Medicine and Law
MEDICINE AND LAW
This article is arranged according to the following outline:introduction
Judicial Decision – A Value Determination
the values of a jewish and democratic state
In the Image of God
physician's duties and patients' rights
The Physician and the Judge
The Patient's Obligation to be Healed and his Right to Choose Medical Treatment
obligation and refusal to receive medical treatment
In Talmudic Literature
In the State of Israel
Heart and Liver Transplants
Legally Incompetent Person
Trafficking in Organs
the legal position in israel
Moral and Halakhic Considerations
artificial husband insemination
non-jewish donor insemination
jewish donor insemination
Artificial Insemination in Israeli Law
artificial insemination in halakhic case law
in vitro fertilization (surrogate motherhood)
In Vitro Fertilization Between Husband and Wife
In Vitro Fertilization by Egg Donation
In Vitro Fertilization in Israeli Legislation
The issues involved in medicine and halakhah are basic concerns, discussed and debated in every society today. Their analysis and resolution encompass many issues, related to law and values, justice and ethics, philosophy, and way of life. This is true of every society which examines its path and strives to shape its own identity.
The subjects involved in medical halakhah are a living, vital element in Jewish law and in the life of the Jewish people – "living" and "vital" in the most literal sense, pertaining to the content of life and its very being. The worlds of halakhah and of medicine are interconnected with one another. For generations many of the greatest rabbis, posekim, and Jewish thinkers have been physicians by profession.
Moreover, the questions, principles, and proposed solutions in the fields of medicine and healing touch upon the life of every single person. Hence, the discussion and debate concerning them and the questions involved in their application and their resolution are the concern of the public at large. This being so, a good portion of the subjects of medicine and therapy, the difficulties inherent in them and the solutions proposed, are not merely a matter for theoretical discussion, restricted to the world of experts and professionals, but are matters of concern to the entire society, collectively and individually. It follows that analysis of these matters is greatly influenced by various commonly held worldviews, which influence the thinking of everyone in society, both collectively and individually. As a result, analysis of medical practice and therapy, of what is permitted and prohibited, as well as the pursuit of solutions that are correct and appropriate according to both halakhic and human criteria – are all highly influential in educating the public and forming the attitudes of the individual. These are issues of immediate relevance, with which our society is constantly concerned, studying them and analyzing them. It is therefore proper that the matters written and spoken on these matters be intended not only for professionals, but for the general interested public as well, as this material is of the utmost importance for anyone seeking an understanding of the ways of the Creator, the greatness of His Torah, and the depths of faith, and who wishes to understand the meaning of Torah, of faith, and of Judaism.
Any concrete issue in the area of law and medicine that reaches the courts and thus requires a judicial decision, must of necessity require establishing a position regarding morals and values. Most issues of law and medicine that come before the court do not involve monetary obligations or financial rights, nor do they touch upon rights of ownership or criminal liability in terms of an offense against an explicit or implicit provision or section of the law. Rather, their aim is generally to establish a duty, right, or permit which is fundamentally rooted in value or moral judgments, which have been infused with a legal definition. This is particularly true of those cases in which the judicial decision involves not only law and medicine, but also involves the special realm of the family unit, the relationship between parent and child, and the relationship between spouses.
These questions have been explicitly addressed in the literature dealing with these issues, and in the decisions of Justice Menachem Elon in the Israeli Supreme Court. In the introductory comments of his decision in the case of the minor Yael Shefer (ca 506/88, Yael Shefer, Minor by way of her mother v. State of Israel, 48 (1) pd 87, 96–97), which will be discussed below, Justice Elon wrote the following:
The subject at hand is a very difficult one. It reaches the depths of human values and ethics and the heights of the philosophical thinking of generations past and present. The issue touches upon the cultural and spiritual make-up of our society. Indeed, we have postponed giving our opinion in this case so that we might fully examine the nature and essence of these values, thereby fulfilling the command: "Be moderate in judgment." […] "Against your will you are created, and against your will you are born; against your will you live, and against your will you pass on." Such was stated in the teachings of the Sages. […] "Against our will" we sit to decide the case before us. The angel of judgment stands above us and commands: "Decide!" The judge is required to adjudicate even such controversial matters so that the patient may be informed of his rights and duties, so that the physician may know what his profession forbids, permits, and requires him to do, and so that all those who assist the patient – to whatever extent – may understand their rights and obligations. "Against our will" we adjudicate all these matters, for we are not at all confident that we have fully mastered all these fundamental issues, or that we are equipped with all of the information and knowledge that we need to decide our case. Nevertheless, we cannot abdicate our judicial responsibility, and we must probe, weigh, and state our opinion.
Further on we will examine a number of general principles, as expressed in the Knesset legislation and case-law, especially in the rulings of the Israeli Supreme Court.
When dealing with the subject of medicine and law we confront the inherent tension of the fact of Israel being a Jewish state and its being a democratic state (for expansion on this point see: *Values of Jewish and Democratic State). In the Shefer case (pp. 106–107) Justice Elon defined the values of the Jewish state:
The interpretation of the values of the State of Israel as a Jewish state is thus determined by the values of the Jewish tradition and the legacy of Judaism – that is, the conclusion reached through a study of the basic values contained in the sources of the Jewish tradition and Judaism's legacy. In carrying out this interpretative endeavor we will be fulfilling the wishes of the legislator in defining the values of the State of Israel as a Jewish state […] by giving the appropriate interpretation of the values of the State of Israel as a Jewish state […].
Regarding the synthesis between the values of Judaism and those of democracy, especially in the sensitive realm of medicine and law, Justice Elon contended that in a situation of conflict between the Jewish component and the democratic component, priority should be given to the Jewish component. Hence he wrote (ibid., 167–70):
As instructed by the legislature in the Basic Law: Human Dignity and Freedom, we have examined the values of a Jewish state and those of a democratic state in the vast and multifaceted areas of medicine, halakhah, and law. As required, we have analyzed the sources of both systems in detail, and have examined the meta-principles of each system and the basic rules derived from these principles – both expansive and restrictive. And conducting this analysis, we are instructed to arrive at a synthesis that will achieve the dual-value goal of the Basic Law: Human Dignity and Freedom – to anchor in the laws of the State of Israel its values as a Jewish and democratic state. The natural way of achieving this synthesis is to find the common ground between the Jewish and democratic systems – the principles that they share, or at least those that can be used to integrate the two systems […], since active euthanasia negates the essence of the State of Israel as a Jewish state, as we observed above, the synthesis between the two norms – "the values of a Jewish and democratic state" – requires us to give preference to conclusion that would be reached by applying the values of a Jewish state, and to use these values to interpret the phrase "the values of a… democratic state." […]
The values of a Jewish state, whose roots are planted in the basic concepts of the dignity of the human being created in the image of God, the sanctity of life, and the prevention of pain and suffering, concepts which have stood the test of generations and which have nurtured and sustained the entire world – are the true guidelines for arriving at the correct synthesis between the values of a Jewish and democratic state.
A person's fundamental right to physical and mental well-being and integrity bears a special character in Jewish law, stemming from its basic conception of the source of a man's right to his life, body, and dignity. In this respect Justice Elon wrote the following in EA 2/84 Neiman v. Chairman, Central Elections Committee; Avneri v. Chairman, Central Elections Committee, 39 (2) pd 225, 298:
The foundation of the worldview of Judaism is the concept of the creation of man in the image of God (Genesis 1:27). This is how the Torah begins, and from it the halakhah derives fundamental principles concerning the worth of every human being, whoever he may be, and the right of every person to equal and loving treatment. He [R. Akiva] would say: "Beloved is man, for he was created in the image [of God]; but it was an act of greater love that it was made known to him that he was created in the image [of God], in that it is stated (Genesis 9:6): 'In His image did God make man.'"
Jewish law generally, and especially over the last few generations with the tremendous advances in medicine and its needs, has encountered a plethora of problems that emerge as a result of the conflict between the value of the sanctity of life and the value of prevention of pain and suffering and other considerations. However, the point of departure and the basic foundation for this confrontation was always, and has remained, the meta-value of the sanctity of life, and the combination of the right and duty to preserve the image of God. In the Shefer case, Justice Elon elaborated on the principle of Man's creation in the Image as the guiding conception in the subjects related to medicine and law, writing inter alia (pp. 115–116):
The basic right to bodily integrity and mental well-being has a special meaning in Jewish law, which stems from its basic philosophical outlook regarding the source of one's right to life, bodily integrity, and dignity […] The creation of man in the image of God is the basis of the value of each person's life. "Therefore the creation of humankind started with the creation of a single individual, to teach that whoever removes a single soul from this world is regarded as if he had caused the whole world to perish; and whoever keeps one single soul alive in this world is regarded as having preserved the whole world" (Mishnah, Sanh. 37a, as cited in Yad, Sanhedrin 12:3; see also Menachem Elon, Ha-Mishpat ha-Ivri (19883), p.1426, and n. 303). As we stated elsewhere (la 184/87, 151, 184, Attorney General v. Anon., 42 (2) pd 661, 676): "the fundamental principle that must guide the court is that we are not authorized or allowed to make any distinction based on the 'worth' of an individual – whether poor or rich, physically healthy or disabled, psychologically strong or mentally ill. All human beings, created in the image of God, are equal in value." The creation of man in the image of God is the underlying foundation of the supreme value of each person's life, and it is the source of the fundamental rights of human dignity and freedom. (See. Cr. A. 2145/92, State of Israel v. Guetta, 46 (5) pd 704, 723–724.) The principle that "In His image did God make man" – every man, no matter who he is – whose source is as stated, is in the world of Judaism, has been accepted by many varied cultures and legal systems, as the foundation for the supreme value placed on human life. The only exceptions are those cultures which historically have discriminated between one man and another, between the physically healthy and the disabled, psychologically strong and mentally ill (such as in the philosophy of Plato or the Greek city of Sparta; see infra par. 59 […]).
"In His image did God make man" is the philosophical and analytical basis for the unique approach of Jewish law regarding the supreme value of the sanctity of human life – the sanctity of the divine image in which man was created – and the many consequences that follow in various areas of the law, including the important areas with which we dealt in the instant case. As we shall see, Jewish law has grappled, especially in recent times, with the tremendous advances in medicine, and with the many problems that have arisen as a result of the clash between, inter alia, the value and sanctity of life and the value of preventing pain and suffering. Yet the lodestar is and has been the supreme value of the sanctity of human life, and the right and obligation to protect the divine image of humankind.
Initially, during the tannaitic era, it was established that it is permitted for a physician to heal. The Talmud derives this from the verse (Exod. 21:19): "'He shall cause him to be thoroughly healed' – This teaches that the physician is given permission to heal" (Bava Kamma 85a). This implied rejection of the approach prevalent in various philosophies and religions at that time, and later as well, even in some statements by Jewish thinkers, that one should not heal a person whom God has made ill, because there should be no intervention in what Heaven has decreed (Rashi, at bk 85a, s.v.Nitna reshut; Kitvei Ramban, Chavell ed. (Jerusalem 1964), vol. 2: Torat ha-Adam, at 42). Other tannaitic halakhic rules established that an expert physician who inadvertently caused damage is exempt, as a matter of public policy (Tosefta, Git. 4:6, Zukermandel ed.), for otherwise physicians would be unwilling to perform their duties (Resp. Tashbez, vol. 3 no. 82).
During the period of the rishonim the view was articulated that the physician's work is not only permitted, but is an obligation and constitutes the fulfillment of a commandment. Maimonides held that this is based on the duty to save life found in Jewish law whereby a person is obliged to save his fellow man who is in danger, "with his body, his money, or his knowledge (Yad, Nedarim 7:8). According to Naḥmanides, "any physician who is knowledgeable is obligated to heal, and if he refused to do so he is considered to have shed blood" (Sefer Torat ha-Adam, Kitvei ha-Ramban, ed. Chavel, 2:41–42). Thus, the permission given the physician to heal also has the status of a commandment (mitzvah), intended to dispel the physician's hesitation at the prospect of healing others due to his fear of erring and injuring others (see Resp. Da'at Kohen, no. 140). Another principle operating in the context of the physician and treatment in Jewish law is based on the verse "Love your fellow as yourself." In Sharon v. Levi (CA 548/78, Sharon v. Levi, 35 (1) pd 735, at 755) Justice Elon wrote as follows:
It is instructive to observe how this basic right was viewed in Jewish law. "One who strikes a blow causing damage less than a perutah (i.e., that did not cause any real injury) transgresses a negative commandment (Sanh. 85a; Yad, Hovel u-Mazik 5:1–3). Even if the victim consents to being struck, his consent has no validity (bb 92a; Sh. Ar., Ḥm 420:1ff.; Shulhan Arukh Ha-RavḤm, Hilkhot Nizkei Guf ve-Nefesh ve-Dineihem 4; according to the law, it is also forbidden for a person to injure himself – bk, Yad, ad loc.). This being so, on what basis can one person let blood of his fellow, even if it is necessary to do so in order to heal him? In the view of the amora R. Matna (Sanh. 84b) permission to do so is not based on the consent of the patient, whether expressed or implied, for the consent, as stated, is immaterial. Rather, it is a rule derived from the verse "Love your fellow as yourself" (Lev. 19:18), from which one can infer, as Rashi put it, that "each Jew was cautioned not to do to his fellow that which he does not want done to himself" (Rashi, Sanh. 84a, s.v.ve-ahavta le-re'akha kamokha; see also Kitvei ha-Ramban, Torat ha-Adam (ed. Chavell, Mossad ha-Rav Kook), 41–42; M. Elon, "Ha-Halakhah ve-ha-Refu'ah ha-Ḥadishah," in: Molad, 4 (ns), 27 (1971), 228, 232).
The philosophic-halakhic basis for permission to wound a sick person in order to cure him as deriving from the fundamental Biblical command "Love your fellow as yourself" is cited by Naḥmanides as a guiding accepted principle in the context of the physician and medicine in the world of halakhah: "The person who wounds another to cure him (for medical treatment) is exempt, and it constitutes the performance of a positive precept, as it states 'Love your fellow as yourself'" (Toratha-Adam, ibid., p. 43).
Rabbi Eliezer Waldenberg, a leading contemporary authority in the area of halakhic-medical law, wrote the following comment on these words of Naḥmanides:
We require that the commandment to heal be inferred from the verse ("Love your fellow as yourself"), and it is insufficient to rely on the principle that "nothing stands in the way of saving a life" to justify the physician's privilege to wound in order to heal (referred to by Naḥmanides, and cited by the Tur and Shulhan Arukh), because the inference from "Love your fellow as yourself" teaches that there is an obligation to heal even when there is clearly no danger to life, but only pain or danger to a limb.
Both Naḥmanides and Rabbi Kook (Torat ha-Adam, ibid. p. 41–42; Resp. Da'at Kohen, no. 140 (Rabbi Abraham Isaac *Kook – the first chief rabbi of Israel)) drew an illuminating analogy between the physician treating a patient and a judge presiding over a court. The judge's duty to judge the people in each generation and in all matters is portrayed in the Talmud as giving rise to a soul-searching dilemma, phrased as follows (Sanh. 6b):
The judges should know whom they are judging, before Whom they are judging, and Who will exact punishment from them, for it is stated: "God stands amidst the community of God, in the midst of judges (elohim) He will judge" (Psalms 82:1). Similarly, regarding Jehoshaphat it is stated: "He charged the judges: Consider what you are doing, for you judge not on behalf of man, but on behalf of the Lord" (ii Chronicles 19:6). Perhaps the judge will say, "Why do I need this anguish?" Therefore it is stated, "And He [God] is with you when you pass judgment" (Chronicles, ad loc.; Rashi, Sanh. 6b – "For He is with your hearts, as your hearts incline as to the matter"). A judge can only rule in accordance with what his eyes see. (Rashi adds, Sanhedrin, ad loc., "If he attempts to render a just true judgment, he will not be punished.")
Similarly, the work of a physician imposes great responsibilities and corresponding demands on his conscience, accompanied by much anguish. For this reason, Naḥmanides concludes that the laws pertaining to a physician who is as careful as he should be when dealing with life-and-death situations are the same as those applicable to a judge who seeks to render a just and true judgment. If they are unaware that they have made a mistake, they are both exempt, by both human and divine law.
Yet in one fundamental respect – which goes to the root of the matter – the physician's responsibility is greater than that of the judge. If an authorized judge (one who judges "with the permission of the court") becomes aware of his inadvertent mistake, he remains exempt even by divine law. By contrast, if a physician becomes aware of his unintentional mistake, while he remains exempt by human law, he is nevertheless liable by divine law. Indeed, if his mistake caused someone's death, he is subject to the penalty of exile [to a city of refuge]. The physician and the judge are partners to the heartbreak and ethical dilemmas inherent in their work. Each of them attempts to ease these agonizing dilemmas by following his conscience, based on "what his eyes see" or, as formulated by R. Menahem ha-*Meiri, by acting according to "what his eyes see, his ears hear, and his heart understands" (Bet ha-Beḥirah, Ketubbot 51b). See also Maimonides (Guide 3:34), who writes that the judge adjudicates in accordance with a general norm, whereas the physician treats each patient in accordance with his own specific condition and sickness. This is the essence of the physician's duty which obligates him to cure the specific ailment that confronts him, according to the particular circumstances and condition of the patient.
Regarding the analogy between the physician and the patient, Justice Elon made the following comments in the Shefer case (ibid., pp. 108–9):
It should be noted that the principles governing the professional behavior of the physician intertwine law and ethics, compliance with the strict law and going beyond the law (lifnim mi-shurat ha-din), the nature of the halakhah, and the nature of the world. Following the example set by Naḥmanides' Torat ha-Adam, these principles appear in separate sections in the later halakhic codes – Arba'ah ha-Turim of Jacob b. Asher and the Shulḥan Arukh of Joseph Caro (yd, beginning of sec. 315ff.). Incidentally, it bears mention that Maimonides' Mishneh Torah does not contain any codification of the laws relating to the physician. Maimonides comments on this matter in the fourth chapter of Hilkhot De'ot, but only to deal with the proper regimen required to maintain a healthy body. It is certainly instructive that these codifiers, who as a general rule do not include in their codes those laws that have no practical relevance, and hence do not codify such laws as those relating to the exile of an unintentional murderer to a city of refuge, nevertheless include the rule that a physician who causes death and then becomes aware that he has erred should be exiled (Tur and Sh. Ar, Ḥm 425:1). They do so in order to demonstrate the deep responsibility born by the physician, in that even when there is no legal sanction, he is liable, in cases of negligence, to be exiled to a city of refuge, to grieve and to give an accounting of his life. This dilemma of medical practice – where, on the one hand, there is the commandment not to refrain from healing others while, on the other hand, there is the sense of "why do I need this trouble?" – has become greater and more pronounced as a result of the tremendous advances in modern medicine and in light of contemporary legal and philosophical thinking concerning fundamental rights and meta-principles. Today – even more so than previously – both the judge and the physician continue to be partners to this dilemma. Both carry the responsibility and both seek to do justice in their profession, each in his own field – the judge to reach a truly correct decision and the physician to achieve true healing. This guideline of searching out the essential truth – the full meaning of which will be explained below – serves as a road-map – complex and difficult, yet indispensable – for resolving the important, grave, and complex questions that lie at the doorstep of the physician and judge alike. As is generally the case with regard to such basic questions, there are fundamentally different approaches that create a profound sense of awe as one proceeds to grapple with and apply them.
In the world of Judaism, just as the physician is obligated to heal, so too, as may be seen from our above discussion, the patient is obligated to be healed. Moreover, one who refrains from being healed violates the Scriptural verses "You shall guard yourselves well" (Deut. 4:15) and "For your own life-blood I will require a reckoning" (Gen. 9:5). The obligation of a person to be healed from a life-threatening illness takes precedence over almost all of the commandments of the Torah. When a physician determines that to become cured one must desecrate the Sabbath, a patient who refuses to accept treatment involving the desecration of the Sabbath "is considered to be 'a pious fool,' …we compel him to do [what the physician has ordered]" (Resp. Radbaz, vol. 4, no. 1339; Sh. Ar., oḤ 328:10, and commentaries ad loc.). In such circumstances, preferring observance of the commandment over medical treatment is considered "a commandment performed through sin" (Resp. Mahari Asad, oḤ no. 160). The patient's wishes are to be followed, however, when he seeks to improve the medical care he is receiving, but the physicians disagree with him. This is based on the verse "The heart knows its own bitterness" (Prov. 14:10; Yoma 82a–83a; Sh. Ar. oḤ 618:1; A. Steinberg (ed.), Enẓiklopedyah Refu'it Hilkhatit, vol. 2, pp. 24–26, 443–45).
According to Jewish law, the patient is not only obligated to seek a cure, he also has a basic right to receive treatment from a physician of his choice whom he trusts. This rule is derived from the teachings of the Sages, and became established halakhah in the Shulḥan Arukh, which rules that "If Reuben vowed not to benefit Simeon, and Simeon fell ill, Reuben may treat him… even with his own hand, even if there is another physician who can treat him" (Sh. Ar., yd 221:1).
In relation to this ruling, Justice Elon wrote the following in the Tamir case (app 4/82 Cr. App. 904/82, State of Israel v. Tamir, 37 (3) 205–206:
It is well-established law, based on the principle of the personal liberty of every person created in the image of God, that no person's bodily integrity may be infringed without his consent […]. This basic right includes the right to select the physician to whom his treatment will be entrusted; making such a choice is integral to his fundamental right to maintain his bodily integrity and mental well-being and not to be "harmed" thereby except with his consent […] An instructive expression of this principle may be found in the teachings of our Sages. The Mishnah states (Nedarim 4:4): "If one was forbidden to derive benefit from another person… he may [nevertheless] be cured by him," i.e., when one person vowed not to benefit from another person, or his fellow man vowed not to benefit to him, he may nevertheless benefit from the medical services of the other person, for the duty to heal and the right to be healed in body and soul "is a commandment" (Yad, Nedarim 6:8). The Jerusalem Talmud states that this rule not only applies where there is only one physician available – i.e., the fellow from whom he has vowed not to receive benefit – but even if another physician is available, and he may avail himself of the medical treatment of the other physician, the patient may nevertheless choose to consult the doctor from whom he vowed not to receive any benefit, for "not every person is able to cure him" (Nimmukei Yosef to Rif, Nedarim 41a). This is in accordance with the codified rule that "If Reuben vowed not to benefit Simeon, and Simeon fell ill, Reuben may treat him … even with his own hands, even if there is another physician who can treat him." In medical treatment, the personal trust between the patient and the physician of his choice is extremely important, for which reason "even if there is another physician who can treat him, that physician [i.e., the one from whom he vowed not to benefit], if qualified, is under a duty to treat him, for the saving of life is sacred" (Ritba, to Rif, Ned. 41b).
The fundamental rule of Jewish law regarding the physician's duty to treat, and the patient's obligation to be cured, is subject to a number of qualifications, which have proliferated in our generations and which limit the possibility of treating a patient against his will. R. Jacob Emden, one of the leading halakhic authorities of the 18th century (Mor u-Keẓi'ah, oḤ 322), laid down the following conditions under which the patient is obligated to seek a cure and under which "he is not listened to, if he rejects suffering and chooses death over life." Accordingly, the duty only applies where the physician is familiar with the sickness "in absolute and clear certainty," the case concerns a patient who at that time was referred to as "a patient with a clear sickness and obvious wound"; the treatment that the physician wishes to use was "definitively checked and certain"; and the patient's life is in danger. In the event that these conditions do not exist, the patient's consent is required for medical treatment, and he is permitted to refuse medical treatment. In contemporary times, many posekim have dealt with these cases, enumerating additional cases in which the patient's consent is required. R. Moshe Feinstein, one of the great halakhic decisors of our generation (see responsum of R. Moshe Feinstein quoted in Piskei Halakhah Refuah u-Mishpat, ed. S. Shachar (1989), p. 101), wrote that, when giving treatment against a patient's will, in addition to the need for a high probability of success, account must also be taken of the negative influence of treatment given against his will. According to another opinion, if the patient can be expected to suffer even after the medical treatment, providing grounds for assuming that he would not have agreed to such medical treatment before it was given, then it cannot be administered in the first place without the patient's consent (ibid., 104). Another view was that, given the large number of cases in which there was no certain medical opinion, all non-consensual medical treatment should be avoided, unless there is a definite danger of death (A. Steinberg (ed.), Enẓiklopedyah Refu'it Hilkhatit, vol. 2, Informed Consent, p. 30, nn. 86–87; cf. Rabbi S. Raphael, "Kefiyyat Tippul Refu'i al Ḥoleh," in: Torahshe-Beal Peh, 33 (Jerusalem, 1992)).
In recent years a number of factors have combined to bring the subject of *euthanasia to the forefront of discourse in the world of medicine and halakhah. The awesome advancement in science and medicine resulting from technological progress has facilitated the prolongation of human life in its final stages. However, this prolongation has not always led to improvement in the quality of life, and on occasion even sentences people to grave physical and mental pain. Doctor-patient relations have also undergone a metamorphosis, from the paternalistic approach whereby the doctor decides what is best for the patient, to an approach based on patient autonomy, whereby the competent patient can decide for himself, and his informed consent is therefore required for any medical proceeding. A large number of people are involved in the treatment of a terminally ill patient, of different cultural backgrounds and outlooks, and consequently bringing with them varied opinions as to how to treat the terminally ill patient. The general public today is also far more concerned with moral problems pertaining to medicine in general, and specifically those relating to the terminally ill. Limited medical resources do not always suffice to provide all possible medical options for all those requiring it, and occasionally these, too, are considerations in the decision making process in relation to these patients.
We shall now present the sources underlying the halakhic approach to this subject, and the manner in which the halakhah relates to the subject in modern times in general, and in the State of Israel in particular. In the Shefer case (Shefer v. State of Israel 48 (1) pd 87, 131–132), Justice Elon wrote the following:
There have always been serious and complex moral problems regarding the end of one's stay on this earth. Jewish law includes various rules dealing with the medical care to be given, as well as other issues of civil and religious law, concerning the person who is terminally ill or dying (= goses). Jewish law distinguishes between these states, but there are disagreements as to their precise definitions and halakhic consequences. In any event, this is not the place to elaborate…. Regarding this terminal state, Jewish law emphasizes the importance of even ephemeral or brief life (ḥayyei sha'ah), so long as "the candle flickers…" This is also true in non-Jewish cultures, evidence of which we find as early as the Hippocratic oath, which states, inter alia: "I will not give poison to any person, even if he requests it; and I will not offer it." Some cultures, however, did not have this approach…
These medical-legal problems, involving fundamental questions of values, have grown more complex and difficult in recent years, provoking much discussion and dispute in the medical and legal communities, as well as among philosophers, clergymen, and the general public. On the one hand, the awesome advance in science and medicine resulting from technological progress has allowed the prolongation of life, by preventing the spread of disease and by various artificial means; on the other hand, the prolongation of life has not always led to improvement of its quality. At times, prolongation of life brings with it physical and mental pain, and the disruption of day-to-day life. In addition, a patient in such circumstances today may find himself in a hospital or other institution, attached to various machines which keep him alive, and not – as in the past – within the walls of his own home, with his family and loved ones in the natural environment in which he lived and flourished. Those who must deal with these problems are primarily the patient himself and his family, in addition to physicians, legal scholars, clergymen, and philosophers. The problems that arise involve grave and fundamental moral, religious, and ethical questions. The basic question is: who understands all of these factors sufficiently to be competent to decide what is the proper life span of a person and whether to shorten or to refrain from prolonging it.
The prohibition on taking a human life is one of the gravest offenses in the Torah, and mankind as a whole was admonished against this offense at the dawn of its history: "Whosoever sheds the blood of man, by man shall his blood be shed, for in His image did God make man" (Gen. 9:6; see at length in *Homicide, and *Noahide Law). The Bible records a case which serves as a proof text for the view that killing a man even where it is clear that there is no chance that he will continue to live is nevertheless murder. At the end of the war between the Israelites and the Philistines during the days of Saul, Saul understood that the Philistines were about to kill him, and therefore decided to kill himself with his own sword. Scripture relates that Saul only injured himself after this attempted suicide, and then asked an Amalekite youth to complete the act. Saul's condition at that stage was analogous to that of a terminally ill patient, who clearly and lucidly requested the hastening of his death in order to redeem him from his suffering. The Amalekite youth complied with his wishes and killed him. Nevertheless, David subsequently ruled that the Amalekite youth was liable for the death penalty as a murderer (i Sam. 31:3–4; ii Samuel 1 and 16; see Radak and Ralbag, ad loc.) From this Biblical story it emerges that that the active killing of a person who is dying is forbidden, even under those conditions, and even if the patient requested it (Ralbag, ibid., Sefer Ḥasidim, ch. 315; Ralbag and Radak further suggested interpreting that in fact the youth did not actually kill Saul, but rather just said that in order to find favor in David's eyes).
As a rule, so long as the person's soul has not departed he is regarded as alive. The treatment of the terminally ill is dealt with directly in tractate Semaḥot, which stipulates those actions that may be performed on a dead person, and which are forbidden with respect to a living person: "A goses is considered a living person in all respects… One may not bind his jaws… one may not move him… one may not close the eyes of the dying [patient]. Whoever touches or moves him sheds blood…." (Semaḥot 1:1–4; Shab. 151b).
The Mishnah in Tractate Yoma (8:6) states that "Any chance of saving a life takes precedence over the Sabbath." Accordingly, in the event of a landslide, where there is a chance that a person is trapped beneath the debris, the debris should be removed until it is certain that no living person is trapped thereunder. Tractate Yoma 85a adds that, even if the person found under the debris was mortally wounded, and it is clear that he will soon die, one continues to desecrate the Sabbath to save him by removing the debris. Thus, this source indicates that even short-term life is considered life. The halakhic decisors of the present generation disputed whether this source implies that everything possible should be done to prolong life, even if only temporary, or whether the laws of the Sabbath do not necessarily provide a basis for the duty to prolong life (Resp. Ẓiẓ Eli'ezer, 5; Kuntres Ramat Raḥel, 28; Resp. Minḥat Shelomo, 91.24).
Regarding a person about to die and experiencing intense suffering, the aggadic sources adopt a different attitude. The Talmud (Av. Zar. 18a) relates the story of R. Hanina b. Teradyon (second century c.e.) who was taken to be executed by the Romans as punishment for publicly teaching Torah. In order to ensure that the execution would be protracted and particularly cruel, the Romans soaked pads of wool in water and placed them over his heart "to delay the departure of his soul." When the executioner offered to stoke the flame and hasten his death by removing the pads, R. Hanina agreed, and swore that by that act the executioner had secured his place in the World to Come. The halakhic decisors offer a variety of explanations for the positive attitude taken by the Talmud to this act, but the story itself indicates that when a person is about to die and experiencing intense suffering, it is permitted to hasten his death even by way of a positive action – e.g., increasing the flame, and even by an act of "removing the impediment" – here, taking away the sponges.
Another case cited by the Babylonian Talmud (Ket. 104a) describes the death of R. Judah ha-Nasi, who towards his death was in unbearable pain. His students succeeded in preventing his death by their incessant prayers for Heavenly mercy. His handmaid, noting the intensity of his suffering, threw a jar on the ground, thereby momentarily causing them to cease praying, and at that moment Rabbi Judah died. This story has been cited as proof that it is permitted to avoid prolonging the life of a terminally ill patient (Iggerot Moshe, Ḥm, vol. 2 no. 73.1).
The halakhic rulings sharply distinguish between the active hastening of death, which is forbidden, and the removal of a life-prolonging impediment, which is permitted under certain conditions.
The various acts cited above as being prohibited in respect of the goses are enjoined because they are liable to actively hasten the death of the terminally ill (see Sh. Ar., yd 339:1; s.v.*goses; Talmudic Encyclopaedia (Heb.), 5, 393ff.).
Actively hastening death is forbidden even in cases where the patient is suffering acutely: "It is forbidden to hasten his death, even if he is dying and both he and his relatives are suffering intensely" (Ḥokhmat Adam, 91.14), "and even if we see that he is suffering intensely, and that it is better for him to die, we are prohibited from performing any act to hasten his death" (Arukh ha-Shulḥan,yd 339:1; Nishmat Avraham, yd 339:4).
This prohibition applies even where the patient himself requests it, an analogy being drawn from Maimonides' ruling that one may not take ransom from a murderer in order to exempt him from the death penalty, even if the blood avenger (i.e., the victim's relative who may exact the murderer's life as retribution for the murder) agrees, because "the life of the victim is not the property of the 'blood avenger,' but rather belongs to God" (Yad, Roẓe'aḥ u-Shemirat ha-Nefesh 1:4).
On the other hand, the prohibition on passive euthanasia is not absolute and the halakhah distinguishes between various forms of passive euthanasia, the prevention of suffering to the patient being a paramount consideration. R. Judah he-Ḥasid (Ashkenaz, 12th century; Sefer Ḥasidim, ch. 723 (ed. Mossad ha-Rav Kook)) addresses the issue and rules that, even though it is forbidden to perform any action that hastens death, there is no place for actions that delay a natural death. "We do not act to delay a person's death. For example, if a person is dying and there is a man chopping wood near his house so that the soul cannot depart, we remove the woodchopper from there. Moreover, we do not place salt on his tongue to prevent his death. But if he is dying and he says that he cannot die until he is placed somewhere else, he is not to be moved from there (i.e., from where he is)."
According to this view, artificially delaying the soul's departure causes unnecessary pain and suffering to the goses: "Do not feed the goses, for he is unable to swallow, but water should be put into his mouth…and one does not shout at the time of the soul's departure, so that the soul does not return and suffer unbearable pain…" (ibid., 234).
Joshua Boaz ben Simon Baruch (Italy, 16th century) in his glosses on Alfasi, mk 26b, in Shiltei ha-Gibborim, in explaining this passage in Sefer Ḥasidim states that it is permitted to discontinue an external act which prolongs the life of the goses, but it is forbidden to move him from his place and place him elsewhere, or to do any other action in order to hasten his death (ibid., 234). This opinion was codified and incorporated into the ruling of the Rema, at Sh. Ar., yd 339:1.
The life-preserving measures dealt with in these sources essentially reflect popular beliefs prevalent in those days. The task facing contemporary authorities was to translate and apply these examples to the life-preserving measures utilized by modern medicine. In that context, it was held that an artificial respiration machine or other artificial life-support mechanisms are analogous to the "grain of salt"; thus it was held that they can be removed in order to discontinue the artificial prolonging of the dying patient's life. Therefore, "once the physicians have determined that he cannot be cured (i.e., it is clear that he will not recover), it is clearly permissible to disconnect the patient from the machine to which he is connected." Furthermore, it was even held that "not only is it permitted to disconnect the respirator, but there is an obligation to do so. For man's soul is the property of God and has not God already taken the soul from this person, for as soon as the machine is removed he will die. And quite the opposite, by using the artificial respirator we leave his soul inside him and cause it (the soul, not the dying person) pain due to its inability to depart from the body and arrive at its resting place" (Rabbi H.D. Halevi, bibliography). A similar ruling was given by R. Eliezer Waldenberg (Resp. Ẓiẓ Eli'ezer, vol. 13, no. 89; cf. R. Solomon Zalman Auerbach, Resp. Minḥat Shelomo, 91.24).
R. Ovadiah Hadayah (Resp. Yaskil Avdi, yd, vol. 7, no. 40) held that a goses is "any patient regarding who all the physicians have given up hope and have determined that he will not recover from his sickness."
In other responsa, Rabbi Moses Feinstein (Resp. Iggerot Moshe, yd, vol 2., no. 74, 73.1, 74.1) and Rabbi Auerbach (Resp. Nishmat Avraham, Yad Vashem, 245) make additional distinctions relating to this question, such as the distinction between medical assistance that actually alleviates the patient's suffering (such as oxygen), which it is mandatory to administer to him, and administering other medicines, and the distinction between standard medical treatment, which the doctors are duty bound to continue administering to the patient, and nonstandard medical treatment.
Summing up the position of Jewish law on this subject, Justice Elon wrote in the Shefer case:
In Jewish thought, various overarching principles and values operate within the context of this momentous and complex labyrinth of halakhah and medicine. Such principles include the sanctity of human life, based on the meta-principle of man's creation in the image of God; the fundamental precept to "love your fellow as yourself"; the alleviation of pain and suffering; the obligation of the physician to cure and of the patient to be healed; the right of the patient to refuse medical treatment; the decision-making approach of "her ways are pleasant ways"; the requirement that "the laws of our Torah must accord with reason and logic"; as well as other principles discussed above.
The point of departure in the extensive, difficult, and complex area of law and medicine is the supreme value of the sanctity of life. This supreme value is based, as stated, on the meta-principle of man being created in the image of God, with all that implies. Therefore, the standard of the worthiness of a person does not exist, nor could it exist. The law for a physically or mentally handicapped person is the same as that for a healthy person; we do not measure the degree of health of the body or mind. Similarly, no standard exists with respect to the length of a person's life. The same rules apply to a person who has only a short period to live and one who is expected to live a long life: the flickering candle still burns and illuminates. Therefore, actively hastening death, or acting to shorten life – even if termed "mercy killing" – is absolutely forbidden, even at the behest of the patient. The obligation, in such situations, is to ameliorate the patient's pain and suffering in every possible way.
The situation is different with regard to passive euthanasia, the non-prolongation of life, known in Jewish law as the "removal of the impediment." Passive euthanasia is permitted and, according to some authorities, even mandatory in certain cases, after taking into account such factors as the fundamental principle of minimizing the patient's physical and mental pain and suffering, the wishes of the patient, the negative consequences of treating the patient against his will, and the various types of treatment – ordinary or extraordinary, natural or artificial, etc.
Similar considerations apply when considering the necessity for consent by the patient. In principle, the obligation of treatment is incumbent upon both the physician and the patient, especially when the treatment is necessary to save the person's life. However, apart from those cases involving immediate danger to life, this principle has been progressively limited, and in various situations the patient… may not be treated against his will…. The consideration of individual autonomy in the decisions of the halakhic authorities came about largely as a consequence of momentous developments in our generation in the field of medicine and the struggle of the halakhic authorities to deal with them. At times, what is determinative is not the opinion of the physician… but rather that of the patient himself, for it is forbidden to "actively cause him to suffer." Great significance is accorded to the adverse effect that undesired treatment may have on the patient: "The very fact that he is compelled [to undergo the operation] will further endanger him." This illustrates the methodology of the halakhah – it develops and creates itself through the process of case-by-case decision making.
All these and similar questions dealt with by a growing body of contemporary halakhic responsa attest to the diversity of halakhic views on these difficult, tragic questions pertaining to the relationship between the sanctity of life and prevention of pain and suffering, both mental and physical, with all their implications.
The question of shortening, or failing to prolong, the life of a terminal patient has engaged many scholars and writers in the realms of halakhah, medicine, philosophy, and law. Over the past few years, with the development of new technological and diagnostic measures at the disposal of the medical system, the courts are often required to decide on these questions. Section 309 of the Israeli Penal Law criminalizes active euthanasia – i.e., an act that causes the shortening of a patient's life – classifying it as murder. The Israel Supreme Court addressed the issue of the scope and essence of this offense in the Shefer case (ca 506/98 Yael Shefer v. State of Israel, 48 (1) 87), giving a leading judgment on the subject. The case concerned a little girl suffering from Tay-Sachs, an incurable genetic disease, and it was undisputed that her days were numbered. Her request (filed by her mother as her guardian) was that in the event of her condition deteriorating, the hospital should refrain from administering life-prolonging treatment. Justice Menachem Elon dealt at length with the aforementioned sources and analyzed the problem from the perspective of the need to strike a balance between the Jewish values of the State of Israel and its democratic values. The court held that, in that case, the mother's request to allow discontinuation of treatment could not be granted, because on the basis of the medical testimony presented to the court, the child was not suffering, her dignity was preserved and, as such, the sanctity of her life, even in its state of being terminally ill, was the sole and determinant value, and any interference and harm to life contravened the values of a Jewish, democratic state.
For additional judgments dealing with this subject, see: om 528/96 Bibes v. Tel Aviv-Jaffa Municipality (Tel Aviv District Court); om 2242/95 A.A. v. Kuppat Ḥolim Kelalit, 2 pdm, 1995, 235; om 1030/95 Gilad v. Soroka (Beersheba District Court).
In order to discuss and formulate a bill regulating policy in this area, the Ministry of Health appointed a committee, headed by Prof. Abraham Steinberg (referred to as the Steinberg Committee). In 2002, the Asher Committee published conclusions. The report discussed the moral, religious, medical, psychological, social, and legal aspects of the problem, and formulated a draft bill. This bill deals with the various categories of dying patients, including those who are legally competent and those who are not, the different forms of treatment, the status of professional caregivers and of the family, and establishes frameworks for the solution of individual problems, as well as for adoption and review of decisions. The draft bill on the subject conformed with the approach of Jewish law to this subject, and was adopted by the Israeli Legislature as binding law in December 2005.
The section defining the purpose of the Terminally Ill Patient Law, 5766 – 2005 (Section 1) stipulates as follows:
(a) The purpose of this law is to regulate the medical treatment of a patient regarding whom it was determined that he is terminally ill, pursuant to the principles set forth in this Law, based on an appropriate balance between the value of the sanctity of life and the value of individual autonomy and the importance of quality of life.
(b) This law is based on the values of the State of Israel as a Jewish and democratic state, and fundamental principles in the realm of morality, ethics and religion.
Basic Principle of the Law (Section 2):
In prescribing the medical treatment for a terminally ill patient, his medical condition, his will, and the degree of his suffering are the exclusive considerations.
The law provides the following definition of a terminally ill patient (Section 6):
(a) An authorized physician may determine that a patient is terminally ill, if satisfied that the patient is suffering from an incurable illness, and that his life expectancy, even upon receiving medical treatment, does not exceed six months.
(b) An authorized physician may determine that a terminally ill patient is dying if satisfied that his medical condition is such that a number of vital systems in his body have ceased to function, and that his life expectancy, even upon receiving medical treatment, does not exceed two weeks.
The law explicitly prohibits active euthanasia, or assisted suicide, or discontinuation of ongoing medical treatment:
12. Nothing in the provisions of this law shall permit any act, even if constituting medical treatment, that is intended to kill, or which will almost certainly result in death, irrespective of whether or not it was motivated by kindness and compassion, and irrespective of whether or not it was at the request of the terminally ill patient, or of any other person.
13. Nothing in the provisions of this law shall permit any act, even one constituting medical treatment, that contributes to assisted suicide, irrespective of whether or not it was motivated by kindness and compassion, and irrespective of whether or not it was at the request of the terminally ill patient, or any other person.
14. Nothing in the provisions of this law shall permit the discontinuation of the medical treatment of the terminally ill, which is liable to cause his death, irrespective of whether or not he is legally competent […]
Nevertheless, the law does allow the physician to refrain from providing medical treatment to a terminally ill patient (§8) or to refrain from the renewal of medical treatment (§14):
8 (a). Where a legally competent terminally ill patient does not want his life prolonged, his will should be honored and medical treatment withheld […]
14. […] However, it is permitted to refrain from the renewal of medical treatment, which was disrupted inadvertently or not in contravention of the provisions of any law, and it is similarly permitted to refrain from the renewal of periodic medical treatment […]
The law also regulates the treatment of a terminally ill minor (§§19–21), and of a terminally protected person. Moreover, the law regulates the methods whereby a terminally ill patient can give advance living notice of his wishes concerning the medical treatment that he wishes to receive (ch. 5 of the law). The law further appoints an institutional committee, comprising inter alia a clergyman of the same religion as the patient, to rule on doubtful situations pertaining to the treatment of the terminally ill patient.
Organ transplantation is a new medical technology for the replacement of organs, parts of organs, or tissues that have reached terminal failure, by organs, parts of organs, and tissues that are functional. The transplanted organ may be taken from one part of the person to another, from one person to another, or from an animal to a human being. The transplanted organs may be artificial or natural, complete (e.g., kidney, heart, liver, etc.), or partial (e.g., heart valves, skin, bone, etc.).
The basic issues involved in organ transplant in Jewish law depend upon the classification of organ being transplanted, being divided into four categories: (a) whether transfer of an organ from the body of the deceased is permitted – a question that arises primarily with respect to cornea and heart transplants; (b) determining the moment of the donor's death – an important issue in the context of heart transplants; (c) whether or not a person is permitted to endanger himself to save his fellow-man – a question that arises in the context of kidney transplant and other transplants involving a donation from a living person; and, if it is permitted, is he obligated to do so; (d) whether a child or person who is otherwise legally incompetent may serve as a donor.
The questions raised by cornea transplants are common to all forms of transplant in which the transplanted organ is taken from the dead donor. Under what circumstances may an organ removed from a dead person's body serve for the recuperation of another person (see *Medical Experimentation)?
The posekim discuss whether the removal of an organ from a dead person violates the prohibition of deriving benefit from the dead person, the majority opinion being that it does not (Resp. Radbaz, vol. 2, no. 648; ibid., vol. 3, no. 648 (1009); Resp. Shevet Yehudah, pp. 313–22). It was further ruled that there was no prohibition of postponing burial entailed in transplants from a dead person to a living person (see: Deut. 21:22–23; Sanh. 44b, and other sources), nor is it considered as neglect of the positive precept of burying the dead organ, because the organ is restored to functionality by the act of being transplanted into a live body, and is hence not classified as "flesh of the dead" (Resp. Shevet Yehudah, ibid.; Resp. Seridei Esh, vol. 2, no. 120; Resp. Yabi'a Omer, vol. 3, yd no. 22). The posekim also discussed whether the removal of an organ from the dead person's body transgresses the prohibition of mutilating the dead body. According to one view, in order to avoid this prohibition there is a need for a prior living consent to the act (Resp. Shevet Yehudah, ibid.), and according to another view, it is permitted to remove the organ even without prior living consent in cases of great need, even if it does not involve the saving of a life (H.D. Halevi, in: Assia, 4 (1983), 251–59).
Most contemporary halakhic decisors take the view that, if, when confronted by a patient requiring a transplant, his condition is defined as life threatening (pikku'aḥ nefesh), and if the donor agreed while still alive to have his organs taken, it is permitted to remove his organs after his death to transplant them into a live person; there are those who even rule that this is a mitzvah – i.e., a religious duty. The family must, however, consent to the removal of an organ from their deceased relative, for purposes of a transplant (Resp. Iggerot Moshe, yd 174:4).
The central issue involved in the context of heart and liver transplants is determination of the moment of death. Today, both the heart and the liver can only be transplanted if the donor's circulatory system is still functional. From the moment the heart stops beating, the blood stops circulating and it is no longer possible to transplant that heart. Thus, in order to successfully transplant a heart, the state of death must be determined prior to the cessation of heartbeat in the donor's body. The question then arises as to whether a person suffering from irreversible brain damage or from actual brain death, but whose heart continues to beat, is considered halakhically alive or dead. Accordingly, the question of whether heart or liver transplants can be permitted touches on the question of determination of the moment of death according to the halakhah. In any event, the life of a terminally ill or dying patient cannot be artificially prolonged solely to enable use of his organs for transplanting purposes, because one life may not be set aside to ensure another life (ein doḥin nefesh mipnei nefesh), and the life of the dying person may not be set aside for the sake of the healthy person's life (Resp. Iggerot Moshe; Minḥat Yitẓhak).
According to certain authorities, it is absolutely forbidden to remove an organ from a person defined as brain dead (Resp. Ẓiẓ Eli'ezer, vol. 10, nos. 25, 85, and 86; Iggerot Moshe, yd 2:174), while others permit it (Israeli Chief Rabbinate; see Teḥumin, 7 (1986), 187–92).
A kidney transplant is performed, inter alia, by a healthy person donating one of his kidneys to another person whose kidneys are non-functional. The question that arises here is whether the donor is permitted to place himself in danger in order to save another. Since, as stated, the donation is from a living person, an additional question sometimes arises – whether a kidney may be taken from a person who is unable to express his consent, such as a child or a mentally incompetent individual and, if so, who is entitled to consent on his behalf?
An important principle in Jewish law is that "whoever could have rescued, but failed to do so, transgresses the commandment, 'Do not stand idly by the blood of your fellow'" (Lev. 19:16; see Sanh. 73a; Yad, Roẓe'aḥ u-Shemirat ha-Nefesh 1:14–16; Tur, Ḥm 426). Maimonides stated that this prohibition is "one of the most severe, because whoever destroys one single soul… is regarded as if he had destroyed the entire world, and whoever preserves a single soul…is regarded as having preserved the entire world" (Yad, ibid.; regarding the halakhic duty to save life in a similar context, see the comments of Justice Beiski, Cr. App. 527/85 Kurtam v. State of Israel, 40 (3) pd 673, at 696–97).
When there is no danger to the rescuer, his obligation is absolute. The difficult question is: To what extent is a person required, or perhaps, allowed, to endanger his own life to save another's? This question has troubled the halakhic authorities. Some hold that a person must expose himself to a possible danger, when necessary to rescue his fellow from a danger that is certain (Beit Yosef to Tur, Ḥm 426); but many disagree (Sema, to Sh. Ar., Ḥm 426, par. 2). A recent halakhic authority aptly summarized the law as follows: "It all depends on the circumstances. One should weigh the situation carefully and not be overly self-protective … Whoever saves a single person is regarded as if he saved an entire world" (Arukh ha-Shulḥan, Ḥm 426:4. For sources discussing this difference of opinion, see: R. Ovadiah Yosef, "Teshuvah be-Heter Hashtalat Kilyah," in: Dinei Israel, 7 (1976), 25–43; idem, "Be-Din Terumat Kilyah," in: Halakhah u-Refu'ah, 3:61–63; idem, Resp. Yeḥaveh Da'at, vol. 3, no. 84).
The removal of an organ from a person's body in order to save another person's life is discussed by the halakhic authorities in the context of danger to the donor. But this discussion entails a further inquiry: Is there any basis at all for obligating a person to donate an organ to save someone else? The following answer was given by the outstanding halakhic authority, David ibn Zimra (Radbaz), a 16th-century rabbi of Egypt and Israel, against the tragic-heroic background of the Diaspora, and the government's treatment of its Jewish minority (Resp. Radbaz, vol. 3, no. 1052): "You have asked me… [what should one do] if the government says to a Jew: 'Allow us to sever one of your limbs, which will not cause your death, or we will kill your fellow Jew!'"
Radbaz answered that, even if it is certain that the amputation is not life-threatening, there is no obligation to allow it. One is permitted to allow the amputation, and it would be an act of great piety to do so. Radbaz's summary is instructive: "and furthermore, it is written 'Her ways are pleasant ways' (Prov 3:17). [This means that] the laws of our Torah must accord with reason and logic. How then can we suggest that a person should allow his eye to be blinded or his arm or leg amputated in order that someone should not be killed? Therefore, I do not see such an act as a legal obligation, but as one of pious behavior. Happy is the lot of anyone who can bring himself to do such a thing. [But] if there is any possible danger to his life, he would be a pious fool, because his doubt has priority over the certainty of his fellow." (Regarding the principle of "Her ways are pleasant ways" in the determination of halakhah, see: Menachem Elon, Ha-Mishpat ha-Ivri (1988), 3:323ff.; idem, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, Mafte'aḥ ha-Mekorot (vol. 1, 1981), Introduction, p. 25.)
The removal of a person's organ in order to save his fellow, even if not involving danger to the donor, cannot be compelled, because it violates the principle that the ways of the Torah are pleasant, and "the laws of our Torah must accord with reason and logic." Based on this, it is inconceivable that a person could be compelled to donate an organ from his body to save another person, although such behavior would be considered an act of piety, on a voluntary basis, and it is desirable that a person do so, beyond the letter of the law (see also Resp. Radbaz, vol. 5 of Leshonot ha-Rambam, no. 212 (1682), and the attempt to reconcile these two responsa, which goes beyond the scope of this article).
This responsum of Radbaz is one of the central texts in the discussion among contemporary halakhic authorities regarding a kidney donation for transplantation in the body of another person. The issues considered include that of potential risk to the donor, whether an individual may wound himself, and similar halakhic questions. Opinions differ. Some forbid kidney donation (Resp. Ẓiẓ Eli'ezer, vol. 9, no. 45; vol 10, nos. 25, 7, 28; and cf. Weiss, Resp. Minḥat Yiẓḥak, vol. 6, no. 103), but most authorities hold that, although one is not obligated to donate, it is an act of great piety when there is no risk to the donor (M. Feinstein, Resp. Iggerot Moshe,yd, vol. 2, no. 174:4; responsum of R. Solomon Zalman Auerbach, quoted in Nishmat Avraham,yd 157:4, at 66–67 (1985); responsa of R. Ovadiah Yosef, sources cited above; Rabbi H.D. Halevi, in: Assia, 4 (1983), 251–59; Rabbi Y. Silberstein, in: Halakhah ve-Refu'ah, 4 (1985), 156–57; Rabbi S. Dikhovsky, Ne'ot Desheh, 2:154–155). In our generation those who ruled that it was forbidden for a living person to donate a kidney claimed that it may be dangerous, and it is forbidden to a person to put himself in a state of danger (Ẓiẓ Eli'ezer; Resp. Minḥat Yiẓḥak). There were those who permitted a living person to donate his kidney, regarding it as an act of piety, but there is no obligation to do so (Resp. Iggerot Moshe, yd, vol. 2, no. 174:4). And among those who permit it there were those who ruled that the donation of a kidney from a living person is not only permitted, but it constitutes a mitzvah, and failure to fulfill it violates the prohibition of "Do not stand idly by the blood of your fellow," because the risk is minimal and the chance of the remaining kidney being damaged in the future is sufficiently remote so as not to be regarded as even being remotely dangerous (see Rabbi Ovadiah Yosef, in: Dinei Yisrael, 7 (1976), 25–43; Resp. Yeḥaveh Da'at, vol. 3, no. 84).
In certain cases the most appropriate donor in terms of tissue classification is a legally incompetent person. There is no halakhic permission for the removal of a kidney from a legally incompetent person for the purpose of a transplant. This is the case when dealing with one who is mentally incompetent. This prohibition applies unless it is clear that the legally incompetent person derives clear benefit from the donation, and it is performed exclusively for his benefit, and provided that there are no other means of ensuring that benefit (Justice Elon, lca 184/87, 698/86 Anon. v. Anon. 42 (2) pd 661. See also: Rabbi M. Meiselman, Halakhah ve-Refu'ah, 2 (1981), 114, who wrote that if the majority of sons or brothers donate kidneys to their relatives, there is a presumption based on common sense that the legally incompetent person would also have given his consent. Justice Elon rejected this view).
Regarding blood and bone marrow donations, it was ruled that these are permitted since they do not involve any danger, and the material regenerates. It is therefore a mitzvah for members of a family to volunteer to do so when required in order to save a life, and in such cases lenient rulings are given even with respect to the legally incompetent person (Nishmat Avraham, yd 349:3). If the donor refuses, according to some authorities he cannot be compelled, the donation being considered as an act of piety, while according to other authorities, he can be compelled (Resp. Shevet Halevi, vol. 5, no. 219).
In the famous case of Anon. v. Anon. (lca 184/87, 698/86 Anon. v. Anon. 42 (2) pd 661), Justice Elon discussed the issue of whether it is permitted to remove the kidney from a mentally disabled adult to be transplanted in his father-guardian's body and, if so, who has the authority to grant such permission, and under what conditions and circumstances. In keeping with his judicial practice, Justice Elon relied on precedents from Jewish law (as shown above) and on the legal sources and practices of other democratic states, attempting to synthesize between them. Justice Elon concluded his judgment in this case as follows (ibid., 689–90):
The general rule is that the sole criterion for allowing the removal of a kidney from the protected person's body for transplantation is whether the removal benefits the protected person. The court must weigh up and balance, in accordance with the conditions detailed above, the extent of the benefit to be gained by the protected person as a result of the transplant into the donee's body, against the damage that may be caused to him by the removal of the kidney and the fact that he will be left with only one kidney. The balancing process must be based on the specific circumstances of the protected person, in his current condition, as it may be in each particular case that comes before the court. The court will allow the transplant only if the result of this balancing definitively establishes that the transplant will clearly and substantially benefit the protected person […].
How can the court perform this balancing? One can point to a number of tests, which are not exclusive, but will be applicable in most situations.
(A) Factors in Assessing the Benefit to the Protected Person
1. The extent of the protected person's dependence on the support of the donee;
2. The existence of alternatives to assure the support and necessary care of the protected person at a level comparable to that which he would receive as a result of donating the kidney. These include other possible donors, whether dialysis is a sufficient remedy, and whether there are sources of support, without the donee;
3. The likelihood – both relative to the alternatives and absolutely – that the transplant will be successful and, if so, the extent to which it will increase the donee's life expectancy, and the significance of that increase for supporting the protected person;
4. The life expectancy of the protected person and the number of years during which he will need support and, in particular cases, his interest in helping his family members or in avoiding guilt feelings, when this interest is clearly proved. This interest must exist at the time of the transplant, if only to a limited extent, and must be expected to increase progressively.
(B) Factors in Assessing Harm to the Protected Person
1. Physical damage and side effects
(a) due to the surgery;
(b) due to being left with one kidney.
2. Mental damage to the protected donor
(a) as a result of the surgery and hospitalization;
(b) as a result of the removal of the kidney without his understanding or consent.
3. Limitation on his future actions as a result of being left with one kidney, taking into account his situation as a mentally disabled individual, both from the point of view of protecting his health and considering the fact that he will not be preferred for dialysis or transplant should he ever need it.
In light of the circumstances of the particular case, the Supreme Court ruled against the transplanting of the kidney of the mentally disabled son into his father. Justice Elon concluded his opinion with the following observations (ibid., 700–1):
The question before us is difficult and painful. We have a father, devoted to his son, who removed him from an institution and cared for him with love and dedication. We have no doubt that the father's request for the kidney was made because he was told that his son would not be hurt and because he was convinced that it was in the son's best interest that his father enjoy a long life and continue to care for him. But we, as a court, are instructed, by law and morality, to look at the total picture in this situation. We must keep in mind that at issue is the invasion of a person's body and the removal of one of his vital organs – an organ which does not regenerate and for which there is no substitute. Moreover, the donor does not understand what is happening to him and what is being taken from him. How disingenuous and possibly even cynical it is to use the term "donation" to describe the taking of a kidney under these circumstances.
Scholars and thinkers have discussed the social, familial, and psychological pressures operating when an individual needs to decide whether or not to donate a kidney to a family member. Indeed, even when referring to a totally healthy person, it is doubtful that the proper term is "donation," since a donation is essentially linked to the idea of "if his heart so moves him" (Exodus 25:2). A fortiori, there is certainly doubt in our case, under the aforementioned circumstances. Not only is there no donation here made out of generosity, but this is a prime example of coercion. This is a serious matter that could severely damage the cultural and spiritual fabric of our society. As a court, we are the "father" of the legal incompetents, of those who do not understand and cannot consent or decide on their own, and we must protect those unfortunates to maintain their dignity as human beings. As such, we are not superior to the father before us, who sired the child and cared for him his whole life. We would never think that. But we are appointed by law to weigh all the considerations – legal, halakhic, and ethical – that arise in these situations, and in this respect, and only in this, do we take precedence over the father. By examining all the considerations and balancing them, we have concluded that we should not allow the removal of the kidney from the son for the father. We again urge that all efforts be made to obtain a transplant for the father from a cadaver so that he can continue caring for his son.
Commerce and organ donation are contradictory concepts; "doing business" with human organs conflicts with fundamental spiritual and ethical values. Recently, learned scholars, halakhists, philosophers, and ethicists have discussed the reasons for prohibiting the sale of human organs. For example, it is customary to pay for the donation of blood to a blood bank, because the body replenishes the blood, and the donation does not endanger the donor. The same is true for donations of bone marrow. But giving up a kidney in exchange for money raises grave doubts and difficulties. The essential question here is: Where will the "slippery slope" end? Societal, psychological, and economic pressures may bring us to an "organ market" of "spare parts," and to a situation where the bodies of the poor become "supply depots" for the rich. The actuality is that the rich will not sell any of their bodily organs but the poor – even when they have no relationship with the donee – are likely to sell their organs to rescue themselves from poverty and need. This is an ominous prospect from the perspective of human dignity and value. Therefore, as a general rule, we should avoid setting foot on this slippery slope, and any allegedly exceptional circumstances should be evaluated case by case and with great care (Elon, ibid.).
In the year 2003 Knesset Member Zahava Gal-On presented a draft bill to prevent trafficking in organs, known as the "Bill to Outlaw Trafficking in Organs."
The Anatomy and Pathology Law, 5713 – 1953 defines the ways in which organs may be removed from a cadaver for transplant purposes:
6. Anatomical-pathological operations
(a) A physician may operate on a body in order to ascertain the cause of death or to use a part thereof for the curative treatment of a person if it has been confirmed by a certificate signed by three physicians authorized on that behalf in accordance with the regulations that the operation serves one of the said purposes.
(b) (1) The body of a deceased person shall not be dissected before the expiration of five hours after notice of the death is given to a relative. Sabbaths and Jewish holidays or, in the case of a non-Jewish relative, the Sabbaths and holidays of his community, shall not be included in the count of the said five hours.
(2) Notwithstanding the provisions of paragraph (1), where the dissection is required in order to use a part of the body for the curative treatment of a person, reasonable notice to such effect shall be given to a relative before the dissection.
(c) (1) Where the need to use a part of the body of a deceased person to save a person's life becomes apparent, the period referred to in subsection (b) shall be replaced by the period up to the latest time at which it is possible to remove the part from the body for use as aforesaid. If notice under subsection (b) cannot be given by the said time, owing to the impossibility of locating a relative, a dissection under this subsection may be performed provided that a reasonable attempt to give notice has been made.
(2) Without prejudice to the generality of the provisions of paragraph (1), the use of the cornea of a deceased person for a transplant to save a person from blindness, the use of a part of the body of a deceased person to prevent a defect of vision or hearing, and the use of a kidney or of skin tissues of a deceased person for a transplant to save a person's life are uses of parts of a body for the saving of a life.
(a) Where a deceased person has left any relatives, his body shall not be dissected under section 6 – except under circumstances referred to in section 6(c) – unless the following two requirements are also met:
(1) the spouse or, in the absence of a spouse, the children or, in the absence of children, the parents or, in the absence of parents, a brother or sister of the deceased has or have consented;
(2) no relative of the same degree of relationship as a consenting relative, and no relative of the degree which, in the circumstances of the case, is next in the order of degrees appearing in paragraph (1), have objected in writing.
(b) Where the person in his lifetime objected in writing to his body being dissected, then, notwithstanding the provisions of section 6 or any consent of a relative under subsection (a), the dissection shall not be performed.
(c) Where the person consented to his body being dissected, it may be dissected notwithstanding any objection by a relative.
(d) In the circumstances referred to in section 6(c), a body may be dissected unless the person in his lifetime objected in writing to his body being dissected or unless his spouse or one of his parents or children objects thereto in writing.
(e) Where the person has left no relatives, his body shall not be dissected unless he consented thereto in his lifetime.
(f) The provisions of this section shall be in addition to those of section 6.
The law provides (§6d), that "the provisions of section 6a shall not apply in wartime or at the time of a large scale terrorist act or an accident or disaster causing numerous casualties." Furthermore, Section 6a established a penalty of three years' imprisonment for a person transgressing the provisions of the law.
An additional aspect of organ transplants from a dead body dealt with in Israeli case law is the determination of the moment of death. The question of the moment of death was dealt with by the Israeli courts in the context of criminal law. In one of the cases the court was required to determine responsibility for the death of a person who was shot in the head, mortally wounded, and rushed to hospital, where the doctors succeeded in saving his life by connecting him up to the life-support machines. With his family's consent, the victim was subsequently disconnected from these devices. The question arises: Who was responsible for his death – the gunman or the doctor? Did the victim's disconnection from the life-support system sever the causal connection between the victim's death and the murderer's act?
Another case in which the same question arose was the Belker case. In 1986 an indictment was submitted against Yehezkel Belker for attacking his wife, throwing her out of the window of their fourth floor apartment, and causing her mortal injury. The woman was rushed to hospital, and when efforts to save her had all failed, her death was established on the basis of brain death. The deceased remained connected to the life-support machines until her family living abroad consented to the donation of her organs. When her husband was indicted for murder, he claimed that the woman's death was not the result of his attack, but rather, was the direct result of her being disconnected from the respiratory machine by the medical staff. Ruling on this claim required the court to address the question of the moment of death, and to decide as to whether the medical determination of brain death should also be regarded as a legal determination. The District Court ruled that brain death is death for all intents and purposes, on which basis it convicted him of murder. The husband appealed to the Supreme Court (Cr. A. 341/82) 42 (1) Nathan b. Yehezkel Belker v. State of Israelpd 1) which ruled (per Justice Beiski) that, in accordance with the accepted rules for determination of death (as established by the Harvard Committee), and provided that the determination of death was made by an independent medical team not belonging to the team performing the transplant and/or the team actually treating the patient, a determination of brain death is considered as death for all intents and purposes. In such a case a death certificate may be issued and medical treatment terminated. Such a determination of death is in turn valid for all other legal or social purposes, including an indictment for murder. The Court recommended that the issue of determination of death be regulated by legislation. In this context, Justice Strasbourg-Cohen's comments bear mention. She ruled that, even had the trial court adopted the previous criterion of cardiac death, the doctor's action in disconnecting the life-support machines would not have severed the causal connection between the act of the accused and the death of the deceased. Absent the actions of the accused, the final result would not have occurred, and had the doctors not interfered, the death would have occurred immediately following the attack.
The Ministry of Health issued a Director-General circular, updated several times, stipulating provisions for the determination of brain death. The circular was published in 1996 (Director-General Circular 10/96; the most recent as of 2005), the first section of which cites portions of the Supreme Court judgment with respect to the validity of brain death determination. The second section provides guidelines for the categories of examinations to be conducted for diagnosing death. The circular stipulates a series of preconditions, necessary conditions, and auxiliary tests for determining brain death.
Artificial insemination is the medical procedure whereby sperm is injected into the vagina or womb of the woman without the act of sexual intercourse. A distinction is made between three categories of artificial insemination, in accordance with the source of the sperm: (1) husband insemination – where the husband contributes the sperm; (2) donor insemination – where a man who is not the wife's husband is the donor or where the sperm is taken from a sperm bank; and (3) mixed insemination, using a mixture of the husband's sperm with that of a donor. The processes of fertilization in the woman's womb, pregnancy, and birth, continue naturally after the artificial insemination, as in any normal impregnation. Artificial insemination can only take place under conditions in which there is no defect in the woman's fertility, either anatomically or physiologically (see below: fertilization outside the body – In Vitro Fertilization). Rabbi Eliezer Waldenberg begins his lengthy responsum on this topic with the following comments:
Physicians have recently invented a new method by which a woman can become pregnant via artificial means, without sexual intercourse. Sperm is obtained from a donor, and when a woman desires to become pregnant without intercourse she is inseminated artificially, becomes pregnant, and gives birth. This method is most often used when a married couple is unable to have children due to an impediment on the part of the husband. While they do not wish to get divorced, the wife desires to have a child. In these circumstances, some physicians perform artificial insemination so that the wife may become pregnant and give birth. The question asked is whether such a procedure is permissible under Jewish law, and what is the status of the resulting child.
In considering the procedure of artificial insemination, modern halakhists refer to aggadic precedents indicating that the talmudic and mishnaic Sages were aware of the possibilities of impregnation other than by way of natural means. Inter alia they cite the aggadah of the birth of Ben-Sira from Jeremiah's daughter, who conceived from her father's seed that remained in the bath in which she bathed (see: Ḥelkat Meḥokek, eh 1:8; Mishneh la-Melekh on Yad, Ishut 15:4; Hidda, Birkei Yosef (vol. 2, 1989), eh 1:14; Rabbi D. Bardugo, Resp. Mishpatim Yesharim (1891), vol. 1, no. 396).
We already mentioned above that issues of halakhah and medicine generally pose a plethora of moral and halakhic questions, particularly where they involve technological innovations. For this reason, halakhic discussion of these issues is not confined to conceptual issues alone, but also encompass policy considerations. One such consideration relates to the uncertainty surrounding the issue of the lineage (yiḥus), of the child born as a result of using donor sperm. This uncertainty conflicts with the basic halakhic aspiration for certainty in matters of lineage, i.e., certainty regarding the family they belong to (see Rashi, Yevamot 42a, s.v.u-le-zarakha aḥarekha). There are also several other general policy issues, transcending the problematics of lineage. The morally-based questions and fears that have typified the dialogue on these questions throughout the world are of equal concern to modern halakhists. They too are apprehensive about the danger of crossing of traditional borders, coming in the wake of scientific progress. For example, it has been stated that bringing children into the world should be the result of spousal relations involving marital love and intimacy, and not of mechanical laboratory techniques (see P. Shiffman, Dinei Mishpaḥah be-Yisra'el, 2 (1989), 105; E. Jacobovitz, Ha-Refu'ah ve-ha-Yahadut (1966), 235). In this context, the following comments of Rabbi E. Waldenberg are germane:
And especially when we have already read that the final result of test-tube fertilization is that sooner or later it will lead to the creation of a test-tube baby, i.e., the entire pregnancy will take place and terminate outside the woman's body, in the test tube itself, by way of simulating the conditions inside the womb; and then, by means of an astonishing procedure known as cloning, human beings will be produced by the implantation or transpondation of the nucleus from a mature cell into an enucleated human egg, after which the reproductive process of the regular cell operates and continues to develop into a embryo, and this is the name that they give to a complete biological creation, in accordance with certain previously determined parameters to reproduce the specific characteristics desired by its creators. And if this happens – can such infants be called "offspring," with full lineage to their progenitors who wish them to be considered their genetic offspring? For in addition to the abnormal form of production and bringing children into the world, it also causes the destruction and loss of the human image, and chaos will reign with respect to the whole field of procreation, which will become a laboratory devoid of any humaneness. This problem has already been predicted by scientists, who have expressed their deep anxiety over the anticipated scenarios – a new generation will emerge and all those witnessing it will exclaim "new ones have come, who were unimagined by their forefathers, [so that we] see creatures of this kind, almost without free choice, and human form."
Various posekim take the view that the husband is forbidden to emit semen for the purpose of inseminating his wife, due to the prohibition of "destruction of seed," because at the time of masturbating for the purpose of ejaculating the semen, its emission is in vain, and the fact that the physician subsequently uses the semen for fertilizing the woman is to no avail. Furthermore, there is a possibility that the woman will not be fertilized by that semen, and as a result the semen will retroactively transpire to have been emitted in vein. However, the predominant halakhic opinion is that the procedure does not involve "destruction of seed" when emitted by the husband for purposes of fertilization, because the procedure is a remedial one, for purposes of a mitzvah, and it does not matter whether the end is attained by natural means or otherwise. At the same time, a number of limitations were imposed: the permission is limited to parties who have been childless for a period of ten years, and who in the absence of fertilization are liable to divorce. Two physicians must decide that the procedure is effective, i.e., that the woman does not suffer from any fertility problem and that there is a reasonable chance that the husband's sperm will succeed in impregnating the wife; the doctors must take special care not to exchange the husband's sperm for another person's sperm. In the event that fertilization is prevented due to early ovulation of the woman, as a result of which she is unable to purify herself from her niddah status at the appropriate time to allow fertilization by natural means, there are opinions that permit husband artificial insemination. The posekim also debated the question of whether the husband fulfills the commandment of procreation in the case of artificial insemination. The accepted view is that the husband does so, because the commandment is not dependent on the act of intercourse, but rather on the result of the birth of a live fetus.
A different set of problems arises in Jewish law regarding artificial insemination from a donor other than the husband. The central question is whether artificial insemination is permitted at all with the sperm of a man other than the husband, and if not, are there any circumstances in which it is permitted, and subject to what limitations. Is the woman thereafter permitted or forbidden to her husband, as in the case of an adulterous wife, and what is the lineage and the status of the child?
While all posekim agree that de jure there should be no insemination even from a non-Jewish donor, there are nevertheless those who permit it in the case of sad, despairing parents who yearn for a child. A child born under these circumstances is a Jew for all intents and purposes.
There is broad halakhic consensus that artificial insemination of a woman from the sperm of a Jewish donor is prohibited. A variety of reasons are given for this prohibition: some moralistic, based on the classic model of the family in the Jewish philosophy, and others halakhic, related to the uncertainty of the identity of the donor-father. At the same time, the halakhists dispute whether a married woman impregnated by a Jewish donor is prohibited to her husband. One view is that a woman artificially impregnated by semen of a donor is not prohibited to her husband, because there was no act of forbidden intercourse involved, and Torah law only forbids a woman to her husband and to her lover if an act of forbidden sexual relations was involved. Among the supporters of this view were the Sephardi chief rabbi, Rabbi Ouziel (Resp. Mishpetei Uziel, eh 19); Rabbi M. Feinstein (Resp. Iggerot Moshe, eh, nos. 10, 11, 71); Rabbi Y. Breisch (Resp. Ḥelkat Ya'akov, vol. 1, no. 24); Rabbi E.Y. Waldenberg (Resp. Ẓiẓ Eli'ezer, vol. 3, no. 24); Rabbi Y.Y. Weinberg (Resp. Seridei Esh, 6), and other leading aḥaronim. The position prohibiting the wife to her husband is based on the interpretation of the biblical verse, "you shall not lie carnally with your neighbor's wife," as extending to any implantation of semen in the woman's womb. Among the proponents of this view are R. Jonathan Eybeschutz (Benei Ahuvah, Ishut, 15); Rabbi J.L. Zirelson (Resp. Ma'arkhei Lev, 73); and the rabbi of Satmar, R. Yoel Teitelbaum ("Teshuva bi-devar Hazra'ah Melakhutit be-Zera Ish Aḥer," in: Ha-Ma'or, 16:9–10 (Sept.–Oct. 1964), and others.
The posekim also disputed the question as to whether the child was regarded as the child of the sperm donor, in which case he would be prohibited against marrying members of the sperm donor's family, he would be the donor's heir, and the donor would be regarded as having fulfilled the commandment of procreation. Some ruled that the child would be regarded as his real son, while others argued that this ruling only applied for purposes of stringency and not for leniency, i.e., that the child was forbidden from marrying, for example, the daughter of the sperm donor, but does not inherit him. The posekim were divided over whether, in the event of his marrying the daughter of the donor, his offspring would in turn be considered a mamzer.
Where the donor's identity is unknown – e.g., when taken from a sperm bank – it has been suggested that, even according to the view that the offspring of artificial insemination is not a mamzer, in such a case he would be classified as a shetuki ("undisclosed"); see: *Mamzer/ shetuki). Some posekim wrote that, in the case where the sperm comes from outside of Israel, where there is a non-Jewish majority, it may be presumed that the sperm belongs to a non-Jew and therefore the offspring is legitimate.
Where the sperm is mixed with that of the husband, the posekim wrote that it should be regarded as if it was exclusively the outside donor's sperm, because the husband's sperm is inactive and the mixture is intended to placate the husband psychologically. In such a case, the husband is also regarded as having transgressed the prohibition of "destruction of seed."
The Israeli legislator enacted the Public Health (Sperm Bank) Regulations, 5739 – 1979, under which "No person shall manage a sperm bank, or be engaged therein, unless that sperm bank was recognized by the director, and in accordance with the conditions of recognition. The director shall not recognize a sperm bank unless it is managed in a hospital and as a part thereof. For purposes of the regulation, "manager" has the same definition as in section 1 of the Public Health Regulations, viz. the director general of the Ministry of Health, or person empowered by the director to enact these regulations." Following Supreme Court consideration of the matter, a clause limiting the rights of unmarried women to receive treatment for in vitro insemination treatment was repealed, so that today, subject to certain conditions, an unmarried woman is entitled to receive a sperm donation.
The first decision on this subject was given by the Jerusalem Rabbinical Court on November 6, 1975, and published by the avbet din, Rabbi Eliezer Waldenberg (presiding with Rabbis Y. Cohen and Y. Attiah) in his book Ẓiẓ Eli'ezer, vol. 3, no. 97. The litigants in the regional rabbinical court were a childless couple. Without her husband's knowledge, the wife had been treated by a doctor who performed an artificial insemination procedure from a sperm bank. The treatment led to positive results, and the woman became pregnant from foreign donor sperm. Upon becoming aware of this, the husband filed for divorce. The woman conceded the truth of his claims, but claimed in her defense that a medical examination had confirmed that the husband was sterile, and unable to father a child. She had requested that her husband agree to adoption, but had received a negative answer. Wanting a child of her own, she had taken a path that enabled her to become pregnant. The Bet Din was confronted with the legal question as to whether the woman's consent to be artificially inseminated from donor sperm without her husband's knowledge provided grounds for divorce, even though it had not yet ruled on the question of whether the wife was forbidden to her husband, having become impregnated in that manner. Another question to be decided was the legal import of the husband's refusal to adopt, against the background of his infertility. The Bet Din Court accepted the husband's claim, compelled the wife to receive a get, and further ruled that the woman had forfeited her kettubah. Following is an excerpt from the judgment:
In consenting to the sperm of another man to be injected into her, the woman betrayed both her husband and God, and she is therefore obligated to receive a get from her husband. She cannot stipulate any financial conditions prior to the giving of the get, nor request that her husband transfer the apartment currently under both of their names into her name alone.
In explaining the reasons for its decision, the head of the Rabbinical Court (av bet din), presented a comprehensive excursus on the issue of artificial insemination and its halakhic ramifications, concluding that there could be no greater abomination. Notwithstanding the opinion that the wife was not forbidden to her husband when she resorted to this method with her husband's consent, it was not disputed that the wife was obliged to receive a get when the treatment and the pregnancy were without his knowledge. The upshot of this ruling was that the wife had no recourse to the defense plea that her husband had refused her request to adopt despite his proven infertility. Because: "if she required a solution to the problem then she had the opportunity of coming to the Rabbinical Court and making that claim, and to request that her husband be compelled to give her a get pitturin, and she would have found an attentive ear." The Rabbinical Court thus took a positive view of the defendant's desire for a child of her own, to the extent of being willing to compel her husband to divorce her, had she so requested. But, "there is a vast chasm between this, and the commission of an act 'that undermines the very foundations of the family unit between her and her husband, and which the halakhic authorities had unanimously condemned.'" According to the Bet Din the wife's yearning for children did not ameliorate the gravity of her action, which was all the more severe in that she had concealed it from her husband. Regarding that point, it added the following remarks in its decision:
At all events, should the husband desire to give her a get for that reason – namely, that she had undergone artificial insemination without his knowledge, even though she had not become pregnant thereby – the wife should be compelled to receive a get pitturin, both because of the halakhic dispute in this matter as stated, and furthermore, because the actual commission of this abomination in her body without her husband's knowledge places her in the category of a woman who has transgressed Mosaic law and Jewish practice, and the law applying to her should therefore be the same… Moreover, there is also a view that the act itself makes her prohibited to her husband, and the husband can therefore claim, "I choose to abide by that opinion," and he cannot be forced to give a kettubah.
The last (as of 2005) Rabbinical Court decision on the matter was also given in the Regional Rabbinical Court of Haifa, on 6th Av, 5737 – 1977. The parties were a husband and wife with a four-year-old mentally retarded child, diagnosed as having a particularly low intelligence level. The child was born following the woman undergoing artificial insemination from donor sperm. The husband consented to this treatment due to the fact, not denied by the parties, that he was unable to fertilize the wife. Both parties petitioned the Bet Din. The wife requested the Bet Din to order the husband to pay maintenance for herself and the child, asking for a high sum, in accordance with the rule olah imo (lit., "she goes up with him") – i.e. that her maintenance increases by reason of his high earnings, and by reason of the treatment of the retarded child who required special equipment. The husband filed for a get, claiming that his wife's act was a ground for divorce, because the artificial insemination from the sperm of a donor was tantamount to an act of sexual license, making the wife forbidden to her husband. As such, there were grounds for exempting him from her maintenance, and he was therefore also exempt from the obligation of child support. The Bet Din was requested to rule on the question of whether the defendant could be compelled to pay child support when it was not disputed that the plaintiff's (wife) child was not the defendant's (father) child. The question arose: What is the legal significance of the defendant's consent to this medical procedure? The Bet Din in the first instance dismissed the husband's divorce suit, obligating him to pay maintenance for the wife and child support for the child, whose treatment necessitated huge expenses. Explaining the reasons for its decision, the Bet Din expressed its opinion:
…in support of the opinion that denies even a shadow of illicit sex in the act of artificial insemination, which might have provided a ground for divorce or even the forfeiture of maintenance. And as the foremost decisors of our generation have ruled […] the exemption from maintenance applies – when the insemination was performed in defiance of the husband's will and without his being aware of it. From this it may be inferred quite simply that, if it was done with his consent, and he was aware of it – he is liable to support the child born from that insemination.
Regarding the wife's claim for maintenance, the Bet Din added another reason:
Since he agreed to this procedure, he assumes all of the obligations arising therefrom, according to the law of a guarantor, and there is no doubt that under these circumstances expression is given to all of the conditions that would compel a guarantor (even though it could be claimed that he assumed an undertaking for normal offspring, and that his undertaking was limited to those circumstances, but since he did not limit his undertaking he should also be liable for irregular expenses which are occasioned by the offspring).
Does this decision support the conclusion that, in the Bet Din's opinion, artificial insemination from a donor with the husband's consent does not constitute illicit sexual relations which would prohibit the wife to her husband and obligate her to receive a get? This would seem to be the reasonable conclusion, subject to some degree of reservation based on the fact that the decision does not indicate whether the Bet Din in principle negates the very act of artificial insemination, or whether under the special circumstances of the case, in which the husband consented to the treatment, it is removed from the category of illicit sexual relations or, in the words of the Bet Din "denies even a shadow of illicit sex in the act of artificial insemination." At all events, in our opinion, the Bet Din does not view the aforementioned act as constituting grounds for divorce, because the wife was not prohibited to her husband as is a woman who is unfaithful to the husband while married to him. However, since the Bet Din did not see how it could oblige the defendant to support a child who was not his own, based on the law of child support, it was forced to obligate him by force of the law of a guarantor. It therefore emerges that the husband's consent has practical significance with respect to maintenance. In other words, his consent is tantamount to an implicit assumption of liability for all of the financial consequences of the act of insemination.
An interesting comparison may be drawn between the aforementioned rulings of the rabbinical courts and the ruling of the Israeli Supreme Court. In the sole decision given to date in a civil court concerning the issue of artificial insemination from the sperm of a donor the husband's consent to the treatment was one of the main foundations. The litigants were a married couple that had remained childless after several years of marriage, due to a defect in the husband's ability to produce functional sperm cells, and a disturbance in the woman's ovulation process. With the husband's consent, the woman underwent artificial insemination, which was successful, and the woman gave birth to a daughter. About one year later disputes erupted between the spouses and, after failing to reconcile their differences, the woman filed a maintenance action against her husband, on behalf of herself and for her daughter. In the course of the trial, the couple was divorced, and the court was thus left to adjudicate the daughter's child support suit against her father. The District Court obligated the father to pay child support, and the father appealed the decision to the Supreme Court (caSalma v. Salma, 448/79, 34 (2) pd 778). President Y. Kahn wrote the judgment, in which he accepted the "additional reason" invoked by the District Court, and which was the basis of the judge's decision to obligate the father to pay child support. He wrote as follows:
By agreeing to his wife undergoing artificial fertilization, the defendant agreed to the addition of another person to his family… the defendant's consent should be regarded as including an implicit undertaking to support the minor that would be born as a result of the fertilization…When a person agrees to his wife being fertilized by way of artificial fertilization, he agrees and undertakes by implication both to his wife and for the benefit of the child to be born, to support and feed the minor to be born from that fertilization.
Two things may be inferred from this decision: (a) When the husband consents to his wife's fertilization by artificial insemination from the sperm of a donor, he undertakes to bear all of the consequent costs – financial and otherwise – with respect to the child to be born from that act; (2) The husband's undertaking to his wife for child support, which flows from his consent to this form of treatment, is unrelated to the legal connection that existed at the time of the suit, or thereafter, between the child's mother and the defendant.
In a recent ruling handed down by the Israeli Supreme Court (hc 2458/01 Mishpaḥah Ḥadashah v. Committee for Approving Surrogate Agreements (not published)) on the topic of in vitro fertilization (see below), Justice Englard referred to the position of Jewish law regarding this issue:
When dealing with a case of a donor to a married woman, importance attaches to the donor's identity [and the] the distinction between a Jewish donor and a non-Jewish donor. According to all opinions, it is halakhically prohibited to use, de jure, the sperm of another Jew. In principle, sperm insemination of a Jewish donor who is not the husband of the married woman is regarded as disgraceful and an abomination. See Rabbi E.Y. Waldenberg, Resp. Ẓiẓ Eli'ezer, vol. 3, no. 27; Rabbi Y. Breisch, Resp. Ḥelkat Ya'akov (1992), eh 12; Rabbi Y.Y. Weinberg, Resp. Seridei Eish (1999), vol. 1, no. 79. Halakhically speaking, certain posekim take the view that the offspring from donor sperm is a mamzer for all intents and purposes. Others rule that he is of doubtful mamzer status. There are also those who rule that, in the absence of intimate relations, i.e., without prohibited intercourse, the offspring is categorically not a mamzer. For a discussion of the opinions of the first view, see, e.g., Rabbi E.Y. Waldenberg, Resp. Ẓiẓ Eli'ezer (1967), vol. 9, no. 51; Resp. Yaskil Avdi, ibid. For the second view, see Rabbi S.Z. Auerbach, "Hazra'ah Melakhutit," in: Noam, 1 (1958), 145, 165. For the third view, see Rabbi Moses Feinstein, Resp. Iggerot Moshe (1961), eh, vol. 1, no. 61; Resp. Ḥelkat Yaakov, ibid. For additional sources, see Rabbi D.M. Kroizer, "Hazra'ah Melakhutit," in: Noam, 1 (1958), pp. 111, 119f.
There are authorities who hold that, where the donor is unknown, the offspring is a "shetuki" regarding whom there is also a doubt regarding mamzerut. See Resp. Seridei Eish, ibid.; Resp. Ḥelkat Ya'akov, ibid., notes to eh, 20, n. 11.
Another grave concern regarding the anonymous donor pertains to the possibility of a future marriage of a brother and sister. See Resp. Iggerot Moshe, ibid.; Resp. Seridei Eish, vol. 1, no. 69; Resp. Ẓiẓ Eli'ezer (1951), vol. 3, no. 27.
Regarding a non-Jewish anonymous donor: All of the posekim agree that ex ante his sperm should not be used, for the act is disgraceful. Nevertheless, in this case there is no halakhic fear of mamzerut or marriage of a brother and sister. Consequently, the procedure of artificial insemination was permitted for cases in which the parents are in a state of acute distress and greatly desire a child. For this view, see the aforementioned article Resp. Iggerot Moshe, ibid., and the article cited of Rabbi S.Z. Auerbach. For the view that prohibits this treatment under all circumstances, see: Resp. Ḥelkat Ya'akov, ibid.,eh, no. 14; Rabbi Y.Y. Weiss, Resp. Minḥat Yiẓḥak (1939), vol. 4, no. 5; cf. Resp. Seridei Esh (1966), vol. 3, no. 5. In the case of an unmarried woman, while there is no fear of mamzerut, there is still the fear of a sister and brother marrying, and the offspring being a shetuki. A compilation of the various problems raised in the letters of the posekim appears in A. Steinberg, Enẓiklopedyah Hilkhatit Refu'it (1988), entry: Hazra'ah Melakhutit, pp. 148–61.
in vitro fertilization (surrogate motherhood)
In vitro fertilization is the act of fertilizing the woman's eggs outside the woman's body by means of sperm cells and, after fertilization, returning the fertilized embryo to the woman's womb, or freezing the embryo for the purpose of returning it at a later stage. The offspring of that procedure is popularly known as a "test-tube" baby, referring to the initial stage of fertilization in the test-tube. A woman carrying an embryo for another woman, with the intention of giving her the child born to that woman, is called a surrogate or host mother. All of the scientific, halakhic, moral, and legal issues pertaining to husband or donor sperm required for fertilizing an egg in a Petri dish are identical to those arising in the context of artificial insemination (see above Artificial Insemination). This entry discusses those unique aspects of in vitro fertilization that do not exist in artificial insemination.
The halakhic discussion in the entry on in vitro fertilization is introduced by Prof. Rabbi Abraham Steinberg with the following statement:
Notwithstanding the immense medical-technological progress in the field of in vitro fertilization, as in the field of genetic engineering, none of this contradicts the basic foundations of Judaism, and the belief in the creation of the world and of humankind exclusively by the Almighty. In all these procedures, the creation involves making "something from something," and there is no possibility of creating "something from nothing." ….The Jewish outlook does not accept the conception that demands the preservation of the law of nature, and therefore eschews human and technological interference in natural processes. To the contrary, humankind is a partner to the Almighty in the improvement of the world in all realms.
Several halakhic authorities permit in vitro fertilization between a husband and wife provided that all precautions are taken to prevent the mixing of the husband's sperm with alien sperm, and provided that the couple have no other possibility of building their family. According to the permitting authorities (see inter alia, Nishmat Avraham, eh, 1.e.3) a "test-tube" baby for all intents and purposes continues his parents' lineage, and halakhically this procedure is deemed identical to artificial insemination. Accordingly, those who permit artificial insemination between husband and wife also permit in vitro fertilization. However, certain halakhic authorities prohibited this procedure, based on moral considerations: for example, the fear that it would create reproductive-societal havoc, and the fear of mixing up sperm and the consequent defiling of the sanctity and purity of lineage in the Jewish people. There are also those who prohibited it on halakhic grounds, even between a husband and wife. One explanation for the distinction between in vitro fertilization and artificial insemination is that in the latter the sperm is injected directly into the woman's womb, so that the procedure does not involve destruction of seed should the procedure be unsuccessful, whereas in the case of in vitro fertilization the seed is placed in a Petri dish, so that if the fertilization is unsuccessful, it is considered as seed destruction. A second explanation is that the need for artificial insemination is generally the result of the husband's infertility and according to certain views, the prohibition of destruction of seed does not apply to a sterile male. In in vitro fertilization, the problem is generally the woman's, and therefore the prohibition on seed destruction is valid regarding the husband. Those authorities permitting it claim that the prohibition of seed destruction does not apply when performed for the purpose of bringing a child into the world, and that even in natural intercourse some of the sperm is spilt and lost. Therefore, in in vitro fertilization, since it is intended to bring a child into the world it is not considered as being a vain emission of sperm.
The very act of in vitro fertilization using a donor egg involves several prohibitions, the gravest of which is the fear of social havoc, confusion of lineage, and the possibility of incest between the egg-donor's children. Certain stringent authorities also wrote that the prohibition is not on the act per se, but that it is seen as one that ought to be avoided ab initio. In any event, every effort must be made to ascertain the identity of the donor, and to enact whatever regulations are required to avoid any mishaps in this regard.
Where the woman donated the egg, which was subsequently fertilized in a test tube, the fertilized embryo then being implanted in the womb of another woman, the question of the definition of maternity arises. Whom does the halakhah view as the child's mother: the biological mother (egg donor) or the host mother, in whose womb the embryo develops?
Some posekim take the view that the genetic mother has the status of mother in terms of halakhah (see I. Warhaftig, "Kevi'at Imahut – be-Shulei ha-Devarim," in: Tehumin, 5 (1984), 268). Nevertheless, the majority view is that halakhically, the host mother is considered as the mother (see Rabbi Z.N. Goldenberg, "Yiḥus Imahut be-Hashtalat Ubar be-Rehem shel Aheret, ibid., 248; Ziẓ Eli'ezer (1992), vol. 19, no. 40). Finally, there are some authorities who contend that both women are seen as related to the progeny, specifically for purposes of definition of incestuous relations (see Z. Lev, "Tinok Mavhenah – Ma'amad ha-Em ha-Pundeka'it," in: Emek Halakhah, 2 (1989), 163, 169).
The view of most posekim, that the surrogate mother is also considered the mother from a halakhic perspective, relies inter alia on an ancient aggadic tradition that this kind of situation occurred between the matriarchs Rachel and Leah in their respective pregnancies with Dinah and Joseph. According to the tradition, in her final pregnancy, Jacob's wife Leah was carrying a son in her womb. At that time Jacob had already fathered ten sons: six from Leah's womb, two from Bilhah, and two from Zilpah. This meant that, had she given birth to the son in her womb, he would have been the 11th son of Jacob (who was predestined to have a total of 12 sons), and Rachel would only have been able to give birth to one son. Leah did not want Rachel to have only one son, which would have reduced her stature to below that of the handmaids, who had two each, so she prayed that she not give birth to the son, so that Rachel would be able to give birth to the two sons who were still to be born. According to one version of the aggadah, the embryo in Leah's womb turned into a girl (Ber. 60a), while according to another version, the switch of gender was attained by another method. After praying that she not be the one to give birth to the male child in her womb, the sisters' embryos were switched: the male in Leah's womb going into Rachel's womb, and the female in Rachel's womb to Leah (see Midrash Sekhel Tov (ed. Buber), Gen. 30, s.v.ve-ahar yaledah).
In 1987 special regulations concerning in vitro fertilization were enacted – The National Health (In Vitro Fertilization) Law 5727 – 1987. In 1996 the State of Israel enacted the Agreements Relating to the Carrying of Embryos (Approval of the Agreements and Status of Offspring) Law, regulating the subject of surrogacy. The Israel Supreme Court (hc 2458/01 Mishpaḥah Ḥadasha v. the Approvals Committee for Surrogacy Agreements) (not yet published), addressed the question of whether these legislative arrangements for carrying embryos, which prima facie do not apply to a woman without a male spouse, are not discriminative. The court did not rule on the matter, referring it back to the Legislature.
The Israeli Supreme Court delivered two long and detailed rulings on the subject of in vitro fertilization in general, and specifically, on the right of parenthood (ca 5587/93 Daniel Nahmaniv. Ruthy Nahmani et al., 50 (4) pd 661). After a number of years of childless marriage, and after Ruthy Nahmani had undergone a total hysterectomy, rendering her unable to become pregnant by natural means, the couple decided to bring a child into the world by way of in vitro fertilization. The eggs taken from Ruthy's womb were fertilized by the sperm of her husband, Danny, and frozen in the hospital. The couple contracted with an American institution for the purpose of locating a surrogate mother who would carry their child. However, prior to reaching that stage, Danny left their domestic home, went to live with another woman, created a new family, and fathered a daughter while still legally married to Ruthy, who refused to accept a divorce. Ruthy turned to the hospital with the request to be given the fertilized eggs in order to continue the surrogacy proceeding. When the hospital refused her request, she applied to the Haifa District Court, which granted her request. In its first adjudication on the appeal against the District Court's decision, the Israeli Supreme Court accepted Danny Nahmani's appeal in a majority decision. In a further hearing (cfh 2401 /95 Ruthy Nahmani v. Danny Nahmani et al, 50 (4) pd 661) the previous decision was reversed and Ruthy Nahmani's appeal was accepted in a majority decision.
Regarding the issue of abortion in Jewish law, see separate entry *Abortion.
physician's duties: M. Elon, Jewish Law: Cases and Materials (1999), 591–607, ch. 30; idem, "Medicine, Halakhah, and Law: The Values of a Jewish and Democratic State," in: Jewish Medical Ethics (2004), v–xxxviii; ca 506/88 Yael Shefer, Minor, v. State of Israel, 48 (1) pd 87; A. Steinberg (ed.), Enẓiklopedyah Hilkhatit Refu'it (1988–94), 1:70–74, s.v. "Bekhirah Ḥofshit," s.v.Gilui Meda la-Ḥoleh; s.v.Haskamah mi-Da'at, 2:1–47; s.v. "Ḥoleh"; 2:437–67, 4:273–99, s.v. "Ne'emanut ha-Rofe"; 4:613–42, s.v. "Sodiut Refu'it";6:688–122, s.v. "Rofe"; 6:624–45, s.v. "Torat ha-Musar ha-Yehudi." euthanasia: M. Elon, Jewish Law: Cases and Materials (1999), 637–95, ch. 33; idem, "Medicine, Halakhah and Law: The Values of a Jewish and Democratic State," in: Jewish Medical Ethics (2004), v–xxxvii; J.D. Bleich, Judaism and Healing (1981, 2002), 134–45; H.D. Halevi, "Nituk Ḥoleh she-Afsu Sikuyav Liḥyot mi-Mekhonat Hanshamah Melakhutit," in: Teḥumin, 2 (1981), 297; Z.N. Goldberg and L.Y. Halperin, Emek ha-Halakhah – Assia, 64ff.; A. Steinberg (ed.), in: Enẓiklopedyah Hilkhatit Refu'it (1994), 4:343–469, s.v. "Noteh Lamut"; D. Sinclair (ed.), Jewish Biomedical Law (Jewish Law Association Studies 15; 2005). organ transplantation: M. Elon, Jewish Law: Cases and Materials (1999), 697–731, ch. 34; A. Steinberg, Enẓiklopedyah Hilkhatit Refu'it (1994), 2:244–191, s.v. "Hashtalat Evarim"; idem, ibid., 6:18–49, s.v. "Rega ha-Mavet"; la 184/87, 698/96 Attorney General v. Anon., 42 (2) pd 661; D. Sinclair (ed.), Jewish Biomedical Law (Jewish Law Association Studies 15; 2005). artificial insemination: M. Elon, Jewish Law: Cases and Materials (1999), 625–35, ch. 32; A. Steinberg (ed.), Enẓiklopedyah Hilkhatit Refu'it (1988), s.v. "Hazra'ah Melakhutit," 148–61; A. Walkin, Resp. Zekan Aharon, 2:97; Y. Green, Hazra'ah Melakhutit bi-Pesika u-ve-Ḥakikat Medinat Yisrael; D. Sinclair (ed.), Jewish Biomedical Law (Jewish Law Association Studies 15; 2005). in vitro fertilization: A. Steinberg (ed.), Enẓiklopedyah Hilkhatit Refuit, (1991), 2:148–61, s.v. "Hafraya Hutẓ Gufi": fh 2401/95 (ca 5587/93) Daniel Nahmani v. Ruthy Nahmani et al., 50 (4) pd 661; cfh 2401/95 Ruthy Nahmani v. Danny Nahmani et al., 50 (4) pd 661; hc 2458/01 Mishpaḥah Ḥadashah v. the Approvals Committee for Surrogacy Agreements (not yet published); D. Sinclair, Jewish Biomedical Law (Jewish Law Association Studies 15; 2005).
[Menachem Elon (2nd ed.)]