Judaism, Bioethics in
JUDAISM, BIOETHICS IN•••
As a specific discipline, bioethics is as new to Judaism as it is to human culture in general. To be sure, every cultural tradition throughout history has developed various ethical norms or rules to govern the different areas of human action. But it is only with the great innovations in biomedical science and technology during the second half of the twentieth century that there has been a need for a distinct schematization of traditional rules, and even the formulation of new ones, for this increasingly complex area of human action.
Judaism is no exception to this general cultural phenomenon. Indeed, Jewish ethicists have been particularly eager to make a Jewish contribution to bioethics, not least of all because of the great interest Jews have always taken in medical practice throughout history, and because many Jewish scholars maintain that there is no area of human action, however unprecedented, to which the rules formulated in the Jewish tradition do not somehow apply. Furthermore, the increasingly cross-cultural context of bioethics gives Jewish ethicists a much larger audience of interested parties than they have had heretofore.
Origins and Development of Jewish Bioethics
Historically, Judaism has seen the normative authority of Jewish life, both communal and individual, as stemming from a twofold teaching (Torah): Scripture and Tradition, or the Written Torah and the Oral Torah. The Written Torah consists of the divinely mandated precepts of the first five books of the Hebrew Bible. The Oral Torah consists largely of the legislation of the rabbis of the Talmudic period (first century b.c.e. to the sixth century c.e.) along with a few ancient traditions (halakhot) accepted as having been revealed to Moses at Mount Sinai. Regarding many ethical (as opposed to ritual) norms, moreover, especially those dealing with basic human questions of life and death, Judaism has seen the Torah's commandments as binding on all humankind, at least in theory. This area of the law has been designated as Noahide Law, the descendants of Noah being the name for humankind. Since it has long been accepted that there cannot be a double standard differentiating between Jews and non-Jews in questions of life and death (Sanhedrin 59a; Tosafot s. v. "leika"), and since virtually all medical treatment and so much contemporary Jewish discussion of bioethical issues is conducted in the context of a pluralistic society, this universal aspect of Jewish law has become the most prevalent standard for the formulation of most Jewish views on the subject.
Scriptural law is subject to human interpretation, but it cannot be amended or repealed (Num. 15:23; Deut. 4:2; Kiddushin 29a; cf. Sotah 9.9) because it is taken to be the direct word of God. Because rabbinic law is considered human-made law only, although legislated by authority sanctioned by Scripture (Shabbat 23a), it has been much easier to change and adapt than scriptural law. Rabbinic legislation, at least in theory, admits of amendment and repeal (Eduyot 1.5), but since the demise of the Sanhedrin as the central Jewish legislative authority, reinterpretation of already existing norms has been the method of changing rabbinic law. Since the actual practical rules of any area of Jewish law—certainly those pertaining to bioethics—are much more rabbinic than scriptural, the authorized range for the exercise of human reason is the widest.
Within the immediate confines of the traditional Jewish community, the method of judgment employed in Jewish bioethics is not different from the method employed in any other area of Jewish law. The basic scriptural norm is located, its rabbinic elaborations are traced through the Talmud and related literature, its authoritative structure is determined, relevant precedents (if there are any) are culled from the vast literature of legal responsa by individual rabbinical authorities, and finally the person accepted by a community of Jews as their legal authority frequently seeks the counsel of learned colleagues. This process involves the ordering and application of rules to apply adequately to a case at hand, and occasionally the recognition of more basic principles behind the rules as well as procedures that direct their application. More and more frequently, in the cases posed by the new medical technology we see a greater role for principles. It is often much more difficult to find appropriate rules for the novel situations at hand, and principles must more directly guide the formulation of rather tenuous analogies from existing rules. Also, in the context of crosscultural discussion of bioethical issues, the general guidance suggested by principles is sought much more than the governance of the rules of a singular tradition.
Theological and Moral Principles in Jewish Bioethics
A number of theological-moral principles operate in Jewish discussions of bioethics. The most prominent of these principles are God as creator, God as covenanter, the sanctity of human life, human benevolence, the authority of medical expertise, and the personal prerogatives of the patient.
GOD AS CREATOR. All the great Jewish theologians throughout history have emphasized that the first principle of Judaism is that God is the creator and Lord of the entire universe, who maintains its perpetual order (ma'aseh beresheet), its "nature." Accordingly, God is considered to be the only possessor of absolute property rights. All creatures are the subjects of varying privileges granted by their divine creator. In accordance with its exalted status as the image of God, the human creature is given duties (mitsvot; Gen. 2:16) as well as the highest privileges (Gen. 1:26). However, whatever powers humans have are legitimate only when they are seen as from God for the sake of God, and not as the possessions of the individual or the community in any way. "Indeed, all lives are Mine" (Ezek. 18:4).
This principle is at the very heart of the differences between Jewish law and the secular norms based on the primacy of human autonomy or utility. This is especially apparent in the current intense debates concerning the beginning of human life in relation to abortion, and concerning the end of human life in relation to euthanasia. Arguments insisting upon a right to abortion or a right to euthanasia, be that right the individual's or the community's, essentially deny divine creatorship and lordship as the fundamental norm, which is contrary to what Judaism teaches. Therefore, one can see that the most intense debates in bioethics are quite often more about theological principles than ethical precepts as such.
GOD AS COVENANTER. God is not only the creator of the universe and its perpetual Lord but is also in intimate historical relationship with the people of Israel. This relationship is called the "covenant" (berit). According to Moses Maimonides (1135–1204) and other Jewish theologians, Christians and Muslims, who also see themselves as related to this covenantal God, share in some of this covenantal intimacy (Mishneh Torah: Melakhim, chap. 11, uncensored ed.). This theological principle impinges upon the main issues of bioethics because it largely determines the status of human personhood as the "image of God" (tselem Elohim), a term that seems to designate the essential human capacity for a direct personal relationship with God. Accordingly, human persons are not seen as being primarily defined by innate capacities such as intelligence or freedom of choice, because these qualities vary too much from person to person and are not possessed by everyone born into the human race. Thus, according to the first-century sage Ben Azzai, the most all-encompassing principle of the entire Torah is expressed in the verse "This is the book of the human generations" (Gen. 5:1; quoted in Palestinian Talmud: Nedarim 9.3/41c). This means that full personhood is gained solely by one's birth to human parents, and not by less comprehensive criteria based on such capacities as rationality or freedom of choice.
The principle of God as covenanter is also at the heart of the issue of care for the sick. If the sick have the privilege of making special claims upon those able to care for them, claims that translate into the duties of caretakers, then these privileges and duties are rooted in God's care for his creation, care that is epitomized by God's covenantal involvement with Israel. This is clearly seen in the role of prayer in the treatment of illness, both the special privilege of the prayers of the sick themselves (Shabbat 12b) and the duty of those who care for them to pray for them as well (Nedarim 40a). In fact, the Talmud interprets the scriptural command that the sufferer from the disease tsara'at (mistranslated as leprosy—but actually a skin disease with symptoms close to those of eczema or psoriasis) publicly declare himself "unclean! unclean!" (Lev. 13:45)—to be a cry to those hearing these words of anguish to pray for the sufferer (Mo'ed Qatan 5a). In another Talmudic text this requirement is extended to include prayer for the plight of anyone suffering from any other illness of calamity (Sotah 32b). Those with whom God has covenanted must show genuine sympathy to one another. The extension of this sympathy is, finally, seen as reaching even to nonmembers of the covenant in the interest of peace and general goodwill (Gittin 61a).
THE SANCTITY OF HUMAN LIFE. The term sanctity of human life does not appear in the classical Jewish sources but is an accurate expression of the principle that "one human life is not pushed aside for another" (Ohalot 7.6; see also Tosefta: Terumot 7.20), that is, that one human life has no more inherent value than another, that the blood of one person "is not redder than someone else's" (Pesahim 25b; cf. Sefer Hasidim, ed. Parma, no. 252; Luria, Yam shel Shlomoh: Baba Kama, 8.59). The underlying assumption of the basic sanctity of each individual human life is expressed by the Mishnah: "Whoever saves even one human life, it is as if he saved an entire world" (Sanhedrin 4.5; Palestinian Talmud: Sanhedrin 4.5/22a).
However, this does not mean that the value of any human life is infinite. In certain cases Judaism demands martyrdom, especially when continued life requires that the God of Israel be denied (Sanhedrin 74a). Moreover, at times, priorities are assigned when only one life in a particular situation can be saved as opposed to all lives in that same situation being lost (Horayot 3.7–8; Tosefta: Terumot 7.20; Baba Metsia 62a; Sanhedrin 72b). It is in the realm of ritual practice that the sanctity of human life and the duty to rescue are paramount (Yoma 85b). Any doubt is to be resolved in favor of human life; thus the practice of any ritual act that endangers human life is proscribed (Shabbat 129a). The classic example of this is the rule that rescue efforts are to be conducted on the Sabbath or on the Day of Atonement, irrespective of whatever labors are involved, as long as there is any chance that human life might be saved (Yoma 85a). But once the death of the person endangered is ascertained, all ritual restraints are in effect once more (Tosefta Shabbat 17.19; Shabbat 30b, 151b).
The principle of the sanctity of human life can be seen most clearly operating in cases of nonviability, that is, when there is no reasonable expectation of survival. Thus a child born so defective as to be considered nonviable is still to be nursed by its mother (Yevamot 80b, Rashi and Bach thereto; also, Tosefta: Ketubot 5.5; Tosefta: Niddah 2.5), that is, not abandoned to die, as was the case in many ancient cultures. And a human life in the very last stages of its existence, in its death throes, is not to be extinguished on the assumption that death is inevitable (Shabbat 151b).
There is debate among later authorities as to what measures may or may not be taken to extend the death throes called goses (Isserles's note on Shulhan Arukh: Yoreh De'ah 339.1; cf. Bach on Tur: Yoreh De'ah 339). This debate anticipates current ones as to whether one can distinguish between active and passive euthanasia. Those authorities who argued that not extending the death agony automatically shortens the life of the patient would seem to support the view that no cogent distinction can be made in euthanasia: either one must permit it per se (as Judaism clearly does not) or one must prohibit it per se (as Judaism seemingly does). This is based on a rejection in the Talmud of any double effect rationale (Shabbat 75a).
However, the treatment of pain is something that may be done as an end in itself as long as it is not simultaneous with the actual death of the patient (Avodah Zarah 18a). Moreover, one is allowed to pray for the death of the patient in cases where agony is extreme and there is no real hope for recovery (Ran on Nedarim 40a re Ketubot 104a). Yet this is always an appeal for divine action and not an endorsement of humans acting in place of God. Even in cases of extreme suffering, the taking of human life is never to be the purpose of any intervention (Avodah Zarah 18a). Whereas a cure cannot always be effected, care is always mandated until the very end of human life. That is why, for example, a dying person is not to be left alone even when there is very little time left (Shulhan Arukh: Yoreh De'ah 339.4).
HUMAN BENEVOLENCE. The duty to care for the sick, and to heal them whenever possible (biqur holim, literally, "visitation of the sick"), is derived from two different sets of biblical and rabbinic sources. The difference in the selection of the sources indicates two distinct approaches to the issue of medical treatment in general.
Maimonides, who was the prototypical rabbi-physician for later generations, categorized the specific duty to care for the sick as a rabbinically mandated act stemming from the general duty of benevolence commanded in Scripture: "You shall love your neighbor as yourself" (Lev. 19:18), which, undoubtedly basing himself on earlier rabbinic sources (Shabbat 31a; Targum Jonathan on Lev. 19:18), he paraphrased as "Everything you want others to do for you, you do" (Mishneh Torah: Evel 14.1). As for the duty actually to save a human life, Maimonides based this directly on the scripturally mandated act: "Do not stand idly by your neighbor's blood" (Lev. 19:16), that is, whoever can save a life and does not do so has violated a negative commandment (Mishneh Torah: Rotseah 1.13).
Finally, he located the specific duty to heal the sick by those competent to do so in the scriptural command concerning the duty to return lost property to its owner (Deut. 22:2). He reasoned, as the Talmud had earlier (Sanhedrin 73a), that if one is to return someone else's lost property, then certainly one is to return someone else's lost body to him or her—namely, the bodily function lost through illness or injury (Mishnah Commentary: Nedarim 4.4). All of this is quite consistent with Maimonides's high regard for the regularity of the natural order and the role of medicine as part of the general human attitude of respect for that order and cooperation with its inherent teleology (Guide of the Perplexed, 2.40). Any special role for medicine, by separating it from the commandment of general benevolence, might very well lead to its being considered a magical function. This would contradict the essentially scientific role of medicine insisted on by Maimonides (Mishnah Commentary: Pesahim 4.10).
Many commentators wondered why Maimonides never quoted the most direct Talmudic source for the duty to heal the sick: "It was taught in the School of Rabbi Ishmael that from the words of Scripture 'he shall surely provide for his healing' (Exod. 21:19) we derive permission for a physician to heal" (Baba Kama 85a). Perhaps he did not think that the verse itself supported this inference, since the text refers directly to the duty of an assailant to pay the medical bills of his or her victim, not the duty of the physician to heal. Also, the use of the word "permission" (reshut) might have seemed to him too weak to ground a duty, since it seems only to allow an option.
Nevertheless, Moses Nahmanides (1194–1270) does use this Talmudic text, reflecting his entirely different approach to the practice of medicine. He sees this use of the word "permission" as being an answer to those who might say that medicine is an unwarranted interference with divine healing. Just as a judge is not interfering with God's dispensing justice, he argued, so is a physician not interfering with God's dispensing healing. Both judge and physician have the exalted role of participating directly in acts that are seen as essentially divine (Torat Ha'Adam, ed. Chavel, 41–43). Both roles are forms of imitatio dei. This follows from Nahmanides's emphasis that medicine is needed by those in less than a full state of grace, who are within the confines of nature alone, and that the truly righteous will not need any such human intervention, being assured of direct divine attention (Torah Commentary: Lev. 26:11).
Nahmanides's connection of medical treatment with what the rabbis called "following after God's attributes" (middotav) has a precedent in the rabbinic location of the duty to attend to the sick in God's visitation of Abraham immediately after his circumcision (Sotah 14a re Gen. 18:1; also Baba Metsia 30b re Exod. 18:20; 86b). Indeed, attending to the needs of the sick has been seen in Jewish tradition as being more than general benevolence; it is an act having even mystical connotations. This appears in the many biblical texts that see illness and healing as specifically supernatural interventions (e.g., Gen. 18:14, 25:21–22; Exod. 15:26; Lev. 26:16; Num. 5:21; Deut. 28:20–22, 32:39; 2 Kings 5:7–8, 20:1–5; Jer. 17:14; Ps. 103:1–3; 2 Chron. 16:12). The rabbis, too, saw any affliction as being God's special visitation that calls for a special human response (Berakhot 5a re Isa. 53:10; cf. Shabbat 55a–b).
PROTECTION OF THE HUMAN CONDITION. The human condition is always to be the subject of care, and its infirmities are to be cured if possible. The question of the relation between care and cure is especially acute today, when the new means to extend life provided by advances in medical technology are seen by many as simultaneously compromising care by extending the agony of the terminallyill. Contemporary Jewish bioethicists certainly struggle with this problem as much as any other group. One can find no sufficient body of rules on this subject in the tradition, because the death agony in the past was seen as being quite brief (Mordecai: M'ed Qatan no. 864). There do not seem to be any rules at hand for dealing with persons in irreversible comas lasting weeks, months, or even years.
Some precedent for this dilemma, however, can be found in an eighteenth-century responsum by Rabbi Jacob Reischer. He asked whether one may risk one's life by undergoing surgery that has a chance to prolong it, but also a chance to terminate it sooner than would be the case if nothing were done and nature were left to run its course. Reischer permitted such surgery if there was reasonable consensus of medical opinion that there was a good chance for success (Shevut Y'agov: Yoreh D'ah no. 75). But without this consensus, it seems that the patient might have the right to refuse what is in effect an unwarranted invasion of his or her body.
The most immediate phenomenon that medicine treats is pain. Whereas the patient knows he or she is alive by inference from consciousness, one is immediately conscious of the presence of pain. Pain is a primary datum for all sentient beings (Maimonides, Guide of the Perplexed, 3.48). Jewish tradition mandates the treatment of unbearable pain in much the same way it mandates the treatment of mortal danger to human life. This can be seen by looking at the laws pertaining to the Sabbath, which is the most important religious observance in Judaism (Palestinian Talmud: Nedarim 3.9/38b). Just as the Sabbath is to be violated in case of a threat to human life (sakkanat nefesh), so may medical procedures normally prohibited on the Sabbath be performed when they can alleviate bodily pain. Such procedures as lancing a painful boil (Shabbat 107a; Tosafot s.v. "umemai") and a woman removing by hand milk from her engorged breasts (Shabbat 135a; Tosafot s.v. "mipnei") are mentioned in the Talmud.
The great public-health problem of AIDS entails another challenge to Jewish tradition and its ability to rule in the interest of protecting the human condition of all sufferers from any disease whatsoever. That challenge arises when it must be determined what is to be done with those who have contracted AIDS through acts that the normative tradition regards as sinful. Most AIDS sufferers have contracted the disease through male homosexual acts and intravenous drug use. These acts are proscribed by Scripture and Jewish tradition (Lev. 18:22; Maimonides, Mishneh Torah: Ishut, 1.4; D'ot 4.1). Furthermore, one Talmudic text minimally prescribes neglect for those who are seen to be "habitual sinners" (Avodah Zarah 26b). Nevertheless, the important twentieth-century authority Rabbi Abraham Isaiah Karelitz contended that this harsh law no longer applies because its intention is to dissuade sinners, and in this day and age such harshness would be counterproductive (Hazon Ish: Yoreh D'ah sec. 2). His opinion has rarely been contested, for it is not unprecedented (Teshuvot Ha-Rosh 17.1). This legal opinion is important because it removes the one main impediment in the tradition for treating AIDS patients with the same concern as those suffering from any illness not contracted through acts the tradition considers illicit.
MEDICAL EXPERTISE. Jewish tradition has long recognized that a trained medical profession is a requirement of a humanly sufficient society. This can be seen in the Talmud's ruling (Sanhedrin 17b; cf. Baba Batra 21a; Bach on Tur: Hoshen Mishpat 156) that no educated Jew should live in a locality where there is no physician (rofe). Because of this, members of the medical profession have special duties and special privileges connected with these duties.
The first duty of medical professionals is to attend to whoever requires their attention. The centrality of this duty is seen in the interpretation by Rashi, the great eleventh-century commentator on the Bible and the Talmud, of the rather bizarre statement in the Mishnah that "the best of the physicians are destined for hell" (Kiddushin 4.14). Rashi takes this to be an indictment of persons who are physicians rather than of the institution of medicine as such (Nahmanides, Torat Ha'Adam, ed. Chavel, 43). He emphasizes the frequent carelessness and arrogance of physicians, and that they often refuse to treat the poor. This final indictment presupposes that lack of funds should not be an impediment to a person's right to medical treatment (Tur: Yoreh D'ah 336; see also Ketubot 67b re Deut. 15:8).
Medical practitioners are considered to be "experts" (beqi'im), and thus have a professional status (Yoma 8.5). Hence they are to be publicly licensed (Avodah Zarah 26b– 27a). Publicly licensed medical professionals are exempt from paying damages to their patients unless it can be proven that they were grossly negligent or actually malicious in performing their medical duties (Tosefta: Baba Kama 9.11, 6.17; Gittin 3.8). Based on the analogy between physicians and judges, Nahmanides (Torat Ha'Adam, ed. Chavel, 41) sees the basis of this unusual dispensation from civil and even criminal liability in the Talmud's acceptance of the inherent subjectivity of judgment in even the most precise human activities: "The judge only has what his eyes see" (Sanhedrin 6b). However, this dispensation applies only to licensed personnel and does not extend to unlicensed personnel, even if they are otherwise "expert" (Sanhedrin 44).
Because medical professionals are engaged in an activity commanded by the Torah (mitsvah), they are not to be paid directly for their services because no one is to receive direct monetary benefit for the performance of a commandment (Sanhedrin 44 re Bekhorot 29a; see also Rosh Hashanah 28a). In this respect they are like Torah scholars, who are to study and teach the Torah for its own sake and not for the sake of any monetary benefit (Avot 4.5; Nedarim 37a). Nevertheless, based on this analogy, one cannot be expected regularly to deplete his or her own income when benefiting someone else. If this were the case, only those of independent wealth could possibly function either as scholars or as physicians, or in any other necessary communal function. For this reason, then, both scholars and medical personnel, being deemed necessary for a well-functioning Jewish community, are to be paid, not for what they actually do but for what they do not do—in other words, what they would be paid if they were making a living doing something else. This legal fiction is called "payment for idleness" (sekhar betalah).
Medical personnel are exposed to the danger of contagion in treating persons suffering from diseases. The question arises of how much danger they are required to expose themselves to in the course of their work, and how much danger is considered to be above and beyond the call of duty. This question has become especially acute today with the proliferation of a number of highly contagious diseases, such as hepatitis B.
In cases of clear and direct danger to one's own life, Jewish tradition mandates the priority of one's own life (Baba Metsia 62a re Lev. 25:36) irrespective of whether one is a layperson or a professional. Acts above and beyond the call of duty are considered forms of supererogatory piety. Such acts cannot be seen as being derived from a universal rule applicable to everyone and anyone, however meritorious they might be to the person performing them (Palestinian Talmud: Terumot 8.4/46b). However, the real moral problem arises in cases where there is possible danger (safeq sakkanah) to those involved in treating the sick. There is a passage in the Talmud that states, "When there is a plague in the city, gather up your legs" (Baba Kama 60b re Isa. 26:20; Deut. 32:25), which implies that one should save oneself in the face of possible danger.
Nevertheless, the sixteenth-century commentator Rabbi Solomon Luria argued that in the absence of clear and direct danger to oneself, one ought to remain in the city if one is able to save other lives there. He also indicates that those who had already suffered from "the plague" (he probably meant smallpox) were in no danger of further recurrence and so should remain in the city to help others in distress (Yam shel Shlomoh: Baba Kama 6.26). Earlier, Rabbi Joseph Karo (1488–1575) had ruled that one was to expose oneself to possible danger if this enabled one to save other human lives (Kesef Mishneh on Maimonides, Mishneh Torah: Rotseah 1.14; Bet Yosef on Tur: Hoshen Mishpat 426; cf. Rabbi David ibn Zimra, Teshuvot Ha-Radbaz 3, no. 627). Of course, the difference between certain possible danger can be decided only on an ad hoc basis. Nevertheless, the distinction must always be kept in mind, that is, one can rule neither that healthcare personnel must treat every patient nor that they may absolve themselves from treating any patient whom they consider at all dangerous to their well-being.
Medical professionals are to keep abreast of scientific developments that affect their ability to treat patients. Along these lines, the tenth-century authority Sherira Gaon argued that the medical opinions of the rabbis of the Talmud, unlike their legal opinions, had no inherent value and should be accepted or rejected solely on the basis of whether they are actually effective (Jakobovits). Maimonides made the same point two centuries later (Mishnah Commentary: Yoma 8.4). In cases where human viability is to be determined, Maimonides ruled that current medical opinion is the criterion to rely on (Mishneh Torah: Rotseah 2.8; cf. Shehitah 10.13). As in all scientific questions, it is irrelevant whether those offering the accepted opinion are Jews (Pesahim 94b; Maimonides, Shemonah Peraqim, intro.).
However, other authorities were more conservative in their treatment of the medical counsels of the rabbis of the Talmud. Some of them held that the cures prescribed by the Talmud are ineffective in later times because human nature has changed significantly (M'ed Qatan 11a; Tosafot s.v. "kavra"; Isserles's note on Shulhan Arukh: Even H'Ezer 156.4). This view denies that earlier sages were deficient in any knowledge whatsoever, a point in keeping with the general rabbinic tendency to consider past sages always to have been wiser than present sages (Shabbat 112b). Thus, present sages are taken to be incapable of making some of the fine scientific distinctions that were made by past sages in medical issues pertaining to the law (Isserles's note on Shulhan Arukh: Orah Hayyim 330.5).
Nevertheless, whether one accepts changed medical practice on the more radical grounds suggested by Sherira Gaon and Maimonides, or on the more conservative grounds suggested by the tosafists (medieval Franco-German glossators on the Talmud) the Isserles, the fact is that no Jewish authority sees the medical remedies from the Talmud or any other classical source as being valid in the present. This has enabled the most religiously traditional Jewish medical professionals to take advantage of all the current and future advances in medical technology.
PERSONAL PREROGATIVES OF THE PATIENT. Current bioethics has stressed the personal prerogatives of those who are ill so that they can take a more active and responsible role in their own treatment and not simply be the passive patients of medical professionals. Most advocates of patient activism in medical treatment have looked to the modern principle of autonomy for grounding—namely, that human individuals are essentially their own masters. Clearly, the theocentric Jewish tradition does not underwrite autonomy in this strong sense of the term. However, it does supply the basis for allowing patients to take an active role for other reasons.
Pain, for example, is to be treated immediately, and the patient is considered the final authority in determining just how much pain he or she can stand, even if that personal determination contradicts expert opinion. It is assumed that the person is the best judge of his or her own condition at this most elementary level of experience (Yoma 83a re Prov. 14:10; see also Baba Kama 8.1). This judgment by the suffering person can exempt that person from the same ritual obligations (such as fasting) as an expert's judgment concerning a life-threatening condition can. Unbearable pain is considered worse than death, and to escape it, anything short of direct killing is exonerated (Ketubot 33a; Shir Ha-Shirim Rabbah 2.18; Rabbi Tsvi Hirsch Chajes, Tiferet Yisrael, beg.).
A second personal prerogative of the patient is the right to be told the exact nature of his or her illness and the opinion of the experts about whether death is imminent. Thus the Talmud rules that when it is determined that one's death is imminent, one is to be told so that there may still be time for the patient to offer the deathbed confession known as vidui (Shabbat 32a). This is considered extremely important because whether one dies in a state of repentance could very well affect whether one merits the life of the world to come (Sanhedrin 6.2). If the life in this world is considered a preparation for the unending life of the world to come (Avot 4.16), and if no one but the person himself or herself can make the proper preparation, then it follows that one may not be kept in ignorance about the gravity of one's condition. Only persons considered too emotionally unstable to be able to make proper use of this information are to be spared (Nahmanides, Torat Ha'Adam, ed. Chavel, 46).
The Stages of Human Life
Judaism is concerned with the human condition from conception to death. Especially at the edges of life, where there is much public dispute, Jewish teachings have been very much in the forefront of current debate.
ABORTION. The abortion debate has usually centered on the question of when human personhood begins. Those on the pro-life side of the issue argue that human personhood begins at conception, and abortion is therefore murder. Those on the pro-choice side of the issue argue that human personhood begins at birth, and abortion is therefore not murder and ought to be the option of the individual pregnant woman.
In Jewish tradition there seem to be two differing views as to when human personhood begins. One view (Sanhedrin 57b re Gen. 9:6; see also Sanhedrin 91b re Job 10:12) is that it begins at conception; another view (Ohalot 7.6; Sanhedrin 72b; Rashi s.v. "yatsa rosho") is that it begins at birth. Nevertheless, these views are more statements of principle than actual rules. Rules are not directly derived from principles in Jewish law (Baba Batra 130b). Instead, principles are formulated to explain rules, coordinate them with other rules, and guide their application. Therefore, one should not automatically deduce from principles defining human personhood just what the rule concerning abortion is to be.
The rule proscribes abortion unless there is a threat to the life or health of the mother. Those who hold that personhood begins at conception thus see abortion as being akin to murder (although, on technical legal grounds, not literally murder that is liable for capital punishment; see Niddah 5.3; Niddah 44b re Lev. 24:17). They would tend to be more conservative in judging what constitutes a threat to the life or health of the mother. Yet even they would judge some abortions (however few) to be mandated. Those who hold that personhood begins at birth, and who are thus likely to be more liberal in judging just what constitutes a threat to the mother's life or health, still hold that abortion is usually proscribed because even fetal life has enough rights of its own (Yoma 82a; Rashi s.v. "ubar"). It may not be destroyed unless it is a threat (rodef) to the mother's life or health. Even assuming that the fetus is still considered part of the mother's body in utero (Sanhedrin 80b) does not lead to permission for elective abortion because self-mutilation is proscribed (Baba Kama 91b).
Hence traditionalist authorities, however they might view the actual beginnings of human personhood in principle, all regard abortion as generally proscribed, and permitted only under specific conditions. Their practical debates all center on the interpretation of the exceptions to the general proscription of abortion. In that sense, the more conservative authorities are no more absolutely pro-life than the more liberal authorities are absolutely pro-choice. In fact, abortion is not an option at all. Either it is proscribed in most cases, or it is prescribed in some exceptional cases. Nonetheless, less traditionalist Jewish feminists have argued that the whole issue of abortion must be reconsidered inasmuch as it most directly affects women, and women's voices have been absent from the legal debates about it in the Jewish community heretofore (see Davis).
DEFINITION OF DEATH. The question of precisely when human life ends is an issue of much current debate among contemporary Jewish bioethicists. Some of the more conservatively inclined have insisted that the traditional criteria for determining death be literally interpreted: the cessation of spontaneous reflexes, heartbeat, and breath (Yoma 85a; Teshuvot Hatam Sofer: Yoreh D'ah no. 338). Yet other Jewish bioethicists, more liberally inclined, or more influenced by current scientific trends, have argued that brain death can constitute a ground for taking a patient off a respirator, inasmuch as breathing in this case is not being done by the patient, but by a machine (Task Force on Death and Dying). In fact, not doing this might constitute a violation of Jewish law, the prohibition against leaving the dead unburied (Sanhedrin 46b re Deut. 21:23). However, the motive behind this innovation, whether stated or not, is that the interpreters of Jewish law must accept growing medical consensus on any major issue if their rulings are to be taken seriously in the general society, where even the most pious Jews receive their medical treatment.
david novak (1995)
SEE ALSO: Abortion, Religious Traditions: Jewish Perspectives; Authority in Religious Traditions; Christianity, Bioethics in; Death, Definition and Determination of: Philosophical and Theological Perspectives; Death: Western Religious Thought; Eugenics: History of; Eugenics and Religious Law: Judaism; Genetics and Racial Minorities; Holocaust; Islam, Bioethics in; Medical Ethics, History of, Near and Middle East: Israel; Population Ethics, Religious Traditions: Jewish Perspectives; Research, Unethical; Women, Historical and Cross-Cultural Perspectives
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