חילול השם‬ T. Yoma, 84a. Sinclair 2003, 135. Shulhan Arukh, Yo’reh De’ah, 336:1. The doctor may travel on the Shabbat following such a request – Feinstein 1959, mark 131. Avraham 1993, 194.

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Moreover, reasonable public governance may override a halakhic teaching, such as the duty of every doctor to respond to every patient who seeks the assistance of that specific doctor. It would follow that a well-ordered healthcare system might prohibit a physician from seeing patients who are listed with another colleague merely because the patient prefers one doctor over another. But in situations that do not disrupt healthcare services, response to such requests might receive the endorsement of Halakhah.12 The halakhic absence of a privileged doctor–patient relationship implies a greater involvement of the community in regulating medical practice. The codex of law Shulhan Arukh rules that if a nonexpert doctor practicing with the permission of the community accidentally harms a patient, he is exempt from paying damages; however, if the same accident occurs to an expert operating without the permission of the local authorities, he is liable for it.13 According to contemporary rabbis, the licensure in question is not mere recognition of personal competence or status internally obtained within a guild of doctors; otherwise, the first doctor cannot be labeled an “expert.”14 Rabbi Silberstein writes that, from a rabbinic point of view, a medical doctor with a license and a naturopath with a license (of the kind granted to this kind of practitioner) bear similar professional authority.15 The roots of this bilayered recognition in the status of individual providers of healthcare are found in the nineteenth-century Lithuanian Rabbi Epstein’s code of law: It is forbidden to practice medicine unless the person is expert/skilled16 and he has permission from the [rabbinic/community] court. In our times, one must [also?] be licensed by the government.17

Only the requirement of skill is purely halakhic. But refraining from care despite skill and only because the practitioner is not licensed would be halakhically acceptable only within a broader framework of the public good. Otherwise, the practitioner would be obliged by Halakhah to restore health and save life regardless of whether he or she is licensed by the authorities. We find here “the way of the world” in the form of state licensure, an internal professional recognition of the skills of the practitioner, and a remission by the community that creates for the practitioner a safe space in which to practice with some impunity. The sources do not offer details regarding the criteria for communal recognition, but they most certainly pertain to the personal good standing and piety of the practitioner. The “world” is both the communal microenvironment, as well as the law of the state.18 12 13 14 15 16 17 18

See Freedman 1988. Yo’reh De’ah, 336:1. Waldenberg 1985, mark 22. Silberstein 1997, mark 15. ‫בקי‬ Epstein 1908, Yo’reh De’ah, 336. E.g., Flekeles 1821, 70.

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Opinions vary on whether a doctor may ask payment only for the time spent, but not for the art of medicine, or whether, because he sells wisdom and not a laborer’s time, he may ask as much as he wants (even if such asking is not virtuous).19 Rabbis have condemned doctors who shunned impoverished patients, and some called for forcing such doctors to care for the poor. In the medical traditions of the West, doctors belong to a privileged elite of professionals, and the domain of the doctor–patient relationship is a distinct realm isolated to a degree from the pressures and injustices of daily life. The doctor has a special ethical duty to his or her patients, to whom the doctor is committed more so than to other people, interests, and values. In Halakhah, the doctor, exactly like any other person, is committed first and foremost to protecting potential victims. Some rabbis think that the physician has a preferential duty to his or her patient.20 Rabbis debate whether a doctor is obliged or prohibited from disclosing confidential medical information in order to spare an innocent person significant harm. Rabbis have written that whenever awareness of a medical condition is certain to change a marriage choice, even if the prospective bride or groom does not approach the doctor asking about the medical condition of the candidate partner, the doctor must communicate the information at his or her own initiative so as to protect the other party from substantial harm.21 Paradigmatic conditions are epilepsy and mental illness. Carrier status of a heterozygote gene for a serious disease should be kept confidential.22 The relevant legal principle is the prohibition binding every person not to disclose information on another, not a special fiduciary duty of the doctors.23 A minority opinion in the rabbinic discourse is that doctors who took the Hippocratic Oath should abide by the professional code of confidentiality in fulfillment of their duty to that oath.24

truth telling and disclosure of “bad news” The halakhic discussion on withholding bad news from gravely ill patients is based on the biblical stories of Elisha and Ben Haddad and on Isaiah and Hezekiah.25 The use of analogies from these stories, which are about relationship of fiduciary interest, not of care, in clinical ethics illustrates that, in Halakhah, all interpersonal duties apply to all persons regardless of status, be the person a doctor or not. The rabbinic sources are ambiguous with regard to the old conflict between veracity and well-being, and the final decision is left in

19 20 21 22 23 24 25

David b. Zimra 1975, mark 194. E.g., Sternbuch 1992, mark 879. Waldenberg 1985, mark 4:3.; Steinberg 1994b, 622–623. Feinstein 1985, Even HaEzzer, mark 10. Mendelson 1998; Sinclair 2003, 131. Rakkover 1959. II Kings 1:16; II Kings 20:1.

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the hands of the person holding the information.26 Some general guidelines may be found in the premodern rabbinic literature. The Medieval anthology Sefer Hasidim writes: An expert physician who knows from examining the urine whether the patient will die – if the patient says, “please, do not mislead me, thinking that [informing me of the truth] will derange my mind,27 but I will be happy to know the truth.” If he [the patient] does not want to live because of great suffering, or if he is very old, or in need to prepare himself spiritually, the doctor should tell the truth. [The two sentences that follow are unclear.]28

The codex of rabbinic law, Shulhan Arukh, and later commentators forbade the communication of bad news to patients in a fragile condition for fear of “mental disturbance” that might compromise chances of survival.29 In the era of bioethics, when apprehension over deceit and disrespect for personal autonomy is a dominant psychological and ethical factor, it might be possible that withholding truth and dissociating patients from reality is the very attitude likely to produce mental derangement. Sooner or later, a word may leak out and the psychological harm may be worse than what caregivers wanted to avoid.

refusing medical care and coercive treatment Jewish law constructs an asymmetry between the doctor’s judgment and the patient’s. Eighth-century Rabbi A’hai Ga’on wrote that if an expert doctor prescribes treatment that involves the desecration of a religious taboo, but the patient says he or she does not need it, it is obligatory to follow the doctor’s advice because of concern that the patient is not of sound mind.30 However, if a few doctors say that the patient does not need the intervention, but the patient insists that he or she needs it, Halakhah heeds the patient, because “the heart knoweth his own bitterness.”31,32 Because a patient is not permitted to selfprescribe risky treatment against medical advice, it is evident that the care in question is not medical treatment (e.g., drugs, surgery) but the provision of food, washing of the patient in warm water, and similar constituents of basics of care. Typically, the food is more refined than usual, the bath is warm, and all aspects of basic care might be guided by medical advice regarding issues such as an appropriate diet and balm oils. Halakhah does not attempt to determine which epistemic perspective is more accurate – the doctors’ professional judgment or the patient’s own self-perception regarding his or her own self and life. Because, in Jewish law, saving life is always given the benefit of doubt, it is 26 27 28 29 30 31 32

Kunin 2002; Weingarten 2002; Freedman 1993; Aviner 1983. ‫תטרף דעתי‬ Wistinetzki 1924, mark 154. Yo’reh De’ah, 337:1, and see glosses Shakh and Bakh. ‫ – תונבא‬A talmudic word for folly. Proverbs 14:10. A’hai Ga’on 1546, mark 38.

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permissible – actually mandatory – to suspend religious taboos on the grounds of either perspective. Additionally, owing to halakhic sensitivity to suffering and worry about the consequences of inducing resentment in vulnerable patients, the rabbis are even more averse to paternalistic care. (Resentment is the mental anguish produced by the experience of one’s desires being thwarted, especially regarding one’s own body and self and regardless whether the desires are autonomous or not.) In the sixteenth century, Rabbi David b. Zimra wrote that the patient may heed his own heart, whenever she has a strong feeling and belief that she must eat something lest she dies and even if the doctors are confident that eating it would kill that patient.33 In the early nineteenth century, probably as a reaction to “Enlightened” attempts to reform Halakhah in line with cutting edge science, leading rabbis weakened the authority of medical science in Halakhah. Rabbi Sofer wrote against the unquestionable extrapolation of medical knowledge acquired from non-Jewish patients to Jewish patients who are nourished on a very different diet – kosher food. He explained that the permission that doctors have to desecrate the Shabbat is justified because the principle of “recovering a soul” applied even in doubtful cases.34 Sofer never doubted the material equality of all human bodies. Relying on recent medical books, he sides with Maimonides and not with contending medieval rabbis in an anatomical debate.35 It is noteworthy that even rabbis who openly rejected scientific tenets in favor of talmudic teachings have been careful to point out that many empirically supported scientific theories are, nevertheless, blighted with methodological problems.36 The rabbis do not propound skeptical observations regarding science when the problem in hand is medical care and the maxim of saving life, “recovering a soul.” However, when life and limb are clearly not at stake and a strong moral or halakhic consideration creates a motivation to ignore a naturalistic observation, rabbis may resort to skepticism or encourage people to put their trust in God. This attitude is found in relation to medical science, as we have just seen, as well as to a naturalistic talmudic observation, such as the maxim that a virgin older than forty years cannot conceive.37 In the nineteenth century, Rabbi Kluger encouraged a man not to cancel his engagement with such a woman because of the shame that may ensue and because hope for children in such a case entails reliance on a “minor miracle.”38 Because the Talmud warns against reliance on miracles while making risk-related choices,39,40 Kluger’s distinction between reliance on “major” miracles, which is forbidden, and reliance on “minor” ones 33 34 35 36 37 38 39 40

Gloss Maggen Avraham on Orah Haim, mark 328:6. Sofer 1956, 32b (Avodah Zara, 31b). Sofer 1841, mark 167. Isaac b. Sheshet 1879, mark 648. T. Bava Batra, 119b. ‫ניסא זוטא‬ ‫אין סומכין על הנס‬ T. Yerushalmi Shekalim 6:3; T. Yerushalmi Yoma 1:4 on Deuteronomy 6:16; T. Ta’anit 20b–21a.

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is novel. Kluger is careful to buttress his ruling on four different arguments. First, there is a strong motivation to spare the woman the shame. Second, “not all miracles are the same,” implying, in my opinion, that self-exposure of risk to life and limb is different from self-exposure to the risk of childlessness. Third, he says that “minor miracles” may be relied upon because they are common. Last, he offers a naturalistic argument: he suggests that the talmudic maxim pertains only to women who have never had romantic feelings or sexual arousal.41,42 When Chief Rabbi of Israel Herzog faced this talmudic maxim in the 1940s, he consulted expert gynecologists and concluded that “[human] nature has changed43” and that the talmudic maxim was no longer valid.44 Whether minor miracles occur often or human nature has changed is not only a matter of style of expression. When the rabbi offers counseling, he may encourage the believer to trust in God’s minor miracles; but when a rabbinic court has to hand down judgment, as in the case of Herzog, a categorical statement, even if unpopular among the rabbis, must be made. Rabbi Schwadron (nineteenth-century Galicia) explains that although expert doctors should be trusted regarding general statements on, for example, the laws of physiology or pathology, they are less reliable with regard to individual judgments, such as prognosis or the therapy that a particular person needs at a particular time.45 Rabbi Kook wrote that even principles of medical knowledge have the status of conjectures. Medicine is an art shrouded in doubt.46 In sum, when life and limb are at stake, rabbis unanimously instruct their followers to heed the best medical opinion available. However, attention to safety comes before the desire to find effective treatment. Rabbis are extremely reluctant to ignore safety warnings issued by experts. Even safety warnings originating in the Talmud and other traditional sources are likely to die hard. Many believe that, since life is a supreme value, a trust from God, there is a right and a duty to force medical treatment on patients who refuse it. Obviously, when a house is on fire, we do our best to rescue the people trapped inside, without asking questions. A person who self-exposes him- or herself to risk, saying that he or she “does not care [to live]; why should you care?” is punished criminally.47 In a similar vein, liberal society punishes drivers who conscientiously refuse to buckle up seat belts or to wear safety helmets. But typical medical care is something completely different. Its evidential groundings are weaker; worries about safety are salient, confidence in professional prognosis is far from absolute, the suffering involved might be unbearable. Rescue from fire, water, and from under rubble does not meddle with the mysteries, vulnerabilities 41 42 43 44 45 46 47

‫הרהורי בעל‬ Kluger 1950, Even HaEzer, mark 9. ‫השתנו הטבעים‬ Herzog 1960, mark 6. Schwadron 1902, mark 13. Kook 1993, mark 140. Shuhan Arukh, Hosehn Mishpat, 427:9.

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and idiosyncrasies of the embodied human person. Although the analogy to rescue from under rubble to medical care empowers patients and doctors to engage in medicine without worry about religious taboos and with a strong claim for communal help, the analogy is less cogent when the law is called on to impose care on unwilling patients. The rabbinic discourse on patient noncompliance and refusal of care focuses on the patient’s reasoning.48 We will see that although the rabbis hold to the maxim that everybody is obliged to save life and that doctors may principally impose lifesaving care on noncompliant patients, in actuality, the rabbinic teachings are far from paternalistic. Rather, the halakhic discourse subtly but systematically calls into question the authority of biomedicine, especially doctors’ capacity to know better than their patients. To understand the rabbinic literature properly, one has to differentiate responsa addressed to patients who ask whether they may refuse care and responsa directed at family and professionals who want to know how to care for noncompliant patients. Rabbi Emden (eighteenth-century Germany) writes that if a patient does not believe in the efficacy of care, he or she may refuse it, especially when the patient relies on a doctor who also doubts the treatment in question. Only definitely safe and curative treatments must not be refused.49 Former chief rabbi of Israel, Shlomo Goren, wrote that rejection of chemotherapy in favor of “alternative medicine” is similarly permissible. As long as the patient applies his or her conscientious judgment regarding the best way of coping with illness, Jewish law would not tell him or her which school of medicine is reliable. As a matter of fact, Goren took an even more radical position. Following the medieval sages Nahmanides and Ibn Ezra,50 Goren writes that a pious person may forego medical care and put his or her trust in faith, repentance, and other works of religion.51 Goren’s view is exceptional because it completely ignores the validity of scientific medicine relative to diverse, even incompatible premodern medical theories and practices. Moreover, in the time of Nahmanides (thirteenth-century Cataluña), a significant portion of healers were also Christian clergymen. In France, almost half of them were priests or monks.52 Incantations were among the most common treatment modalities, and only toward the end of the thirteenth century were medicine and religious services separated.53 Indeed, from that time until Goren’s ruling in 1991, not a single halakhic source considered faith healing as a reasonable alternative to the mainstream medicine of the day. Virtually no rabbi sides with Goren’s view.54 Already in the eighteenth century, long before 48 49 50 51 52 53 54

Bar Ilan and Barilan 2005; Silberstein 1999, 48–49. Emden 1994, mark 328. Glosses on Exodus 21:19. Goren 2001, 21–26. Jacquart 1981,155–156. McVaugh 1993. Sinclair 2003, chapter 4; Zimmels 1952, 170–171.

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it was possible to regard medicine as a reliable and relatively uniform body of knowledge and practice, Rabbi Azulai wrote that the permission to resort to religious healing was relevant only to the pious people of former generations. Moreover, he writes that failure to consult the best expert amounts to selfharm.55,56 Usually, Jewish morals expect of people to make a reasonable effort, with the expectation that God will do the rest. Here, for the first time, persons are required to make special worldly efforts lest they be considered sinful. In my view, the secularization of medicine and its separation from religion were crucial factors in the acceptance by the rabbis of medical authority, not any milestone in the history of medical science and technology. A fierce antimedical rhetoric is found within the Bratslav stream of Hasidism and in some other early hasidic circles.57 Yet even such antimedical trends berate doctors for their ineptitude and vices; they do not gainsay scientific knowledge. There is no attempt made to shove aside reliable care in favor of full trust in God. Rabbi Falaji (nineteenth-century Turkey) writes that rabbinic courts should resort to coercion only in matters that all other courts agree on.58 Hence, the existence of Goren’s opinion within Jewish law might pull the ground from under halakhic attempts to coerce medical care in nonconsenting patients. Rabbi Goren did not advocate religious healing to people seeking his advice. But he also thought that the old and singular teaching endorsing trust in God as the sole means of cure was strong enough to repel attempts to coerce care by legal means. Goren’s contemporary, Rabbi Rafael takes a similar position, arguing that, before messianic times, no rabbinic court has the power to coerce treatment. He also writes that because a person is the owner of his or her own body, care must not be imposed, especially if the person follows Nahmanides’s advice to accept only faith healing.59 It is interesting to note that both Goren and Rafael, who express such aversion to legal coercion, were judges in the rabbinic court system of Israel. Rafael died young from cancer, which he had battled by means of chemotherapy. Goren died at age seventy-six, and he always consulted ordinary mainstream doctors. Outside of the medical context, the Talmud recognizes a personal choice of self-risk in the pursuance of livelihood60 but not as a pastime leisure, such as in high-risk sports.61 Rabbis who endorse medical paternalism do not permit confrontation with the patient, but talk about indirect means and verbal trickery.62 One reason for this approach might be that, according to Halakhah, physical assault is like 55 56 57 58 59 60 61 62

.‫החולה חייב לבקש היותר מומחה ואם לאו חובל בעצמו‬ Azulai 1756, Orah Haim, mark 336. Steinemannn n.d., 198. Falaji 1840: Yore De’a, mark 48. Rafael 1992. T. Bava Metzi’a, 112a. Landa 1928, Yo’reh De’ah, mark 10. Feinstein 1985, marks 73, 74.

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bloodshed and is not permitted even for the sake of saving life. Physical coercion, even when justified, may be considered a kind of assault. When the condition is not life-threatening and biomedicine cannot promise success, rabbis become receptive to nonconventional care. Rabbi HaLevi, the chief rabbi of Tel Aviv, gave permission to decline care only when conventional medicine does not promise near certain cure.63 Rabbi Wallner (twentiethcentury Israel) wrote that a patient who prefers to die in order to atone for his sins may be left alone.64 Rabbi Silberstein wrote that unless the condition is potentially fatal, it is permissible to forgo conventional medicine and try out alternative healing.65 In the name of Rabbi Elyashiv, Rabbi Silberstein wrote that a patient may refuse surgery if he or she is keen on finding a better surgeon or medical team, and if he or she conscientiously chooses to follow a minority medical opinion according to which the surgery is not indicated. However, if the patient’s noncompliance is motivated by halakhically unacceptable reasons, such as reliance on prayer only and preference of quality of life over life itself, then imposed care should be contemplated.66 Reservations regarding medical opinion need some justification, such as openness to diverse coping strategies and doubts in the specification of valid medical knowledge to the unique circumstances of the individual. Rabbi Karelitz (aka Hazon Ish) (1878–1953) wrote that each person has to find the appropriate balance of active medical care with passive trust in God.67 In the same vein, Rabbi Feinstein divides “danger” into obvious risks that everybody must avoid and borderline situations, the coping with which is a matter of personal character. Even at the price of desecration of the Shabbat, the courageous would take some risks without being negligent of their lives, whereas the timid would try to avoid risk.68 In 1873, Rabbi Ze’ev Nahum from Biała wrote that a patient may refuse to ingest the milk from a non-kosher animal that was prescribed by his doctors. Although it is permissible to consume it in these circumstances, a pious man may conscientiously refrain from tabooed treatment and put his trust in God. The rabbi first contends that if a person in peril prefers to forgo treatment to avoid violating religious taboo, this person is certainly pious, then he adds that “since we see [with our own eyes] that doctors are prone to failure,”69 one may rely on Nahmanides and avoid medical care.70 This is a more daring permission relative to the medieval precedent of an authoritative rabbi whose doctors told him that if he did not eat on the day of fast he would surely die; if he eats, he might

63 64 65 66 67 68 69 70

HaLevi 1991. Wallner 1957. Silberstein 1999, 39–41. Silberstein 1999, 48–50. Karelitz 1979, 140–141. Feinstein 1959, mark 127. ‫האידנא שנראה בחוש שרופאים מועדים לקלקל‬ Burnstein 1928, mark 193.

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possibly live. The rabbi was confident that his hour had come. He fasted and died.71 We may conclude that rabbis consider coercive treatments allowable when noncompliance does not reflect genuine self-care and piety but rather motivations other than protection of one’s own life and well-being. Such reasons might be self-indulgence, reluctance to spend money on healthcare,72 a worry over becoming a burden on others,73 and strong psychological aversions (rather than conscientious and fully informed piety) to the desecration of the Shabbat and other religious taboos for the sake of treatment.74 In certain circumstances, Halakhah gives permission to use the property of another person for the sake of the owner’s benefit on the presumption of “presumed consent.” Rabbi Roitenberg infers that whenever a patient’s refusal for treatment stems from overwhelming anxiety or an emergency that does not allow for proper deliberation, treatment may be administered nonconsensually on the basis of presumed consent. Roitenberg expresses doubt whether this legal opening is acceptable for invasive treatment (violation of the prohibition on assault75) and when the patient actively resists treatment.76 Although Roitenberg extrapolates from the laws on property to clinical care, the talmudic literature took it for granted that certain forms of care are imposed against the will of the person, but in compliance with his or her authentic or “effective” autonomy:77 It is like a physician who ties a patient to a tree in order to cauterize a foot [lesion].78

In the bioethical literature, such conduct is referred to as a “Ulysses contract.” The oldest known such contract is Odysseus’ order to his sailors to tie him to the mast of his ship and not release him no matter how strongly he might beg them to do so. He also ordered his men to plug their ears with wax. This scheme made Odysseus the only mortal to enjoy the magnificent singing of the sirens, whose lure was so enticing as to make every sailor steer his ship in their direction and crash it on the rocks.79 “Ulysses contracts” (Ulysses is the Latin name of Odysseus) entail direct imposition on the person while he or she is mentally competent and adequately informed, but who nevertheless actively resists the imposition at the time of coercion despite authorizing it while anticipating resistance. The model of presumed retrospective consent might justify the imposition of painful and difficult care, such as surgery before the era of anesthesia, 71 72 73 74 75 76 77 78 79

Recanati 1538, mark 166. Shulhan Arukh, Yor’eh De’a, mark 255:2. Shafran 1994. David b. Zimra 1781, mark 444. ‫חובל‬ Roitenberg 1999. See Schwab 2006. Tosefta Shekalim, 1:6. Odyssey, book 12.

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when tying the patient with ropes and applying other physical restraints was the standard of practice. However, the rabbis have been careful not to extend paternalistic care to vulnerable patients at the brink of death. The Talmud rules that the wishes of the gravely ill person must be respected fully, even posthumously.80 The medieval gloss Rashbam explains that a gravely ill patient is at risk of lethal insanity upon realizing that his or her wishes will not or might not be respected. Although the context of the talmudic discussion is the patient’s choices regarding the distribution of his or her property, Rabbi Feinstein writes against the imposition of lifesaving care on a patient whose life is at risk lest the mental trauma of resentment81 kill him or her.82 It is not clear whether Feinstein was familiar with the premodern Jewish medical literature that included descriptions of miscarriages and other adverse outcomes produced by the sight of sickness and death.83 Feinstein seems to be the first rabbinic authority to connect clinical ethics to the special duty to respect the monetary wishes of the moribund, to expand the permission to chant on a snake bite84 to less acute and extreme conditions, and to extend the permission from medically innocuous interventions such as disposal of property and chanting to noncompliance with medical advice. This was a bold step. Pecuniary considerations may not justify traumatizing vulnerable patients, but one may expect expert physicians to know when the benefit of paternalistic healthcare outweighs the risk to life associated with resentment at nonconsensual care. Precisely on this matter, Feinstein does not trust expert doctors. Feinstein’s ruling is neither limited to mentally competent patients nor to rational choice; the feeble-minded are sensitive to imposition and resentment as well. After the exclusion of coercive lifesaving medical care on gravely ill patients, Feinstein encourages caregivers to exert their utmost efforts to persuade the patient to accept medical care.85 Feinstein does not protect respect for patient´s autonomy, but rather the patient’s mental well-being, whose devastation might tip the overall balance against life. It seems that his psychological presumption (i.e., that the induction of resentment in gravely ill people might be lethal) and sensitivity to the value of life ultimately elicits de facto empowerment of autonomy. Feinstein does not buttress his position with skepticism regarding medical competence, as Rabbi Ze’ev Nahum does, but he relies on a novel expansion of a talmudic naturalist presumption at the expense of expert assessment of the patient’s condition. Only when full restoration to health and life is no longer possible do the rabbis recognize a patient’s autonomous choices about his or her healthcare. As Rabbi Feinstein writes:

80 81 82 83 84 85

Bava Batra, 147b. ‫ביעות‬ Feinstein 1985, Hoshen Mishpat B, mark 73:4. E.g., Zahalon 1683, 21. See p. 32. Feinstein 1973; Hoshen Mishpat, mark 73:4.

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Every person is the owner of his life in the sense that he can choose what is the best for his life. [For example h]e may accept the risk of immediate death in the hope of cure; and he may forgo treatment and cherish his certain, although short, life [as his doctors prognosticate].86

Rabbi Waldenberg concurs: God has given man ownership over his body as long as he uses this ownership in order to maintain its life and wholesomeness.87

And Rabbi Auerbach wrote in 1976 to a professor of internal medicine: Since suffering is very difficult for the person [to bear], and [sometimes] it is impossible to bear, it seems that we must have mercy on the patient and alleviate his suffering somehow. It is also possible that suffering debilitates the person and harms him more than the [side effects of his] medicines. If the patient is conscious, it is mandatory to inform him [about the therapeutic strategy], if he is already aware of his condition. . . . The duty of neighborly love implies refraining from doing unto another, what one does not wish be done to oneself. In our case [of sedatives that are medically harmful], when the patient is pleading with us to silence the pain, even though [the sedatives] harm him, we bear witness that this pleases him. . . . In a few places the Talmud accepts practices that verge on danger, because “the world” acts in such ways; we say that “The Lord preserves the simple.”88 Since all such patients are treated this way, we can say the same [that the Lord will preserve the simple patient from the harm].89

In Auerbach’s words we find all the key elements of the halakhic approach to conflicts that might arise when two fundamental perspectives diverge – what professional doctors prescribe and the wishes of the patient to avoid suffering even through self-risk and self-harm. First, we find the naturalist presumption that suffering is more harmful than what doctors might think it to be. This facilitates deliberation without accepting a clash between life and freedom from suffering. Second, the duty of neighborly love requires respect for the subjective state of mind of the person, even at the expense of objective assessments of his or her vital needs. Third, respect for subjectivity is bounded by “the way of the world,” by the fact that reasonable doctors and patients sometimes treat patients in line with the subjective perception of the patient and despite knowledge of the foreseen harm. Fourth, since such permission was granted to “harmful” treatment, the rabbis would certainly endorse passive inaction – mere refusal of treatment that is motivated by similar considerations. Last, we may infer that the rabbis do not endorse every form of vitalist medical activism; Rabbi Auerbuch merely gives permission for aggressive, risky, and uncertain treatment as long as the treatments are acceptable to doctors and the public. 86 87 88 89

Feinstein 1973; Yo’reh De’ah, mark 37. Waldenberg 1995b, mark 17, chapter 6. Psalms 116:6. Auerbach 1999, mark 82. For the talmudic source of this maxim see p. 129.

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An additional factor is the special role given to protection from suffering in the construction of love in Jewish theology and law. Halakhah never expects of a person to suffer beyond the ordinary range of human hardship.90 Hence, there is good evidence in support of the conclusion that Halakhah permits curable patients to forgo medical treatment that involves suffering that the patient sincerely finds unbearable.91 It is noteworthy that some nineteenth- and early twentieth-century rabbis wrote that there is no duty to try to save the life of a person who commits suicide with the intention of escaping real and considerable suffering.92 Rabbinic respect for personal autonomy and rabbinic reluctance to impose medical care notwithstanding, rabbis have ruled that there is a duty to force patients to comply with public health regulations, at least those directed at the prevention of harm to others, such as in preventing the dissemination of diseases.93 In the sixteenth century, one of the two authors of the rabbinic codex of law Shulhan Arukh wrote: Whoever feels [the symptoms or signs] of a contagious disease in himself or within his household, must report immediately and fully to the public authorities.94

Rabbinic ethics is strict regarding the protection of potential victims from harm coming from another person, even if the source of harm is innocent. Rabbi Shlomo Dichowski wrote that a person at risk must not refuse testing for human immunodeficiency virus (HIV).95 Dichowski (b. 1938), who has an academic education in law, was a judge in the Supreme Rabbinic Court of Israel and an author of numerous halakhic articles on biomedical issues, so he must be familiar with the sensitivities regarding HIV infection.

human vulnerability in feinstein’s responsum and israeli law In this section, I explore in greater detail Feinstein’s responsum on “whether to coerce a sick person to take a medicine he does not want [to take] and regarding a risky drug,”96 offering a high-resolution reading of this illustrative and influential responsum. Even though the responsa genre is narrative, hermeneutic, situational, and interpersonal, it is noteworthy that the leading question was not presented to Feinstein by either a patient or a caregiver, but by other rabbis, almost certainly following their own cumulative personal experience with a cluster of similar cases. The problem is formulated in a few words, in a “thin” 90 91 92 93 94 95 96

Barilan 2003. Bar Ilan and Barilan 2005. Epstein 1937, 149; Babad 1988, 238; Perla 1914, 340–347; and see Luzzatto 1948, 22. Wallner 1957. Isserlish 1971, mark 20. Dichowski 1989. Feinstein 1985, Hoshen Mishpat, mark 73:4.

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descriptive style, relative to the much thicker language one would expect from narrative and hermeneutics. Indeed, it is Feinstein who infuses creative hermeneutics into his responsum, in which he entertains a few hypotheses regarding the motivation to reject care. The first hypothesis posits a patient who “trusts the doctors” but nevertheless passes through a moment of weakness accounted for by either despair or fear. Feinstein writes that because such resistance is “childish,” the doctors have to coerce care “if they can.” This description fits well with the notion of “effective autonomy” and Ulysses contracts discussed in the previous section. The doctors actually respect the autonomy of the patient by forcing him out of a crisis of weakness of will. The second possibility, according to Feinstein, is noncompliance due to lack of trust. In this case, Feinstein posits a duty to find for the patient a doctor he or she would trust. Only when it is not possible to wait until the patient is either persuaded or an alternative and satisfactory team is found is it permissible to enforce care, provided that three additional conditions apply. The first condition is “that all the doctors in the hospital agree.” The source for this stipulation is probably Rabbi Grodzinski’s maxim that whenever a grave medical decision is at stake, an overwhelming majority of expert doctors is required.97 The second is that the coerced care will not traumatize the patient, because “even if [refusal] is foolish, the mental trauma might harm the patient and even kill him.” Feinstein concludes by warning against forced care, even if it is advocated by the patient’s relatives. Such care, according to Feinstein, “is not likely to work.” The third condition is that the treatment does not involve risk, not even risk that is “much lower than the risk associated with no treatment.” If any risk is involved, “one must not enforce care, no matter what.” We may observe how Feinstein deploys the apparently conservative value of the primacy of life in a manner that actually preempts forced care and actually satirizes doctors and families who act on the presumption that religion requires them to save life by all means. Little familiarity with the medical world is needed to realize that there is no such thing as care on which “all doctors in the hospital agree” and that is also risk-free and whose enforcement is not likely to traumatize the patient. Such intervention is akin to rescue from fire and not to medical care for grave conditions such as cancer, cirrhosis, autoimmune diseases, and atherosclerotic occlusions. In the bioethical jargon, it may be said that Feinstein is quite protective of patient’s vulnerability, especially the vulnerability of the mental faculties and the vulnerability to harm that is the by-product of benevolence and comes from dedicated but sometimes overconfident caregivers, devoted family members, and professionals. Feinstein is careful not to insert halakhic considerations into professional judgment. However, he has the courage to remind doctors that medical consensus is often rare, and he insists on the .

97

Grodzinski 1939, mark 16:6.

Jewish Bioethics

96

presumption that the mental trauma of resentment is more harmful and lethal than no treatment, even when most expert doctors think otherwise. In the second part of the responsum, Feinstein articulates a very guarded view on the permissibility of subjecting patients to iatrogenic hazard. He writes that it is forbidden to give risky drugs to a patient unless (1) the doctors have tested its safety on patients as weak and vulnerable as the one in question, and (2) there is a greater than 50 percent chance of cure, (3) only following thorough deliberations among the experts, and (4) upon patient’s consent.98 None of the first three conditions is recognized by contemporary medicine and bio-law as prerequisite to the administration of care. Feinstein wrote this responsum when he was eighty-seven years old. In the opening, he apologizes for a delayed response, which was due to ill health. One wonders to what extent personal experience colored Feinstein’s caution and reservations. In the opening of the chapter, I observed that Halakhah operates at two distinct levels – the direct and the indirect. The direct level introduces deontic language that is external to medical practice. It includes the duty to care for every patient expressing trust in a particular doctor, as well as a duty to disclose potentially harmful medical information to its potential victims. The indirect level endorses the public regulation of biomedicine, so long as the process is fair, legitimate, and within the confines of common morality and professional standards. With the growing power, confidence, and regulation of biomedicine, and following the death of Feinstein’s generation, which straddled both premodern and modern healthcare, rabbis specializing in Halakhah and medicine drift toward policies and rulings at the indirect level. Sometimes, the direct halakhic level is brought to bear on the secular regulation of medicine. One notable example is clause 15(2) to the Israeli Patient’s Rights Act (1996), which is unique relative to similar laws in the world. It states: If the patient refuses care in circumstances of great danger, and care must be given without delay, it is permissible to provide care against the wish of the patient, if the ethics committee, after hearing the patient, has concluded that all of the following conditions obtain: a) The patient has been properly informed. b) It is expected that the treatment will substantially improve the patient’s medical condition. c) There is a reasonable basis to the presumption that the patient will give retrospective consent to the care imposed.

Rabbi Dr. Halperin, who was a member of the committee drafting the law, regards this unique clause as emblematic of the impact of Jewish law and values on the Israeli secular legal system.99 98 99

‫רשות‬ Personal conversation and e-mail exchange with Rabbi Halperin.

Doctor–Patient Relationship

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table 4.1 Teachings on common conditions of rejection of “lifesaving” care Circumstances of refusal

Depression, despair

Patient prefers to die over the life he or she can have

Patient does not trust doctors/treatment

Patient cannot accept the suffering Temporary life but patient would not accept either risk or the suffering involved Patient wants to save money/desecrate a religious taboo Patient does not want to become burden Patient is incompetent and terrified by proposed treatment Patient opts for religious/ “alternative” healing

Healing requires the consumption of tabooed food which Halakhah permits, but the patient does not accept

Western bioethics

Rabbinic literature

Try to treat but do not risk resentment Patient’s wish is illegitimate. Try to treat but do not risk resentment Respect the choice; provide him or her with another expert Probably a legitimate choice Respect patient’s autonomy unless he or she forgoes basic nursing care Impose care

Impose Do not treat

Rabbis are divided on the question of whether choice is legitimate A minority opinion accepts such piety as legitimate

Liberal/autonomy oriented

“Conservative”/ Hippocratic

Impose care if depression is psychotic Respect patient’s choice

Impose care

no positive duty to provide him or her with a second opinion Respect patient’s autonomy Respect patient’s autonomy even when he or she rejects basic nursing Respect patient’s autonomy

Impose care if doctors are reasonably confident

Respect

Impose care

Impose care

Impose care

Impose care

Respect patient’s autonomy

Respect patient’s autonomy

Impose care

98

Jewish Bioethics

Interestingly, whereas Feinstein forbids confrontation with the patient and advocates trickery instead, the Israeli law requires confrontation and full disclosure as a condition to the imposition of care. Although Feinstein’s mode of reasoning is loyal to the value of life, and his rejection of enforcement is justified in terms of worry about loss of life, the new clause remains loyal to the value of autonomy, stipulating coercion on presumed future consent. The Israeli clause also substituted the hyperbolic condition that “all doctors in the hospital agree” with the practical requirement of a decision by an ethics committee. But the source Halperin cites, the parable on the doctor tying a patient to a tree, is clearly about a patient’s consent to be tied in anticipation of inability to stay motionless during painful surgery; it is not about coercion for a treatment which that patient explicitly refuses. There is no central registration of decisions to coerce care according to clause 15(2). It is evident that such events are very rare, and many ethicists, jurists, and activists regard this clause anathema. I am familiar with one case in which three sessions of dialysis were enforced on a patient, on the presumption that his aversion to dialysis was ill-construed. But when the patient reiterated his refusal after the enforced sessions, the ethics committee decided to respect his choice, and he died some time later. In this case, at least, coercion was subtle and similar to many cases of forced commitment to mental institutions. When patients hear that an authority has obliged them to act, they usually comply and use of force becomes unnecessary. One wonders to what extent clause 15(2) is a genuine product of religious law or the mobilization of religious sentiments, language, and authority to support an “out-of-the-box” reinterpretation of the secular, autonomy-dominated paradigm of bioethics (see Table 4.1).

5 The Human Body

unusual anatomies and disability A key feature of rabbinic anthropology is a pluralistic conceptualization of the human body and human person. Judaism is remote from eugenic thinking. Emphasis on the human shape as being inherently endowed with human dignity brought the rabbis to proclaim that all human races and bodies bear the same level of dignity. The Talmud explains that whereas human kings issue coins with their image on each – with every coin being identical to every other – God stamps each human being with a unique face and body; therefore, all such faces and bodies equally represent God’s image.1 Because human eyes and imagination can grasp only specific bodies and faces, it may seem that God’s true “face” – for which every human face serves as a genuine icon – remains elusive to human visual perception. This hypothesis may explain the taboo against graven images of God as expressive of the worry that every icon is inevitably more in the likeness of some people and less in the likeness of others. Thus, graven images obfuscate the message that every human body is equally, wholly, and unequivocally made in the image of God. The talmudic deliberation continues, “Killing one person is like destroying the whole world, and saving a single person is like saving the whole world.”2 Hence, every person must say, “the world was created for my own sake.” The Talmud distinguishes morphological diversity from disease: When one sees a black person or an albino or a midget. . . one says “Blessed art Thou who makes people different [from each other].” When one sees the blind and the afflicted. . . one says, “Blessed art Thou who rules justly.”3,4 1 2

3 4

T. Sanhedrin, 37a; Altman 1968, 241–242. In the standard “Vilnius edition” of the Talmud, the words are “. . .saving a single Israelite person. . .” Scholars have demonstrated that “Israelite” is a later insertion. Urbach 1971. .‫ברוך דיין אמת‬ Berakhot, 58b.

99

100

Jewish Bioethics

Another version of this passage explicates the issue further. Congenital “deformities” elicit the benediction “who makes people different.” Only some acquired conditions call for the benediction of resignation, “Blessed art Thou who rules justly” – which is also said on occasions of bereavement and loss.5 According to Rabbi Horowitz, the benediction “who makes people different” indicates admiration and affirmation, not a lamentation over a abnormality.6 This attitude is in stark opposition to occidental and other cultures who saw unusual anatomies, “deformed people,” as subhuman and monstrous. Classical sources from Plato to the Renaissance are replete with theories on teratology and racial deformity.7 In Chapter Eight, we will see that Halakhah implicitly rejects these disciplines as irrelevant to the care of infants. The Talmud encourages people not to develop extraordinary, enhanced, traits. For example, a tall man is not to marry a tall woman in order to avoid siring giants. Similarly, a black man is discouraged from marrying a black woman and an albino from marrying an albino.8 According to the Mishnah, the desirable skin tone for a person is neither black nor white, but a mixture.9 Hellenic culture measured people against ideals of physical excellence and beauty.10 Early Jewish mystical literature contains elaborate descriptions of the “body” of God and its perfect dimensions and proportions.11 With the waning of Hellenic cultural influence, these traditions drifted to the margins of Jewish esoteric teachings, and they have never been extrapolated to mundane spheres. The rabbinic tradition values avoidance of extremes in a pluralistic conceptualization of human nature, not in proximity to monistic ideals. The talmudic advice just cited is not meant to better humankind, to prevent its degeneration, or to achieve perfection, but to help people live in moderation, to not suffer from marked deviance from the average. Sometimes, an apparent deformity or ugliness is interpreted actually anatomical or physiological adaptation to the environment of particular peoples.12 The rabbinic ethos of morphological diversity has resurfaced in the contemporary discourse on biotechnology. Rabbi Shafran writes that cloning a person who is visually identical to another may offend against human dignity.13 Another rabbi wrote that cosmetic surgery is permissible because, and so long as, the procedure transforms one “normal” morphology into another.14 Rabbi 5 6 7 8 9

10 11 12 13 14

Tanhuma, Numbers, Pinhas, 1. Horowitz 1717, Gate of Letters, Heh, mark 8. Garland 1995; Williams 1996. Bekhorot, 45b. Nega’im, 2:1. The curse of Ham also produced numerous derogatory references to Africans in the talmudic and post-talmudic literature (Melamed 2010, chapter 4). Garland 1995; Métreaux 1995. Mainly the book Shi’ur Komah. See Scholem 1941, 63–80. T. Shabbat, 31a. Shafran 1998, 152. Eisenstein 1996.

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Auerbach permits plastic surgery when the person feels shame with his or her given anatomy.15 Auerbach does not indicate a naturalist account of “defect,” but a subjective one – the feeling of shame, regardless of whether the patient and society should avoid either the social construction or the personal perception of this shame. One example in the rabbinic literature is the tattooing of eyebrows on a person with alopecia (loss of hair) and the dyeing of hair that has turned white at a relatively young age.16 The pagan notion that “monsters” are products of demonic interference with human procreation was known to the Jewish rabbis.17 However, the Talmud teaches that God is a partner to the formation of every human life.18 He is responsible for congenital disability.19 A minority opinion in the Talmud attributes certain malformations to improper sexual conduct. Rabbi Yohanan b. De’havai claims that the “angels”20 told him that congenital lameness is caused by anal sex, congenital muteness by cunnilingus, congenital deafness by conversation during intercourse, and congenital blindness results from gazing at the wife’s lower genitalia. But reliance on the authority of angels is extremely rare in the rabbinic literature; not only do the talmudic rabbis reject angelic advice, but they cite the practical wisdom of a pious woman as an alternative account of the impact of personal conduct during intercourse on the future health of the child.21 According to an uncontested talmudic source, child deformity ensues when the husbands forces himself on his wife and even when they both consent to sex, but feel alienated from each other.22 Conversely, a passionate and caring attitude during intimacies brings forth healthy and viable children.23 In a similar vein, the Talmud says that if the woman climaxes before the man, she conceives a male child.24 According to another talmudic source, the only effective means to influence the child’s gender, and possible health, too, is prayer.25 The rabbis did not gainsay warnings connecting misconduct to deformity when the conduct in question is unrelated to religious piety but to natural science.26 The overall impression is that the talmudic rabbis dissociated congenital conditions from parental piety, but they leveraged the desire for healthy male children to discourage abusive, disrespectful, and selfish sex.

15 16 17 18 19 20 21 22 23 24 25 26

Auerbach 1999, 82:7. Avraham 2009, 216. Kimhi 1982, 48–49. T. Niddah, 31a. Wertheimer 1898, vol. 2, 172. ‫מלאכי השרת‬ T. Nedarim, 20a. Masekhet Kallah 1:8; Maseket Kallah Rabbati 1:11 Higger 1936, 156, comment to line 46. Bava Batra 10b; Niddah 31a-b. See Levi 1971 and Levi 1974. Niddah 71a T. Berakhot 5b; Masekhet Kallah 1:11–14.

102

Jewish Bioethics

The feudal ethos of nobility by birth is alien to Jewish sources. Streams in medieval Ashkenazi ascetic movements advocated mixed marriages of rich and poor, “respectable” with “simple,” thus extending diversity in human procreation from the biological to the social.27 We do not know whether this agenda had any impact on social reality. In a medieval story from these Jewish circles, people wanted to kill a baby who was born with “teeth and a tail,” fearing it might become cannibalistic. Labeling “monstrous” babies as satanic and nonhuman was common in the Middle Ages.28 In the Jewish story, a “wise man” advised that the teeth and tail be removed, so as to make the child’s body similar to those of other humans.29 The wise man recoiled neither from the “monster” nor from corrective and risky surgery; his explicit goal was to make the baby’s body “equal to other people’s.” Notwithstanding this relatively positive and pluralist approach to “different” bodies and anatomies, the old cohanic laws marginalize persons with unusual anatomies (inborn and acquired) by excluding them from work in the Temple.30 It seems that whereas ordinary society is egalitarian, service in the Temple requires physical wholesomeness. Similar attitudes existed in pagan culture and in the medieval Roman Catholic Church.31 The Church promoted the equality of all humans “in Christ,” in their spirit, and in the value of their lives relative to all other humans, and yet it disqualified “defected” persons, such as bastards and epileptics, from the priesthood.32 But early in the Jewish tradition, this attitude was mitigated. The Talmud explains that the problem in deformed Cohenites performing their special benediction in the synagogue is worry that the congregation would be distracted.33 Prayer leaders, who do not face the congregation like the Cohenites, may have deformities. In fact, because they know first-hand the experience of suffering and vulnerability, prayer leaders in the synagogue are preferably men with “broken hearts and bodies.”34 The Talmud lists some extreme deformities that render the creature lacking in human status. Two such conditions are “[a baby] with two backs or two spines,”35 which “is not a neonate.”36 Rabbi Silberstein attaches the same title – “not a neonate” – to anencephalic babies, and, consequently, gives permission to harvest their organs for transplantation even while they are still alive.37 It is

27 28 29 30 31 32 33 34

35 36 37

Beer 1967. Jacquart and Thomasset, 1988, 164. Wistinetzki 1924, mark 171. Maimonides, Hilkhot Sanhedrin, 2:6. Douglas 1966, 51–53. Helmholz 1996, 64–65, 69. Megillah, 24b. Leviticus Rabbah, Margalioth ed., 7:2; Meir of Rothenburg 1895, mark 249; Shoham-Steiner 2008, 211–212. Niddah, 24a. ‫לא ולד‬ Silberstein and Schussheim 2001.

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possible that some talmudic traditions considered the face as the locus of personhood, or the Imago conferred by God on every human.38 Facelessness39 is one of the extreme deformities that render a baby “not a neonate.”40 The face is essential for full interpersonal (I–thou) interaction.41 But, rarely, Rabbis have ruled that some babies are “inhuman” owing to extreme and nonviable deformities that are not in the face.42 Today, nobody seems to doubt the maxim that every offspring of a human being is human. In actuality, this formula, which is traceable to Augustine, became widespread only in the later Middle Ages. Since it fits well with genetic science, it has become part of contemporary common knowledge.43

between a person and his or her body Rabbi Dorff points out that, in Judaism, body and soul are perceived “as an integrated whole.”44 This unity is essential for spiritual fulfillment, for the actualization of the image of God in man.45 Life and body are trusts from God, which the embodied person must guard. In the previous chapter, we saw that this guardianship aims at the good of the person; it does not entail a duty to suffer for the sake of biological survival. Rabbi Luria (sixteenth-century Poland) sets a clear limit on the liberty to exploit and manipulate the human body. He forbids any mutilation or self-destruction of the body for the sake of values other than one’s own overall embodied well-being. Gain of money that might indirectly benefit the person and the sanctification of the name of God46 (e.g., martyrdom) are not good enough reasons to harm the body.47 Eighteenthcentury Polish Rabbi Falk wrote that it is permissible to sustain a minor injury for the sake of a worthy goal.48 Maimonides wrote that the soul of a person is the property49 of God as an explanation why family members cannot accept compensation from a murderer.50 Rabbis debate the extent and kind of power a person exercises over his or her own living body in the promotion of his or her overall good. Shortly after the Holocaust, Rabbi Zewin set out to examine Jewish law with regard to 38 39 40 41 42 43 44 45 46 47

48 49 50

T. Yerushalmi Niddah, 3:2; Genesis Rabbah, 11:2. ‫פניו טוחות‬ T. Niddah, 24a. David b. Zimra 1781, mark 472. Deutsch 1929, mark 81. Barilan 2012, 74–78. Dorff 1998, 20. Faur 1999, 127; Kordoveiro 1589, 2. ‫קידוש השם‬ Luria 1861, 83b (Bava Kamma, chapter 8, mark 59). See Israeli 1966, 10:10, who writes that it is prohibited to sustain injury even for the sake of stopping another person from committing a sin. Falk 1756, on Bava Kamma, 91b. ‫קניין‬ Hilkhot Ro’tze’ah, 1:4.

104

Jewish Bioethics

Shylock’s deal. In Shakespeare’s play “The Merchant of Venice,” a Jewish moneylender asked from a Venetian nobleman a “pound of your fair flesh, to be cut off and taken in what part of your body pleases me” as collateral to the loan the nobleman was so eager to have. Zewin opines that a person is not the owner of his or her body and that it is impossible to make a body part collateral to a debt.51 Rabbi Israeli disagreed, writing that each person is the master of his or her own body and may use it, within the limits of Halakhah, as he or she sees fit. Only wanton destruction,52 self-abuse that serves no reasonable purpose, is forbidden. Consequently, Israeli approves of offering organs for transplantation from the living body and of receiving pecuniary compensation for the loss.53 Rabbi Goldberg, Auerbach’s son-in-law, maintains that selling a kidney is different from Shylock’s deal because, in Shylock’s deal, the harm is a mere deterrent, whereas the kidney saves life.54 Rabbi Waldenberg wrote that because organ donation is a good deed,55 the donor may ask for payment, so he or she could benefit in this world and not only in the afterlife. For the same reason, he writes, the relatives may ask for payment for the donation of kidneys taken from a deceased relative.56 Rabbis have criticized the ideal of altruistic donation. Only when the needy person is poor is it charitable to help for free. But if the needy person can pay, and the donor needs the money, payment does not detract from the merit of the good deed. Rather, it is immoral to benefit from others without paying them back. This is especially pertinent when the patient can pay and the donor is poor.57 To protect divorced and widowed women from economic ruin, the talmudic rabbis enacted the ketubah, which embodies the contractual aspect of marriage. The ketubah promises the woman a fixed sum of money in case of either divorce without her fault or the death of her husband. The rabbis also granted the ketubah priority over all other debts the husband may have, and they prohibited the cohabitation of a legally married husband and wife who do not have a valid ketubah. The second-century Rabbi Meir said that intimacy between husband and wife without ketubah is fornication.58 It seems that the laws on the ketubah embody a vigorous rabbinic response to the plight of divorced and widowed women, a situation that probably pushed Jesus to reject divorce. The rabbinic solution might appear counterintuitive because of its strong association between money and intimacy. When everybody regards sex for money among unrelated people as emblematic of prostitution, Rabbi Meir says that mutually desired 51

52 53 54 55 56 57 58

Zewin 1946, 183–196. The nobleman sought the loan for the sake of a risky investment, not as a relief from distress. ‫השחתה‬ Israeli 1966, mark 16. Goldberg 1997. ‫מצווה‬ Waldenberg 1992, 53. This is not profiting from the dead because the kidney is alive. Steinberg 2001; Vigoda 2003; Lau 1998; Kunin 2005; Grazi and Wolowelsky 2003; Zohar 1993. M. Ketubut, 5:1.

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intimacies between husband and wife are prostitution/fornication59 unless her pecuniary guarantees are secured. It is difficult to overestimate the centrality of the ketubah in Jewish law and social life. Until today, the public reading of the ketubah is part of the marriage ceremony. The articulated promise in the Jewish wedding is not about staying together in bad days, but about the financial securities that the woman will have in case bad days tear the bond apart. The association of the body with pecuniary sureties is not perceived as something strange or belittling. I conjecture that the ketubah has introduced into Jewish law and morality the idea that financial guarantees to the weak party are not in opposition to the altruistic and caring aspects of a relationship, but are necessary for its very legitimization and psychospiritual sustenance. Rabbi Auerbach gave permission to sell organs for the sake of paying debt and for the sake of obtaining money needed for the healthcare of a poor relative, and he found no fault in the commission collected by the middleman.60 In a responsum regarding “man in debt who seeks relief from creditors who relentlessly [or recklessly] pursue him,” Rabbi Elyashiv’s son-in-law Rabbi Silberstein rules that it is permissible to sell a kidney because it is a lifesaving act.61 Regrettably, Silberstein does not propose some other relief from debt or from rash debt collecting. He does not even inquire how much of that debt is interest and whether Halakhah should disqualify it as usurious. Silberstein cites an old rabbinic source, according to which it is a severe disgrace for a person to die in debt and that it is better to be buried dishonorably and not leave debt behind. However, the debts in question are certainly not the kind of debt prevalent in the “gray market” (the contemporary private market in credit). Debt collecting is often rapacious and quite opposed to the Halakhic injunction against the confiscation of tools of trade. Actual interest rates in the Israeli gray market are much higher than permitted by law,but rabbis have not protested this situation. The openness of contemporary rabbis to the commercialization of the human body stands in stark contrast to the attitude of the pre-Holocaust halakhic and moral authority Rabbi Israel Meir HaCohen from Radin (aka Hafetz Haim). In one of his books on morals, he presents a kind of thought experiment, asking the reader to imagine a very rich man whose son is very sick, and the leading expert has opined that his only cure is by means of drawing blood from a person and infusing it into the boy’s veins. The rich man offers thousands of dollars to any poor man who would donate blood to his son: But the people regarded the rich man crazy. And they told him: Indeed, for the sake of a few thousand dollars we are willing to perform every difficult task and hard labor, but we [would not] hand you our children so you may take [some of] their blood. Their blood is

59 60 61

‫ זנות‬The word bears both meanings. Avraham 1993c, 212. Silberstein 1999, mark 58.

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[their] lives. How will we sell our children’s blood in exchange of your money? We will become a target of contempt by the whole world.62

This rabbi’s strong moral intuition considered neither the apparent duty to save life nor the liberty people have to use their bodies as means to extract themselves from poverty. But, the “way of the world” has developed differently. In the second half of the twentieth century, it became common practice to sell blood for money. The halakhic leaders of this period never protested the practice as Rabbi Israel Meir did. Israel Meir’s common sense might have had some bearing on Jewish medical law had it been published in a halakhic treatise. Alas, even though blood transfusion became widespread in the First World War, for a poor rabbi in early twentieth-century Eastern Europe, lifesaving blood transfusion was a hypothetical only. Especially for a very traditional legal system such as Halakhah, the rapid pace of modern medicine hollows out the pastoral authority of rabbis such as Israel Meir relative to the following generation. Halakhah has conceptual tools to monitor against apparent consent, which does not root as deeply and as firmly as needed in one’s psychological makeup and social circumstances. Throughout the ages, rabbis have debated the criteria for determining whether a divorce obtained under pressure is valid. Citing the verse “skin for skin; yea, all that a man hath shall he give for his life,”63 Rabbi Trani concludes that the only unconscionable inducement is violation of bodily integrity.64 If such violation is a marker of induced consent, how horribly constrained in life must one be in order to invite upon oneself the selling of a kidney? It might be argued that pecuniary motivations, especially those arising under duress, do not have the power to alienate a body part. However, many rabbis, Steinberg among them, believe that because transplants save life directly, only well-established utilitarian considerations (e.g., markets in organs will reduce the overall number of transplants) have the power to interfere with consensual and effectively regulated markets in organs.65 The rabbis are very careful not to represent blood and organ donation as a religious duty, but they are also reluctant to use religion as a hurdle to a lifesaving act solely because it involves commodification or commercialization of persons. These two value-laden terms are not found in the halakhic jargon.

the dead human body (and a comment on the use of animals) Similar to the maxim of saving life, burial of the dead was a deeply entrenched practice, which the Talmud labors hard to root in halakhic sources.66 62 63 64 65 66

Israel Meir HaCohen 1925, 19. Job 2:4. Trani 1861, part 2 mark 138. I have had a few personal discussions with him on the matter in 2003 and 2006. Sanhedrin 46b-47a. See p. 36.

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Teleologically, the Talmud offers two reasons for burial – it is a dignified practice, and it confers absolution67 to the deceased. The dead human body is tabooed in Halakhah. Human cadavers and body parts must be interred as quickly as possible; delay of burial is disrespectful of the image of God in man.68 Human body parts bear no pecuniary value; they are nobody’s property, and it is forbidden to derive any material benefit from them.69 In the time of the Mishnah (the first two centuries), when the laws of purity were still observed, any contact with the dead caused severe impurity. Since the disappearance of the observance of the laws of purity, only Cohenites strive to avoid contamination, which means avoidance of contact with the dead, including staying under the same roof as a dead person. The talmudic rabbis referred to dignified burial of the dead, especially the anonymous dead, as “authentic charity,”70 because the dead cannot reciprocate.71 In Jewish law and morality, meit mitzvah72 is a special term that designates an anonymous and unclaimed dead body. Every person, without exception, must cease all activity, no matter how important, and tend to the burial of an unclaimed, anonymous body.73 Jews have been loath of the Western practice – still legal in many countries – that allows the use for anatomic studies of “anonymous” and “unclaimed” bodies; it is no less averse to the Western construction of burial as a market service, which is denied to nonpayers. Israeli law provides every person with burial at public expense. The voluntary sick care and burial societies developed from the charities for the dying indigent and the unclaimed dead. Altogether, Jewish law, morals, and social values combined into a very strong ethos of egalitarian and respectful treatment of the dead, one which entails quick burial and a refrainment of disfiguration of and benefit from the dead. It has always been taken for granted that forensic autopsies are permissible as tokens of respect for the deceased, who would have wished that his malefactors be brought to justice. They are also indispensable for the sake of public order. As a matter of fact, because identification of each tissue is such an important value, Jewish forensic institutions employ cutting-edge technology in the context of respectful and personal treatment of every piece of human remains. The Talmud gives permission to autopsy a victim of murder to search for pathologies that might have shortened his or her life expectancy. If such pathologies are found, it will have been discovered that the crime was committed against a person who was doomed to die soon anyhow, and the murderer will be

67 68 69 70 71 72 73

‫כפרה‬ T. Sanhedrin, 46b, Barilan 2012, 41–46. T. Avodah Zarrah, 29b; T. Sanhedrin, 47b; T. Yerushalmi, Avodah Zarrah, 5:12. Literally – charity of truth – ‫חסד של אמת‬ Rashi’s gloss on Genesis 47:19. ‫מת מצווה‬ Masekhet Se’ma’hot, 4:16; T. Yevamot, 7a.

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spared the death penalty.74 It follows that saving life, even the life of a murderer, may justify the desecration of the dead body of the victim. The Talmud tells a story about a young man who sold the estate of his father and then died. The relatives wanted to exhume the body and check for signs of puberty. In their absence (and in the absence of any reliable means for keeping chronological age), the relatives may be able to contend that the estate was sold by a minor and claim it back. The Talmud rules that the family must not desecrate the body for the sake of money. Not only didn’t the relatives risk their money, but they are also bound by a special duty to treat the cadaver respectfully. However, had the buyers wanted to appeal against the sale, they could have done so because they may say, “we have given him our own money; we have the license to desecrate his body.”75 From these two talmudic discussions, we learn that saving life, as well as protection of the monetary interests of people outside of the family, may justify the desecration of the dead. The sellers do not try to profit from the dead; they only try to protect themselves from the harm of unfair transactions.76 For the same reason, creditors may delay the burial of the indebted person until the estate defrays the debt.77 Until the early nineteenth century, this privilege was also known in common law.78 As late as the 1930s, creditors, including the Warsaw chapter of the Ultra-orthodox party Agudat Israel, availed themselves of this prerogative.79 A Western observer might wonder what kind of moral status dead human bodies have in Halakhah. Alas, since the notion of “moral status” does not exist in Jewish law, this would be a misconstrued question. We may say, though, that when someone’s salient interest is already implicated with the deceased person, it may be permissible to desecrate the body whenever this is the only way possible to protect the interest of the other person. Because even doubt may justify desecration (most likely the murdered victim has no anatomic lesions; the adolescent seller might have been of legal age), the key issue is the preexisting connection between the deceased and the harm, not the chances of rectifying it. Put in other words, if the deceased is personally associated with a specific damage, even slight chances of recovery may justify the use of his or her cadaver.80 The Jewish discourse on the therapeutic uses of human remains begins with a maxim from the medieval anthology Sefer Hasidim. “It is permissible to do to the dead [body] everything required for saving life.”81 This statement was made 74 75 76 77

78 79 80 81

Hulin, 11b. Bava Batra, 154b. HaDa’ya 1982, Yo’reh De’ah, mark 19. Shulhan Arukh, Hoshen Mishpat, 110:2. In the absence of money, service of debt at the expense of leaving the body unburied is “unprecedented cruelty” (David b. Zimra 1975, mark 195). Jackson 1936, 119. Greiber 1943, 71. See Levin 1916–1917. Margaliot 1957, mark 451.

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in relation to medieval magical practices and in spite of a theological anthropology according to which “the soul [of the deceased] lies [in the grave] inside the bones.”82 In the sixteenth and seventeenth centuries, people were fascinated with the curative powers of desiccated cadavers (“mummies”). Rabbi David b. Zimra gave permission to such uses because the mummified body parts are like dust83 and because medicinal uses are not considered “enjoyment/benefit” from the dead.84,85 Other rabbis followed suit.86 Medicinal products made of dried human blood were common among early modern European Jews.87 The university-educated Jewish physician Tobias Cohen prescribes a belt made from human skin to women in labor.88 Such articles were made from anonymous “Others” – criminals, mercenaries of the enemy, and similarly marginalized people who were remote from the organized communities – Jewish and non-Jewish alike. People would raid abandoned corpses, such as of soldiers in the battlefield, and skin them “like it is done with beasts.” The Talmud seems to endorse such denigrating treatment of fallen enemy soldiers, saying that their body parts bear market value as food for dogs.89 In parallel with the “civilization process” and a refinement of public sentiments in the West, such language has disappeared from halakhic discourse. Lurianic Kabbalah inspired high standards of sensitivity to the integrity of the dead Jewish body. Wholesome burial was considered necessary for eternal peace and proper resurrection. Habits turned into law. Halakhah began requiring the burial of all body parts together, including limbs amputated many years prior. Clothes soaked with blood are buried with the body as well.90 We find in a seventeenth-century responsum the story about a pious man who collected his falling teeth in order to have them buried with his body.91 The earliest books promoting these ideas were the first manuals of the burial and sick care societies, not halakhic treatises. Utmost respect for dead bodies became integral to the rising Jewish practice of sick care and its associated values of charity, solidarity, and spiritual well-being.92 These books also served as the

82 83 84 85 86 87 88 89 90

91 92

Margaliot 1957, mark 452. .‫כיוון שנשתנה צורתו וחזר להיות כעפרא בעלמא‬ ‫הנאה מן המת‬ David b. Zimra 1781, mark 548. Zimmels 1952, 126–128. Toaf 2007, chapter 6. Catz 1707, part 3, chapter 19. Sanhedrin, 19b. Aaron Berechiah of Modena 1860, 101, 140; Waldenberg 1973, mark 70; Waldenberg 1970, mark 25, chapter 8. Azulai 1792, mark 30:2. A major anthology of “customs” (‫ )מנהגים‬contains sixty-six different practices related to mourning and burial and only four related to “visiting the sick.” Three of them address the dying process (Sperling 1928).

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first manuals of medical ethics and nursing care. In this manner, the treatment of human remains has developed as an integral aspect of Jewish care ethics. When anatomical dissections became widespread in the eighteenth century, rabbis had to deliberate the practice. On one hand, European culture constructed it as a kind of humiliation, as an aggravation of the death penalty. The authorities did not shy away from extorting exorbitant sums of money from the relatives and the community of Jewish victims of the death penalty as a condition to releasing bodies for burial.93 In 1737, Rabbi Jacob Emden wrote a long responsum to a Jewish student who wanted to watch anatomical demonstrations that took place on the Shabbat. The student, Benjamin Wolf Gintzburger, was the first Jew to graduate with a medical degree from Göttingen University. His thesis was dedicated to talmudic medicine.94 In those days, the legal availability of corpses was rare and so were opportunities to observe anatomy demonstrations. Emden disapproved of the practice. His concluding words are worth citing, being possibly the last time a mainstream rabbinic authority expressed such reservations in regard to Western science: The wisdom of the sciences is certainly permitted and praiseworthy . . . especially the art of medicine. . . . The Torah endorsed its validity and prescribed it for us to use. However, it seems that this wisdom has been lost from the world owing to novel inventions, and distorted perceptions . . . and now, its foundations are uncertain and its fruits dubious.95

In the text, Emden mentions alchemy and astrology as branches of the sciences. But this was the only medieval aspect in his responsum. Gone are the days when leading rabbis were also learned physicians. In the early modern period, we do not find physicians among the halakhic decisors; neither do we find tensions between the disciplines. With the Enlightenment, a social rift began to open between the “we” of the traditionalist – later orthodox – leading rabbis and “them,” university-educated doctors, even those among them who were loyal to the tradition, even rabbis. In the eighteenth century, Rabbi Yehezkel Landa discussed a patient who died from a urinary stone despite optimal treatment. The doctors wanted to perform an autopsy, saying, “If such a case occurs once again, they will know what to do.”96 Landa forbade the dissection on the basis of a novel interpretation of the maxim on saving life. He contended that only in the presence of a specific patient “in front of us,”97 whose care depends on the autopsy, may we consider the autopsy lifesaving; the vital interests of hypothetical future patients cannot 93 94 95 96 97

Ya’ir Haim b. Moshe 1896, mark 139. Efron 2001, 191. Emden 1884, part 1, mark 41. Landa 1880, Yo’reh De’ah, mark 210. ‫ חולה לפנינו‬The literal meaning of the Hebrew is “a sick [person] in our face.” The “face” is both a concrete reality and a metaphor, anticipating Levinas’s seminal use of the notion “the face of the other.”

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justify the violation of religious taboos.98 Moreover, if hypothetical worries have the power to push aside religious taboos, “everything will become permitted.” In support of this distinction between a specific needy person and a hypothetical one, Landa summons the common practice of his time, “even the non-Jewish doctors, perform this [i.e., autopsy] either on victims of Capital punishment or on people who consented to it while alive.” The implied argument is that if non-Jewish society does not carry out such autopsies even for the sake of medical research and teaching, then there is no reason to suppose that Jews should consider them a religious duty, even if the doctors deem the procedure as necessary for saving patients’ lives. This induction from non-Jewish ethics lasts until the late twentieth century. Rabbi Weiss wrote that since neither “common sense nor reason”99 permits organ transplantation from the dead without consent; the duty to save life does not entail a duty to organ donations, neither from a dead nor from a living donor.100 In his responsum, Landa formulated a fundamental principle of Jewish bioethics – only care for “patients in front of us” justifies the suspension of religious taboos in the name of saving life. According to Landa, even though Halakhah does not reckon with the favorability of the chances, the life in question must have a personal identity; it must belong to a concrete individual with a specific need for a particular intervention. It insists on a concrete narrative of a specific person in need whom the agent is likely to benefit. Landa represents this principle as a taken-for-granted legal truism. He does not anchor this fundamental teaching in Jewish law, but in common sense; the evidence he brings comes from non-Jewish society, not rabbinic texts. From that moment on, Landa’s own authority in the rabbinic world would infuse this principle on “the patient in front of us” with traditionalist clout. Reflection on the historical circumstances might help us see why it became necessary to address the issue of immediacy. The growing power and confidence of the centralized state in general and of medicine in particular bred powerful and unrestrained claims in the name of health and life. It is not a coincidence that the most fervent promoters of anatomical dissection were English utilitarians.101 The advent of a powerful, organized society with overconfident science and technology compelled very similar responses to the utilitarian pressure to optimize lifesaving research. In 1852, during the rise of modern medicine in Germany, Rabbi Ettlinger issued a responsum forbidding any kind of anatomical dissection on the dead, even when the doctors wanted to study the disease in order to try to save a specific patient suffering from the same condition. According to Ettlinger, the use 98 99 100 101

‫ספק פיקוח נפש‬ ‫ השכל והסברא‬He clearly refers to David b. Zimra’s ruling on self-sacrifice, p. 168. Weiss 1972, mark 7:21–22. See also p. 119–121, and Feinstein’s retort, discussed in p. 213. Richardson 1987, 168.

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of the dead human body is a kind of theft102 from the dead person. Using the dead body is akin to stealing its honor. He also posits that deprivation of respect for dignity is worse than deprivation of property. Since Ettlinger follows the opinion according to which it is not permissible to steal property for the sake of saving life, it is certainly forbidden to desecrate the dead, which is like stealing their dignity, for the sake of saving life.103 On this point, Ettlinger took a stricter position than Landa. But he concurs with Landa on one crucial point: A waiver104 might be relevant only with regard to a kind of dishonor, which the deceased had consented to [specifically] while alive.

Landa’s and Ettlinger’s formative responsa make it clear that if a person conscientiously donates his or her body to anatomy studies and for other purposes, the waiver of his or her honor might be valid. In 1841, Rabbi Moshe Sofer discusses “a person who, while alive, wishes to sell his body to the doctors, so they would dissect it after his death.”105 In the absence of legal foundations for such a prohibition, Sofer invokes a theological argument. He writes that because the body is the sheath of the soul, we must treat the body respectfully even after the departure of the soul. Unknowingly, perhaps, Sofer marshals an idea formulated by Thomas Aquinas.106 Sofer’s novel approach serves an important goal: if the duty of respect for the dead body is derived from the values of interpersonal respect, then the person may waive this duty; but if such respect is directed at the divine aspect of the human being, then the person has no power over it. Nonetheless, Sofer’s case is different from those discussed by Landa and Ettlinger. First, there is no particular medical need to dissect the body in question; second, the projected benefit is remote; third, the man is motivated by either quick material gain or a personal crisis, not concern for the good of others. Fourth, Jewish law strictly prohibits any profiting from the dead. Contemporary rabbis prohibit any payment in exchange of permission to autopsy.107 Even though the legal analogy in Sofer’s case is partial, the Jewish abhorrence at profiting from the dead body (as opposed to leniency with commercialization of the live body) loomed large over Sofer’s responsum. In 1931, Chief Rabbi of Palestine Avraham Isaac HaCohen Kook wrote that the taboo on the violation of the dead is unique to the Jews, owing to “the Image of God in man, which is a special trait of the nation of Israel” and cannot be alienated at will. He recommended that Jewish doctors and students buy cadavers from gentiles who do not mind the use of their own dead bodies and whose

102 103 104 105 106 107

‫גזל‬ Ettlinger 1868, marks 170 and 171. ‫מחילה‬ Sofer 1841, mark 336. Summa Theologica III, 25:6. Steinberg 1994, 581.

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dignity is alienable at will.108 We have seen that premodern rabbis gave permission for the medicinal use of body parts on two grounds: (1) the king or the law has lifted protection from certain cadavers, such as those belonging to criminals, and (2) mummification and similar processes render the articles in question “like dust.” Kook was the first rabbinic authority to rule that non-Jewish cadavers are inferior in dignity. Kook is the founding father of theological nationalism in the Zionist movement, for which the nation of Israel and the Land of Israel embody unique dimensions of metaphysical holiness. Kook’s attempt to stratify Imago Dei into low and high is bold and groundbreaking in a halakhic context. Jewish theology has considered all humans as created in the image of God, but only the Israelites are the Chosen People. Kabbalah has taught that Jews are also blessed with a unique kind of a soul,109 but rarely has the universality of Imago Dei ever been touched. However, some kabbalist and hasidic sources refer to Imago Dei as a special trait of Jews.110 In a limited sense, this idea has also found its way into Halakhah.111 Kook’s practical solution was conceivable only within the small and isolated community in Palestine. Millions of Jews in the new democracies of Europe had to act as citizens who are equal in rights and duties to gentiles. In 1924, two years after the end of the Polish-Soviet war, when Poland was becoming a democracy, community leaders from Cracow faced pressure to supply Jewish bodies to medical schools. The majority of the Polish rabbis leaned against participation in anatomical dissection. This position threatened to close the doors of the faculties of medicine on Jewish students, whose numbers had already been limited by the 1923 numerus clausus law, which instituted a system of ethnic quota. In his halakhic historical treatise on the whole affair, Michael Greiber shows how the principal halakhic argumentation in each responsum was different, actually incompatible, with the arguments of the rest.112 Greiber also notes that the Polish rabbis who engaged in the debate wrote about “cooking the [dead] body so as to separate the flesh from the bones” and that the flesh melts away without burial.113 This method of “cooking” was a medieval practice, commonly used in the production of relics.114 On this point, as well as on others, university-educated rabbis and the informed readers were frustrated by what appeared to be a tangential understanding of the clinical reality by the eminent rabbis of the time. Greiber was a rabbi with university education who knew how to craft from Jewish law and values a sound argument in favor of Jewish participation in anatomical dissection, and we find his arguments scattered 108 109 110

111 112 113 114

Kook 1969b, mark 199. ‫ יחידה‬,‫נשמה‬ E.g., Eibshitz 1905, 93, 140; see Barilan 2012, 45. This approach became more acceptable after the Holocaust; see, for example, Weiss, 1969, 64. Waldenberg 1970, mark 25, chapter 9. Greiber 1943, 32–41. Greiber 1943, 33. Park 1994, 10. See T. Bekhorot 45a.

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throughout the rabbinic responsa. But the mainstream of the rabbinic establishment of Warsaw represented a uniform opposition to the practice. The maxim against “novelties,” which was developed during nineteenth-century struggles with religious reforms, as narrated in the discussions of circumcision and early burial, had a particular impact on the treatment of the dead. Rabbis resigned their positions in protest against the introduction of a horse cart for the dead (hearse), arguing that abandonment of manual transport to the cemetery is disgraceful and prohibited by the Torah.115 This is a typical example of legal “upgrading” that reactionary rabbis introduced in the first half of the nineteenth century. Rabbi Kluger, who was the leading authority in the hearse debate was an avowed follower of Rabbi Sofer, the promoter of “upgrading” in issues such as circumcision (Chapter Three), contraception (Chapter Six), and burial (Chapter Nine).116 With such an attitude, there were no chances that anatomical studies would be accepted. Staunch rabbinic resistance did not help much. It actually reflected the waning political power and moral authority of the Orthodox rabbis over the rapidly secularizing Polish Jewry, which numbered over 3 million people strong. In 1929, a Jewish corpse was ceremoniously handed over to the medical school of Warsaw. In the face of rabbinic protests, the community decided that bodies that were not claimed within forty-eight hours would be eligible for anatomical dissection. When pressure mounted, and it became clear that Jewish attendance in medical schools was at stake, the rabbinic committee of Warsaw signed a document acknowledging humanity’s indispensable dependence on anatomical study. Yet, these rabbis did not give permission for dissection. Only because the authorities had already mandated the consignment of Jewish bodies to such study would the rabbis tolerate the anatomical study of “the scum of the earth,”117 meaning prostitutes, brothel keepers, and criminals. The document also expressed awareness of the custom of dissecting “unclaimed bodies.”118 Interestingly, this rabbinic resolution embodies an internalization of European values at the expense of Jewish law and ethics. According to Halakhah, because burial and respect for the wholesomeness of the body are learned from the biblical taboo on the exposure of executed felons, “unclaimed bodies” posit the highest priority for respectful burial.119,120 Prostitution and gambling are not capital offenses in Jewish law; many homeless beggars are pious or mentally 115

116

117 118 119 120

Kluger 1900, mark 275; Kluger 1908, 88––92; Low 1931, mark 131; Rubinstein 1959, 139–143. The objection to the hearse has no basis in Jewish law. The rabbi relies on novel hermeneutics of the Bible, which is a very flimsy and rare support to a halakhic prohibition. E.g., Kluger 1843. In this personal eulogy for Sofer, Kluger discusses the religious value of burial and conflicts between Halakhah and personal honor –‫כבוד הבריות‬. Kluger issues one of the earliest rabbinic pamphlets, directed against the introduction of machines in the process of baking matza (the unleavened bread of Passover), Kluger 1959. The Polish expression is wirzutki spoleczenstwa. Greiber 1943, 48–51. T. Yevamot, 7a. Deuteronomy 21:23.

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deranged whose humiliation would be especially revolting. Instead, they defaulted to the European conception of anatomical dissection as a shaming practice worthy of those occupying the lowest rungs of the social order. The Polish rabbis could have heeded their Hungarian-based contemporary, Rabbi Deutch, who wrote that when people check themselves into a modern hospital, they implicitly consent to their postmortem pathological dissection. After all, patients choose modern hospitals precisely because of these institutions’ commitment to the medical sciences.121 This alternative policy, the one not taken, would have endorsed anatomical dissection, but under strict conditions such as respectful treatment by the anatomists and the ultimate burial of all body parts and tissues. I assume that because anatomical study was associated with dehumanizing expulsion from society, the rabbis did not conceive of “respectful anatomical study” or of any kind of respect after anatomical study. Another debate emerged in 1916, in the United States, regarding the postmortem dissection of victims of tuberculosis. By the standards set by earlier halakhic sources (Landa, Ettlinger, and Sofer), this was an easier problem. The purpose of anatomical study in this case was applied research on the world’s leading cause of death whose pathogen had been identified, but against which there was no effective treatment. But the American rabbis did not point out these considerations. Instead, they were inclined in favor of medical dissections as such.122 It seems to me that the greater sense of civic participation in American society and an absence of active anti-Semitism helped the American rabbis see the lenient and cooperative dimensions in Jewish law. The specific argument in favor of the dissection of tuberculosis victims was formulated independently by Rabbi Karelitz (aka Hazzon Ish) in 1935. In his gloss on the Talmud, and not in a halakhic context, he dismissed Landa’s distinction between the “patient in front of us” and the “patient not in front of us,” which has no precedent in the Talmud, in favor of two talmudic considerations – when the danger is imminent or when the benefit from the use of the dead is in the service of many rather than in the benefit of a single individual.123 Rabbi Yehuda Leib Graubart held a special position in this debate. As the rabbi of the Polish Jews in Toronto, he published in a Jerusalem-based rabbinic journal his own responsum to a question directed to him by one of the rabbis engaged in the Polish controversy.124 Graubart first sides with Landa and Ettlinger. Then he introduces a novel argument. Assuming that Jewish refusal might denigrate the name of Israel in the eyes of the progressive nations, he points out a talmudic law according to which the dignity of the whole Israeli nation125 deserves higher priority than the dignity of the king. If the dignity of 121 122 123 124 125

Deutch 1929, mark 76. Greiber 1943, 41–47. Karelitz 1974, 95 (O’holot, mark 22:32). Graubart 1926. ‫כבוד האומה‬

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Jewish Bioethics

the King of Israel displaces the prohibition on abuse of animals,126 it should certainly overrule the prohibition on the use of the dead. In conclusion, Rabbi Graubart observed that because Polish anti-Semitism was rife and Jewish participation in anatomical study was not likely to boost the dignity of the nation, there should be no permission given to hand over bodies to anatomical study. It is questionable whether this deduction is cogent. In Halakhah, vital human interests justify the exploitation of animals, but not the use of the dead.127 Rabbi Ettlinger wrote that treatment of non–life-threatening diseases, but not financial profit, may justify the infliction of suffering on animals.128 Contemporary rabbis trust uncritically the secular governance of scientific uses of animals. The basis for this attitude is a Tosafot text from the Middle Ages according to which the need of the many overwhelms the prohibition on the infliction of suffering on animals.129 A few months later, the future chief rabbi of Palestine, Rabbi Uziel, published a two-part article in response to Rabbi Graubart.130 Uziel writes that if Jews refuse to participate in postmortem dissections, there will be no Jewish doctors, a situation he considered as posing risk to the lives of many. Uziel also revisits the old sources, such as the one covering the adolescent who sold the estate of his father, and concludes that medical use of cadavers is permitted because even if there isn’t a “patient in front of us,” there soon will be one. Uziel writes, “in our times, dissection of internal organs is routine, and it constitutes a fundamental medical activity . . . it makes sense to argue that anatomical dissections are for the sake of saving life.” He also wrote that performance and participation in anatomical dissections are not “enjoyment of the dead,” but a noneconomic activity in the benefit of medicine. The debate on the use of Jewish cadavers in Poland ended with permissive opinions outside of Poland and staunch rabbinic opposition within. In 1945, the Hebrew University and Hadassah Hospital in Jerusalem opened the first school of medicine in Palestine. In 1947, the rector and the head of the new school wrote a letter to Chief Rabbi Herzog, asking for the rabbinate’s position on anatomical study. This set off a rich discourse in the rabbinic literature, a discourse that was not conducted under the shadow of antiSemitism, bur rather with the eyes directed at the horizons of administering an independent Jewish state. Herzog’s detailed responsum, which was published seriatim over nearly three years, laid the foundation for a consensus paper by the rabbis and the general manager of the university hospital. The document, which in 1953 turned into the Anatomy and Pathology Law, empowers three doctors to authorize a postmortem dissection whenever the cause of death is unknown 126 127 128 129 130

‫צער בעלי חיים‬ Shulhan Arukh, Even HaE’zer, 5:14, Remma. Ettlinger 1868, mark 108. Tosafot on T. Avodah Zarrah, 11a. Reprinted in Uziel 1935, Yo’reh De’ah, mark 28.

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and whenever they believe the autopsy will lead to the saving of the lives of actual patients.131 This may have been the first endeavor at formulating public policy in Israel on a bioethical issue and by means of deliberation between the secular establishment and the rabbis. Herzog’s responsum opens with the text of the official letter signed by the rector of the university and the head of the new school of medicine, addressing the chief rabbi. It is difficult to overestimate the solemnity of the hour and the symbolic significance of the Jewish rector approaching the chief rabbi on a matter of national importance. The professor and the doctor focused on a sensitive point, especially important in the immediate period after the Holocaust: Here lie issues pertaining to [the relationship] between Israel and the gentiles. In the past, rabbis in Poland gave permission to dissect Jewish cadavers for the sake of studying medicine.132

A letter by Rabbi Waldenberg, addressed to Rabbi Herzog in 1952, well represents the majority opinion among the rabbis Herzog consulted. Waldenberg gives permission to the performance of specific dissections, directed at specific clinical questions, and when trustworthy doctors deem the dissection necessary. Waldenberg considers indefinite preservation of body parts in anatomy museums the worst disgrace imaginable.133 The most permissive opinion in that phase of discussion was issued by Rabbi Ovadia HaDa’ya. He acknowledged that since it is not possible to train surgeons only when the “patient is in front of us,” it is permissible to dissect the dead. Moreover, “if the person really aims at saving life, and it is really a matter of saving life, the family cannot object [to the autopsy].”134 It is evident that Halakhah is open to the use of dead bodies in the context of medical training, research, and transplantation. The most lenient rabbis are oriental, culturally remote from the European history of anatomical dissection as a marker of the socially outcast and as a locus for scandals involving bodysnatching and even murder. A few Ashkenazi (Western) rabbis refused to grant permission to postmortem dissections. Rabbi Breisch (twentieth century) discusses a woman who has had two unexplained still-births. Despite the urging of doctors and the pleas of the anguished parents, he does not give permission for an autopsy of the stillborn child.135 Chief Rabbi of Jerusalem Frank (1873–1960) did not give permission to remove gold teeth from a dead body.136 Rabbi Yosef and Rabbi Waldenberg gave permission to remove a cardiac pacemaker from the cadaver. The capacity 131 132 133 134 135 136

Herzog 1947–1949. Herzog 1947–1949, 1. Waldenberg 1954, mark 14. Hada’ya 1982, Yo’reh De’ah, mark 19. Breisch 1951, mark 207. Frank 1976, mark 276.

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to do so without external disfiguration and the perceived lack of integration of the device with the body were cited in favor of this permission.137 In 1978, Rabbi Feinstein was asked in the name of the U.S. President’s Commission on Bioethics to communicate the halakhic teaching on anatomical dissections of people who donated their bodies for this purpose. His responsum is brief, without any citation and argumentation. He categorically states that nobody has the authority to hand over a dead body to medical research, that it is prohibited to delay burial, and that not even a single cut must be made on the body.138 Indeed, owing to the association of respect for the Image of God in man with the wholesomeness of the body, Halakhah is more sensitive to external disfiguration than to externally unseen interferences, such as postmortem fine needle aspirations. There is no objection to the subjection of cadavers to noninvasive tests, such as a computed tomography (CT) scan.139 The context of Feinstein’s public statement, the brief and categorical style, and its severity remind the reader of Feinstein’s responsum on brain death.140 Undoubtedly, Feinstein was aware of the prevailing rabbinic rulings in Israel and the world. Anatomical study was not a novel practice like heart transplantation, nor did it involve the problem of harming patients (e.g., the risks and side effects of transplantation). It seems to me that while writing to the U.S. Presidential Commission, Feinstein had the Israeli public in mind. In the 1970s, demonstrations, sometimes riotous, were conducted by Ultra-orthodox groups. Most of the participants’ energies were directed at ensuring the proper treatment of human remains found in archeological excavations, but lax regulation of the use of fresh body parts in hospitals was a painful issue as well. The mutual respect and understanding between the rabbis and the medical establishment was unraveling. Reports in the media on abuse of the anatomy law and mishandling of human cadavers incensed the public against the medical establishment. Without clear criteria for the determination of death, it was possible for doctors to first proclaim a patient dead and then harvest organs for transplantation without asking for consent. This is exactly how the first heart transplant in Israel was carried out. Following heavy political pressures, the Israeli anatomy law was amended in 1981, significantly restricting postmortem dissections. The implications of the new law on transplantation were debated in the late 1980s. I discuss this and the 2008 transplantion law in Chapter Nine. While Herzog, Uziel, and other rabbis weighed the lifesaving benefits of anatomical study against a religious taboo,141 Rabbi Waldenberg weighed the benefit to some people (the sick) against the burden on others (the dead).142

137 138 139 140 141 142

Waldenberg 1981, mark 83; Yosef 2004, Yo’reh De’a, mark 50. Feinstein 1981, Yoreh De’ah, mark 140. Steinberg 1994, 581–582. P. 212. ‫בין אדם למקום‬ ‫בין אדם לחברו‬

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Because Jewish law does not require a person to give everything for the sake of saving life, Waldenberg upholds some psychospiritual barriers to certain kinds of lifesaving help: It is clear to me that none of the rabbis who support organ donation from cadavers would donate from his own body, even if he was absolutely certain that this would save the life of a sick person. This is because Jews believe that both soul and body should return to their sources – the soul to heaven and the body to earth. One should not outsmart this rule and resurrect parts from a dead body, no matter what.143

According to Waldenberg, and similar to the objection to selling a synagogue for the sake of ransoming captives,144 harvest of organs from the dead is not “the way of the world.” Following the assertion that “one cares for one’s dead more than for all of one’s property,”145 the rabbis rule against nonconsensual use of human cadavers, even for the sake of immediate lifesaving needs, such as transplanted organs from non–heart-beating cadavers. In sum, when indicated, the rabbis permit the medical use of human remains. Payment for such use is prohibited. Only immediate life saving use and forensic inquisition justify such use without informed consent. Special measures must be taken to bury the poor and unclaimed bodies and protect them from dissection. Even though Jews do not practice open casket funerals and do not put make up on the dead, cadavers should be spared external disfiguration. All bodily remains must be interred with respect, never stored as anatomy specimens, cremated, or disposed of as trash. Only public health considerations (e.g., plague) may justify disposal other than burial.

medical experiments on humans In comparison to the formative and central role of medical experimentations in the emergence of bioethics, the attention given to the topic by the rabbinic literature is scanty. So far, it has not addressed issues of adequate disclosure, the imbalances of power between doctor-scientist and patients, the implementation of good clinical practice, and therapeutic misconception. To the best of my knowledge there is no discussion of the Helsinki Declarations from a rabbinic point of view. The key challenge in understanding the rabbinic sources on the subject is lack of distinction between experimental treatments whose value for the patient is doubtful (e.g., “off-label” prescriptions) and participation in controlled clinical trials and other scientific experiments designed to produce objective knowledge. The rabbis have taught that due consultation with colleagues must precede any 143 144 145

Waldenberg 1978, mark 91. See also pp. 111, 121, 213. Pp. 69–70. Gloss Tosafot on T. Shabbat, 44a.

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“experimental” treatment.146 Since a patient may refuse any treatment on grounds of risk,147 and since it is never unreasonable to decline “experimental” treatment, it should be obvious that any such treatment necessitates informed consent. The formal halakhic problem with scientific and clinical experiments on humans is the prohibition on harm, self-harm, and self-risk. However, since Maimonides wrote that the prohibition is “harm in a way of strife and brawl,”148,149 later authorities have ruled that a person may consent to being harmed if the harm serves a proportionate value.150 This permission clears the way to self-risk and harm in the benefit of others – blood and organ donation, as well as participation in medical experiments.151 Unquestionably, a doctor must not encourage people to participate in precarious experiments. But there is no a priori problem with offering patients a chance to undertake some risk and harm for the benefit of the common good. Halakhah places the onus of such decisions on the shoulders of the patient and not on professional responsibility as a discrete regulative authority. According to the Palestinian Talmud, there is a duty to self-risk for the sake of saving another person’s life.152 This view is close to Christian ethics, which also originated in Palestine Jewry. However, according to the Babylonian Talmud, there is no such duty.153 As a legal principle, when the two corpi of Talmud differ, Halakhah follows the Babylonian Talmud whose reduction was of a higher quality. Sixteenth-century Rabbi David b. Zimra distinguished between the acceptance of limited risk and harm, which is supererogatory,154 and the placing of one’s whole life at peril, which he labels foolish piety.155 The rabbi also points out that it is almost impossible to contain harm. “I have seen a person who died from scratches in the ear.”156 It also seems that once a catastrophe occurs in reality, the rabbis would consider the risk as salient. After Rabbi Landa introduced, in the eighteenth century, the distinction between situations in which “the needy patient is in front of us” and future, hypothetical lifesaving needs, the rabbis tended to stress the moral value of accepting limited risk and harm for the sake of a concrete person who is in need of immediate lifesaving help.157 But most rabbis stop short of ruling that,

146 147 148 149 150 151 152 153 154 155 156 157

Tucazinsky 1960, 29. For a similar position see p. 111 and Feinstein’s response, discussed in p. 213. Chapter 4. ‫דרך נציון‬ Maimonides, Hilkhot Ho’vel U’ma’zik, 5:1. Babad 1982, marks 48, 49. Avraham 1993b, 266. Temurot, 8:4. Bava Metzi’a, 62a; Liebes 1985, mark 37. ‫מידת חסידות‬ David b. Zimra 1781, mark 627. In the earlobes, the cartilage, which is especially sensitive to infection, lies directly under the skin. Epstein 1908, Hoshen Mishpat, mark 426:4; Kook 1983; Avraham 1993c, 266.

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because risk and suffering are negligible, blood donation from a live person is a religious duty.158 Rabbi Yosef wrote that because kidney donation is only remotely risky, there is a duty to donate as well.159 But even Yosef’s most ardent followers do not rush to donate their kidneys. I assume that people sense a difference between self-maiming, even if quite innocuous from a reasonable donation of a renewable resource, such as blood. Rabbi David b. Zimra also says in the said responsum that the law of the Torah must conform to reason and common sense160; it is unconceivable that a person would blind one eye or amputate a limb for the sake of saving his friend’s life.”

According to Rabbis Gumbiner (seventeenth century) and Berlin (nineteenth century), although there is no duty to self-risk for the sake of another, there is a duty to suffer for the sake of saving other people’s lives.161 A person’s duty to suffer and sacrifice for the sake of saving his or her own life is probably weaker than the duty to suffer and sacrifice for the sake of another’s life.162 Hence, the rabbis permitted the acceptance of risk and discomfort that may be associated with medical experiments. They have also construed clinical research as a situation of “the patient is in front of us” even though the specific patients who might ultimately benefit from the research may not be ill yet. This broader conceptualization is not strong enough to permit the desecration of the Shabbat when the research protocol so requires.163 Rabbi Auerbach suggests that clinical research is a kind of defensive war164 in which it is everybody’s duty to participate. This is a radical analogy, which Auerbach qualifies to utopist pious society. In the predominantly secular society, it is permissible to participate in properly regulated experimentations. Auerbach writes that since many women whose medical condition warrants the use of contraceptives nevertheless choose to self-risk out of a desire for

158 159 160 161

162 163 164

Wasner 2002, part 5, 219; Avraham 1993c, 193–194. Yosef 1984, mark 84. ‫אל השכל והסברא‬ Gumbiner’s gloss Maggen Avraham on Shulhan Arukh, Orah Haim, mark 157; Berlin 2006, 76. Rabbi Shimon b. Yohai escaped the Romans even though he knew that they might torture his wife while chasing him (T. Shabbat, 33b). The conclusion is that it might be permissible to put someone at risk of suffering while avoiding great danger to self. Interestingly, the marital bond has no bearing on the issue. But Gumbiner makes a stronger inference, namely, that a person has a duty to submit oneself to suffering for the sake of another. The permission that townspeople have to use water that people downstream may need (see p. 68) does not entail a duty of the people downstream to furnish the upstream people with water. Moreover, torture by the Romans is undoubtedly a great risk to life, not merely a matter of suffering. We may observe that Gumbiner and Berlin did not call upon the “principle of double effect” as it has been developed by Christian morality. Bar Ilan and Barilan 2005, section 8. Avraham 2009, 284–285. ‫מלחמת מצווה‬

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children, and since nobody protests against this practice, acceptance of the risk of medical experiments should be acceptable as well.165 In line with Halakhah’s tendency to respect “the ways of the world,” Auerbach does not explore the reasons why women self-risk for the sake of children and whether this is morally acceptable. It is a striking example of the sinister aspect of Halakhah’s openness to professional and social standards: rather than criticize a problematic practice, rabbis might invoke the practice in question in support of an even more problematic one. When the “experiment” is carried out on the patient, permission to self-risk and self-harm is easier to obtain. Rabbi Auerbach gives such permission only to a patient who is suffering.166 We have already seen that suffering is the legal locus of care-seeking167 and that the rabbis interpret God’s special love in terms of prioritizing avoidance of suffering over many other religious values.168 The centrality of suffering as justification to experimentation is irrelevant to clinical trials because the contemporary regulation of clinical experiments is founded on informed consent to participate in the trial in the benefit of others. Enrollment in clinical trials with the hope of personal medical gain is known as “the therapeutic misconception,” which must be avoided.169 Although the bioethical literature and legal regulation distinguishes between medical experiments and experimental treatments of last resort, the key distinction in the rabbinic literature is between experiments on healthy volunteers and therapeutic experiments on patients, especially those who suffer.170 Rabbi Nuevirt (1926–2013), who is a disciple of Rabbi Auerbach, writes in his widely accepted book on the laws of the Shabbat that it is permissible to desecrate all of Shabbat’s taboos in the context of clinical experiments, even when the benefit for the patient under consideration is doubtful.171 This permission is almost certainly given to “experimental” treatments, not to medical experiments, but this is hard to prove because the jargon of research ethics has never been incorporated in rabbinic discourse. Rabbis Auerbach and Elyashiv were opposed to any kind of medical research on minors. Incompetent persons are exempt from all religious duties, including the duties to help others and save life. However, experimental last-resort kinds of treatment are permissible on minors whose lives are temporary (i.e., who would otherwise die soon).172

165 166 167 168 169 170

171 172

Auerbach 1999, mark 82:12. Avraham 1986. P. 23. pp. 48–49, 85. Henderson et al. 2007. Avraham 1993c, 264; Steinberg 1994, 487–490. Although both Avraham and Stienberg are medical doctors, they ignore the issue of therapeutic misconception. Neuvirt 1979, 530–531. Avraham 1997, 66–67.

6 Fertility and Very Early Prenatal Life

the commandment and value “be fertile and increase” The first blessing in the Bible, “Be fertile and increase, fill the earth and subdue it,”1 is also the first commandment and normative statement in the Torah. Christianity reads these words allegorically, as referring chiefly to intellectual and spiritual growth. Judaism, which has no less valued intellectual and spiritual growth, has always held procreation and heterosexual marital family life as a fundamental value in religious law, social life, spirituality, and mysticism. The rabbis have never approved of celibate, childless, and mendicant lifestyles. Some Fathers of the Church wrote that procreation was highly valuable when the Earth was empty of human life, but not in the late Roman Empire. The early Christians battled fiercely against abortion, infanticide, and child neglect, but they did not especially esteem marital life. A home with a wife and children was perceived as part of worldly existence, which the ascetic ideal seeks to renounce.2 In late antiquity, while Christianity was expanding into a universal religion by means of proselyting, Judaism was struggling to preserve its family-centered ethnic identity in a period of precipitous economic, political, and demographic decline. The ancient Jewish sources already counted the blessing to procreate as a commandment, a religious obligation.3 I use the contemporary jargon “moral duty” to designate a complementary aspect of this commandment, its foundational ethos in Judaism. The legal dimension, the commandment, is rather limited. It obliges men, but not women, and it sets a minimum of one son and one daughter who themselves are capable of having children. An infertile child

1 2 3

Genesis 1:18. Bailey 1959, 23–26; Augustine, De Bono Conjugali, 2. ‫מצווה‬

123

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or a child who dies without surviving offspring does not count.4 In Jewish law, a Jew is either the child of a Jewess or a convert. Marriage is valid only when both parties are Jewish. Marriage between a married woman and a man and incestuous marriages are invalid as well. A child of a Jew and a non-Jew is affiliated only with the mother, as if the father never existed; the progeny of either adultery or incest is a bastard.5 Other children produced out of wedlock do not bear the severe stigma of bastardy. A bastard can marry only another bastard or a convert. Converts can marry nonbastards as well. Adoption does not exist in Jewish law. It follows from this brief overview that even though natural progeny is a fundamental value in Judaism, the value of communal progeny trumps genetic affiliation – the child of a Jew and a non-Jew is not formally affiliated with the father. The value of licit sex comes second, since although a bastard is affiliated with both parents, he or she suffers from severe social disability. In addition to the minimum standard that is considered “from the Torah” (the highest level of religious duty, which might be ascribed by the sages to commandments not specified in the scriptures), the Talmud spells out duties of a lower level, “from the sages,” to bear more children “to settle the world.”6,7 It seems that the hard core of the duty of procreation is about replacement (i.e., a man and a woman have a son and a daughter), whereas the lower-level duty is to increase. A third, even weaker, duty is to have as many children as one can.8,9 The halakhic literature contains rich discussions on the scope of the various obligations to procreate.10 At every legal level, procreation is a special duty that cannot be compared to the ordinary laws that prescribe action, such as blowing a Shofar (i.e., horn) or the performance of purifying immersions,11 from which only practical difficulty creates specific exemption (e.g., sickness, lack of water). Evidently, procreation depends on finding a partner to marriage. In rabbinic law, marriage entails a contractual-like mutual duty to sexual satisfaction that is subject to the family’s lifestyle. For example, seafarers may absent themselves from the conjugal duty for up to six months.12 Additionally, Jewish law exempts from this duty spouses who lose attraction to their partner. If the problem persists, they may be divorced and lose some pecuniary rights.13 Obviously, neither men nor women can have a legal duty to “desire” and be aroused. As a matter of fact, the Talmud and Maimonides’s Codex of Law anticipated the

4 5 6 7 8 9 10 11 12 13

T. Yevamot, 62a. ‫ממזר‬ ‫שֶבת‬ ֶ ‫ – מצוות‬to settle the world, as written in Isaiah 45:18. The Medieval book Hinnukh, mark 1. ‫ ולערב אל תנח ידך‬as written in Ecclesiastes 11:6. T. Yevamot, 62a. Reviewed by Feldman 1968, chapter 3; Steinberg 1996, 365–374; Irshai 2012, chapter 1. ‫טבילה במקווה‬ T. Ketubot, 5:5. Maimonides, Hilkhot Ishut, 15:17.

Fertility and Very Early Prenatal Life

125

modern notion of no-fault divorce.14 The rabbis have made efforts to discourage divorce,15and in post-medieval rabbinic law, divorce requires mutual consent. When one party refuses the divorce, the rabbinic court has the power to rule that the request for divorce is justified and apply pressure on the nonconsenting party to relent All in all, the halakhic discourse on procreation is three-dimensional. Although the fundamental dimension is the duty that men have from the Torah to procreate, we have seen that it has much less direct bearing on action than do other religious duties. The man needs a consenting partner, and the action required is not fully subjected to will power. The second dimension is the marital duties, which oblige both parties to undergo the ordinary efforts and difficulties associated with sexual life. This is especially relevant regarding women. On the one hand, Halakhah empowers women by exempting them from a religious duty to procreate; on the other hand, because almost all observant Jewish women marry, they are obliged to procreate, not as a duty to God, but owing to their contractual obligation to their husbands. The third dimension is the theological and popular construction of procreation as a “prime duty,”16 the very first duty.17 The Talmud explains that the world was created for the sake of procreation.18 Procreation disseminates the image of God.19 In Judaism, active sexual life, even when clearly not fertile (e.g., in old age) bears special moral, religious, psychospiritual and mystical values. Whereas Christianity extolled a celibate life dedicated to prayer and other holy works, the Talmud declared that “a virgin devoted to prayer”20 brings havoc to the world.21 It is very difficult to overestimate the theological significance and the cultural ethos of marriage, marital sex, and procreation in Jewish religion and society. Fertile sex is necessary for spiritual fulfillment, as a religious duty beyond the mere survival of one’s family, as a condition for full participation in communal life, and as having special redemptive and theurgic influences.22 Until the dissemination of Kabbalah in the middle ages, eroticism and sex were perceived in the rabbinic literature instrumentally, as means to companionship and procreation. But the kabbalists spoke about the primary spiritual and theurgic value of sex. Whereas the Talmud refers to neglect of procreation as diminishment of the

14 15 16 17 18 19 20 21 22

M. Gittin, 9:10, Barilan 2009; Blau 1958, 53. E.g., T. Gittin, 90b. ‫ – מצווה רבה‬T. Gittin, 41a. Genesis 1:18. T. Yevamot, 62a. Cohen 1989, 224ff. ‫בתולה צליינית‬ Sottah, 22a. On celibacy in early Christianity, see Brown 1988, 60–64. T. Taanit, 15a; Shulhan Arukh, Even HaEzer, 1:1; Urbach 1987, chapter 10; Cohen 1989, 109–115; Eilberg-Schwartz 1994, 204–222; Carr 2003, chapter 1; Lorberbaum 2004, chapter 8.

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Jewish Bioethics

Image of God in the world,23 a medieval mystical book reads this talmudic maxim with a focus on sex rather than on its outcome: It is forbidden to reduce the frequency of intercourse. The sages said that a person, who is seldom intimate with his wife, diminishes the Image [of God] and causes alienation24 in the [divine] firmaments and within his person.”25

Medieval rabbis who wrote in a philosophical style and were inspired by Aristotle and Neo-Platonism, described sexuality as an inevitable, base necessity (e.g., Maimonides and his son Avraham, Bahya Ibn Pakuda, Sa’adiah Gaon). The ascetic streams known as the Ashkenazi hasidism endorsed periods of penitential abstinence, but the advent and rapid dissemination of zoharic Kabbalah in the fourteenth century swept away these mentalities and unleashed modes of thinking, mystical teachings, and theologies whose winds blew Jewish sexual Halakhah and ethics in directions quite opposite to medieval Jewish philosophy and piety and to mainstream Christianity and Islam. According to the Zohar, the principal book of Kabbalah, human sexual intercourse mirrors and provokes a kind of erotic unity within the divine powers in heaven.26 These novel teachings on sex also bolstered the taboo on masturbation, casting this sin as one involving horrendous theurgic harms and spiritual blemishes. The rabbinic code of law Shulhan Arukh, whose author belonged to the kabbalist circles as well, is straightforward with his assertion of a certain measure of eroticism, or at least of sexual conduct that is not merely instrumental to procreation. He rules that both men and woman must be fully naked during intercourse. Although intercourse is possible and fertile even when the couple remains partially covered, refusal of nudity in sex is a reasonable cause for divorce.27 The consequences of the new and affirmative approach to sexuality loom large over the contemporary discourse on genetics and infertility medicine. However, as we will see, contemporary halakhic approaches shift their focus back from the erotic-companionate union to the outcome of marital sex – the begetting of legitimate children. A leading factor behind this change is the Hasidic movement, which was hostile to sexuality and which allocated to women a lower social standing. This might have developed in reaction to the psychological problems associated with the then common practice of marriages at a young age, thirteen to fifteen.28 We will see that pre-modern rabbis approved of licit but not virtuous sex (e.g. anal) as a means to avoid sin; contemporary rabbis tend to stretch the law as a means to alleviate the agony of infertility. 23 24 25 26 27 28

Yevamot, 62a. ‫גלות‬ Anonymous 1894, 196 (section Sod HaKiddushin). E.g., Zohar II, 89b. Even HaEzer, 76:13. Biale 1992, 127–141.

Fertility and Very Early Prenatal Life

127

fertility and its control The three simplest premodern methods of fertility control are abstinence, timing (i.e., “safe days” method), and coitus interruptus (or any other extravaginal ejaculation). There are indications that, throughout history, anal intercourse was also known as a method of birth control.29 The Jewish sources do not consider abstinence as a practical option. Nor do they count in their deliberations anal sex, which is licit in Jewish law.30 Because Jewish law grants the wife a right to sexual satisfaction, and because of the licentious connotations of anal intercourse, let alone the physical difficulty, revulsion, and pain experienced by many, this permission does not solve the problem of contraception in the Jewish family. Halakhah condemns sex during times of famine.31 Rabbi Ayyash wrote that famine is defined by the doubling of market prices.32 It is noteworthy that the overall pattern of Ayyash’s lifetime (1688–1760) was accelerating inflation with sharp crises occurring every ten years.33 In the culture of the Babylonian Talmud, men would spend long periods of time in religious academies (Yeshivah34), far away from their wives.35 The long months – sometimes years – of solitude, and usually poverty and social marginalization, were praised as the women’s contribution to the study of Torah – the highest value in rabbinic society.36 But these rabbis were married and had children. Only one talmudic rabbi chose for himself a celibate lifestyle in order to dedicate himself fully to the study of the Torah. He is the rabbi who declared that abstaining from procreation (for any other reason, of course) is like shedding blood. In response to his peers’ criticism, he represented the desire for the study of Torah as overwhelming as eros, “I cannot help it; my soul desires [only] Torah.”37 Passionate intimacy cannot be fully voluntary. In Hellenic Judaism and among Second-Temple sects, one may find the celibate and abstinent ideal.38 But even though some contemporary hasidic groups encourage strict limits on intramarital erotic pleasure and sex,39 even in the most austere circles, there has always been universal observance of intimate relationships at least once a month, on the night of the ritual bath, 29 30

31 32 33 34 35 36 37 38

39

Noonan, 1965, 172–173; Ruggiero 1985, 165. T. Nedarim, 20b. Isaiah of Trani (Rid), 1973, 15. The rabbinic sources mention anal intercourse as a means to preserve virginity – Gloss Rashi on Genesis 24:16. T. Ta’anit, 11a. Ayyash 1746, Orah Haim, mark 40. Hackett-Fischer 1996, 122. ‫ישיבה‬ Rubinstein 2003, chapter 1. E.g., T. Ketubot, 63a. T. Yevamot, 63b. Brown 1988, 38–40. People contemporaneous with Jesus might not have found him celibate but a bachelor. See Thornton 1972. Wasserman 2011.

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and much more frequently among childless couples. The intimate life of the traditional Jewish family follows a circular monthly pattern. From the first sign of menstrual bleeding, wife and husband withdraw from intimacies until a week has passed from the last trace of blood. On the seventh “white” day, the woman prepares herself, sometimes for hours, washing, grooming, and relaxing. In the evening, she immerses herself in the ritual bath40 and goes home to celebrate a renewed period of intimacy with her husband. Although no more than 20 percent of Israelis follow the Orthodox lifestyle, many otherwise secular women cherish the waves of erotic tension, feminine self-care, and traditional rituals of purity. Because waste of semen is prohibited by Jewish law and severely condemned by Kabbalah, climax outside the woman’s body and use of condoms are prohibited. We may conclude, then, that the three simplest methods of fertility control are irrelevant to the traditional Jewish family. When birth control is indicated, it is the burden of the woman to use either mechanical barriers or drugs. Delay of the monthly ritual immersion (i.e., practicing “safe days”) has been partially reliable and unpopular.41 The Talmud recounts a story about a woman who suffered from giving birth.42 She altered her appearance and went in disguise to consult her own husband and rabbi. She asked him whether women were bound by the duty to procreate. He said, no. So, she drank a sterilizing potion.43 When this became known, the husband rabbi said, “If she only had borne me one more child.”44 This formative anecdote encapsulates three important messages. First is the exemption of women from the duty to procreate. Since the wife did not ask release on health grounds, from a strictly legal perspective, she could have drunk the potion regardless of her personal difficulties. But, as a virtuous woman, she did not entertain such an idea until she had a considerable motivation. And yet, psychological factors, gender bias, and a mere desire for more children did not allow for either ordinary candid deliberation between husband and wife or an open consultation with a rabbi. Only in disguise was it possible for this woman to confront her most intimate partner on a most private issue with a subjective problem – personal suffering in sexual life. Even then, it was not possible to speak up, to raise the personal health problem. She articulated her personal difficulty as if it were an abstract legal question. It appears that the rabbi failed to notice his wife’s difficulties. The wife never told her husband about her decision; it is unclear whether she knew of his yearning comment. The incident, along with the full name of the rabbi, has become known all over the Jewish world (the woman remained known as “Rabbi Hiyya’s wife”); we do not know whether 40 41 42 43 44

‫מ קוו ה‬ Feldman 1968, 247–248; Finkelstein 2009. ‫צער לידה‬ ‫כוס של עקרין‬ Yevamot, 65b.

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communication between husband and wife was ever restored. The unspoken words between both pious and learned individuals, husband and wife, bear testimony to the limits of the law, especially in intimate affairs and across gender gaps. The first explanation given in the Talmud to the exemption of women from the duty to procreate is that women are not naturally inclined to take erotic or romantic initiatives. The talmudic word translates literally as “to conquer.”45 The other side of this observation is the inherent difficulty of women to resist the advances of men who come to “conquer.” However, mere passivity (letting the man do what he wants) is not considered participation in sex and is never idealized by the rabbis.46 Interestingly, according to the Midrash, during their enslavement to the Egyptians, Jewish women managed to arouse their men who gave up on procreation in dire and seemingly hopeless conditions.47 The medieval sages considered this initiative as active participation of women in the miracles of the exodus.48 In the story on the rabbi’s wife, we find a woman taking an initiative regarding contraception. “Rabbi Hiyya’s wife” would not face her husband directly, nor she spell out her personal difficulty, but she masterminded a bold action. The second talmudic source on contraception is formulated in the direct, impersonal, objective, and analytic language of the law. This legal language divides people into distinct categories: Three women use mokh49 (literally: a piece of cloth; used as an internal diaphragm): a minor, a pregnant woman, and a nursing woman. The minor might become pregnant and die, the pregnant might miscarry, and the nursing woman might lose her child (owing to reduced production of milk). Rabbi Meir says that for all twenty-two months [then considered the usual duration of nursing], he “treads inside, but saws outside” [i.e., uses coitus interruptus], but the sages [i.e., the majority opinion] say that he should behave as usual and that “the Lord preserves the simple.”50.

In the next chapter, I discuss the health risks associated with sex for women in these three circumstances. Relevant to the present discussion is the consensus regarding the permissibility of mechanical contraception in the face of objective health risk. A comparative reading of the two formative texts on contraception yields two patterns of discourse – soft and hard (Table 6.1): Regarding contraception, the Talmud contains two formative texts. One is narrative/hermeneutic and the other legal/deontological. The post-talmudic halakhic literature gradually incorporates both texts in a deontic – “hard” rather than hermeneutical –“soft” normativity. Consequently, the subtlety of stories 45

46 47 48 49 50

.‫ – איש דרכו לכבש ואין אשה דרכה לכבש‬Yevamot, 65b. .‫ – מפני שדרכו של איש לחזר אחר האשה ואין דרכה של אשה לחזר אחרי האיש‬Kiddushin, 2b. T. Sanhedrin, 74b. Sottah 11b. Glosses Rashi and Rashbam on T. Pesahim 108a. ‫מו ך‬ Tosefta, Niddah, 2:6, citing Psalms 116:6. See pp. 78, 93.

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table 6.1 “Soft” and “hard” normative discourses in the Talmud regarding female contraception.

Literary genre Motivation Means of contraception The legal or moral “price”

Perspective/s

Deontic modality

Soft (Story of the rabbi’s wife)

Hard (The law on mokh)

A story Subjective suffering A potion whose efficacy might be uncertain (in premodern times) Minor – women are not bound to procreate. There is no prohibition against a contraceptive that does not sterilize/neuter. Multiple: The wife, the wife in disguise, the husband acting as a rabbi, and the husband’s expression following the discovery of the case Permission, up to personal discretion

Legal deontic formulation Objective risk to life A mechanical barrier Greater – waste of seed, which is bad in its own right, regardless of whether women are bound by the prohibition on wasting. Univocal: Controversy (between Rabbi Meir and the sages) appears only when the risk is least established and the moral price relatively high (waste of semen). A duty

has given way to the exactness of analytic formulation and the demand for conceptual coherence. Does post-talmudic Halakhah permit any use of contraceptive potions, as one may infer from the rabbi, or is it permitted only when health is at peril? In the Middle Ages, consensus gravitated toward a broader conceptualization of harm prevention. The sixteenth-century German Rabbi Luria counts serious health issues and an inability to provide proper education that may result in delinquent children as acceptable reasons to use contraception.51 Some early modern authorities maintained that it was permissible to drink such potions even without strong reasons.52 The objectivity and gravity of the value at stake in the law on Mokh – the protection of life – invites the conclusion that its use is mandatory, not merely permissible. Such a view was expressed by the medieval anthological gloss on the Talmud, Tosafot.53 Women’s legal empowerment reached its peak in the High Middle Ages, when bigamy and forced divorce were prohibited and when Maimonides granted women a right to no-fault divorce and protection from marital rape. 51 52

53

Luria 1861, 36b (Yevamot, chapter 6, mark 44). Shulhan Arukh, Even HaEzer, mark 5 – Glosses Bet Shmuel, mark 14 and Be’er Hei’tev, mark 11. (Both may be found in various editions of the Shulhan Arukh. I consulted the Rosh Pinah edition, Jerusalem, 1997). E.g., on T. Yevamot, 12b; Irshai 2012, 63–66.

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Rabbi Meir of Rothenburg (1215–1293) ruled that husbands who beat their wives should be punished by excommunication, flogging, and, if necessary, even by amputation – a harsh corporeal punishment that does not exist in Jewish law. If a woman wishes to divorce her violent husband, the court will force him to grant her divorce and pay the divorce fine.54 During this period, owing to the dwindling of the Jewish communities and fear that all eligible boys might already be married by the time a daughter comes of age, Rabbi Meir endorsed the practice of marrying daughters off before they are twelve. This ruling actually reversed the talmudic prohibition on marriage of minors.55 One Medieval source writes that it is permitted to beat a young girl who refuses to extend her hand to receive the marriage token.56 Because this permission is not found in earlier sources, we may conclude that the author did not recite earlier literature – a common practice in medieval anthologies – but that arranged marriages of girls took place and that confrontation with the girl-brides was a real problem. According to the talmudic text, the problem with girl-brides is their lack of capacity to consent.57 But the Midrash condemns the practice because “it diminishes procreation . . . and may cause bloodshed.”58 This is because pregnancy in minor females may be dangerous, and intercourse itself may be physically traumatic as well. I conjecture that precisely because of the risk associated with child marriage, the rabbis were keen on protecting these girl-brides from unhappy matches and from dangerous or unwanted pregnancies. During this same period, Rabbi Meir also took unprecedented measures to restrict a woman’s capacity to file for no-fault divorce, levying heavy fines on wives initiating divorce.59 The Ashkenazi rabbis had to deal with cases of adulterous minors (e.g., a married girl under twelve who fell victim to a “rascal”), women who kill their bastard infants while their husbands were on a business travel, and similar crises characterizing unstable communal life.60 From the text of Rabbi Luria (quoted earlier) we learned that, at least among European Jewry, the use of contraceptives was not censured. I also conjecture that the combination of a strong commitment to marriage and the pressure to marry girls who are too young to give birth safely contributed to leniency regarding contraceptives. It is noteworthy that Rabbi Luria, Rabbi Meir and Rabbi Peretz, lived in medieval Germany. This lenient trend has been reversed. Some scholars argue that the demographic pressures of the Diaspora compelled rabbis to 54 55

56 57

58 59 60

Meir of Rothenburg 1895, mark 81. On the legality of such punishment see Barilan 2012, 44. T. Kiddushin, 41a; Isaac of Corbeill (1820, mark 183:3) cites the talmudic prohibition on arranged marriages of minors. The commentary to this text by Rabbi Peretz rejects the talmudic law on demographic grounds. The anonymous medieval book Kol Bo, mark 75 (Anonymous 1860, 43a). Kidushin, 41a. According to Sefer Hasidim, sex that cannot be fertile is licit but not virtuous (Wistinetzki 1924, 290). Avot D’Rabbi Natan, version B, chapter 48; Schechter 1887, 66; see also T. Niddah, 13b. Haim b. Isaac 1860, mark 126; see also Grossman 2004, 438–456; Westreich 1998–2000. Yosef Colon 1884, mark 82.

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restrict halakhic leniency with contraception and family planning.61 The rise of Kabbalah and its celebration of marital sex and procreation might have been another important factor in the growing censure of contraception. The first rabbi to mention abstinence as a hypothetical alternative to contraceptive potions and mokh was Rabbi Avraham Shmuel Sofer (1815–1872), who concluded that because the husband is obliged to be intimate with his wife regardless of considerations of procreation, mokh preventive measures are preferable to abstinence.62 The codex of law Shulhan Arukh prohibits willful abstinence before the couple has fulfilled their duty to procreate.63 Birth control motivated by health problems and other salient considerations has been a perennial challenge. Until the development of the contraceptive pill in the late 1950s, the only relatively reliable contraceptive was mechanical (e.g., mokh). Condoms were quite unheard of before the late eighteenth century, appearing in popular erotic literature long before gaining medical recognition.64 Consequently, the premodern halakhic discourse focused on the law on mokh, whereas the contemporary one has shifted attention to the potion story. Whereas contraceptive potions are more Halakhah-friendly (no interference with the natural flow of semen), rabbinic perceptions regarding procreation, marriage, and Orthodox self-identity diverted contemporary rulings to the side of stringency. A notable example is a responsum by prominent early nineteenth-century Rabbi Moshe Sofer (Father of Rabbi Avraham Sofer): I was asked by the Rabbi and Judge of Miskolc about a woman who faces danger in the days of pregnancy and lactation, and twice already has she been in enormous danger.65 Is such a woman permitted to use mokh during intercourse?

In his responsum, Rabbi Sofer writes that he has not found “a single source” permitting mokh during intercourse, explaining the talmudic law only as permission to clean (semen from the vagina) after intercourse. In his reading, mokh – whose literal meaning is a piece of fabric – is not used as a barrier, but as a cleaning tissue. Sofer concludes that postcoital use of mokh is permitted pending on “the consent of the husband and his wish . . . . Certainly she has no power66 to destroy his semen without his permission even if he has already fulfilled the commandment to procreate [i.e., he has already at least one son and one daughter].” As a last remark, Rabbi Sofer refers to the story of the wife who used a contraceptive potion: 61 62 63 64 65 66

Gordis 1979. Sofer 1888, mark 26. Even HaEzer 76:6. Noonan 1965, 347–348. ‫סכנה עצומה‬ ‫רשות‬

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There is no evidence from the story on the wife of Rabbi Hiyya, because in those days he could marry a second wife or divorce his wife, if he genuinely wished for more children. But in our times, following the [medieval] ban [on bigamy and forced divorce], the wife must not use [mokh] without permission.67

In response to a general question “whether it is permissible to drink a contraceptive potion,” Sofer concludes that if the woman does not have children yet, she may use it to prevent suffering and illness; if she already has children, she may use it even without the motivation of preventing suffering. However, Sofer reiterates the requirement of spousal consent. Because her matrimonial duties do not entail acceptance of extraordinary suffering, the husband must either consent or file for divorce.68 Sofer was not the only prominent European rabbi who expressed stringent attitudes on contraception.69 But his responsa are exemplary of some key developments in Jewish society and law. From a purely halakhic perspective, there should be no problem with the use of mokh by a woman for whom pregnancy is dangerous. It is not even a rare, novel, or unusual question. For centuries, such problems had been handled within feminine circles of care.70 But in the wake of the Enlightenment, emancipation, and the advent of Reform Judaism, the fabric of traditional Jewish communities was unraveling. Rabbi Sofer in particular was engaged in a bitter struggle against religious reforms, secularization, and “adaptations” of Halakhah to the zeitgeist. This relentless struggle marked the formation of Orthodox Judaism as a self-made sociocultural identity. Until the emancipation, Jews all over the world were organized into their own autonomous communities and enjoying rudimentary civil rights outside these communities. They followed the traditional way of life, but, as long as an individual or a group were not provocatively rebellious, participation (of communities in the national identity and individuals in the community) in the ethnic-religious-cultural identity was not defined by the style and depth of commitment to a putatively universal standard of religious law. With the emancipation and reformation of some communities, the Orthodox set themselves apart on the basis of a professed unbending commitment to the older codes of law and the “traditional ways of life,” as these laws and ways of life were interpreted by the learned rabbis of their own time. Sofer was not the only religious leader struggling against these modernizing trends, sifting practices through the fine sieve of the letter of the law, but he was one of the most zealous and uncompromising. In the late 1860s, when his struggle failed, his son authorized the unprecedented separation of a group of “Orthodox” Jews from the rest of the community. In light of this historical background, we may see why the rabbi and judge of a large

67 68 69 70

Sofer 1841, Yo’reh De’ah, mark 172. See Gloss Tosafot, Yevamot, 12b and Yahalom 2011, 121. Sofer 1877, mark 126. See Irshai 2012, 72–74. Baumgarten 2004, 144–148.

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community71 might have preferred not to rule about sexual ethics independently and to present this legally simple question to the most authoritative rabbi of his generation, Rabbi Sofer. In the previous chapter, we saw how the introduction of a horse cart to carry the dead produced such a volatile tension in the emerging orthodox mentality. Even though there is neither a duty to carry the stretcher with the body on the shoulders nor a prohibition on the use of a cart, rabbis were able to infer such a conclusion from the homiletic literature on the Bible. The incident embodied the depth of crisis within rabbinic Judaism and its self-perception of “tradition.” It became possible to behold an old technology such as a horse cart as a “novelty”; confidence in the autonomous communal domains, such as the sick care and burial societies, was waning; hermeneutics external to Halakhah turned into a legal basis for novel prohibitions; and defense mechanisms whose aim was to protect tradition from secular and reformists attacks became socially operative where no such dangers existed. The pretension of the rabbinic leadership to issue rulings with a flimsy basis in the formal conventions of Halakhah eroded everybody’s confidence in halakhic reasoning. We should note that the whole responsum is suffused with escalating language and imagery. We do not hear about mere danger, but an “enormous danger” that has been validated by two medical crises. This means that the poor woman had almost died during her first pregnancy; she became pregnant once again, and, once again, she found herself on the brink of death. And yet the local rabbi was not confident in granting her permission to use birth control of the kind advocated by the Talmud and the codices of law. Rabbi Sofer’s responsum is notable for its complete shift from the language of religious duty and morals, the commandment and value to procreate, to the domain of contract law, private property, and obedience to (male) authority. In this case at least, Sofer’s devotion to the traditional way of life actually betrays novel attitudes that break away from tradition. His contention that the law on mokh is limited to postcoital cleansing is unsubstantiated by the sources. Sofer upholds it by a kind of reverse positivism, discussed in the next section. His explanation of why full spousal consent to the use of contraception is necessary, despite the clear absence of such a requirement in the talmudic story, is also unprecedented. It actually transforms the medieval ban on bigamy and forced divorce from a measure empowering women relative to their husbands to an instrument of submission. More radical still is the ruling that grants the husband power to constrain his wife to choose between risking her life and divorce. Ronit Irshai conjectures that the ecclesiastical and secular campaign against birth control in the nineteenth century may explain Sofer’s ruling because he did not wish Jewish law to be more permissive than the moral standards of the non-Jewish society.72

71 72

In the middle of the nineteenth century, there were 4,000 Jews in Miskolc (Lupovitch 1966, 2). Irshai 2012, 75.

Fertility and Very Early Prenatal Life

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Precisely because Sofer is such an incontestable authority even among the most orthodox (the Ultra-orthodox independent community of Jerusalem73 developed from a group of his disciples), one would expect to find in contemporary Halakhah lenient attitudes toward the consensual use of the contraceptive pill by couples who face difficulties and by couples who have already fulfilled the commandment to “be fertile and increase.” Alas, the contemporary halakhic literature took the opposite direction. This is because consensual use of contraception has been perceived by the rabbis as a blatant and unquestionable manifestation of the “sexual revolution,” as well as a kind of “family planning.” The word “planning” implies deliberate scheming rather than a preventive measure in response to an imminent danger or unexpected adversity. Rabbi Steinberg, the contemporary Israeli professor of medicine and a rabbi specializing in medical ethics, writes in his Encyclopedia of Halakhah and Medicine: Generally speaking, mass and free distribution of contraception is absolutely contrary to the view of the Torah. Accessible and simple contraceptive methods have opened the way to promiscuity, ruin of the family unit, to pre-marital sex among psychologically immature minors and to reduction in birth rates.74

The rabbis never mentioned demographic considerations in their discussions of contraception, but Steinberg is straightforward in his demographic concerns during the post-Holocaust era and in light of the ongoing Israeli-Palestinian conflict, which many Jews perceive as a conflict between the tiny Jewish nation and millions of Arabs.75 He captures the broader halakhic approach to the issue in one sentence: Prevention of pregnancy without any [substantial] reason, merely for the sake of transient comfort76 is forbidden according to all [rabbinic] opinions, even if the means [of contraception] is not inherently prohibited.77,78

Steinberg acknowledges the permissibility of nonbarrier contraceptives within the internal legal framework of Halakhah while stressing their universal moral condemnation as a means for improved quality of life. Of note is the explicit separation of Halakhah as legal system and its role as a source of normative religious clout. In the latter function of Halakhah, the rabbis implicitly and explicitly lump together all reasons for using birth control as matters of mere convenience (let alone self-indulgent licentiousness). This is unfair to many people and blind to social reality. Although they are the target of drug abuse, Rabbis do not prohibit the medical use of opiates. The rabbis do not recognize the fact that not 73 74 75 76 77 78

‫עדה חרדית‬ Steinberg 1994, 115. Steinberg 1994, 112–114. For harsher words from a more authoritative rabbi see Neuvirt 2002. ‫נוחות זמנית‬ ‫איסור עצמי‬ Steinberg 1994, 115.

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only devotion to a big family but also ostensibly other typically feminine roles, such as care for ageing parents, running the household, and supporting the husband’s vocations, depend on a careful planning of personal resources. To better understand the normative interplay between harsh normative language and legal tolerance, it is worth studying a responsum from 1958, which looms large over all contemporary halakhic teachings on contraception.79 In this responsum, Rabbi Feinstein addresses the problem of women for whom pregnancy poses a health risk. In the first part, Feinstein expresses objection to the discussion of the topic in “periodicals,”80 especially in the United States, where licentiousness and promiscuity are rife. In such social circumstances, it is better to conduct the halakhic deliberation within rabbinic circles and not in the mass media, which is read by numerous godless and self-deceiving people. Second, Feinstein refers to a testimony according to which, in Lithuania (before the Holocaust wiped out Lithuanian Jewry), it was customary to allow women to space pregnancies for two years. Feinstein retorts that he has never heard of such a thing, and that, regardless of such testimonies, this is a matter of abstract law, to be decided by the independent judgment of learned rabbis. In my view, we witness here the impact on Halakhah of the disruption of Jewish society during the Holocaust. Because oral traditions have been lost and dispersed beyond reconstruction, Halakhah retracts from the fabric of real communal life and becomes constrained in the realm of abstract, universal (i.e., noncontextualized) legal reasoning. In the next chapter, we will see how Feinstein himself laments the severance of the oral transmission of feminine self-care. In this case, concerning contraception and birth spacing, we are dealing with a way of life that also involves men, since the decision is, ideally, the couple’s. Rabbi Yehuda Henkin testifies in his own responsum that his grandfather, who was no less authoritative than Feinstein, allowed women to defer pregnancy for up to five years following the birth of a child, so as to allow them to dedicate sufficient energies to the child’s upbringing until he or she went to school.81 This testimony is of special importance because it came from Rabbi Elijah Henkin (1881–1973), who was educated in Eastern Europe and was an active rabbi there from 1905 until after the Bolshevik Revolution of 1917 that forced him to emigrate to America. He knew firsthand the traditional way of life followed by the largest Jewish Diaspora before its disruption by the world wars.82 It seems that Feinstein’s 79 80 81 82

Feinstein 1961, mark 64. ‫ירחונים‬ Henkin 1981, Part 1, mark 30. The enormous and unprecedented scale of the annihilation caused by the Holocaust notwithstanding, the dissolution of the East European traditional communities was evident already in the wake of the First World War. It was difficult for Feinstein to obtain reliable testimonies of the traditional way of life in Vilnius because it was already destroyed in the Great War. Although it was not in the fighting zones, hunger and epidemics wiped away nearly 10 percent of Vilnius Jewry in the winter of 1916–1917 alone. The rest of the war was not much better (Kleuzner 1983, 121).

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dismissal of the oral testimony results from skepticism and confusion regarding the realities of daily life in a vanished world, not from principled denial of the relevance of actual practice to such matters. After expressing objection to the public discussion of contraception Feinstein repudiates evidence from oral testimonies on rabbi’s teachings in favor of rigid halakhic formalism, rooted in the talmudic sources. He argues against Sofer’s contention that the use of mokh is limited to postcoital cleansing and affirms that, whenever there is a risk to health, it is mandatory to use mechanical contraception. He also rejects attempts to differentiate high-risk from low-risk situations. Feinstein’s interlocutor suggested an argument derived from the permissibility of anal sex in Jewish law. If the Torah permitted waste of semen in the gratification of “ugly lust,” it should certainly tolerate mechanical barriers in situations of health risk. Feinstein dismisses this argument, not allowing considerations of vice and virtue to enter the legal discussion. Since, according to Halakhah, uninterrupted ejaculation inside the body of the woman is not a waste of semen, any analogy from anal intercourse to mechanical contraception that creates a barrier between the semen and the body, is invalid, even if morally appealing. Feinstein concludes his responsum using a rare testimony regarding his own personal style of counseling on the issue: In fact, when I happen to face such a question, I inquire and investigate a lot [in order to see] whether it [pregnancy] is really dangerous for the woman, whether the husband and wife are Godly, and modest, and are not likely to be too lax with the law, and whether [I can trust them that] others not know that I am lenient with them, so as to prevent others from taking license inappropriately. And only for a short period of time [do I give them permission to use contraceptives], and again [they come to me for extending the permit] if they need. This is how an expert rabbi should deal with the matter, while ordinary83 rabbis must not instruct on this grave issue.

We may see how an authoritative rabbi hedges his leniency with confidentiality and implicates purely legal issues with questions of interpersonal trust and a bearing on public morals. The contrast of presenting a severe face to the general public while being mild and considerate in the private, confidential counseling of pious people in plight is the key challenge to the integration of Jewish law and ethics with bioethics and bio-law, which treasure transparent discourse mounted on a framework of abstract, generalizable principles. This contrast or “double talk” is deeply rooted in the Talmud and Jewish law. On a few occasions, the Talmud says “this is the law, but it is not to be taught [publicly],”84,85 owing to considerations of slippery slope interpretations or 83 84 85

‫סתם‬ .‫הלכה ואין מורים כן‬ E.g., Shabbat, 12b; Gloss Rashi on T. Menahot, 36b.

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misinterpretation of the law by simpletons.86 In a treatise on the nature of Halakhah, Rabbi Feinstein explains that the legal authority of the sage is limited only to the specific case brought to him and only if he has the power to resolve the issue by means of appropriate knowledge and rational argumentation.87 Such a ruling has the power of case law only for people – including sages – who cannot resolve the issue independently. If they can resolve the issue independently, their rulings on similar cases, even apparently identical cases, become a “halakhic truth” for those particular cases, as much as the first ruling became the “halakhic truth” for the case it had in hand.88 According to Feinstein, the universality of Halakhah does not operate from any single case to other, sufficiently identical ones, but kaleidoscopically, as impartial and prudential projections from objective principles to different cases. Moreover, Feinstein believes that when a sage is capable of resolving a halakhic question, he has a duty to do so. The sages rebuked uncritical reliance on rulings found in the literature.89 However, it seems that when a rabbi acts in his role as a leader, not as a halakhic decision maker, he may instruct people according to principled considerations of public morals and reinforcement of religious values. The first two functions – full rational resolution and a “caselaw” sort of emulation – reflect the role of the sage as a judge of religious law. The third function, concealment of Halakhah for the sake of public morals, is borne out by the power of the sage to act as a temporary legislator. The fascinating point here is that Feinstein does not expect obedience to his rulings as a halakhic decision maker or judge; rather, he encourages criticism and accommodates a plurality of halakhic truths on similar cases. However, he and other rabbis expect obedience when they issue non- or quasi-legal directives in the name of public morals.90 For a fuller understanding of contemporary Halakhah, Feinstein’s words are illuminating: Those who do not know how to resolve [halakhic questions] by themselves, should follow the majority opinion [and] the less lenient ruling,91 even if there is a minority opinion.92

Especially under the pressure of secularism and reformation, and with the sense of spiritual degeneration following the Holocaust, the average Orthodox sensibility is of a lack of capacity to resolve halakhic questions independently. Some rabbis are more daring. Many Zionist and university-educated rabbis operate with a sense of religious, national, and scholarly revival that explains their bold work on issues such as organ transplantation and infertility medicine. This spirit is found in the creative 86 87 88 89 90 91 92

Hulin, 15a. ‫שהוא רק בדבר שבידו להכריע מגמריה ומסבריה‬ Feinstein 1971, 128. Feinstein 1960, 186 (mark 101:5). See Benjamin b. Mattathias 1539, mark 303. ‫לחומרא‬ Feinstein 1971, 127.

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139

discourse on anatomical study in the early 1950s (Chapter Five), but it is fast disappearing from Ultra-orthodox circles. Their great halakhic mentor, Feinstein, encouraged independent criticism of his rulings; he was disposed against people who obeyed these rulings as manuals for life. But if one judges oneself as incapable of resolving halakhic questions independently, even according to Feinstein, one has to obey the rabbinic leadership, and opt fro the more stringent opinion. Because it is like a potion and not a mechanical barrier, contraceptive pills, which first appeared on the market shortly after Feinstein’s 1958 responsum rendered the legal aspects of the halakhic question of contraception much simpler. In actuality, the association of “the pill” with the sexual revolution and widespread talk on population control merely aggravated the problem of trust in the proper intentions of people and their commitment to confidentiality. It is noteworthy that one of the most popular and reprinted (last edition in Israel, 2009, with rabbinic endorsement) self-help book for pious Jews, originally published in 1709, prescribes a fertility potion and a contraceptive one side by side. Both man and woman must drink the fertility potion (made from ashes of rabbit’s entrails), whereas only the woman is instructed to wear the contraceptive device (made of rat’s entrails). If the woman wishes never to conceive, she is instructed to drink sheep’s urine.93 The judicious use of such potions is represented as an ordinary and broadly known aspect of the life of pious Jews.

infertility treatments In his earliest responsum on contraception, in 1935, when he was still a young rabbi in Russia, Feinstein explicated the principle governing contemporary halakhic discourse on fertility. He maintains that God’s expectations and the conjugal duties are confined to ordinary, natural levels of risk and the suffering involved in sex and procreation.94 In the face of above-average hardship, a woman may seek her husband’s consent to abstinence or file for divorce with impunity, but she is more likely to receive permission to use contraception in order to preserve the family and the holy act of marital sex. The Talmud gives permission to divorce a wife without paying a fine only after ten years of childlessness.95 Many have divorced; many have not. Some very famous rabbis remained childless. Among those who remained childless, one may count the twentieth-century leaders Lubavitcher Rebbe Schneerson, Rabbi Karelitz (Hazon Ish), and Rabbi Zvi Yehuda Kook. In contemporary biomedicine, a healthy couple is commonly defined as having a fertility problem after one year of nonconception despite reasonable attempts. So, what is expected of the woman during the nine years that pass from the biomedical labeling of her situation as “a fertility problem” and the time 93 94 95

Simner 1875, 118. Feinstein 1961, mark 63. Yevamot, 65b.

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when Halakhah empowers the husband to act on this label? The couple has the liberty to undergo medical tests and treatments, some of which are very painful and risky. The aegis of biomedicine and the availability of infertility care as part of the publicly funded “health-basket” of medical services in Israel (as well as in many American and other insurance plans) confer on infertility medicine the status of a basic healthcare service. Not going along with medical advice to progress to in vitro fertilization (IVF), for example, may be perceived as akin to noncompliance with the duty to procreate. Feminist scholars are divided on the question of whether the strong drive to have children stems from false consciousness produced by patriarchal interests or authentic feminine values that are vulnerable to suppression by men’s interests (e.g., interest in the employed labor of women rather than in reproductive life).96 The same debate is relevant regarding Orthodox women as well. However, lack of cultural respect for single lifestyles, same-sex relationship, late marriage, and low nativity rates certainly constrain the options of many Jewish women. Some rabbis tend to object to artificial interventions in the process of human procreation other than as a last resort in overcoming sterility. They believe that the loss of “holy intimacy” associated with extracorporeal conception is spiritually detrimental to the family and the child.97 Rabbi Dr. Halperin, whose areas of specialty are infertility medicine as well as medicine and Halakhah, and who is the ethical advisor to the Israeli Ministry of Health, expresses worries that certain aspects of artificial reproduction technologies might erode “family values.” However, acknowledging the significance of childbearing to Jewish life and acknowledging that IVF and surrogacy do not violate any religious law, Halperin concludes that society must not interfere with women’s access to IVF. Halperin interprets the silence of the late Rabbi Auerbach with regard to IVF as an indirect expression of encouragement.98 A man who was engaged to be married was diagnosed with cancer and wanted to freeze his sperm so as to be able to have children with his future wife. Rabbi Elyashiv opined that since the man was not yet obliged to act on the duty to procreate (He was not yet married), he had no permission to issue semen. Rabbi Auerbach, on the other hand, ruled that unmarried men must also strive to have children, but, nonetheless, “such an action” is “against the worldview of the Torah.99,100 The rabbis have always been profoundly averse to induced ejaculation, an act that they perceived as “ugly.” Moral revulsion is not an independent factor in Jewish law, but it may delay or otherwise hinder formal permission.

96 97

98 99 100

Irshai 2012, chapter 5. Rabbi Isaac Zilberstein, “Medicine & Halakhah,” printout #138. (Undated); Jakobovitz 1975, 248–249. Halperin 1996. ‫נגד השקפת התורה‬ Avraham 1993c, 187.

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A responsum from 1894 discusses a man who wishes to have his semen tested after twenty years of infertile marriage.101 In the early 1890s, another prominent rabbi gave permission to issue semen for medical examination in a case of sixteen years of infertile marriage.102 A third responsum, from 1896 deals with the same problem.103 The clustering of the formative responsa on the examination of semen within a time range of a few years, 1894–1896, calls for attention. These responsa come from three distinct East European communities (Zeimelis, Lithuania; Sochaczew, Poland; and Sa˘ pânt¸ a, Romania) when the only kind of medical exam for sperm was the Sims method of aspirating sperm from the vagina postcoitally.104 In 1891, Alois Lode from Germany published an article on sperm counts directly obtained from animals and men. But a standardized and established method for counting and evaluating sperm was published only in 1929.105 Perhaps Lode’s publication stimulated doctors with microscopes to seize on a business opportunity. It is interesting to note that all three rabbis refrain from questioning the scientific validity of the exam proposed by “expert doctors” and its reception by the non-Jewish public, which was also quite averse to masturbation. Sims himself won notoriety for performing experiments on slaves he owned for this purpose;106 his postcoital sperm exam was rejected for lack of propriety. Victorian doctors opined that “Better let ancient families become extinct than keep up the succession by such means.”107 In this historical context, the rabbinic approach to male infertility was both naïve and liberal. In the second half of the twentieth century, Rabbi Weiss from Manchester ruled that a man should wait ten years before he may issue semen for medical analysis.108 Rabbi Feinstein set the waiting period at five years.109 In 1952, Rabbi Karelitz gave permission for testing semen in a case of two years of infertile marriage.110 Rabbi Waldenberg was not in favor of setting a predetermined period of time because clinical considerations and other circumstances vary from couple to couple. Perhaps in response to the growing success of biomedicine and its increased accessibility to Jews, we find the precipitous decline from semen exams following twenty years of infertility, to two years, and even to the abandonment of a halakhically set threshold. However, the growing rabbinic openness to testing semen does not entail openness to issue semen before the woman has passed all the relevant exams.111 101 102 103 104 105 106 107 108 109 110 111

Burnstein 1912, mark 83. Schwadron 1973b, mark 26. Kook 1967, mark 32. Sims 1869. Macomber abd Sanders 1929. Ojanuga 1993. Heaton 1956. Weiss 1993, Part 3, mark 108; Engel 1938, mark 75. Feinstein 1961, Even HaEzer, mark 16. Zalmanowic 1982, 84. Waldenberg 1985b, mark 51, gate 1, chapter 2.

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In addition to the contraction of the period of passive waiting in the face of unfruitful marriage, the new rabbinic attitude breaks away from earlier practice in another significant manner. Even when a fertility problem is diagnosed in the woman and two years have passed without pregnancy, the medieval rabbis advocated waiting one more year before divorce, because “Heaven is merciful.”112 Well aware of the psychosocial factors involved in sexuality and fertility, the rabbis advocated attention to martial issues prior to radical action.113 Contemporary rabbis do not send people to divorce, but, following two years of childlessness, their published opinions do not advocate hopeful waiting and marital counseling as transitory substitutes to infertility medicine. The halakhic protection of the natural flow of semen encourages women to use oral contraceptives despite the possible side effects and risks involved. Indeed, the side effects are almost always mild and the risks very rare, but the use of mechanical barriers are even less burdensome on health. Because of their ubiquity, the cumulative effect of oral contraceptives in a large population is not negligible. Gender inequality becomes even more troubling with regard to infertility medicine. Some routine exams are invasive and very painful (e.g., X-ray visualization of the uterus and tubes following the intravaginal insertion of contrast media – a very noxious procedure). Because at least one-third of infertility problems are on the male side, professional guidelines recommend testing semen before, not after, submitting the women to invasive and expensive procedures. The cited rabbis do not deliberate the personal anguish, social ramifications, and even discomfort and risk associated with the medicalization of fertility. Currently, many Jewish couples embark on infertility treatments following only a few months of waiting or following diagnosis such as polycystic ovary syndrome, which, nevertheless, permits substantial rates of spontaneous conception. A graver issue still is the aggressiveness of infertility treatments. The higher doses of hormones given, the higher the chances of both achieving pregnancy and encountering medical complications. The more IVF embryos implanted in the uterus, the higher the chances of obtaining a viable pregnancy – but also, the higher the incidence of multifetal pregnancies, which carry the risks of prematurity, need for fetal reduction, and increased maternal morbidity. Some countries, such as Belgium and the United Kingdom, regulate those issues.114 But the overall trend in many countries, especially the United States, is of growing acceptance of infertility procedures as integral to proper medical care. Many states oblige insurers to provide coverage for IVF and other costly procedures. Where it exists, the legal definition of infertility deserving of medical care is failure to conceive after one year.115 Rabbinic silence on the matter 112 113 114 115

Tosafot on T. Yevamot, 65b (last lines on the page). Moshe b. Isaac Alashkar 1956, mark 89. Mayos 2004. Quinn et al. 2011.

Fertility and Very Early Prenatal Life

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should be attributed to Halakhah’s tendency to respect “the way of the world” in professional and lay matters. Halakhic leaders find women’s consent to treatments sufficient. However, in contrast to terminal care, treatment of neonates, organ transplantation, and many other areas of bioethics, infertility medicine operates under considerable pressures from an aggressive and loosely regulated private sector. The rabbinic institute for supervising and advising infertility medicine – Pu’ah – thrives on this industry as well. Halakhists tend to increase regulation rather than question the basic presumptions and social reception of infertility medicine.

artificial insemination and fertilization Technologies of fertility have posed a new challenge to Halakhah. For the first time in medical ethics, rabbis had to deal with a completely new kind of actions in a domain that is extremely sensitive to religious regulation. The internal logic of Halakhah, its positivism, approaches novelties with openness, but the religiosity of many people and rabbis cannot help but react strongly to the manipulation of sexuality and fertility. This is most evident in the case of artificial insemination with the husband’s sperm, which almost all rabbis approve of. Why not? Indeed, the negative opinions are interesting to explore. In late nineteenth century, Rabbi Halevi discusses one case of eight years of infertile marriage and another of a short cycle that required insemination before the woman could perform her ritual bath. The rabbi’s objection is typical of the reactionary-conservative response to secularism, science, and a diminished sense of halakhic confidence. He writes that because it is impossible to trust that the doctor would inseminate the woman (with her husband’s semen), the emission of semen is considered wasteful, that there are “too many [legal] doubts” to settle, and that “if we permit such a thing, [people] will be misled, and it might encourage the wicked.”116,117 In 1958, Rabbi Hada’ya invoked kabbalistic arguments against any induced emission of semen and its manipulation. Knowing that, in the face of a human need, Kabbalah cannot pose a halakhic argument, he writes, I add and say, if we open a tiny crack of permission, then [people] will take excessive liberties, and some serious errors might ensue. It may happen that the doctor find the sperm unworthy, and the woman who wishes for children will ask the doctors (Sadly, they are revoltingly secular [and] criminal118) to put in her womb a stranger’s sperm . . . . I add and say, if such a permission becomes widespread, many will jump ahead to donate sperm in the doctors’ [clinics] and the hospitals, as it happens with blood banks . . . and

116 117 118

.‫ ועל ידי זה ניתן יד לפושעים‬,‫ ואם נתיר דבר כזה יש לחוש לכמה מכשולים‬,‫יש כמה חששות‬ Tannenbaum 1891, part 4, marks 104, 105. ‫רובם ככולם חפשיים עבריינים בשאט נפש‬

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every woman who would complain that her husband is infertile will receive [sperm donation] in her womb. Some such donations will produce bastards.119

This is the same rabbi who was quite liberal concerning anatomical study.120 Since the treatment of the dead is as mystically sensitive as the manipulation of sperm, it is evident that the key factor operating between the lines is public morals. In the same year, 1958, Rabbi Auerbach published a much less censorious opinion. In contrast to Rabbi Uziel, who, in 1935, wrote that a child conceived through artificial insemination is not considered as belonging to the father,121 Auerbach did not prohibit insemination from the husband, nor did he sever the paternal link, but he ruled that one cannot fulfill the duty from the Torah to procreate by means of artificial insemination.122 At first glance, this is an odd position. We may understand Uziel’s ruling as expunging the child from the stigma of bastardy. But if Auerbach does not try to prohibit artificial insemination, why lessen the religious link between father and child? It seems that Auerbach wanted to help infertile couples, but he probably also intended to syphon off spousal pressure to accept infertility treatments.123 As a matter of fact, we find here the creation of a halakhic space of choice, a new autonomyenhancing attitude, which is very similar to Auerbach’s policy on the care of premature neonates124 and Feinstein’s position on clinical decision making by incurable patients.125 In all of these cases, the twentieth-century rabbis created spaces of low-intensity obligation, allowing patients to choose from a set of more or less halakhically equal alternatives. Their choices will have the power to create halakhic duties and remissions, such as permission to desecrate the Shabbat. Put in other words, the rabbis have extracted patients from the dyad of duty–permission (e.g., the duty to save life corresponds with the permission to desecrate the Shabbat; the duty to procreate corresponds with the permission to issue semen for medical exam) and empowered people’s choices to create corresponding leniencies. This expansion of autonomy – however limited – is not accompanied by rabbinic discourse on its exercise; for example, when it is advisable to hurry infertility treatments and when it is better to wait and how such decisions are ideally made. If Auerbach’s intention was to attenuate intramarital pressures, it did not reach far. In 2001, Rabbi Shlomo Dichowski, who was then a judge in the Supreme Rabbinic Court of Israel, wrote that although spouses are not obliged 119 120 121

122 123 124 125

Hada’ya 1981, Even HaE’zer, mark 10 (p. 139, right column). P. 194. Uziel 1935, mark 19. This position might have been inspired by a struggle against childless women who – often with the encouragement of their husbands – sleep with other men in order to beget a child for the married couple, a sort of primitive surrogacy. See Ta Shma 1968. Auerbach 1958. Sinclair 2003, 75. P. 197. P. 244.

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to undergo infertility treatments, refusal to do so is a reasonable cause for divorce.126 Jewish law allows for no-fault divorce; usually, however, the rabbis discourage divorce, and the marriage contract levies fines on the divorcing party unless motivated by fault. When authoritative rabbis declare a certain choice as a valid reason for divorce, they convey a powerful message regarding the ideals of marriage and “good wifehood.” Reflecting back to the first round of responsa from 1958, we may find Feinstein’s contribution groundbreaking.127 Before I explore the halakhic message, I wish to scrutinize the circumstances of the responsum. The question was brought to Feinstein by a rabbi’s wife in the name of a woman who was too shy to ask. Feinstein responded that he had investigated the matter with doctors, who were certainly men, and learned about the practice of mixing the husband’s sperm with a donor’s sperm (a so-called “booster”): This cheating is done in order to calm the spirit of the husband, [by making him] think that the child is his. . . .

Although Feinstein appears uncritical of this deceitful paternalism, it is clear that Hada’ya’s accusation was not prejudicious. In his halakhic discussion, Feinstein explains that the taboos on fornication and adultery cover only intercourse and no other reproductive activity. He dismisses the notion of “artificial fornication,” which some rabbis used, as oxymoronic. According to Feinstein, the real hurdle to gamete transfer is the tracing of lineage in a manner that prevents future incest. Hence, he recommends insemination from a non-Jewish male donor, so as to avoid the risk, however statistically remote, of this child marrying a genetic kin in the future. Auerbach has arrived at the same conclusion: insemination from a non-Jew is “ugly” but not prohibited, and the child’s status unblemished.128 Despite his incontestable authority, rabbis, accompanied by the lay Jewish media, criticized Feinstein ferociously. For reasons unknown to me, the younger rabbi, Auerbach escaped such censorious attention. In a long critical letter to Rabbi Feinstein, Rabbi Breisch wrote: Is it possible that a renowned decisor would permit something so revolting and disgusting? It is something the Catholics and their leaders have forcefully attacked, forbidding such vile actions, which resemble the ways of Egypt and Canaan with their abominations. Should we, the precious and chosen people, permit something as revolting and disgusting as this? Is it not the greatest desecration of God’s name?129,130

Feinstein wrote back a very long and detailed defense of his position, concluding: 126 127 128 129 130

Dichowski 2005. Feinstein 1961, mark 71. Auerbach 1958. ‫חילול השם‬ Breisch 1966, mark 45 (Irshai’s translation).

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Jewish Bioethics

His Honor will see [from my response] the truth, that there is no justification for a legal prohibition [on heterologous artificial insemination], however, after all this, when I had [to deal] once with such a case, I did not give permission.131

Rabbi Breisch presented the correspondence to Rabbi Yoel Teitelbaum, leader of the anti-Zionist Satmar Hasidim, who was a halakhist and the hassidic Rebbe of Breisch. Teitelbaum released a chain of responsa on the matter, vigorously mounting the halakhic opposition to sperm donation.132 Teitelbaum radicalized the debate by arguing that children conceived by sperm donation are bastards and that the couple must divorce.133 This is because, according to Jewish law, adulterous sex on behalf of the woman creates a permanent prohibition on future sex with both husband and lover (i.e., in case she divorces the husband and wishes to marry the lover), and the ensuing child is a bastard – the worst legal stigma and disability in Jewish law. Feinstein avoided direct confrontation with Teitelbaum. But we can trace out his legal reasoning from a letter he wrote in 1962, in response to the harsh attacks he had already been subjected to then.134 Feinstein vigorously defends the independence of halakhic judgment and its commitment to its own internal parameters of normative truth. Then he classifies the objections to his rulings as “external” to Halakhah. In his 1958 responsum, Feinstein cites medieval and early modern halakhic literature. The chief source is a prohibition on a woman to lie in a man’s bed lest semen he has left on the bed-sheets impregnate her, and the resulting child might unknowingly commit incest by marrying his or her kin.135 From this law, one may infer that the only halakhic problem with the asexual introduction of foreign semen is confusion of lineage. From this point, two narratives unfold. The first is the logical reconstruction of two extremely incompatible legal positions – Feinstein’s and Teitelbaum’s. This would be the internal legal analysis. The second is the dissemination of the permissive position in a culture that opts for the stricter position, at least when serious religious taboos and values are at stake. This would be the external or social analysis of the legal development. Feinstein’s contenders maintained that one must not extrapolate from accidental insemination to deliberate action and from an extremely rare coincidence to a routine procedure. They also cited Nahmanides’s and Ibn Ezra’s glosses on the Torah as evidence that artificial insemination counts as adultery. Feinstein dismisses this evidence because gloss literature has low halakhic authority. He 131 132 133 134

135

Cited in Breisch 1966, mark 52. Teitelbaum 1982, marks 107–110 (written in 1965–1966). Teitelbaum 1982, 408. Feinstein 1964, Even HaEzer, mark 11; Feinstein’s interlocutor, Moshe Haim Ephraim Bloch, was a publicist with a tendency to vituperative style who was accused repeatedly of publishing fake rabbinic documents. This published responsum originated in the handwritten copy Feinstein kept. Feinstein also edited this collection of responsa. This and the other sources are discussed in length by Sinclair 2003, 78–85.

Fertility and Very Early Prenatal Life

147

ignores the argument distinguishing accidental from intentional insemination, and sets aside a few medieval halakhic sources that are incompatible with his judgment. Even though space is too short to delve into the full range of argumentation, we may observe that, for Feinstein, any reasoning that is not deductive inference from early halakhic sources may qualify as “external” consideration to Halakhah proper. Such strong legal formalism allows him to issue rulings motivated by public morals. Put in other words, Feinstein’s zeal for legal purism is complemented by an openness in steering the public away from the halakhic loci of lenience, without blurring the distinction between Halakhah and the pastoral role of the halakhist rabbi. However, as we will see in the discussion on abortion, Feinstein never said that there could be only one deductively cogent conclusion to a halakhic question. He never gainsaid the primacy of personal transmission, going back through generation after generation of sages, all the way to “Sinai.” Because many such transmissions were lost owing to the Diaspora and similar adversities, the second best alternative is to research directly the formative sources, mainly the Talmud. In other words, according to Feinstein, second to a reliable transmission “from Sinai” and prior to respect for case ruling comes logical inference from formative sources. Hence, a strong argument need not be put aside if some medieval and nonhalakhic sources do not fit. As we will immediately see, Teitalbaum thought that the original text of the Talmud has been contaminated by errors and that virtually all of the medieval sources must agree (or, at least, not contradict) with a lenient ruling on a “sensitive issue.” Teitelbaum’s responsa articulate a sort of halakhic “precautionary principle” in sensitive matters such as sexuality. Unless all reasonable doubts have been clarified, any interference with sexuality and fertility is, by default, prohibited. Because prohibition is the default stance on such matters, attention to extrahalakhic sources, such as gloss literature, has the power to intercede, especially when aided by the extrahalakhic factors of natural morality and revulsion driven by religiosity. Teitelbaum writes: How is it possible to give permission pertaining to such a horrible prohibition136 against insemination by semen of another man, something that is not discussed in the Talmud and medieval sages?137

This is a sort of “reverse positivism,” in which a novel act is prohibited unless there is positive basis for permission in the fundamental sources of Halakhah. Teitelbaum also objects to Feinstein’s deductions from the Talmud. The problem does not lie in the sage’s power to infer the law directly from the formative sources, as Feinstein claims,138 but in the numerous variations among different 136 137 138

‫באיסור נורא כזה‬ Teitelbaum 1983, 410. Pp. 169–174.

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Jewish Bioethics

versions of the Talmud.139 According to Teitelbaum, reduced certainty in the authenticity of the talmudic texts and the “sensitivity” of domains such as sexuality compel halakhic parsimony that would not endorse a novel practice unless there is no trace of doubt regarding its probity. Teitelbaum knew that Rabbi Luria, Rabbi Berlin, and other very authoritative rabbis encouraged halakhic study that begins with direct engagement with the formative sources. This is probably why he mentions the severity of the issue at stake. He might have found it excessive to issue practical rulings to the public on sexuality without an explicitly permissive source, and especially when other sources, however minor, seem to disagree. I contend that mainstream Orthodox Halakhah may be characterized as mildly reverse positivism. Lack of explicit prohibition may no longer qualify as evidence of permissibility, but when a rabbi finds an earlier source in support of a permissive ruling, it may suffice to construct on it a rational argument.140 Put in other words, Orthodox Judaism is traditional in the sense that it seeks an authoritative traditional source to back up practice. At least with regard to “sensitive issues,” Ultra-orthodox streams would insist on not finding a traditional source that invites a contrary interpretation. They will also be more reserved regarding practices that are associated with antireligious, anti-Jewish, and licentious ideas and habits. Virtually all streams within Orthodox Judaism approach science, technology, and the market system as value-free. In sum, at the heart of the legal debate is a legal question – whether the essence of sexual taboos is aversion to illicit copulation or to out-of-wedlock insemination. The early sources do not go in either direction. Hence, the difference between Feinstein and Teitelbaum lies in their opposing approaches to practical reasoning in Halakhah. Although being open to strict policies, Feinstein maintains faith in the power of sages to reach authentically halakhic truths by means of reliance on the available formative texts and sound argumentation. Rabbi Waldenberg, who is much less reactionary than Teitelbaum and Breisch, puts his faith in naturalist reasoning. He wrote that because all of the people involved deliberately introduce foreign sperm into the woman’s body, the child is probably “illegitimate.”141,142 The debate escalated when donations of sperm and egg became possible by means of IVF. The first IVF child was born in the United Kingdom in 1978; the first Israeli one, in September 1982. In 1981, the general manager of the religious hospital Shaarei Tzeddek, in Jerusalem, asked Rabbi Waldenberg about the halakhic permissibility of the procedure. Waldenberg first urges “infertile” couples to wait at least ten years and to do everything possible to conceive 139 140 141 142

Teitelbaum 1983, 415. Maimon 1956, 113. ‫ל א כש ר‬ Waldenberg 1985b, 51:4. This essay was published in 1967 as a revision of a responsum from the early 1950s.

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“naturally.” Then, he harshly condemns the practice of IVF with either sperm or egg donation (i.e., heterologous IVF) as an abomination of confusing progeny. He writes: I was shocked and trembled when I read your letter, informing me, as a matter of fact, that the ministry of health permits heterologous IVF. With a roaring heart I call upon Heaven to protest against this. If this is so, the rabbis who prohibited [all forms of IVF] without giving any reasons were right, because they preempted any possibility for argumentation and negotiation. . . . If we start accepting this we will have to worry about ensuing immoralities [i.e., a “slippery slope” argument], and we might assist evil doers. “Who is wise? He who foresees the future.”143,144

Despite these harsh words, the first thirty years of this future mark a massive acceptance of infertility medicine by Orthodox Jews and most Ultra-orthodox circles. Moreover, once the practice had been widely accepted, the gate was opened to its use in other situations of compassion, for example, in the permission rabbis have given to inseminate either a single woman or a married woman in need of sperm donation with frozen sperm from a man who died of cancer.145 Rabbi Elyashiv wrote that if the sorrow of childlessness is experienced as risk to self (probably mental health), a woman may undertake “a little risk”146 in the context of infertility treatments.147 In 2007, Rabbi Cherlow published an e-responsum (an evolving genre of rabbinic literature) in response to an anonymous thirty-six-year-old unmarried woman. The rabbi wrote that because she was nearing forty and despite her best efforts still single, she might have a child by means of IVF.148 This bold ruling ignored a censorious opinion issued fifteen years earlier by Rabbis Auerbach and Neventzel. These rabbis acknowledged the legal opening for such an action but opined that there is no duty to cooperate with this kind of choice.149 Whereas Rabbis Neventzel, Auerbach, and Avraham, who cite them, discuss with a male gynecologist the conduct of a woman and how to treat her, Cherlow engages himself with the woman, even though only at the level of compassion. Pointing to Rachel’s plight in the Bible, Cherlow concedes that the agony of barrenness might be worse than death.150 It is also noteworthy that the Israeli Supreme Court obliged the provision of infertility treatments without discrimination on the basis of marital status and sexual orientation.151 143 144 145 146 147 148

149 150 151

T. Tammid, 32a. Hada’ya used the same expression in his responsum on artificial insemination. Halperin 2006. ‫להסתכן קצת‬ Silberstein 2005, 194–195. http://ypt.co.il/show.asp?id=22400 and Cherlow’s response to his critics at http://www.ypt.co.il/ show.asp?id=22451. Counseling (pastoral advice) emerges in this novel genre. Englander and Sagi 2013. Avraham 1993c, 181. Genesis 30:1. Denial of sexual satisfaction also produces death wishes – Yalkut Shimoni, Judges, 70. HC 998/96, 2078/96, 2444/96 Weitz et al. v. Minister of Health (decision of February 2, 1997).

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Jewish Bioethics

Most practicing Jews seem to follow Rabbi Neventzel’s short retort to Waldenberg, in which Neventzel maintains that technologies of infertility are no more “unnatural” than artificial limbs and other medical technologies. Rather, successful use of IVF is the evidence that the married couple is capable of having natural children; they only need “a little help.” Moreover, it is evident that the couple seeks children, not erotic gratification. If they cannot resort to infertility technology, they either will not have children at all or they will divorce.152 It is not clear why Neventzel perceives the gist of the opposition to IVF in the form of a naturalist argument, and why he ignores the numerous rabbinic responsa advocating hopeful perseverance prior to medical interventions in fertility. Neventzel misses the thrust of Waldenberg’s conceptualization of desirable fertility, which requires a relational-corporeal dimension. Conception must literally occur within the marital union. Waldenberg clearly distinguishes between “insemination”153 and “fertilization.”154,155 Only the former is part of the spiritual dimensions of human identity and continuity. Precisely because it is possible to have natural progeny by artificial means, it is crucial that insemination occurs relationally. In my view, the power of Neventzel’s short responsum lies in its sensitivity to the religious psychology of Jewish couples facing difficulties of fertility. Whereas people perceive contraception as a means to have sex without responsibility for children, infertility treatments are perceived as solutions to a medical need and acceptance of personal responsibility, even without benefiting from the erotic pleasures. Absent from the rabbinic discourse is acknowledgment of the problematic medicalization of fertility, doctors’ conflicts of interests, and, most worrying, the predicament of many couples, especially women, who are pressured to medicalize their fertility – even femininity – very early (many Ultra-orthodox marry at twenty, thus exposing some of them to infertility treatments at ages as young as twenty-two) and to regard invasive, painful, and risky procedures as part of the cultural construct of marital devotion and religious piety. Still, today, the rabbis are much more aware of “traditional risks,” such as illicit sex or homicide (in the context of transplantation), than of subtler issues such as conflict of interests, medicalization, and bio-power. The sages described the impregnation of a barren woman as analogous to the cure of deafness-mutism, blindness, and madness/imbecility156 – the severest

152

153 154 155 156

Neventzel 1986. At the end of Neventzel’s contribution, the editors cited Rabbi Yosef as permitting IVF only when this is the only option for having a child. They also stated that Rabbi Waldenberg had read the retort and had not changed his opinion. ‫הזרעה‬ ‫הפריה‬ Waldenberg 1986. ‫ שוטה‬In rabbinic law, the deaf (actually mute-deaf) and the insane/mentally retarded are exempt from all duties; they are incompetent. The blind is “worth like a dead person” (T. Nedarim, 64b). The poor and the leper are also “worth like a dead person”; but these are transitory, external conditions. Some male genital deformities were also construed as a severe social handicap (Deuteronomy 23:2).

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disabilities mentioned in Halakhah.157 However, one cannot find in the rabbinic literature a distinction between infertility treatment to childless persons and infertility treatments for the sake of a second, third, and even a fourth child. The first distinction is legal – whether the man has fulfilled the obligation to sire a male and a female. Only the second distinction addresses personal anguish – the sorrows of failed attempts to conceive and the psychosocial implications of a small family in the Jewish Orthodox culture.158 The biblical, naturalist distinction between childlessness and failure to conceive has disappeared. Many Israelis adopt children from poor countries, and convert and raise them as their own children. Since the Talmud grants higher priority to respecting one’s teacher relative to respecting one’s biological father (if he does not educate the child), one may argue that social parenting, spiritual responsibility, and education are more valuable than mere biological parenting.159 Admittedly, the adoption of foreign children has been mired by corruption and abuse of the distant poor, but this does not mean that infertility medicine, experiments on humans, and brain death panels are easier to regulate. At this point, it is worth examining organ transplantation from the braindead as a comparable halakhic case history. Infertility and transplantation services harness cutting-edge technologies in the alleviation of serious medical problems, but at the risk of meddling with the most serious of halakhic taboos – shedding blood, adultery, and confused lineage. At the beginning of the modern medical era, these novelties met opposition owing to lack of trust and worries regarding moral slippery slopes. But younger rabbis labored hard to persuade the older leadership of the overall beneficial value of these practices. Nonetheless, acceptance of infertility medicine by the Orthodox and Ultra-orthodox is endlessly greater than acceptance of organ donation. Because bastardy and illicit sex are so seriously tabooed in Judaism, I am not happy with an explanation based on the severity of the taboo on bloodshed. Rather, the commitment to save life is much stronger than the value of procreation. Divorce and remarriage is a viable, even if undesirable, option for many people trapped in an infertile marriage, but there is no alternative to transplantation. I posit that Feinstein’s early, unsuspecting, and positive approach to heterologous insemination laid the foundation for the acceptance of infertility medicine by the rabbis. As we will see in Chapter Nine, Feinstein’s initial response to transplantation from the brain-dead was overtly distrustful, negative, and politically orchestrated (he deliberately hid from the public the arguments in favor of 157 158

159

Genesis Rabbah, 53:12. Israeli national health insurance covers IVF, up to two children, to any couple who have no children (even if each has children from other relationships) and to every single woman who wishes to be a single parent. The women must be between 18 and 54 years old. http://www. health.gov.il/Subjects/fertility/Pages/IVF.aspx (Website of the Israeli Ministry of Health); Shalev and Gooldin 2006. M. Bava Metzia, 2:12.

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the practice). By the time transplantation had gained more trust and understanding, it was too late to change the atmosphere. Feinstein and other rabbis of his generation were dying out, just at a time when they might have publicly endorsed transplantation. It may be observed that when the ultimate goal is meritorious (having children or meeting a “medical need”) and risk of sexual licentiousness is low, the conservative reactionary armament of arguments cannot overcome halakhic legal formalism. But important moral issues remain unresolved. It is striking to observe how many Orthodox and Ultra-orthodox Jews, even when exempt by a religious duty to procreate, nevertheless commit acts that leading rabbis of the previous generation condemned as sexual abominations. In all other domains of religious life, the Ultra-orthodox Jew is quite anxious not to go against even a minority opinion on fundamental matters. He or she will opt to be “on the safe side” and avoid a practice, solely out of respect for a minority opinion. This tendency is usually considered a special kind of piety. But apparently not in the realm of reproduction. Moreover, precisely because the regulation of the “end of life” and of transplantation medicine is centralized, the refusal of the Israeli Medical Association to submit the process to rabbinic supervision undercut cooperation with rabbis who legally sanctioned the practice. But, both in Israel and abroad, there are many infertility clinics – some are private; all are in fierce competition. To expand activity and attract Orthodox families, for whom fertility is a cardinal value, many such clinics are happy to submit themselves to rabbinic supervision, including intensive and round-the-clock monitoring, which are considered “super-kosher” by the most suspicious religious groups. It is not unlikely that, had the medical establishment accepted similar rabbinic supervision over brain death panels, there would not have been any shortage of organs for transplantation in Israel. While the halakhic discourse on infertility medicine hovers over the question “how to do it,” the halakhic discourse on organ transplantation from the brain-dead is locked in the question of “whether to do it.” In the face of “whether” questions, the Ultra-orthodox almost always default to passive inaction.

the status of extracorporeal embryos and anthropoids Following the science of the time, the Talmud declares that during the first forty days of pregnancy the embryo is “mere water.”160,161 Consequently, Rabbi Bleich proposes that preembryos lack moral status in Halakhah because they are too tiny to be detected by the naked eye.162 Rabbi Halevi and Rabbi 160 161

162

‫מיא בעלמא‬ Yevamot, 69b. The talmudic rabbis saw in the formation of a solid body with a distinct shape (an equivalent to a golem possibly) the hallmark of creation, Leviticus Rabbah, 14:8. Bleich 2002.

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Sternbuch ruled that the prohibition against abortion pertains only to the termination of intrauterine life and not to extracorporeal embryos.163 This is an illuminating example of Halakhah’s empiricist and relational approach, even at the expense of obvious metaphysical considerations. The rabbis ask whether pre-embryos are detectable by the naked eye and what kind of relationship they have with persons, ignoring completely the question – “what kind of creatures are they?” Consequently, extracorporeal embryos in vials bear no special status in Jewish law. They are thrice removed from moral persons: the extracorporeal embryo is not a born human being, it is typically younger than forty days, and it does not develop inside a woman’s womb. Accordingly, the Orthodox rabbis agree that preimplantation embryos that are not destined for future implantation deserve no special respect. We may destroy them, as is the practice in Israel, even in laboratories that strictly conform to religious law. Hence, there can be no objection to utilizing extracorporeal embryos in the context of scientific experiments (pending informed consent of the parents). This is the essence of Rabbi Tendler’s testimony before the U.S. National Bioethics Advisory Commission.164 It is notable that Rabbi Tendler is the son-in-law of the late Rabbi Feinstein, the leader of American Orthodox Jews and the rabbi who took the most severe ruling on abortion, describing it as an appurtenance to murder. Tendler is a professor of biology as well, and he knows very well what preembryos are. Not only do Orthodox rabbis endorse embryonic stem cell research, they also consider it a duty to try to benefit humanity and heal the sick.165 Rabbis Waldenberg and Feinstein wrote that only formed (morphologically human) abortuses need burial.166 These rulings highlight the association between the morphological human body and human dignity. Although I have not found rabbinic discussions on that matter, I infer that if a pre-embryo develops into a formed embryo (in the ninth week) extracorporeally – something that science currently cannot accomplish – then some restrictions on its use may apply, even if it has never existed within a human uterus. To understand this conclusion, we have to examine premodern rabbinic discourse on fantastic modes of creation. In the Jewish sources, a golem (literally: a mute, material shape) is an artificial anthropoid created by means of kabbalistic magic. The folk and mystical Jewish literature contains some stories on the creation of such creatures.167 Even though it is a marginal theme in Jewish literature, it stands in stark contrast to the premodern non-Jewish condemnation and persecution of magic and witchcraft. The rabbis never questioned the probity of such exploits. 163 164 165 166

167

HaLevi 1989; Sternbuch 1987. Tendler 2000. Steinberg 2003. Waldenberg 1970, mark 25, chapter 8; Feinstein 1960, mark 231. My conjecture is that Genesis 1:27 and 2:7 suggest that the material, yet soulless, human body is already made in the Image of God. Idel 1990.

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The early twentieth-century Lithuanian Rabbi Henich writes that holy men who are free from any taint of sin are capable of creating human beings that are identical to those created by God. He also rejects the claim that an anthropoid not born from a woman is not human, pointing to Adam. Was it permissible to kill Adam, he asks rhetorically.168 With the emergence of robotics, utopist popular science, and genetic engineering, some rabbis have drawn on the skimpy references to magical creatures to craft a halakhic approach to anthropoids and artificial life. One such source is the medieval gloss on the Talmud, Ha’Me’i’ri, which grants permission to “create beautiful creatures by non-natural and asexual means, as it is written in the books of science” because these feats involve natural science rather than magical arts. Moreover, Ha’Me’i’ri argues that, even if magic is involved, it is allowed to resort to magical and even to pagan practices for medical purposes.169 These discussions raise two issues – the permissibility of creating anthropoids and the legal status of such creatures. The Torah forbids the creation of hybrid plants and animals.170 The medieval book Hinnukh explains that hybrids bring more harm than benefit.171 In the spirit of positive law, the rabbis have interpreted these laws narrowly, as applying only to some animals mentioned in the Torah (e.g., ox and donkey) and to edible plants, whereas all other modes of hybridization and biotechnology are permitted, including genetic modifications. Moreover, once a new hybrid is created, there is no objection to cultivating and maintaining it as a species unto itself. Consequently, Rabbi Professor Steinberg writes that procreative cloning is compatible with Halakhah since it does not involve the creation of a new species. He recommends public governance of cloning and related technology, similar to the regulation of other highly volatile technologies such as nuclear power.172 Overall, the inchoate rabbinic discussions on the status of such futuristic creatures are inconclusive and even inconsistent.173 In the previous section, we saw that the halakhic control of reproduction is focused on three issues – licit sex, the waste of semen, and a reliable lineage.174 Because the first two concerns are irrelevant to somatic cell cloning (i.e., when the genetic material is taken from an ordinary cell, not a gamete), only confusion of lineage remains at stake. This point is borne out by a short responsum on cloning by Auerbach’s son-in-law, Rabbi Goldberg.175 He rules that if registration of all the people involved in the process is properly carried out in a way that prevents disputes over lineage, then cloning is permissible. In the same 168 169 170 171 172 173 174 175

Henich 1961, 9. Gloss Ha’Me’i’ri on T. Sanhedrin, 67b. Leviticus 19:19. Sefer Hahinukh, mark 62. Steinberg 1998b. Rosenfeld 1977; Loike and Tendler 2002; Barilan and Siegal 2004. ‫יוחסין‬ Goldberg 1989.

Fertility and Very Early Prenatal Life

155

responsum, he permits the freezing of semen taken from an unmarried man who is about to undergo chemotherapy. Auerbach, who objected to the premarital preservation of semen,would probably have objected to cloning as well. (Auerbach died in 1995, and such publication during his lifetime by his son-inlaw might indicate a change of mind.) My impression is that contemporary rabbinic rulings are more receptive to artificial reproductive technologies than are those issued thirty years ago. It is noteworthy that the paralegal and moral considerations expressed by the older generation – the value of intimate sex, the “worldview” of Halakhah, and slippery slope – are disappearing from the halakhic discourse on infertility treatments for married couples. Goldberg’s responsum on cloning is short. It contains one word: “permissible,” without offering explanations. It comes in stark contrast to Feinstein’s and Waldenberg’s (“the first-generation tier”) tendency to issue short responsa without deliberation when they wanted to absolutely prohibit something even though it was possible to legalize it by means of intrinsic halakhic reasoning, but in which the rabbis find a threat to the spirit and values of Judaism. In 1958, Feinstein employed this strategy regarding contraception; in 1981, Waldenberg did the same regarding IVF. Goldberg’s terse approval of cloning is unprecedented.

surrogacy, cloning, and the essence of parenting Halakhah recognizes biological parenthood only. A child may find a home in a foster family and may regard his or her guardian as a parent,176 but social parenthood cannot override biological parenthood. Marriage with an adopted kin is not incestuous. Rabbi Halperin thinks that anonymous sperm donation violates a person’s “right to know the identity of his or her biological parents.”177 The rabbinic debate on the essence of biological parenthood is most evident in the discussions on surrogate motherhood. A surrogate woman carries in her womb a genetically unrelated embryo implanted there by doctors, with the intention of handing over the child to a barren couple or a single parent who commissioned the surrogacy. Usually, at least one of the prospective parents is also the genetic parent of the child. Some leading rabbis writing on the subject consider the birthing mother as the only mother.178 Only the former Chief Rabbi of Israel, Shlomo Goren, wrote that the genetic mother is the [only] mother.179 Others insist that both women – the “genetic” and the parturient – be halakhically regarded as the child’s mothers, not shying away at all from the possibility of a child having two mothers. Rabbi Sheilat cites the talmudic law according to 176 177 178 179

See Exodus Rabbah, 47:6. Halperin 2002. Waldenberg 1994, mark 49; Soloveitchik 1981. Goren 2001, 173–183.

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Jewish Bioethics

which a child conceived through illicit sex between a slave and a Jewess is considered a fatherless person because the semen of the slave rots in the body of the free Jewess, leaving no impact on the fetus.180,181 From this mode of reasoning, Sheilat infers that halakhic naturalism may differ from ordinary science, thus allowing for situations in which, according to Halakhah, a person is fatherless, even if the genetic father is known and alive. Rabbi Shafran (b. 1950) suggests that, in the absence of a father, the only parent, namely the biological and social mother, takes over the role of the legal father, in addition to being the legal mother. This would create a legal situation in which one person fills both the role of the father and the mother. Shafran’s next step is to observe that reproductive cloning may be regarded as a similar situation in which one person acts as both father and mother. Although he does not find intrinsic halakhic objection to cloning, he maintains that Halakhah may fully side with the authorities should they prohibit cloning as contrary to the common good.182 Rabbi Sheilat (b. 1946) realizes that cloning may facilitate single motherhood in a way that does not transgress Halakhah (i.e., without the involvement of a man to whom the woman is not married). However, Sheilat disapproves of cloning on grounds of the good of the child, because bringing a child into a parental cell of less than two people is “unfair” to the child.183 Following Rabbi Auerbach, Sheilat suggests that using a donated somatic cell for cloning is problematic even when its DNA is substituted by that coming from the “parents” of the clone.184 Virtually all the halakhists support cloning as a means of treating infertility in a married couple. The genetic makeup of the child will thus be quite unusual, but I believe that the rabbis are concerned with genetics and sexual fertilization only when illicit sex, waste of semen, or conflicts over paternity may arise. Indeed, an adopted child might always live with the psychological and cultural ghosts of his biological parents. Many adopted children and adopting parents manage to completely cast aside the shadow of the “other” parent from their daily lives, but wondering about absent parents and trying to find them is always a possibility. A need for organ or marrow transplant could be a case in which biological parenthood becomes salient in spite of the excellent psychological and social redefinition of the roles of biological parenthood. These novelties of biomedicine weaken the notion of total and irreversible adoption, if it ever existed.

180

181 182 183

184

Western medicine discovered the ovaries and the ovum only in the nineteenth century. Seventeenth-century Rabbi Azaria of Pano draws an analogy between a chicken that lays eggs without a rooster and a woman’s capacity to be impregnated by a spoiled seed. (Menahem Azaria Pano 1963, mark 117). Sheilat 1998. Shafran 1998. Sheilat seems unaware of the “nonidentity problem.” Both Shafran and Sheilat have university degrees. Sheilat 1998.

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The Talmud traces the etymology of the word bastard (mam-zer185) to “foreign defect” (mum zar186).187 It may be suggested that even a nongenomic trace of a “foreigner” may provoke a conflict in the family and may cause confusion over identity. Conversely, Sheilat finds the use of donated eggs less problematic than the use of somatic cells. His reasoning is based on an analogy from a talmudic discussion on a hermaphrodite who sires a child. When a child is searching, consciously or subconsciously, for his or her “true” parent, and adults similarly embark on a search for their “lost children,” serious interpersonal and intrapersonal conflicts may ensue. The “foreign defect” is not a biological taint, but a psychocultural presence, the “ghost” of another parent, and the “absent presence” of a child, a sibling, or even an uncle or a cousin. One advantage of cloning over other fertility techniques lies in the fact that it does not compound the division of parental roles; rather, it reduces it. Although many rabbis today follow Rabbi Feinstein’s ruling that only illicit sex produces bastardy, rabbis feel safer whenever it is possible to avoid legal or psychological “contamination” or confusion of lineage. Sheilat himself probably senses this difficulty as well. He finds no “foreign defect” in a cloned pre-embryo that contains no genetic material from another woman and which is implanted inside a surrogate mother, but he points to people’s awareness of the social presence of the “other mother” in adoption cases as a serious moral issue. Any shadow of foreign biological parenting, even if not genetic, might be halakhically problematic. Some Muslim jurists apply the laws of incest to children who shared the same wet-nurse or even drank the milk of the same woman.188 Although the old sources indicate that wet-nurses were treated like parents, no halakhist has gone that far. In 1996, Israel was the first country to legalize and regulate surrogacy under a law that received the support of many rabbis. This pioneering feat encapsulates de facto rabbinic liberality with infertility medicine and genomics. It also embodies the bioethic-halakhic hybridization of Israeli regulation of biomedicine. To avoid halakhic problems of paternal lineage, the law requires that the surrogate mother be unmarried and not be a blood relation to the procuring parents (clause 2(3)). Every case of surrogacy requires approval by a special public committee, which also has the power to authorize exemptions to this clause. A rabbi must sit on the committee (or a chaplain of the relevant religion, in case the surrogacy is undertaken by non-Jews). The committee has also decided that the surrogate mother should be a woman who has had a child of her own.189 Rabbi Cherlow has told me that the reason for this restriction is a 185 186 187 188 189

‫ממזר‬ ‫מום זר‬ Yevamot, 32b. Ghaly 2012. Almagor-Lotan 2012.

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Jewish Bioethics

wish to validate the informed consent of the surrogate mother, assuming that only a woman who has given birth fully knows what pregnancy and birth entail. The consequences of the “hard” law (the primary legislation) and the “soft” law (the policy of the regulative body) is that almost all surrogate mothers in Israel are single mothers. In other words, they belong to one of the poorest and disadvantaged stratum of society.190 Unsurprisingly, there is evidence that many surrogate mothers act out of economic distress. Some do not regret it at all; they even consider surrogacy as their only option for financial recovery. The average remuneration is in the range of 30,000 euro per pregnancy.191 The intermediary agent collects a fee in the range of 6,000–10,000 euro.192 The incentive is apparently strong because some of the surrogate mothers divorce in order to be able to meet the committee’s requirement of being single.193 At the beginning of this chapter, we saw that Jewish law exempted women from the duty of procreation. Their contractual duty to their husbands covers ordinary pregnancy and birth. At the end of this chapter, we witness how a contemporary construction of Jewish law and liberal bio-law encourages poor, marginalized single women to beget children they will never raise and will never be affiliated with. These women will receive much needed money; the children will go to parents who are exempt from the religious duty of procreation. In 2011, there were ninety-two applications for surrogacy and forty-nine surrogate births.194 Nineteen of these births were twins, which is indirect evidence of the relative aggressiveness of the medical procedures and the extraordinary burden on the women undergoing IVF. Strong commitment to the wholesomeness of marriage is the main reason why rabbis have become open to infertility treatments. Alas, at least in some cases, the “second line” of these treatments – surrogacy for money – induces divorce. Regarding contraception, the rabbinic ethics of fertility has been shifting from the personal virtue of women who are not obliged to procreate and to avoid the waste of semen, to contractual duties and to the husband’s stakes in his own semen. Regarding infertility treatments, some rabbis lean towards lenient formalism (Feinstein); others abhor the violation of either formal (e.g. fornication) or unexpressed (e.g. “ugliness”) taboos (e.g. Teitelbaum). In the absence of values at the level of procreation, the rabbis harshly condemn “different” sex, even when a formal prohibition does not exist (e.g. female masturbation), buttressing their policies on debunked science on gender and psychology. We do not know what the “wise women” would say about all this.

190 191 192 193 194

Offer 2006, 292–295. Igne 2009. Almagor-Lotan 2012. Ibid. Ibid.

7 Childbirth and Abortion

a historical survey of the discourse on abortion The Torah (Pentateuch) mentions abortion only once, in the context of injury by a third party: If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no ason1 [mischief] follow: he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges determine. And if any mischief follows, then thou shalt give life for life.2

The Hebrew word ason, which is translated as “mischief” in the King James version of the Bible, more properly means “calamity.” Its translation in the Septuagint led Philo of Alexandria and the Church fathers to interpret the word in a third manner, meaning “and it [the fetus] does not have a [human] shape.”3 In their view, if the aborted fetus did not yet have a human shape, the assaulter must pay a fine. If the fetus had already a recognizable human shape, the law demanded that the attacker give a “life for a life.”4 Philo and the Septuagint do not even mention the woman or the possibility that she might be harmed.5 Like the Church Fathers after him, Philo associated abortion with infanticide. Hellenic Judaism disappeared from history, leaving indirect traces in the thought of the Greek Christian Fathers. Hence, the prevailing notion of “Judaism” is colored by the non-Hellenized and non-Latinized schools of the Talmud, which spoke Hebrew and Aramaic.6 What is seen today as “Jewish” 1 2 3 4 5 6

‫אסון‬ Exodus 21:22–23. Philo, The Special Laws, book III, 19.108–109; Riddle 1992, 20. Feldman 1968, chapter 14; Gorman 1998, chapter 3. Sinclair 1980. Grafton and Williams 2006.

159

160

Jewish Bioethics

might reflect only one surviving stream of a rich, diverse, and more pluralistic culture or a set of interlocking sociocultural circles, and what is considered today as “Christian” may preserve lost Jewish traditions. One example is the diverse reading of ason and the laws on abortion. In contrast to the Greek speaking Philo and the Septuagint, the talmudic sages and the rabbinic tradition have interpreted ason – the harm for which the attacker must pay – as referring to the death of the woman and not of the fetus. The Mishnah rules that homicide is a capital offense only when the victim is at least one day old (i.e., from the moment of completed birth).7 Rather than offering a rational explanation, the Talmud says blankly that it is “the ordinance of the Scriptures.”8,9 The talmudic sages attach the word “ordinance” to divine rules that are beyond human comprehension, criticism, and appeal. They are like the king’s orders that call for unquestioning obedience.10 Some rabbis have promoted a voluntarist conceptualization of Halakhah,11 one that might be cogent with regard to certain rituals.12 As of some laws, such as the prohibition on the creation of hybrids, the medieval gloss Rashi wrote that these kind of rules have no reason; Nahmanides maintained that understanding the law is beyond human powers.13 It is not unusual for rabbinic Judaism to hold some oral teachings at the status of the written Torah. Even naturalist commonsense maxims, such as the permissibility of consulting doctors when ill,14 when proclaimed by the talmudic sages bear the status of teachings from the Torah.15 However, whereas it seems strongly counterintuitive to prohibit medical counseling, there is no theory of the moral status of the embryo that is as conclusively powerful as the teachings from sevara. Indeed, reflection on the use of naturalist reasoning, sevara, in the Talmud reveals that sevara dies hard when it is incontestable. But the invocation of self-evident reason, sevara, by one rabbi does not confer immunity from a contending opinion that is supported either by sevara or by a hermeneutics from the scriptures.16 When “self-evident” reasoning clashes with a contending opinion, reason may not be sufficient to settle the issue; society must default to nonrational (but not irrational) templates of decision making. I conjecture that this is the reason why the rabbis have never entered into the metaphysical discussion on the nature of prenatal life. Instead, they defaulted to an old oral teaching, which is reasonable, albeit not rationally conclusive.

7 8 9 10 11 12 13 14 15 16

Niddah, 5:3. ‫גזרת הכתוב‬ Niddah, 44a. E.g., Midrash Tanhuma on Numbers, Hukkat. E.g., Soloveitchik 1998, 52. Midrash Tanhuma, Hukkat, mark 3. Rashi’s and Nahmanides’s gloss on Leviticus 19:19. P. 23. Chajes 1845, 13 (chapter 15). T. Yoma, 74a; T. Sanhedrin, 30a; Elon 1994, 814ff.

Childbirth and Abortion

161

Since it is possible to defend the halakhic maxim on the beginning of legal personhood at birth by philosophical arguments,17 and since it is in line with many legal systems, it is possible to conceive of Halakhah’s positivism as a pragmatic communal stoppage to a theoretical debate that is not likely to reach closure. Put in other words, whereas philosophers debate the answer to the question of “when human status/personhood begins,” the Jewish tradition accepts a variety of answers to this question and settles the legal threshold on one – the moment of birth – without any pretension of justifying this positive limit by rational arguments and scientific evidence. It is a model in which science and philosophy delineate a range of possibilities, and the law settles on one, perhaps the one that fits better the internal logic of the legal system or other social and moral values that the law cares to promote. In a talmudic discussion, Rabbi Ishmael (second century) infers from the Covenant with Noah that, for the gentiles, abortion is a capital offense.18 Since the Israelites are bound by the Covenant of Sinai, Rabbi Ishmael’s hermeneutics does not apply to them. Nobody in the rabbinic world has ever questioned the explicit Mishnaic ruling that, for the Jews, abortion is not a capital offense, that it is not murder, and that fetal life always enjoys a lower moral status than the life of born people, even those whose life expectancy is very short. At the practical level, little may be extrapolated from the inability to mete out capital punishment on criminal abortion to the discussion whether, in certain other circumstances, abortion might be licit or even mandatory. Throughout history, from the first-century Hellenic-Roman physician Soranus19 and the fourth-century Christian St. Basil20 to the nineteenth-century Iraqi Rabbi,21 it was assumed that health risk to the mother is a leading reason behind the prohibition on abortion. It was also widely held that the most common motivation to seek abortion was a desire to conceal an illicit liaison. In the premodern debate on what we today call “elective abortion,” it was never a free choice made relative to reasonable alternatives. Rather, only in the face of grave risk to life or social ostracism did women find the risk of abortion less devastating than carrying pregnancy to term. When reliable data are available, they are also highly disturbing. For example, maternal mortality rates in Sheffield, England, during the 1920s ranged between 3.5 and 6 per thousand births, half of it consequent to induced abortion.22 This context is particularly relevant for drawing an analogy to Jewish society; lifesaving abortion was legal in England, and there is no reason to assume that the dispersed and poor

17 18 19 20 21 22

E.g., Barilan 2012, 240–254. Sanhedrin, 57b, on Genesis 9:6. Temkin 1956, 62–53. Epistle 182, 2. Yosef Haim b. Elijah of Baghdad (aka Ben Ish Hai) 1901, Part 4, mark 14. McIntosh 2000.

162

Jewish Bioethics

Jewish communities fared from better sanitation and healthcare than the English working class. Although being silent on abortion, the Mishnah (the earliest and foundational part of the Talmud) discusses two cases in which Jewish law requires the killing of viable and apparently healthy fetuses. The first case relates to a woman who has been condemned to death. On one hand, as a token of neighborly love to the victim of capital punishment, and on the naturalist assumption that waiting on death row is psychological torture, Jewish law requires that execution be carried out promptly.23 Additionally, the Talmud rules that the fetus be killed prior to execution so as to spare the woman the disgrace of a child struggling within her dead body.24 It is noteworthy that in the West, pregnant women who were condemned to death were made to wait until after delivery. Midwives would examine women prior to their execution so as to prevent the accidental killing of their unborn children.25 A very early Christian source combines the duty of neighborly love toward the unborn with the prohibition on abortion (and a duty of altruism): Thou shalt love thy neighbor more than thine own soul. Thou shalt not murder a child by abortion, nor again shalt thou kill it when it is born.26

Rabbinic law and morals is twice removed from this Christian teaching. First, the Jewish sources neither oblige nor encourage loving the Other more than one’s own self. Second, I am not familiar with any rabbinic discussion on the possible application of neighborly love to the unborn. The exclusion is a takenfor-granted fact in the rabbinic literature. Although the talmudic rabbis considered capital punishment as an extremely rare event,27 the placement in the Mishnah of a law on an even rarer possibility of executing a pregnant woman conveys a powerful message about the priority of maternal well-being, even that of a condemned felon (neighborly love) and dignity over viable fetal life. Up to a point: the Mishnah also rules that if the fetus has been “uprooted from its place [and started moving, initiating the birth process],”28 then it must be allowed to be born, and execution must be delayed. The rabbis followed the Roman maxim pars viscerum matris, namely, that the fetus is part of his mother’s body and not a separate legal entity.29 It seems that the Mishnah considers the process of separation (“uprooting from its place”) as a constitutive step toward equal standing as a person, which will be achieved only upon birth. Evidence for this hypothesis may come from another talmudic law: 23 24 25 26 27 28 29

Sanhedrin, 52a. T. Arakhin, 7a. E.g., Park 2006, 109 and 256. Epistle of Barnabas 19:5. M. Makkot, 1:10. ‫עקר מקומו‬ E.g., T. Yevamot, 78a.

Childbirth and Abortion

163

If a woman sat on the birth stool and died on the Shabbat, a knife is brought [notwithstanding the desecration of the Shabbat], and tear her belly open in order to take the child out.30

If the rabbis had not understood the permission – actually the duty – to desecrate the Shabbat for the entrapped fetus as being facilitated by the special stage of active birth, they would have deduced from this law that it is permissible to desecrate the Shabbat for every fetus. Nevertheless, the fundamental duty to save life is learned from the paradigmatic cases of rescue from under the rubble and of a pregnant woman who craves for foods on a day of fast.31 The medieval sages entered into disputations on the question of whether permission was only to save the mother’s life or whether it was permissible to violate the fast day to save the pregnancy as well, even if the mother’s life was not at stake. For premodern people, this was a hypothetical because it was taken for granted that miscarriage was associated with mortal danger to the mother.32 As late as the eighteenth century, we find in Jewish law the opinion that, as long as the mother is not at risk, it is not permissible to desecrate the Shabbat for the sake of saving fetal life.33 We may conclude that it is more likely that the moral status of the fetus during active labor is in a special transitory phase, above that of fetal life, yet below that of born babies. This is the very subject of another Mishnaic law: If a woman has difficulty in childbirth, one dismembers the embryo within her, limb by limb, because her life takes precedence over its life. Once its greater part has emerged, it may not be touched, for we do not set aside one life for another.34

The medieval commentator Rashi writes: As long as it has not come out into the light of the day, it is not a soul (nefesh)35 and it is permissible to kill it in order to save the mother.36

Maimonides elaborates a bolder explanation, bolstering the duty to save the mother, notwithstanding the radical moral price: This is a negative precept, not to have compassion for the soul of the persecutor.37 Accordingly, the sages instructed that, if a pregnant woman has difficulty in childbirth, it is permissible to cut up the fetus in her vitals, whether by use of a medicine or by hand, because it is like a persecutor which runs after her in order to kill her. But after its head has emerged, it may not be touched, for we do not set aside one life for another, and this is the way of the world.38 30 31 32 33 34 35 36 37 38

Arakhin, 7a. T. Yoma, 82a. On rescue from under the rubble see pp. 37, 200. Nahmanides 1964, vol. 2, 29. Landa 1928, Hoshen Mispat, mark 59. M. Oholot, 7:6. ‫נפש‬ T. Sanhedrin, 72b. ‫רודף‬ Hilkhot Rotze’ah, 1:9.

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Under the conditions of modern medicine and safe obstetric surgery, such dilemmas rarely present themselves. But in the past, and in many poor societies today, the conflict is real and urgent. Numbers are obscure. In nineteenthcentury England, where lifesaving feticide was legal, and reliable registries of maternal mortality existed, the incidence seems to be one in two hundred births. Most at risk are adolescent and poorly nourished women who consequently have small pelvis and deformed bones (due to rickets). Another high-risk group is composed of multiparous women (those who have given birth six times and more), whose abdominal muscles are too lax to push the baby efficiently, and other sickly women, such as those afflicted with rheumatic heart disease.39 Discussions of elective abortion are not found in the post-talmudic and medieval rabbinic sources. Some of the earliest references to abortion are terse and abstract – they are not attached to specific real-life situations, thus betraying a naïve ignorance of the immense moral sensitivity that the problem of abortion has generated. The following paragraph presents these highly authoritative medieval sources. Gloss Tosafot on the Talmud, which is an anthology from Medieval French Jewry, writes on the unborn child, “Although it is permitted to desecrate the Shabbat for his sake, it is permitted to kill it.”40 Yet, another Tosafot text says, “And with regard to [killing] fetuses, a Jew is exempt [from the death penalty]; but even if he is exempt, it is not permitted [to kill it].”41 Rabbi Asher b. Yehiel (Rosh), who, along with Maimonides and Alfasi, is considered one of the three Medieval pillars of Jewish law (neither Maimonides nor Alfasi mention abortion), writes “it is fitting to consider [the fetus] as only questionably subject to the laws of preservation of life, and it is even permitted to kill it.”42 The positivist dimensions of Jewish law are usually more determinative than the naturalistic ones. This is especially prominent in the laws on abortion. One may expect the laws on taking human life to take into consideration issues such as physiology and embryology, but this is not so. Rather, embryonal morphology and development are relevant to the ritualistic laws on the impurity of uterine discharges.43 The Talmud narrates embryonic development from an empirical perspective and endorses the teaching that ensoulment occurs at conception. As a matter of fact, the second-century leader of rabbinic Judaism, Rabbi Yehuda HaNassi, changed his mind on the matter following a debate with a non-Jew.44 According to the Midrash (talmudic lore), fetuses praise the Creator; to a certain extent, they are members of the religious community.45 They also exercise a modicum of moral judgment.46 Fetuses seem to enjoy richer and more 39 40 41 42 43 44 45 46

Barilan 2009–2010, 145–152. Niddah, 44b; see also Tosafot on Sottah, 26a. Sanhedrin, 59a, and Hullin, 33a. The Medieval anthology Shittah Mekkubetzet on T. Arakhin, 7a. On these three pillars see pp. 8–9. Niddah, chapter 3. Niddah, 30b; Sanhedrin, 91b. Horowitz and Rabin 1970, 120. T. Sottah, 41b; T. Sanhedrin, 91b; Genesis Rabbah, 63:6.

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pleasant lives, spiritually and physically, than born people. Every embryo/fetus is taught the whole of the Torah until, at the moment of birth, an angel slaps him or her on the face, inducing complete forgetfulness.47 But all of these teachings are conspicuously absent from the rabbinic deliberations on abortion, as if they are irrelevant. Indeed, they are not, at least from a purely legal perspective. In his gloss on the Talmud, the prominent medieval authority, Rabbi Yom Tov b. Adderet (Ritva) writes that, regarding homicide, the unborn human is not a soul/ legal person (the Hebrew word is “nefesh”), but regarding the maxim on saving its life,48 it is a soul/legal person.49 Another medieval authority, Rabbi Meir b. Tudrus HaLevi Abul’afia writes in his gloss Yad Rammah on T. Sanhedrin, 91b, that ensoulment takes place upon conception,50 but, in the same gloss on T. Sanhedrin, 72b, he writes on the fetus whose killing is contemplated for the sake of saving his birthing mother (i.e., he refers to the moral status of the fetus during its birth): “It is not a soul, and the Torah has no mercy on him.” The rabbinic split between the moral character and metaphysical nature of the unborn child and the laws on abortion has survived all the way to the twentieth century. Rabbi Waldenberg (twentieth-century Israel) explains that, for the gentiles (or: according to the gentiles), the issue of abortion is determined by the concept of the person (his precise wording is, “the measure is what is considered adam”51). Rejecting this paradigm, Waldenberg gives permission to abort a certain fetus while requiring its proper burial because it is endowed with Imago Dei.52 The very same observation is shared by contemporary rabbis who are not permissive with abortion, such as Rabbi Steinberg and the medical doctor Avraham, who usually articulates the teachings of Rabbis Auerbach and Elyashiv.53 Rabbi Ratzon Arrusi, a jurist and a member of the Chief Rabbinate of Israel, writes that Rashi’s statement that the fetus is not a person (nefesh) stands only when it threatens its mother’s life; otherwise, the fetus is a person and must not be aborted.54 It is evident that, for these rabbis, the person status of the unborn does not predicate the law and morality of abortion. It is not a stable concept at all, but a flexible derivative of the situation in hand. In Halakhah, the metaphysical status of the fetus does not determine the laws on abortion; rather, it is the law on the permissibility of abortion that predicates the person status of the fetus, at least in clearly relational problems, when the abortion is motivated by maternal–fetal conflicts and, perhaps, conflicts 47 48 49 50

51 52 53 54

T. Niddah, 30b. Klein 1998, 72–73. ‫פקוח נפש‬ Niddah, 44b. ‫ – פקידה‬which probably corresponds to conception, or the beginning of pregnancy. The literal meaning is “visitation.” Literally, the Talmud says that ensoulment occurs upon visitation [of the Holy Spirit or She’khi’nah – the divine presence – ‫]שכינה‬. .‫והמודד אצלו ]אצל בן נח[ במה שנקרא אדם‬ Waldenberg 1970, mark 25, chapter 8:7. Avraham, 1997, 220–238. Arrusi 1977. This may remind one of Levinas’s tenet that ethics precedes metaphysics.

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with other people as well, such as a sibling who depends on the mother’s milk (a common problem in premodern and contemporary poor societies). In bioethics and bio-law, the question of the moral status of the unborn dominates, if not monopolizes, the discourse on abortion. But the Jewish sources do not fit in this paradigm. A cogent and fruitful dialogue between Judaism and other cultural and legal systems requires open-minded attention to specific case discussions. In the rabbinic literature, they begin to surface only in the sixteenth century. Rabbi Yosef Trani (sixteenth-century Turkey) rules that, although for the Israelites abortion is not a capital offense, it is nevertheless prohibited as a kind of physical assault.55 However, medically indicated abortion is permissible.56 Rabbi Yair Haim b. Moshe Bacharach (seventeenth-century Germany) concludes that the prohibition on abortion is derived from the prohibition on the waste of semen. Because it is a relatively mild prohibition, he infers that it may be permissible to abort a child conceived by fornication/prostitution:57 [The object of] your question, which you asked, would be entirely permitted under the laws of Torah, were it not for the widespread custom among us and among them [i.e., Jews and Christians] with regard to enacting laws and enforcing regulations against loose women and the men who go whoring after them.58

In this, Rabbi Yair set a pattern that dominated the rabbinic attitude to the abortion question. Although acknowledging the legal lightness of the prohibition, the rabbis consider the social circumstances of abortion serious threats to public morals. A final ruling on abortion may not be supportable by the conventions of legal analysis, but by the public authority of the rabbis to dispense permissions and to withhold them. The rabbis have always considered themselves public and spiritual leaders, not mere judges and jurists; the more prestigious the rabbi, the more his sense of public responsibility would color his halakhic rulings. Rabbi Jacob Emden (eighteenth-century Germany) opined that abortion is a very grave offense, punishable by karet.59 But abortion of a child conceived through fornication may be permissible. His language is harsh: “The Torah has no mercy on such a fetus.” Nonetheless, permission is withheld in order not to encourage promiscuity.60 Rabbi Yehudah Ayyash (eighteenth-century Algiers) gives permission to abort an embryo in fear that the mother might not be able to produce sufficient milk for an older sibling.61 He concludes that the prohibition on abortion is 55 56 57 58 59

60 61

Trani 1861, part 1, mark 97. Trani 1861, mark 99. ‫זנות‬ Yair Haim B. Moshe 1896, mark 31. ‫ כרת‬A punishment whose nature is unclear although the Bible attaches it to important religious laws. Literally, it is a form of excommunication – e.g., Leviticus 17:13. Emden 1884, part I, mark 43. See Chapter Eight on the treatment of bastard babies. Ayyash 1746, Even HaEzer, mark 14.

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derived from the prohibition against futile destruction,62 which is not an offense against a person, but a matter between the person and God. Shortage of breast milk has been a perennial worry in societies with no access to baby formula and sterilized water. According to one opinion in the talmudic literature, nursing women may use mechanical contraception lest “they kill their children.”63 Abortion of an inadequately spaced pregnancy was permissible by medieval Islamic law.64 Additionally, in his responsum, Rabbi Ayyash gives permission to abort when the woman is fearful of “the evil eye.” Without acknowledgment of the validity of such a worry, the rabbi respects its sincerity among the people of the time, and, in this context, the abortion is not selfish but, rather, responsible. Hence, abortion motivated by care for others cannot be considered reckless or selfindulgent. Even if the reasoning is unsound (e.g., evil eye) and the potential harm to mother and fetus considerable, the rabbi does not try to reform widespread and deeply rooted lay perceptions of risk. However, neither Ayash nor any other rabbi would never contemplate infanticide motivated by fear of an “evil eye.” Twentieth-century Rabbi Auerbach pinned down the prohibition on abortion to the offense of theft65 – the stealing of future life from the victim. Auerbach adds that, in certain situations, the mother may pray for a miscarriage, but she must not induce abortion.66 In addition to the search for a legal foundation for a prohibition on abortion, the rabbis express diverse opinions on its gravity – whether it has the power of the Torah67 or whether it is a rabbinic prohibition.68,69 Abortion is the only halakhic offense whose legal power and roots are spread over the broadest possible conceptual terrain – from the light impersonal offense of futile destruction to bloodshed, from a prohibition of the Torah to a very light prohibition from the sages (see later discussion). This legal vagueness testifies to the extrahalakhic sources of the moral censure on abortion. Like the duty of physicians to provide free medical care for the poor,70 the perceived communal duty not to leave a sick person alone,71 and the objection to the nonconsensual lifesaving harvest of organs from the dead,72 the restrictive vectors operating on the overall halakhic stance on abortion are moral, not to be found in the language of Halakhah in its capacity as a legal system. There is no attempt to support them by means of formal reasoning.

62 63

64 65 66 67 68 69 70 71 72

‫בל תשחית‬ Tosefta, Niddah, 6:2. According to the minority opinion of Rabbi Meir, the man should abstain from sex throughout the entire two years of lactation. Mussalam 1983, 57. ‫גזל‬ Avraham 1997, 221. ‫מדאורייתא‬ ‫מדרבנן‬ Avraham 1997 221–222; Steinberg 1991, 74–80. P. 63. P. 39, 53. P. 111.

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The first rabbi to set some limits on abortion motivated by the welfare of the mother is Rabbi Isaac Lampronti, who was an eighteenth-century physician trained in Padua. He tried to distinguish between complications of birth caused by the fetus, such as a pathologically big head that cannot pass through the birth canal and that may be justly considered as an assault, and difficulties at childbirth that result from unrelated illness, such as overwhelming fever.73 It seems quite clear that Lampronti’s unprecedented restrictive interpretation of the duty to perform lifesaving abortions was influenced by the Italian-Catholic medical practice that considered abortion as murder and was opposed to destructive obstetric surgeries – feticide and cesarean section alike.74 Lampronti, as well as his contemporaneous Rabbi Isaac Schorr, deliberates the permissibility of lifesaving abortion when the fetus is not the cause of the difficult labor.75 However, as Schorr’s grandson added in a comment to the responsum, and as is evident from the language of Lampronti, this qualification was almost certainly limited to the liminal stage of active labor, after the fetus “has uprooted from its place,” and not to all other, earlier, maternal–fetal conflicts.76 By the early nineteenth century, the rabbinic world reached a crossroads that is open to two logically different elaborations of the talmudic law on abortion. One may argue that the permission – actually an inalienable duty according to Maimonides – to kill fetuses for the sake of saving their mothers’ lives is restricted to life-and-death conflicts and that all other motivations, as considerable they might be, are not strong enough to justify abortion. This might have been the position of premodern Jewish physicians, especially those who received European educations. It is noteworthy that, in all versions of the Hippocratic Oath published by such physicians from the Early Middle Ages until modern times, one may find the taboo on abortion. However, these and other doctors and folk practitioners expressed extensive knowledge of abortifacients; nobody gainsaid the probity of abortion motivated by the healthcare of the mother.77 On the other hand, one may argue that, prior to the initiation of the birth process, before the fetus “uproots from its place,” many other reasons may justify abortion, reasons that are stronger than the prohibitions on wasting semen and futile destruction. These two modes of reading actually demarcate the two extremes of the spectrum of contemporary rabbinic discourse on abortion. On one end stands Rabbi Moshe Feinstein and some Hasidic rabbis; on the other, Rabbi Waldenberg and most Israeli Zionist rabbis, such as Shaul Israeli.

73 74 75 76 77

Lampronti 1871, 75b. Filippini 1995. Schorr 1888, part 1, mark 20. Same conclusion in Weinberg 1966, 348. Klein 1998, 45–50.

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feinstein’s philosophy of and the holocaust

169 HALAKHAH,

abortion,

Rabbi Moshe Feinstein (1895–1986), the halakhist leader of twentieth-century American Orthodox Jewry, took the most severe position on abortion. From the perspective of legal analysis, Feinstein invokes the talmudic law, according to which, for gentiles, abortion is a capital offense. Citing a medieval halakhic principle, according to which it is impossible that the Halakhah expects of the Jews lower moral standards than of the non-Jews, Feinstein concludes that, for the Jews, abortion is prohibited as “akin to murder.”78,79 Feinstein probably took the legal argument from Rabbi Rozin, who lived in Warsaw and who was one of the most revered rabbis of the pre-Holocaust era and whose style of bold and direct inference from the formative sources was similar to Feinstein’s. Rabbi Shabtai Rappaport, who edited some of Feinstein’s books and who is the son-in-law of Feinstein’s son-in-law, Rabbi Professor Tendler, told me that Rabbi Feinstein’s position on this matter was influenced by Nazi medical crimes.80 Indeed, it seems that the trauma of the Holocaust infused energy and awareness into the argument actually taken from the laws of the gentiles. Indeed, both Rozin and Feinstein applied the same legal mode or reasoning and arrived at the very same conclusion regarding the source and severity of the prohibition on abortion. And yet, it is striking to compare Feinstein’s vituperous and polemic style to Rozin’s nonchalant and brief observation. Moreover, Rozin does not see the willful destruction of an unborn child as a pretext for divorce, explaining that the wife must have acted on a naïve presumption that abortion was licit.81 This is a fascinating testimony that, in a rabbi’s eyes on the eve of the Holocaust, the average Jewish woman living among the largest concentration of Jews in the world was not aware of the legal prohibition on abortion. Rozin does not mention the above cited sources that were explicitly permissive with abortion. He does not even try to defend his contention by means of argumentation. Rozin was addressing abortion post-factum, hence, probably, the lenient attitude; Feinstein was laboring to prevent abortion. But Feinstein systematically dismisses the long list of incompatible sources, rather than tackle them by rational argumentation. Were all rabbis prior to Rozin and Feinstein wrong? Rozin’s and Feinstein’s original arguments do not square with centuries of rabbinic rulings, which have not taken this position and which are, as we have seen, actually quite lenient with abortion. Feinstein writes that all of the permissive sources are not reliable because of “forgery,” “scribner’s error,” “the eminent author did not have the right books to consult,” and he uses even stronger words. He writes on Emden’s responsum, cited earlier, “nonsense, 78 79 80 81

‫מעין רציחה‬ Feinstein 1985, mark 69. A recorded interview with the author, August 1, 2012. Rozin 1935, mark 59. Cf. Sofer’s responsum on the use of contraceptives without the husband’s knowledge, pp. 132–134.

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albeit a great man wrote it.”82 Feinstein’s style of dismissing contrary evidence has been a target of scathing criticism.83 Did he really believe that all the relevant sources were forged or misconstrued? I propose that Feinstein’s primary loyalty was to the rational and internal structure of Halakhah, in which earlier rulings and testimonials play secondary roles.84 Relative to a presumptive metaphysical and absolute halakhic truth, Feinstein identifies two kinds of errors – (1) failure to conform to the metaphysical truth and (2) “error in [either reading] explicit law [or] in rational reasoning.”85,86 Perhaps Feinstein regarded as such an error the omission from the earlier rulings on abortion of the principle according to which the laws for the Jews cannot be less demanding than the laws for the gentiles. Feinstein articulated a quasi-pluralistic conception of Halakhah in which mastery of the sources and rational argumentation may yield a few different, even incompatible, conclusions, only one of which conforms to the metaphysical and absolute truth. Yet when, in certain circumstances, a sage instructs a person to act in a specific manner, even if it does not conform to the metaphysical truth, this ruling becomes the law for that matter.87,88 Since the best support for a halakhic teaching is personal oral transmission,89 it seems that, in its absence, there might be a few possible halakhic resolutions to a problem; each sage may choose one, perhaps by taking into account external considerations such as public morals. Feinstein contends that a sage may rule only when he sees no [logical] faults90 and when he believes the ruling to be the truth. He actually requires some harmony (a sort of reflective equilibrium, probably) between rational

82

83 84 85

86 87 88 89

90

‫ דברים בטלים‬Feinstein held that pointing out the errors of great sages by saying they are “nonsense” is not disrespectful (Feinstein 1964, 323). E.g., Schwartz 1973, 11–12, 21. “It is like mere information” –‫ – שהוא להם כידיעה בעלמא‬Feinstein 1971, 130. ‫ טעות בדבר משנה או בשיקול הדעת‬See Feinstein 1959, mark 186 and Bornstein 1957, mark 2. Compare to “‫ – ”ראיות מוכרחות‬Shulkhan Arukh, Hoshen Mishpat, 25:1, Remma; ‫ – ראיות ברורות ונכוחות‬Gloss Rosh on T. Sanhedrin, chapter 4, mark 6. The language clearly indicates logical coherence and argumentative closure, which, obviously, may not be found in every case under deliberation. But mere citation of earlier sources and broad consensus spanning space and time never qualify as such evidence. Feinstein 1971, 127. .‫דאיכא כח בהוראה שאף שאין דינו אמת ממש נעשה הדין בהוראתו‬ Feinstein 1971, 129. Feinstein 1971, 130–131. However, even genuine transmission cannot stand against valid rational argumentation – ‫שאם יש קושיה מוכרחין לחזור‬. Interestingly, Feinstein writes “it is still unclear to my poor [understanding]” – ‫ – לא מובן לי בעניות‬the proper balance between rational argumentation on one hand and reception of oral tradition and majority opinion on the other. Applying his own criterion to this question, Feinstein is not in a position to resolve it fully, so he is bound to respect earlier teachings. .‫רק שלדעתו לא היתה שום קושיא לדבריו‬

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reasoning and one’s holistic sense of conviction or conscience. Only then is his ruling considered like the word of God:91,92 It is inappropriate to opt for the stricter option [and “be on the safe side”], unless one is really in doubt about the law. . . .The person in doubt walks in the darkness whenever he can resolve the problem, but [nevertheless] prefers to instruct [others] according to other [sages’] rulings, and this is why he prefers the stricter position.93

In his introduction to his first volume of responsa, Feinstein explains, In every generation, the sages are obliged to instruct [the people], even though they [the sages] are not at the level of the talmudic rabbis. Perhaps, the sages fail to grasp God’s truth. However, the truth to be instructed to the people [might be different], because [it is said] “not in heaven,”94 but [according to] what the sage sees after proper inquiry in the Talmud and the halakhic literature,95 in a serious and God fearing manner, and it seems to him the right ruling, this is the truth to be taught [to the people], and he is obliged to do so, even though, it is clear to Heaven that this is not the right interpretation. On such a case it is said “this [opinion] and that [opinion] are [both] the words of God [despite their logical incompatibilities],”96 because this interpretation is the one he sees fit, and it was not possible to contradict his words . . . the truth to be instructed is what he thinks after he studied with all of his powers, even though he is really wrong. . . . And the learned decisor should read [my] words carefully, and will personally examine whether to rule according to them. And he will realize that I, myself, did not lean on the books of our rabbis like a blind man in the darkness, but I have checked with all of my powers that they are true.97

At first glance, there is nothing new in this approach. Halakhic discourse combines the acceptance of certain theological, legal, and tacit cultural presumptions with unabashed critical analysis of the claims made within the given presumptions. The Talmud already distinguished between an ontological halakhic truth that may be lost and will be clarified in messianic times98 and the pragmatic, legal truth, which is embodied by the historical development of Halakhah, especially when a majority consensus among leading rabbis is established. One master principle of Jewish law is the duty to obey the pragmatic truth, even if one is personally convinced otherwise.99 However, according to Feinstein, this duty to obey is limited to a rabbinic court whose authority is acknowledged by all Jews, not to historically consolidating opinions.100 Put in 91 92 93 94 95 96 97 98 99 100

‫דברי אלקים חיים‬ Feinstein 1971, 131. Ibid. Deuteronomy 30:12. ‫פוסקים‬ T. Eruvin, 13b. Feinstein 1959, introduction. .‫תשבי יתרץ קושיות ובעיות‬ T. Bava Metzi’a, 59b. Feinstein 1971, 126.

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other words, Feinstein’s halakhic ideal is an appeal to personal conscience or discretion, the authority of which is derived from the self-sufficiency of the argumentation, not from the authority of the decisor. Only those who cannot comprehend and judge the argumentation must heed rabbinic authority from a stance of obedience rather than personal conviction. Legal authority proper lies only in reliable oral transmissions going back to “Sinai” (the “absolute” halakhic truth) and the rulings of rabbinic courts (the “pragmatic” halakhic truth). For most Orthodox Jews, the consolidating halakhic consensus is also an incontestable halakhic truth; but Feinstein refrains from saying so. He actually sidelines the key tenet of “orthodox” Judaism as commitment to a historically evolving body of practice. It is evident that, according to Feinstein, “life according to the Law” is not life in line with heteronomous normativity, but life that is based on learnedness and commitment to act on critical rational knowledge of a legal-moral system with a predominant commitment to reason directly from the Talmud. The word “conscience” does not exist in rabbinic Judaism. If we interpret it as a natural human capacity for moral guidance, then Feinstein would rely on such a faculty only when the person is knowledgeable in Halakhah and most probably also in other parts of the Torah. In the language of legal philosophy, it may be stated that Feinstein’s positivism applies the “rule of recognition” narrowly or, in the words of Jules Coleman, semantically.101 Feinstein recognizes as Halakhah only those teachings that are formally rooted in the Talmud and similarly formative sources. On the other extreme, we find holistically traditional Jews who apply the “rule of recognition” both semantically and epistemologically, granting the status of law to every religiously related practice and regulation, even if unmodified and formally unsubstantiated, such as the carrying of the dead manually. Feinstein’s introduction to his first volume of responsa effuses an air of humility. Although he is dwarfed by the stature of the authorities of the past, he has the duty to teach God’s laws to the people. But, it also seems to me that Feinstein is laying the grounds for a much bolder methodology. Since earlier generations were dwarfs relative to even older ones, they could have missed legal truths. It follows that pious and learned rabbis might be able to reconstruct the “divine truth,” even if it is different from earlier teachings. Feinstein’s point is taken almost directly from the early nineteenth-century rabbi of Posen, Akiva Eger’s introduction to his own his responsa. Eger wrote: I do not know whether to refer to these writings as “rulings”102 or “writings”103. . . I have concluded that it is better not to call them rulings, as if they embody closure. I have always been fearful of instructing [people in Halakhah]. But I would answer people because of the talmudic warning against sages who can instruct, but refrain from doing 101 102 103

Coleman 1982. ‫פסקים‬ ‫כתבים‬

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so, [and because] I have always been confident that the asking rabbi104 will study my words and examine them, and then choose. . . . I would never – God forbid – accept the responsibility [of issuing instructions that are final]. . . . It is difficult for me [to understand] what I hear, that some instructors in Halakhah, when a new book is published, they will instruct according to that book. This is inappropriate. Because they must strive with all of their powers [to study the book critically], and only if following a good examination, they find the ideas cogent, they should follow them.105

In line with the logic of critical examination, Feinstein submits his rulings to similar critical scrutiny, while he is critically studying those who preceded him. Indeed, halakhic discourse seeks a balance between a case-law mode of reasoning and the creative liberty of the rabbis who sit on the shoulders of the giants of the past and might see even farther than they did. This historical position may not bring a ruling rabbi closer to the metaphysical divine truth, but it will allow him to see the question in hand in the broadest perspective possible and to critically study earlier and presumably more authoritative opinions.106 Put in other words, it will allow him to reach the pragmatic truth, which would hopefully fit a kind of practical reason (phronesis) that bites into human reality more deeply than does legal formalism. Here is another parallel to the notion of “conscience.” Whereas one aspect of the Western notion of “conscience” is about telling right from wrong, the other is about specification, the power to apply principles to particular situations. An additional element in my attempt to reconstruct Feinstein’s boldly unprecedented approach to abortion may be based on Maimonides’s teaching that one must not bend a cogent conclusion that has been found according to proper reason, even if everybody else disagrees.107 Feinstein might have thought that respect for halakhic precedence is not an internal constituent of “the truth,” that it cannot substitute for genuine and uninterrupted oral transmission from one generation of sages to the next and that his ascent to religious leadership prevails on him to shape a consensus rather than accept a relatively sparse collection of premodern rulings as the consolidating consensus for a modern healthcare problem. He explicitly asserts the sage’s authority to reject rulings of earlier, even medieval authorities, when the sage benefits from “proper evidence, and, most importantly, the right reasons.”108,109 From his use of the word “evidence,” he certainly meant relevant precedences whereas “right reason” is almost certainly a sort of pragmatic wisdom, rather than a narrow deductivism from the sources. Whereas Feinstein believed that the sage may rule according to formative sources and rational argumentation, he also wrote that the sage must 104 105 106 107 108 109

Because of his high status, many questions were brought to him by rabbis. Eger 1860, 2. Elon 1994, 984. Guide for the Perplexed, 2, 16. ‫כשיש ראיות נכונות והעיקר גם בטעמים נכונים‬ Feinstein 1960, mark 101.

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not dismiss the validity of established opinions of past authorities.110 Perhaps, Feinstein chose to attack the authenticity of the lenient sources for fear that leaving the incompatible rulings of the past untouched would retain their legitimacy as “proper evidence” in the eyes of rabbis who do not see “the right reasons” behind the required rulings on abortion. Even worse, people who lack the power to study the law critically may rely on the permissive precedents as authoritative sources. About his pragmatic wisdom regarding abortion, Feinstein is candid. As a contemporary of the “sexual revolution” of the 1960s and 1970s, he refers to women who seek abortion as promiscuous, almost criminal.111,112 Until Western countries began to liberalize their abortion laws (late 1960s), communism was the chief ideology promoting the right of women to choose. It is very difficult to tell whether Feinstein’s particular perception of women’s motivation for abortion is part of his internal halakhic reasoning or of his role as a rabbinic leader. In addition, although premodern rabbis were remote from Christian society and alienated by its bloody wars and persecutions of deviants, Feinstein and other modern rabbis respected Western democracies and their commitment to human life and human rights. In the 1950s, when the thalidomide scandal broke, someone asked the Belgian Rabbi Zweig whether it was permissible to abort a pregnancy during which the mother has been exposed to the teratogenic drug. Zweig concludes his legal analysis thus: [B]ecause it [the fetus] has no reality of its own which would prohibit killing it, in any event, it is reasonable to state that killing it unnecessarily is prohibited.113

This conclusion is in line with the historical development of the halakhic discourse – the prohibition on abortion is based neither on fetal rights nor on the claim to life but on the agent-centered prohibition on destruction or waste of semen. Hence, “necessary” or justified abortion is licit; the question is not whether abortion is permissible, but in which conditions it can either be tolerated or even mandatory. Zweig thinks that prevention of serious deformity may justify abortion, but his overall conclusion leans against permission. Because the Church and public opinion deem abortion of affected fetuses an abomination, such permission would denigrate the name of Israel in the eyes of the nations. This was too much to bear in relation to the value of life and coming only a few years after the Holocaust.

110 111 112 113

Feinstein, 1996, Yoreh De’ah, mark 38. ‫אינשי דלא מעלי‬ Herschler 1985, 113. Zweig 1964.

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During the holocaust, the former chief rabbi of Israel, Isaac Herzog, published a pamphlet attributing the calamity to the pervasiveness of abortion.114 This does not necessarily communicate a restrictive approach when abortion is sought by virtuous women under considerable stress. As a matter of fact, Herzog’s co-chief rabbi, Uziel, issued a responsum permitting abortion for health reasons, even when very mild or uncertain.115,116 Although Herzog and Uziel might not have disagreed legally, their diverse style of writing on abortion anticipates the unfolding discourse. It is also not a coincidence that Herzog had been the chief rabbi of Ireland – a staunchly Catholic country – before he immigrated to Palestine in 1936. Although he was well-educated and versed in a few languages (including French), Uziel, who grew up in the Ottoman Empire, might not have been touched by Christian and Western apprehension on the subject. Let’s now return to this section’s beginning. Whereas both Rozin and Feinstein shared the very same legal opinion on the prohibition of abortion in Jewish law, they were engaged in completely different legal activities. Rozin explicated the issue to his interlocutor; Feinstein set himself to reform both social practice and Halakhah from within. In Robert Cover’s words, Feinstein aimed at redeeming reality by means of legal originalism.117

cesarean and other destructive obstetric surgeries In Israel and other affluent countries, cesarean surgery is as safe as vaginal delivery, scoring a mortality risk of 5/100,000 live births. But in Afghanistan, Nepal, Sierra Leone, and other poor countries, maternal mortality is more than 2/100 live births, and safe cesarean surgery is not available at all.118 For those people, and for all of humanity until the turn of the twentieth century, cesarean surgery and other surgical interventions aiming at the relief of obstructed labor have been highly lethal and quite mutilating. It is difficult to overestimate the tragedy of obstetric mortality and the cultural response it has generated. We know, for example, that some Jewish communities buried women who died in childbirth in a distinct section of the cemetery, an honor reserved only to martyrs.119 For centuries, the Catholic Church objected to both embryotomy (or craniotomy, the destruction of the fetus, as the Mishnah prescribes) and cesarean surgery. Jews, Christians, and pagans allowed cesarean surgery only on women who had already died. From the perspective of scientific medicine, the ancients lacked any capacity to reliably diagnose the death of a birthing mother 114 115 116 117 118 119

Published on the front page of the daily newspaper HaTzofeh. Dec. 4, 1942. ‫אפילו לצורך קלוש של האשה‬ Uziel 1935, Hoshen Mishpat, mark 46. Cover 1983–1984. Hill et al. 2007. Tannenbaum 1891, part 2, mark 94.

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before the child had died as well.120 Post-talmudic Babylonian rabbis (the Ge’onim) wrote that postmortem cesarean surgery is futile because the child is always found dead.121 But the medieval Spanish rabbi and physician Shimon Duran had a different understanding, claiming that the permission to cut the belly of a woman who died during labor is based on the assumption that “because she was nearly dead, she was as good as dead, and was referred to as [if] dead and the child was extracted from her belly.”122 It is evident that, in Duran’s understanding, cesarean births were performed on dying rather than on dead women. By the sixteenth century, postmortem cesarean surgery became officially extinct. The codex of law Shulhan Arukh writes, “The art of diagnosing maternal death in a manner that enables us to bring forth viable neonates has been lost.”123 A sixteenth-century Egyptian rabbi condemned a folk habit of striking the belly of a woman who died in childbirth in order to smother the fetus that is struggling inside, but he does not suggest, instead, trying to save the fetus surgically.124 The seventeenth-century Jewish rabbi and physician Tobias HaCohen describe cesarean surgery thus: Even when the woman and the child are alive, but there is a great delay which prevents its removal through the opening of the womb, they call a specialist, and he cuts through one of the walls of the womb. The author said: Such an action, to the educated reader of this chapter, will be considered a remote possibility and something that should not be done to the daughters of Israel, may God protect them; but because our sages of blessed memory mentioned this in the Talmud, I have attempted to interpret their words.125

While cesarean surgery on dying mothers disappeared from Jewish life, even when the mother was clearly hopeless and the child presumably healthy and viable, early modern European obstetrics gradually became receptive to cesarean surgery on live women. The Papal States initially remained hostile to destructive surgeries, but ultimately, enthusiastic doctors and moral theologians prevailed. This is because, whereas embryotomy is the direct killing of an innocent person for the sake of another, cesarean surgery still carries some hope for recovery.126 By the middle of the nineteenth century, medical technique improved, mortality from cesarean surgery plummeted to the range of 50 percent (i.e., half died), and the Catholic Church in America became an ardent supporter of this procedure as morally superior to abortion.127 Mainstream American obstetric surgeons 120

121 122 123 124 125 126 127

It takes a few minutes from the woman’s cardiac arrest to fetal death. In addition, premodern people did not have the means to monitor the presence of heartbeats, especially in patients who suffered from blood loss, a typical complication of women dying in childbirth. Harkavi 1887, mark 508. Duran 1738, part 1, mark 110. Orah Haim, 330:5. David b. Zimra 1749, part 2, mark 695. Cohen 1707, book 3, chapter 18. Filippini 1995; Blumenfeld-Kosinski 1990, chapter 1. Ryan 2002.

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acknowledged the probity of destructive surgeries as means of last resort. But “to perforate the head, merely because the labour lingers, is a sort of murder.”128 Indeed, where embryotomy was legal, it was acceptable only as “a last resort,” when the mother was already very sick.129 It is no wonder that, even when embryotomy was carried out, maternal mortality was in the range of 20 percent.130 Before the existence of clear and evidence-based clinical criteria, it was very difficult to define “difficult labor.” It is evident that the longer caregivers are inclined to wait, the higher the risk to the mother. In comparison, the old talmudic law is notable both for the exclusion of the language of murder from any discussion on termination of prenatal life and for the avoidance of setting clinical criteria for the permission to perform embryotomy. In Halakhah, “difficult labor” as such may already justify such an extreme measure. Halakhah clearly bends toward avoidance of risk of maternal death, even when the risk is not high. This means that Jewish law sanctions the killing of healthy fetuses even when there are some chances that both mother and fetus would survive. In my view, this is the source for the lenient attitude of Jewish law toward abortion, especially when the mother is in some state of risk or suffering. Moreover, a legal system that on a regular, even if rare basis, ordains the slaughter of term and healthy fetuses cannot cultivate sensibility to early prenatal life. Additional considerations play secondary roles in the different approaches to abortion between Judaism and Christianity. Because the Church teaches that the only sure way to Heaven is by means of baptism, and because baptism must be performed directly on an exposed body part of a live child, motivation was strong to extract babies quickly from presumably dead mothers for the sake of allowing them entry to Heaven by means of baptism.131 Some terrified mothers and caregivers would do their utmost to deliver a live child, even at the expense of their own health.132 A baptized and virtuously self-sacrificing mother suffered no risk of damnation. There are no sacraments in Judaism. Although it is customary to circumcise male infants and abortuses prior to their burial,133 there is no presumption against the ascent to Heaven of uncircumcised (or any other) baby. In the nineteenth century, some East European Jews would extract babies from dead pregnant women in order to circumcise them before burial. It was clearly a folk practice, alien to the rabbis, who were not involved in obstetric care.134 I have not found any modern rabbinic discussion of cesarean surgery on live women prior to its establishment as a safe practice in the late 1930s. It is 128 129 130 131 132 133 134

Dewees 1839, 566. McTavish 2005, 68. Loudon 1992, 132–143. Sullivan 2011; Filippini 1995, 59–100; Kertzer 1993, 20; Emmanuele 1765, book 2, chapter 2. Moscucci 1990, 42. Shulhan Arukh, Yo’reh De’ah, mark 263:5. Epstein 1908, Orah Haim, mark 330:8; Teitelbaum 1866, Orah Haim, mark 13; Jakobowitz 1975, 130–131.

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tempting to conclude that, during medical emergencies, the Jews continued to resort to abortion rather than cesarean surgery. After cesarean surgery became as safe as natural birth (late twentieth century), Rabbi Auerbach gave permission to perform it on the Shabbat when it was indicated solely in the benefit of the baby (many sick babies cannot tolerate the stress of natural birth). However, Auerbach also stated that the woman has no duty to consent to such a procedure, even if it is the only means by which to save her baby. No person has a duty to self-harm for the sake of saving others; the marital contract does not entail a duty to undertake additional suffering for the sake of having children.135 Recent trends seem to abrade the extreme rabbinic caution not to press women to suffer and self-risk for the sake of their fetuses. Rabbi Silberstein recently wrote in the name of his father-in-law, Rabbi Elyashiv: Not always may a woman refuse cesarean surgery [that is indicated in the benefit of the fetus]. Although nobody is obliged to self-risk for the sake of an act that might [but might not] save others, the woman has a duty [to do so] for the sake of her own fetus. This is because as a married woman she accepted the risk and difficulty of childbearing. . . . It is reasonable to say, that she must accept a little more risk. . .especially today, when many women undergo cesarean surgery and it has become the [natural/ordinary]136 way of giving birth. Cesarean surgery is not “extraordinary.”137 Hence, until she has fulfilled her commitment to her husband [i.e., to give birth to at least one son and one daughter],138 she must accept this minor additional risk. However, this is so only if the child is healthy. If the child might die [despite the cesarean surgery], the woman might refuse risk, when this might eventually be in vain.139

It is noteworthy that Rabbis Elyashiv and Silberstein do not have a naturalist conceptualization of childbirth. Or, rather, the rabbis identify “natural” with the prevailing practice. They do not seem to criticize the growing rate of cesarean births either. Rather, they infer from this new and controversial trend a new halakhic norm for women. Moreover, the expectation to self-risk has nothing to do with either the value of the life of the fetus or the value of procreation, but with the woman’s contractual duty to her husband. Nonetheless, the rabbis preserve the special halakhic sensitivity to the mental anguish of patients, especially birthing women. Recently published Israeli research exposes the extent of post-traumatic stress among women in the postpartum period. Whereas only 3.5 percent meet the full diagnostic criteria, up to one-quarter suffer from some symptoms. Poor body image and difficult childbirth in the past were correlated with risk, but not cesarean surgery, which was performed on 20 percent of the women.140 135 136 137 138 139 140

Avraham 1997, 36–37. ‫וכך הוא בימינו דרך לידה‬ ‫חריג‬ See p. 201. Avraham 1997, 36. Shlomi Polchek et al. 2012.

Childbirth and Abortion

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Despite the safety and relative comfort of contemporary obstetrics, postpartum mental morbidity is still common and unexplained. Little is known about the mental impact of the abandonmnet of traditional home-birth in favor of medicalized hospital birth. Anguish might result from loss of a child as well. In Judaism, stillbirth is paradigmatic of mental anguish and trauma.141 In addition to the association of abortion with atheism and promiscuity and the growing respect for conservative Western morals, a third historical factor operated behind Feinstein’s and other rabbis’ shift of the Halakhah on abortion. The complete dissolution of traditional Jewish communities during the Holocaust occasioned the loss of oral traditions and daily birthing practices so critical to the moral and legal structure of abortions in Jewish society. PostHolocaust rabbis moved to Israel and other Western countries in which hospital birth was gaining currency. The Jewish folk midwifery and “women’s wisdom” disappeared, along with its oral teachings. Feinstein laments this loss explicitly,142 as does another rabbi who survived the Holocaust.143 In a similar vein, Rabbi Klein (1923–2011) approves of the “old habit” of cutting short the hair of married women. Although he considers this a halakhic matter, he also confesses that “we do not know how it used to be done” because, in the past, wise women took care of this as well as of other intimate feminine matters.144 Long before the disruption of the traditional Jewish communities, rabbis were not privy to fateful decisions regarding fertility, pregnancy, and birth. In the nineteenth century, a rabbi was asked how to deal with a pregnant woman who died. The rabbi surveyed the halakhic literature and manuals on terminal care, such as Ma’avar Yabbok,145 admitting that “there is nothing [in them about this problem].” He writes that such matters are entrusted to the oral tradition of old Jewish women.146,147 This is a noteworthy point. Whereas the history of European obstetrics is beset by growing contempt for and control of “wise women,” who were suspected of incompetence and immorality (i.e., complicit with abortion), the Jewish tradition has always praised the virtue and wisdom of midwives, and the rabbis never tried to regulate their practice.148 Indeed, we find criticism, even scorn, directed at Jewish midwives in the mouths of “Enlightened” (maskilim) doctors who were disposed against the traditional ways of life in general.149 141

142 143 144 145 146 147 148 149

The source is the prayer “Kedusha de’sidra” which existed already in talmudic times (T. Sottah, 49a). The part requesting God to spare us from futile efforts is from the post-talmudic, Geonic period (Elbogen 1993, 71). Feinstein 1960, mark 52. Halbershtam 1998, Yo’reh De’ah, mark 149. Klein 2009, Part 5, mark 243 (p. 396). P. 52. .‫לא נמצא מזה כלל רק שהוא קבלה שיש ביד נשים הזקנות מבני עמנו‬ Teitelbaum, 1866, Orah Haim, mark 13. Barilan 2009–2010, 145–158. E.g. Marcuze 1790, 76

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Jewish Bioethics

The talmudic literature praised midwives for their skill in life saving surgery, even if mutilation was involved.150 In Biblical Hebrew, the words for midwives are Ha’ya (life) and Ha’kha’mah (wise). Other Jewish sources commend midwives for their interpersonal skill as well, describing their ability to encourage and to sooth birthing women in agony.151 In the talmudic literature, good midwifery is emblematic of holistic care, combining spiritual support with swift judgment in life-and-death dilemmas, manual operative skills, and courage in undertaking active intervention where necessary.152 Midwives were considered paragons of trust; they were believed to make a fair and professional commitment to their patients even at risk to their own interests.153 The Talmud writes that the founding fathers of Israelite spiritual culture (Moses) and material culture (Bezalel, the artist of the Tabernacle) were the children of courageous and wise midwives.154 Those midwives excelled in encouraging men and women to bear children in difficult times,155 thus managing to inspire in apparently hopeless and oppressed people hope and desire for children. Because they know how to encourage and support women in agony, the very presence of the midwife at the bedside of the woman is as valuable as a life saving act, worthy of desecrating the Shabbat.156

contemporary teachings on abortion One is hardly pressed to find a rabbi who would not endorse an abortion that doctors deem necessary for the health of the woman. The performance of abortion early in pregnancy and the use of drugs (as opposed to mechanical means) are preferable.157 But all of these considerations are secondary. Jewish law has introduced to world cultures two special principles regarding the care of pregnant women. The first is extreme caution regarding their alleged vulnerability to mental anguish. The permission to eat on a holy day of fasting is given on the woman’s request, even if doctors opine that it is not necessary.158 Maimonides spells out an even more radical ruling: [If] they determined the foods that are proper for her, and she craves to eat more, or to eat other foods, due to the disease of craving that she has in her belly, she [should] eat as she will, whatever she wants, and the husband cannot deter her by saying that, if she eats too much or if she eats bad food, the child will die, because [respect for] her pain prevails.159 150 151 152 153 154 155 156 157 158 159

E.g. Exodus Rabbah 1:19. Talmud, Sotah, 11a. Ibid. Ibid. Mishna Shabbat, 18, 3. T. Sottah 12a. T. Shabbat, 128; Shulhan Arukh, Orah Ha’im, mark 330. Steinberg 1991, 93–94. T. Yoma, 82a. Hilkhot Ishut, 21:11.

Childbirth and Abortion

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In this case, although slaking the strong craving to eat is unhealthy both to mother and child, nobody has the power to stop the pregnant woman from eating. Although miscarriage induced by improper eating is different from direct and deliberate induction of abortion, and although some later authorities contested and qualified Maimonides’s ruling, its shadow looms large over every real-life rabbinic consultation on abortion. Obviously, serious and sincere worry about long-term psychological morbidity, let alone significant health problems, is much more salient than an impetuous and passing craving for bad food. The second principle on abortion introduced by Jewish law is that protection of the mother from significant harm and distress stands on a higher level of valuation than does the life of her unborn child. Consensus also obtains regarding the permissibility to abort pregnancies conceived through sexual abuse. This is because of considerations of mental health and a lack of worry about the slippery slope toward promiscuity. Moreover, as Rabbi Perilman explains, a woman is not a field that nourishes every seed planted in it. She has no responsibility for a child implanted against her wish, and she may weed it out. Rabbi Perilman explains that since a woman’s duty of procreation is to the man, there can be no such a duty to a rapist.160 Modern medicine has brought with it the problem of abortion motivated by a desire not to have a sick or afflicted child. According to the Israeli Ministry of Health, about one-quarter of induced abortions in Israel are carried out for this reason.161 This statistic is silent about the religious and moral convictions of the women, but there is no doubt that the problem of abortion presents itself to religious women no less than to nonreligious ones. This is so because many women who would make the extra sacrifice and care for an unplanned child may nevertheless feel responsible, perhaps even guilty, for the suffering of their innocent children that they could have prevented had they aborted them. In one of the longest responsa on abortion ever published, Rabbi Weinberg wrote in the early 1950s that, similar to eating human flesh, abortion is too obscene to be contained by an explicit prohibition. Since the unborn is “human life but less than a soul,”162 the Torah grants permission to desecrate the Shabbat whenever one attempts to protect it. It certainly must not be disposed of wantonly. However, Weinberg gives permission to a woman who contracted rubella to abort in fear of fetal malformation. “If the fetus causes illness or sorrow to the mother,” there is an opening to permit abortion. During the first forty days of pregnancy (counted from conception), the permission is unqualified.163 Loyal to his position that abortion is like homicide, Rabbi Feinstein

160 161

162 163

Perilamn 1891, mark 31; Klein 2001, 47–48. Israeli Ministry of Health’s website http://www.health.gov.il/NewsAndEvents/SpokemanMesseges/ Pages/12122011_1.aspx ‫מקצת נפש‬ Weinberg 1966, mark 127 (pp. 342, 349). T. Yevamot 69b states that in the first forty days the embryo is “mere water.”

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Jewish Bioethics

forbade the abortion of afflicted fetuses, including those who suffer from TaySachs, which involves a life expectancy of less than one year and significant suffering for the child.164 A completely opposite opinion to Feinstein was expressed by Rabbi Shaul Israeli, a judge in the Supreme Rabbinic Court of Israel. Israeli presents a mode of reasoning that is almost purely legal and hermetic. All of his considerations are taken from the world of Halakhah only. First, he concedes that, for some people, death is better than life (see discussion in Chapter Ten). It follows that the duty of neighborly love entails a duty to spare such people from a bad life. Although the absolute prohibition on murder is an insurmountable barrier against direct and active euthanasia, it is irrelevant to abortion, because the absolute, positivist, halakhic prohibition on murder begins at birth.165 The rabbinic literature never uses the word “murder”166 in relation to the killing of unborn people. Even Feinstein refrains from doing so. The thrust of Rabbi Israeli’s reasoning lies in the absence of any role given to the stage of pregnancy. This is counterintuitive to many, if not most, people, and to almost all other legal and moral systems. It is noteworthy that Israeli’s ruling was issued before the era of prenatal diagnosis and before what many observers consider an epidemic of abortion of children owing to substantial as well as highly questionable medical data. Rabbi Waldenberg led the lenient camp until his death in 2006. He was an Israeli Judge in the Supreme Rabbinic Court and a de facto rabbi of Jerusalem’s biggest religious hospital. His status, personal experience, and numerous and detailed responsa on medicine and Halakhah have rendered him an authority on the level of Feinstein. Waldenberg gave unequivocal permission to abort Tay-Sachs babies, vehemently criticizing Feinstein’s position on abortion, especially its open disregard of past sources and intolerance of permissive opinions.167 Waldenberg also gives permission to abort Down syndrome fetuses “up to seven months” because “at that stage, formation is complete.” However, since even developmental milestones recognized by Halakhah carry flimsy legal power with regard to abortion, Waldenberg conditions the abortion of term (post seven-month) Down syndrome babies on individual counseling.168 This may not entail a judgment that life with Down syndrome is not worth living, but rather is in recognition of the grave psychological complications that might ensue from withholding abortion care from a woman who strongly and conscientiously wants to abort. The controversial notion of “post abortion syndrome” is unknown to the rabbinic discourse. In another place, Waldenberg writes that although the legal [halakhic] prohibition on abortion is “very light,” according

164 165 166 167 168

Feinstein 1985, Hoshen Mishpat, mark 69. Israeli 1966, mark 32. See p. 160. ‫רצח‬ Waldenberg 1981, mark 100. Waldenberg 1981, mark 101 On the significance of the nail and hair sign see p. 311.

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to the Kabbalah [mystical traditions], it is a very serious offense.”169 He qualifies his permission to abort using strong words: All of the Children of Israel are under a grave warning not to belittle the issue of termination of pregnancy, [relying on pretexts] of apparent or genuine considerations of comfort170. . . . And not to be worse than the civilized nations, that have set laws on this, and imposed heavy penalties on illegal abortion.

Perhaps more than any other influential rabbi in bioethics, Waldenberg invokes explicit kabbalistic considerations in his responsa. This is especially evident in his approach to organ transplantation171 and abortion. Space is limited for a discussion of the interplay between Halakhah and Kabbalah. It may be observed that the kabbalistic semantic structures add an additional dimension to the discourse on abortion. It is an additional, neither legal nor moral, set of normative considerations whose chief social characteristic is its intimate, nonpublic character of symbolism and religiosity. In certain respects, it is dialectically complementary to Halakhah. According to the latter, abortion carries a vague and mild prohibition; the former casts it as severely sinful. Owing to its mystical dimensions, Kabbalah is especially apt to capture subjective, psychological realities that cannot be contained in objective and systematic perceptions of reality. Perhaps because Hasidism is heavily influenced by Kabbalah and strongly underscores personal religiosity, hasidic rabbis, mainly the Rebbe of Gur, led the struggle against the liberalization of abortion in Israel in the 1970s. In 1980, his representatives in the parliament managed to remove from the law a clause permitting abortion when continuation of pregnancy might result in “difficult family or social circumstances.”172 The chief halakhic authority for the Israeli hasidim is Rabbi Wasner. He permits abortion of affected babies on the condition that the baby “stands no chance to survive” and only “much time before birth” (the metaphor is “distant173 from birth”) and certainly “not approaching the seventh month.”174 Overall, rabbis, even those who resort to a strong pro-life language, ultimately do not discuss abortion in absolutist language. For example, Rabbi Steinberg summarizes his discussion on abortion thus: It is necessary to consider frequent successive pregnancies, when the woman is very weak, or when she suffers from anemia, or when she is breast-feeding. In any [such] case, he should consult a rabbi, and each case should be considered on its own merits, from both the physical and the mental standpoint, as he sees fit.175 169 170 171 172 173 174 175

Waldenberg 1985b, mark 51, gate 3, chapter 3, clause 18 in the summary section. ‫נוחות‬ P. 119. Schiff 2002, 213–214. ‫רחוק‬ Wasner 2002, part 10, mark 259. Steinberg 1991, 86.

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Jewish Bioethics

Rabbi Lichtenstein, who is in line with Feinstein’s ruling that abortion is a kind of homicide, nevertheless calls for “flexibility” in considering abortion, noting that the “sensitive decisor” is required “to give serious consideration to farranging approaches in one case, and to ignore them in another; to rule on the side of leniency in cases where a serious family tragedy may be expected.”176 Rabbi Lichtenstein’s choice of words is noteworthy. He does not require a grave medical problem to justify abortion, but rather resorts to a broad psychosocial term, “tragedy in the family.” Orthodox rabbis never promote “flexibility” when desecration of the Shabbat and other fundamental religious taboo are at stake. “Tragedy in the family” is not a halakhic term; it is useless when one tries to balance one halakhic value or duty against another. Although Lichtenstein is affiliated with Soloveitchik’s very voluntarist and formalist school of Halakhah, on this issue, he resorts to an extra-halakhic, actually Greek, literary concept, not to be found at all in the rabbinic literature.177 This may count as illustrative evidence that the problem of abortion lies beyond the grasp of the formal language and application of Halakhah as a system of legal reasoning and adjudication. The hybridization of strong legal and moral language with openness to particularistic leniency is typical of the rabbinic discourse on abortion, and it might serve rabbis in their dual roles as leaders of public opinion and policy and as pastors who support the weak in their confrontation with painful personal and religious dilemmas. But Lichtenstein’s paper is neither a responsum nor a theoretical article, but is a statement that he submitted to an Israeli public committee considering the abortion law. Needless to say, this hybrid style is of little value in transparent and pluralistic democratic deliberation on national policy. In my view, this is the main reason why, aside from the public debate in the late 1970s, the religious voice has not left an impact on the National Committee on Late Abortion (2006) and the Supreme Court Committee (Matza committee) on Wrongful Birth (2012). Israeli law is secular, but the obscure and mild religious attitude to abortion in Judaism does not allow religion to play the central and powerful restraining role it usually does with regard to abortion in other countries. A secular Israeli member of the parliament cites a statement of the chair of the Israeli Gynecological Association who said that each year four thousand “unnecessary”178 abortions are performed in Israel because of excessive worry over fetal defects and over future malpractice suits over fetal defects.179 Recent research has shed light on the high level of genetic and prenatal testing among Israelis. Many physicians, ethicists, regulators, and rabbis believe that too many babies are aborted in Israel due to excessive worry about the possibility of illness 176 177 178 179

Lichtenstein 2001. Lichtenstein earned a PhD in English literature, a very unusual degree for a rabbi. ‫סתם‬ Leiss 2012.

Childbirth and Abortion

185

and disability. Prenatal diagnosticians who fear malpractice suits and anxious parents would rather opt for abortion than take a risk. The Israeli sociologist Larissa Remennick refers to this situation as the “quest for the perfect baby.”180 In my view, this idiom is grossly misleading. Neither Remennick nor any other scholar has ever demonstrated that Jewish women strive to have “perfect” or “excellent” children. No matter how vigorous and even excessive they might be, efforts directed at the prevention of disease and disability, even of very mild conditions, are quite different from attempts to “enhance” children or to abort “imperfect” ones. According to the Talmud, a parent should wish his or her child to be an average person, not stupid, not too smart.181 The Talmud recognizes the human tendency to react in revulsion from the disabled and different, to overestimate the extent and impact of their objective difficulty (i.e., to construct handicap), and to avoid them; the Talmud also condemns such reactions.182 However, the rabbinic discourse on the prevention of a life full of misery and on “letting die” is anchored in the motivation and duty to reduce suffering. We do not find in the rabbinic sources the contemporary exploration of the intricate relationship between impairment (i.e., an objective deviance from normal human function, such as poor eyesight), disability (i.e., restriction on ordinary activities in a given society), handicap (i.e., the role of the impaired/disabled in society and its cultural construction), and the subjective experiences of suffering, shame, and helplessness. The rabbinic construction of the Golden Rule, of the duty of neighborly love, is subjective – “That which is hateful to you, do not do to your neighbor.”183 Because of the centrality of agony and revulsion, this formulation empowers every person who is in distress; but it also distracts attention from long-term and second-order reflection on the sources of suffering, on whether a situation should be perceived as agonizing, and on the relationship between the dyads of good–evil and agony–joy. Even rabbis who are very permissive with abortion are very careful not to rule that certain conditions call for abortion. It is only through maternal subjective judgment of the future subjective well-being of her child and self (and other family members as well) that the performance of abortion might be deliberated by the rabbis. In my testimony before the Israeli Supreme Court Committee on Wrongful Birth in October 2011, I argued that recognition in this entity will inevitably set a standard for abortion in the sense that society would expect “good mothers” to abort children whose condition might be considered as “wrongful life.” For if society deems certain kinds of life as “not worth living for the person,” it would be difficult to respect women who choose not to abort 180 181 182 183

Remennick 2006. Berakhot, 3b. Ta’anit, 20b. T. Shabbat, 31a. The earliest source of this formulation is Tobit 4:16. The Talmud constructs this maxim as the “fundament from which one may learn the whole of the Torah.”

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Jewish Bioethics

such lives. This would be an unprecedented and deplorable moral, legal, and social situation. It will also reflect a failure to appreciate the halakhic separation of private morals from public policy and respect for subjective sensibilities of suffering from objective judgments on the human condition. Precisely because Halakhah is probably the religious morality most liberal with abortion, it would be quite problematic to import permissive rulings on the abortion of “defected babies” without a good understanding of the workings of Halakhah and Jewish morality.184

lessons from the rabbinic discourse on abortion Judaism may serve as a test case of a culture with deep commitments to “family values,” human life, and human procreation, and yet, this commitment has never regulated abortion by means of law enforcement. Social power has remained in the hands of men. But these men, the rabbis and community leaders, tended to trust women – as patients and as caregivers – in matters of feminine and reproductive healthcare. Judaism has channeled the religiously motivated aversion to abortion to the nonlegal, private realm of Kabbalah, thus protecting women from deontic idioms and law enforcement while exposing them to psychological and cultural pressures. The unborn do not constitute legal reality and have no social face, but they manifest a formidable spiritual presence. One may find in Judaism a threedimensional bioethical matrix that is comprised of the legal, the moral, and the religious (or mystical, spiritual). Jewish law does not pretend to reach a closure on the abortion debate. It forces a regulative closure of the most common, most intractable, and most serious dilemma associated with pregnancy and labor of the premodern era – conflicts between the life of the fetus and risk to the mother’s life. Regarding this dilemma, Jewish law is explicit, uncompromising, and one-dimensional. Although rabbis often permit abortion, and although the gravity of the motivation to abort often outweighs considerations of fetal maturity, one must not conclude that religious Jews undervalue fetal life. Many, if not most, religious women are appalled by the idea of abortion; virtually all antiabortion groups in Jewish society are religious. Legal lacuna might breed diverse moral attitudes, but perhaps the most important lesson to take from this chapter is that the regulation of at least certain bioethical issues is irreducible to either the legal or moral realms.

184

Report of the Public Committee on Wrongful Birth, Israeli Ministry of Justice, 2012 http://go. ynet.co.il/pic/news/word.doc

8 Care for Premature Neonates

prematurity, “monstrosity,” and the social disability of bastardy No other area of medicine has seen such a radical change in mortality as care for the newborn. Historians estimate that premodern rates of mortality during the first five years of life were often as high as 40 percent. The very first firm statistics date from nineteenth-century England, indicating infant mortality rates of 15 percent – a staggering number by contemporary standards, which are in the range of 0.5 percent in developed nations, with the worldwide average close to 4 percent. In affluent countries, most of these deaths result from congenital conditions and occur immediately after birth. In the poorer countries, most deaths are due to infectious disease and malnutrition.1 Before the era of pasteurization and baby formulas, infants were dependent on breastfeeding, and wet-nurses were inadequate substitutes for a child’s natural mother. In that era, when a mother was dead or frail, the chances of infant survival plummeted.2 Infant mortality, which is mortality during the first year of life, is strongly correlated with the material and economic well-being of a community.3 Since the Jews were an underprivileged and poor minority, one would expect higher rates of infant mortality among them. As a matter of fact, the data indicate otherwise. According to a large study of comparative demography, in the middle of the nineteenth century, infant mortality among the Jews was in the range of 16 percent, compared to 24 percent among non-Jews.4 Of 559 births registered in the late eighteenth-century Livorno Jewish community, 3.3 percent were stillbirths and 4.3 percent had died in the first days of life, before they had been given 1 2 3 4

Lee 2007; Lomax 1993, 150; Rose 1986, chapter 1; Kertzer 1993; Finucane 1997, 42. Heywood 2001, 63–69. Riley 2001, 156–165. Schmelz 1971.

187

188

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personal names. Altogether, almost 8 percent died perinatally.5 In seventeenthcentury Padua, Jewish infant mortality was 20 percent.6 Non-Jewish historians and demographers attribute the mortality gap to the Jewish valuation of life and health and to the absence of a cultural resignation to fate. One example of this resignation is the Christian folk belief that children born on Friday were doomed to die. Alcohol abuse by adults and the liberal use of opiates in crying babies were much less common among the Jews.7 The rabbinic codex of law, Shulhan Arukh, rules that every minor8 should be regarded as a sick person, for whose sake halakhic leniencies obtain, for example, the granting of certain permissions to warm food on Shabbat.9 Indeed, medieval people believed that the child, being an immature adult, is of an imperfect nature and inherently lacking in health and virtue.10 Maimonides rules that it is permissible to desecrate the Shabbat by breaking a door behind which a child got accidentally locked. The reason given is worry that the child might panic11 and consequently die.12 The root – b-ayin-t – is the one used by contemporary responsa in their discussion of mental trauma of patients.13 Maimonides used a word meaning “baby” or even “toddler.”14 Rabbi Emden wrote, in the eighteenth century, that this law applied to children up to age six who depend on their mother and whenever there is a reason to worry that even an older child might panic as well.15 It is not clear to me whether doctors and rabbis believed that a five-year-old child locked in a room for a few hours was in danger of panicking to death. Evidently, Halakhah has cultivated a special, extramedical sensitivity to the mental trauma of vulnerable people. This vulnerability reduces many obstacles that Halakhah might pose to the care of children, but it also reduces the burden of guilt over lost neonates, whose mortality rate was especially high. If the law regards every health need of every child as urgent, it does not set high expectations for the survival of sick neonates. In a similar vein, in my view, one factor among many accounting for the popular success of the hasidic movement in the eighteenth and nineteenth centuries is its theological leniency with indigent mothers whose babies died, possibly due to what today we might call neglect.16 From the hasidic sources we may infer that non-hasidic, mainstream, Jewish society became censorious of mothers who lost

5 6 7 8 9 10 11 12 13 14 15 16

Toaf 1978. Toaldo 1787. Derosas 2003. Kattan – ‫ – קטן‬a boy younger than thirteen years and a girl younger than twelve. Orah Haim, 328:17, Remma. Ballester 1996. ‫יבעת‬ Maimonides, Hilkhot Shabbat 2:17. P. 95. ‫תינוק‬ Emden 1994, 48. Berger 1907, 118–119; Zinz 1864, Yo’reh De’ah, mark 53.

Care for Premature Neonates

189

their babies. If such a harsh turn occurred in European Jewish society in the eighteenth century, it might have resulted from the influence of the contemporaneous European crackdown on abortion, infanticide, and child neglect. Most abandoned infants were physically healthy but socially handicapped by illegitimacy, dire poverty, or both. The popularity of the belief in reincarnation in hasidic and other Jewish circles might also be seen in the light of staggering infant mortality. In this chapter, I show that, in Judaism, the legal obligation to fight for the life of neonates is much weaker than the duty to save babies and older persons. If Derosas and other historians are right in their hypothesis that explains the infant mortality gap between Jews and non-Jews by cultural factors, I will argue that an informal vitalist ethos combined with a lenient law brought forth good survival rates without paying the psychosocial price of repression. This means that proactive and vitalist laws and rhetoric may not be necessary for the protection of the life of the vulnerable. It would also be unreasonable psychologically to stress the value of life in the language of duty, sin, and blame when at least one out of ten newborn babies was doomed to die in infancy. Indeed, as we will see in the second part of this chapter, in the era of neonatal intensive care and very low infant mortality, the leading rabbis have issued vitalist rulings that have no basis in the law proper. One might suggest that when reality has become hospitable to an ideal, the law quickly adjust itself. In the Talmud, the term nefel17 designates a newborn who is doomed to die within thirty days.18 Neonates who unexpectedly died within thirty days of birth are also referred to as nefel. They receive neither full rites of mourning nor personal graves. They are buried in communal burial sites dedicated to amputated body parts and other human remains.19 Although every human person deserves respect and love, in Halakhah, in order to claim full rights for the protection of life, one must have an established capacity to maintain independent life. The talmudic term for this presumption is “the power of life” or “presumption of survivability20.” A healthy term infant is treated as if he or she is fully viable, since there in no reason to suspect otherwise. But every premature infant, as well as a sick infant who is younger than thirty days, does not have “the power of life.” Those who have survived thirty days and have established “the power of life” deserve full protection, even if they later contract mortal illness. It follows, then, that the duty to save the temporary life of non-neonatal terminal patients is stronger than that of protecting the life of premature infants. The life of the former is about to end, but it has also been firmly established in the world.21 17 18 19 20 21

‫ – נפל‬literally meaning, “fallen one.” M. Hullin, 4:4; T. Shabbat, 136a. T. Ketubot, 20b; Tucazinsky 1960, 117–119; Klein 1998, 136–138. ‫חזקת חיות‬ Waldenberg 1985b, mark 17, chapter 6.

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Jewish Bioethics

The Talmud employs the term “power of life” in other contexts as well. In talmudic jargon, tumtum22 is a person born without distinct external genitalia, which may have remained covered by skin or tissue. In such a case, one waits until the child is twenty years old for the “true” sex of the child to be revealed.23 On that presumption, Rabbi Abahu states that a tumtum may only acquire the “power of life” by the age of twenty years.24 Together with bastardy, the Torah considers genital deformity incompatible with full participation in the community25 and as possibly a kind of metaphysical deficiency in the Image of God in man.26 Nobody has ever suggested that a tumtum’s life is not worth protecting. As in the case of nefesh (soul) in the deliberations on fetal life, we find talmudic use of the same legal term, yet in completely different circumstances and without an attempt to integrate its use. The abstract meaning is more coherent though – the notion that a “power of life” is achieved through the consolidation of independent viability and the essence of the distinct human shape. The Talmud recounts a story about a child whose penis was accidentally cut off during circumcision. His father prayed that the boy die.27 This might sound shocking to contemporary ears unless we keep in mind that, in premodern cultures, crippled babies were routinely put to death, as “monsters” and “changelings.”28 Whatever one thinks of the father who prayed for the death of a child who lost his penis, the Jewish sources are noteworthy for the absence of similar death wishes and reduced commitment to life regarding other kinds of malformations and disabilities.29 In this broad historical context, the rabbinic preoccupation with sexual malformations highlights the absence of the science of monstrosity in other respects. In comparison to non-Jewish culture, this is striking.30 I have argued that one reason for the weaker commitment to save the lives of premature neonates is their low chance of survival. But there is an additional reason why prematurity creates a distinct category in Jewish law. According to the talmudic literature, the signs of the “power of life” are the complete formation of hair and nails.31 One Midrashic source adds a third sign: complete formation of the lips.32 Whereas the formation of hair and nails is an established sign of fetal maturity, the referral to the lip might have a spiritual 22 23 24 25 26 27 28 29 30 31 32

‫טומטום‬ M. Niddah, 5:9. T. Yevamot, 80a. Deuteronomy 23:2. Barilan 2009. Yerushalmi Shabbt, 19: 2. Forbes 1962, 275; Park and Daston 1981; Shahar 1990, chapter 6. See, for example, Flekeles 1809, mark 53. Wilson 1993. Tosefta Shabbat, 16:4. Midrash Tanhuma on Numbers, mark 18.

Care for Premature Neonates

191

explanation because, according to some early sources, the human spirit33 is manifest in the ability to articulate speech.34 Additionally, cleft lip is the most common facial deformity, with possible implications on the Image of God in the baby. Medieval rabbis, including the Spanish physician Rabbi Shimon Duran, insisted that only the hair and nail signs, and no others signs commonly associated with neonatal prognosis, are legally relevant.35 Contemporary rabbis reaffirm this approach.36 Yet when the hair and nail signs were incorporated in modern criteria for establishing gestational age,37 the rabbis did not adopt them. In line with the halakhists’ avoidance of direct naturalism, the talmudic signs of survivability remain close to scientific theory, but independent of it.38 The talmudic literature states that premature babies born in the seventh month of gestation are viable, whereas those born in the eighth month are not.39 This apparently paradoxical tenet was quite widespread in antiquity and in some non-Western societies as well.40 The rabbis might have understood this maxim as related to the talmudic statement that “there are two ways of [embryonic] maturation.”41 Hence, the seven-month baby is not premature but a product of an alternative, faster maturation tract. Indeed, Maimonides writes that a fully developed infant might be born following a seven-month pregnancy. For such an infant, seven months’ pregnancy is normal. On the other hand, the nonviable newborn mentioned in the sources is a fetus destined for a nine-month pregnancy that was accidentally born prematurely; therefore, its maturation is incomplete.42 Maimonides actually neutralizes the calculated age of pregnancy as a prognostic factor, writing that even in cases in which we know for certain that the child is “born to the eighth,” if its formation is complete, we should regard it as a “born in the seventh, whose birth has been delayed [until the eighth].”43 To formulate a theory of halakhic ethics with regard to newborns, we have to explain why Halakhah ignores signs of monstrosity, in spite of their relatively high prognostic accuracy, and why Halakhah upholds the unreasonable belief in the possibility of completing fetal life in seven months.

33 34 35 36 37 38

39 40 41 42 43

‫ רוח‬,‫נשמת חיים‬ Unkelos gloss on Genesis 2:7. Duran 1738, part 3 marks 342 and 101. Gutl 1988. Dubowitz, Dubowitz, and Goldberg 1970; Ballard, Novak, and Driver 1979. For similar examples of rabbinic persistence with halakhic criteria even when the scientific criteria are quite close, see Kook 1986, 24, and Halbershtam 1998, Yo’reh De’a, mark 14. Tosefta Shabbat, 15:7; T. Shabbat, 135b; Midrash Tanhuma on Numbers mark 18; Gutl 1988. Reiss and Ash 1988; Hanson 1987. Yerushalmi, Yevamot, 4:2. Hilkhot Millah, 1:3. Ibid.

192

Jewish Bioethics

From a practical point of view, and in stark opposition to contemporary medicine, in the past, decisions about the care or neglect of infants were most often social rather than medical affairs. Historians estimate that, during the nineteenth century, more than 100,000 babies were abandoned in Europe each year.44 It seems impossible to tell how many of them were Jewish. Jewish sources indicate that bastards (mamzerim) are better off dead and that Jewish mothers often neglected such infants. However, in Jewish law, “bastardy” was not synonymous with illegitimacy. As a matter of fact, there is no halakhic term for nonmarital (i.e., out of wedlock) children as such. The category mamzer45 encompasses the fruits of adultery and incest only. We do not know whether all “bastards” mentioned in the rabbinic sources were legally (i.e., mamzer) or socially (i.e., illegitimate) “bastards.” In the absence of a legal term for the latter group, and in light of a fate very similar to legal bastardy in non-Jewish society, the fate of such children in the Jewish communities remains a mystery. According to the Talmud, half of all foundlings were bastards; the other half was neglected because of extreme poverty, “hunger.”46 The two factors tend to overlap, since single and socially marginalized mothers are quite poor and detached from a social network of support. Many, perhaps most, were not alienated from their children; rather, they often believed that abandonment in a public space would guarantee the child better chances in life. Stories about the killing of bastards are known from medieval Jewry as well.47 The medieval anthology Sefer Hasidim writes that if a woman is not given permission to abort an illegitimate48 child, she would most likely kill him after birth.49 Rabbi Emden (eighteenth-century Hamburg) wrote that aborting a bastard is possibly a religious duty.50 Rabbi Sofer (early nineteenth-century Hungary) claims that many women “starve their [out-of wedlock] children to death.”51 Following Rabbi Isserlin, Medieval and premodern rabbis repeatedly ruled that fathers are exempt from paying alimony for the upkeep of their bastard children.52 This was certainly devastating for numerous infants. Contemporary rabbis acknowledge that this exemption has no basis in the Talmud and tend not to accept it.53 European society was concerned with illegitimate children as an economic burden on society. (The rate of illegitimate children reached 18 percent in

44 45 46 47 48 49 50 51 52 53

Kertzer 1993, 72–73. ‫ממזר‬ Kiddushin, 73a, and gloss Tosafot. Baumgarten 2004, 174–183. ‫זנונים‬ Wistinetzki 1924, mark 1918. Emden 1884, part I, mark 43. Sofer 1877, mark 127. Isserlin 1519, part 2, mark 37. Weinberger 1976, 52–53.

Care for Premature Neonates

193

Napoleonic Paris.)54 But there is no evidence that this was a consideration in the eyes of either the rabbis or the Jewish communities. It is worth citing in full a vignette from a very influential rabbinic book on the laws and habits of Medieval German Jewry. I have inserted a few comments of my own in brackets and edited the language: A case which I have witnessed, and a few years later Rabbi Segal told us this [story] while teaching Halakhah on a bastard [indicating that the practice described has received official endorsement as an example to be emulated]. Rabbi Segal gave permission to bring hot water to wash him on the night of Shabbat [that is to say, that the leniencies in the laws of the Shabbat were not withheld from this infant]. Rabbi Gumpercht, Rabbi Segal’s brother was the circumciser. The circumcision was held outside the synagogue, because ordinary55 babies are circumcised inside the synagogue. The rabbi instructed his brother to omit the customary prayer for the life of the boy, and instructed the audience not to utter the customary congratulation that the boy grow, learn Torah [i.e., reaches the age of thirteen], marry, and have a life of good deeds. This is because the holy nation of Israel is averse to the sustenance56 of bastards among them. And the rabbi also instructed to give the boy a distinct name and to announce publicly that he was a bastard so as to prevent his future marriage inside the community. This child died when he was ten years old. And the community wrote about it to Maharil [the rabbinic authority in Germany] that this was good news that he has died and been taken from us.57

Despite the overt enmity to the survival of bastards, not a single rabbinic source has permitted the deliberate killing of any kind of infant. Halakhah’s focus on agent-centered considerations, such as action versus inaction and direct versus indirect action,58 as well the halakhic focus on deeds rather than on mental states of mind facilitated a dichotomy in which the law protects bastards from direct harm and yet, the fundamental halakhic distinction between “action” and “inaction” is of little relevance to the care of infants for whom inaction is fateful. Moreover, it was very difficult to sustain expectations for the survival of bastard infants when so many beloved infants died even in the best of caring hands. In the case of illegitimate babies, those caring hands were often frustrated by extreme poverty and helplessness. Even if Derusas and other demographers are right in their contention that Jewish society did not harbor fatalistic attitudes toward children, the rabbinic sources promoted such fatalism with regard to bastards. The precise fate of bastard children was too sensitive a topic for an open discussion. In one talmudic source describing their gradual marginalization, a rabbi dodges a question about whether one should save a bastard whose life is in danger.59 According to the Talmud, King David prayed to God that his bastard

54 55 56 57 58 59

Meyer 1980. ‫כשרים‬ ‫לקיים‬ Mulin 1989, 130–131 following Ha Me’i’ri 1874, third gate, 53a. ‫גרמא‬ Tosefta Yevamot, 3:3.

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son die.60 David’s bastard son with Bathsheba, as well as most other out-ofwedlock children mentioned in the Bible, died in early childhood.61 It is no wonder that the Talmud states blankly, “Mamzer [newborn] does not survive more than thirty days.”62 My uncle, Professor Meir Bar Ilan, wrote that the talmudic rabbis conceived of bastardy as a kind of metaphysical birth defect. I conjecture that this socially constructed handicap is similar to the reception in Jewish law of physical malformations of the penis. Both affect the capacity of the person to marry, to reproduce, to increase the presence of Imago Dei in the world and be part of a clan-oriented social structure.63 Whereas Jewish culture cultivated expectations for the natural demise of bastard children, the Church’s vigorous struggle against the abandonment, neglect, and killing of infants and abortion led to laws according to which, beginning in the Late Middle Ages, the burden of proof that a baby died naturally was on “nonreputable” mothers (e.g., single mothers). If the mother could not produce convincing evidence to the contrary, she was criminally liable for the death of her child. But because natural death was also quite prevalent among children of “disreputable” women, who were typically lonely and poor, these women carried by default a heavy burden of personal guilt and criminal liability.64 In the German territories (i.e., The Holy Roman Empire), any dead infant of a single woman who did not report her pregnancy to the magistrates was highly suspicious. As late as the last quarter of the eighteenth century, when inquisitive torture was on the verge of extinction in Europe, women suspected of infanticide were subjected to juridical torture.65 The distinction between “reputable” and “disreputable” women did not exist in Jewish law; neither was “concealment of pregnancy” a crime. Torture has never been part of Jewish law. As far as we know, the rabbis and the communities did not investigate infant mortality. Perhaps, the communities were mindful not to stir anything that might be associated with the blood libel – the recurrent anti-Semitic accusation of Jews as slaughterers of innocent Christian babies. Rabbis deliberating questions of bastardy seem to maneuver in three different, even opposing, planes. First, they fiercely object to any action that might harm a bastard. Second, they often proclaim that it is better for bastards to die, sometimes meaning to encourage neglect of bastards (or at least avoiding prayer for their health) and sometimes as a descriptive rather than normative observation. Third, since bastardy is such a horrible social stigma, it becomes evident that the observation that bastards die in childhood is very helpful in clearing adults 60 61 62 63 64

65

Lieberman 1991, 161. 2 Samuel 12:13. Yerushalmi, Yevamot, 8:3. For an alternative reading of this maxim, see Ta Shma 1968. Bar Ilan 2000; Barilan 2009. Heywood 2001, 77–82, Orme 2001, 95–96; Jones 1996, 42–62; Cunningham 1995, 92–95; Damme 1978; Brissaud 1972; Prosperi 2005, chapter 3; Havard 1960, 6. Wessling 1994.

Care for Premature Neonates

195

from allegations of bastardy. Whenever somebody labels a mature person as a bastard, it is possible to claim in the rabbinic court and in the public space that, had the person been a bastard, he would not have survived infancy.66 Hence, it is possible that the rabbis might have deliberately promulgated the received maxim about the early mortality of bastards merely to expunge older children and adults from this terrible social stigma and to silence controversies over bastardy, which can easily tear a society apart. Indeed, we find in the talmudic and medieval apocryphal literature evidence that controversies on the bastard status of people and the treatment of bastard children were a central and divisive social preoccupation.67 But the maxim on the nonsurvivability of bastards and the general approach to bastard children must have contributed to the actual neglect of bastards as well. In this light, we should appreciate Maimonides’s ruling. By affirming the possibility that a pregnancy might reach full maturity in seven months, Maimonides practically preempted many accusations of bastardy. Since the talmudic sages discuss the maximum possible length of human pregnancy with the explicit goal of legitimizing children,68 it is not unlikely that the deliberation on the shortest possible length of healthy pregnancy is similarly motivated. As late as the nineteenth century, a rabbi dealt with a woman separated from her husband who claimed that her pregnancy lasted more than a year.69 These vignettes, like many other rabbinic case histories, are recounted very tersely and without offering the readers details, not even the ultimate outcome of the events. With caution, I hypothesize that, since labeling an infant “bastard” was too often a death sentence, the rabbis acted on the talmudic maxim that truth is not an absolute value and should be distorted for the sake of peace and the saving of life.70 The Talmud permits perjury for the sake of saving life,71 and sparing a child the stigma of bastardy might reasonably be considered lifesaving. We can now appreciate the novelty and power of Maimonides’s ruling. Although accepting the category of infants who are doomed to die, he emptied it from physical signs of monstrosity, from calculations of gestational age, and from any other medical or forensic sign of ominous prognosis except for reliable and objective signs of prematurity. Maimonides might have spared numerous women the abusive forensic investigations and criminal prosecutions related to allegations of concealed pregnancy, unreported labor, and dubious legitimacy.72 Maimonides’s ruling might have also spared many babies both shame and death. According to Maimonides’s formulation, the concept of nefel, the neonate 66 67 68 69 70 71 72

Orenstein 1862, 6, which is mark 14 in the “long gloss.” Edman 1857; Leviticus Rabbah 89:7. Preuss 1978, 384; Nagel 2005, 57. Shlomo of Skole 1892, mark 15. Yevamot, 65b; M. Derkh Eretz Zutta; Midrash Tehillim, 41, mark 3; Cohen 1977. Ketubot, 19a. See Jackson 1996, 28ff, 90ff; Symonds 1997, chapter 3.

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Jewish Bioethics

doomed to die, encompasses two kinds of children – those who show signs of significant prematurity and are clearly at a high risk of dying, and all those who have died within thirty days. The latter diagnosis can be made only retrospectively. To biomedicine, Maimonides’s ruling has two significant repercussions. First, it reduces the burden of guilt over the death of infants, and, second, it creates an opening for less aggressive treatment for sick neonates. The advent of neonatal intensive care reshuffled halakhic considerations regarding the care of premature neonates.

contemporary H A L A K H A H and care of very premature infants Premodern halakhic authorities fought for the protection of healthy newborns who might be neglected due to social stigma. As for premature neonates who had not survived thirty days and therefore did not have “the power of life,” the authorities did not find a conflict between the duty to life and the duty to protect those babies from suffering and misery. In the absence of a strong duty to save life, compassion for those who will otherwise live a life full of unbearable misery tips the scale against active lifesaving and life-prolonging care. This is because the duty to spare a person future suffering is a duty from the Torah (i.e., the strongest kind of duty in Halakhah), either on the grounds of neighborly love or on the grounds of the duty to protect all living creatures from suffering.73,74 The Medieval rabbis conceived of nefel as neither dead nor alive; hence, there is no permission to desecrate the Shabbat for the sake of his or her life.75 Today, many premature neonates go on living on life support for weeks and even months. Some rabbis rule that as long as a neonate does not breathe independently, it does not have “the power of life,” even if he or she survives on life support machinery for weeks on end. Since one talmudic description of nefel is “gasped and died,”76 it has been suggested that dependence on ventilatory life support is like a prolonged gasp. Contemporary rabbis have reached a consensus, according to which an infant must not be considered nefel if it is possible to save him or her by means of biomedicine.77 Rabbi Auerbach observed, “We all see with our own eyes” that such children survive in incubators.78 The formal basis for this distinction is found in a responsum by the medieval Spanish sage, Rabbi Isaac bar Sheshet, who distinguished between diseases that are incompatible with life and external trauma. All infants born with or afflicted with incurably lethal illnesses are considered as if they “gasp and die” – as if they 73 74 75 76 77 78

‫צער בעלי חיים‬ Flekeles 1809, mark 53; Deutsch 1929, mark 81. Rashi on Bava Batra, 20a. ‫פיהק ומת‬ Steinberg 1992, 106–107. Neuvirt 1979, mark 36:24.

Care for Premature Neonates

197

were born dead, even though they showed some signs of life.79 This move redefines nefel as a sick neonate who has not survived thirty days, and who is not likely to survive even if it receives good care in the given circumstances. How low should the chances of survival be in order to classify such a baby as a nefel? Rabbi Berlin (nineteenth-century Lithuania) explains that a hopeless and premature neonate is not a “human soul.”80 He permits desecration of the Sabbath only for the sake of embryos and infants with a greater than 50 percent chance of survival.81 It seems that technological advances have pushed this threshold down. A hundred years later, Rabbi Auerbach ruled that there is no duty to care for premature neonates with chances of survival that are less than 10 percent. This is because “mortality is so high, the burden [of care] so heavy and they have no power of independent life.”82 The novelties in this ruling are the mentioning of the consideration of “burden of care” and in the implicit duty to care for neonates whose chances of survival range between 10 and 50 percent. Additionally, Auerbach ruled that if a decision has been made to care for highrisk neonates, then it is permissible to desecrate all the laws of the Shabbat while caring for them.83 Until then, the permission to desecrate the Shabbat was actually always a duty because it resulted from the duty to save life. At this point, and in line with modern rabbinic ruling on incurable patients, an optional strategy of care may allow the desecration of the Shabbat. Put in other words, even in situations that allow people to forgo treatment and die, if they nevertheless choose to fight for their lives, they have the power to desecrate the Shabbat for the sake of this vitalist choice. But Rabbi Auerbach had an additional consideration in mind, writing, [I]t is permitted and obligatory to desecrate the Shabbat for the sake of its care, even the most severe prohibitions of the Shabbat. This is because [in contemporary healthcare] this takes place in a public place, and many people are involved. If someone sees a baby, whose care is compromised, and one may not be aware of the prognostic differences, one may become negligent in the care of a curable baby.84

This is a significant move, a slippery-slope kind of reasoning establishing proactive and vitalist care for high-risk neonates not on the value of their own lives, but in defense of the lives of other, curable infants. The overwhelming rabbinic consideration is a worry about the degradation of medical practice and the possibility that halakhic standards might fall behind those of the medical profession at the time. It is possible that Auerbach cared only for the safety of curable infants; but it is also possible that he crafted a powerful solution to a legal dilemma – the creation of an obligation to provide life support to every 79 80 81 82 83 84

Isaac b. Sheshet 1879, mark 446. ‫נפש אדם‬ Berlin 1861, mark 167:17. On the pragmatic use of the term “soul” see p. 165. Avraham 1997, 38. Ibid. Avraham 1993b, 49.

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infant would be overtly taxing on both patients and society; the incorporation of individuated choice in policies of care will not allow the violation of the laws of the Shabbat. His “slippery-slope” argument solves the problem of the Shabbat, while still leaving space for individuated choices of care that are more open to “no-treatment” than is possible in the care of terminal patients who are not nefel. It was the medical profession of the West, about whose degradation Auerbach is concerned, which raised the problem of infant neglect and fought vehemently against it.85 And yet, neonatal care in the 1960s and 1970s was paternalist more than vitalist. Doctors decided when it was warranted to operate on neonates and keep them on life support and when to desist owing to considerations of suffering, futility, and burden on the public. The desire to create a consistent and transparent decision-making process and to incorporate parents in that process was one trigger to the advent of bioethics as a public preoccupation and academic discipline.86 Rabbi Auerbach and other rabbis do not discuss future quality of life, which is a very serious concern in modern neonatology. As the rate of salvageable extremely low–birth-weight infants rises, lifelong morbidity, such as mental retardation and blindness, is still very high.87 Since terminal patients have a “power of life” (after all, they have survived their first thirty days of life!), all the leniencies adopted by the rabbis with regard to end-of-life suffering (discussed in the next chapter) should certainly apply to neonates who have never established a “power of life.” As will be discussed in Chapter Ten, the rabbis have authorized legal structures for individuated choices of no-care and withdrawal of life support from terminal patients, and they would certainly endorse the same measures with regard to premature neonates as well. When the Steinberg Committee deliberated the Israeli Law on the Patient Nearing Death, the Israeli neonatologists objected to the inclusion of sick neonates in the ambit of that law, maintaining that it is usually impossible to determine that a neonate is doomed to die within six months (the legal definition of “nearing death”).88 A similar position has been expressed in American law as well.89 Although empirical research has shown that physicians and patients fail to prognosticate accurately the life expectancy of “terminal patients,”90 there is no evidence that neonatological prognostication is exceptionally difficult. Ultimately, the law covers all patients with such a prognosis; but decisions of “no-treatment” pertaining to very sick or extremely premature neonates are not

85 86 87 88

89 90

Arnot 1994. Rothman 1991, chapter 10; Gross 2002. Marlow et al. 2005. Personal communication with committee members, Rabbi Prof. Steinberg and Carmel Shalev as well as oral inquiries conducted by Dr. Shlomit Zuckerman. Annas 2004. E.g., Lamont and Christakis 2001.

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taken in accordance with the law, which requires authorization by a special ethics committee of any such decision pertaining to incompetent patients. It might be said that the neonatologists’ position is the only way to incorporate in the Israeli legal system considerations of poor quality of life in making decisions of “no-treatment” of neonates; it may also be said that because the regulation of the “beginning of life” and the “end of life” are habitually remote from each other, the people involved cannot grasp psychologically the relevance of the law on “the patient nearing death” to neonates. It might also be proposed that Rabbi Auerbach was right in his suspicion that Israeli healthcare professionals are likely to evade their own secular legal system when it sets high standards for the protection of the life of the most vulnerable. Ancient and premodern European culture would qualify some deformed babies as “monstrous” and consequently nonhuman. Morphological (and later physiological) considerations in treatment decisions for neonates survive in European culture to this day, albeit from a perspective combining future quality of life and rationing of scarce resources. The halakhic discourse on decisions of no-treatment is sensitive to survivability but not to projected quality of life. In the past, this approach protected numerous babies from being diagnosed as “monsters” unworthy of care. We have seen that the rabbis were willing to consider only bastards as nonviable and, probably, with the intention of saving older children and adults from this devastating stigma. The contemporary construction of rabbinic law on neonatal care preserves the language of survival, yet provides an opening for taking suffering and overall quality of life into consideration. We do not know yet why, in premodern times, infant mortality in the Jewish communities was lower relative to the non-Jewish population. We can see that this achievement was possible despite a weaker legal duty to save them. Perhaps, this weak duty invited a vigorous extralegal ethos of life and responsible action. When caregivers know that decisions to “let go” are not grave sins, they are more capable psychologically to struggle for health and life.

9 Organ Transplantation and the Brain Death Debate

the timing of death before the invention of “brain death” Historically, the notion of the “moment of death” is traceable to a universal or quasi-universal folk concept of the “exit of the soul,” which would usually be traced to the last observable breath or sigh. Although this kind of imagery is common in Judaism as well, the halakhic discourse on the timing of death is attached to four different legal topics. The first concerns the laws of impurity,1 which were observed in the times of the Second Temple. Because anyone who comes in contact with a dead body becomes impure, and because impurity brings with it multiple ritual implications, at any given moment it was essential to know whether a person was dead or not and sometimes to remove a precious item from being in contact with the person just before the moment of death.2 The second practical context in which the timing of death must be precise concerns the laws of inheritance. When family members die together in an accident (the paradigmatic accident, at the time of the Talmud, was the collapse of a building), the order of their deaths might determine the passage of the estate to survivors. The third context concerns obstetric death, when caregivers wish to cut open the belly of the woman as soon as possible to extract her still viable fetus. The last legal context concerns the rescue on a Shabbat of people entrapped under a collapsed building. If the persons are already dead, then efforts should be stopped until after the Shabbat; The deliberation of this problem pertains directly to the duty to save life and to the principle of “recovering a soul,” hence its fundamental role when respect for a person’s life is at stake. one talmudic rabbi says that rubble should be removed until the heart3 is exposed and it

1 2 3

‫טומאה‬ T. Yoma, 23a. According to some versions it is “belly.” See Sinclair 2003, 228.

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is possible to check for signs of life. Another rabbi says that rubble should be removed until the nose is exposed and it is possible to apply a feather to check for signs of breathing. Relying on the verse “and all in whose nostrils was the breath of life,”4 the Talmud rules according to the latter opinion.5 The talmudic literature acknowledges the possibility of fateful errors in the diagnosis of death, endorsing the practice of “visiting the graves” with the hope that the deceased be found alive even following internment. The ruling is accompanied by two anecdotes of people who were found alive three days after their burials.6 An overnight delay of burial was never contemplated because the Torah regards it as disgraceful, an offense to the image of God in man, not to be visited even on victims of capital punishment.7 In the premodern era, only putrefaction, which takes many hours to develop (especially in cold climates), was considered the most definite sign of death. A similar opinion is found in the Talmud as well, expressed by Rav, who appears skeptical regarding expert medical judgments.8 The Talmud does not accept this position; it never recognizes a transitory, doubtful stage in which the life and death status of a body is undecided. However, the Talmud writes that the sages enacted a secondary law9 according to which the impurity of the living leper lasts until the flesh shows signs of putrefaction, lest an unconscious leper might be taken for dead.10 The Talmud writes that “closing the eyes while the soul is exiting is like bloodshed.”11 One reading is in line with the laws concerning gosses (the moribund), whose soul/life is like a spent candle: touching it might hasten the dying process.12 In his codex of law, Maimonides distinguishes between gosses and the time of the soul’s exit. He reiterates the worry about hastening death (which in the Talmud is attached to the “hour of the soul’s exit”) in gosses and adds an additional explanation regarding the prohibition on closing the eyes at the “time of the soul’s exit.” Maimonides writes that since the patient might be only unconscious, treating him as dead is bloodshed.13 Hence, “one should wait a little” because “the [patient] might be unconscious, and then [if signs of breathing do not appear], it is permitted to close the eyes [and treat the person as a dead person, because it is prohibited to touch the dying person].”14

4 5 6 7 8 9 10 11 12 13 14

Genesis 7:22. Yoma, 85a. Masekhet Semahot (Avel Rabbati), 8:1. Deuteronomy 21:23. T. Niddah, 69b; T. Bava Metzi’a, 107b. ‫ גזרה‬This kind of law is a barrier against transgression of a substantial law. Niddah 69a. M. Shabbat, 23:5. T. Shabbat, 151a, Masekhet Semahot (Avel Rabbati), 4:1. .‫ שמא נתעלף‬,‫ אלא ישהה מעט‬,‫ הרי זה שופך דמים‬,‫כל המאמץ עם יציאת נפש‬ Hilkhot Avel, 4:5.

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In his philosophical treatise, Maimonides explains that apparent, doubtful death may last a day or two.15 Medieval medicine prescribed the feather test precisely for such cases.16 But Maimonides first imports the worry about misdiagnosis into the context of saving life, when the patient is properly examined, and then he does not import the requirement to wait for signs of putrefaction, but creates a new category of epistemic safety – waiting “a while” after a negative breath test. In actuality, at least an hour or two would pass, during which the body will be thoroughly washed and other preparations for the funeral will take place. In my view, one should distinguish between errors of haste and ignorance, such as touching the body, expression of mourning signs, and even burial before carefully examining the patient, and “false-positive” errors, which occur when a properly executed breath test – or any other test – yields an erroneous result.17 The codex of law Shulhan Arukh is even more explicit in the prescription of the duty of burial on the day of death, “the faster, the better.”18 This haste was inspired by Kabbalah. In a sixteenth-century responsum, Rabbi Azulai explains that, despite occasional and very rare occurrences of misdiagnosis of death, people should rely on the established signs of death because, according to the book of Zohar delay of burial brings forth evil spirits that incubate the body and bring forth deleterious consequences to the soul’s journey in the afterlife. But if such an error occurs – a living person is interred as if dead – once in dozens of thousands of cases, the caretakers are blameless because this is what God wanted to happen to the person.19 Throughout history, reports about misdiagnosis of death were rife – the urban legends of their times – especially when the doctors involved were implicated in conflict of interests. Augustine wrote that anatomists “vivisect patients who die in their own hands.”20 Anatomists were reluctant to wait because they did not want to let tissues decompose. One famous story is about Vesalius, who had to escape Spain after a beating heart was found inside a fresh body he was dissecting.21 In 1740, a devout Catholic anatomist, Jacques-Bénigne Winslow, published a book on the unreliability of signs of death. Certainty based on direct and unambiguous observation became a central theme in eighteenth-century medical thought.22 Doctors inspired by the Enlightenment started to campaign against the Christian and Jewish habit of prompt burial. A few European governments mandated waiting periods so as to prevent burial of people who appear dead but are actually in deep, yet, reversible coma. 15 16 17 18 19 20 21 22

Guide for the Perplexed, 1, 42. Schwarz 2002, 96. See also T. Nedarim, 87a, and discussion of these cases by Shafran (1930, mark 2). Shulhan Arukh, Yo’reh De’ah 357:2. Azulai 1795, mark 25. Augustine 1586, 307. O’Malley 1964, 304. King 1958, 208.

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Although contemporary scholars have offered explanations to the advent of the cultural preoccupation with “apparent death” (Scheintod), a convincing account is still lacking.23 Roughly speaking, we are dealing with a combination of three historical trends – increased state involvement in public health and its legal and bureaucratic regulation, absence of a mature statistical approach that would later dispel the worry, and the spirit of the Enlightenment, which was ready to critically examine traditional habits. In those days, without statistics and with scanty access to events beyond one’s own town and village, the construction of reality was different, at least in the sense that the realm of the “possible” was much vaster and more alluring than we know it today. People were always prepared for the worse, but remained mindful of the possible, however unusual. One notable example is a Jewish habit to wait a day or two before burying a pregnant woman, with the hope that the child would spontaneously come out alive. A rabbi had to write against the practice.24 The medico-political preoccupation with apparent death coincided with the expanding efforts of the Jewish burial societies to confer on every Jewish patient the best spiritual protection possible on his or her soul’s hazardous way to peaceful rest. In this Kabbalah-inspired folk ethos, prompt burial was an essential element of the complex and holistic care for the dead person and the wellbeing of his or her soul. In 1772, Oluf Gerhard Tychsen, a professor of oriental languages and a Protestant missionary, petitioned the Duke of Mecklenburg-Schwerin with regard to Jewish burial customs. The Duke consulted a Jewish convert to Christianity on the question of whether prompt burial was an integral part of the Jewish religion, and, following a negative response, the Duke prohibited the custom of burial on the day of death. The Jewish philosopher, theologian, and public leader Moses Mendelssohn suggested that in lieu of a long waiting period, no burial would take place without a death certificate signed by a physician. This was an astute political compromise, because the physicians were employed by the traditional sick care and burial society. The Duke consented and, on August 31, 1772, signed the first law ever requiring a medical certificate as precondition to burial. Until then, medical involvement was legally requested in forensic inquiries of suspicious deaths; for the first time, a doctor’s signatures was necessary to verify that a person is dead. Mendelssohn also wrote to his Jewish fellows, arguing that the Duke’s original order, which was meant to prevent the horrendous agony of premature burial, was not incompatible with Jewish law.25 This sparked a volatile debate between the Enlightenment-inspired Jews, including those who adhered to Jewish law, such as Mendelssohn, and the rabbis who defended the traditional ways of burial against the reformatory, even anti-Semitic subtexts of the novel 23 24 25

Bondeson 2001; Efron 2001, 95–104; Ariès 1981, 397–406. Löw 1802, mark 13. Panitz 1990, 92–118; Altman 1973, 288–295.

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anxieties regarding premature internment. Rabbi Emden, whose opinion on the medical sciences was discussed in Chapter Five, and who was much influenced by Kabbalah, rebuked Mendelssohn and issued a strong rejection of any alteration in the traditional practices of burial, refusing any role for physicians in the determination of death.26 But criticism of traditional burial started to emerge from within Jewish society as well. Marcus Herz, a secular Jewish activist, an associate of Immanuel Kant, and the medical director of the Jewish hospital in Berlin targeted the members of the sick care societies who had no formal medical training. Not only didn’t the law contain clear and reliable methods to diagnose death, but the community members who were entrusted with terminal care and burial were not qualified for the task. His arguments were embellished with ghoulish descriptions and of testimonials on people saved from premature burial. According to Herz, the burial societies diagnosed death on the basis of breathing signs, checking for the heartbeat, and a third sign, the “broken eye,”27 which is the loss of ocular limpidity.28 Even though it was well-known at the time, this sign was already considered unreliable.29 It has no place in Jewish law, and it is unclear whether Herz misrepresented the Jewish tradition of terminal care or was exposed to eclectic practices. At any rate, Herz and other like-minded critics were actually attacking the legitimacy and probity of the Jewish communal healthcare system. At the same year, 1787, Emperor Joseph II of Austria prohibited same-day burial, which the community had to accept.30 But the delayed burial debate struck a painful chord with Jewish law and identity. The institution of waiting periods and the transfer of bodies to special morgues dissolved a whole corpus of habits and social practice – the highly elaborate rituals and prayers performed by the sick care and burial societies as a holy and uninterrupted continuity of physical and spiritual care, from the sickbed until after the burial. The debate inserted a wedge between Halakhah as a manifestation of talmudic law and the development of traditional Jewish culture as a holistic way of communal life. The change hit directly the higher ranking individuals in the community, a sort of self-regulated nobility, who were proud of their monopoly on dying care and grave-digging, proud in their personal responsibility for washing the dead and dressing them with shrouds. These devoted volunteers were banished from the gates of the Afterlife. The doctors under their employment usurped the power to determine death. An early nineteenth-century manual for sick care societies prescribes a waiting period of “half of a quarter of an hour” from the first negative breath test to the covering of the face of the deceased.31 The author is unapologetically 26 27 28 29 30 31

Emden 1772. Gebrochen Augen. Herz 1787, 19. Krünitz et al. 1844, 398. Landa 1880b, mark 211. Wolf 1828, 18. This is repeated in a similar manual – Baer 1882, 52. There might have been some urgency to cover the face because this was done to shield or hide the deceased from persecuting

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descriptive, putting into words the traditional practice, not the methods used in situations of doubt; his simplicity and confidence do not grant much space for doubt. This pioneering description of the precise method of determination of death was published, with endorsement by a rabbi, by the secretary32 of the sick care and burial society of Prague, one of the oldest and most respectable of Jewish burial societies. It is a unique product of an apparent attempt to synthesize the old ways of burial societies and modern, medicalized standards of terminal care. It is not the first time that a sociocultural crisis brings forth a codification and canonization of cultural teachings. As far as I know, it is the oldest written description of a Jewish way to determine the moment of death at the scale of minutes. While professional and political concerns with premature burial were gaining currency, in a landmark responsum from 1827, Rabbi Sofer explored in detail the halakhic approach to the diagnosis of death to his interlocutor (i.e., the person presenting the question), who was a very influential rabbi as well. It is evident that an issue of paramount importance was being considered by the leading authorities.33 Sofer set himself to refute Rabbi Chajes’s unprecedented contention that because the physical trauma undercut the presumption of life, rescue efforts on the Shabbat from under the rubble may be stopped with a negative breath test. However, Chajes maintained, in circumstances of natural illness, it might be possible that a person remains motionless and breathless for a day or two.34 Sofer insists, without offering any evidence, that in all cases of apparent death, the heart and the pulses keep beating. Sofer’s key halakhic statement is wholly traditional, “everything depends on breathing.” He explains that apparent death is a challenge for the laity. In contrast, the members of the burial society, “who care for the dying and witness the moment of death [regularly], know the signs of death.” In terms of legal analysis, Sofer’s task is threefold: to remain loyal to the talmudic principle that “everything depends on breathing” and to craft a foolproof diagnostic method to determine death without causing a significant delay of burial. The new discourse and laws on burial created a new legal problem in Judaism. Determination of death is often difficult, but, until that moment, in the Jewish communities, it was not a legal problem to be resolved and governed by formal standards. Thus, a body of knowledge that had been until then in the lay hands of the sick care and burial societies was transferred to the domain of Halakhah as a legal discourse, rulings issued by authoritative decisors at the national level, and printed books. Put in other words, the same skill and authority shifted epistemic and social contexts when, in the name of Jewish law, Rabbi

32 33 34

angels – ‫ – מקטרגים‬who will argue against the deceased in Heaven. Aaron Berechiah of Modena 1860, 216–217 (Siftei Emmet, chapter 19); Tucazinsky 1960, 47. ‫סופר‬ Sofer 1841, mark 338. Chajes 1842, 14–15 (mark 1).

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Sofer articulated something that had never been part of the formal law – the stepby-step procedure of diagnosing death. As we have seen in Chapter Seven, in the context of postmortem cesarean surgery, the sixteenth-century codex of law stated that the art of precise diagnosis of death “had been lost.” Now Sofer spells out how to diagnose death without qualms regarding premature burial: [S]o, after it [the body] is still like a stone, without any [heart] beating,35 and if, afterward, he stopped breathing, we rely only on the words of the Holy Torah [and not mind the novel concern about misdiagnosis of death].

We find here three necessary conditions. The first is apparently trivial – the patient neither moves nor reacts. The two others are the heartbeat test and the breathing test. Interestingly, although in the opening of his responsum Sofer mentions Maimonides’s request for a waiting period, it does not appear in the detailed description of the methods by which the sick care and burial society members determine death. It seems that, according to Sofer, “experts” can fully trust their observation of physical signs. Sofer does not distinguish in his language between the test and the essence. Indeed, some twentieth-century rabbis adopted Sofer’s criteria literally, requiring complete cessation of heartbeat as a condition for the proclamation of death.36 Alas, feeling the pulse and listening to the heart (even with a stethoscope, which did not yet exist in Sofer’s time) are very insensitive tests for cardiac activity. If we adopt the physical exam of the heart as an adjunct to the breathing test, the risk of misdiagnosis is lower; but if absence of cardiac activity becomes part of the phenomenon of death, as some rabbis argue, then many patients should be considered alive even if they do not breathe at all. Today, one may posit that since a respirator pumps air into the lungs, the patient is in the talmudically impossible condition of having effective (gas exchanging) circulation in an apneic body. Thus, even a patient on a heart-lung machine would be considered alive by this interpretation. He would certainly be considered alive according to the opinion, discussed later, that the person is alive so long as the heart is pumping blood. The thrust of Sofer’s responsum is his insistence on the reliability of this relatively fast diagnosis of death even in cases that are prone to error, such as sudden, unexplained collapse that might actually result from histrionic paralysis. It is also noteworthy that Sofer explicitly refrains from confrontation with science and medicine. Rather, at the beginning of his responsum, he explains that doctors insist on waiting until the signs of putrefaction appear because they do not know a better method to diagnose death. According to Sofer, this professed ignorance and uncertainty must not undermine the Jewish tradition on the diagnosis of death. Indeed, Sofer did not hesitate to dismiss rabbinic writings on purely medical matters, such as the anatomy of the uterus, following 35 36

‫דפיקה‬ Waldenberg 1985b, mark 46; Wasner 2002, Part 7, mark 235.

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a thorough study of medical books and expert opinion.37 We have seen that Sofer was open to medical warnings against the talmudic practice of sucking.38 Sofer was very respectful of empirical, scientifically valid evidence. But, from Sofer’s perspective, it would be absurd to shove aside tradition merely because the medical establishment has lost faith in one of its own practices. It seems that, already in the Middle Ages, we can find two approaches to the determination of death. The first articulates a taken-for-granted confidence in the ordinary human capacity to determine the precise moment of death. Warning must be issued against acting in the last moments of life as if the person is already dead. The second approach articulates a principled uncertainty in the human capacity to capture the exact moment of death. Hence, every person must be treated as dead, not at the moment of death, which is always presumed, but a short while afterward. One cannot help noticing the shrinkage of time from the long hours (signs of putrefaction) prescribed originally by the laws on impurity to “a while” in the importation of a waiting period by Maimonides, to “a little while”39 in a nineteenth-century manual from Prague’s sick care and burial society. This was probably in response to the debate on premature diagnosis of death. It is a unique product of an apparent attempt to synthesize the old ways of burial societies and modern, medicalized standards of terminal care. Waiting is conspicuously absent from Sofer’s prescription for the diagnosis of death. Before I turn to the brain death debate, it is worth reading comparatively a responsum by Rabbi Schwadron (late nineteenth-century Galicia) who was a prominent decisor for all European Jewry and one of the first halakhists to tackle problems that emerge from modern technology. Schwadron was not defending Jewish law abstractedly before the non-Jewish authorities and public; rather, his responsum illustrate the actual dilemma and excruciating uncertainty that often accompany the responsibility for diagnosing death. He addresses a case of a man who was found in the toilet. After resuscitation efforts failed, death was pronounced. However, when the body was being washed in preparation for burial, a strange sigh was heard. The startled attendants summoned doctors and repeated the talmudic breath test. The doctors explained that the noise came from the gut and that it did not indicate breathing activity. The text implies that some people objected to prompt burial, whereas others decided not to wait overnight. Rabbi Schwadron explains that the chances of misdiagnosis of death are “extremely minor, one to a thousand,” not in the range that invokes the urgency of saving life. However, since, in this particular case, an oddity occurred and there was a presumption against reliance on the first breath test, it was appropriate to call a doctor and repeat it. Ultimately, in the face of a reasonable alternative explanation, medical authority, and repeated tests, it was unnecessary to worry any further, and it was possible to proceed with the 37 38 39

Sofer 1841, Yo’reh De’ah, mark 167. P. 78. ‫מעט זמן מועט‬

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burial.40 Whereas Sofer was writing on the timing of death in a hermetic halakhic sphere, Schwadron was integrating in his halakhic discussion the social dimensions of customary law and medical authority. Generally speaking, in the face of two different rabbinic opinions, many pious men opt for the strictest course of action, complying with both opinions. This is what Sofer does. He does not revisit the talmudic debate on the diagnosis of death but advocates the performance of both tests mentioned in the talmudic deliberation – the breathing test and the heartbeat test. If one combines both the breathing and heartbeat test, one is surely secure from error. But the kind of error thus avoided is halakhic not necessarily a factual error. In this sense, Sofer contained the deliberation within the realm of halakhic epistemology, not medical science. Whereas Emden and Sofer did not see a role for a physician in the determination of death, Schwadron opened the door to extrahalakhic expert opinion. Schwadron did not endorse the idea that only doctors may be entrusted with the diagnosis of death; only when in doubt would burial society members avail themselves of expert opinion. This was not a backward position coming from poor, eastern, and marginalized communities. Only in 1874 did English law oblige the attending physician to issue a death certificate. In the absence of an attending physician, nobody had to examine the corpse before burial. Report to the coroner was mandated only in suspicious cases. Sudden death did not count as such.41 Both English and Continental legal systems were preoccupied with concealed crime, especially women who kill their illegal and unwanted newborns.42 In Chapters Seven and Eight, we have seen that neither the rabbis nor the Jewish communities shared this concern. In the most recent book in the genre of Jewish manuals on care for the dying, published in 1960, the timing of death is described in the following words “In the absence of experts, one places the feather over the nose. After some time has passed without signs of breathing, death is proclaimed.”43 Until this very day, rabbis agree that it is possible to determine death by the breath test alone, and, if a person dies at home, he may be treated as dead once the traditional test shows no signs of life. The rabbinic approach is empiricist. The rabbis neither refute scientific evidence nor do they try to conduct control trials of the breath test. But when the patient’s life is already technologized by means of electronic monitors and the regimes of the modern hospital, these machines and bureaucracy insert a presumption of doubt and call for a certain closure. The social meaning of the concept of death depends on absolute closure. “Death” that is not certain, irreversible, and uncontroversial cannot fulfill the semantic and pragmatic roles of “death”; death is an essentially uncontested concept. Hence, once modern technology and 40 41 42 43

Schwadron 1968, mark 124. Havard 1960, 69–86. Jackson 1994. Tucazinsky 1960, 47. The author describes a custom of waiting twenty more minutes before moving the body from the bed to the ground (p. 48).

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bureaucracy have inserted a wedge of doubt between the traditional technique of the breath test and the diagnosis of death, rabbis and doctors are doomed to keep searching for a decisive, supposedly even more accurate, medical technology that will exorcize the doubts created by medical technology. Contemporary rabbis have to match Maimonides’s open-ended instruction to wait “a while” with a scientific closure, after which waiting is unnecessary. Restoration of the extraordinary epistemic certainty of the socially constructed “scientifically determined death” in a world governed by statistical confidence seems an impossible mission, an oxymoron. In the rabbinic context, this would only be possible by either a clarification of the very essence of death or by locating practice on the “safe side” of error.

heart transplantation: initial responses The advent of transplantation medicine has transformed the social regulation and cultural construction of the death process: a rare challenge has now become routine. The artificial construction of the “moment of death” is now a thin hair separating lifesaving medicine from murderous exploitation of the most vulnerable. Hence, it has never been possible to separate the discourse on the proper timing of death from issues of trust in the biomedical establishment and its regulation by society. The first heart transplant was performed in South Africa by Christian Barnard on December 3, 1967. The patient died after seventeen days. In January 1968, Barnard performed the second heart transplantation on a patient who survived for a few months. The physician of the second donor said in a 1998 interview that transplant surgeons were “hanging around” his ICU. He left home with orders to care for the patient overnight, with the intention of assessing prognosis in the morning. But when he returned to the hospital, the patient had been declared “dead.”44 With such stories in the air, eminent cardiologists and leading journalists called for ban on heart transplantation. Lawsuits were filed alleging exploitation of poor Hispanic and African-American patients as sources of organs. The evidence brought before the courts was disturbing.45 Minority groups and civil rights advocates were inflamed. The first rabbinic response, published in March 1968, described the feat as irresponsible medical adventurism, expressing concern for the recipient, not the donor.46 In December 1968, a surgical team in Beillinson Hospital removed the heart of a stroke patient and preformed the first heart transplant in Israel. The recipient died after two weeks. This was (more or less) the one-hundredth heart transplantation worldwide. The family of the donor was outraged because no consent was requested and because the hospital authorities had initially lied 44 45 46

Lock 2002, 85–87. Lederer 2008, 175–176. Tendler 1968.

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Jewish Bioethics

to the family, denying that their father’s heart was taken.47 On December 25, 1968, the Israeli minister of health declared in the parliament (Knesset) that the transplantation was carried out according to the 1953 Anatomy and Pathology Law, discussed in Chapter Five, which authorized expert physicians to use a dead body, even without consent, whenever this is necessary for saving life. Rabbi Sternbuch condemned this feat in unforgiving words as murder performed by reckless doctors hungry for fame.48 The crisis was not merely an Israeli issue. The very high rate of failure of the first 200 heart transplantations worldwide resulted in a de facto moratorium on the procedure until the introduction of new immune-modulating drugs in the 1980s paved the way for a second and much more successful wave of heart transplantation. Liver transplantation evolved similarly; a few liver transplants were performed in the 1960s, most of which failed, and the procedure faltered on the margins of experimental medicine until the 1980s. Ironically, cyclosporine, the immune-modulating drug that revolutionized transplantation medicine, was discovered in 1969, precisely in conjunction with the maturation of the surgical techniques. Cyclosporine’s immune-modulating effects were reported in 1972, the first successful protocol in organ recipients was reported in 1980, and the U.S. Food and Drug Administration (FDA) approved it for use in 1983. Heart transplantation in Israel was renewed only in the 1980s. But the first episode of this procedure exacerbated the bitter public controversy over the treatment of human remains by doctors and archeologists. This controversy loomed large over religious-secular relationships in Israel throughout the 1970s and until the amendment of the Anatomy Act in 1980. As a matter of fact, until 2008, in Israel, the legal framework of transplantation from the dead was a sort of “opting out,” as explicitly articulated by the Attorney General of the Israeli Government, Harish: “life- saving use of the dead is permitted unless next of kin refuses it in the writing.”49 However, the dry word of the law went unnoticed in a society that is deeply averse to the use of the dead, especially without full informed consent. The de facto regulation of transplantation in Israel has been and still is full informed consent, “opting in.” This practice has applied to the religious, nonreligious, and to non-Jews. People were not asked to sign any document as a condition to abstaining from harvest, even when this was legally necessary. The first official rabbinic response to heart transplantation came from the United Kingdom a few months before the Israeli transplantation. On March 13, 1968, Herald Nabarro presented a private bill on organ transplantation. The bill was prepared with kidney transplantation in mind, but it was deliberated with heart transplantation on the horizon. The thrust of the proposed bill was an “opting out” approach allowing doctors to harvest organs for transplantation unless they had reasons to suppose that the deceased or next of kin would object. 47 48 49

Weiler-Polak 2008. Sternbuch 1969. Harish 1988, clause 5(c)iii, at the bottom of p. 14.

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211

On March 6, 1968, the minister of health convened a closed conference in the British Parliament. The Chief Rabbi of Britain, Rabbi Immanuel (Israel) Jakobowitz, who was invited to participate, asked Rabbi Weiss from Manchester for his opinion. Rabbi Weiss (aka Weisz) objected to organ donation without explicit permission and to the removal of organs “that are essential for life,”50 especially when success is not guaranteed.51 At the beginning of his long responsum, Weiss cites the opening paragraph of Sofer’s work, according to which the medical sciences construed “the precise moment of death” as unknowable. Whereas, according to the Talmud, decapitation52 is a sure sign of death, “today it is possible to maintain alive a headless body by means of a heart-lung machine.” According to Weiss, because modern medical technology and science present us with unprecedented situations, such as those arising from the use of intensive care machinery, we are in the position of Rabbi Isserlish, who revoked the talmudic law on saving fetuses entrapped in the bellies of their dead mothers because the art of precise diagnosis of death had been lost.53 In a paragraph that was not included in later publications of the responsum, Weiss cites an interview with Christian Barnard in which the latter allegedly confessed that the first heart transplant was removed from a still living patient. When the responsum was originally published in September 1968, its title was, “Whether it is permitted to transplant a heart from a patient nearing death into another patient who expects cure.”54 Rabbi Weiss sent his responsum to Rabbi Feinstein. This was a unique token of Feinstein’s eminence in the rabbinic world. Rarely does a rabbi send a halakhic opinion for comment by a senior rabbi; in this case, a senior rabbi (Jakobowitz) presented a question to an older and more authoritative rabbi (Weiss), and that rabbi forwarded his own response to Rabbi Feinstein. Weiss neither waited for Feinstein’s response prior to sending it to Jakobowitz, nor did he refrain from retorting to Feinstein when the latter disagreed with him.55 But it was evident that although most rabbis maintain independent legal reasoning and sometimes personal discretion while handling questions that rise within their own communities, they will defer to Feinstein’s rulings in such fundamental questions of public policy. This episode encapsulates a key characteristic of the sociology of contemporary Halakhah. Jakobovitz held the official position of Chief Orthodox Rabbi of Great Britain. He held an academic degree and represented the Jewish community in the interfaith sphere. But he deferred to Rabbi Weiss who had only traditional education and acted as chief of an independent rabbinic court. Jakobovitz

50 51 52 53 54 55

‫שהנשמה תלויה בהם‬. See p. 187. Weiss 1993, Part 5, mark 7; Jakobowitz 1975, 286–290. ‫גוף שניתז ראשו‬ P. 111. Weiss 1968. Weiss 1993, Part 5, mark 9.

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Jewish Bioethics

was a Zionist; Weiss would later lead the anti-Zionist separatist community in Jerusalem, Eida Haredit. Both Jakobovitz and Weiss were elected by the public. Jakobovitz had a pastoral role; Weiss was a judge. But Feinstein was the head of a private religious academy with no formal public recognition and obligations. It may be said that, in rabbinic Judaism, leadership in learnedness carries more social and cultural power than official position and service. But it may also be observed that, for some centuries, halakhic authority is not in the hands of rabbis who carry public responsibilities and who interact daily with the laity and its pastoral needs; but that the ongoing dialogue between the broader culture and Halakhah, as well as between professional authority and “Judaism,” is engaged with rabbis who act more as ambassadors than decisors; that Zionist and socalled modern rabbis seek the endorsement of the non-Zionist and decidedly conservative rabbis; and that official nominations, honors, and association with a secular establishment, such as an academic title, weaken a halakhist’s authority rather than bolster it. Between the Parliamentary conference in March and Feinstein’s response to Weiss dated July 15, 1968, the first U.K. heart transplant was carried out on May 3. Public enthusiasm was dampened by the words spoken at the funeral of the donor, an Irish carpenter, by his Catholic priest: “Christians must be concerned as ever for the sanctity of human life.”56 Opposition to the notion of brain death persisted in Catholic and Jewish circles throughout the 1970s.57 It is no wonder that Feinstein felt a certain sense of moral urgency when he wrote his response to Rabbi Weiss. By that time, the British law proposal had passed to readings in the Parliament (it was rejected in early 1969), and, before policy was clarified, transplantations with very low success rates and unclear criteria of death were gaining currency. Feinstein divided his response into two parts. The first was directed to the public and was also published in a rabbinic journal under his title as the president of the Rabbis’ Association of America:58 I do not wish to enter into legal and rational deliberation on this, to consider arguments and evaluate ideas . . . as if this is a question in need of argumentation. There are times when less is more. Because [such discussion might mislead] people to think that the issue is open to discussion and to diverse rabbinic opinion, they will embrace lenient opinions. Hence, I am handing down a ruling, clear and absolute, to be acted upon59 with no need to discuss and analyze it, that the heart transplantation which the doctors have recently started performing is actually the murder of two souls. They kill with their own hands the patient from whom the heart is harvested, not only according to the laws of the Torah [if he is alive], but also according to the few truthful doctors that also consider him alive. But owing to their wickedness, they do not care for the transient [or short] life of the patient. 56 57 58 59

Catholic Herald, issue of May 17, 1968, p. 1. E.g., Byrne, O’Reilly, and Quay 1979. HaPardes, 1969, 43(6):4. ‫ברור ומוחלט הלכה למעשה‬

Organ Transplantation and Brain Death

213

They also kill with their own hands and take years – sometimes dozens of years – from the cardiac patient [the recipient of the transplant]. . . . This is the responsum to be published, no less and no more.

The second part of the responsum was sent only to Rabbi Weiss. In the early 1970s, when heart and liver transplantations were actually halted, both rabbis published it in full.60 In this first discussion, Feinstein does not develop a full treatment of the problem, yet he does convey important messages. Most fateful to the future of transplantation medicine is his rejection of the presumption that it is impossible to determine the exact moment of death. Feinstein is not at all perplexed by the possibility that a legally dead person might show signs of life. Moreover, Feinstein writes that even if the body of a beheaded person is still jerking and even if it was possible to reattach the head and heal the victim, the person is dead and there is no duty to restore him back to life because the duty to save life does not include the revival of the dead. Feinstein’s positivist approach is pivotal to the future acceptance of brain death as legal death. His second message is also innovative. He explains that, in order to declare a person dead, it is mandatory to monitor very closely that no spontaneous breathing occurs for relatively a long period of time. Because the art of precise diagnosis of death “had been lost,” the reliable length of apnea must certainly exceed the chances of the fetus to survive in the belly of the breathless and presumably dead mother. Although Feinstein did not enter into precise calculations, this requirement might match more or less the duration of apnea required by the updated apnea test protocol of the determination of brain death.61 Feinstein’s third message is that there is no duty to sacrifice a limb or to suffer the exploitation of one’s dead kin for the sake of saving life, although it is charitable to do so. Hence, it is prohibited to harvest organs without consent, but people should overcome their psychological resistance and donate organs for the sake of saving life. In this respect, he delineated higher moral standards than Weiss, who ruled that there is no duty to donate organs.62 On August 5, 1968, after six months of deliberations and three weeks after Feinstein wrote his responsum, an ad hoc committee of the Harvard Medical School published the first public criteria of “brain death” (the so-called Harvard Criteria).63 In response to this development, Feinstein reiterated his verdict that transplantation doctors are “stark murderers,”64 but he also spells out his view on the definition and diagnosis of death.65 Feinstein writes that although “all of 60 61

62 63 64 65

Feinstein 1973, Yo’reh De’ah, mark 174; Weiss 1972, Part 5, mark 8. This protocol delivers 100 percent oxygen to the patient, so that accumulation of carbon dioxide in the blood may occur without exposure of the patient to hypoxemia. This test usually takes ten minutes. The question of possible end-organ damage by apnea testing is not yet resolved (Paries et al. 2012). Pp. 111, 119–121. Ad Hoc Committee 1968. ‫רוצחים גמורים‬ Feinstein 1973, Yo’reh De’ah, mark 146.

214

Jewish Bioethics

the vitality comes from the brain,” neither the talmudic sages who knew this nor modern Halakhah should accept cessation of brain activity as equivalent to death. It is very difficult to reconstruct fully what Feinstein’s understanding of the Harvard Criteria was. He writes, for example that “according to their [doctors’] speculation, if the brain ceases to function, the person is dead, even though he is still breathing.” Did he refer to the passive gas exchange that occurs when the patient is artificially ventilated, or did he think that it was possible for “brain-dead” people to breathe? Moreover, Feinstein uses the words “cessation of activity,”66 not “brain death” nor “brainstem death.” Last, Feinstein undermines the relevance to transplantation medicine of his own theory of death and its diagnosis. He concludes his responsum by writing that even if it was possible to wait until the heart stops beating and then harvest it for transplantation, this would not be permissible because of lack of trust in doctors, who often make mistaken and even criminal judgments. Feinstein writes that doctors determine death prematurely and that they underestimate the survivability of the candidates to heart transplantation. In 1982, in a different context, Feinstein reiterated his impression that secular doctors recklessly shorten the lives of terminal patients.67 It is indeed ironic that two hundred years after leading academic doctors accused religious care of premature burial of innocent people, rabbis are now leveling the same kind of accusation against the forefront of biomedicine. Coincidentally, one day after Feinstein wrote his 1970 responsum on brain death, the chief Ashkenazi rabbi of Israel, Issar Yehuda Unterman, gave a speech on heart transplantation.68 Because the context of the talk was a rabbinic scholarly conference, the tone was mild, and no ruling was proclaimed. The Chief Rabbi suggested that, although it is permitted to risk temporary life for the sake of cure, removal of the sick heart from the recipient is like removal of his “presumption of viability”69 and, consequently, prohibited. This line of reasoning did not mature in the halakhic discourse. Rather rabbis have never questioned the probity of the heart-lung machines to which surgeons connect the patient’s circulation while stopping the contractions of the heart to operate on it safely. The interesting point is that rabbis Tendler, Feinstein, and Unterman were more concerned with the harm to the recipient than with the problem of premature harvest of a vital organ from a dying person. In 1978, Feinstein reaffirmed his position on brain death once again and with very strong words.70 He did not lean on Jewish law and values. Rather, he pointed out that only one out of fifty U.S. states legally recognized brain death.71

66 67 68 69 70 71

‫פסיקת פעולת המוח‬ Feinstein 1985, Hoshen Mishpat, mark 73. Unterman 1969. ‫ – חזקת חיות‬See p. 196. Feinstein 1985, Hoshen Mishpat, mark 72. Kansas. In 1981, the President’s Commission recommended uniform legislation incorporating recognition of brain death. By 1994, all fifty states and the District of Columbia approved

Organ Transplantation and Brain Death

215

In a different responsum, issued in the context of the public debate on the fate of Karen Ann Quinlan,72 in which transplantation medicine was not the issue, Rabbi Feinstein distinguished sick patients from victims of trauma. With regard to the sick, it is not possible to declare patients on life support as dead unless they are completely irresponsive and motionless and an apnea test of fifteen minutes is performed. However, in the presence of head trauma, in addition to these tests, it must be shown that the brain “has rotted”73 and that there is no connection between the brain and the body. Only then is it possible to say that the person is dead even though the heart is still beating.74 Feinstein does not give a halakhic explanation for the distinction between natural illness and head trauma. Presumably, it is a conclusion he arrived at following his in-depth consultations with neurologists and other experts. The passage of time and the absence of transplantation on the horizon allowed Feinstein to articulate in this responsum his theory of death. He writes very clearly that death is the complete and irreversible disruption of any control of the brain over the body. Although this occurs when the brain is dead, Feinstein never accepted the metaphysical presumption of the Harvard Criteria that death is a neurological event. Feinstein maintains a holistic philosophy of human life, one in which body without brain and brain without body cannot be considered a living person. Whatever residual signs of life each part might exhibit, the person is dead on their complete separation.75 In 1985, fifteen months before his death, Feinstein endorsed the Harvard Criteria, offering a novel argument. He contends that brain death is analogous to decapitation, which, in the Talmud, is paradigmatic of unquestionable death. Feinstein concludes that “even though the heart can still push for a few more days,” the person is dead.76

72

73 74 75

76

the Uniform Determination of Death Act, recognizing brain death as death. New Jersey added a special clause, empowering patients to request that their deaths be diagnosed by circulatory collapse only. It opens with the words that death need not be “declared in violation of individual’s religious beliefs” (Declaration of Death Act, 26:6 A-5). New York’s law requires that the process provide “reasonable accommodation of an individual’s religious or moral objection to use of the brain death standard to determine death” (N.Y.C.R.R. § 400.16). This information was given to me by Rabbi Shabtai Rappaport, editor of the responsa collection and son-in-law of the recipient of the responsum. ‫נרקב‬ Feinstein 1981, Yo’reh De’ah, mark 132. This is the reading of Rabbi Shabtai Rappaport, editor of the relevant volumes of Feinstein’s responsa, who spent many hours discussing these and similar issues with Feinstein. Rappaport cautions against reliance on the dates of Feinstein’s responsa. He would mark the date on beginning but might finish days or weeks later. A recorded interview with the author, August 1, 2012. Feinstein 1996, Yo’reh De’ah, mark 54.

216

Jewish Bioethics

As a matter of fact, Feinstein restated his innovative argument from 1968, according to which signs of life are meaningless in the presence of decapitation. In my view, the change in opinion and style of expression is wholly attributable to a growing trust in the medical establishment and the Harvard Criteria.77 However, some notable American rabbis have disagreed, promoting the argument that only solid proof that every single cell in the brain has died would qualify as analogous to decapitation.78 They also rely on an early eighteenth-century responsum by the leader of German Jewry, Rabbi Ashkenazi, on the death of a slaughtered animal: A person/creature does not die in one minute, but the ends, like the hands and legs, which are distant from the heart . . . die first. . . . And then the [organs] proximal to [the heart], because vitality is stuck in the heart, and it remains in it until death, when no soul remains in it at all.79,80

Ashkenazi, who was born a year before William Harvey’s death, must have also relied on old Jewish teachings on the blood as the carrier of the soul.81 Early medieval Jewish sources read the “circuits of the wind”82 as referring to a circulation of the blood, quite similar to Harvey’s discovery.83 Owing to the circulatory metaphor and the strong association, even synonymy of the words “soul” (neshamah), “pneuma” (ru’ah), and breath (neshima), Jewish law and tradition constructed the physiological concepts of life and death on the circulatory-respiratory system, a perspective that did not exist until the eighteenth century. Even though the Jewish method of slaughter cuts the carotid arteries in a manner that brings forth rapid death by exsanguination, the law refers to the cutting of the trachea and esophagus. Following slaughter, the animal is considered “dead,” but eating from its flesh while the body still shows signs of life, “before the soul has departed,”84 is forbidden.85 Harvey observed that “when the animal was no longer dying and no longer breathing, the heart continued to pulsate for a while.”86 Ashkenazi was in line with cutting-edge science. At this stage, we may discern two master narratives of the value of human life. The first is functional, hinging on some manifestations of life that are deemed definitive of the human being, namely the mental faculties. This is the narrative behind the notion of death as a neurological event. The key challenge to this 77 78 79

80 81 82 83 84 85 86

Feinstein 1994, 741; Rosner and Tendler 1989, and a list of sources in Freundel 2004, 219. Bleich 1995. ‫ואינו מת בפעם אחת אלא הרחוק מן הלב מת תחלה וזה ידוע שהקצוות כמו הידים והרגלים הם המזיעים זיעת מות ומתים תחלה‬ ‫מחמת ריחוקם מן הלב ואח"כ הקרוב הקרוב אליו מחמת שהחיות תקועה בלב ובו נשארה עד סוף הגויעה כי לא נשארה בו נשמה‬ .. . .‫כלל וכלל‬ Ashkenazi 1876, mark 77. See Nahmanides’s gloss on Genesis 45:26. Leviticus 17:11. Ecclesiastes 1:6. Lieber 1984. ‫טרם שתצא נפשה‬ Maimonides, Hilkhot Shehitah 1:2. De Generatione, chapter 51; Whitterbridge 1981, 243.

Organ Transplantation and Brain Death

217

narrative is the status of people who are permanently unconscious, severely retarded, or who are physiologically alive but otherwise posses neither the definitive manifestations of life nor any chance of expressing it in the future. However, there is an alternative, vitalist, and sacral approach to the human organism. In this second narrative, the very phenomenon of human life, even at its basic biological level, is holy and protected.87 It does not matter whether some organs and systems are missing. As long as there is effective circulation and tissue oxygenation, the person is alive. This perception is evident from Ashkenazi’s responsum on the essence of death and the kabbalistic sources he cites, as well as from the twentiethcentury rabbis and lay people who cannot classify as “dead” a warm body with a beating heart, tearful eyes, bowel movements, urine dripping into a catheter, and whiskers growing on the face. Feinstein sided with the neurological narrative. The rabbis opposed to the brain death criteria cannot help but straddling Feinstein’s authority along with its early (and perhaps unrevoked) opposition to transplantation from brain-dead patients and “the heart as the seat of the soul” narrative, which, despite its intuitive and theological appeal, was rejected by the talmudic legal (as opposed to midrash, hermeneutics, and homiletics) deliberation on the supreme duty to respect human life and save it.88 Few people and rabbis know that the surgeon opens the chest of his or her brain-dead patients, finds there a healthy beating heart, injects it with a paralyzing formula, and removes it after it has ceased beating.

the brain death debate in israel and the sheep experiment In 1985, in the wake of the second wave of heart transplantation, Professor Dan Michaeli, who was a secular doctor and the general director of the Israeli Ministry of Health, approached the Chief Rabbinate of Israel asking: Since this is not a medical but a religious question, [I wish to inquire] whether Halakhah can accept the death of the respiratory center [in the brain stem] as [the marker] of the death of the whole body.89

The rabbinate set up a committee of leading Israeli rabbis. One of its members, Waldenberg, was the only halakhic authority who was principally opposed to the notion of brain death and to organ transplantation from the dead, even from non–heart beating donors. In his opinion, the dead are exempt from all religious duties, including the duty to save life.90 He was also skeptical regarding the moral and religious value of organ donation from live donors.91 Waldenberg 87

88 89 90 91

Compare Giorgio Agmaben’s distinction between zoe and bios in relation to the state’s power over life – Agamben 1998. Yoma 85a. Michaeli 1987. Waldenberg 1988, mark 67. Waldenberg 1978, mark 91. See p. 119.

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Jewish Bioethics

accepted the nomination, but never attended the deliberations. Ultimately, the committee recommended the acceptance of brain death as criteria for death, with a few conditions.92 First, the patient must be a victim of accident and not of insidious diseases whose impact on the body is less clear.93 Second, they asked for the performance of a cutting-edge exam (the BERA) aimed at determining the viability of brain structures lying very close to the respiratory center. Chief Rabbi Eliyahu concluded his defense of the decision arguing that if we rely on new technology and desecrate the Shabbat in order to save life, even though by older standards the person would be considered dead, then we should rely on the same technology in the determination of irreversibility of independent breathing and brain functions.94 Third, addressing the trust problem, the committee stipulated that its representative must be present in each brain death panel. The Israeli Medical Association objected to the participation of a rabbi, maintaining that the determination of death is a purely medical issue.95 The Chief Rabbinate issued a letter warning against loss of trust should brain death be pronounced without full compliance with its requirements.96 There was an irony in this situation. After all, the Jewish communities were responsible for the acceptance of medical certification of every single death, not only of suspicious cases. In an attempt to avoid the accusation of premature burial, the communities were willing to medicalized ordinary natural death. Now, neither a rabbi nor a lay person may be present, even as a witness, at brain death panels. Because many anti-Zionist and separatist Orthodox Jews (usually referred to as “Ultra-orthodox,” Haredim) do not respect the authority of the state-funded Chief Rabbinate, Rabbi Professor Avraham Steinberg set himself to argue the case of brain death before the most authoritative rabbis alive, knowing that their unanimous endorsement was crucial for the acceptance of the brain death criteria by the mainstreams of Orthodox Jewry. Steinberg told me the story.97 Recruitment of halakhic consensus at the highest level is not an easy task. One prominent rabbi, Waldenberg, had already expressed his opposition. In 1987, the halakhist authority of the hasidic world wrote that heart transplantation is murder, that it is impossible to trust doctors and hospitals, and that the permission to practice medicine does not apply to acts that are opposed to the natural order, to the removal of vital organs from one person to give to another.98 Steinberg decided to approach Rabbi Weiss, the chief rabbi of the Ultraorthodox community of Jerusalem, Eida Haredit, which is non-Zionist and does not recognize the Chief Rabbinate. This was the same Rabbi Weiss, who, 92 93

94 95 96 97 98

Announced on November 3, 1986; published in Barkai 1987; 4:11–14. Apparently this goes opposite Feinstein 1996b, Yo’reh De’ah, mark 54. At any rate, the Chief Rabbinate as well as all other rabbis, have abandoned this distinction. Eliyahu 1987, 31. Ben Haim 2007. Published without a date in Barkai 1987; 4:16–17. A recorded interview, Jerusalem, January 17, 2012. Wasner 2002, Part 7, mark 239.

Organ Transplantation and Brain Death

219

in his earlier role as the chief of the rabbinic court in Manchester, initiated the correspondence on organ transplantation with Feinstein in 1968. Rabbi Weiss proposed to set up an ad hoc rabbinic court with Rabbi Elyashiv and Rabbi Auerbach, the two other influential rabbis (Feinstein was already dead). Rabbi Weiss was also the official rabbi of the religious hospital of Jerusalem, Sha’arei Tzeddek, where Steinberg worked and where a policy on brain-dead patients was a pending issue.99 Surprisingly, Rabbi Auerbach, who had not shied away from taking positions on delicate and complex halakhic issues, declined the idea, telling Steinberg that he was too old and lacked the required energy. Reverting to his initial attempt to focus on Rabbi Weiss, Steinberg wanted to present the argument in favor of brain death using photographs and other graphic aids. But Rabbi Weiss was disinclined to host an activity that might appear like a television show or film. At the last moment, the session was cancelled.100 His assistant told Steinberg that, shortly before his death in 1989, Rabbi Weiss repented the delay, expressing worry that his hesitancy over the use of multimedia might have costed many lives. In the meantime, when people consulted Rabbi Auerbach about organ donation from the brain-dead, he would refer them to Chief Rabbis Shapira and Eliyahu, knowing that they endorsed the brain death criteria and transplantation medicine.101 But he would not issue rulings on the matter. In 1990, the Rabbinical Council of America published an endorsement of brain death and donor cards. The public uproar prevailed on the halakhic leaders to speak up. On July 27, 1991, Auerbach signed a one-page summary of his position. In it, he refers to the brain-dead patient as “possibly dying, possibly dead.”102 Because it is forbidden to move the body of the dying person (so as not to enhance death), Auerbach forbade the performance of the tests necessary for the determination of brain death. Because the rabbis in Israel would not recognize any law other than Jewish law, he also forbade the reception of organs taken from “brain-dead” patients. Last, if it is possible to perform an exam that does not tamper with the body of the dying patient and that shows “beyond doubt, that all the cells of the brain are dead,” then it will be permissible to harvest organs from the body, even if the heart is still pumping. On the very same day, July 27, 1991, Auerbach and Elyashiv issued a short pamphlet aimed at the general public: We have been asked to reveal our opinion, the opinion of the Torah, regarding the transplantation of a heart and other organs for the sake of a patient in danger, while the heart of the donor is still beating, but his brain, including the brainstem, is completely 99

100 101 102

It is an erroneous commonplace that Rabbi Waldenberg held this title. In actuality, Waldenberg lived right across the street from the hospital, frequented its synagogue daily, and was always available to hospital staff. The episode is hinted at in Eliyahu 1987, 18. Stephanski 2001, 91. ‫ספק גוסס‬

220

Jewish Bioethics

not functioning – a condition known “brain death.” Our opinion is that there is no permit to remove any of his organs, and such an act is a kind of bloodshed.103

Noticing that Auerbach decided to speak publicly on the subject, Rabbi Professor Steinberg embarked on a series of discussions with him. At this stage, Auerbach marshaled a novel argument, one based on the talmudic maxim that when a pregnant woman dies, the child always dies first.104 Since there were reports of brain-dead women who delivered healthy babies, Auerbach saw in them evidence that brain-dead people are not dead. He told Rabbi Steinberg that the talmudic law on babies that survive the death of their mothers refers only to babies whose birth process has initiated, babies who are “uprooted from their place.” Auerbach wanted to be confident that it is possible to deliver a healthy offspring from a mother who is indisputably dead. Rabbis Steinberg and Halperin came up with the idea of conducting an experiment. A pregnant sheep was decapitated after being connected to life support. Since, according to Halakhah, decapitation is synonymous with death, the survival of the fetus will establish that it is possible for a fetus to survive his dead mother. Whereas Auerbach was fully committed to the talmudic normative maxims, he took its naturalist maxims as prima facie truths, subjected to direct empirical validation. The experiment was carried out twice, on January 9, and January 22, 1992, in a veterinary hospital.105 The successful demonstration had a minor impact on the rabbis. On May 7, 1992, Elyashiv and Auerbach reissued their pamphlet with one modification. In the place of the words “a kind of bloodshed,” they said, “It raises a worry of a possible bloodshed.”106 Auerbach died in 1995. Elyashiv, who died in 2012 and was active until 2011, never changed his mind. Until this very day, the religious hospital under their influence, Sha’arei Tzedek, summons brain death panels (whenthefamilyisinclinedtodonate)butdeliversbrain-deadbodiestootherhospitals for harvesting. This is a de facto compromise, endorsed by many rabbis, including the contemporary official rabbi of the hospital, the Ultra-orthodox Sternbuch (b. 1926). The main factor behind this tolerance is trust in Rabbi Steinberg, who is a pediatric neurologist by training and who participates in these panels. A legal breakthrough was made in Israel when a member of parliament, Otniel Schneller, promoted a law based on a solution from the early 2000s, which was created in reaction to public surveys indicating that almost half of Israeli Jews would object to organ donation on religious grounds.107 The new Israeli law (2008) Schneller promoted calls for the establishment of a public committee of rabbis and doctors that will draft guidelines and training programs for doctors in the “medical, legal, ethical and halakhic aspects” of brain 103 104 105

106 107

Halperin 2007. T. Arakhin, 7b. Steinberg and Hersch 1995; Steinberg 1994b. Ultra-orthodox rabbis do not serve in the army, and mostly object to Zionism. ‫חשש שפיכות דמים‬ Traubman 2002.

Organ Transplantation and Brain Death

221

death.108 Rabbis will not be present on brain death panels, only professionals trained by rabbis, ethicists, and jurists. By that time, only one prominent Ashkenazi ruler was alive, Elyashiv, and his power in the parliament was meager. The Ultra-orthodox oriental (Sefaradi) party Shass had many more representatives in the parliament, but they did not know how to vote because their own leader, Rabbi Yosef (b. 1920), had never revealed his opinion on brain death. On the night before the decisive vote, acting Chief Sefaradi Rabbi Ammar, Rabbi Steinberg, and Rabbi Halperin sat with Rabbi Yosef. Following their detailed explanations, he told his people to support the new law. It is unclear yet to what extent this compromise and rabbinic support has impacted on the rate of consent to transplantation.

brain death and

HALAKHAH:

a critical reflection

In my own personal experience, and in the experience of my colleagues, many refusals are accompanied by religious arguments, mainly the concern that the mutilated body will not rise properly at the day of resurrection. However, as we have seen, this religiously formulated argument has no role in the halakhic discourse. Moreover, it is quite likely that people resort to religious language because they know that respect for religion renders this explanation reasonable and legitimate. It is endlessly easier to tell a healthcare professional that refusal is due to impersonal, respectable, and inflexible factors such as religion than to express lack of trust or admit to psychological difficulties. Trust in public medicine and a sense of duty to save life through cooperation with public agencies come with a high index of socialization and proximity to the social loci of power – especially military service and academic education. Not only did the Zionist and state-funded Chief Rabbinate and the chief rabbis promoted brain death in the 1980s, but virtually all of the 150 rabbis signing the public letter in support of organ donation have served in the Israeli army and regard such service as morally and religiously valuable; moreover, all of the rabbis listed receive their salaries – directly and indirectly – as well as support for their religious academies, from the state of Israel.109 American rabbis seem not to be divided on a purely halakhic issue but on the overall social impact of their ruling on brain death and the face of Judaism in the eyes of the nations. In one of his publications on brain death, in addition to the direct halakhic arguments discussed earlier, Rabbi Tendler also wrote that it would be inconceivable that Jews receive organs but refrain from donations. He concludes his article with the following words: A week ago, the heart of a brain-dead soldier in the Israel Defense Forces was transplanted into an Arab citizen of Jerusalem. The Eida Hacharedit110 in Jerusalem protested, not 108 109 110

Clause 6(a)ii. For the list of names, see Steinberg 2010, 143–149. The Eida Hacharedit is the oldest Ultra-orthodox community in Israel; it was founded in the nineteenth century by followers of Rabbi Sofer. Rabbis Weiss and Sternbuch served, respectively,

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because the brain-dead criterion was unacceptable, but because Arabs refuse to donate their organs to Jews! Are we prepared to have the Christian world level a similar charge against us and refuse us their organs?111

Although Tendler is a professor of biology, and although he spent many hours with Feinstein on the medical aspects of brain death (they visited together comatose patients in a New Jersey hospital),112 Tendler’s decisive argument is not about brain death because it reiterates his father-in-law Feinstein’s explicit reference to Western moral standards on abortion.113 Both Rabbi Weiss’s ruling that there is no duty to donate organs and Landa’s eighteenth-century ruling that there is no duty to donate bodies to anatomical study are explicitly based on general psychology and commonsense morality, not on Jewish sources.114 According to Tendler’s stern critic, Rabbi Bleich, one must not extrapolate from controlled decapitation in the lab to the kinds of decapitation mentioned in the sources. Lab conditions facilitate effective circulation, which he believes is the essence of biological life, whereas all other forms of decapitation do not. However, it would be mistaken to view Bleich’s vehement struggle with brain death criteria as a matter of legal hermeneutics and experimental physiology. There are broader social issues at stake. In an interview in 1989, he recognized the two historical phases in the brain death discourse. But, instead of talking about the Harvard Criteria and the successful transplantations of the late 1980s as opposed to the unregulated, preimmunosuppression era of the late 1960s, Bleich said that, in the past, the motivation behind the brain death definition was to save life by means of transplantation but that, in the second phase, I think that the motivation to redefine death today is somewhat different. It essentially stems from a desire to avoid keeping people on life support machinery where there is no longer any hope of their recovery, a desire that is based upon the expense involved.115

Although defending radically opposed legal positions on brain death, Rabbis Tendler and Bleich share one critical factor – the acknowledgment of the centrality of extralegal considerations of public policy in the determinants of their overall teachings as rabbis and opinion leaders. Protecting the image of Judaism in the eyes of the nations and protecting the vulnerable are established considerations in Jewish law. However, they have no intrinsic connection to the definition of death and its diagnosis. The impression is given that halakhic truth is sometimes like Schrödinger’s cat. If left alone, isolated from sociohistorical contexts, the sources may or may not yield the conclusion that brain death is

111 112 113 114 115

as chair and vice chair in its independent Rabbinic Court. I have not found a single source supporting the allegation that Arabs refuse donations to Jews. Tendler 1990, 8. A telephone interview on July 29, 2012. P. 169. P. 111. Bleich 1989. This criticism was partially true. See Pernick 1999, 9–10.

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legal death. But, once examined by human eyes, the ultimate ruling fits the sociocultural concerns of the beholder. In comparison to the rabbis’ extralegal considerations regarding brain death, it is worth examining the laity’s extrahalakhic religious considerations. Recently, public opinion in Israel was stirred by the story of a celebrity soccer player, Avi Cohen, who became brain-dead following a motorcycle accident. Cohen was not a practicing Jew. Although he had left a donor card and his wishes about organ donation were known, the family retracted its initial consent to organ donation following intensive efforts of persuasion by a very religious friend. The pleadings by the chief Sefaradi rabbi of Israel, Ammar, failed to prevail against the pressure of this friend and of a famous charismatic and controversial kabbalistic healer, Ifargan (aka “The Reontgen” for his alleged psychospiritual perspicuity). Whereas the friend stressed the view that harvesting organs from the brain-dead is murder, others promised “miraculous recovery” should the family refuse donation and persist with prayer.116 Apparently, this discourse was only partially deliberative (e.g., whether brain death is death). The other part, which was certainly no less powerful psychologically, was the purely religious or faith-based hope for a miracle. At the deathbed of his father, Cohen’s son had to face the unbearable thought that he might sanction the slaughter of his father and the rejection of a last opportunity for God’s miraculous love and redemption. The widow articulated secular values: I heard [from the social worker] on organ donation. But it was clear to me this had no chance. I told her in the clearest way possible that I do not consent to disconnect him from [the life support] machinery and that nobody will change my mind. He must stay whole, in one piece, beautiful as he was all of his life. I am confident I did the right thing. I and the rest of the family are in peace with it [the decision not to donate]. . . . I knew how strong he was. Even though the doctors’ gave up, I told everybody to embrace and hope until the last minute.117

For the widow, as for numerous ordinary people in the world, the “last minute” is cardiac arrest accompanied by circulatory collapse. Interestingly, even European countries whose legal structure is based on presumed consent of the deceased (i.e., “opting out schemes”) usually do not harvest organs against explicit and known refusal of the next of kin. This situation is titled “soft daily practice” of the law.118 It is the only context in which the law empowers professionals to save life, and yet, they systematically and with impunity refrain from doing so owing to an objection that is not legally valid. In light of the “soft law,” it is unfair to complain against rabbis for not taking a clear and unambiguous stand in favor of acceptance of brain death and transplantation medicine. 116 117 118

Kaspit 2010. Scheinman and Meidan 2011. Roels and Rahmel 2011.

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There is little interaction between the rabbis dedicated to Halakhah and medicine, such as Steinberg and Halperin and hasidic rebbes, kabbalists, and popular preachers such as Ifargan. At any rate, if the leading halakhists openly resort to nonhalakhic considerations, and the populace invokes nonhalakhic religious arguments, one asks whether Jewish religious law has any substantial role in the regulation of organ transplantation in society. One is tempted to wonder to what extent communal values and laws shape practice and motivate individuals, or whether, instead, communal values and laws are shared vehicles in the service of deeper, less articulate, and more universal issues in psychology, spirituality, and morality. Weiss and Auerbach’s hesitations to confront the problem of brain death from a halakhic perspective and guide their followers accordingly make us wonder to what extent formal religious law shapes mentalities and practices and to what extent religiosity and other psychological and social factors constrain religious law and its regulative clout. At this stage, we may discern three normative layers in the halakhic discourse. The first is the internal conceptual language of Halakhah. This language is open to arguments in favor of the brain death criteria, as well as to arguments against them. Because the medical knowledge of the talmudic and premodern authorities was so much different from our own, any attempt to reconstruct an allegedly “true” halakhic position on the timing of death seems to me wishful thinking leaning on anachronistic stilts. The second layer is comprised of the dominant concerns of the rabbis in their given sociohistorical circumstances. There is no doubt that trust in the biomedical establishment is the key issue in the brain death discourse. Trust is a universal issue that, in the special context of Judaism, has been particularly unlucky. While the medical, legal, and bioethical communities have been working for the past forty years on trust building through discourse, research, regulation, and legislation, the most authoritative Orthodox rabbis were dying out. Granting the possibility that Feinstein and other rabbis changed their minds and opened themselves to the contemporary practice of organ transplantation, this happened when they were weak, elderly, and incapable of wiping from the collective memory the censorious opinions of their prime years in leadership. Although acceptance of brain death is a legitimate position in many Ultra-orthodox circles, active and public promotion of organ transplantation is found only among openly Zionist rabbis. This is the third layer of halakhic influence, the domain of active mobilization of individual and communal resources. Although Rabbi Yosef instructed his people to support the law on brain death, in his public announcement, he told his followers not to sign donor cards because he “supported the law, not organ transplantation [as a public policy]. Each case must be brought before a rabbi for individual evaluation.”119 In no other area of public life is the demarcation line between the Gedolim120 (“the Big Ones”), who were educated in the first half of the twentieth century, 119 120

Ben Haim 2008. ‫ גדולי הדור‬,‫הגדולים‬

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and ordinary halakhists so fateful. Only one rabbi of the Ge’dolim generation openly and actively supported organ transplantation from the brain-dead – Rabbi Avraham Shapira (1911–2007) – who was the chief rabbi responsible for the rabbinate brain death committee. But he was the exception that proves the rule. Because Shapira did not issue responsa in the decades following the Holocaust, he did not secure a position among the halakhic leaders of the post-Holocaust era, the strata of halakhists that I refer to as “first generation.” Shapira rose to prominence only in 1982, when he was elected as the head of a Yeshivah (religious academy) and, in 1983, when he became the chief rabbi of Israel. Moreover, among the authorities cited, he was the only avowed Zionist. So far, the Ultra-orthodox communities have never accepted a Zionist rabbi as an authority; Zionist Jews accept the halakhic leadership of non-Zionist and anti-Zionist rabbis. It is not unlikely that had the brain death criteria been born twenty years earlier, and with less scandalous beginnings, the authoritative rabbis would have had the opportunity to consolidate their teachings in parallel to the maturation of medical, ethical, and legal frameworks of the practice.

brain death criteria: hybrid or chimera? The stepping-stone to the contemporary halakhic conceptualization of death is the maxim that decapitation is tantamount to death, regardless of any other physiological phenomena. However, four epistemological challenges stymie the transition from this point to the acceptance of “brain death” in the clinical context as equivalent to decapitation. The first is the precise definition of “decapitation,” a problem that is not unique to Halakhah. Contemporary non-Jewish legal criteria vary from the establishment of “brainstem death,” to “whole brain death.” Some rabbis require evidence that every single cell in the brain has died. The second epistemological hurdle is Rabbi Auerbach’s contention that the performance of the panel of tests required for the establishment of brain death is prohibited for fear of enhancing the death of patients who are not brain-dead. The third hurdle is the cultural construction of the routines of dying. Since rabbis are open to the possibility of transferring life support from a terminal patient to a salvageable one,121 for the sake of saving life they may also be willing to take the risk that particular cases of brain death are not as complete as decapitation should be and the risk that testing for brain death might slightly enhance death.122 But it is also possible that permissions to divert life support are extraordinary, whereas the practice of spotting “good candidates” for transplantation becomes routine. The Ultra-Orthodox rabbis are loath of novel policies even when the embrace discrete leniencies. 121 122

P. 372. Bar Ilan 1989.

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The fourth hurdle is trust. Part of the problem relates to the sense of identification with the practitioners of science and medicine; part of it has to do with the particular circumstances prevailing in specific social contexts, such as the relationship with the secular state. According to its website, the Bilvavi alternative and unrecognized donor card and the Arevim organization of doctors and rabbis work to “eliminate any trace of doubt” regarding the diagnosis of brain death and to offer an alternative verbal formulation that avoids “opening to the Devil” (i.e., the belief that preparation for death might cause it). The 2008 Israeli law on organ donation grants priority on the waiting list to patients who hold a donor card for at least three years.123 When two patients who score equally by medical standards of priority compete for an organ, the card holder gets priority. Rabbi Steinberg has failed to secure legal recognition in the Bilvavi card.124 An optimistic perspective may construe the regulation of death as a hybrid of values involving professional scientific authority and democratic participation. This hybrid model suggests a broad, meaningful, and cogent concept whose holistic content and value is greater than its particular constituents – systems of values (in this case, Halakhah), public sentiment, cognitive orientations, and scientific validity. This approach is reflected by the appeal of the director of the ministry of health to the Chief Rabbinate on his presumption that the determination of death is a matter of value, not science. A less optimistic model may conceive of the regulation of death as an epistemic chimera – a complex construct that cannot be wholly approved of from any single perspective of reasonable valuation. It is a mishmash of principles and rules that ideally reflects a pragmatic equilibrium, the point of least strife and discord in society regarding the regulation of a sensitive issue such as death and the protection of the vulnerable from exploitation. Halakhah’s empiricism and non-essentialism have nourished its vitality throughout the ages. While scientific paradigms on life, death, sexuality and identity have been changing, the formal halakhic discourse remains quite untouched. As we have seen, Halakhah would not tell one what death is, only delineate naturalist principles for its diagnosis. In the same vein, Halakhah would never talk about “natural” sex; only prescribe some naturalist criteria for licit and illicit sexual conduct (e.g. whether semen is emitted inside or outside the woman’s body). Halakhah boldly avoids any conceptualization of the moral status of the unborn. Halakhah would not commit itself to a world-view, or zeitgeist, that might be replaced in the future. And yet, Kabbalah’s intricate metaphysics and symbolism press on Halakhah from the right, while acknowledged (e.g. “the way of the world”, consideration of public order) and absorbed cultural categories and mentalities (e.g. gender roles, professional authority) press from the left. Kabbalah’s influence is sometimes mitigated by a mystical 123 124

Clause 9(b)4(a). My own ethical criticism of the priority system is forthcoming in Ha’Re’fu’ah. http://bilvavi.co.il/Home/About

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notion that halakhic formalism embodies hidden theurgic truths; that a pragmatic and apparently innocuous deviation from the law might involve hidden, yet, detrimental spiritual consequences.125 What is the future of Halakhah and bioethics? The optimist would believe that Jewish theology and law have preserved an inner kernel capable of steering both individuals and the community towards good life, social reform and ultimate redemption; that between symbolic worlds and social realities, there exists a dynamic, responsive, yet independent axis of reflection and regulation. The skeptical would behold Halakhah as a zombie skeleton, whose movements are controlled by uncoordinated, even antagonist, loci of power. In sum, organ transplantation from the dead entails unprecedented conflict – between the “moral price” of mistaken diagnosis (hastening death) and that of prolonged waiting (loss of an organ that can save life). On top of this, we find a second conflict – whether disfiguration of the body is the psychological and moral price expected of persons even for the sake of saving life and whether it is a religious duty (Mitzvah) to donate organs at all. In the very first rabbinic response to organ transplantation, Rabbi Weiss gave a negative answer to this question. A fourth layer of discourse pertains to the safety of transplantation medicine (with regard to recipients), as well as to trust in the medical establishment. Here, the reader is advised against an exploration of the halakhic timing of death (the ontological problem) and its determination with a sufficient level of certainty that does not leave an opening for accidental bloodshed (the epistemological problem relevant to transplantation medicine) without paying due attention to the other three layers of discourse. Although Feinstein’s responsa are considered the chief legal sources against recognition of brain death, Feinstein actually removed the halakhic hurdles to transplantation from the brain-dead. He did so by arguing for the practicality of determining “the moment of death,” by endorsing counterintuitive criteria of death (i.e., death may be proclaimed while the heart is still beating), and, perhaps most importantly, by calling people to alter their psychomoral sensibilities so that organ donation may become a religious duty. Once donation is recognized as a lifesaving duty, there is also a very strong theological and legal motivation to stretch halakhic boundaries in this direction. At present, the vast majority of rabbis agree that in circumstances of trust in the relevant doctors, it is permissible to harvest organs from braindead patients. Not a single rabbi endorses forced harvest from the brain-dead; some consider consent to donate an act of personal duty (mitzvah); many regard it as a supererogatory charity.

125

E.g. Reiner 2011, 100–101.

10 Terminal Care and the Ends of Life

sociocultural background The rabbinic culture of the Mishnah and Talmud (late antiquity) deemed the moment of death “better than the moment of birth,”1 because only then was the balance of one’s whole life brought to closure.2 The talmudic literature contains a few stories of people who ascended to Heaven because of an exceptionally meritorious deed at the end of their lives.3 Some rabbis have ruled that a person who commits suicide out of repentance over grave sins and with the intention of self-inflicting the death penalty may indeed reach Heaven.4 But such stories and events have always been highly exceptional. According to the Jewish sources, the fate of one’s soul is determined by the overall balance of good and bad deeds during the person’s entire lifetime, in which the moment of death does not bear a unique value.5 Because genuine repentance can obliterate the sins of the past, people have always been encouraged to repent before dying.6 Repentance is also an excellent means to reverse an apparently hopeless situation. The Talmud writes that when a person is mortally ill, his attendants should encourage him to confess,7 spiritual care of the sick was part and parcel of his or her nursing care, the lay responsibility of family, friends and later also by the communities and their sick care and burial societies. The Jewish tradition regards the mental anguish of vulnerable persons as a serious risk factor for death. According to rabbinic ethics and law, even the 1 2 3 4 5 6 7

Midrash Tanhuma, Buber ed., Va’ya’k’hel on Eccl. 7:1. T. Avoda Zarah, 10b. T. Avoda Zarah, 18a. Reischer 1861, Part 2, mark 111; Lichtenstein 2008, chapter 14. Maimonides, Hilkhot Teshuvah, 3. T. Shabbat, 153a. Shabbat, 32b. In Judaism, confession is not associated with a sacrament; it is personal, not interpersonal (e.g., to a rabbi).

228

Terminal Care and the Ends of Life

229

loftiest spiritual goals must not hinder the patient’s chances of recovery. The Talmud discourages the invocation at the deathbed of dramatic struggles between good and evil. Among the gravely ill, the sight of the Angel of Death can be itself a cause of death.8 Early modern rabbis wrote that unless the condition is hopeless, it is forbidden to suggest confession for fear of inducing in the patient the terror of death.9 Although European moralists and theologians encouraged people to consider every day as the day of their death,10 regarding vulnerable people, the rabbis preferred to suppress awareness of impending death, even at the risk of death without confession. Christianity’s attitude toward death and dying was a radical break with its cultural sources, both Jewish and Hellenic.11 First and foremost, a death scene lies at the very heart of Christian theology and religiosity. In Catholic, Protestant, and secular circles of Western culture, it was widely held that the spectacle of deathbed suffering has a special edificatory power for every person witnessing it.12 Believers emulate the life and death of Christ, as well as of the martyrs. Second, Christians have developed elaborate rituals for the sick and the dying, purpose of which was both the healing of the body and the salvation of the soul.13 The viaticum, confession, and the anointing of the five sense organs were increasingly regarded as necessary for Christian death.14 In the Late Middle Ages, an ethos of “good death” appeared, which was shaped and summarized in one of the five most popular books of the era, “The Art of Dying,” Ars Moriendi.15 According to the tradition of the Ars Moriendi, severe illness presents to the patient the “greatest and rarest temptations.”16 Satan and his minions attack the patient on the brink of death, the moriens, in a last attempt to seduce him to commit five prototypical sins – apostasy, despair, rageful noncompliance with care, excessive preoccupation with the future of one’s estate, and other worldly affairs, and vanity at being an exemplary and saintly patient. Angels, saints, and well-intentioned caregivers inspire the moriens to remain pious. It is this struggle between Good and Evil over the soul that will eventually determine its eternal fate. Halakhah approaches terminal care quite pragmatically. Maimonides writes that, a sick person who has become too debilitated to walk in the

8

9 10 11 12 13 14 15 16

T. Avodah Zara, 20b. The seminal mortuary manual, Ma’aver Yabbok (Mantua 1626), which means “crossing the brook” (see Genesis 28:22), casts death as a transition associated with struggle with the forces of evil. This is certainly due to kabbalistic influence. See also Aaron Berechia of Modena 1860, 208 (Seffat Emmet, chapter 14). Glosses Shakh and Bakh on Yo’reh De’ah, 338. Beaty 1970, 118. Paxton 1990, 21. McManners 1981, chapter 8; Chartier, 1987, 63; Lavi 2007, 14–38. Paxton 1990, 27–31. Paxton 1990, 167. Delumeau 1990, 57–61. Owst 1926, 342.

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market, and he falls in bed is a moribund.17 The status of his gifts differs from the healthy man’s.18Maimonides explains that the law compels compliance with the wishes of the moribund even in violation of the laws on contracts and gifts. This exception was enacted by the sages who were worried that a gravely ill person might lose sanity19 out of worry that his wishes might not be fulfilled. According to the medieval book Sefer Hasidim, this law is restricted to the disposal of property and not to requests that might harm the person.20 In the tradition of the Ars Moriendi, the fourth temptation of the moriens is excessive preoccupation with his estate and its posthumous division in lieu of doing charity and minding the soul.21 Later on, special “religious, quasisacramental” value was given to deathbed wills as embodiments of personal conscience regarding the appropriate future of one’s property.22 But Judaism has tried to evade this psychomoral burden and to abide by deathbed wishes because of the vulnerability of the patient, not from genuine respect for their validity as authentically autonomous choices of utmost personal significance. The rabbinic vitalist effort to protect seriously ill patients from psychological trauma, and the exceptional value granted in Jewish law to the prevention of suffering, have excluded the construction of the deathbed as a scene of moral and spiritual struggle and as an event that has the power to predicate the judgment of one’s soul. The rabbis have refrained from endorsing the idea that human suffering is part of the natural order.23 The Talmud is careful not to extoll deathbed suffering as a means toward atonement and salvation. In one of the formative stories on terminal care in Judaism, Rabbi Yehuda HaNassi (aka Rebbi) suffered the agonies of a bowel condition. His maid prayed to God that he die and then she interrupted the disciples’ prayer for his life.24 The posttalmudic rabbis find in this vignette evidence that it might be good for some patients who suffer to die, that it is licit to pray for their death, and that action that indirectly stops the life support of such patients might be licit as well.25 The talmudic literature contains deathbed descriptions of Moses,26 but this is the exception that underscores the rule. Not only was Moses an extraordinary person, but his death was marked by a supernatural absence of pain, suffering, anxiety, and natural decay. Only with the advent of the hasidic movement of the mid-eighteenth century do we find hagiographic and theological literature 17 18 19 20 21 22 23 24 25 26

‫ – שכיב מרע‬literally: “lying down due to [something] bad.” Hilkhot Ze’khi’ya U’Ma’ta’nah, 8:1. ‫תטרף עליו דעתו‬ Margaliot 1957, mark 720. O’Connor 1942, 33–41. Ariès 1981, 196–198. Kraemer 1995, 55. T. Ketubot, 104a. On prayers for death see pp. 190, 193, 230, 241. Waldenberg 1985, mark 5; Feinstein 1985, marks 74, 75; Barilan 2003. Haberman 1947.

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describing the deaths of holy men as inspirational events. This development is associated with the rise of the tzaddik in sabbatianism (a seventeenth-century messianic-kabbalistic movement) and hasidism. The tzaddik is a holy man, not necessarily wise or knowledgeable, but whose personality is exemplary.27 A typical narrative of such a death begins when the holy man “knows” that his time has come. The relatives call the doctors and try to persist with their routines of care, but the tzaddik refuses further medical efforts on behalf of his life. He becomes the master of his death, dedicating his remaining time and energies solely to spiritual matters. Even after the dying process has begun, the holy man is capable of confession and other meaningful gestures. A day or two may pass from the renunciation of medical care to actual death.28 Contemporary halakhists and theological bodies of literature have not developed ideals of “good death,” virtuous dying, and virtuous ministration to the dying, but they have mounted a robust and elaborate approach to the key bioethical challenge of end-of-life care – whether it is good for some patients to die and what duties, permissions, and prohibitions healthcare professionals have to observe in this regard. Indeed, the detailed responsa on the subject were written in the 1970s, in parallel to the first Western public debates on end-of-life care. The halakhic discourse on terminal care revolves around three themes. The first is caution not to accidentally harm the patient, especially his or her psychological coping capacity. The second is protection from suffering because “good” and “beautiful death”29 are interpreted as death without suffering and disfiguration.30 The Palestinian Talmud uses the word “easy death.”31,32 All of these expressions articulate the talmudic tenet that the commandment of neighborly love is especially borne out by helping a person to die without suffering.33 The third theme is the protection of vulnerable life, even at its very end. The sources employ the metaphor of the flickering candle to the dying soul. Both need special protection from premature extinction. The legal maxim is: “The dying person is alive like any other live person.”34,35 The mortally ill person is also highly vulnerable, and touching or frightening him or her may hasten death. When death is near, the patient may be touched only for the sake of palliation and respect for his or her dignity (e.g., cleaning).

27 28 29 30 31 32 33 34 35

Horodotzki 1947, 166–171; Green 1979, 275–282; Minz 1968. Tucazinsky 1960, 14–17. ‫מיתה יפה‬ T. Sanhedrin, 45a. ‫מיתה קלה‬ T. Yerushalmi Sotah, 1:5. T. Sanhedrin, 45a. .‫גוסס הריהו כחי לכל דבר‬ Alfasi (Rif) on T. Mo’ed Kattan, 16b; Shulhan Arukh, Yo’reh De’ah, 339:1; Zohar 1994, 40–42.

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Jewish Bioethics

action and inaction in the face of death The halakhic discourse on terminal illness tackles three main issues: 1. The special legal status of the life of terminal patients. 2. A prevalent attitude that, as death approaches, the duty to fight for life diminishes. However, because of the positivist nature of Halakhah, active, direct, and deliberate killing is always prohibited, even when it is to the benefit of the patient.36 The patient enjoys a greater liberty to take risks for the sake of palliation and even to take great risks for a slim, but not unrealistic, chance to prolong life. 3. The legal status of life support – whether dependence on life support alters the moral status of the patient’s life; whether discontinuing life support is like active killing; and whether patients have a legal right or claim to life support, especially when other patients are more likely to benefit from it. Since these issues are implicated with each other, I will address them simultaneously, rather than taking one question after another. A terefah37 is a person whose life expectancy is less than one year. Although killing a terefah is an act of murder, the punishment involved is less severe than the punishment prescribed for murdering a non-terefah. Therefore, Rabbi Sternbuch rules that, where a shortage of life support equipment exists, it is permitted (or even required) to indirectly disconnect a terefah and to connect a curable patient to a ventilator.38 From the notion that terefah status may be an opening for disconnecting life support for the sake of saving someone else’s life, Rabbi Professor Daniel Sinclair gathers that the terefah status may also justify the removal of life support for the sake of the patient, whenever the terminal patient prefers death to ongoing suffering.39 I find three problems with Sinclair’s innovative idea. First, according to Maimonides, the status of terefah is relevant only to morphological deformations (e.g., a hole in the chest), but homicide of a person who is dying due to natural illness is a capital offense.40 Second, even if the patient is a terefah owing to an anatomical lesion (e.g., a nonhealing surgical wound, brain hemorrhage), halakhic leniency should cover all sorts of indirect action (the halakhic term is ge’ra’ma41), not necessarily the transfer of life support machinery. It would cover an indirect method of poison infusion, for example. But it seems that Sinclair would find this conclusion too far reaching. 36 37 38

39 40 41

Shulkhan Arukh, Yo’re De’ah 339:2, Remma. ‫טרפה‬ Sternbuch 1992, mark 858. This opinion is probably based on gloss M’e’iri on T. Sanhedrin, 74a; gloss Tif’e’ret Israel, Bo’az, mark 3, on M. Yoma, 8:3, and Wistinetzki 1924, mark 315. See also Babad 1982, mark 297. Sinclair 2003, 224–227. Hilkhot Ro’tze’ah, 2:8. ‫גרמא‬

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Last, considerations that mitigate punishment for breaking a law do not automatically translatable into permissions to transgress the law. The rabbis have condoned suicide motivated by fear of terrible suffering,42 but this has never led to a permit, certainly not a policy, endorsing suicide. Rabbi Firrer formulated a painful question: Is connecting a dying patient to life support a religious duty43 or the transgression of a religious prohibition?44,45 He answers that the injunction “neither shalt thou stand against the blood of thy neighbor”46 refers to everything a person values as strongly as he or she values his or her life. Since freedom from extreme or unremitting suffering is as important to an ordinary person as his or her life, when a terminal patient seeks euthanasia due to genuinely refractory and substantial suffering, we are in a conflict between two aspects of the same injunction. Moreover, the duty of neighborly love also calls on us to do our best to stop the sufferings of a fellow Jew. Hence, Firrer advocates a policy of inaction – neither to provide active life support, nor to act against life. He also claims that, in the case of terminal illness without hope, it may be permitted to disconnect a patient from a respirator. It seems that we have to address two questions. The first is when in the course of an incurable illness it is no longer appropriate to provide medical care; the second is, under what conditions, if any, it is permissible to discontinue ongoing therapy. According to Rabbi Feinstein, conditions other than the primary terminal disease (e.g., a heart attack in a cancer patient) should be treated until the last three days of life.47 Rabbi Auerbach set the line at one week.48 The probable source for this ruling is the duty to evacuate a dying person from a house on fire.49 These two immensely influential rabbis did not provide an explanation for these time ranges, but they might be related to the prohibition against touching a dying person (gosses50) for fear of shortening his or her life (discussed later), an

42

E.g., Gloss Tosafot on T. Gittin, 57b; Rabbi Nathanson wrote that the dishonorable treatment prescribed to people who committed suicide is meant for those who do it out of nihilistic apostasy, but not to people who kill themselves out of suffering, humiliation, and anguish (Nathanson 1875, part 3, mark 217). See also Hazzan 1876, mark 14. The overall message is that although suicide motivated by suffering, shame, and other forms of genuine anguish is always prohibited, it is not classified as extreme vice like apostasy and homicide. Today, in many suicide cases, on the presumption of transient insanity produced by extreme sorrow, rabbis permit the treatment of the deceased as if he or she died naturally. The rabbinic sources have always been quite tolerant with regard to the treatment of people who have committed suicide, even though nobody has permitted or even expressed tolerance for a suicidal intention. 43 ‫מצווה‬ 44 ‫איסור‬ 45 Firrer 1986. 46 Leviticus 19:16. 47 Feinstein 1985, Hoshen Mispat, marks 74:4. 48 Avraham 1993152 ,‫ב‬. See gloss Orah Haim on Exodus 31:13. 49 Margaliot 1957, mark 724. 50 ‫גוסס‬

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act that is considered “like bloodshed.”51 If the prognosis is already in the range of days, it might be possible that he or she is already dying – that the patient is within the last three days of life. The question of discontinuation of life support is much more complicated to answer. One difficulty is the absence of life support in premodern medicine. Every ruling on the matter will inevitably depend on creative analogies and sophisticated casuistry. The second problem is related to the halakhic concept of a gosses. A gosses is defined as a person who, according to the reasonable judgment of those involved, is actively dying and is expected to die within less than two to three days. The laws on gosses entail two fundamental assumptions – one is normative, the other naturalistic. The normative maxim is that any action that hastens the death of a gosses is like bloodshed. The naturalist assumption is that the life of a gosses is vulnerable, like the flame of a spent candle; even the slightest move might extinguish it.52 It is also forbidden to do anything that might appear as preparation for death for fear of terrifying a gosses and, consequently, hastening his or her death.53 The only halakhic source permitting one to do something to a gosses with the intention of allowing him to die is found in the codex of law Shulhan Arukh: The dying person is regarded as a living person in all respects . . . . It is forbidden to do anything that hastens his death. But it is permissible to remove hindrances to death, such as the noise of chopping wood or salt on his tongue. Such things delay death, and their removal [does not affect the person] but the obstacle.54

The source of this permission is the medieval anthology from Germany Sefer Hasidim, which most probably reflects the received wisdom of the day that salt under the tongue repels death. Although in both surviving versions of Sefer Hassidim(the Parma and the Bologna manuscripts) it is written not to put salt under the tongue of a gosses,55 the codex of law gives permission to actively remove it from the mouth of the patient. What is the source for this singular permission to touch a gosses and actively remove the thing that keeps him or her from dying? One possible answer is the talmudic story on the martyrdom of the secondcentury sage Hanina b. Te’rad’yon. The Romans put on his chest cloths soaked with water so as to slow down the dying process and prolong his suffering. They [the disciples of Hanina who witnessed the event] said, “Open your mouth, and let the fire in [so you will die quickly]” Hanina replied, “It is better that He who gave [life] will take it, and I will not harm myself.” 51 52 53 54 55

M. Shabbat, 23:5. Massekhet Se’makhot, 1. Gloss Ran on T. Mo’ed Kattan, 3. Yoreh De’a, 339:2, Remma. Wistnitzki 1924, mark 315; Margaliot 1957, mark 623.

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Then the Roman executioner approached him. “Rabbi,” he said, “if I increase the flame and remove the wet tufts of wool, will you grant me eternal life?” Hanina said, “Yes, I will.” The executioner persisted, “Would you swear to me [that I will be granted eternal life]?” Hanina swore. The executioner increased the flames and removed the soaked wool. Hanina died quickly [thereafter] and the executioner jumped into the fire. A heavenly voice was heard saying, “Hanina and the executioner are welcome to eternal life.”56

Along with the story on the death of Rabbi Yehuda HaNassi (discussed earlier in this chapter), the martyrdom of Hanina has become formative in the development of rabbinic ethics on the end of life.57 Yet, it is not clear how increasing the flames and removal of tufts of wool can be instructively analogous to removal of life support. One also wonders why it is forbidden to open the mouth, but not to increase the flame. To work, the analogy from comportment in public during sadistic martyrdom to natural and private death must reach a very high level of abstraction. Feinstein, who apparently cannot explain why opening the mouth is prohibited and increasing the flame acceptable, pins the issue down to a conflict between naturalist ethics and positive legislation. He writes that because the executioner was not Jewish, he was bounded only by the taboo on bloodshed in the covenant to the Noahides. Feinstein contends that the taboo on bloodshed is about harm. When it is good for the person to die, the taboo may not be relevant. But Rabbi Hanina was bounded by the covenant of Sinai, by the Ten Commandments that prohibit murder.58 Feinstein maintains that this taboo is absolute and insensitive to the question of whether the killing in question is good or bad for the victim (or anybody else).59 Feinstein’s reasoning is in line with a positivist tradition in rabbinic law, especially in the late nineteenth- and early twentieth-century “Lithuanian” school. Rabbi Babad writes that “measures60 were given to the Israelites,” whereas the laws for the gentiles are naturalist. The case he discusses is the age of legal responsibility. Jewish law sets it at twelve for girls and thirteen for boys. A mentally deficient person is never liable61; but a mentally mature boy who is twelve is still exempt from accountability. Yet, with regard to the non-Jews, legal maturity comes with psychological capacity, not at a specific age.62 In the same vein, we have seen that, in Jewish law, legal 56 57

58 59

60 61 62

Avoda Zarah, 18a. Barilan 2003. According to a minority opinion, this is a story about supererogation, not standard behavior. Hazzan 1876, 14. “Martyrdom, for all its strangeness to the secular world of contemporary American Law, is a proper starting place for understanding the nature of legal interpretation” (Cover 1985–1986, 1604). ‫רציחה‬ Feinstein 1973, mark 174. Rabbi Israeli wrote that the prohibition on suicide applies only to Jews because non-Jews own their lives and bodies, but Jews belong to God (Israeli 1953–4, 109–110). See note 66 below. ‫שיעורים‬ But see Maimonides, Hilkhot Teshuva, 6:1, and Sternbuch 2002, 472. Babad 1988, mark 35; Auerbach 1986, mark 34.

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personhood begins at birth, whereas for non-Jews abortion is a capital offense.63 These examples leave the impression that although Jewish law and morals have a naturalist perception of ethics, this naturalistic view is quite pluralist, recognizing a range of reasonable solutions to ethical problems such as the beginning of the person, the wrongness of killing, and the age of mature agency. The expectations of Jewish law of the non-Jews (the covenant with the Nohaides) are to recognize God and to live in well-ordered societies, without bloodshed, sexual licentiousness, theft, and certain abuse of animals. The precise definitions of the relevant terms (e.g., the timing of death) and formulations of laws should be the product of fair and rational – hence naturalist – governance. The Jewish tradition is quite skeptical regarding the power of natural morality to fully arbitrate moral questions. The late medieval Spanish philosopher Rabbi Albo wrote that human rationality can only grasp the wrongness of murder, but not the fine distinctions that are essential to coping with many moral problems.64 Because Jewish law embodies a special covenant between one nation and God, it sets its own divinely ordered positive standards. Some of these standards reflect the special regard God has for the soul of every Jew. Hence, Jewish law is more tolerant of non-Jews who autonomously endorse the exploitation of their own dead bodies65 and, as Feinstein proposes here, of non-Jews who kill in the benefit of the person killed.66 Rabbis Feinstein and Waldenberg’s operative and uncontested conclusion is that relief of suffering is the only consideration in making choices whose goal is the earlier death of terminal patients and that such choices may include active removal of some sort of life support. Although they were the first rabbis to spell this out, both teachings were implicit in earlier rabbinic writings. These elementary teachings had to be extrapolated from execution by fire and German folk medicine and be brought to bear on medical care. Rabbis debated whether therapeutic drugs may be considered like salt under the tongue. Rabbi Eger affirmed this analogy;67 Rabbi Reischer probably disagreed.68 He objected to withholding drugs that delay the dying process. Rabbi Reischer also distinguished between experts69 and lay people. The former chief of the Ultra-orthodox rabbinic court of Jerusalem, Rabbi Weiss (1902–1989) affirmed this distinction in 63 64 65 66

67 68 69

P. 161. Albo 1929, part 1, chapter 18; see Summa Theologica, 1.2, 100.1. P. 112. Feinstein (1985, mark 74) repeats this contention regarding the distinction between Jew and nonJew, but in yet a third responsum (1985, mark 73), he retracts it. It is customary to give priority to the latest responsum, which is mark 74. It is also notable that Feinstein suggests, most probably following Rashi on T. Sanhedrin, 78a, that this permission to hasten death possibly is limited to manmade death, not to natural death. Waldenberg briefly suggests twice this distinction between a Jew and a non-Jew as well (Waldenberg 1990, mark 48). Feinstein might have been influenced by Israeli. See note 59. Gloss Gil’yon Ma’harsha on Yo’reh De’a, 339:1. Reischer 1861, Part 1, mark 13. ‫בקי ברפואה‬

Terminal Care and the Ends of Life

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the context of contemporary healthcare. He ruled that doctors have the duty to fight for life and prolong it as much as it is professionally possible to do.70 Put in other words, Rabbi Weiss does not try to set halakhic standards for the medical professions, but, rather, he grants halakhic endorsement to professional standards. One may understand these standards as the paternalistic pre-bioethics practice known to Weiss, but it is also possible to argue that today, in the era of patients’ rights, bioethics, and hospice care, professional standards are more autonomy-oriented and less medically aggressive. As we noted in Chapter Two, the talmudic and other early sources on saving life dealt with interventions by lay people, even if some of them involved the provision of drugs. Reischer, who lived in nineteenth-century Poland, was one of the first rabbinic authorities to differentiate experts from ordinary caregivers. In his responsum, we find two critical steps toward active care of the terminally ill. Rabbi Reischer invented a new halakhic category – treatments that delay the dying process as opposed to treatments given to dying patients to delay their death. Then he qualifies the prohibition on touching gosses as relevant to lay people, not to experts who “know what they are doing.” These two steps might facilitate an absurd conclusion according to which life-prolonging efforts must go on until death. Alternatively, it may be argued that it is permissible to refrain from treatments indicated by expert doctors to a gosses because Halakhah is more sensitive than the medical profession to the risk of accidental acceleration of death.71 Since the Talmud declares that “most gosses patients die,”72 and since the duty to save life obtains even in cases of doubt and even when most chances are against success,73 it may become obligatory for healthcare professionals to administer every treatment possible, at least until the very last days of life, and maybe even until the moment of death. But Reischer is careful not to reach such a conclusion. His responsum is about the permissibility and probity of heroic lifesaving efforts, not about an obligation to do so whenever possible. It seems that compassion for sufferers who do not wish to go on living, combined with the worry about accidentally hastening of the death of a gosses buttress a permit to withhold care. But this inaction is acceptable only with regard to medical care. Twentieth-century rabbis unanimously forbade cessation of hydration and oral nutrition. One authority writes that reinsertion of an intravenous line is also not obligatory.74 Halakhah recognizes three kinds of casual relationships between an agent and an outcome – direct action; passivity that allows an event to happen; and indirect, circuitous action.75 Feinstein contends that passivity with regard to

70 71 72 73 74 75

Weiss 1972, mark 7. Namir 1989, 12. Kiddushin, 71b. T. Yoma, 84b. Steinberg 1994, 405–406. ‫גרמא‬

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“natural” basics such as food and drink is tantamount to active action. Denial of food is like active killing.76 Put in other words, the “natural” status of food, drink, and oxygen compels the counterintuitive construction of passive inaction as a kind of active action. Feinstein does not offer a halakhic justification for this novel move; he defends it by means natural rationality, a kind of sevara.77 I trace this division between ordinary, routine maintenance care and medical treatments to the division between “visiting the sick” and medical care. The former is considered risk-free, an inalienable token of both respect for human dignity and neighborly love (and it is indirectly related to the value of life). The latter articulates the values of neighborly love and protection of life; it may be balanced against suffering, at least when life is “temporary.” I have surveyed the discourse on medical care, nutrition, and hydration during different stages of terminal illness. The toughest question pertains to mechanical ventilation, because it cannot be stopped, like ordinary medicines, by passive inaction. Is it possible to construe respiratory support as a hindrance to death that may be actively removed? Rabbi Israeli explains that when a terminal patient is suffering, there is a duty of neighborly love to shorten his or her life as much as legally possible. Undeniably, this duty is in conflict with the divine decree against bloodshed. Israeli advocates legal and technical tricks that enable patients to die without transgressing the injunction against murder.78 Rabbis Waldenberg and HaLevi rule that turning off a respirator connected to a terminally ill patient is allowed – or even required – since it is like removing a hindrance to death. Waldenberg explains that an irreversible loss of the ability to maintain independent respiration and circulation is in itself a sign that the soul wishes to depart from the body and that delaying death makes it suffer. Waldenberg maintains that, in such circumstances, life support is a source of agony “to the soul” even if there is no evidence of physiological pain, suffering, or stress.79 Rabbi Feinstein holds the same view: If the doctors claim that the patient does not suffer [anymore], we should not believe this, because they might not be able to notice. [Moreover] delay in the exit of the soul is agonizing, even if it is not perceptible to us.80,81

Rabbi Waldenberg writes: The sublingual salt supports life and prolongs it by external means; stopping life sustained in this way, does not amount to shortening life.. . . Actively disconnecting the respirator is allowed if the patient has intrinsic life neither in the brain nor in the heart. In case of 76 77 78 79 80 81

Feinstein 1985, Hoshen Mishpat, mark 74 (p. 313). P. 23. Israeli 1966, mark 32:2. Waldenberg 1978, mark 89; HaLevi 1981. .‫וסתם עיכוב יציאת הנפש הוא ביסורים‬ Feinstein 1973, mark 174:3.

Terminal Care and the Ends of Life

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doubt, it is also allowed to remove life support. If the patient goes on living, nothing happened. If he dies, there is the evidence that he had been dependent on external support. . . . It is forbidden to do such a thing, to put on him [the patient] something that prolongs his life, whenever it is clear that he will never have an independent life [i.e., independence from life support], and the life given to him by [the machines] are not from his own intrinsic body [i.e., from his own resources]. It follows, that if someone has done it [i.e., connected such a patient to life support], when one sees later that it causes the patient much agony, it is permitted; perhaps even a duty (mitzvah) to disconnect. One should not say that this is the will of God [that the patient be kept alive on the respirator], because the temporary life that he has [due to the machine] is artificial, man-made, and such extension of life is against the will of God.82

Waldenberg explains that these words are valid only when it is absolutely certain that the patient will not recover. He rejects the practice of discontinuing chemotherapy in order to let patients with disseminated cancer “die with dignity.” As long as treatment has reasonable chances to prolong life, even a little, and the patient lives on his or her own internal sources of life,83 there is a duty to go on living despite the agony. Once the patient cannot breath independently, and he is in the process of dying and wants to die, we should let him die and even disconnect the respirator. If the wishes of the patient are unknown, the duty of neighborly love expects of the guardian to estimate what the wishes of the patient might be or what he or she would have chosen had he or she been in the same condition.84 In addition to the invocation of the Golden Rule and the presumption about the desire of the “soul,” Waldenberg also maintains that irreversible and complete dependence on life support is a sure sign that God wants the person to die. Although Waldenberg does not say it, it seems evident that he was referring to terminal patients, not to those who can stabilize and survive on life support, such as victims of accidents. Perhaps, because intense and irremediable suffering may justify a wish to die and consequent decisions of no-treatment at any stage of life, the rabbis did not discuss whether paralyzed but stable patients may decline life support that may give them a few more years of life. Although Waldenberg inclines toward active disconnection from life support of the terminal patient whose “soul wishes to depart,” he applauds an alternative solution proposed by the director of Sha’arei Tzeddek hospital. The suggestion is to connect life support machinery to countdown clocks that will be routinely reset. If the patient decides that he or she does not want to live anymore, the medical team will refrain from resetting the timer. When the timer runs down, the respirator will cease working. In 2005, twenty-seven years after its first introduction, the timer solution was recognized by Israeli law in the Patient

82 83 84

Waldenberg 1978, mark 89. ‫חיים עצמיים‬ Waldenberg 1985b, mark 80.

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Jewish Bioethics

Nearing Death. A special committee was nominated to work on the practical and regulative aspects of these clock-timed respirators.85 Whereas in the context of terminal care Waldenberg construes the notion of self-sustained life86 as life that is not irreversibly dependent on life support, in the context of organ transplantation, he uses the same term quite differently: It is absolutely clear that it is impossible to perform heart or liver transplantation unless [the donor] has a self-sustained life.87 Calling the condition “clinical death” (a name they have invented),88 is like turning a blind eye [on reality], with the mere intention of assuaging their own conscience. . . . So long as there is self-sustained life in the heart of the donor, removal of the heart is on the verge of murder. . . . As everybody knows, it has happened in different countries, that people whose brain ceased to function remained alive for a long period of time, and some have woken up [from this condition], and were restored to health. It follows, that if we determine death by the [condition] of the brain, we actually kill people. . . . [T]he apnea test is valid only in the absence of heart beating. . . . In the past, Galen ruled that vitality89 is in the brain; and Aristotle said it was in the heart. Then came the great mentor and true physician Maimonides, and ruled that life is in the heart. As long as there is life in the heart, the creature90 is alive.91

It seems that Waldenberg regards brain-dead patients as gosses patients. They do not have “self-sustaining life” that can halt the dying process. But they do have “self-sustaining life” in the sense of residual vitality. It is prohibited to kill patients in this situation, but it is also permissible to remove “hindrances to death” such as respirators. Waldenberg concurs with Feinstein’s condemnation of keeping patients on life support in order to harvest organs from their bodies.92 It amounts to touching the dying patient, without benefit to his or her own wellbeing and personal dignity.

toward a comprehensive approach to terminal care In a recent survey of the subject, Rabbi Goldberg presents three rabbinic schools of thought.93 The first school requires full treatment as long as the patient is mentally lucid, even in the face of agony. Goldberg explains that “as long as the 85 86 87 88

89 90 91 92 93

Barilan 2007. ‫חיים עצמיים‬ ‫חיות עצמית‬ In a responsum from 1991, Waldenberg reiterates his opinion, using more precise terminology (Waldenberg 1992, 53). He refers to the combination of “clinical death” and “brainstem death,” which, since 1979, are the criteria for death in the United Kingdom, but never in Israel. He refers to a public announcement in the Ultra-orthodox daily Yated Ne’eman that was signed by Rabbis Auerbach and Elyashiv, and which I discuss in p. 219. ‫חיות‬ ‫יצור‬ Waldenberg 1988, mark 67. Waldenberg 1978, mark 91. Goldberg 1998.

Terminal Care and the Ends of Life

241

person can find value in his life [even if the overall utilitarian balance tends toward death], there is a duty to prolong his or her life. Only for [irreversibly] delirious or comatose patients is death better than life.” This attitude is actually supported by a talmudic text and not by later halakhic literature.94 The second school regards basic care, such as food and oxygen, as inalienable, whereas “artificial interventions” might be considered either too risky or hindrances to imminent and inevitable death. Some rabbis present halakhic criteria for distinguishing between the categories (e.g., Waldenberg); most rabbis, however, tend to respect biomedical guidelines and practices and would not tell patients to refuse interventions that expert doctors prescribe. The categories of “ordinary,” “extraordinary,” and “futility” do not exist in rabbinic discourse, but they permeate it indirectly, through “expert advice” and the “way of the world.” The third school is sensitive to the clinical situation rather than the modality of therapy. Routine care, procedures that the patient is already habituated to, should continue until the very end (or the last week) of life, but new interventions might be considered optional. Rabbi Herschler writes that, for some patients, “artificial ventilation” has become “as natural as clothing.”95 This is an innovative, care-centered conceptualization of “natural care,” referring to every therapeutic modality that is known to be effective and safe to a particular patient and to which he or she is habituated. Rabbi Goldberg concludes that it is permissible to stop care only when such a choice conforms to the third school and preferably to all three. Is there a way to reconcile Goldberg’s severe conclusion with the responsa cited, such as Israeli’s? I would suggest the following way of thinking. It may not reflect any rabbi’s formal ruling, but rather a halakhically inspired approach to the end of life. It would submit that any moment of lucidity is beyond value and measure. Patients should be encouraged to hold onto such life and to cherish it in spite of suffering. There is nothing disrespectful or unjust (in the sense of diverting health resources) in clinging to a tenuous and short life. Negligence in the care of terminal patients who wish to go on living is similar to murder. Therefore, if a patient consults a rabbi on whether to go on or to give in, the rabbi should encourage the patient to fight for his or her life and to find meaning and empowerment in his agony or despite it. However, when a patient finds his or her suffering intolerable, there is no duty to prolong it. The rabbi acknowledge the theological, legal, and moral legitimacy of certain choices against life. The midrashic sources recognize physical suffering as well as the “mental anguish” of depression, loneliness, and senility as sound reasons for preferring death to life.96 In one talmudic story, failure to be treated with dignity in old age is a reason for praying for one’s death, even in the absence of any morbid condition as such.97 It is 94 95 96 97

T. Gittin, 70a; T. Avodah Zarrah, 12b. See Gloss Ha’Me’i’ri on T. Avodah Zarrah, 85b. Herschler 1981, 33–34. Tendler and Rosner 1993, 24. T. Ta’anit, 23a.

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certainly untrue to suppose that Judaism expects depressed and lonely people to wish for death, but if all reasonable and available measures to alleviate their agony seem futile, and they conscientiously prefer not to go on living, Jewish law and theology delineate a range of courses of action in respect of this inclination. At the theoretical level, each and every rabbi should promote his or her own truth. At the practical level,98 all rabbis accommodate the situation of the patient and his or her choices as much as it is legally possible. Although in halakhic discourse we follow the majority, it is also customary to rely on a minority opinion in the face of “great necessity.”99,100 In sum, I think it is possible to group the contemporary halakhic literature on the end of life into two categories: The suffering-oriented approach:

The metaphysical approach:

Life should be prolonged whenever the patient accepts his or her suffering. Feinstein instructs his interlocutor to ask the patient whether he or she desires medical care, or whether he or she prefers to die. Objective clinical criteria determine whether it is “time to die.” According to Rabbi Waldenberg, irreversible loss of independent respiration is such a sign. If it is not “time to die,” patients should be treated in spite of extreme agony. State-of-the-art palliative care should be provided as well.

We have seen in Chapter Seven that, with regard to abortion, it is Feinstein who insists on severe objective criteria, whereas Waldenberg endorses even the subjective suffering of the mother as a possible justification for abortion. Because Feinstein regards abortion as an act against the life of another person, he permits it only on objective criteria of threat to life. Feinstein says that a person is the owner of his or her own life, but one is never the master of someone else’s life. This point is discussed in the next section.

the israeli law on the patient nearing death In 1996, Israel was taken by a story of a middle-aged retired Air Force pilot who was suffering from amyotrophic lateral sclerosis (ALS), a progressive paralysis of the voluntary muscles. Like other patients in his condition, at a certain stage, he became dependent on life support, not being able to move any muscle below his neck. But his mind remained neurologically healthy. At a certain stage, he began expressing a wish to die. He wanted to be sedated and then disconnected 98 99 100

‫הלכה למעשה‬ ‫ צורך גדול‬,‫שעת הדחק‬ Feinstein 1973, mark 174:4.

Terminal Care and the Ends of Life

243

painlessly from his respirator. His homecare team and the local hospital, to which the team belonged, refused the request. The man found a neurologist from another hospital, Avinoam Reches, who was willing to comply, on the condition that his action be approved by the hospital ethics committee. The committee deferred to the regional court. Until then, court rulings of “no treatment” had been occasionally handed down, depending on the values of the presiding judge. This was the first time in Israel that a judge gave permission to actively disconnect life support in order to let a willing patient die. On October 4, 1998, a short time after the court ruling was issued, Reches sedated and disconnected the patient. Professor Eran Dolev, the Chair of the Ethics Chapter of the Israeli Medical Association invited Reches to present his case. Reches became increasingly involved in medical ethics, and he later replaced Dolev as chair of the Ethics Chapter.101 In the late 1990s, Reches also organized a study day dedicated to the issue, to which he invited the Israeli ministry of health at the time, Rabbi Ben Izri, from the Oriental Orthodox party Shas. Ben Izri was quite disturbed by the discussion and by the possibility that every regional judge could issue his or her independent rulings on matters of life and death. He summoned Rabbi Professor Steinberg and asked him to preside over a committee that would draft a law on the regulation of end-of-life issues in Israel. Elsewhere, I have written in length on the committee’s report and the law that followed – the Patient Nearing Death Act (2005).102 Here, I wish to focus on a question not raised before. How did a law that was triggered by the controversy over disconnecting life support from severely paralyzed patients who were not dying became restricted to patients during their last six months of life? Rabbi Professor Steinberg explains103 that it was his own personal choice to divert the deliberation and law to the kinds of situation that are least likely to invite clashes between liberals and halakhists. As we have seen earlier, a person whose prognosis is shorter than one year is usually considered terefah, and the killing of such a person carries a lesser penalty in Jewish law. However, the definition of terefah includes specific morphological alterations listed in the Talmud. Some conditions, such as neurodegenerative diseases, do not meet the morphological criteria, no matter how poor the prognosis and advanced the disease. Additionally, to be on the safe side and to keep difficult decisions away from the cutoff line of one year, Steinberg resorted to the talmudic concept of “temporary life.”104 The Talmud prohibits the reception of medical care from practitioners who are likely to kill the patient. However, if the condition is otherwise fatal, the afflicted person may consult these practitioners because he does not need to 101

102 103 104

My narration is based on Reches’s memories as they were told to David Rothman, Sheila Rothman, my student Rani Barnea, and myself in Tel Aviv, March 5, 2009. In 2002 I have also heard the version narrated by the home-care physician responsible for the patient on behalf of Meir Hospital and local healthcare services, Dr. Joshua Smorzick. Barilan 2003, 2004, and 2007b. This story was told to me in a recorded interview with Steinberg in Jerusalem, June 1, 2012. ‫ חיי שעה‬See p. 40.

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worry about the loss of a “temporary life” that might ensue from their malpractice.105 There is no definition anywhere in the rabbinic literature of “temporary life.” But it is evident that it involves prognosis only and no other considerations, such as the etiology and morphology of disease. Nonetheless, the analogy to decisions of no-treatment is also weak because the permission not to worry about temporary life is given in the context of daredevil efforts to save life or risk one’s own life in an attempt to save others.106 Indeed, Rabbi Feinstein, who was the first to incorporate this concept in clinical ethics, explains that it expresses “the person’s ownership over his life in the sense that he does what is best for it.”107 He also mentions a range of six months prognosis, probably because this is the longest range mentioned in an earlier responsum by the eminent pre-Holocaust rabbi Grodzinski (1863–1940) in relation to this category.108 It is noteworthy that the rabbi did not refer at all to the relevant time period; it appeared in the question as a factual description. Evidently, Feinstein concluded that the author of the responsa regarded a prognosis of six month as temporary life. Interestingly, despite Feisntein’s explicit commitment to rational reasoning that is derived directly from the formative sources, even in defiance of later authorities, at least in this case he acted very parsimoniously, not daring a single day beyond what could be deduced from a temporal framework mentioned by an authority of the preceding generation. In another place, Feinstein writes that a person is the owner of his or her own life in the sense that the patient should make an informed choice between treatments that might prolong survival, but at the price of significant suffering, and no-treatment.109 From this discussion, it may be inferred that when temporary life is at stake, the person is autonomous to choose whether it is best for his or her own life to try to go on living or to forgo care in order to avoid suffering. In Chapter Four, we saw that the patient is autonomous to choose the course of action that is most likely to protect his or her life. Feinstein expanded the halakhic power of patient autonomy in the sense that incurable patients may not subject their choice of treatment to the value of life, but prefer better quality of life to survival In addition to the halakhic considerations, Steinberg decided to limit the jurisdiction of his committee to patients with prognoses of less than six months on the grounds that most medical literature on end-of-life prognosis and care is within this range. He chose a cutoff line that is epistemologically safe from the main halakhic prognostic cutoff of terefah and in the range that is likely to fit the vague halakhic concept of “temporary life.” 105 106 107 108

109

T. Avodah Zarrah, 27b. See Eliyahu 1987, 20–22. Kook 1966, mark 143 on Esther 4:11–14. Feinstein 1981, mark 36. Grodzinski 1939, mark 16:6. We have already seen the influence on Feinstein’s biomedical responsa of Grodzinski and Rozin, who were among the leading decisors of pre-Holocaust Jewry. Feinstein’s professed rational originalism is inspired by the most recent and most orthodox halakhists. Feinstein 1985, Hoshen Mispat, mark 75:1.

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The Steinberg Report and the law that ensued have been praised for achieving a near consensus on most controversial issues regarding end-of-life decisions. It was the first time ever that religious conservatives and liberals agreed on a method for disconnecting life support from willing patients. But there is an ironic price to be paid for this pinnacle of public deliberation in bioethics and bio-law. The scope of deliberation and the law were framed in advance by a single person motivated by a personal commitment to religious law and pragmatic maneuvering in the local political arena. At the end, the very kind of cases that motivated the creation of the committee and the law were left out. The empowerment of terminal patients to be properly informed, to sign advance directives of no-treatment, to appeal to special ethics committees, and even to have their own life support disconnected comes at the price of nonterminal but severely paralyzed or otherwise agonized and incurable patients who are apparently disempowered by the new law. Judge Telgam’s groundbreaking permission to disconnect the ALS patient in 1998 became illegal in 2005.110 This was not Steinberg’s intention. He thought, and still believes that, to make a political and legal breakthrough, it was essential to make a prudential choice of problems. Steinberg remains open to consider pragmatic and humane solutions for nonterminal patients, but this is not going to happen. The law on terminal care is likely to survive, as will the controversial Israeli amendment of the penal code, also known as the Abortion Laws of 1977 and 1980. Both conservatives and liberals are unhappy with it; both are even less happy to reopen the issue for fear of legal and public winds turning against them. Perhaps this reluctance is a sign of a good compromise, but it might also signal the neglect of a small but highly vulnerable and quite voiceless group of patients. One may expect Steinberg’s bold personal decision to frame the deliberation on the Israeli law in a manner that is least likely to collide with Jewish law and to be guided by a well-established key principle in Halakhah. But it is not. As we have seen, the incorporation of “temporary life” in the halakhic discourse on end-of-life decisions is a creative and novel move that has not been directly discussed and defended. Without any supporting arguments, Feinstein employs the concept to permit the forsaking of life for the sake of values other than life, namely, rejection of lifeprolonging treatment, in honor of the patient’s wish to avoid suffering. This move includes three crucial steps – the transition from risky treatments to rejection of treatment, from the value of life to a broader conceptualization of well-being, and from objective criteria to the plurality of subjective states of mind. Apparently, the public and its jurists receive well legal innovations when they correspond with customary law and the spirit of the times. The Israeli law on the patient nearing death is a feat of public deliberation and exhaustive legislative process in the Knesset. Two significant elements in the 110

This is the common reading, but I am not sure of its interpretation. Since the law does not cover such patients, I do not see why Telgam’s ruling cannot be repeated today.

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law – the focus on terminal care only and the novel halakhic reconstruction of “temporary life” – resulted from the personal decisions of two individual rabbis, one a leader of the dialogue among Halakhah, medicine, and Israeli law (Steinberg) and the other the most influential halakhist of post-Holocaust Jewry (Feinstein).

epilogue: terminal care and the end of life In the introduction to this book, I narrated the story of the first Jewish hospital placed under direct authority of a rabbi expert in religious law. I conclude this book with a vignette from an Israeli hospital that professes the same kind of complete submission to the guidance of a rabbinic authority – Ma’ay’nei HaYe’shu’ah hospital. In an interview given to a family-oriented magazine, the medical director of this private institution professed a policy that followed an aggressive fight for life, regardless of the prognosis and the general condition of the patient. We [the medical team in the hospital] intubate and connect to respirators even patients who have less than two weeks to live, even when demented. We had a 102-year-old patient with two tumors, and we intubated her and allowed her to live seven more weeks, [this was done] only because of the Jewish sanctity of life. People raised a brow, so I consulted rabbi [Nissim] Karelitz, who told me [that] even if this woman will gain only a few more hours or life, it must be done.111

The medical director recounting this story ignores the fact that, since 2006, such practice is illegal in Israel unless either the patient or her guardian explicitly requests it. This is due to a law whose legislative process was initiated by an Ultra-orthodox minister of health and whose content was endorsed by rabbis who are considered highly authoritative in this community. Indeed, in many circles, the vitalist ethos is stronger than religious law, state law, professional standards, and, possibly, common sense as well. Moreover, sometimes the perception of the law in the eyes of the well-intentioned is quite different from the actual legal situation in both secular and religious contexts. Although state law is arbitrated by a centralized juridical system, religious law on private affairs, including many healthcare choices, is a matter of personal consciences. Hence, the subjective perception of the law, the personal and communal sensibilities of duty and value, is relevant to a holistic understanding of religious law in general and Halakhah in particular. In the same interview, the director of the hospital tells another story, this time about a request to donate organs from a brain-dead patient. The director consulted two leading rabbis and “the famous ethicist” Professor Steinberg, who said that the woman was still alive, and organs must not be harvested before circulatory arrest. Rabbi Steinberg, whose vigorous campaign in favor of organ transplantation from the brain-dead is narrated in the previous chapter, 111

Afik 2008.

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told me that since he had been aware of the inclination of the hospital’s staff and management, he had explained to them the rabbinic opinions against brain death. He had told them the legal truth they wished to hear, rather than the one he personally believed in and relentlessly promoted. It was a “halakhic truth” because it was backed by halakhic authority and cogent reasoning, even though Steinberg did not side with it. In this book, I have tried to lay out the bioethical discourse in Jewish law, always couching legal reasoning in broader sociohistorical, theological, and moral perspectives. Paradoxically, quite often, Halakhah exercises normative clout, while being simultaneously protean and open-ended. Lacking law enforcement and centralized arbitrating authority, such as a supreme court, and armed with the ambition to permeate almost every aspect of private and communal life, Halakhah is a legal system that has absorbed features of personal conscience and a measure of pluralism and ambiguity in the public sphere. This pluralism is not open to competing worldviews and values, but it is rich and flexible enough to accommodate a broad variety of health-related personal choices. The Midrash comments on the verse, “Every word of God is pure: he is a shield unto them that put their trust in him.”112 “Does God care whether [a person] slaughters an animal from the neck (as Halakhah requires) or from the nape? No. The commandments were given in order to purify people.”113 This talmudic source gainsays any intrinsic or theologic value of the commandments. They are valuable because they cultivate the virtues, mainly power of will, by means of self-discipline. This disciplinary system is not attached to any metaphysical or symbolic world order. But the commandments and their legal system of Halakhah are neither arbitrary nor disconnected from a moral vision of the good life and the ideal society. They are inseparable from their legitimizing ethos and the concrete historical self-awareness of the Jewish people. The striving toward the utopist messianic ideal is central to the Jewish religion and to the Kabbalah’s inspired conceptualization of religious law as preparatory for this distant, yet imminent future. Jewish law intends to be transformative more so than regulatory. It is not about balance of interests but about reformation of desires through transcendental reflection within a community that shares a holistic ethos of normativity – nomos.114 The lives of observant Jews are full to the brim with numerous requirements and prohibitions. However, although Jewish religious laws might be annoying, they do not interfere with the basic goods of life. Jewish law requires selfdiscipline, not self-sacrifice, to shun pork, to wear a Tzitzit (ritual shawl) under one’s clothes during the day, and to say the right benediction before and after eating any kind of food. But when things come down to life-and-death decisions, Jewish law seems to fan out rather than push things toward closure. 112 113 114

Proverbs 30:5. Leviticus Rabbah, 30:3. Maimonides, Guide to The Perplexed 2, 40; Cover 1983–1984.

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Since the time of St. Paul, Christianity has taught that the Jews had lived under the yoke of the Law, whereas Jesus liberated humankind from the Law and taught by example the ways of the Christian virtues. It is interesting to note that when bioethical issues are at stake, the moral teachings of the Catholic Church are much more stringent and inflexible than Halakhah’s. The yoke of Jewish law never presses on fundamental decisions on life, death, sexuality, suffering, and the body, only on relatively trivial and morally neutral aspects of personal life. Indeed, the rabbis have represented God’s laws as sources of freedom. Regarding issues such as contraception, abortion, infertility treatments, rejection of care on grounds of suffering, end-of-life decision making, and medical use of the dead, for religious Jews, Halakhah is indeed a source of liberty, empowering each person to make a wide array of personal choices. However, ordinary Jews depend much on personal knowledge and on relationships of trust with confident and learned rabbis in order to benefit from the broadest set of choices that are halakhically available for them. The freedom of the law depends on knowing the law.115 It seems to me that the Midrash on the virtue-honing character of the commandments communicates two interrelated messages – moral and social. The moral point of view acknowledges the singularity of specific life-and-death dilemmas by not trying to regulate them directly or bring them into deontological regimentation. However, it may be implicitly assumed that persons who have cultivated their virtues through punctilious adherence to the laws, such as those on diets and the Shabbat, will be able to manage with probity problems of end of life, fertility, and the like. They will know when and how to consult a rabbi, what to tell him, and what to ultimately decide for themselves. From a sociological perspective, it may be suggested that society trusts choices on abortion and refusal of care, for example, when the person has proven loyalty to his or her culture and the strength of his or her character. In this sense, adherence to the traditional way of life is a social marker of responsibility, sociability, power of will, and mental strength. Openness to the protean embodiments of human individuals and awareness of the waywardness of human fate and finitude is a great virtue of any law and normative system bearing on questions of life and death, suffering and identity. However, the greater the legal leeway, the more relevant are extralegal dimensions of normativity – ideals of virtue and narratives of excellence and shared dreams, as well as of the structuring of social and symbolic life. Many pious and highly observant Jews are puzzled by healthcare-related choices and seek guidance and inspirations precisely where their own religious law is becoming less directive and more kaleidoscopic. If one searches for a landmark point of transition from the “law” to “morality,” one may find it in the prohibition on the destruction of fruit trees during siege. Despite the obvious need to exert all efforts in the direction of speedy victory 115

M. Kallah Rabbati 5:3.

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at the lowest price possible in terms of human life, suffering, and property, the Torah sets a limit on permissible harm even in situations of national emergencies.116 The anonymous medieval book Sefer Hahinukh, explains, This percept is meant to teach our souls to love and adhere to that which is good and beneficial. If we do so, goodness will cling to us and we will avoid all bad things and anything concerning destruction. And this is the way of the Hasidim [the virtuous]117 and the men of [good] works. . . they will not let even a mustard seed be lost in the world, and they will grieve for any loss or destruction that they see, and if they can save, they will save with all their might everything from destruction. This is not true of vicious ones. . . .118

In Jewish theology, being a hasid is the most sublime virtue on the scale of virtue.119 The hasid is the virtuous person. Not only does the hasid abide by the law, but he or she also despises those things that the law proscribes and identifies him- or herself with the values of the law. In this case, for example, not only will the hasid avoid destruction, but he or she will grieve over its occurrence. The Hasid distances him- or herself from tabooed things, not owing to fear of sin and punishment, but due to genuine lack of interest in, even aversion to the prohibited.120 In the seminal paragraph on destruction, Sefer Hahinukh tells us that the chief characteristic of the virtuous personality is authentic respect for life, even and especially in its simplest manifestation – a seed of mustard, which is synonym in the Talmud for the most miniscule unit.121 It is also a sort of fetal life, the tiniest, simplest, most incipient form or life. The apparent source for this construction of the virtues is the only talmudic passage comparing all three personal archetypes: the virtuous (Hasid), the righteous (tzaddik), and the evil (rasha122), thus establishing the ground of talmudic virtue ethics: Three things have been said on nail-pairings: he who buries them is righteous; he who burns them is virtuous; he who throws them away is evil. Why this? Lest a pregnant woman pass over them and miscarry.123

Even though the actual risk of miscarriage is very low, the hasid makes the extraeffort to eliminate it completely. 116 117

118 119 120

121 122 123

Deuteronomy 20:20. ‫ חסידים‬The original meaning of the word Hasid is the closest one can get in talmudic Hebrew to the Aristotelian notion of the virtuous person. Later in Jewish history, certain groups of religious revival and piety called themselves as Hasidim. So one has to distinguish the moral and theological meaning from its social uses. Mark 529. T. Avodah Zarrah 20b and Luzzatto 1948. See Sefer Hahinukh. Mark 175. The righteous (tzaddik) desires God and Justice; but he or she may not directly and emotionally identify him- or herself with a certain value or virtue (Genesis Rabbah 41:1). Berakhot 31a. ‫רשע‬ T. Moed Katan 18a; T. Niddah 17a.

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The virtuous person opts first for life, creation, and preservation, not destruction and loss. But human activity entails numerous destructive interventions as part of overall greater enterprises of protection and creation. Even the fundamental decree against homicide is formulated as a threat of death, “Whoso sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man.”124 Jewish virtue ethics and Jewish law converge at the very beginning of the spectrum of destruction – the absolute prohibition on futile destruction.125 All other forms of destruction should stand the test of reason and law. For example, the exigencies of siege do not permit the destruction of fruit trees. According to Maimonides, tearing clothes as an act of mourning is not futile, because it “placates its desire [to vent out anger].”126 Obviously, this does not mean that the virtuous person vandalizes precious objects as a means to vent frustration. It does mean that it is not sinful to do so. Indeed, precisely at this point virtue and law part ways. The legal threshold for permitting the destruction of life is considerably higher than for permitting the destruction of clothes, but the virtuous person always opts for the less destructive action in any given circumstances. Ideally and perhaps usually, religious law is conducive to virtuous action. However, according to Halakhah, when human dignity and a specific religious prohibition collide, the conflict is irreconcilable. The most one can do is to abstain from action. The Talmud explains, “There is no wisdom; there is no counsel; there is no understanding that can be set up against the Lord.”127 Abraham, the Patriarch of the Jewish people, had the courage to confront God and argue with Him about God’s moral conduct. At the end of such arguments God usually prevails. The human becomes silent; but there is no indication that the human side has been convinced.128 Indeed, Judaism has empowered confidence in human critical reason, in people’s moral judgments. A separation of the human–divinity realm from the interpersonal one remains typical of early modern and modern rabbinic literature on morality (musar129).130 Overall, it has become increasingly possible to develop rational moral arguments within Halakhah and to conduct productive dialogues with non-orthodox and even non-Jewish and nonreligious moralities on the most difficult questions of earthly life. Indeed, it was also possible to see the occasional points where Halakhah and rational morality do not converge. This is not necessarily surprising, at least because reality and justice also fail to converge; sometimes we cannot escape tragic choices and importune moral lack. 124 125 126 127 128 129 130

Genesis 9:6. Maimonides, Hilkhot Melakhim 6:10. T. Shabbat 105b. T. Berakhot, 19b on Proverbs 21:30. Genesis 18:17–33; Job 42:1–6; T. Berakhot 31b. ‫מו ס ר‬ Katz 1962, 156–162.

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Consequently, rabbis acknowledge that death could be good for some patients who suffer terribly; nonetheless, faced with the prohibition against murder, the authorities have found “no counsel” and have permitted only voluntary passive euthanasia (“letting die”) and never direct action that promotes the death of born people. But such acknowledged conflicts between fundamental human values and Halakhah are relatively rare. The orthodox rabbis have never endorsed the violation of religious law (those who do are no longer considered “orthodox”), but they have worked hard to stretch the law and manipulate reality (e.g., putting timers on respiratory machines, offering artificial insemination to women who ovulate before they can perform the ritual bath) to accommodate human needs. In rabbinic law, there is an explicit and strict requirement to comply with few laws that are clearly disposed against life and compassion, especially toward animals.131 The rabbis demand the silencing of any referral to these laws as mysterious embodiments of God’s mercy.132 The Jewish codices of law acknowledge a rift between religious law and the interpersonal religious law.133 The former is based on the particularistic values of Torah, Jewish worship, and charity134,135; the latter on the universal values of truth, justice, and peace.136,137 The mysteries of love and life place family law and bioethics between these perspectives and sets of values. Messianism posits that the particular will redeem the universal, creating a uniform tissue of lucid and utopist normativity; humanism would posit that the universal must dive into the particular and transform both into a better human world.138 Many people perceive the particular nomos as a “strong force,” relative to the “weak,” universalist one.139 But the biomedical and sexual realms are special in the sense that they seize on the most vulnerable and mysterious aspects of human existence and identity. The universality of pain, eros, striving, hunger, disease, and death compels a normative attention that must be as strong and universal as a human endeavor can be. It will reflect on physiological birth and its concrete sociocultural realities no less than sustain itself on narratives of origins and legitimization. It will rise up against the violence of death, suffering, and degeneration, no less than kneeling in resignation and humility. Rabbinic law and theology is first and foremost a commitment to a holistic normative system, including its esoteric corners. However, the rabbinic holistic 131 132 133 134

135 136 137 138 139

Deuteronomy 22:7. M. Berakhot 5:3. Tur and Beit Yosef, Hoshen Mishpat, 1:1. .‫ עבודה וגמילות חסדים‬,‫ תורה‬The talmudic rabbis beheld the value of “neighborly love” as unique to Jewish law, not as part of universal morality – Shabbat 31a. M. Avot 1:2. ‫ דין ושלום‬,‫אמת‬ M. Avot 1:12. Cf. Cover 1983–1984, 14. Ibid., 12.

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normative system is otherwise communicable in terms of human rationality and moral sensibilities, the leading of which is respect for life and for all things created. Both halakhic discourse and clinical practice dwell in small details, in human reality as flesh and blood, prone to pain and misery, liable to pleasure and joy. According to the Talmud, King David said to God, Am I not virtuous? The eastern and western kings indulge themselves in splendor; but my hands are smeared with placental blood, while ruling on the purity status of a woman, striving to find her pure for [intimacies with] her husband. . . 140 [If a human-shaped, formed embryo is found in the miscarried material, the women has to observe the laws of impurity as if she gave birth.]

We witness here the complex phenomenology of the law: the perception of an independent legal truth to be found and respected regardless of one’s wishes, as well as a more abstract ethos that inspires the decisor to be “hands-on” involved in the embodied reality of the case and to seek a certain direction.141 It is the direction of life, intimacy, enjoyment, respect for human dignity (i.e., the burial of the human remains), and overcoming death. The encounter between Jewish law and medicine may inspire us to see beyond a material conceptualization of human life and society, and yet, through awareness and mindfulness of our corporeality, including its most abject aspects and forlorn nuances, behold each and every person as an Image of God, always capable of reflecting divine, sublime light. “When his candle shined upon my head, and when by his light I walked through darkness.” Lido di Jesolo, June 7, 2013 - ‫ כ"ט סיון תשע"ג‬,‫ערב שבת קודש‬

140 141

Berakhot 4a. Compare David’s search for embryonal human remains, tokens of human dignity, to his son, Solomon the “wisest man,” who passes judgment from an objective standpoint of lethal power and the deployment of legal terror up to the threat of infanticidal violence – I Kings 2–3.

References

The titles of modern-style books in Hebrew articles and books have been translated into English, with a bracketed notice [Hebrew] at the end of the reference. Premodern Canonical sources are cited conventionally (Bible, Talmud) There is no uniform standard for rendering Hebrew in Latin letters and for citing the rabbinic literature in the academic literature. Principally, this book uses the Jewish Publication Society standards and the Chicago Style of referencing. However, exceptions have been inevitable, for example, when a source uses a different style, such as when a rabbinic book also renders the author’s name in Latin letters. In this and other cases, I chose the option that seemed to me most friendly to readers who might wish to track down original sources in library catalogues and search for additional information in common sources such as Wikipedia. Titles of responsa books are rendered “responsa” with the Hebrew name in quotation marks. For example: Responsa “Ya’bi’a’ Omer,” which should be traced in a Hebrew catalogue either by its given name “Ya’bi’a’ Omer,” by its full title She’e’lot u’teshuvot Ya’bi’a’ Omer, or by the acronym of She’e’lot u’teshuvot – Shut – shut Ya’bi’a’ Omer. Sometimes names are given according to the KJV (e.g. Judah); at other times as they appear in some rabbinic publications (e.g. Yehuda). The acronym “b.” stands for “ben” or “Ibn,” which means “son of.” Many rabbinic books are published independently, without a publishing house. In such cases, only the place and date of publication are cited. In rare cases, even these details are missing. Some rabbinic books contain a dual system of page counting. Letters mark the leaves (e.g., 22b means the reverse side of leaf/page 22) and numbers mark the pages (e.g., 44 may correspond to 22b). I follow the page numbers whenever they are printed; in the absence of numbers, the letter numbering system.

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‫‪Index of Hebrew and Halakhic Terms‬‬

‫אוקימתא‪72 ,‬‬ ‫אכילה שלא כדרכה‪31 ,‬‬ ‫אלו ואלו דברי אלקים חיים‪171 ,‬‬ ‫אין הברכה שורה אלא בדבר הסמוי מן העין‪46 ,‬‬ ‫אין סומכין על הנס‪46 ,‬‬ ‫בין אדם למקום‪ ,‬בין אדם לחברו‪118 ,11 ,‬‬ ‫ביעות‪188 ,92 ,‬‬ ‫ביקור חולים‪62–51 ,‬‬ ‫בכל דרכיך דעהו‪4 ,‬‬ ‫בל תשחית‪249 ,167 ,104 ,‬‬ ‫ברוך דיין אמת‪100–99 ,‬‬ ‫ברוך משנה הבריות‪100 ,‬‬ ‫גוסס‪237 ,231 ,220 ,201 ,‬‬ ‫גזל ‪167 ,112 ,66 ,‬‬ ‫גזירת הכתוב‪160 ,‬‬ ‫גמילות חסדים‪251 ,52 ,5–4 ,‬‬ ‫גרמא‪232 ,‬‬ ‫דינא דמלכותא דינא‪83 ,5 ,‬‬ ‫דאורייתא‪ ,‬דרבנן‪167 ,160 ,124 ,‬‬ ‫דעת תורה‪20 ,‬‬ ‫דרכיה דרכי נעם‪4 ,‬‬ ‫דרך ארץ‪4 ,‬‬ ‫דרכו של עולם‪178 ,163 ,122 ,111 ,93 ,83 ,69 ,4 ,‬‬ ‫הלכה למעשה‪10 ,‬‬ ‫הלכה ואין מורים כן‪137 ,‬‬ ‫העלאת האיסור‪78 ,‬‬ ‫הערמה‪10 ,‬‬ ‫השבת אבדה‪65–62 ,‬‬ ‫השכלה‪203–202 ,191 ,133 ,2 ,‬‬ ‫השתנות הטבעים‪87 ,77 ,‬‬ ‫ואהבת לרעך כמוך‪185 ,93 ,‬‬ ‫והלכת בדרכיו‪52 ,4 ,‬‬ ‫זנות‪105 ,‬‬

‫‪277‬‬

‫חדש אוסר מן התורה‪78 ,‬‬ ‫חובל‪41 ,‬‬ ‫חולה לפנינו‪121 ,110 ,‬‬ ‫חומרה‪152 ,8 ,‬‬ ‫חזקת חיות‪189 ,‬‬ ‫חיות עצמית‪240 ,‬‬ ‫חיי עולם וחיי שעה‪246–243 ,51–50 ,‬‬ ‫חילול השם‪222 ,174 ,145 ,115 ,82 ,‬‬ ‫חמירה סכנתא מאיסורא‪45 ,‬‬ ‫חסיד‪249 ,‬‬ ‫חסיד שוטה‪36 ,‬‬ ‫חסד של אמת‪107 ,‬‬ ‫טמטום‪190 ,‬‬ ‫טריפה‪232 ,51 ,‬‬ ‫יראת שמים‪27 ,‬‬ ‫כרת‪166 ,‬‬ ‫כתובה‪104 ,‬‬ ‫לא בשמים היא‪171 ,‬‬ ‫לא תעמוד על דם רעיך‪233 ,64 ,59 ,34 ,‬‬ ‫לב ידוע מרת נפשו‪85 ,‬‬ ‫מדות שהתורה נדרשת בהן‪7 ,‬‬ ‫מיתה יפה‪231 ,‬‬ ‫מלאכה בשבת‪35 ,‬‬ ‫מלחמת מצווה‪121 ,‬‬ ‫ממזר‪196–192 ,157 ,124 ,‬‬ ‫מת מצווה‪107 ,‬‬ ‫נפל‪189 ,‬‬ ‫סברא‪160 ,23 ,‬‬ ‫ספר רפואות‪26 ,‬‬ ‫ספק פקוח נפש‪75 ,36 ,‬‬ ‫עבד כנעני‪59 ,‬‬ ‫עם הארץ‪71 ,‬‬ ‫פיהק ומת‪196 ,‬‬

‫‪Index of Hebrew and Halakhic Terms‬‬ ‫פדיון שבויים‪69 ,‬‬ ‫פריה ורביה‪126–123 ,‬‬ ‫פקוח נפש‪197 ,190 ,110–109 ,85–85 ,64 ,58 ,40–34 ,‬‬ ‫צדקה‪62 ,‬‬ ‫צדיק )בכתבי חז”ל( ‪249 ,‬‬ ‫צורך גדול‪ ,‬שעת הדחק‪242–241 ,10 ,‬‬ ‫צער בעלי חיים‪196 ,116 ,‬‬ ‫קידוש השם‪103 ,‬‬ ‫רודף‪163 ,‬‬

‫‪278‬‬ ‫רפואה סגולית‪31 ,‬‬ ‫רשע‪249 ,59 ,‬‬ ‫שב ואל תעשה‪93 ,‬‬ ‫שוגג הקרוב למזיד‪63 ,‬‬ ‫שומר פתאים ה’ ‪129 ,93 ,78 ,‬‬ ‫שיעורים‪235 ,‬‬ ‫שכיב מרע‪230 ,50 ,‬‬ ‫תלמיד חכם‪71 ,59 ,‬‬ ‫תמים תהיה עם ה’ אלהיך‪46 ,‬‬

Subject and Name Index

(Very common sources such as the Talmud, Rashi, Tosafot, Maimonides and Shulhan Arukh are not indexed) Abstinence, 126–127, 132, 139 See also Sexuality Abandonment (of patients), 82 Abortion, 11, 13, 17, 79, 159–186 Abraham (Patriarch) 1, 250 Action v. inaction / indirect action, 93, 193, 230, 232–233, 237–238, 250 Adoption, 151 Agamben, G., 217 Aggadah, 3 Ageism See Old Age Alfasi, I. (Rif), 9, 33, 164, 231 Akiva, Rabbi, 58 Albo, Y., 236 Alcohol abuse, 188 Allocation of scarce resources, 65–173, 197, 232 Alternities, 59 Alternative / complementary medicine, 18, 83, 88 Altruism, 104 Ammar, S., 17, 221, 223 Amniocentesis, 70 Anal sex, 127, 137 Anatomy, 106–119, 139, 202 Anencephaly, 102 Animals, 116, 251 Antisemitism, 113 Aristotle, 43 Arrusi, R. 165,

Ars Moriendi, 60, 229–230 Ascetism, 44 Asher b. Yehiel (Rosh), 8, 9, 11, 54, 164, 170 Ashkenzai, Z. (Hakham Zvi), 216 Assaf Ha’Rofe, 81 Assault See Brawl Auerbach, S. Z., 11, 15, 38, 72, 82, 93, 101, 105, 121, 122, 140, 144, 155, 165, 167, 178, 196–197, 219–221, 233 Augustine, 103, 123, 202 Autonomy, 91–92, 144 See also Body, ownership of; Consent Ayyash, Y., 57, 127, 166 Azulai, H., 22, 58, 74, 89, 109, 202 Azzariah of Pano, 156 Babad, Y., 67, 94, 121, 232, 235 Bar Ilan, N., 225 Barnard, C., 211 Basil, St., 161 Bastards, illegitimate children, 124, 146, 157, 166, 189–196 Ben Izri, S., 243 Berlin, N. Z. Y., 68, 121, 197 Bible, 22, 24 Bio-power, 80, 150 Birth, childbirth, women in labor, 39, 74, 162–163, 175–180 Birzai, 60 Bleich, D., 152, 216

279

280 Blood transfusion, 105 Blood libel, 194 Body, 44, 99, 112, 153 ownership of, 93, 104, 235, 244 Bone marrow donation, 82 Brain death, 151, 213–227, 240 Brawl, assault, street violence, 22, 57, 63, 91, 159, 166 Breast feeding, 129, 157, 166–167, 187 Breath test, 201 Breisch, M., 117, 145 Burial, 56, 73, 107, 109, 153, 165, 175, 177, 189 premature, 201–209 Cain and Abel, 34 Calisthenics, 44 Cannibalism, 181 Capital punishment, 162 Care, 43 See also Visiting the Sick; Healthcare Celibacy, 123, 125 See also Abstinence Cesarean surgery, 163, 175–180 Charity (hesed, tzdakah), 4, 5, 52, 69 Cherlow, Y., 65, 149, 157 Children, 188 See also Neonatal care; Incompetent patients Christianity, 6, 25, 102, 120, 123, 159, 162, 168, 174–177, 194, 222, 229, 248 Cicero, 71 Circulation of blood, 216 Circumcision, 75–80, 177 Civilization process, 109 Cleft lip / palate, 191 Cloning, 100, 154, 158 Cohen, A. (soccer celebrity), 223 Cohen, Tobias, 109 Codes of conduct, 8 Commandments, 2, 247 Commodification, 166 Communities, their laws and administration, 3, 5, 11, 20–21, 52, 179, 186, 204 Communication (doctor, patient), 74 Competence (mental), 235 Confession, 59, 228 Conscience, 172–173, 240, 246–247 Conscientious refusal, 17 Confidentiality, 84 Consent, 91, 96, 106, 131, 143, 158 Conservative Judaism, 7 Contraception, 121, 127–139

Subject and Name Index Copyrights, 82 Courts, rabbinic, 9, 12, 87 Covenant of Sinai, 2, 33, 147, 161, 172, 235, 247, 251 Cover, R., 6, 175, 247, 251 Credit, 104–105, 108 David, King, 194, 253 David b. Zimra (Radvaz), 84, 86, 91, 103, 108, 109, 111, 120–121, 176 Dead bodies, treatment of, 66, 106–119, 202–209, 231 Death, determination of, 200–227 Death with dignity, good death, 228–231, 239 Death certificate, 203 Debt See Credit Deutch, E., 115 Dichowski, S., 94, 44 Dietetics, 44 Dignity, 10, 38, 64–66, 86, 101, 112, 115, 162, 231, 241, 250 See also Image of God Disability, deformity, 61, 93, 99–103, 150, 185 Disaster, 72 Disease, 23–24, 50, 229–230 contagious, 60 Divorce, 104, 106, 124–126, 130–131, 133–134, 139, 142, 145–146, 150–151, 158, 169 Doctors See Physicians Doctor patient relationship, 55, 81–85 Dolev, E., 243 Donor cards, 226 Dorff, E., 44, 103 Doubt, 36, 86, 111 Down Syndrome, 182 Eddah Haredit, 47, 135, 212 Eger, A., 20–22, 172, 236 Egg donation, 157 Electricity, 7 Elijah, 26 Elijah of Vilnius (Gaon of Vilnious), 44 Eliyahu, M., 79, 218 Elyashiv, Y., 15, 46, 75, 91, 121, 140, 178, 219–221, 226 Emancipation, 20, 76, 133, 204 Embryo, pre-embryo, 152–155, 161–162, 164, 251–252 Embryotomy, 163, 168, 175, 177 Emden, J., 88, 110, 166, 188, 192, 204 Emergency medicine, 62 Empiricism, 40, 153, 226

Subject and Name Index End-of-life decisions, 10, 49, 228–246 See also Death with dignity; Life support; Law on the Patient Nearing Death Enforcement, 98 Enlightenment, 2, 8, 30, 78, 110, 202–204 Ensoulment, 164 See also Embryo Epstein, Y. M., 57, 83 Ettlinger, J., 37, 77–78, 111–112, 115–116 Eugenics, 99 Evil Eye, 167 Experiments on humans, 119–122, 153 Experts See Professional authority / opinion Eyes, 40 Face, 99, 103 Falaji, H., 89 Family See Marriage; Procreation role in decision making, 95 Famine, 127 Feinstein, M., 15, 36, 48–49, 90, 92, 94–98, 136–138, 145, 151, 153, 169–175, 179, 182, 233, 235, 228, 242, 244–246 Ferrara, 55, 81 Firrer, B. Z., 233 Flavius, 6 Folk medicine, 30–32 Forensic autopsy, 107, 203 Formalism, legal, 137, 147 Frank, J., 117 Freedom, 2, 247–248 Futile destruction, 167, 248–250 Futility, 75 Gender, 56–58, 71, 126, 128, 179 Genetic engineering, 154 Geonim, 31, 67, 85, 176, 179 Germany, 194 Gintzburger, W., 110 God, 24, 251 Goldberg, Z. N., 104, 154–155, 240 Golem, 153–154 Goren, S., 88, 155 Gosses, 201, 220, 231–234, 237 Graubart, Y., 115 Greiber, M., 113–115 Grodzinski, H. O., 95, 244 Gumbiner, A., 121 Gur Hasidim, 13, 183 Gynecology, 36, 70 See also Birth; Wise Women; Abortion

281 Hadassah Hospital, 116 Hadaya, O., 117, 149 Halakhah, 3–4, 6, 7, 10, 19, 78–79, 135–138, 146, 153, 160–161, 164, 170–175, 184, 222–224, 247 Halbershtam, H., 68, 179, 191 HaLevi, H. D., 90, 152, 238 Halperin, M., 96, 140, 220 Ha’Me’i’ri, 36, 154, 193, 241 Hammurabi, Code of, 22, 40 Hanina B. Teradyon, 237–238 Harvard Criteria of brain death, 213 Harvey, W., 216 Hasid (virtuous person), 249 Hasidim (Medieval Ashkenazi), 4, 102 See also Sefer Hasidim Hasidism, 13, 30, 33, 126, 183, 188–189, 230 Healing, 23–25, 52 faith / religious healing, 24, 27, 29, 35, 89 Health, 43 Health Basket (Israeli law), 65, 140, 151 Healthcare, services, 38, 58, 71 Hellenism, 44, 100, 159 Henich, G., 154 Henkin, E., 136 Hermeneutics, 95, 129–130 Herschler, M., 241 Herz, M., 204 Herzog, I., 87, 116, 175 Hezekiah, King, 26 Hidden economy, 66 HIV, 94 Hiyya, Rabbi, 128, 143 Holocaust, 14, 136, 169 Hospitals (Jewish or religious), 19–22, 48, 56, 246 Human status, 102 Human remains See Anatomy; Dead Bodies Hygienic movement, 47 Ibn Ezra, 146 Ifargan, J., 223 Image of God, 1, 4, 33, 44, 61, 99, 100, 103, 107, 113, 125–126, 153, 165, 190, 194, 250, 252 Imitation of God, 4, 23, 52 Incantations, 28, 73 Incompetent patients, 49, 93, 239 Infanticide, 102, 159, 208 Infertility, 24, 86, 139–152 Innocent III, 41 Insurance, 56

282 Isaac b. Sheshet (Rashba), 196 Ishmael, Rabbi, 161 Islam, 167 Israel (State of), 6, 9, 15, 61, 221 Israeli Law, Anatomy and Pathology, 116, 118, 210 Health Insurance, 61, 140, 151 Brain-Respiratory Death, 17, 220 Organ Transplantation, 226 Patient’s rights, 96 Surrogacy, 157 Patient Nearing Death, 11, 198, 241–248 Penal Code (“abortion law”), 13, 17, 183–184 Israel Meir HaCohen (Hafetz Haim), 48, 58–59, 105 Israeli, S., 104, 182, 138 Israeli Medical Association, 218, 243 IVF (in vitro fertilization), 148–149 Jacob (Patriarch), 1 Jacobowitz, I., 23, 43, 67, 211 Jesus, 30, 34, 104, 248 Jewish People, 15–16 Justice See Allocation of Scarce Resources Kabbalah, 7, 13, 29, 57, 109, 113, 125, 143, 183, 202 Kant, I., 204 Karelitz, A. I. (Hazon Ish), 90, 141 Karelitz, N., 246 Killing, bloodshed, murder, 34, 99, 235, 238 Klein, M., 54, 70, 74, 79, 168, 179, 181, 189 Kluger, S., 86–87, 114 Kook, A. I., 4, 47, 53, 87, 112–113, 191 Landa, E., 110 Lampronti, I., 168 Law See also Israeli Law law v. morality, 7, 246–247 naturalist v. positive, 3–4, 7, 148–151, 161, 213, 235 religious law, 224 soft law, 158, 223 Leprosy, 24 Levinas, E., 165 Licensure, 58, 83 Lichtenstein, A., 184 Life, value of, 5, 34, 41, 65–73, 87, 99, 189, 193, 216–217, 231

Subject and Name Index temporary v. open ended, 50–51, 214, 243–245 Life Support, 231–246 Lifshitz, S., 7 Livorno, 187 Lode, A. 141 London, 56 Love sickness, 38 Love See Neighborly Love Magic, 27, 156 Malpractice, 63 Mammography, 47 Manuals of Sick Care, 9, 28, 55, 109, 179, 204–205, 208 Mantua, 57 Marital / domestic abuse, 131 Market in organs, 104–105 Marriage, marriage contract, 124, 104–105, 178 Martyrdom, 235 Masturbation, 158 See also Semen Maternal impression, 45, 92 Medicalization, of beginning of life, 70, 179 of death, 203–208, 218, Medicine, regulation of, 40–41, 62–65 Medini, E., 60 Meir, Rabbi, 104 Me’i’ri See HaMe’i’ri Meir b. Tudrus Halevi, 165 Meir of Ruthenburg, 131 Menstruation, 128 Mecklenburg Schwerin, 203 Mendelssohn, M., 203 Mercy, 5, 149, 163, 196, 237, 251 Messianism, 251 Mezuzah, 28 Midwives See Wise Women Miracles, 26–27, 46, 86, 223 Miriam, 24 Miscarriage, 163, 249 Michaeli, D. 217 Mishnah, 5 Modesty, 36–38, 43, 45, 48, 57–58, 70 Monsters, monstrous races, 99–102, 190 Morality, ethics, common-sense morality, natural morality, 3, 140, 111, 121, 160, 236, 238 Moses, 2, 24–25, 180, 230 Mythology, 25

Subject and Name Index Nahman of Brtatslav, 45 Nahmanides, 9. 34, 37, 41, 65, 89, 146, 160, 235 Narrative ethics, 41, 129–130 Naturalism, 38–39, 76–77, 101, 156, 178, 191, 236 Nefel, 189, 195 Neighborly Love, 4, 93–94, 162, 185, 196, 231, 233 Neuvirt, J., 39, 74, 122 Neventzel, A., 149–150 Neonatal care, 187–199 Newborn Screening, 18 Nohadies (Non-Jews), 1–3, 34, 67, 71, 112, 161, 162, 165 Normal, 100 Nursing, 36, 51–63, 65–68, 228, 237–238 See also Visiting the Sick Oaths, 81, 84, 168 Obedience to rabbis, 172 Off-label prescription, 119 Old age, ageism, 65, 72 Ordinary v. Extra-ordinary care, 241 Original Sin, 1, Orthodox Judaism, 6–8, 15–17, 110, 114, 128, 132–134, 138, 148, 153, 172, 184, 218, 247 Padua, 188 Pamphlets, rabbinic, 14, 48, 175, 212, 219, 220, 224 PAP Smear, 70 Pappo, E., 57, 71 Paternalism, 41, 86–88 “Patient in front of us”, 110, 121 Payment, 52, 54, 58, 60, 84, 104, 112 Pentateuch, 1 Peretz, Rabbenu, 131 Persecutor (Rodef), 163 Person status, 102, 160–163, 165 Philo of Alexandria, 159 Physicians, 22–24 Plato, 100 Poland, 113–115 Posen (Posnan), 20–21 Positivism See Law Power of life / presumption of survivability, 189, 196, 214 Prague, 201 Prayer, 24, 28, 33, 34, 53–54, 57, 60, 90, 101, 102, 125, 223

283 prayer for the death of self or another person, 167, 190, 193, 230, 241 Precautionary attitude, 45 Premature babies, 191–199 President’s Commission on Bioethics, 118, 153, 215 Preventive medicine, 27, 46, 78 Priest (Cohen), 24 Priority setting See Allocation of scarce resources Procreation, 123–126, 180 Professional / expert opinion / authority, 4, 31, 39, 42, 70, 74, 80, 85–86, 122, 141, 180, 206, 208, 237 Psychosomatic disorders, 28 Psychiatry, 29 Psychological anguish / trauma, 38–39, 58, 85, 180–181, 188, 228–230, 234 Public health, 21, 46–47, 94 Public order / peace / morals, 5, 38, 166 Quality of life, 65, 198, 244 Rabbinate of Israel, 217–218 Rafael, S., 89 Ransom of captives, 69 Rappaport, S., 169, 215 Rashbam, 92 Rashi, 9, 23–24, 26, 27, 31, 34, 37, 63, 67, 107, 127, 129, 137, 160, 163, 165, 190, 196, 236 Rav, 41 Reches, A., 243 “Recovering a Soul” (Saving life), 34–40, 58, 85–86, 109–110, 112, 165, 180, 197, 200–201, 218 Reflective Equilibrium, 170 Refusing / foregoing medical care, 49, 85–98 Regimens of health, 43 Relational ethics, 153 Remennick, L., 185 Resentment, 86, 92 Reform Judaism, 6, 79, 133 Religion, 16–19 Religiosity, 18, 27, 223 Responsa literature, 9, 94 Returning lost goods, 63 Reverse positivism, 147 Right to know, 155 Risk, 38, 45, 73–80, 87, 96, 149, 167 Ritual, 3 Rozin, J. (Rogatchover), 169, 175

284 Rule of Recognition, 16, 172 Rule of Rescue, 62 Safety, 31–32, 34, 48, 87 Sage (Talmid Hakham), 59, 71 Satmar Hasidim, 61, 146–147 Saving life See Recovering a Soul; Rule of Rescue; Life Schneerson (Rebbes of Habad, Lubavitch), 32–33, 139 Schneller, O., 220 Science v. Halakhah, 191, 206–207 Schorr, I., 168 Schwadron, S., 87, 207 Screening, 18, 46–48, 70 Secularization, 3 See Enlightenment; Reform Judaism Sefer HaHinukh, 154, 249 Sefer Hasidim, 46, 85, 108, 192, 230, 234 Self-harm / self-sacrifice, 72, 103, 120, 178, 230, 234 Semen, emission and donation, 126, 130, 140–141, 147, 154–156, 166, 168, 174 Semmelweis, I., 77 Serpent, Brazen, 26 Servants, domestics, 60 Sevara, 23, 160 See also Morality Sex selection, 101 Sexuality, 36–37, 101, 104, 123–126, 127, 147 See also Abstinence; Modesty; Procreation Sexually transmitted diseases, 57, 76 Shabbat, 30–31, 35, 38–40, 188, 197 Shafran, Y., 100, 156 Shapira, A., 225 Sheilat, I., 155 Shelter cities, 64 Shimon Duran, 176, 191 Shimon b. Yohai, 121 Shlomo b. Aderet (Rashba), 31 Shmuel, 36, 41 Silberstein, I., 75, 83, 91, 102, 105 Sims, J. M., 141 Sinai, Covenant, 2, 25, 33, 37, 67, 147, 161, 172, 232–235, 247 Sinclair, D., 19, 63–64, 82, 84, 88, 144, 146, 159, 200, 232 Slaves, slavery, 59 Slippery slope mode of reasoning, 137, 197 Smoking, 48–49 Social work / assistance, 60, 65

Subject and Name Index Societies of Sick Care and Burial, 3, 10, 19–21, 55–61, 107, 109, 134, 203–207, 228 Sofer, A., 132 Sofer, M. (Hattam Sofer), 76, 78, 86, 113, 132, 192, 205–207 Solomon, 252 Soloveitchik, J. B., 160 Sonnenfeld, H., 47 Soranus, 161 “Special medicine”, 31 See also Alternative medicine Spirituality, spiritual care, 2, 3, 28, 44, 46, 52–54, 55–62, 81, 90, 102, 107, 125, 180, 228–229 Steinberg, A., 106, 135, 154, 165, 183, 220, 226, 243–246 Steiner, G., 59 Steinmann, Y., 14, 45 Sternbuch, M., 72, 152, 210, 220, 232 Sucking See Circumcision Suffering, 23, 48, 93–94, 121, 133, 185, 196, 230–231, 233, 238, 241 Suicide, 233 Surgery, 41, 49, 91–92 Surrogacy, 140, 155–158 Shylock deal, 104 Talion, 36 Talmud, 5–6 Tay Sachs, 182 Teitelbaum, Y., 146 Tendler, M., 68, 153, 221 Terefah, 51, 232 Theurgy, 3, 125, 226 Thomas Aquinas, 112 Tobias HaCohen, 109, 176 Torah, 2 Torture, 121, 162, 194 Tosefta, 5 Tower of Babel, 1 Transplantation medicine, 18, 66, 102, 104, 111, 119, 151, 209–227, 240, 246 Trans-sexual, 190 Tobacco See Smoking Tooth, 40, 109, 117 Trani, Y., 166 Trauma, 22 Trickery (Ha’a’ra’ma), 10 Trust, 95, 143, 180, 209, 214, 221, 224, 226 Truth telling, 39, 74, 84–85, 145, 195 Tzaddik (Holy man), 29–30, 33, 231, 249

Subject and Name Index Ultra-Orthodox, 7–8, 11, 20, 47–48, 118, 139, 152, 221, 225 Ulysses Contracts, 91 Unconscionability, 106 Unkelos, 22 Uziel, B. Z., 116, 144, 175 Vaccination, inoculation, 18, 45–46, 48, 74 Vesalius, Andreas, 202 Vigil / accompanying the sick, 39, 53, 55, 61 Vilnius, 136 Virgin, 125 Virtues, moral character, 3–4, 52, 128, 137, 179, 247–252 “Visiting the Sick”, 51–62, 73 See also Societies of Sick Care and Burial Voluntarism, 160 Vulnerability, 39, 92–98, 105, 188, 230–231

285 Waldenberg, E., 117–119, 141, 149, 151, 153, 165, 182, 189, 217, 236, 238–240, 242 Weinberg, Y., 181 Weiss, I., 111, 141, 211, 219, 236 Wet nurse, 157 Wise women (female folk-practitioners), 32–33, 158, 162, 179–180 Yair, Bacharach, 166 Yehudah HaNassi, Rabbi, 164, 230 Yohanan, Rabbi, 45 Yom Tov, B. Aderet (Ritva), 165 Yosef, O., 15, 17, 151, 221, 224 Zewin, S., 103 Zionism, anti-Zionism, 113, 138, 212, 221, 224–225 Zweig, 174 Zweig, M. I., 164