Care of the Critically Ill
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This file contains merged sections from the following text versions:
-Responsa of Rav Moshe Feinstein, trans. by Moshe David Tendler; Vol. 1: Care of the Critically Ill, Hoboken, NJ: Ktav, 1996.
-http://www.ktav.com/index.php/responsa-of-rav-moshe-feinstein.html
Care of the Critically Ill
Preface
וזאת הברכה אשר ברך משה איש אלקים … מה איש אלקים? חציו למטה—איש. חציו ולמעלה—אלקים. (דברים רבה יא:ד)
For thirty-eight years my family and I were blessed by the presence of my sainted father-in-law, who was indeed an exemplar of an איש אלקים, half איש and half אלקים, one who melded both halves into a harmonious whole, pleasing both to God and man.
For almost half a century "Reb" Moshe Feinstein זצוק"ל was the moral and halakhic conscience of the Torah community. Nowhere was his leadership more keenly felt than in the area of critical care medicine, where his empathy, sensitivity, and intellectual integrity were so widely recognized.
The major vehicle for his expression of his halakhic conclusions was the teshuvah, which is often a mere abstract of a long chain of complex analysis to which each question was subjected. In response to his instructions to me, I have provided an interpretive rendering of these responsa, whose full interpretive breadth I was privileged to hear from Reb Moshe זצוק"ל himself during the long years I studied with him.
Subsequent volumes will focus on the following topics: "The Beginning of Life," "Sabbath and Holiday Laws," and "Laws of Marriage, Divorce and Conversion."
כל מי שנאמר הלכה בשמו העולם הזה. שפתותיו דובבות בקבר. שנאמר "דובב שפת ישנים" (שיר שירים ז:י). (סנהדרין צי ע"א)
Now, after his passing, we need the guidance he dispensed so modestly during his lifetime all the more, and our study of his work will not only serve to guide us in seeking the way of Torah, but will also serve to memorialize and eternalize his teachings and his person within the timeless community of Israel.
May his memory serve as a measure by which we judge our own strivings for self-improvement in observance of Torah law and custom.
Moshe Dovid Tendler
חתנא דבי נשיאה
A Biography of Greatness
This is not a conventional rabbinic biography. The facts recorded here have hardly ever appeared in print or been made public by means of the spoken word. They are drawn from personal recollections and family archives, and are intended to capture the spirit, the very soul, of a great posek.
Rav Moshe was born on the seventh day of Adar, 5755 (March 3, 1895), to Rav David and his wife, Fia Gittel, in the town of Uzda in White Russia. A study of their lineage facilitates an appreciation of Rav Moshe s'ע"ה aristocratic bearing, as well as an understanding of the feeling of self-confidence in pesak which accompanied him from his earliest days as a posek. He truly embodied the saying of our sages, מאן מלכי רבנן, "Who are our kings? Our Torah greats!"
Rav Moshe's father, Rav David, ע"ה, was a direct descendant of Rav Avraham. brother of the Vilna Gaon and author of the Maalos HaTorah. The Vilna Gaon and his brother Rav Avraham in turn were direct descendants of the author of Be'er HaGolah, whose notations are on every page of the Shulchan Aruch, and provide source references for all who study the Shulchan Aruch. Rav Avraham Tzvi Kamai, זצוק"ל, who founded the Mirrer Yeshiva (and whose son-in-law, Rav Finkel, זצוק"ל, later became Rosh Yeshiva) was the grandson of Rav Avraham and thus related to R. Moshe's father, Rav David.
At some point Koidenover Chasidus entered the Feinstein family, but the date of this occurrence is somewhat uncertain. Rav Moshe's great-grandfather, Rav David, was a Koidenover Chasid, as was Rav David, Rav Moshe's father, in his youth. Rav David was a phenomenal talmid chacham and an extremely wealthy financier. He was the one who established the family's custom of standing motionless, like a servant before a king, while praying Shemoneh Esreh. Rav David was much respected by the gentiles and served as financial adviser or estate steward to the lord of a manor (paritz). As such he was responsible for all the estate's monetary outlays. One day, in drunken revelry, the paritz boasted to his friends about Rav David's all-but-miraculous powers of concentration. His friends challenged him to put his boast to the test, and so, while Rav David was standing in intense prayer during the Minchah Shemoneh Esreh, they approached him and fired a musket just inches from his head. Rav David was not startled. This "miraculous" behavior was discussed widely; Rav David was marked as a man whose relationship with the Ribbono Shel Olom was exemplary.
To return to Rav Moshe's parents: Rav David's mother—Rav Moshe's grandmother—died young, and thus Rav David was raised by his father's second wife, Raize, ע"ה. One of Rav Moshe's sisters was named Shoshana הי"ד, the Hebrew equivalent of Raize, in recognition of their step-grandmother's devotion. Rav David's father, Yechiel Michel, was also a phenomenal scholar, and known as such from a tender age.
Rav Moshe's father, Rav David, was known as an illuy. When Eliyahu Feinstein, the Rav of Pruzhan and the father of Rav Yosef Dov Soloveitchik's mother, was looking for a chasan for his sister-in-law, he rejected Rav David as a possibility because he was a Chasid. But when Rav Eliyahu Pruzhaner, who was then twenty-four years old, met Rav David, then only thirteen, he was so impressed with his mastery of Torah and his almost supernatural brilliance that he agreed to take him as a chasan for his sister-in-law on condition that he give up Chasidus and spend four years of study at the yeshiva in Volozhin.
Rav David agreed to these conditions and became a committed Volozhiner under the tutelage of Rav Refoel Shapiro and Rav Yitzchok Fried, who directed the yeshiva in the years before the Netziv became Rosh Yeshiva. At the age of seventeen, Rav David married Fia Gittel, the sister of Guta Kisha, the daughter of Rav Yitzchok Yechiel Halevi, who was the Av Beis Din of Karelitz.
Special note ought to taken of the great tzidkus of Rav Moshe's uncle, Rav Eliyahu Pruzhaner. Rav Eliyahu turned down the great rabbanus of Kletzk, a major city of talmidei chachamim, to accept the rabbanus in a small town, Karelitz, on condition that when he left there, for whatever reason, the town would accept Rav David Feinstein, the father of Rav Moshe, to be Rav in his place. This was because Rav David had agreed to accept a lifelong obligation to care for the almanah of Rav Yitzchok Yechiel Halevi.
Rav Moshe often said that the real meyuchesses of the Feinstein family was his mother, Fia Gittel. As the daughter of Yitzchok Yechiel Karelitz, she was a direct descendent of the author of Seder HaDoros. The author of Seder HaDoros, although known to us mainly for his historical work, identifying and dating the greats in the line of transmission of Torah to our generation, was also, or even more so, one of the greatest Talmudic minds of all generations. He could trace his yichus directly back to David HaMelech, as could the Maharshal, also a member of this illustrious family.
Rav Moshe would add, in describing the great yichus of his mother, that Rav Yitzchok Yechiel, her father, whose surname was Davidovitz, could trace his yichus back in direct line of male descent from the Shelah HaKadosh. Her father was the sixth generation in the line of the rabbanim of Kappula in Russia, which was famous for its great talmidei chachamim. The most famous was Ber Kappula, a figure of almost mythical standing. Non-Jews from all of Russia came to him for brachos.
The Kappula rabbanim were descendants of Yom Tov Heller, the Tosefos Yom Tov. Rav Moshe's father, Rav David, fasted and feasted on the days that the Tosefos Yom Tov had declared as a family obligation because of the tragedies and salvation that had come to him during the years when he was persecuted by the Russian government. (My son, Rav Mordechai, who served as his grandfather's aide and secretary for almost twenty years, has taken this obligation upon himself.)
Rav Moshe also spoke of a great-grandmother named Rochel, who grew up in the same town as the son-in-law of the Baal HaTanya. She had a brilliant mind and a great soul, with an insatiable love of Torah, but there were no schools for girls in those days. As a consequence, the rabbanim of the town let her sit in the back of the room in the cheder where the Tzemach Tzedek, who became the third Lubavitcher Rebbe, was also a student.
Interestingly enough, Rav Moshe did not hear this story from his own family, but learned of it while he was Rav in Luban. At that time the Lubavitcher Rebbe had convened a conference of Russian rabbanim, and Rav Moshe and Isser Zalman Meltzer were asked to attend. Rav Moshe questioned the invitation since he had no direct relationship with the Lubavitcher in Russia. The Rebbe sent him a note explaining, and I quote Rav Moshe, "Your bobbe belonged to us. She studied with our Rebbe, the Tzemach Tzedek."
Yitzchok Yechiel, Rav Moshe's maternal grandfather, had four sons-in-law. The first, Rav Eliyahu Pruzhaner, was the father of Rav Yosef Dov Soloveitchik's mother, Peshe, ז"ל. The second was Rav Yaacov Kanterovitz, whom Rav Moshe refers to in his Iggeros Moshe, as "my uncle the great Gaon." The third was Rav David Feinstein, and the fourth was Rav Moshe, the father of Berl Katzenelson, David Ben-Gurion's mentor. By coincidence, Rav Eliyahu and Rav David died on the same day, 27 Tishrei, a year apart. All the cousins, the descendants of these four sons-in-law, remained very close, even though some of the Katzenelsons had already distanced themselves from a Torah life.
So much for Rav Moshe's descent. Now for some insights into the personality of this great posek, based upon the events of his life. Rav Moshe's reputation as a great talmid chacham dated from his childhood. Once, when he was nine years old, Rav Eliyahu visited his brother-in-law, Rav David. When the little Moshe walked in, Rav Eliyahu stood up as a sign of respect. Rav David, who never raised his voice, exploded in anger, and I quote as Rav Moshe related it, "Do you want to destroy my son?" and ordered Rav Moshe out of the room. As this incident illustrates, Rav Moshe's mastery of the trait of modesty came from the upbringing provided by his father. Rav David was the primary teacher with whom he studied three sedarim of Shas, learning all the Volozhiner shiurim that Rav David had recorded. The Volozhin curriculum involved studying all of Shas from Brachos to Nidah, page by page and not topically as is done in many yeshivas today. Every single page and line of the Gemora was studied and analyzed.
In his youth, Rav Moshe's diligence earned the respect of his elders, most of whom were great talmidei chachamim. He remained in the Beis Hamedrash all day, without interrupting his studies to return home for meals. Instead, his sister Chana, ע"ה, would bring him his meals. She later become renowned for her chesed and intelligence, and married Rav Yitzchok Small, ז"ל, one of the leaders of the Chicago rabbinate. With this help and support, Rav Moshe completed his study of all of Shas for the first time at age nineteen.
Rav David sent Rav Moshe for one year to the nearby town of Slutzk, where he studied with Isser Zalman Meltzer. A dispute arose between Isser Zalman and his mashgiach, Rav Pesach Pruskin. They decided to go to a din Torah with Rav David as the dayyan. Rav David ruled that Rav Pesach Pruskin could take ten talmidim and establish a new yeshiva. Rav Moshe was chosen to be one of the ten and left Isser Zalman to study with Pesach Pruskin for three years. During this time he lived in Rav Pesach's house and became extremely close to him. Rav Moshe led a chavurah in Ketzos HaChoshen, which explains his special mastery of this classic work.
Indeed, Rav Moshe's derech in learning came from his father and from Rav Pesach, as reported by the Gaon Rav Gustman, זצ"ל. It was Rav Gustman who related to us many stories about Rav Moshe's intellectual powers and exemplary character. Rav Moshe would never have told these stories himself, but he confirmed them after Rav Gustman told them.
Rav Pesach used to say that it was a special zechus to have had a talmid, Rav Moshe, who surpassed him many, many fold. The following anecdote provides an insight into the gedolim of the last generation. As stated above, Isser Zalman and Pesach Pruskin had a falling out and had to go to a din Torah. Despite this, when Rav Pesach Pruskin arranged the chanukas habayis of his new yeshiva, the guest speaker was none other than Rav Isser Zalman Meltzer. Rav Moshe was honored to give a public shiur that day, a shiur which was later published in his Dibros Moshe on Bava Kamma without modification.
Rav Moshe was early recognized as the premier posek in Russia. He had a dispute with Rav Yechezkel Abramsky, זצ"ל, as to whether it was permissible for a woman to go to the mikvah with a plug of cotton in her ear. The woman in question had undergone surgery for mastoiditis, and was required to insert the plug in order to prevent water from entering and causing serious medical problems. Rav Moshe was then in Luban, and Rav Abramsky was the Rav of Slutsk. Rav Moshe declared the tevilah effective, while Rav Abramsky prohibited immersing with the cotton. As was customary in those days on an issue so important, they sent their responsa to Rav Chaim Ozer in Vilna for his adjudication. Rav Gustman, who was the youngest member of the Beis Din of Rav Chaim Ozer, reported that Rav Chaim Ozer answered that he too had written a responsum permitting it, but "Rav Moshe's teshuvah was several levels more brilliant than mine." He added, "There are two brothers in Russia, much greater than I, who study Torah with the tradition that goes back to Ezra the Scribe—Rav Moshe in Luban and Rav Mordechai in Shklov."
In 1915, Russia was losing World War I. At the time, Rav Moshe's mother was seriously ill, and his brother, Rav Mordechai, was taking care of her. That year all draft exemptions for rabbinical students were canceled, although until then the Russian government, despite its antisemitic policies, had exempted rabbinical students from military service. All rabbinical students were now required to register for the draft, but Rav Moshe, who had an uncanny sense of time and place, decided to avoid the local draft board and instead went to the regional board. At that time, the Chofetz Chaim, who had fled from war-torn Radin, was in the town of Gomel. Rav Moshe, his brother Rav Yaacov, and their father, Rav David, on their way to the regional draft board, detoured in order to ask the Chofetz Chaim for a brachah. Rav David introduced his sons and explained the nature of their visit. The Chofetz Chaim answered, "It says that whoever takes upon himself the yoke of Torah is exempt from the yoke of secular obligations. However, the text does not say—אין שמין עליו עול דרך ארץ—that the yoke of secular obligations will not be imposed, but rather—מעבירין ממנו עול דרך ארץ—that it will be removed." Rav Moshe accepted this as a very meaningful brachah from the great tzaddik, Chofetz Chaim.
When they reached the regional draft board, there was a long line. Rav Moshe suggested to his father, "Let's talk to those who are leaving so that we can find out what is facing us." After speaking to many of the young men who had just appeared before the draft board and learning that even the lame and the ill were not exempted despite their physical infirmities, but were taken immediately into the army, Rav Moshe decided that this was not a good time to present himself. They returned to the hotel and a few hours later learned that a revision of the draft-exemption rules would be issued the very next day. The new rules retained everyone who had already been drafted, but instituted a modified exemption for clergy, both Jewish and Christian. Students would still not be exempted, but rabbinic functionaries over the age of twenty-five would be. Rav Moshe was then twenty years old, but they paid a local official 300 gold rubles, a massive sum of money, to change his birth certificate and make him five years older.
Rav Moshe now became the Rav of Uzda. However, he could not bear the kavod, the ceremonials of the rabbanus in Uzda, which violated his innate sense of modesty, so he decided to leave. With his brother, Rav Mordechai, he went to the nearby town of Izdarobin, where they established their own yeshiva. Izdarobin means "old rabbi," since the town had a reputation for employing the most prestigious rabbanim in Russia. The yeshiva they opened had, as one of its famous talmidim, HaRav Moshe Tzvi Neria זצ"ל, the founder of the Benai Akiva Yeshiva network in Eretz Yisroel. Rav Neria became Rav Mordechai's talmid muvhak and followed him to Shklov, where he had assumed the rabbanus. Rav Neria and five other of the talmidim of Rav Moshe and Rav Mordechai were sent to Israel when the antisemitism in Russia became unbearable. As Rav Moshe recalled it, there was only one Rav in Eretz Yisroel whom they recognized as an adam gadol, and that was Harav Kook, זצ"ל. They sent him their six best talmidim, all of whom made great contributions to the dissemination of Torah in Eretz Yisroel.
Although Rav Moshe was Rav in Uzda for only a short time, he was always grateful to the townspeople for saving his life, for it was that rabbanus that made his draft exemption possible. On his matzevah we recorded that he was Rav of Uzda as an expression of his sense of gratitude to them.
Despite his innate modesty, Rav Moshe developed an extraordinary self-confidence in halachic decision-making. It is important to recognize that this was, indeed, one of the distinguishing characteristics of his responsa. Rav Moshe often said, "An anav is not one who does not know his own greatness. It is one who expects nothing from others." As was noted above, even as a child he was treated as a great talmid chacham. His self-confidence was reinforced by the total allegiance of the community in Luban, where he served with such distinction. He was, literally, the lord and master of Luban, and no one ever questioned the accuracy or wisdom of his responsa.
Rav Moshe often said that he was the last official Rav in Russia. After the Revolution, the Communists could not openly prohibit rabbanus because it was permitted by the Soviet Constitution, but they imposed a heavy "parasite tax" or "bourgeoisie tax" on rabbanim. In order to avoid the tax, many rabbanim resigned from their official positions, though they would remain in town to serve the needs of the people. Rav Moshe, however, said that this was forbidden under the injunction of יהרג ואל יעבור, which sometimes demands the forfeiture of one's life. Whenever a rabbi resigned from the rabbanus, the Communist newspapers would carry a gloating report that another rabbi had given up his "decadent religion." Rav Moshe refused to resign because it would have amounted to כפירה, or renouncing faith in Hashem and His Torah.
All of Rav Moshe's salary went to pay the tax, and as a result he was literally penniless. When he still refused to resign, the Communists mounted a campaign against him. They confiscated his shul building; they took away his home; they took away his food rations. The fast-day of the tenth of Teves had special significance for Rav Moshe. Even in later years, when his physical health did not allow him to fast on Shiva Asar Be-Tammuz or Tzom Gedaliah, he always fasted on Asarah Be-Teves. It was a day of personal tragedy to him, for on this day they took away his shul. On the very same day a briefcase containing his many chiddushei Torah was stolen. He always kept these in a leather case and happened to take it along on a journey. A fellow passenger on the train stole the case and with it, years of his Torah writings.
When the authorities confiscated his home, Rav Moshe and his wife and three children had no place to live. He moved in with the local shoemaker, Asher der Shuster, who lived in one room with his family. The shoemaker divided the room in half with a curtain and shared his food ration with Rav Moshe, whom he regarded as his great Rebbe. Asher der Shuster knew all of Shas by heart.
In his later years Rav Moshe explained why he had taken kesavim (writings) with him when he went on this train trip. He took them wherever he went, because in the 1920s, during the Russian civil war, Luban had been subjected to a pogrom on Lag Be-Omer. At that time he was still unmarried, and because of the pogrom, he had put his kesavim in a case so that he could flee, if need be, without leaving them behind.
As Rav Moshe recalled the pogrom, he had a premonition that the gentiles were about to attack and decided to leave the house. The Jews had been warned that marauding hoards of drunken peasants, led by their priests, were looting and raping and killing. Pogroms often involved the use of mortars or light artillery provided by the local army commanders. Minutes after he left his house, it was hit by a shell and blown up. They had targeted the rabbi's house. With people shooting at him, but nonetheless holding on to his kesavim, Rav Moshe ran until he could run no more. Finally, he hid in a field behind a stone wall and left the satchel of writings there.
Two days later, when the surviving townspeople returned to bury their dead, they found the kesavim and brought them to Isser Zalman in Slutzk. He immediately sent them to Rav David, who assumed that his son, Rav Moshe, had been killed. Indeed, he asked Isser Zalman whether finding the writings was sufficient proof of his son's death and therefore necessitated that he begin the mourning period. Isser Zalman responded, "No, I am sure he is alive."
Several weeks later, Rav Moshe reappeared. He had been hiding in the woods near a town twenty-five kilometers from Luban. He had spent several nights in a field, but then a Jewish family had risked their lives by taking him in until he could recover from his ordeal and head back to Luban. Rav Moshe, as we all knew him in times of family crisis, was a most competent, cool-headed individual despite his great empathy and emotional involvement with anyone who was under stress. His rational mind remained as if detached, able to properly evaluate what must be done.
For the rest of his life, it was Rav Moshe's custom to observe the modified mourning rules for all of Sefirah without breaking for Lag Be-Omer because of the tragedy that had befallen his town on that day.
On the first Shabbos Vayerah that he spent in our home in Monsey, Rav Moshe related the following story, which dates to his time in Luban.
During the first year of his rabbanus in Luban, a townsman fell seriously ill and Rav Moshe went to visit him. The patient was a very beloved member of the community and many people were there. He could barely speak. His tongue was swollen and seemed to fill his mouth.
When Rav Moshe arrived, the patient asked all the other visitors to leave. He just wanted to be alone with the Rav of Luban. The patient said to Rav Moshe, "I know why I am ill and why I will die. On Parshas Vayera, several weeks ago, I commented to several people that I was astounded that Hashem would have David HaMelech come from women who had committed incest with their father," referring to the daughters of Lot. That night, he said, "I dreamt that two old women, dressed in black, came and complained to me as follows, Why did you debase and insult us? We could have claimed that we became pregnant by an angel of Hashem and then we would have been honored throughout the generations. Instead, we told the truth and named our children Moab, meaning "from father," and Benei Amon, "a son from my own people," so that no one would ever be able to claim that they had been conceived by means of immaculate conception. Had we not done so, there would have been veracity to such claims.'" The patient said, "I know how terribly I sinned, and Hashem insists that I must pay with my life." The following morning he died.
Rav Moshe's father-in-law, Rav Yaakov, a great tzadik renowed for his hospitality, was the shochet of Luban, and Rav Moshe himself had kabbala for shechita, but he did not like to shecht. It was his custom to employ live chickens for kapparos on Erev Yom Kippur, and he would call a shochet to the house. However, during his last year in Luban, when it was dangerous to engage in any religious ritual, he served as an auxiliary shochet.
In the United States, Rav Moshe gave kabbala to many who had prepared to become shochtim. After testing their mastery of the relevant halachos, he would also test their tactile sensitivity in detecting minor nicks in the shechitah knife. His own ability to detect the slightest imperfections was almost superhuman. I was often present during these examinations. Once, an aspiring candidate who had failed to detect a pegima defended himself by claiming that the siren of a passing fire engine had disturbed his concentration. Rav Moshe gave this excuse short shrift. "When you are preparing to slaughter an animal in accord with Hashem's commandments, nothing should interfere with your ability to concentrate."
Rav Moshe had an innate, almost instinctive mastery of mathematics. When the Communists took over White Russia, Jewish children were required to attend public schools. There, the teachers tried to indoctrinate them with the "religion" of the state—atheism. A female secondary school teacher in Luban was infuriated when the children countered her attacks on religion by quoting their "Rabbiner." The teacher began to denigrate Rav Moshe, poking fun at the ignorant "Rabbiner" who couldn't even do simple mathematics.
To underline the point, and cast doubt on Rav Moshe's reputation for brilliance, the teacher sent him a calculus problem that she had obtained from her university professor, a problem deemed far too difficult for someone who had only studied elementary mathematics. When the children came home and told their parents, the townsfolk actually went into mourning because of the embarrassment their great Rav would have to endure.
Nevertheless, fearful of the teacher's wrath, they presented Rav Moshe with the calculus problem. Rav Moshe asked one of the children for his textbook, sat with it for several hours, and then wrote a solution to the question posed. The teacher was astounded and sent a second problem which Rav Moshe solved within minutes, asking the student to return it immediately so that the teacher would know he had not sought help from anyone else. The teacher insisted on meeting Rav Moshe and, thereafter, became his protector. As the laws against the rabbinate became more and more severe, she would tell the local Communist officials that these laws did not apply to this Rabbiner, who was a great scholar in mathematics and not a "useless parasite."
It is hard to know for sure what finally made Rav Moshe decide to emigrate to America. For some time relatives in the United States had been urging him to leave Russia because of the growing antisemitism and the threat of war, but he refused to leave his people. He subsequently related that the final insult or threat to his family occurred on the Pesach of the year 1935. The local Communist officials had issued a ruling prohibiting the children from attending seders, alleging that the ritual theft of the afikoman actually taught the youngsters to be thieves.
Cynical, sarcastic edicts of this kind were usually leveled against the local Jewish communities by Communist officials who had themselves once been yeshiva students. They would visit the homes to make sure that the children were not participating in the seder. Then they added a new spin. They convened a special school assembly on the seder night, and truant officers were sent to the homes to collect the students, since it was nighttime, and escort them to the school building. The whole program at the school assembly was to issue each and every student a piece of black bread and have them eat it, knowing full well the anguish this would cause youngsters from Torah-observant homes.
After this incident Rav Moshe decided to apply for a passport. Again, he decided that it would not be wise to apply at the local office. Instead, in 1936 he went to Moscow and applied for a passport there. In order to establish himself as a resident of Moscow, he rented a room sixty kilometers from the city and dressed like a worker, living with a family in a rented room.
The address of this residence was not without significance, as I recently learned from Rav Yosef Zalman Goldberg, שליט"א, son-in-law of Rav Shlomo Zalman Auerbach, זצ"ל. The apartment belonged to Rav Goldberg's father, and served as the "legitimizing" address not only for Rav Moshe, but for a number of other rabbanim who had come to Moscow in order to apply for passports.
While living in Moscow, Rav Moshe went to the local shul incognito, never identifying himself. People noticed, however, that he was studying in a Mishnayos and asked him if he could teach them Mishnayos since they had no Rav. Over the next few months Rav Moshe would give the Mishnayos shiur there in the afternoon. This became a social event for the entire area. Several hundred people came to hear this unknown Jew display his mastery of Torah.
Rav Moshe later realized that conducting the shiur had been a serious tactical error, for his application for a passport was refused, and this must have been because the government, through its many spies, had learned of his activities. He finally obtained a passport through the intervention of his brother-in-law, Rav Nechemiah Katz, שליט"א, who had married the daughter of the Rav of Toledo, Ohio, and had become the rabbi of that town.
Indeed, here we can see the workings of Hashem. Some years before, Rav Nechemiah had taken all of Rav Moshe's wedding money and dowry to invest in a sure-fire deal that he promised would profit them enough to be able to buy a whole Shas, something which the town did not have. They had extremely dilapidated single volumes but not a complete Shas. As fate would have it, Uncle Nechemiah, as we know him, lost all the money. Depressed by this failure, he decided to leave for the United States. This decision and the heroic efforts that Nechemiah made through Senator Robert A. Taft, Sr., and others enabled Rav Moshe and his family to obtain the necessary passport and visas, thus saving their lives.
When the passport was delivered by mail to the legal address, sixty kilometers away, Rav Moshe had moved and was now living in a rented room in Moscow. He learned that the passport had arrived only eight days before its expiration date. Despite the need for haste, however, he took the time to prepare a calendar for the Luban community showing all the dates for Rosh Chodesh and the Yomim Tovim for the next eighteen years. Rav Moshe had a very special mastery and love for the rules of the Jewish calendar and even in America wrote his own luach rather than purchase a printed one. Sadly, the town did not survive eighteen years; every one of its Jewish residents was cruelly killed by the animals in human form who gleefully did the bidding of Nazi Germany.
On the train from Luban to Riga, in Lithuania, Rav Moshe woke up with a pasuk from Tehillim (141:6) running through his mind, ושמעו אמרי כי נעמו, "they will hear My words because they are pleasant," which he interpreted as a message from Hashem that all would be well.
When Rav Moshe and his family arrived in the United States, Rav Moshe Soloveitchik, זצ"ל, and a large contingent of rabbanim were waiting on the dock to greet him. This made a great impression on Rav Moshe, bolstering his spirits, which were still depressed by memories of the beloved town he had been forced to leave.
Soon after his arrival he gave two public shiurim, one at the Rabbi Isaac Elchanan Theological Seminary (Yeshivas Rabbeinu Yitzchok Elchanon) and the other at Yeshiva Torah Vodaas. Both institutions offered him positions, but he did not accept because in each case the administration was run by laymen, and he felt that a yeshiva would fail if its adminstration was in the hands of anyone but the Roshei Yeshiva. Interestingly, his first shiur was given at the yeshiva of Yeshiva University, and at his levayah the largest contingent was made up of students from Rabbi Isaac Elchanan Theological Seminary and girls from Stern College, who filled the streets on East Broadway. Thus the Rosh Yeshiva of RIETS in 1935, Rav Moshe Soloveitchik, gave Rav Moshe his first kavod in the United States, and a later generation of Yeshiva University students, his last.
An honored member of the Feinstein family berated Rav Moshe for coming to the United States. As Rav Moshe recalled, he said to him, "I told you not to come. There is nothing for you here in America. In Europe you were offered the position of the Rogatchover Gaon. Why didn't you accept it?" Rav Moshe answered, "I came to America to be a street cleaner. I do not expect a rabbanus. I am prepared to clean the streets, to be a shammes, as long as my children will learn to make a brachah and be Jewish."
Taken aback, Rav Moshe's relative responded, "No, no you won't have to do that. We will try to do something for you." Indeed, the Feinstein family was instrumental in giving Rav Moshe an opportunity to start a yeshiva in Cleveland with the father-in-law of Rav Ruderman, זצ"ל, the founder of Yeshivas Ner Yisroel in Baltimore. Rav Moshe left his family for seven months to evaluate what could be done in Cleveland and returned convinced that he did not have the ability to succeed there. Rav Moshe would later say that he had regretted this decision all his life and did not understand his own motivation at that time.
Here, too, the hand of Hashem was evident. His wife, Rebbetzin Sima Feinstein ע"ה, had a first cousin, Rav Yosef Adler, זצ"ל, who was the Rosh Yeshiva of Mesivta Tifereth Jerusalem on the Lower East Side of New York. Rav Adler invited Rav Moshe to start a Beis Medrash and Semichah program there. Two years later, Rav Adler drowned while swimming off the beach in Far Rockaway, and Rav Moshe became the Rosh Yeshiva of Mesivta Tifereth Jerusalem.
There are many anecdotes told about Rav Moshe. Most of them are apocryphal. Some of them are even debasing. Rav Moshe, above all, was a normal healthy personality, a normal husband, a normal father, a normal grandfather who took great pride and joy in his family.
Rav Moshe did not overtly display any special tzidkus or chasidus. His only publicly displayed middah was his gentleness. In the evening he would often go for a walk with his wife and stop in at the local candy store to buy a glass of soda. He read the newspaper every morning at the breakfast table, whatever newspaper it might be—the socialistic Forward, or the Tag, or the Morning Journal and then the Algemeiner Journal.
Stories reporting unusual behavior on the part of Rav Moshe are by their very nature false and insulting, for they are designed to pervert his most important message for our generation, and that is that mastery of Torah does not distort the human personality but only adds grace and glory to it.
The trait of emes, of absolute integrity, permeated all his responsa, all his behavior, his very personality. As was mentioned earlier, Rav Moshe escaped the military draft in Russia by obtaining a birth certificate that made him five years older than his actual age. The same birth year was subsequently recorded on his passport and on other documents when he arrived in the United State. For the first five years after he became eligible for Social Security, Rav Moshe regularly returned his monthly checks, offering no explanation except to say, "Thank you, I do not need it. When I need it, I will let you know."
He did not want to tell the government that the birthdate on his passport was false, but he also did not want to take money to which he was not entitled. He returned his checks for five years. I had the special zechus to return many of them for him. When the five years passed, he began cashing the Social Security checks.
Rav Moshe gave a disproportionate percentage of his income to charity. He kept records of every penny that he gave for tzedakah, never returning an envelope that he received in the mail from an organization without putting in a few dollars.
Over the years he was audited five times by the Internal Revenue Service. The large amount of charitable donations he claimed seemed out of line with his salary of $7,000 a year, but he never claimed a penny for any tzedakah for which he did not have a receipt. On each of the five occasions when his tax return was reviewed, the auditor was so impressed by Rav Moshe's integrity, honesty, and meticulous care in handling charity funds that he sent him a gracious, courteous letter of apology for troubling him. Unfortunately, this never prevented his return from being pulled the next time, obviously having triggered some warning bell in the review process!
During his early years at Mesivta Tifereth Jerusalem, Rav Moshe's salary was $35 a week. He could not afford the carfare home to East New York, where he and his family resided near his brother-in-law, Rav Reuven Levovitz, ז"ל, the husband of Rebbetzin Feinstein's sister, Zlota, ע"ה. Rav Moshe slept on a bench in the Beis Medrash all week until they were able to find an apartment on the Lower East Side.
During these early years, when he was just establishing himself in the American rabbinic world, Rav Moshe was asked to adjudicate a major dispute between some of the most powerful rabbanim in the United States and some shochtim in the slaughterhouses that they supervised. Rav Moshe ruled against the rabbanim and in favor of the shochtim. He would gleefully tell the tale of how the rabbanim threatened him, saying, "We tried to help you and you turned against us. You're finished in America." Rav Moshe's response was, "My role was not to help you or myself, but to state the halachah without prejudice, which I did."
The din Torah, being a very public one with many people involved, was soon known throughout the Jewish world. Thereafter, every difficult din Torah in America was referred to Rav Moshe and he became the final arbiter for everyone who feared the political power of the "establishment." He presided at hundreds of dinei Torah, and the next volume of Iggeros Moshe (vol. 9) will consist of his halachic rulings on these din Torahs and the rationale behind the decisions.
Rav Moshe's integrity as a posek was the target of a concerted attack by the Satmar community. Their ire had been aroused by his famous responsum on donor insemination. The Satmar Rebbe sent a committee consisting of their three greatest talmidei chachamim to meet with Rav Moshe and ask him to retract the teshuvah.
The Rebbe had told them, however, not to get into a discussion of halachic sources with Rav Moshe. They did not heed their Rebbe's warning and began discussing the topic from Talmudic sources. Rav Moshe devastated them, pointing out that they had never even mastered the simple understanding of the Talmudic text. They responded, "Well, the Rebbe warned us not to talk to you about learning." To which Rav Moshe responded, "Your Rebbe is wiser than you."
The Satmar never missed an opportunity to show antagonism to Rav Moshe. When Rav Moshe visited Israel in 1964, he went to visit the leaders of the Neturei Karta. They apologized for not greeting him at the airport, explaining that the Satmar Rebbe had forbidden it. When Rav Moshe asked why he had done that, they responded, "Because you became President of the Agudas Yisroel and this gives Agudah their only prestige. We do not want the Agudah to be such a powerful organization."
They repeatedly leveled attacks on Rav Moshe, all focusing on two specific teshuvos, the one on donor insemination, and the one on the nature and height of the mechitzah in a synagogue. Rav Moshe often expressed bewilderment that a halachah could be perverted for political reasons. How sad he would be to learn how frequently that happens nowadays, especially among those who willfully pervert his responsa.
Rav Moshe could not understand holding a grudge against anybody, and he often came to the aid of members of the Satmar community when asked to do so. For example, a certain Rav had quite viciously attacked Rav Moshe, crudely denigrating him in his writings. Subsequently, this individual became involved in a criminal act. Knowing the great respect that judges and others in the legal system had for Rav Moshe, he asked for a recommendation that might ameliorate any punishment imposed on him. Rav Moshe went to great lengths to be of help.
I recall that the Rebbetzin expressed her dismay at this man's chutzpah. How could he possibly face Rav Moshe after what he had written about him? Rav Moshe answered, "What has one to do with the other? He came to me for help. Did you expect me not to help him?"
During the last years of his life Rav Moshe remained active as a posek. There were several months during which he could not write his responsa. Rav Moshe had sight only in one eye. The other eye was what we now call a "lazy eye," but since it had gone untreated, was not functional. He wrote bent over with his head very close to the written page. A bony spur in his spine made it impossible for him to sit and write. Often he had to dictate his responsa, and on such occasions he would carefully review the typewritten text before adding his signature.
One evening, while lying in bed and reviewing his daily quota of pages of the Talmud, he paused and remarked, "I have much to be grateful for. I am especially grateful that I have never had to retract any of my responsa." As all who knew Rav Moshe could testify, his unimpeachable integrity would have made him withdraw a responsum if he felt he had erred, but the certitude he had expressed even as a young Rav in Luban accompanied him all his life. It was not that he could not make a mistake—he did not. His preparation for a teshuvah involved such mastery of Talmudic sources and such attention to detail as to make it virtually impossible for him to err.
As we have already stated, Rav Moshe was the most modest of men. He did not expect anyone else to acknowledge his greatness, but did not fail to acknowledge it himself.
A few years before his passing, he had to have a pacemaker installed. I explained the reasons for this to him. During the day, when he was giving shiurim or writing teshuvos, his blood pressure was perfectly normal. However, a 24-hour cardiac monitor revealed that at night, while he was asleep, his blood pressure became precipitously low. It remained normal only when he was involved in Torah study. In the past, he had often balked at going to the doctor for a general check-up, but had always been willing to see a physician when he felt something amiss. Now, however, and quite uncharacteristically, he was reluctant to accede to the doctor's orders. I asked him to explain his hesitancy, reminding him that we had asked for consultation on the proposed pacemaker and all the physicians had agreed that it was essential. Several days passed, and he still had not told us he was willing to go to the hospital.
I finally confronted him: "Shver, this is not your way. You always make up your mind very quickly. Why is it taking you so long?" Rav Moshe finally broke his silence. "I know how unworthy I am. I know how little Torah I know, but I am also aware that if they are to pick seventy-one people to make up a Sanhedrin, among the seventy-one they most likely will pick me too. However, a baal mum [someone with a physical defect] cannot join the Sanhedrin. I am perturbed at the thought of doing something to myself that would make me unfit to join the Sanhedrin when Moshiach comes." I then reviewed the surgical procedure for him. I showed him some diagrams illustrating exactly what would be done. After listening carefully, he said, "Oh, well, that is not really considered a baal mum. Please make the appointment right away." We did so. Sadly, very sadly, he was not chosen. A Sanhedrin was not formed, because Moshiach did not come. But, Hashem willing, he will come and Rav Moshe will sit in the Sanhedrin.
Responsa of Rav Moshe Feinstein
Introduction
Since the death of my father-in-law, זצ"ל, many authors have published halachic texts based largely on the responsa he published in the seven volumes of Iggeros Moshe. English translations of his responsa and those of other poskim have made these brilliant analyses of Torah law available to a new audience unfamiliar with the halachic process and with Talmudic terminology.
Ignorance of Torah is the great enemy of Torah; in particular, lack of knowledge of the methods by which Torah laws are applied to the complex daily life of the Jew in every age and circumstance. Overcoming this enemy is the Messianic hope of the prophecy that "the earth shall be filled with knowledge of Hashem as the waters cover the ocean bed." Unfortunately, however, translations and summaries of halachic discussions often leave much to be desired, and their use is fraught with danger. As the Talmudic sages observed, the translation of the Five Books of Moses into Greek caused "darkness to descend on the earth" (see Soferim 1:8). The tragedy of translating the Torah is that the translator inevitably distorts the text by omitting the interpretation provided by the Oral Torah, the body of rules derived by applying the thirteen middos by which we are enjoined to expound and expand our Torah laws. These are based on the exact usage of the Divinely spoken Hebrew words that make up the verses and chapters of Hashem's Torah.
Translations of responsa from Hebrew into the vernacular may similarly omit much of the truth hidden in the idiom, in the implied references that cannot be included in a literal translation. In addition, the English-reading public perforce includes many who lack an elementary Torah education. This audience is suddenly thrust into the magnificent world of responsa literature, for the understanding of which one requires what might well be called a postgraduate education.
Exposure to this technical literature without the proper background may lead to terrible errors, misinterpretations, and misapplications, as untrained readers allow themselves to compare and contrast what seem to be similar cases to the untutored eye. Reasoning by analogy requires a thorough understanding of the halachic process, an understanding which the posek has mastered after a lifetime of assiduous study.
Hagaon Rav Moshe, זצ"ל, expressed his concern about the dangers of translation in a short responsum (Yoreh De'ah III:91 [1982]) written to my son-in-law, Hagaon Rav Shabbatai Rappaport, Rosh Yeshiva of the Hesder Yeshiva Shevus Yisroel in Efrat, Israel. Rav Rappaport served as editor of the two most recent volumes of Iggeros Moshe, the last four volumes of Dibberos Moshe, as well as the eighth volume of Iggeros Moshe.
The responsum sent to Rav Rappaport is entitled: "The prohibition of publishing abstracts of responsa or translating them into the vernacular." In it Rav Moshe states: "I have heard that someone is about to publish an English translation of some of the responsa conclusions from my Sefer Iggeros Moshe. It is forbidden to do so even if the translation is accurate. In our time no one is permitted to issue final rulings on halachic issues without also publishing his sources and his halachic reasoning. Some have asked my permission to do so and I have refused their requests. Some will surely translate inaccurately or, what is worse, write in my name that which will cause others to err. Even if they were to translate the entire responsum, and not just the final conclusion, much damage can result from allowing people untrained in the intricacies of halachic precedent to use my responsa as case histories, [and then] apply [my decision] to other cases which they deem to be identical but which really are not. Therefore, I protest with all my might against such translations."
During the last four years of his active life, Rav Moshe and I often spoke of the fact that others had been translating and abstracting his responsa—usually inaccurately. We felt certain that this would continue in the future, given the intense interest of the younger generation, who are fully committed to the discipline of Torah law but lack fluency in the Talmudic Hebrew in which the responsa were written. He asked me to undertake to make his responsa available to this audience and outlined the guidelines to follow in order to avoid the above-mentioned dangers.
On the first day of Chol Hamoed Succos, 1983, Rav Moshe, זצ"ל, recorded these guidelines in a detailed elaboration of his responsum (Yoreh De'ah III:91). The following is a translation of his instructions:
First let me explain the short responsum published in Iggeros Moshe, Y. D. III:91. I had not intended to include it in my sefer; [my intention in writing it] was only to voice my objection to the publication of my conclusions without providing my references or reasoning. I know how deficient I am in knowledge of the entire Talmud, both the Bavli and the Yerushalmi, and the novella and commentaries of the poskim and Talmudic scholars, some of which I have not even seen. In my writings, I rely on [the fact] that I have analyzed the halachic sources to the best of my ability, for that is the essential requirement for issuing halachic rulings, as I wrote in my preface to the first volume of the Iggeros. Since I have recorded my reasoning and my sources, I view my responsa as lectures which all may review for themselves, choosing to accept my position or reject it. This was also the approach of Rav Akiva Eiger.
I understand very well that some will not study my responsa and will merely rely on my conclusions. However, since [everyone] has the opportunity to undertake such study when time permits, it is not my fault if [anyone] fails to do so.
The recorded reasoning is the essence of a responsum. After the close of the Talmud, we cannot innovate reasons not contained therein; rather, we must try to understand the Talmud's reasons. Approaches to the study of Talmudic reasoning on a specific topic may vary. This is why there are many controversies between the Rambam and the Tosafists and between the Shach and the Taz, the Magen Avraham and the Sma, the Chelkas Mechokek and the Bais Shmuel and others…. Therefore, it is not appropriate to write a definitive halachic text containing final decisions without sharing one's reasoning with the readers.
My main reason for writing the above is to explain my objection to translating just the final conclusions of my responsa….
My great father-in-law, זצ"ל, in discussions at my home, where for decades he spent the Succos holy days, further elaborated on this point. He asked me to translate those responsa which I felt it was important for our brethren to understand, but to do so "as a rebbe teaches a talmid." He asked that I work with meticulous care, presenting all the relevant background material in a lucid style, with full awareness that the readership would span the spectrum from Torah scholars to people with minimal background. He added, as an aside, that an English translation of the responsa would be available to non-Jews as well. Although teaching Torah to non-Jews is prohibited, our purpose in translating these responsa is to instruct Jews, and therefore we need not consider this translation a violation of the edict concerning the study of Torah by non-Jews.
I have prepared the following translations in accordance with the above instructions. Although the English version is faithful to the original, I have included additional material, enclosed in brackets, to instruct and edify those who will turn to the writings of the greatest posek of our generation as to a personal rebbe.
Preface to Iggeros Moshe, Volume I
This volume contains in large measure the responsa I have written to those requesting my halachic opinions. It might well have been appropriate not to answer them definitively (halachah le-ma'aseh), since so many Torah luminaries, great in knowledge of Torah and in piety, refused to issue definitive halachic rulings because of the warning recorded in tractate Sotah [22a]. [There it states that] Rav Abba, in the name of Rav Huna, stated, "Many has she destroyed—this refers to a scholar who has not reached the status of posek, but nonetheless issues halachic rulings."
It should be noted [in contradistinction], however, that [the following] is also written, "And mighty are those she killed," which is interpreted as referring to a Torah scholar who is worthy of acting as a posek but refuses to do so [Sotah 44a–b]. It was for this reason that the sons of Rav Akiva Eiger noted, in their preface to their father's responsa, that he felt duty-bound to respond to requests for his halachic opinions lest he violate the second dictum and be counted among those who were guilty of not issuing halachic rulings even though they had attained the requisite knowledge.
Those who refrain from issuing halachic rulings do so because one must rule with absolute accuracy, as in the days of Rav, Rav Huna, and Rav Abba. But every generation has a different standard for "attaining the level of a posek." Since decisors of equal standing with those of earlier generations are not available today, we [in our own time] are duty-bound to issue halachic rulings to our generation, as stated by Rav Akiva Eiger. [Despite this need, the prospective posek] must surely fear the danger of ruling incorrectly. For this reason many [great Torah scholars] refrained from [issuing rulings], Rav Akiva Eiger's strictures notwithstanding.
Rav Akiva Eiger was sensitive to the obligation to issue his halachic rulings despite his many concerns [regarding the dangers of halachic decision-making], but as a Torah giant he took his own measure and decided to assume the mantle of a posek. It follows, therefore, that those of minor accomplishments, such as I, who lack both Torah knowledge and wisdom, should refrain from issuing halachic rulings. [Furthermore, even if I do so,] I should certainly not publish them and thus issue rulings for the entire world.
However, in my humble opinion, [the scholars of earlier generations,] despite their inferiority when compared to the Torah scholars of [still] earlier generations, and, therefore, their concern lest they rule in error—an error known to Hashem—did not refrain from assuming the obligation to do so. The Torah instructs us, "It is not in heaven" [Deuteronomy 30:12]. Each posek must rule as he sees fit, after meticulous study and analysis of all the relevant texts and prior rulings, to the best of his ability, fully cognizant of the heavy responsibility he has assumed in applying Hashem's Torah to the life of the Jew. If, after all his efforts, his ruling does not concur with that known to Hashem, he may take comfort in the statement of our sages: "Both these and those are the words of our Living Lord" [Eruvin 13a]. If he makes his decision with due diligence, he will be rewarded for his efforts even though he has not divined the real truth.
This principle can be adduced from a discussion in tractate Shabbos [130a regarding the dispute as to whether preparations for milah, such as preparing the surgical knife and other implements, may take place on the Sabbath, since the mitzvah of circumcision takes precedence over the Sabbath laws]. Rav Yitzchok said there was a town in Israel whose inhabitants accepted the ruling of Rav Eliezer that preparatory acts [machshirei milah] may be performed on the Sabbath—and Hashem rewarded them greatly. [Indeed,] when the [Roman] emperor's edict prohibiting milah was promulgated, this town was spared. [And yet,] in truth, [the townspeople] were wrong. The halachah which rejects R. Eliezer's opinion prohibits these acts of transgression. [Moreover, such violations] incur the death penalty when performed intentionally and a sin offering if done unwittingly. [The townspeople] were rewarded, nonetheless, because R. Eliezer arrived at his decision after due diligence.
So it is with all disputes in the Talmud or later responsa. As long as no final conclusion is reached in the Talmud, each posek may rule in accordance with his own understanding, [and his rulings are authoritative] in his own town even if [others] rule in a contrary manner. All poskim receive a divine reward for their efforts even though only one of them is correct. Most certainly, we still find significant variations in laws and customs concerning very important Torah laws, as between those who follow the Rambam and R. Yosef Karo and those who follow the rulings of the Tosafists and the Rema. [But] both are the "words of our living Hashem" even though Hashem knows that only one is correct.
The Talmud [Sanhedrin 6a–b] is aware of the great responsibility judges bear in applying Torah laws to the daily life of the Jew. Some may think, "Who needs all this anguish?" [i.e., If I err, I will be punished by Hashem, as Rashi explains]. The Talmud reassures [those with such concerns] that a judge may rule as he sees fit [for his intent is to reach a conclusion that is righteous and true to Torah precepts, as Rashi explains].
The same insight may be applied to the Talmud [Menachos 29b]. Rav taught that when Moshe Rabbenu went up to Heaven to receive the Torah, he noticed that Hashem was "adding crowns [i.e., the tagin] to the Torah letters." "Master of the Universe," Moshe asked, "what prevents You [from giving the Torah without the crowns]?" In other words, as Rashi explains, why are You bothering to add these embellishments to the Torah script?
This explanation does not adequately explain the expression used, "What prevents You?", nor does it fit Hashem's answer, "There is a man named Akiva ben Yosef, who in the future will derive multitudes of halachos from every pen stroke I add in these crowns."
I believe that the interpretation I am suggesting here corresponds exactly to the text. Hashem made the very letters of the Torah sovereign. That is, the Torah scholar may use his judgment to compare and contrast, and thus may rule in accord with the majority opinion as to the meaning of the Torah's sovereign words despite the possibility that his conclusions do not conform to the truth as understood by Hashem. The Holy One gave the Torah to Israel so that they would act in accordance with the written and oral traditions from Sinai as they understood them. No additional explanations will ever come from Sinai, for "[the Torah] is not in Heaven." Hashem's intent was always to acquiesce to the sages' understanding of the Torah's precepts. This is how I interpret the Talmudic passage in Menachos, which states that Hashem placed crowns on the letters of the Torah. Hashem gave them sovereignty, independent of His own definition of absolute truth. This explanation also elucidates the frequently occurring expression "The Torah says," for we rule in accordance with what "The Torah says." This makes it clear why [both positions in] a dispute between Shammai and Hillel should be viewed as [reflecting] the "words of a living Hashem" despite the fact that they are in opposition to each other [Eruvin 13a].
Moshe's question is now understandable. "What prevents You," he asked, from declaring that there is only one true interpretation and, therefore, from promulgating the Divine Laws in such detail as to allow for no dispute as to their intent? Why make the words of the Torah sovereign [and independent of Your intent]? Hashem's response defined the halachic process. The Torah is infinite in its impact on man and society. Hashem intended for sages like Rebbe Akiva to expound the Torah and thus expand its scope from the limited body of written and oral law to the vast expanse of Torah without boundaries or limits [Eruvin 21b]. When a decisor arrives at a pesak after prodigious effort to the best of his ability, and in full cognizance—due to his awe of Hashem—of the great responsibility he bears, it is truly the right ruling.
Thus, the Torah scholars of our generation must be classified as having "attained the status of a posek," and are obligated to issue halachic decisions which have the force of "true halachah." The warning recorded in the Talmud [Bava Metzia 33a], that "errors committed unwittingly by a talmid chacham are to be considered willful transgressions," refers to one who did not make an adequate effort to clarify the relevant laws. This is the understanding of Rashi and Rabbenu Yona [Avos 4:12]. Failure to meticulously review all facets of the halachah before issuing a ruling counts as a intentional transgression, though the error may very well have been unwitting. Errors that could have been avoided by more diligent preparation are to be viewed as intentional transgressions, since the possibility of error is always present [and the decisor has the responsibility to guard against it].
I assumed the responsibility of responding to those who seek my halachic counsel [only] after I had clarified the halachah with much effort. In addition, I have recorded the reasoning for my rulings so that everyone may review my rationale. In doing this I assume the role of a teacher rather than that of a posek. The Talmud [Brochos 4a], noting that David HaMelech personally examined abortuses to determine the halachic status of the mother, teaches an important lesson. David HaMelech could have asked other great scholars to rule on these matters, but he did not, because it is forbidden to refuse to do a mitzvah [i.e., rule on a halachic matter] even if another person can act in one's place.
That is why I answered every question addressed to me. In doing so, I also fulfilled a filial duty by giving pleasure to my father, my teacher, the Gaon, זצ"ל, who expressed both the hope and the certainty that many would come to ask my halachic guidance, whether orally or by written communication, and that Hashem would assist me in answering correctly. Indeed, I am thankful to Hashem for His help in permitting me to do so until now, and I pray that He will continue to assist me to accurately understand the teachings of our sages, and to issue rulings that are true to the halachah without error. I ask this blessing also for my children and grandchildren, and for all my descendants and students as well as for all Torah scholars.
I decided to print my responsa because I only clarify and elucidate the halachah. Other Torah scholars can analyze my reasoning and decide whether they concur with my opinions. As anyone can see, I did not blindly rely on others, not even on the great decisors who preceded me, but critically reviewed and decided for myself what the correct ruling should be, as Rav Akiva Eiger taught us to do.
I ask all who study my rulings likewise to critically analyze my writings. In doing so they will become aware of the halachic process, thereby learning to reach a halachic conclusion, and I will be rewarded for having taught this method. May Hashem grant all of us the gift of being able to study and teach all the days of our lives, and thus to merit the rewards of the final redemption, when Moshiach ben David comes to rebuild our Temple, and the world is filled with knowledge of Hashem
Iggeros Moshe, Yoreh De'ah III 132
Establishing the Time of Death
Our knowledge of when a man is considered to be [legally] dead is recorded in Talmud Yoma 85a: "If a house collapses [and buries] a man [within], we are required to remove the debris in an attempt to find him, even if it is the Sabbath. When he is found, he is examined ad chotmo [up to his nose]." So too does the Rambam rule in [Mishneh Torah, Laws of the Sabbath 2:19], as does the Shulchan Aruch, Orach Chaim [329:4]. If no [sign of] life is detected when the nose is examined, i.e., no respiratory activity is detected, then [the victim] is deemed to be dead—solely on the basis of his inability to breathe. If [the victim's] respiration is extremely shallow, he is still regarded as alive; this is determined by placing a feather or a thin piece of tissue paper near his nostrils. If the feather or tissue paper does not move, the victim's death is halachically established.
However, it is necessary to examine [his breathing] many times, as I have already explained in a previous responsum [Yoreh De'ah II:174, sec. 2]. There I explained the Rambam's reasoning in Laws of Mourning 4:5, where he rules that death is determined on the basis of respiration, "One should wait a little while, for perhaps [the person who appears to have died has simply swooned or fainted." Once [enough] time has passed without respiratory activity, so that there is no longer any hope that he is alive, the person is considered dead—but only if his condition was carefully observed. He must be observed continually, without even the briefest interruption, so that it can be affirmed that he is not breathing at all. Since it is very difficult to maintain a concentrated effort for any significant length of time without the eye wavering, there is always a possibility that sporadic, shallow respiration still continues. Therefore this examination must be repeated several times. If there is no evidence of independent respiration, this is an absolutely reliable sign.
I refer you also to the responsum of the Chasam Sofer [Yoreh De'ah 338] where the principle that death is determined by the absence of spontaneous respiration is explained in great detail.
The preceding discussion refers to a terminally ill patient who is not on a ventilator. Some people, however, do require the aid of a ventilator. The ventilator inflates the lungs even though [the patient] is actually dead.
[Halachically,] breathing of this kind is not regarded as a sign of life. The "breath of life" test requires that the patient breathe on his own. Breathing by means of a machine does not satisfy the halachic definition of respiration, and therefore the patient is considered to be dead so long as the other criteria are met. If no sign of life is apparent to the eye, and [the patient] is absolutely unresponsive to any stimulus, such as a pinprick, [he] is in coma, but it is still forbidden to remove the respirator for fear that he may be alive and this will kill him. But when the ventilator is being serviced or the oxygen replaced [if oxygen tanks are used rather than having oxygen piped in], it is possible to observe him for a period of approximately fifteen minutes [while the ventilator is off because the tank is being replaced]. If there is no evidence of independent respiratory activity during this period, it is certain that [the patient] is dead. If [the patient] shows any sign of respiration, he should be reintubated, and the machine allowed to assist him until the point [now referred to as apnea] at which he is totally unable to breathe independently.
The above halachic considerations apply to a patient who is deteriorating from a chronic debilitating disease. In a trauma case, however, such as an automobile accident or a fall from a window, [the victim] may not be breathing because of temporary nerve damage. Moreover, as I have been informed by my son-in-law, barbiturate poisoning can mimic death. In situations of this kind, the patient should be tested by means of the nuclide scan test. If it is determined that the blood circulation does not reach the base of the brain, it is obvious that the brain must have begun to show the physical signs of destruction referred to as lysis. When the brain shows extensive lysis, it is as if the head had been removed from the body or the person decapitated. Therefore, the nuclide scan should be employed as an confirmatory test in cases of traumatic death. Continued dependence on the ventilator should not be relied upon as a basis for declaring the patient dead until after this test has been performed.
[The nuclide scan] will determine whether there is any connection between the brain and the rest of the body. Although [the patient] is not breathing, he should be intubated, even for an extended period, until the nuclide scan can be performed to determine whether there is any connection between the brain and the rest of the body.
Likewise, I accept your suggestion that in all cases it must be determined whether the patient is under the influence of drugs, for the effect of high dosages of certain drugs mimics brain-stem death. [A chromatography test should be done on a drop of blood to determine whether there are any drugs in the patient's system that could have caused his comatose state.] Only then is it possible to reevaluate the patient to see whether there is any independent respiratory activity. If such activity is detected, even if [the patient] can only breathe with great difficulty—i.e., his breathing is severely labored—he must be considered to be alive until the requirements discussed previously are met. [The requirements are] evidence of brain-stem death as evidenced by total cessation of respiration, and a break in the connection of the brain to the rest of the body as evidenced by the total cessation of all independent respiratory activity.
A New Teshuvah
Criteria for Determining Death
[This teshuvah is addressed to Dr. Elliot Bondi, grandson of that great Rav, the Gaon Rav Yosef Breuer, of blessed memory.]
My grandson, Rav Mordechai Tendler, has spoken to me at length about many of the doubts and concerns you have raised because of the New York State appellate court's ruling that brain-stem death should be regarded as an alternative criterion for determining death. [Pulmonary and cardiac criteria of death, when the heart ceases to beat and the patient is no longer breathing, have always been recognized.] The need for a ruling concerning neurological criteria of death arises because of the advent of the ventilator, a machine that allows for a patient to be perfused with oxygen even after brain-stem death has occurred—in other words, when the brain is no longer able to function because of the loss of oxygen to the brain and the subsequent destruction of critical brain cells involved in respiration. My son-in-law, Rav Moshe David Tendler, שליט"א, has explained to me that the judges of the secular court accept the so-called Harvard criteria for determining irreversible coma. In my opinion, these criteria are in agreement with the halachah. When they are met, it is as if the patient had been decapitated, for his brain shows actual destruction or lysis. When a patient is neurologically unresponsive to all stimuli and, in addition, has lost the ability to breathe on his own, he is unquestionably dead, as I explain in my responsum in Iggeros Moshe, Yoreh De'ah III:132. Under the Harvard criteria, however, it may occur that individual hospitals, or even the country as a whole, will begin to consider as dead individuals who are still alive according to halachic standards. I refer to persons who have suffered cerebral destruction, i.e., destruction of the upper brain, but are responsive to the stimuli involved in the breathing process and, therefore, must be provided with all medical care. If you should be legally required to cease treatment of such a patient, including removing the ventilator, do not personally do anything to hasten the patient's death. This applies even if [abandoning the patient] is inevitable because others will comply with the order if you refuse. Resign from the case if the hospital's regulations require you to remove the ventilator from such a patient. The hospital's administrators can then assign the patient to someone else if they so desire.
We cannot impose our laws on others, and therefore [decisions of this kind pertaining to] non-Jewish patients may be governed by their own laws. With a Jewish patient, however, the obligation to refrain from hastening death affects not only the physician but the entire Jewish community. They must do everything in their power to prevent the hospital from hastening the patient's death. Even a goses, i.e., a patient in extremis and whose death is uneqivocally imminent, is still halachically alive, and the laws [prohibiting] murder apply to him. I am aware that caring for a patient in a hospital involves significant expense. Nevertheless, even if treatment is futile, a patient must not be subjected to any procedure that would hasten his death. Similarly, any change in treatment that might cause death is prohibited. If you sense that providing greater care to a Jewish patient would be understood as favoritism to the Jew and neglect of the non-Jew, the same rules apply to the non-Jew as well. It is only our reluctance to impose our standards on adherents of another religion that allows us to differentiate between Jew and non-Jew. I end this responsum with my fervent prayers that we shall soon see the fulfillment of the promise of Hashem, "I am the Lord thy healer," upon the advent of Moshiach.
Iggeros Moshe, Choshen Mishpat II 72
Concerning Heart Transplants
[This teshuvah, written on Rosh Chodesh Adar II, 5 March 10 (1978), was addressed to Harav Kalman Kahana, of Chofetz Chaim Kibbutz in Eretz Yisroel, one of the famed talmidim of the Chazon Ish. The question concerns a patient referred to in Israel as a tzemach, i.e., a person in a persistent vegetative state (p.v.s.). The questioner asked whether a donor organ from this patient might be transplanted into someone in need of a healthy heart. At the time of the writing of this responsum, there was a moratorium on cardiac transplants in the United States because of the unsuccessful results of such operations.]
Regrettably, my physical health caused me to delay answering your question for a few days. However, I did send a short telegram to say that in my opinion [a heart transplant] would involve a double murder, killing the recipient as well as the donor, as I already stated in 1968; see Iggeros Moshe, Yoreh De'ah II:174.
It would surely be unwise to engage in extensive analysis, since people may make the mistake of thinking that some way exists to permit this action. I write now to clarify the matter further.
The information [on which my decision was based] was provided by my son-in-law, Rav Moshe David Tendler, שליט"א, who reviewed the medical journals to date and concluded that there is no basis for assuming that the recipient's condition would be improved [by a transplant]. All the evidence indicates that no [transplant recipient] survives for [even a few] years, and those who survive for less than a year suffer months of intense pain and anguish. In America transplant operations are forbidden, except for one state [California], where one doctor [Dr. Shulman of Sanford University] has been permitted to continue his work, although I do not understand the reason for this.
Many other countries have forbidden heart transplantation on the grounds that it is equivalent to murder [of the donor] and provides no benefit to the recipient. Therefore, I believe that the doctors were not truthful with you when they said that the heart transplant would result in an improvement of the recipient's condition. The donor's status is also in question, for they have not proven that he was dead [when the heart was removed]. The survey of the literature showed that all recipients suffered massive strokes within a few weeks [of the transplant] and died within a few months. Doctors who undertake heart transplants are in violation of the prohibition of murder, since they are unable to demonstrate that the transplantation procedure is successful.
Iggeros Moshe, Choshen Mishpat II 73
Short-term Prolongation of Life
[This is a seminal responsum presenting the halachic view on most issues of concern in the care of the critically ill. Addressed to several physicians, it is written in a succinct style, for the recipients were all physicians, well trained both in medicine and in Torah study. However, for the general Torah community, some background information is of critical importance lest the translation be a source of confusion and of misapplication of the halachic principle discussed therein. To fully understand Rav Feinstein's halachic reasoning, those studying this teshuvah should read the article entitled "Quality and Sanctity of Life in the Talmud and the Midrash" for orientation. Likewise, the article on brain-stem death in halachah, which contains all the background and source material necessary for understanding Rav Feinstein's halachic ruling, is a necessary accompaniment to this teshuvah.]
I regret that ill health has delayed my responses to the questions you pose, all of which raise issues of the utmost importance if the care of the critically ill is to be administered in accordance with Torah law.
1. Are there patients who should not be treated so as to prolong their lives for a little while?
This question obviously refers to a terminally ill patient who can live for only several weeks or months, at most. Such patients often should not be treated. The key concern is their quality of life. In cases of intractable pain, we have clear instructions from the account of the death of Rebbe, the compiler of the Mishnah, in Talmud Kesubos 104[a]. The Talmud describes how his students prayed that he would remain alive. His maidservant, seeing the great suffering he was enduring, prayed that the angels above would meet with success [in their prayers for Rebbe's soul to return to Heaven, [so that the rabbis' prayers for his continued life] would not be accepted.
In order to disrupt the rabbis' prayer service, the maidservant knocked down a large urn. This distracted the students, [who momentarily ceased their prayers], and as a result Rebbe was able to die.
The maidservant was a wise woman, learned in the ways of Torah. As recorded elsewhere, [Rebbe's] students learned many things from her, and for this reason the Talmud records that her actions were right and proper. Nedarim 40[a] relates an incident involving the students of Rebbe Akiva. They had neglected to visit one of their colleagues who was ill, and when Rebbe Akiva entered the study hall, he criticized them for this. His rebuke, as understood by the Ran [in his commentary on the Talmud], consisted of the following: "It is sometimes proper to pray to Hashem for the death of a critically ill person, if he is suffering greatly and his condition is really terminal; in short, if there is no rational hope that he will recover."
The Ran concludes that Rebbe Akiva's rebuke of his students was essentially as follows: "Why didn't you visit your sick colleague? You could have helped him or prayed for his recovery. If you were convinced that there was no hope of a recovery, you could at least have prayed for him to die quickly. Even that little help you withheld from him!"
The Ran cites the Gemora in Kesubos, referred to above, as proof that this is, indeed, the proper response for those who want to do the mitzvah of visiting the sick. We see that the Ran assumes that the maidservant's opinion is recorded as the final halachah.
Therefore, if a patient is terminally ill and in intractable pain, so that there is no hope of his surviving in a condition free of pain, but it is possible, through medical or technological methods, to prolong his life, then it is improper to do so. Rather, the patient should be made as comfortable as possible, and left without any further intervention. I must emphasize that it is absolutely forbidden to do anything or to provide any drug that will shorten the patient's life for even a moment. To do so would be an act of murder. [Physician-assisted suicide is halachically murder, even though the intent is to shorten the patient's life for reasons of euthanasia.]
If it is possible to provide drugs that will make the patient comfortable so that he will not be in pain, then efforts should be made to prevent the patient from dying. Intervention of this kind is to be continued only if the patient is not halachically considered a goses. The term goses refers to the heavy, labored, erratic breathing that occurs when death is imminent. A goses should not be treated at all. It is forbidden to intervene, lest the intervention shorten the patient's life. As quoted by the Rambam [Laws of Mourning 4:5], a goses is like a sputtering wick. Reaching out to fix it will often extinguish the flame. A patient who is critically ill and unable to breathe is suffering from oxygen hunger. Providing oxygen is required, not to prolong life but to ease the pain of the air hunger. I have been told that [oxygen insufficiency] causes acute pain, and it is our duty to ease the patient's discomfort in such cases. I am aware that this complicates the care of the patient, since it will make it difficult to tell when he has expired. For once the patient has expired [i.e., has been declared brain-stem dead], the respirator should be removed. Therefore I recommend that oxygen be provided in small amounts, i.e., from a small tank, not from the central supply. Every time the oxygen in the tank is used up there is an appropriate opportunity to evaluate the patient to determine whether brain-stem death has occured. The decision either to continue to provide oxygen or to remove the ventilator can then be made.
This suggestion will make it possible to provide appropriate treatment without running the risk of shortening the patient's life, even for a moment. [This succinct comment is in keeping with the analysis given in Iggeros Moshe, Yoreh De'ah III:132.]
2. The second question concerns the issue of triage, or who should be treated and who should not be treated?
The case you pose concerns two patients who are brought into the hospital, both in need of immediate emergency or critical care. One of them has a good possibility of being cured, but it is not absolutely certain that he needs intensive care, although [this] would be the preferred method of treatment. However, the second patient, for whom intensive care could only provide a postponement of death, cannot live at all without the attention of an ICU [intensive care unit]. Which patient should be given the only bed available?
In my opinion, if both arrive at the same time, the decision should be made on the basis of medical suitability. The one who has the best chance of being treated and cured should be given the available bed. However, if the one who can only live for a short time has already begun treatment before the arrival of the second patient, for whom there is an expectation of a cure, but he can only be saved if the first patient, whose life can only be prolonged for a short time, is removed [from life support], it is forbidden to interrupt the treatment of the first patient in order to save him. The logic is obvious. The individual who can live only a short time is not obligated to forfeit his life for anyone else. Once he has taken possession of the hospital facility and his life depends upon continued treatment, even if his life be but of short duration, his claim takes precedence over all other claims. I see this as a contractual relationship with the hospital and the physicians. The care they provide was assigned to this terminally ill patient and no one can take it away from him. The patient himself is not required to give up his place to the patient who can be cured, and possibly not even permitted to do so voluntarily.
[However, as noted in the case where both arrive at the hospital at the same time,] the selection of the patient more medically suited for treatment should be made even if the first patient, for whom there is no hope of actual cure, arrives first at the hospital. The one with the better chance of survival should be treated. The only time he should not be given preference is when the critically ill patient, who has no hope of cure, has actually begun his treatment, has actually been already placed in the bed in the critical care unit.
It goes without saying, of course, that even if the critical care facility cannot accommodate both patients, the one who is not to be admitted to the critical care unit should be provided with the best care available in some other department of the hospital.
3. The third question concerns the halachic status of the goses. I have been told that physicians do not recognize this state. Possibly this is because there is no real medical need to define the condition known as goses, since only Torah law requires that a goses not receive any intervention lest his life be shortened. Indeed, it may be that non-Jews are not halachically bound by this concern.
The Talmud and the Rambam [Laws of Mourning 4: [5]], and likewise the Shakh in Yoreh De'ah 339, warn against any kind of intervention with a patient in the goses state; even moving him is prohibited. The Talmud [Avodah Zarah 18] describes the martyrdom of Rebbe Chanina ben Tradyon, who was burned at the stake because he had been caught teaching Torah. To prolong his agony, the executioner placed wads of wet wool on his chest. His students, seeing his great anguish, pleaded: "Open your mouth and breathe in the flames so that you will die more quickly." Rebbe Chanina refused, stating that it is forbidden to shorten one's life by any action [of one's own]. However, when the executioner asked Rebbe Chanina whether he would be guaranteed a place in the World to Come if he removed the wads of wool from his chest and increased the flames that he had [earlier] reduced in order to prolong the dying process, Rebbe Chanina answered in the affirmative.
As the Talmud relates, the executioner did so and then threw himself into the flames, committing suicide as an act of contrition. A voice from Heaven was heard announcing that the executioner and Rav Chanina each had a place in the World to Come. This aggadic inclusion in the Talmud teaches us many halachos. In particular the incident suggests that the executioner's act of shortening of Rebbe Chanina's life was not sinful. It may be possible, therefore, to infer that a non-Jew is not bound by the law which forbids shortening the life of a patient in extremis, which halachically is referred to as the goses state.
Other sources, however indicate that there is no difference between Jew and non-Jew in this matter. I refer you to the Rambam's Laws of Kings 9:4, in which it is clearly stated that a non-Jew who kills someone who is critically ill [i.e, not in the goses state but mortally wounded or in a pathological condition] has committed an act of murder. In halachah, a goses is looked upon as having a more significant residual life than the individual known as a treifah. [The goses state should be visualized as analogous to a clock winding down. Until the clock stops, it is still considered to be an active timepiece even if only for another few minutes.]
I am uncertain, therefore, as to whether the halachah distinguishes between Jew and non-Jew in this regard. If there is no such distinction, then the incident concerning the martyrdom of Rebbe Chanina poses a halachic question as to whether the executioner violated the halachah or not. [I would suggest that although it is forbidden even for a non-Jew to hasten the death of a patient in extremis, this was an unusual situation. The executioner, on his own discretion, had reduced the flame and placed the wads of wet wool on Rebbe Chanina in order to prolong his agony. Perhaps we should view his restoration of the original state by increasing the flames and removing the wool, not as hastening Rebbe Chanina's death, but merely as undoing what he had done to prolong the dying process. M. D. T.]
This incident should be viewed as a hora'as sha'ah, a decision which is applicable only under special circumstances, but cannot be applied to other conditions, such as those found in the hospital. Thus we must conclude that it is indeed forbidden to offer any significant intervention to an individual in a goses state for fear that this would shorten his life.
Physicians who are not guided by Torah law may not be aware of this, or may feel that in medical practice it is an inconsequential concern. However, those who observe the Torah must be careful to observe the laws of goses. They should not intervene in any way that is not for the patient's direct benefit. Members of the Chevra Kadisha in every town in Europe were fully familiar with the goses state. They refrained from having any contact with the patient during this period. After the patient's death they undertook every procedure in keeping with the laws governing the honor and dignity due to an individual created in Hashem's image in accord with Torah law.
4. The fourth question concerns the differentiation between treifah of man and of animal, and distinguishing between a treifah and a goses. Treifah is a technical term referring to a puncture or ulceration of an organ or a condition best identified as edematous or eroded, whether or not there is pus or exudate present. The specific pathologies that make an animal into a treifah vary from organ to organ. Specific details can be reviewed in the Shulchan Aruch, Yoreh De'ah, Hilchot Treifos.
The definition of treifah employed in the dietary laws should not be equated with the definition of treifah as pertaining to the laws of homicide. Veterinary science and clinical medicine have progressed over time. Our understanding of natural law has changed in the course of time, as emphasized by the Tosafists in tractate Mo'ed Katan 11; so has our understanding of diseases and cures.
Therefore, the Talmud's statement, in the chapter in tractate Chulin entitled Elu Treifos, that a treifah cannot live for twelve months, must not be taken literally, as if it were a fact for all times and all places. In the time of the sages, perhaps even including the Amoraim, and certainly the Tannaim, this was the reality. An animal that suffered one of the eighteen pathologies could not survive for twelve months. Even if we could show that there is now a means of curing any of these treifos so that the animal could live, it would not change the halachah. It is a halachah le-Moshe mi-Sinai that these eighteen treifos make an animal unfit for consumption by those who observe Torah law.
This is what the Rambam means when he writes [in Laws of Shechitah 10:12] that it is not proper to add to the list of treifos even if one is certain that the animal is mortally ill and cannot live. The statement in the Talmud that a treifah cannot live refers to the eighteen treifos at the time the Torah was given. The reverse would also be true. If some medical or veterinary treatment had been lost through the centuries, so that an animal that once could have been cured can no longer expect a cure, the animal would still not be classified as a treifah. The explanatory note that a treifah cannot live twelve months is a good statement of the science of the time but has no halachic import. [In short,] the ability to be cured will not make an animal possessing one of the eighteen pathologies kosher, and an animal that is ill but not with one of the eighteen pathologies is not classified as a treifah even if its survival for twelve months is most unlikely. In our days there are obviously many treifos that can live a long and healthy life. Experiments done on animals during research in clinical medicine have clearly shown that one can resect the stomach and intestines and successfully treat the animal so that it becomes healthy and then can live a normal life.
Similarly, lungs have been resected successfully, both in animals and man, and even in the time of the Rambam, as indicated by his language in the Laws of Treifos, there were medical advances that allowed for some of the treifos to be cured. Medical science moves forward over the generations, so that there has occurred a change in the statement that treifos cannot live or, even in the reverse, that certain pathologies can be cured but such cures are no longer available to us. They have been lost with the passage of time. Our knowledge of nature changes, and indeed nature itself may change, but as I have stated above, these developments do not modify the definition of treifah.
This analysis does not apply to [the concept of] treifah in man and its application to the laws of homicide. The definition of treifah in man does in fact depend upon the reality, the knowledge of the day, as to whether the individual concerned can or cannot survive. Thus, if a victim is afflicted with a pathology that in the time of the Talmud would have been considered fatal, but today, because of good medical or surgical management, it can be easily cured, the murderer is to be put to death. This halachah is clearly stated by the Rambam in Laws of Murder 2:8, where he defines treifah as follows: "The doctors must say that this pathology has no cure and he will surely die from it." The Rambam does not refer to any specific pathology, as he does in discussing the dietary laws, the laws of treifah in animals. This is because "nature has changed and our knowledge of nature has advanced."
I would like to emphasize that capital punishment is not administered today because we do not have a Sanhedrin convened in the lishkas hagazis. Part of the Sanhedrin's meeting place had the same degree of sanctity as the courts of the Holy Temple, whereas the other part was a secular area which only carried the sanctity of the Temple Mount. It was only when the Sanhedrin of seventy-one could meet on the Temple Mount that the local town Beit Din of twenty-three could accept cases involving capital punishment. Today, however, someone who kills a treifah would be subjected to all sorts of social sanctions, such as the withholding of burial rights so that he could not be buried in a cemetery with other observant Jews, and in addition he would be subjected to any appropriate punishment, other than capital punishment, that is not in violation of the laws of our country. [Explanatory note: Physician-assisted suicide and euthanasia are now being debated; various opinions have been offered as to whether society should give its approval through changes in its laws, and for this reason the Torah view must be heard. Euthanasia is murder, even when the patient can live only for a very short time, a time measured in minutes. Passive euthanasia, i.e., withholding new therapy that could prolong the life of a dying patient, may be an option within halachic parameters. M. D. T.]
The definition of a goses, as distinct from a treifah, must be clearly understood. A goses does not have any specific pathology. [He is comparable to] a clock that is running down. Hakodosh Baruch Hu, as punishment for Adam's eating from the Tree of Knowledge, declared that death shall be the experience of man until Moshiach comes and the resurrection of the dead occurs. Thus, there is a finite time that man can live. The goses is an individual whose time to die has come. Lacking any specific pathology, he is not classified as a treifah but as a normal member of mortal society. Shortening his life is tantamount to taking the life of a healthy person. This is why our sages warn that a goses should not be "touched." Touching does not refer to essential care for his comfort, such as cleansing and providing liquids by mouth to overcome dryness, [but means that] we must be careful not to do anything that could possibly shorten his life. It is the weakened state that was of such concern to our sages, and hence a goses cannot be "touched."
[This prohibition] does not apply to a treifah. No medical intervention is permitted for a goses, since physicians have already concluded that no intervention can benefit him. Routine hospital procedures, such as drawing blood or even taking temperature, have no place in the final hours of a patient's life.
5. The fifth question concerns coercing a patient to accept a treatment or a medicine against his will.
If a patient refuses therapy, the halachic response depends on his reasons. If he refuses because the treatment is very painful and he wishes to avoid the expected discomfort, but the medical consensus holds that the treatment would benefit him and may lead to a cure, then it is required to coerce the patient, even against his will. This assumes, however, that physical force is not necessary, because the use of physical force may frighten and perhaps seriously depress the patient. Our sages held that fear and depression were allies of the Angel of Death. The physician should not take unto himself the responsibility of injuring the patient in the process of trying to help him.
If the patient lacks confidence in the medical staff, and that is why he hesitates to accept their advice, every effort should be made to call in consultants to assure him that he is being offered the best medical care available. In any circumstance where coercion is used, of course, the family should be consulted and the physician should be certain that the patient's relatives have no ulterior motive for agreeing to the use of coercion, but accept it only because it is the mitzvah of Hashem. [The physician also has some legal concerns, since a doctor who treats a patient against his will can be charged with assault and battery. Hence the instruction to treat the patient even by coercion must assume that a legal guardian, such as a member of the family, has approved the treatment so that the doctor will not be held legally liable for his actions.]
If the treatment is risky, such as a surgical procedure that involves some possibility of mortal danger, or a drug with serious potential adverse reactions, even if the drug has been approved because the risk/benefit ratio is in favor of using it, coercion should not be applied to administer the drug if the patient refuses treatment.
The use of drugs that have a potential for adverse reactions presents a very special halachic problem. It is extremely difficult to compare patients in clinical trials. A healthy person may very well tolerate a drug without ill effects, whereas a weakened one, suffering from a chronic disease and therefore in a debilitated state, may suffer ill effects from the same drug. Risk/benefit analysis is, of course, primarily the physician's responsibility, and whenever possible he should consult with his superiors to ensure that he makes the right decision as to whether the patient should be given the drug or not. Only when there is sufficient clinical evidence that patients in the same weakened condition can safely take this drug, with adverse reactions limited to only a small minority, may the drug be offered to the patient.
I emphasize that it is very difficult to evaluate a patient's state of health with reference to potential adverse reactions, and therefore meticulous care must be used to consult and study as much as possible before making a clinical decision.
6. Concerning autopsy: Teaching hospitals are required to perform a certain number of autopsies in order to maintain their accreditation as hospitals for physicians-in-training. The purpose of the autopsy is usually to confirm the diagnosis made by the attending physician. If postmortem examinations reveal that the cause of death was not the one the attending physician listed, the autopsy becomes a teaching exercise in order to prevent other misdiagnoses of the clinical symtomology presented by the patient. I am convinced that in our country, the United States of America, a country run on democratic principles, no one will be forced to violate his religious conscience. Therefore, a religious physician may refuse to participate in an autopsy or to be the one who requests an autopsy from a Jewish family. [There are, of course, circumstances when an autopsy is halachically permitted or even required. These involve direct benefit to a patient suffering from the same disease, where the knowledge gained from the autopsy will determine the treatment to be administered; e.g., when a new chemotherapeutic drug is being evaluated for toxicity and efficacy. M. D. T.]
7. The seventh question concerns a woman who has to undergo a hysterectomy.
The question posed is: May the surgeon also remove the ovaries and the fallopian tubes? I am aware that physicians often recommend that the ovaries be removed during a hysterectomy so as to prevent ovarian cancer. Since the patient is already undergoing the rigors of surgery, the additional time necessary to do an oophorectomy is not significant. The question you pose concerns the halachah of serus [sterilization]. In a male, serus applies even if the patient is already sterile due to a prior surgery. Yesh serus achar serus. There is a prohibition against increasing the damage to the genital organs even when the patient has already been made infertile by surgical means. With reference to females, [however,] there is no such law as serus achar serus. Once a patient has undergone a hysterectomy, nothing further can be done to her to diminish her childbearing potential. It is, therefore, permissible to remove the ovaries [oophorectomy] if the reason for doing so is in order to prevent the development of cancer, especially if a family member has died because of a similar occurrence. Furthermore, since the mitzvah to be fruitful and multiply does not apply to women, the prohibition in regard to undergoing a hysterectomy or a tubal ligation may be of rabbinc [and not Torah] force.
Therefore, we may respond affirmatively to the doctor's suggestion that the ovaries and fallopian tubes be removed in order to prevent the possibility of their becoming cancerous. Even if the danger of cancer for this woman was as low as a 5 percent risk, we could still justify the additional surgery if that is her wish.
This is not the same as a previous ruling of mine in which I said that a 5 percent benefit is no justification for initiating a surgical procedure. In the present case a surgical protocol has already begun. We are not initiating a surgery in order to obtain a 5 percent benefit, but, rather, prolonging the surgery slightly in order to remove the ovaries and fallopian tubes for a good reason. The slight additional risk is due to the lengthier surgery and extended anesthesia, as well as the fact that more damage is done during the extended surgery. This seems to be justified by the benefits to be achieved. These benefits include the psychological comfort the woman derives from the knowledge that she will never get cancer of the ovaries. When the patient is under anesthesia for hysterectomy, the surgeon might be justified in deciding on his own to remove the ovaries as well, if he feels that there is a clear medical indication to do so.
However, removal of the ovaries has a general physiological effect. It induces instantaneous menopause with all its associated effects on the patient's mental and physical behavior. Therefore I strongly advise that no oophorectomy be done unless it has been carefully discussed with the patient, except under the most unusual circumstances, such as signs of neoplasia on the ovaries discovered at during surgery.
8. The next question concerns abortion.
In the last few years there has been a great increase in the number of abortions performed. Torah-observant physicians are forbidden to participate in any way in an abortion, whether the patient is Jewish or non-Jewish. The prohibition against abortion is a universal prohibition applying to Jew and non-Jew alike. The hospital and the patient will surely respect a stand taken by a religious physician that his moral and ethical commitments do not permit him to assist in any way in the abortion process because according to our religion abortion constitutes murder.
The patient may then decide on her own to seek other help. This is not a case in which refusal to perform an abortion may incur the enmity of the non-Jewish world. The position that abortion is murder is held by many non-Jews as well, and indeed there are many countries in which abortion is illegal. The only time we may permit abortion is to save the life of the mother, because maternal life takes precedence over fetal life.
9. The ninth question concerns a terminal patient with metastatic cancer who can benefit from surgery that might ease his pain even though it will not alter the course of the disease.
Surgery whose goal is not curative but merely relief of pain does have a place in the ethical practice of medicine. It is logical to assume that a patient's quality of life is improved by surgery of this kind, and it may very well add some time to his longevity as well. In the case of prostate surgery done solely to ease the pain, it is sometimes necessary to castrate the patient. In such cases castration is also permissible because it is part of a medical/surgical protocol intended to improve the patient's quality of life by reducing his pain.
10. The tenth question concerns the tearing of garments as a sign of mourning by an attending physician whose patient has just died. If a physician is present when a patient dies, he is certainly required to tear his garment. If he has previously attended a dying patient and already performed the kri'ah, then he need not make a new tear in his garment. It is sufficient to extend the previous tear slightly. This leniency—to just add a little bit to the existing tear—can be relied on even if the second death occurs sometime later, and not on the same day. In Gesher HaChaim 4:9, the Gaon Tukatzinsky records the opinion that it is not necessary to perform kri'ah for a stranger who dies in one's presence at a hospital. The reason he gives is that people will fear to visit the sick in a hospital where the death of a patient is quite likely. I believe that this reasoning is weak. The halachah that commands us to tear a garment when present at the death of fellow Jew is an undisputed halachic ruling in the Talmud and, therefore, should be observed.
Your other questions concerning the behavior of a physician on the Sabbath are covered in the responsum which I wrote in the fourth volume of Orach Chaim, responsum 99. I refer you to that responsum, where answers will be found.
Iggeros Moshe, Choshen Mishpat II 74
a. Medical care of a Patient for Whom no Cure is Possible
b. Assumption of Risk in Attempting a Cure
1. You ask for further clarification of responsum no. 73. The analysis I gave is lucid and leaves no room for misinterpretation. Nevertheless, I will reiterate: If physicians have no means of healing a terminal patient or of improving his quality of life by reducing his pain, but do have the ability to keep him alive for a limited time, then they should not do so. This conclusion can be seen from the incident with Rebbe [Kesubos 104a], where the prayers of his students did not bring about a cure or even ease his lot, but only succeeded in keeping him alive in an anguished state. His maidservant, who was wise in Torah knowledge, prayed that the angels above would overpower the prayers of the students. When she realized that her prayer was not efficacious because of the continued efforts of the students, she did something to quiet their prayers. She threw down an urn and interrupted the prayer service, [thus] allowing Rebbe's soul to depart.
It is obvious from the Gemora that this was recorded to teach the halachah and is not just a "story." The Ran, in tractate Nedarim 40a, uses this incident of Rebbe to rule that it is proper to pray for someone's death if prayers for him to live without pain are unsuccessful.
It must be noted that there is no comparison between our prayers and those of the Tannaim in the time of Rebbe. The fact that our prayers are not answered and a patient does not recover or does not improve enough to become free of pain is no evidence that prayer will not be successful in the future or if offered by someone else. Therefore, nowadays it is not proper to pray for someone to die. However, we may infer from this incident that if physicians have no way to cure a dying patient or ease his burden, but do have the ability to prolong the dying process, they should not intervene. On the other hand, if a consultation has been requested and the expert physician has not yet arrived, it is certainly appropriate to do whatever is necessary to keep the patient alive until the new physician arrives.
In such a circumstance, one must ask whether the patient is really "incurable," because there is still hope that someone else may find a treatment that can help him. In my opinion, you need not ask the patient's permission to give him whatever drugs or treatment are necessary to prolong his life until the consulting physician arrives. Even if he objects, it would be appropriate to disregard his objection. This is so because there is still hope that the new physician will find a cure.
Clearly this is also the opinion of the Rema in Yoreh De'ah 339:1, for he not only permits but even requires the cessation of the treatment that is prolonging the dying process, even though the individual will die more quickly. The life of anguish which this goses is experiencing justifies the cessation of therapy. If the patient is not in pain, there is no rational reason why any effort should be made to shorten his life, even though he is in a terminal condition. It may very well be that there is no Biblical obligation to cure such a patient, or rather, to attempt to prolong his life. The commandment "And he may heal" may not apply to a [physician treating a] patient for whom there is no potential for healing. Nevertheless, it seems obvious to me that if the patient is not suffering any pain—in other words, if there is no burden in his maintaining his present state—there is no reason why he should not be given all medical care to prolong his life as much as possible.
The ruling of the Rema to remove the pellet of salt from under the tongue of the dying patient, which was placed there to prolong his life, surely is based on the assumption that the patient is experiencing intractable pain.
Doctors should not offer drugs or treatment unless they are convinced that these may help the patient. Sometimes, however, even if there is no real medical advantage to be gained, there may very well be a psychological advantage in that the patient does not feel neglected as long as some treatment is instituted. This placebo effect is often of great value to the patient. In deciding that there is no treatment of value to the patient, it is important that as many physicians as possible should be consulted, even those whose prestige is less than that of the physician in charge of the patient. Occasionally, a young physician may come up with an idea that an older physician has not considered. Even in Torah study, we have the warning: "Error can sometimes be caused by sharpness of mind." With reference to physicians this is even more true, because it is often very difficult to determine which of them is more brilliant, more expert.
In addition, healing requires the intervention of Hashem, Who chooses the right physician for the patient. The world-renowned physician may not be the one that Hashem has chosen for the mitzvah of healing this sick patient.
You expressed concern about my introduction of the concept of quality of life, which I did by pointing out that in terminal patients a life of pain need not be preserved. The medical community [you said] will extend this concept to the physically or mentally challenged, and that may lead to involuntary euthanasia. In truth, I do not see how my analysis will make this eventuality more likely to happen. Nothing in my analysis even hinted at a concept of quality of life which would exclude those who have mental or physical disabilities. It is, or should be, absolutely clear, without any doubt, to anyone who has studied our Torah and who fears Hashem, that one must heal or save every individual without any differentiation based upon his intelligence or physical stamina.
In cases of triage, the Talmud in Horios 13a establishes a list of priorities. The list presumes that the requests for help come simultaneously, so that there is no time gap between the two requests. Otherwise, the physician is obligated to respond to the first individual who asks for his help, even if a little later someone higher on the priority list is also in need of his help. Abandoning abandon the first patient in order to help the second is forbidden. The only time the physician should go to a second call is when it comes from a patient in danger of his life, and the first patient has been stabilized, so that he can safely respond to the new medical emergency. A very difficult decision is imposed upon the physician when more than one person needs his help. He must direct his prayers to Hashem to give him the wisdom to make the correct choice in cases of patient triage.
2. This concerns a case where a patient is terminally ill, but then acquires a second illness for which there is a cure. [For example, a terminal cancer patient develops pneumonia, an illness for which there is a cure. Should he be treated for the pneumonia even though the treatment, if successful, will restore him to his life of pain from the original illness?]
If the patient's illness is causing him great pain, and he would prefer to die rather than live under these conditions, it may well be proper not to treat him in any manner that would prolong the dying process. This means that it might be best to withhold treatment for the second illness, since if the pneumonia is cured, it would impose upon the patient the burden of his first disease, for which relief is not available.
This is a decision which the patient must make. When the patient is incompetent, his family must be consulted. The family's role as guardians for an incompetent patient is established as a priority, since the mitzvah to heal initially falls upon the family. The family's guardian role is also necessary so that a thoughtful opinion may rendered before any treatment is initiated. A patient cannot be treated as if he had no opinions or rights simply because he is now incompetent. However, the family's authority is not absolute. It is subservient to medical opinion. The key decisor in such cases must be the learned physician, who then discusses his recommendations with the family, and if they are uncomfortable with his opinion, they can call in another physician. In fact, the community is obligated to provide money from its charity funds or to raise money from donors in order to provide proper medical care for an individual whose illness is life-threatening and no physician has offered a treatment that is expected to be successful.
I would like to add another comment concerning the halachic import of the story of the martyrdom of Rebbe Chanina ben Tradyon in tractate Avodah Zarah 18a. Whereas Rebbe Chanina ben Tradyon would not open his mouth to hasten his death, we may infer that if his mouth had been open, he would not have been required to close it in order to prolong the dying process. From this we further infer that a patient does not have the obligation to prolong a life of pain. [Note: The analysis of the halachic implications of the executioner's actions, discussed above on pp. 42–43, requires further study.]
I have devoted lengthy responsa to these questions because they involve life-and-death decisions and often lack the clarity that would enable one to make a [proper] halachic decision. It is, therefore, very important to utilize the services of as many learned sages as are available; to consult as many physicians as possible; and to arrange for rabbis and physicians to discuss each case thoroughly, so that, with the help of Hashem, a proper decision can be reached.
3. Should intravenous feeding be provided to a terminally ill patient for whom there is no means of easing the painful burden he bears, and should this be done even against his will? Your question stems from my previous responsum to the physicians concerning providing ventilator assistance to a patient for whom there is no hope of cure. I pointed out then that oxygen hunger is a very painful experience and, therefore, that the ventilator should be provided, not for the sole purpose of prolonging life, but so as to ease the pain that the dying patient is experiencing. Quite clearly, providing nutrition to a patient is beneficial. In cases where it is better not to feed a patient, as when there is a high fever, then, of course, that becomes the medical decision for the benefit of the patient. In the absence of any such contraindication the patient should be fed, because food will strengthen his general constitution and enable him to bear his illness better. It is proper to urge a patient to eat when he refuses to do so. It is proper to speak sternly to such a patient to make him eat. However, a patient should not be restrained physically in order to provide him with nutrition. This is especially so when the patient feels that food is not good for him, finds it difficult to eat, and feels that the food is causing him discomfort. The decision to disregard a patient's wishes must be taken only after very serious consideration. Disregarding a patient's wishes so that he is put under stress is in itself harmful to the patient. The physician must be absolutely certain that the decision to disregard the patient's wishes is clearly for the patient's benefit. He should not do so without taking care to consult with members of the family and with colleagues, because the responsibility he assumes unto himself is great indeed.
The halachah, as interpreted by our sages, gave special consideration to the critically ill even in monetary matters, permitting a person who is critically ill to make binding commitments even without the normal procedure of due process of law, so as not to stress or frustrate him, as would be the case if we were to insist on full attention to all the legal technicalities. I would like to reiterate that distinguishing between short-duration and long-duration survival is a very sensitive area, for as I have already stated, if the procedure ensuring short-duration survival requires that the patient be subjected to significant pain and discomfort, then it should not be done. What is called short duration, what is called intractable pain, is often a subjective analysis.
For this reason, it is necessary to consult with the members of the family and the physicians to reach a rational decision. If the patient is sentient, surely the patient's opinion, in cases where there is doubt as to what is appropriate, must be given full authority. In the case of a pediatric patient, the opinion of those family members who have the major obligation to care for the child should be given the highest consideration in making such decisions.
4. You asked me to clarify further my reference to the death of Rebbe and the action of his maidservant as it affects the decision to pray for the death of a patient who is suffering pain, and for whom there is no hope of ameliorating his condition. The analogy I drew from that incident is, indeed, fully valid. However, it must be understood that the conclusion that prayers for his welfare are not efficacious, as evidenced in the case of Rebbe, where the students unsuccessfully prayed for his well-being and merely succeeded in keeping him in his anguished state, does not apply to our prayers. The great sages whose prayers were accepted by our merciful Hashem could understand that further prayer is futile. We [for our part] cannot be so confident that our prayers will normally be answered, and so we cannot conclude that in this case prayer would not be efficacious. We must therefore assume that if one is as certain as the maidservant in Rebbe's case that further prayer would be futile, it would be justified to pray for Hashem above to take the patient's life.
I emphasize most strongly that we are discussing praying or not praying for a patient to recover. Under no circumstances is it permitted to do anything to shorten the life of a patient, even with merciful intent. To do so would be to commit an act of murder, which is a capital crime punishable by death.
5. This concerns undertaking some danger or risk in order to obtain a cure. Who makes such a decision? Does it depend solely upon the wishes of the patient? The second part of this question concerns a patient who refuses surgery that is necessary to save his life because it will leave him severely handicapped, as, for example, in the case of an amputation.
First of all, let me emphasize that it is difficult to lay down general rules. Every case is unique and should be evaluated as such. The Talmud in Avodah Zarah 27b declares that in order to attempt to achieve a cure, it is proper to risk the life of a patient who will die shortly if not helped, even if the cure involves great danger. Is this ruling a requirement or a permission? That is, may a patient risk his life in order to search for a cure, or must he do so, since he is risking a life that is now of short duration in the hope of achieving a normal life span?
I have already written in a responsum in Yoreh De'ah III:36 that if the risk/benefit ratio is 1:1, i.e., there is a 50 percent likelihood of mortality and a 50 percent chance of a long-term cure, then the Talmud's ruling should be interpreted as permissive. If, however, the doctor is convinced that a cure can be achieved with a higher degree of probability, it is obligatory to undertake the risk in order to obtain long life. I would like to emphasize that when dealing with major surgery involving the internal organs, danger always lurks, and therefore only a physician whose expertise is recognized by other members of his profession should be entrusted with such surgery. Only in an emergency situation, where failure to act will lead to the death of the patient, should a regular, licensed surgeon be used, since we assume that a surgeon who undertakes to do an operation knows himself to be capable of doing it and has been well trained. In such cases, it is the surgeon's certainty that counts. The surgeon's confidence that he can succeed is what permits the risk to be undertaken. If the surgeon is quite doubtful, however, and is not a recognized expert among his colleagues, it would be better not to do anything. Patient autonomy is significant in a case where there is great risk and physicians are hesitant as to whether a specific treatment modality should or should not be attempted. But when the patient realizes that in the absence of treatment he will surely die, and is desirous of taking that chance, it would be best to accede to the patient's wishes. The possible adverse side effects of the medication, or the danger of the surgery, must be weighed against the psychic trauma to a patient who may interpret the lack of action for his benefit as evidence of the total hopelessness of his situation, or of lack of support for him among family or medical professionals. With treatments that have a potential for adverse affects or for serious morbidity or even mortality, we are dealing with a risk/benefit evaluation. If the risk is indeed the high as people say, the patient has one chance in a thousand or even one chance in a million, but [if they say,] "what do you have to lose?", the halachah would not approve of undertaking such a risk. In all such circumstances, decisions are difficult to make, and hence it is critically important to consult with [the surgeon's] peers and others who have an understanding of these matters.
Surely when a patient decides he does not want to undertake the risk, and would rather take his chances without running the risk of imminent death, the patient's decision should be honored. I would like to add that if the patient decides he does want to undertake surgery that has a limited chance of success, it is permissible to raise funds for his surgical care by asking people to contribute to a charitable fund for this purpose. It is not necessary to advise them that the surgery may be futile because of a significant risk, so long as the patient is convinced that it will be for his benefit. In the case of an incompetent patient or a child, it is proper to ask parents or other close relatives to make such decisions. The family's role here is based on the assumption that the patient would normally rely on the opinion of close relatives, and hence, by doing so now, even though he is incompetent, we are following his presumed wishes. In the absence of close relatives, of course, a Beis Din should make the decision. [If it is known that the relatives are not "friendly guardians" due to family animosities, then it is preferable for the Beis Din to make all such decisions.]
If a patient requires surgery to save his life, but refuses because the surgery will leave him maimed, as in the case of an amputation, it is quite proper to coerce the patient, even if physical restraint is necessary. However, it is not possible to say that one is required to do so when the patient who is resisting the surgery is an adult. Indeed, the extent to which coercion should be used is doubtful; I have already expressed this concern.
It is more logical, however, to assume that there is an absolute halachic obligation for every patient to seek the best medical or surgical treatment even if it means undergoing a serious surgery. With full cognizance that every invasive treatment involves great dangers, the expertise of a well-trained surgeon should provide the confidence needed to undertake the recommended surgery.
In this age of specialization, it is, of course, comforting to have a surgeon who specializes in the particular type of surgery involved. However, one may trust any well-trained surgeon who is willing to undertake the surgery because he has the competence to do so. Additional insights into the great halachic issues concerning the care of the critically ill may be found in responsum no. 75.
Iggeros Moshe, Choshen Mishpat II 75
Definition of short-term prolongation of life (Chayei Sha'ah)
In a case of microtriage, i.e., the selection of one patient over another for immediate treatment, the rule is as follows: If one patient can be expected to survive for only a short time, Chayei sha'ah, whereas the other patient can be restored to a normal lifespan, priority must be given to the second patient. The key criterion is whether one or the other has the ability to live for more than one year. Chayei olam, or restoration to normal life, means that in the physician's best judgment, the patient concerned, if properly treated now, can surely survive at least one year. Thus, the definition of Chayei sha'ah is the ability to survive, but for less than an entire year. Statistics concerning [patients suffering from] a specific illness, which indicate that the survival rate for the illness is limited to two or three years, whereas another patient, suffering from another illness, would, according to statistics, live ten years, have little halachic import. Treatment should be based on a first-come, first-served basis, or by some random distribution method which does not bias the treatment in favor of one patient. The general rule is that the physician responds to the first call and treats the one geographically nearest to him. If several patients are all equidistant from him and he is the only physician available, he should choose his priorities in accord with the Mishnah in tractate Horios 13a.
The second question concerns treating a patient who would not survive the year if untreated, but the treatment involves significant risk. A patient can live only for two or three months without treatment; moreover, the treatment available carries significant risk so that the patient may die earlier if he undergoes the treatment. On the other hand, if it is successful, he may live a normal life. Regrettably, I cannot find a clear source to resolve this issue. However, a reasonable approach would be to say that a person is halachically required to seek medical care only when there is a known and proven treatment available. The fact that a treatment is significantly risky may lead one to conclude that undertaking such a treatment may be forbidden. Given these conditions, it would be preferable to abstain from intervention, leaving the patient in the hands of the Healer of all flesh.
It is my considered opinion that with all factors evaluated properly, if indeed there is no other treatment, and death would be certain without treatment, it is permissible to assume a large risk in order to achieve a cure.
I am concerned about the use of statistics to determine cure rates and the degree of danger involved in the treatment. Estimates of mortality following a treatment which allow for the assumption that death might have occurred due to other causes, and thus deduct that amount from the actual percentage of patients who die, must not be given credence in halachic deliberations. When a physician says that a 60 percent cure rate is to be expected, this statement is meaningful only if sixty out of a hundred patients who suffer from this disease have been cured. An analysis that excludes some patients because their deaths are attributable to other causes [other than accidents] may only represent the bias of the physician.
The preceding discussion concerns a risk of treatment with a benefit of "normal life span," which we have defined as survival at least for more than a year. However, if the treatment will only prolong life for a few months and not for a full year, while the patient may die immediately because of treatment toxicity, I believe it is forbidden to undertake such a course of treatment, as noted above. [Halachically speaking,] we assume the risk of treatment mortality only if the treatment is expected to return the patient to the chazakah, or norm. Although I have inferred this from the Talmud in Avodah Zarah 27a, I am still searching for additional proof to support this decision.
Question 3 concerns a terminally ill patient who contracts pneumonia. Should the doctors treat the pneumonia? Concerning a patient who, in the estimate of the doctors, can live for only for seven days or less, and who has developed pneumonia, is one required to treat the pneumonia, knowing very well that there is no way of treating the main illness which is causing his death? I have already written on this matter. I feel very strongly that the pneumonia should be treated even though there is no way to treat the patient's principal disease. The assumption, of course, is that treatment of the pneumonia will in no way exacerbate the principal disease [and that the patient is not experiencing intractable pain].
4. Question 4 concerns the use of an unproven treatment suggested by someone who is not a licensed physician. If doctors say that an unrecognized treatment carries no risk to the patient, it is quite proper to use it if rational, intelligent people claim that it has been of help in treating this particular disease. If, however, doctors express doubt as to its safety, of course it should not be used. It is important to emphasize that one is obligated to go to a physician when one is ill. Therefore, if there is no physician in the area, the patient must be transported to a physician so that proper medical care can be provided. Even if there is some doubt as to the safety of transporting the patient, there is no choice. The patient should be transported to a medical facility where proper medical care can be provided. This is why our sages taught us that it is forbidden to live in a town where there is no proper medical care.
As for general supportive care of the patient, such as providing him with food, we must assume that nutrition and hydration of the patient are beneficial even if there is doubt as to whether [they are] proper in this case, unless a competent physician says otherwise.
5. Question 5 is a request for further clarification of the concept of a goses vs. a critically ill patient. The preceding discussion concerned a critically ill patient. The term goses is a technical term which refers to a patient in extremis, who cannot live three days. The Shulchan Aruch rules that if someone is told, "We saw your relative three days ago and he was a goses," close relatives are required to begin the mourning period. [What is involved] is more than the general concept of "most likely he died," but a certitude which has been established that someone who is a goses cannot possibly live more than three days.
(Nowadays, however, the management of critically ill patients in an intensive care unit provided with ventilators makes it impossible to apply [to patients in such a unit] the medical symptomology of goses, which was so well known to members of the Chevra Kadisha. The halachah that it is forbidden to have any physical contact with a goses, for fear of causing him more harm than good, must be evaluated today in light of the routine care that is offered to a patient in an intensive care unit. Drawing blood and unnecessary hygienic care, such as washing the patient, should certainly be prohibited.)
If absolutely nothing can be done to ameliorate the condition of the dying patient, it is forbidden to act in a way that reveals to the patient the pessimistic prognosis as to the outcome. Even if no medication is indicated, all supportive care should be maintained. Nutrition, hydration, even a placebo effect is valuable to a patient, since despondency is in itself damaging to him. Similarly, it is certainly forbidden to cause any unnecessary pain to the patient. If no medical care is indicated, there is no rational reason why routine blood chemistry should be done on the patient; nor should he be bothered having his temperature and blood pressure taken, if death is indeed imminent. Only that which is clearly for the patient's benefit should be done. Psychotropic drugs, such as antidepressants, should be used to make the patient as comfortable as possible. The imminence of death does not relieve the physician from the obligation to do everything for the comfort of the patient.
Special note concerning geriatric patients, especially those who are very old: Age is no factor in triage considerations. Preference must not be given to a younger patient over an older patient. The only acceptable criterion is medical suitability, not length of survival, for survival is in the hands of Hashem and has to do with the individual's [ordained] lifespan. Although it is obvious that a twenty-year-old patient can live longer than a ninety-year-old patient, both must be treated exactly the same when they are presented for treatment. The age factor must be discounted completely in all medical decisions.
The Anatomy of a Teshuvah
Indicia of Death
The opportunity to present the views of the greatest posek of our generation on many of the complex halachic issues that he was asked to analyze makes it possible to introduce readers to the methodology of pesak. A responsum is a distillation of the wide-ranging study of relevant texts, conflicting opinions, and factual information that makes up the "homework" of a posek. The methodical work of a posek can best be illustrated by tracing the halachic sources he uses to reach his conclusion, as well as the medical facts, which often, especially in the case of the responsum on brain-stem death, are often in a state of flux while the responsum is being written. Pesak is to Talmud what engineering is to mathematics. If the raw data are inaccurate, then the bridge will collapse. If the raw data are accurate but the conclusions drawn in error, then the greatest master of mathematics will have labored in vain, because the engineer has misinterpreted his instructions.
Pesak is the application of Torah principles to the daily life experience of man created in Hashem's image. It is, in fact, a form of prophecy. All the prophets after Moshe Rabbenu had but one message to deliver: zichru Toras Moshe avdi—"Remember the prophecy of Moshe," the only prophet permitted to record a Torah, a prophecy of instruction from the Creator of the world, the God of Israel, was Moshe. Ein navi rashai lechaddesh davar—"No prophet has the right to innovate," to deliver a message that is not contained in the Torah prophecy of Moshe Rabbenu or, of course, that contradicts it. For this reason, delivering a pesak, and thereby claiming implicitly that it reflects the intent of Hashem, who gave us the Torah, is an awesome responsibility.
The Maharshal, in his comments on Bava Kamma 38a, offers a highly dramatic halachic application of this awesome responsibility. He infers from the Talmud that it is tantamount to idolatry to say something false in the name of halachah. If forced to do so, a person must forfeit his life rather than utter a falsehood attributed to the halachah, the word of Hashem. The very same punishment is meted out to a false prophet as to an idolater, for both falsify our world's fundamental source of truth, the divine word of the Giver of our Torah. In doing so, the false prophet forfeits his soul!
The introduction of "political correctness" into the writings and teachings of those who lay claim to the prophetic mantle worn by every teacher of Torah truths, therefore, is viewed as a capital offense tantamount to the three cardinal sins: idolatry, adultery, and murder.
Poskim differ in the style of their responsa. Some write very succinctly, producing what amounts to an abstract of the many, many hours of thought which precede the decision to commit the distillation of this effort to the printed page. Other poskim take a more pedagogic approach, often recording the Talmudic source material used, as well as the comments of all the relevant later commentators. This material is then analyzed and the relevant conclusion is drawn in the form of a pesak. Rav Moshe, זצ"ל, was not consistent in this area. Sometimes he provided a short answer with only cursory references to source material. At other times his response was an exercise that displayed his powerful mastery of Torah literature and, most importantly, revealed to those willing to make the effort to study his writings, the brilliance of his analytical mind.
In the foreword to his Iggeros Moshe, he makes reference to his role as a teacher, claiming that he never issues a final coercive ruling, but instead presents his opinion, and the basis for his opinion, so that readers can could judge for themselves. His responsa concerning care of the critically ill often refer to the source material. They do not even hint at the tremendous effort he made to understand the medical facts and to seek relevant references in the halachah. The medical facts available to him lacked the clarity which they have today. Brain death was a confused concept which mingled cerebral death with brain-stem death without any clear means of differentiating between the two until the Harvard criteria came to be widely accepted. Rav Moshe was quite familiar with the Harvard criteria, as shown by his reference to them in one of his yet-to-be-published responsa, of which a translation is included in this volume (see pp. 34–36). It was these criteria that enabled the medical profession to differentiate true death from the comatose state.
Rav Moshe consulted with leaders in the field of neurology, transplantation surgery, physiology, and biochemistry, and in addition personally visited patients who had just been declared brain-stem dead. The "anatomy" of this responsum reveals the careful, deliberate dissection of the source materials that led to the construct that neurological death is, indeed, halachically valid. Many of these source materials are not even hinted at in the final formulation of the conclusions which make up his responsa on this issue. I will, therefore, reconstruct from my notes and my many, many hours of discussion with my great father-in-law the halachic basis for his responsa, and then present medical facts that were clarified for him over a period of more that two years; a interval that he found necessary in order to fully comprehend the difference between neurological death and deep coma. Again, it should be noted that this difference was not understood by the medical profession until well into the 1980s.
Talmudic Sources
1. Mishnah Ohalos 1:7.
A man is not considered dead until his nefesh [life force] leaves him. Similarly, neither is an animal declared dead so as to cause defilement [under the laws of tum'ah, ritual uncleanness] until the nefesh departs. If, however, they were decapitated, they are halachically dead even if they are still trembling [i.e., muscular movements are discernible]. The residual movement is halachically irrelevant. "It is like the tail of a lizard [which breaks off in your hand when you try to catch the lizard] and the tail still wiggles. Surely this is not a living state."
Maimonides, in his commentary on the Mishnah, explains this mishnah in terms that echo our current state of knowledge. To quote the Rambam: "Hashem taught us in Numbers 19:13 that only when someone dies or when some animal dies is there a state of defilement. Even if a person be in a most terminal state, he does not cause ritual uncleanness [tum'ah]. Certainty of death is not the state associated with tum'ah; death is." The Rambam then goes on to define mefarkhes, the term that the Mishnah used for muscular tremors, or movement after decapitation. The lizard's tail moves for some time after it has been cut off from the rest of the body. This, however, also occurs to other living organisms "if the power or the source or the stimulus for movement is spread over all parts of the body. If it does not originate from a central point, then that is not a sign of life." The Rambam here is accurately describing the difference between the localized response of a muscle group to stimulus with the functioning of a central nervous system that integrates all parts of the body.
2. Talmud Chulin 21a.
Rav Yehuda said in the name of Shmuel: If the neck is broken and there is a gaping wound in the musculature of the neck, then that person is considered to have died and, therefore, defiles a tent [i.e., an overhang or roof (tum'at ohel)]. If you ask me: "But what about the incident with Eli Hakohen [the High Priest in the period when Shmuel was born]? He was considered dead even though no wound was discernible?" I will answer you that in a geriatric patient it is different, as it says: "Eli fell off the chair and broke his neck and died [i.e., was immediately considered to be dead] because the man was very aged and very heavy." It is not the anatomical decapitation or the visible wound that is the criterion for declaring the patient dead, but the internal injury to the "neck" [i.e., the base of the brain or top of the spinal column].
3. Mishnah Yoma 83a.
If a building collapses on an individual on the Sabbath, you are, of course, required to transgress the Sabbath laws and dig out the victim. If he is found alive, then you continue digging. If he is found to be dead, then he is left where he is until after the Sabbath.
The Talmud, explaining this mishnah on folio 85, presents the following analysis: How do you determine whether he is dead? How much must you investigate? The Talmud answers: "until you excavate his nose." Others say: "until you excavate the debris to reveal his chest [i.e., heart]." The Talmud there concludes that even Abba Shaul admits that the essence of life is in the nose, as it says in Genesis: "All creatures who have the breath of life in their nostrils." Rashi comments: "How far do you investigate? If he appears to be dead, showing no movement of his limbs, how far do you continue to excavate to determine the truth?"
Analysis of the Talmudic Sources
The Mishnah in Ohalos states what is well known to anyone who has studied basic biology today. It refers to the death of an organism as distinct from the death of an organ or of a cell. Death proceeds from the organismal level to the organ level and ultimately to the death of the cells that make up the organ.
Halachic death, like death in the secular legal sense, refers to the death of the organism, not to the death of an organ or a cell. Hence, when Maimonides refers to the "power to move" as not centralized but existing independently, scattered throughout the body, he is stating the condition of organismal death with the organs yet maintaining viability.
In brain death, or more accurately, brain-stem death, not only the upper brain, the cerebrum, the center of thought and speech, but even the lower parts of the brain that control strict biological function, such as respiration, are destroyed. Rashi in Yoma, therefore, prophetically makes the statement that the patient "appears to be dead, does not show any movement," hence it is necessary to perform a test to determine whether, in fact, he is dead.
This test is a test for the existence, or persistence, of respiration. If the victim is neurologically silent, and in addition shows no signs of independent respiration, then the organized organism has died, and thus he is halachically dead.
The Talmud in Chulin 21a teaches an additional halachic truth. The mishnah in Ohalos refers to a decapitated individual. The Talmud in Chulin explains that decapitation is not a prerequisite for determining that death has occurred. When Eli Hakohen, an elderly man, fell and broke his neck, there was sufficient internal damage to consider him to have died, even though there was no overtly discernible wound. This leads to a modification of the concept of decapitation to include "physiological decapitation." Physiologically there is a great difference between a young man and an old man. A traumatic incident that would prove fatal to an elderly patient may not cause the death of a young patient. Hence the Talmud emphasizes that because of his age the death occurred instantaneously.
Surely you must add that when Eli was attended to, it was noted that he was not breathing and, hence, already had entered the state of defilement or death. The Talmud in Yoma emphasizes that if it is possible to examine a patient who is severely injured and possibly dead, one should ascertain whether independent breathing has ceased. If it has, the patient is dead and no further rescue efforts should be made on the Sabbath. The only irreversible criterion of death is apnea, the absence of independent respiration. Any attempt to assist such a patient, such as by putting him on a ventilator, would be to no avail if the loss of independent respiration is due to injury to the brain stem. In our times, it is relatively easy to determine whether damage of this type has occurred. If it is so determined, then there is no need to examine the patient any further. I must emphasize that we are talking about a patient who displays no response to any stimulus.
Thus this does not apply to someone who swallows a piece of meat and is choking on it and has no ability to breathe. A person in this condition will not be declared dead. He may very well be running, waving his hands, making attempts to speak. There is no need to subject him to any tests. He needs the loving embrace of a Heimlich maneuver, not a declaration of death! Likewise, a polio patient who cannot breathe independently because of paralysis of the phrenic nerve is surely not to be confused with a patient who is brain-stem dead. Rav Feinstein was reluctant ever to use the term "brain dead," or mitas hamoach. He feared that it would cause confusion between an organ versus organismal definition of death. The death of the brain is not to be equated with the death of the organism; the death of the organism occurs when the brain has been so severely injured that it cannot continue its functions of activating the human organism, including the activation of the respiratory response.
Later Sources
The Shulchan Aruch, Yoreh De'ah 370, reveals the understanding of our sages that halachic death does not necessarily coincide with total cessation of all muscular activity. The section's subtitle reads: "Who is to be considered dead even though he is still alive?" This siman of the Shulchan Aruch rules that decapitation is an absolute cause of death even if there is still residual muscular movement. The Shulchan Aruch adds two other conditions, both involving massive traumatic injury—hemicorpectomy (horizontal severing of the body) and a sword blow that severs the individual longitudinally along his back. In all these cases there are residual signs of life which are without halachic import because the key sign of life, the ability to breathe independently, has been lost.
The Rambam, in Laws of Mourning 4:5, expresses what surely was a concern of our sages in attempting to determine death in an absolutely error-free way. As the Rambam puts it, they feared that "perhaps he had fainted." Due to concern that the patient might be in a deep coma and not dead, they required the passage of time before anything could be done to him.
The patient was in the state of goses until the legal fact of his death could be absolutely determined by the prolonged persistence of apnea. Today, we have no difficulty in determining whether the absence of breathing is temporary or permanent. This can be done by a stress-free test known as the nuclide scan.
This test utilizes an innocuous amount of radioactive material of the kind that is used routinely in studying heart action in patients who have complained of chest pain, and even in pediatric medicine. A quantity of this radioactive substance, considered to be perfectly safe, is injected through one of the intravenous tubes. A few minutes later a "portable camera" takes a picture of the patient. If it is revealed that no blood flow enters the base of the brain, the condition is certainly irreversible. Brain cells are extremely sensitive to anoxia (absence of oxygen) and die within minutes after they are deprived of their oxygen supply, which is provided by the circulatory system. Many of those who oppose Rav Moshe's teshuvah on brain death rely on the responsum of the Chasam Sofer (Yoreh De'ah 338), although it is cited by both Rav Moshe and the Chief Rabbinate of Israel as proof that brain-stem death is halachically valid death. At the time of the Chasam Sofer, the interval between brain-stem death, where the heart still maintains its contractions, and "total death," was a matter of minutes, since there was no ventilator to keep the blood oxygenated in the absence of an independent ability to breath.
Hence, within minutes after the organism died, the organs, including the heart, ceased functioning. With the advent of today's technologically sophisticated ventilators, it is possible, even in a decapitated individual, to maintain the organs, such as heart, lungs, kidney, liver, and pancreas, in a viable state. However, we have no ability to maintain the brain in a viable state once the brain cells have been injured by anoxia. Many transplant surgeons are considering using organs from recently dead donors. Although such organs are less than desirable, the shortage of organs and the certainty that the patient will die unless he receives a new organ has made this a terrible dilemma. How much risk should be taken if the new organ fails to function? In the case of a kidney, it is possible to put the patient back on dialysis. But if a transplanted lung or liver fails, and a new donor is not immediately available, the transplant will cause the death of the recipient.
A second source, cited by those opposed "in the past" to Rav Feinstein's careful proof that brain-stem death is halachic death, is the Chacham Tzvi, siman 77. In this lengthy teshuvah, the Chacham Tzvi unequivocally affirms that respiratory death is the only halachically acceptable death. It is an interesting if confusing teshuvah, because the Chacham Tzvi did not have our present knowledge of the circulatory system, and in his scheme of things the heart was a respiratory organ, involved in the warming and cooling of the air. In this teshuvah, however, the Chacham Tzvi clearly emphasizes that motion per se is not a sign of life when the patient has been decapitated, and he refers to an execution by decapitation in which a headless corpse took several steps. Likewise, proof that the brain is no longer in any physiological association with the rest of the body (since it has been cut off from the circulation) would be a proper analogy to the Chacham Tzvi's insistence that only the "breath of life" determines life and death. The Chacham Tzvi's emphasis on the importance of the heart is grossly misunderstood by those who do not give this teshuvah a careful reading. According to the biological facts available to the Chacham Tzvi, the heart was a respiratory organ; its importance to him in determining halachic death was precisely due to its presumed vital function in promoting respiration.
Quality and Sanctity of Life, a Torah View
The following review of halachic literature is intended to present the Talmudic references that established the constructs Rav Moshe applied in his responsa on critical-care medicine.
The Talmud in Sanhedrin 37a emphasizes the sanctity of the life of the individual human being by equating it with that of the human race as a whole. "To save one life is tantamount to saving a whole world." Life is thus of infinite worth. The saving of a life takes precedence over all Torah prohibitions except adultery, idolatry, and murder. Except for the mitzvah to sanctify Hashem's name, which may require the forfeiting of one's life. In all other circumstances, preservation of life takes precedence over other ethical and moral considerations. The obligation to save a life applies to the individual himself. It becomes the ethical basis of medical care. When ill, a person must seek medical care in order to find a cure. Nothing can be done to shorten a life. Thus euthanasia is murder, according to Jewish law, however noble the motive. Withdrawal of hydration and nutrition is viewed in Jewish law as active euthanasia because of the inevitability of death.
In the responsa of Rav Moshe, a thread of compassion weaves its way through the analysis, indicating that at times treatment should be withheld and life not prolonged. As Rav Feinstein emphasized over and over again, the validity of a teshuvah is based upon the accuracy of its source material. What is the source material that allows us to question the concept of sanctity of life? Some decisors, not generally recognized as poskim but respected greatly by their own groups, such as some of the Chasidic Rebbes, have in practice demanded that everything be done to prolong life, if only for minutes, even in the cases of terminal patients suffering intractable pain. Thus, patients are resuscitated by electric shock even though the heart beats for but minutes thereafter, and the electric shock is repeated numerous times before the heart no longer responds. In his responsa Rav Feinstein makes it clear that this may be forbidden, for such patients are surely in the category of goses, and the halachah demands that no aggressive, invasive contact be made with such patients. In the next few sections I present the relevant Talmudic and Midrashic sources making up the construct that sanctity of life presumes a minimum quality of life, and that intractable pain in the case of a terminal patient is reason for not taking any measure to prolong the dying process. "Fighting for the last breath" is not a halachically valid formulation of critical-care medicine.
Kesubos 77b
Rebbe Yehoshua ben Levi is recorded in the Talmud as one of the greatest of the tzadikim in an era of tzadikim. A miraculous tale is told to teach a lesson. R. Yehoshua ben Levi was often in the company of angels, among them the Angel of Death. He once asked the Angel of Death to show him his place in Gan Eden. On the way there, Rebbe Yehoshua asked the Angel of Death for his sword, stating that the sight of him holding his sword was frightening. When Rebbe Yehoshua was shown his place in Paradise, he jumped in and took an oath that he would not leave. The Angel of Death appealed to Hashem, who decided that since Yehoshua ben Levi, the great tzadik, had never taken a vow or an oath and then abrogated it, he should not be compelled to do so now.
When the Angel of Death pleaded for the return of his sword, R. Yehoshua ben Levi refused, since without the sword death would be banished forever. Hashem interceded and instructed R. Yehoshua to return the sword, since "mortals have need of it." The sword—or, let us say, the scythe of the "Grim Reaper" in modern imagery—is needed when life becomes so burdensome that death is preferred.
Kesubos 104a
The death of Rav Judah the Prince, known as Rebbe, the compiler of the Mishnah, is described in Kesubos 104a. When Rebbe fell mortally ill and was in great pain, the students at the yeshiva prayed for his life to continue. His maidservant, who in another place in the Talmud is credited with great wisdom and Talmudic knowledge, saw his anguish, and prayed for the angels to receive Rebbe, and his students' prayers to be rejected. She went so far as to disturb their prayer by tossing an urn in their midst. With their prayer silenced, Rebbe's soul rose to Heaven. The Talmud records this in praise of the maidservant's wisdom. There is a time for prayer to stop. There is a time for the soul to return to Heaven.
Nedarim 40a
The Talmud records an incident in the academy of the great Rebbe Akiva. One of his disciples took ill and, in a strange breakdown of the mutual respect and concern that normally typified Rebbe Akiva's Academy, none of the other students visited their sick colleague, as noted in the Gemora (Yevamot 72b) that attributes the terrible plague that decimated the academy during the days of Sefirah as due to the breakdown in human relations. Rebbe Akiva went to visit him and was of such help, that the student stated that the visit had saved his life. When Rebbe Akiva returned to the academy, he rebuked his students, saying that he who does not visit the sick "is as one who sheds blood."
Rabbenu Nissim, in his commentary on the Talmud, now printed in the margins of our Gemoros, analyzes Rebbe Akiva's statement in order to glean whatever halachic information may be derived from the story in relation to that of Rebbe's death. Rebbe Akiva rebuked his students as follows: "You could have gone and been of help to him. You could have prayed for his recovery. If you had found him in a state of great pain and there was no hope for his recovery, you could have prayed for his speedy death." Rabbenu Nissim thus establishes, in unequivocal terms, that there is a time to pray for a person's death. Surely, that is not a time for resuscitation. It is not a time for heroics to prolong life by minutes or days.
Avodah Zarah 18a
Rav Chanina ben Tradyon was burned at the stake for teaching Torah publicly, in violation of a Roman decree. The executioner, as an additional cruelty, wrapped Rav Chanina in a Torah scroll and placed wads of wet wool on his chest to prolong the dying process. When Rav Chanina's students urged him to open his mouth and breathe in the flames in order to hasten his death, Rav Chanina refused. "No, I cannot do that. Let the One who gave me my life take it away, for it is forbidden to injure oneself." The executioner, hearing this exchange, realized how great a man his victim was. In an act of contrition, he asked Rav Chanina's permission to remove the wads of wool and wanted to be credited with a meritorious act for doing so. Rav Chanina agreed and even swore that this executioner would have a place in the World to Come.
The distinction between opening one's mouth and breathing in the flames and removing the wads of wool is quite obvious. Opening the mouth is an act of euthanasia. Removing the wads of wool is cessation of a treatment that prolongs the dying process. That is permitted and, indeed, is considered a meritorious act.
Ta'anis 23a
The Talmud records the strange tale of Choni the Circle-Drawer, who slept for seventy years. Choni was a great tzadik whose relationship with Hashem allowed him, "like a child dealing with his father," to draw a circle around himself, refusing to step out of it until Hashem sent rain to the parched land of Israel. This great tzadik arose from his long sleep and entered the house of study, where he soon discovered that he was counted as one of the greats, for he heard a scholar say: "Not since the time of Choni Hamaagal has there been anyone who had the Torah so lucidly in his mind." Choni tried to convince the people that he was the same Choni whom the scholar had praised, but to no avail. They acknowledged his great mastery of Torah but attributed to mental imbalance his claim to be the Choni who had disappeared seventy years earlier.
Choni felt himself an outcast from society and prayed to Hashem for death. The maxim "Give me friendship or give me death" comes to us from this plea to Hashem. Choni was suffering, not from any terminal illness, but from severe mental anguish and psychological pain. The Talmud does not look askance at Choni's refusal to continue his life of anguish. Indeed, the halachah equates psychological trauma with physiological pain.
Sotah 46b
The Talmud records a dramatic case in which "quality of life" was the determinant for the prolongation of life. The town of Luz was inhabited by great tzadikim who devoted themselves to making the techeles for the tzitzis. Because of their meritorious behavior, no one in the town died. The Angel of Death was not permitted to enter the town. When one of the righteous men of Luz grew old and determined that life had lost its savor and become burdensome, he would go outside the walls of the town to await natural death. The Talmudic sages made no negative comment, seeminly accepting loss of quality of life as adequate justification for this behavior.
Bava Metzia 84a
R. Yochonon became deranged because of the guilt he felt over the death of his brother-in-law and student, Resh Lakish. The sages successfully prayed for his death. Surely they had prayed for his recovery first, and only decided to pray for his death, since his quality of life was unacceptable, when their initial prayers were not answered.
Midrashic Sources
Several additional sources in the Midrash might be cited. The Midrash may be used a source for halachic decisions when it is unopposed by anything in the Talmud. Of particular interest are Midrash Tehillim Rabbah 8 and Bamidbar Rabbah 22:2. However, the foregoing citations from the Talmud should adequately present the principle that although life per se is of infinite worth, quality of life is, indeed, a halachic consideration.
Analysis
The preceding discussion illustrates the manner in which a pesak is developed. It is not an expression of personal inclination or an emotional response. Mastery of the entire Talmud is required to find the source material to answer a question that seems not to have been treated specifically in the halachah. Although most of the references have prayer as the "treatment modality," all of them, when combined with the record of the martyrdom of Rav Chanina, permitted Rav Moshe to conclude that a life of intractable pain should not be prolonged if cure is not possible.
However, a critical reservation must be emphasized. Quality of life decisions can only be made by the patient. A patient may decide to bear the pain rather than suffer the consequence of no treatment—forfeiture of his life. A very special burden is placed upon the caregivers when the patient is incompetent and cannot express his wishes. In his responsa, Rav Feinstein concluded that in the absence of any contradictory instructions from the patient when he was still competent, we must make what is known as a "best interest" decision. Loving family members, in cooperation with the physician and their rabbinic guide, must decide whether the patient's quality of life is so poor so as to justify withdrawal of all treatment other than hydration and nutrition.
To summarize Rav Moshe's position on the quality of life factor in cases of terminal illness: Halachah holds human life to be of infinite value and requires that all halachic restrictions be waived in order to save a human life. The physician is divinely licensed and obligated to heal, and patients are obliged to seek healing from competent physicians. Any deliberate hastening of death, even of a terminally ill patient, is an act of murder. The halachah never permits active euthanasia.
However, a physician is only obligated to heal when he has a medical treatment or modality to offer the patient. If the patient is dying from an incurable illness, and every therapy that could possibly be of help has been made available to no avail, the physician's role changes from that of a healer to that of one who cares deeply for the dying patient. Supportive care is required at this stage; food, water, good nursing, maximal psychological support. Rav Moshe often emphasized how important it is for the physician who can offer no cure to assiduously devote himself to easing the patient's burden. Pain, unrelieved by medication, makes life unbearable. Under such conditions it may even be proper to withhold further therapeutic protocols that may prolong life but not cure the patient. Experimental therapy, if available, is an option which a patient can accept or reject. This is especially so if the experimental therapy carries a significant risk so that its use may lead to an earlier death. The patient may decide to stay with conventional therapy even though no cure is expected, but the patient's present state may be prolonged.
Finally, it is the patient who must decide whether to assume the risk of experimental therapy or the no-risk, no-cure decision that conventional therapy offers.
The Anatomy of a Teshuvah: Medical Facts
During the late 1970s and much of the 1980s, vital-organ transplantation was in a state of flux, or more accurately, confusion. Since there was no consensus on how to determine whether neurological death had occurred and on what was acceptable mortality and morbidity postsurgically, a moratorium was declared, effectively stopping all cardiac transplants. The heart was the only vital organ that was being studied at that time. Liver, lung, and pancreas awaited further advances in transplantation surgery, advances that essentially occurred toward the very end of the 1980s and in the early 1990s.
Rav Feinstein studied the medical facts for almost two years. During this time, leading physicians in transplantation surgery came to his home to explain what they knew about two critical issues: (1) how to be certain that the donor was dead, and not merely in a deep coma; and (2) how to determine that the recipient had a better than 50 percent chance of long-term survival following transplantation. Many contributed to this understanding. Medical literature was replete with transplantation reports. These were translated for Rav Moshe, but the main contribution was made by people who came to his home, some spending long hours, even days, to present the best knowledge available at the time, knowledge that proved to be fully accurate as transplantation medicine developed.
The contributions of specific physicians should be noted, if only as an expression of appreciation for their selfless dedication to the task of helping the great posek clarify the factual issues so that a halachic ruling could be made. Dr. Ira Greifer, the Medical Director of the Kidney Foundation of America and Chairman of the Pediatric Department of Albert Einstein College of Medicine; the great, late transplant surgeon, Dr. Sam Kountz of Downstate Medical School; Dr. Irwin Krasner, a yeshiva-trained pediatric surgeon; the late Dr. Sam Korman, great oncologist; and many young, yeshiva-trained physicians who were invited to present, in their own words, their understanding of time of death, and of the burdens the recipient would have to assume since transplantation surgery substitutes one illness for another. Even successful transplantation results in lifelong "transplantation illness" requiring ongoing maintenance therapy with immuno-suppressive agents making the patient more prone to infections and neoplastic disease.
During the early years, the definition of brain-stem death, now universally understood, was confused with cerebral death or deep coma. Rav Feinstein emphasized in several responsa that a patient in deep coma is considered to be fully alive and any shortening of his life is an act of murder. The fact that such a patient would never recover sufficiently to be aware of his surroundings and to communicate, but would die without hope of cure, had no effect on his right to medical care, or rather on our obligation to provide medical care.
Rav Feinstein had, as his main criterion, the halachic rule that a patient who shows no independent movement and has lost the ability to breathe independently is considered to have died. The medical profession finally came to the same conclusion in the now universally accepted definition based upon the Harvard criteria, now known as the President's Commission Statement on Determination of Death. This statement reads as follows: "An individual who has sustained either irreversible cessation of circulation and respiratory function or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards." This definition has been endorsed by the medical associations in every country where modern medicine is practiced.
Tests to determine the cessation of all brain function, including the brain stem, must also ascertain that there is no possibility that profound drug-induced or hypothermic nervous system depression is masquerading as brain death. The key test, however, is apnea, or the absence of breathing, as presently performed.
The diagnostic protocol to test for brain death does not call for the apnea test until the neurological responses indicate a high probability that the patient is dead. These neurological tests include pupillary reaction, eye movement, and motor response to stimulation, so as to establish that there is death of the midbrain, pontine death as well as medullary death. This state must be maintained for some specific time interval. In practice, most hospitals repeat the tests after twenty-four hours, ensuring that the patient has been in the state of brain death for at least that period. Halachah has yet to make any specific pronouncement as to how much time should pass before the patient can be removed from the ventilator and either be used as an organ donor or buried. Rav Feinstein was aware of the pathological observations in patients who had been declared brain dead. The study that was reported to him, printed in New York Academy of Science 315 (1978), gave the pathological findings twenty hours after the patient had been declared brain dead. These findings involved major morphological changes in the brain; liquification of parts of the brain, actual physical destruction visible to the naked eye. It thus would seem that a twenty-four-hour time interval is more than adequate to establish, with absolute certitude, that the brain is no longer functional.
Rav Feinstein emphasized the functional definition of brain death. When a patient's heart stops, the classical criterion for determining death, the cells of the heart are nevertheless still alive. It is the organ that is no longer functional. Likewise, in the case of brain-stem death, the circulation to the brain has been sufficiently disrupted so that the brain cannot perform its function of sending messages to the other parts of the body and, most critically, is not able to maintain the breathing activity essential for life. This loss of function is irreversible.
Interestingly, Rav Feinstein rejected the suggestion that in all cases a nuclide scan be done before declaring the patient brain-stem dead. In his responsum, Rav Feinstein suggested that this test, which determines by radiological methods that no blood is entering the brain, an absolute sign that the brain is no longer functioning and that lyses, or liquification, will ensue, should be reserved for cases of sudden traumatic death. Based upon his study of the medical facts, he was quite convinced that the neurological examination, including apnea, was more than adequate to establish the halachic validity of brain-stem death.
In cases of sudden traumatic death, Rav Feinstein intuitively felt that the patient might not be sufficiently stabilized for these tests to be as valid as they would be with a patient who is chronically ill and increasingly debilitated, ultimately leading to death. In a letter written in 1976 to the New York State Assembly, which was considering a bill in relation to the determination of time of death, Rav Feinstein wrote that the proposed legislation was "unacceptable because it did not specify that the sole criteria of death is the total cessation of spontaneous respiration" (for the full text, see p. 89).
Rav Feinstein objected to the emphasis on the brain rather than the respiratory function. He was concerned that testing should not stress a patient who was not brain dead but in the terminal stages known as goses. For this reason he ultimately concurred that the nuclide scan test may be of value, since it does not require that the patient be touched. The test consists of the injection through existing intravenous tubing of a small amount of an innocuous radioactive material which is used to highlight the circulatory system throughout the body. Failure of the radioactive material to enter the brain is absolute proof of cessation of circulation to the brain, or its severe impairment so that all neurological functioning ceases.
However, since the cessation of respiration is the sole criterion of halachic death, the apnea test must be performed. Under the universal protocol now practiced in all hospitals, the apnea test is done in such a way as to minimize any possibility that the patient will be stressed. Advances in medical technology since Rav Moshe's death provide additional methods for determining brain death without stressing the patient. PET technology, as well as other refinements which now can measure whether the brain cells are utilizing glucose or not, may in the future prove to be the very best method of determining brain death. Failure to metabolize glucose is absolute proof that the cells have died. Glucose utilization can be localized; when the brain stem is shown not to be utilizing glucose, and, in addition, the nuclide scan shows that there is no discernible amount of blood reaching that area, there would be no shadow of doubt that the brain cells so studied are no longer viable.
When Rav Feinstein's responsa on brain-stem death were disseminated to the Torah-observing public, some readers raised objections to this ruling. The objections fall into two categories. Those in the first category derived from failure to understand the medical and halachic facts; those in the second approach the subject with a bias that is still hard to understand. This bias led to statement that perverted the truth. Chief among the detractors in this category are Dr. Abraham Abraham of Shaare Tzedek Hospital in Jerusalem and Rav J. David Bleich of Yeshiva University, as well as Rav Moshe Sherer and Mr. David Zweibel of the Agudas Israel of America. Under their instruction, the Jewish Observer, the house organ of the Agudah, published much erroneous material on this subject despite efforts made to present them with the true facts. Full documentation for this is presented on pp. 180–182.
Hagaon Rav Shlomo Zalman Auerbach, זצ"ל, who has clearly stated his full concurrence with the brain-stem-death definition of halachic death, was quoted both by Dr. Abraham and the Agudah as in opposition. This misrepresentation seriously calls into question the validity of other statements made by Dr. Abraham and the Agudah in the name of the Gaon. To facilitate the understanding of these documents, I would like to point out the critical errors on the part of those who objected to Rav Feinstein's ruling on brain death.
Dr. Abraham, despite many efforts to dissuade him, suggested in print that Rav Feinstein's responsum on brain death must be understood as brain death in addition to cardiac death. In other words, Rav Feinstein, alone in the halachic world, would have required that after a patient is declared dead on the basis of classic circulation criteria (i.e., the cessation of heartbeat), halachic death would also require that the brain die. Such a reading of Rav Feinstein's responsum can only be understood as an unfortunate misreading.
Dr. Abraham is a physician and knows very well that you cannot do a bloodflow nuclide scan when the heart has stopped. Yet, in the responsum, Rav Feinstein says that the nuclide scan should be used in cases of sudden traumatic death. Dr. Abraham's insistence on publishing this reading of Rav Feinstein's responsum, despite the efforts of many of his colleagues to point out this error, is most regrettable.
Rav J. D. Bleich misinterprets a responsum in which Rav Feinstein rejects brain-death criteria. However, that responsum clearly states that the case at hand is of a patient who can breathe independently. Such a patient is not brain dead, but cerebral dead or in a deep coma, and no one denies that such a patient is not dead—neither according to halachah nor according to any secular medical system known today. Similarly, he claims that the Chief Rabbinate of Israel, in their ruling which approved brain-stem death as a basis for allowing a cardiac-transplant program to be initiated in Israel, "never discussed brain death." A reading of the Chief Rabbinate's ruling (see pp. 174–179) shows that one-quarter of the responsum of the Chief Rabbinate was devoted to defining brain death and establishing it as a criterion for vital-organ transplants.
The role of the Agudas Israel remains an enigma. The letter on page 90 to Mr. Miller of the New York State Assembly was drafted by Rav Moshe Sherer of Agudas Israel. He was fully aware of Rav Feinstein's position on respiratory death but saw fit to attack this ruling, not by questioning the halachic or medical facts on which it was based, but by denying that Rav Feinstein ever made such a ruling. This, he persists in doing to this day, despite the ancillary material that has been published since then and made available to him, such as the letter to Dr. Bondi, the letter of Rav Moshe's son, Rav Hagaon David Feinstein, שליט"א, as well as the many letters that the Agudah received pointing out their misunderstanding of basic issues, both halachic and medical. An example of confusion on this matter is evidenced by the publication by Rav Sherer of a "diary" record of a conversation he had with Rav Moshe. The "diary" record, reported by Rav Sherer in the Jewish Observer of Cheshvan 5752 (vol. 24, no. 7), pp. 21–22, confuses brain-stem death with brain-stem confirmatory testing, or the nuclide scan. It betrays a misunderstanding of Rav Feinstein's statement that the nuclide scan is only a chumra (additional stringency), thus casting doubt on Rav Feinstein's position on brain death. The brain nuclide scan is not done until after brain-stem death has been determined by neurological criteria, including the apnea test to determine total cessation of respiratory activity. Rav Feinstein's comment on the nuclide scan was that it cannot substitute for the apnea test and is not necessary except as a chumra or in search for objective radiological evidence of cessation of circulation to the base of the brain. Rav Feinstein did not think this necessary except in cases of sudden traumatic death, as noted previously.
Some of the opposition to Rav Feinstein's ruling on brain-stem death, as well as to other rulings that will be discussed in subsequent volumes, raises an issue of integrity that never before has been a factor in evaluating the writings of the Torah community. As noted above, Rav Feinstein viewed willful perversion of the truths of Hashem's Torah as tantamount to idolatry. One must forfeit his life rather than attribute a false statement to Hashem's Torah. No desire for political correctness, no concern for the impact on the laity or the medical profession or the legal profession, justifies perverting the halachah. If there is need for additional precautions to make sure that the donor is really dead, or that that the recipient can really benefit from the transplant, then these issues must be addressed directly without perverting the halachic basis for decision-making.
Throughout our halachic literature, the law was presented and then the rabbis suggested fences around the law for reasons which they understood to be necessary. Whether we have the authority to make such gezeiros or takanos today is highly questionable, but surely the educational role of the rabbinate should not be underestimated. For example, it may be acceptable in all quarters to institute a twenty-four-hour or even thirty-six-hour or forty-eight-hour wait between the initial brain-stem death test and a subsequent confirmatory testing. During this prolonged period the anatomical destruction of the brain would be quite evident, and this might well lead to greater confidence on the part of a laity disturbed by horror stories which have no basis in fact and, therefore, reluctant to sign donor cards or to permit the transplantation of organs from a loved one who has just died.
Rav Feinstein's responsum on brain death makes possible the saving of lives. Those who oppose his ruling for reasons that are suspect must be viewed as individuals who are preventing the saving of human life, human life that is of infinite worth.
Additional Note
The Nisan 5755 issue of Hamaayan, a journal published by Poalei Agudas Yisrael, printed a eulogy of HaGaon Rav S. Z. Auerbach זצ"ל which had been delivered by Rav Y. Neuwirth שליט"א. In the course of his remarks, however, Rav Neuwirth introduced a revisionist version of the halakhic rulings of Rav Auerbach זצ"ל regarding brain death, and likewise of HaGaon, Posek HaDor, Rav Moshe Feinstein זצ"ל. The following is a response submitted to HaMaayan.
Clarification of the Halakhic Rulings of Rav Moshe Feinstein and of Rav Shlomo Zalman Auerbach in Regard to Brain Death
Since Rav Neuwirth's שליט"א remarks reveal a certain confusion regarding the opinions of these two Gaonim on this important and controversial subject, I hope the following will clarify the matter as succinctly as possible.
Concerning the view of Rav Moshe זצ"ל
Some ten years before his passing, my father-in-law informed me in a letter that total cessation of respiration in a brain-stem-dead patient is tantamount to decapitation, since this would constitute halakhic death. Such a patient is not a safek goses, but rather a vadai mes; the action of the ventilator in oxygenating the patient is not to be confused with breathing. Rav Moshe published this pesak din in Iggeros Moshe Y. D. III:132. If such a brainstem dead patient would be considered a safek goses, as suggested by Rav Auerbach, Rav Moshe would oppose Rav Auerbach's decision to permit removal of the ventilator, such this would constitute safek retzihah. He so stated this point in Iggeros Moshe H. M. II:73:1 and 74:3, based on the Talmudic rulings in Sanhedrin 77a.
The opinions I have publicized in the name of Rav Moshe were not inferred from his writings, but are direct quotations of his statements to me and from what he actually decided in the many cases presented to him. Tens of his students can testify that they heard from him the Torah truth that when a patient appears to be dead, totally unable to breathe independently, he is considered halakhically dead, without any reservation. When Rav Moshe was alive, no one dared question either the accuracy or the veracity of my report of his pesak. Only after the "death of the lion" have some individuals attempted to distort his words in an attempt to nullify his pesak. Although it is unnecessary to affirm the above statement, below I will review some of the written evidence to emphasize the accuracy of my report of Moshe's opinion on this matter.
(1) In a responsum to Dr. E. Bondi (grandson of HaGaon Rav Yosef Breuer זצ"ל and a leading pulmonalogist), written Kislev 5745:
"Since the patient cannot breathe independently, he is considered to have died, even if the heart continues to beat for several days, as I wrote in my responsum in Y.D. III:132."
(2) Rav Dovid Feinstein שליט"א wrote to a questioner on Kislev 5753:
"I have already written that the responsum of my father זצ"ל in Y. D. III:132 is an accurate statement [of his view that brain death is halakhic death], but as further clarification I state his opinion once more. "'If the patient is motionless, even if his heart is still beating, since he cannot breathe autonomously he is absolutely dead.'"
(3) A confirmatory letter published in Assia, Kislev 5750, by his editor and grandson, Rav Shabsai Rappaport שליט"א:
"There is absolutely no doubt that Iggeros Moshe Y. D. III:132 refers to a brain dead patient whose heart is beating. I confirmed this directly from my grandfather, both by phone and in person, during the printing of the sefer.
(4) Concerning organ donation, Rav Moshe expressed his opinion in Iggeros Moshe, Y. D. II:174, Tammuz 5728, in a responsum to HaGaon Y. Y. Weiss זצ"ל when the latter was Rav of Manchester, England. Rav Moshe's pesak clearly enunciated the view that it is a great mitzvah to donate organs from the deceased in order to save someone's life.
I will now clarify the view of Rav Shlomo Zalman Auerbach .זצ"ל
(1) 18 Av 5751: In a four-line opinion printed in the Jewish Observer, the official organ of Agudas Israel of America, Rav S. Z. Auerbach is quoted to the effect that "it is not permissible to remove any organ [from a brain dead patient], for this is an act of murder."
(2) After I wrote a lengthy analysis of Rav Moshe's opinion to Rav S. Z. Auerbach on 23 Elul 5751, Rav Shlomo Zalman wrote [in an opinion now printed in Nishmas Avraham]: "In my opinion, someone needing an organ transplant in America may receive one, and it is not an act of murder. According to the description of Rav Tendler, since it is determined by radioactive injection that the brain is not being perfused with blood. If this test (nuclide scan) is performed, and if the experiment now being planned to prove that a pregnant sheep can continue to gestate a lamb even after decapitation will so confirm, a brain stem dead patient is tantamount to one who has been decapitated or as an elderly man whose neck was broken even if there is no external wound [cf. Chulin 231a]."
Rav Shlomo Zalman thus repeated verbatim the opinion of Rav Moshe in Y. D. III:132! This clearly-stated opinion was never questioned in his subsequent writings or verbal comments. Brain stem death is final, absolute, halakhic death!
However, erroneous "facts" transmitted to him by his medical advisor caused him to doubt the "safety" of the test to confirm brain stem death. Rav Shlomo Zalman then wrote:
"The brain stem dead donor will surely die, but [until the death is confirmed,] he has the halakhic status of a goses and it is forbidden to touch him. Despite Rav Tendler's claim that [the nuclide scan] can be performed without even touching the potential donor, I have heard form my medical advisor that it cannot be performed without moving the patient. Moreover, the injection of the isotope is even more stressful to the patient than moving him would be, or closing his eyes, acts which are themselves forbidden, since these [tests] are done for the benefit of others and not for the benefit of the patient."
It is indeed astounding that Rav Shlomo Zalman did not have available to him a medical advisor of both competence and integrity to provide him with accurate information. The "facts" he was given were erroneous.
a) The test to determine brain stem death are done for the benefit of the injured patient. If it is determined that he is not brain dead, aggressive medical or surgical treatments will be initiated.
b) It is absolutely false to state that the injection of a radioisotope is in any way harmful to the patient.
c) The injection can be given without touching the patient, since there is always an intravenous line in the patient, and the isotope is injected through this line.
d) A portable "camera" can be brought to the bedside to measure the radioactivity in the head region in order to determine whether the brain is being perfused with blood.
e) The conclusion of Rav Shlomo Zalman is most difficult to fathom. He wrote: "… In conclusion, outside of Israel, where most inhabitants are non-Jews, it is permitted to receive an organ transplant, but in Israel it is forbidden."
Is it permissible to kill a non-Jew to save a Jew? Even if non-Jews do not accept our halakhic standards, we are required to apply these standards to Jew and non-Jew alike. If brain death is not an acceptable criterion for determining halakhic death for a Jew, it should not apply to a non-Jew either.
(3) Rav Shlomo Zalman wrote to me [Nisan 5752] to reaffirm his concurrence with the view that brain death is halakhic death, but he was still concerned about the test protocol. He therefore suggested:
a) removal of the ventilator;
b) waiting until the heart beat ceases for 30 seconds;
c) the organ can then be removed or the heart beat restored, if possible.
(4) In Elul 5754 he published the above instructions in Assia, in a note originally written for Dr. Schulman whom he mentioned in Rav Neuwirth's eulogy of 2 Adar 5752. There R. Shlomo Zalman זצ"ל reduced the time of asystole (no heart-beat) to 15 seconds. Several leading transplant surgeons announced that they would accept such a donor (i.e., after 15 seconds asystole) if it would increase the size of the donor pool.
(5) Rav Dr. Abraham Steinberg and Rav Yigal Shafran שליט"א confirmed that Rav Shlomo Zalman concurred with the pesak of Rav Waldenberg שליט"א to perform a Caesarian section on a brain dead woman in an attempt to save the fetus, even though this surgery would cause the cardiac-pulmonary death of the woman. Surely, if he did not fully agree that brain stem death is halakhic death he would not have agreed. But since the tests to confirm brain stem death had already been completed, his concern for the safety of these tests was now a moot point. He therefore ruled on the post facto acceptability of the brain death criterion.
In sum, therefore, although he was unwilling to approve initiating the test protocol, once the tests were performed and brain stem death was confirmed, Rav Shlomo Zalman זצ"ל ruled that the patient was halakhically dead and could serve as an organ donor.
6) On Jan 9, 1994, the Anglo-Jewish press reported that Rav Shlomo Zalman זצ"ל joined Rav Dovid Feinstein and Rav Tuvia Goldstein שליט"א זצוק"ל in an appeal to the Orthodox Jewish community to find a lung donor for a young woman, though the donor could only be someone who was a brain dead relative of those he addressed.
7) Several personal communications affirmed that numerous times Rav Shlomo Zalman approved the donation of vital organs from Jews, if the brain stem test protocol had already been completed.
It should be carefully noted that most poskim, Rishonim and Aharonim, permit an individual to assume significant personal risk in order to save someone else from certain death. Therefore, even if the brain dead test-protocol would involve some danger to the patient (which it does not), the signing of a donor card would constitute the voluntary assumption of this risk in order to save someone threatened by certain death because of the failure of a vital organ.
(8) In Assia, Elul 5754, Rav Shlomo Zalman introduced a final variation in the halakhic ruling on brain death.
"I have been informed that a portion of the brain, the hypothalamus, remains alive after brain stem death has been confirmed. Therefore a doubt has been introduced; perhaps a 30-second asystole is not sufficient and we must wait until the hypothalamus also dies."
The source of this information was presumably Rav Shlomo Zalman's medical advisor, who should surely know that the issue at hand concerns the halakhah to which Rav Shlomo Zalman referred in his article in Nishmas Avraham—that one whose neck is broken is considered as though he were decapitated [Chulin 21a]. Such an individual is unquestionably considered to be dead; see Shulchan Arukh Y. D. 370. Anyone with an elementary education in biomedical subjects surely knows that the hypothalamus is fully viable immediately following this grievous injury. Thus the viability of the hypothalamus is entirely irrelevant to the question of determination of death! Yet Rav Shlomo Zalman's source of information seems to have misled Rav Shlomo Zalman with the information that the hypothalamus is part of the brain in regard to the halachic determination of death.
The Rambam in his commentary on Mishnah Oholot 1:7 defines the "halachic brain" as the control center for bodily movements. The hypothalamus is not part of the halachic brain, but rather a secretory tissue, no different from other glands of the body which secrete hormones. It does not control the body's motion. Upon death many parts of the body remain viable for various lengths of time without affecting the decision to declare the patient dead.
I hope that the above analysis finally puts to rest the doubts that have been raised in this connection, doubts which are based on erroneous information. HaGaon Rav Moshe Feinstein זצ"ל ruled that after brain death has been confirmed, organ donation is a great mitzvah. HaGaon Rav Shlomo Zalman Auerbach זצ"ל concurred fully with this position, but was concerned with the test-protocol used to verify brain death. This concern was a direct result of the erroneous information provided him by his medical advisor. Indeed, it is sad to realize that this great posek, to whom every doctor in Israel and outside Israel was available for consultation, chose as his advisor one who was unable or unwilling to provide him with accurate information on which to base his halachic ruling.
Iggeros Moshe, Yoreh De'ah I 145
Why the Rambam Omitted the Law of "Your Life Comes First" (Hayecha Kodmin)
Introductory Note
This responsum reveals the analytical method that Rav Moshe used in all his Torah studies and, most evidently, in his responsa. It demonstrates his technique of first analyzing the earliest primary halachic source available, the Talmud itself. After dissecting the logic of the disputants in the Talmud he proceeds to draw analogies from other halachos to establish a principle. Once this principle is established, the application to the case at hand becomes self-evident. The question posed to Rav Moshe concerned the omission of the law of “your life comes first” from the halachos governing life-threatening situations. Rav Moshe, without citing the exact question, begins his responsum by analyzing the ethical dilemma recorded in the Talmud, Bava Metzia 72a:
Two people are lost in the desert. One has a canteen of water which is inadequate for both to survive until they reach a habitation. Ben Petura is of the opinion that both should drink, and indeed, that if they are not rescued, both will die, but one should not witness the death of his fellow. Rebbe Akiva decries this ruling and cites the verse in the Bible: “Your brother shall live with you,” or, as our sages put it, “Your life comes first.”
Rav Moshe rejects the suggestion that the Rambam really did not omit this halachah. Although the Rambam does not record Rebbe Akiva’s opinion of “your life comes first” as a separate halachah, he does include it earlier in a summation of the law of Kiddush Hashem (i.e., at times, one must sanctify the name of Hashem and not transgress a Biblical commandment). In the summation, the Rambam clearly states that it is forbidden to forfeit one’s his life except to avoid the three cardinal sins of adultery, idolatry, and murder. Saving another’s life does not warrant forfeiting your own life. Rav Moshe points out that this does not “excuse” the Rambam for omitting the law of Rebbe Akiva, because the two cases are not comparable. In the decision of Rebbe Akiva to instruct the one who has the canteen not to share it lest both die, we have a decision that leads to loss of life. In the law that one’s life takes precedence over all but the three mitzvos recorded previously, a Torah law will be violated so as to prevent a loss of life. But in Rebbe Akiva’s ruling, a life will be lost and a law will be transgressed, the law of charity. Therefore, surely there is such novelty in this law that the Rambam would have had to record it even though he had a prior discussion concerning forfeiting one’s life for the honor of Hashem.
Let us analyze Ben Petura’s logic. Surely, it is a strange halachah to urge sharing of the water though in doing so both will die. We know that the law of murder, which does not allow one to save one’s own life by committing murder, refers only to active, aggressive acts. If death is caused by a passive act, a failure to respond to the needs of another individual who is in mortal danger does not incur the death penalty. The halachah distinguishes between a coercive order to kill, which must be rejected even at the cost of one’s life, and a passive act. If a person is threatened with death unless he allows himself to be thrown on an infant, he need not forfeit his life in resistance, because his life comes first. It is, therefore, strange that Ben Petura would disregard these halachic facts, facts that do not seem to be in dispute.
In summary, only an act of murder cannot be committed to save one’s life. Passive nonresistance that will lead to the death of someone else does not require that one’s own life be forfeited. Even Ben Petura agrees that it is proper to save one’s own life by refraining from taking any action and remaining passively uninvolved. Why would Ben Petura then order the individual to share the water and thus forfeit his life when he can remain uninvolved, keep the water, and drink it himself, since all agree that one’s own life comes first? [Note: The Netziv, in Ha-amek She’elah, Parshas Re’eh, suggests that the controversy between Ben Petura and Rebbe Akiva concerns the degree of risk that one is required to assume in order to save another person’s life. If there really is no hope and both will die if they share the water, then even Ben Petura concurs that one’s own life takes precedence. However, the situation, as Ben Petura sees it, is that sharing the water may enable them to survive long enough to be found or to reach an oasis, and thus both lives will be saved. This decision involves the potential risk that neither will survive, and hence the halachic question that Ben Petura ruled on was: “If we both drink, we have a hope of both being saved. If I drink alone, then my friend must die. Am I required to enter into the risk situation, not forfeiting my life, but endangering it?” In this situation, Rebbe Akiva insists that there is no halachah that requires one to enter into a mortal risk in order to save someone else’s life.
This controversy, as understood by the Netziv, has great significance in the halachic evaluation of transplantation surgery. The donation of a kidney from a live donor or, as is occasionally practiced today, of a liver or lung lobe, surely involves risk to the donor. The modicum of risk that the donor must assume is the basis of the controversy in the Talmud. According to the final ruling, which concurs with Rebbe Akiva, a donation of a liver, lung, or lung lobe may not be permitted, depending on the current evaluation of the degree of risk.]
To continue the analysis of the controversy between Ben Petura and Rebbe Akiva: Rashi and Tosafos (Sanhedrin 74a, Yoma 82a, Pesochim 25b, Yevamos 53b, Avodah Zarah 54a) explain that one may not commit murder to save one’s own life because the “bottom line” is a negative calculation. A life is lost either way; to forfeit one’s own life and not murder, or to murder and save one’s own life. But in the latter case a sin is also committed, the sin of murder. Hence, one is forbidden to save his own life by taking someone else’s life.
It should follow that to allow someone to die by not giving him charity, even if one is coerced, is not permitted, and one must forfeit one’s own life rather than refuse to give the charity. It would seem that again the calculation comes out in the negative. For by not giving charity, and not helping his fellow man, the one who refuses violates a mitzvah of the Torah, the positive commandment to give charity. In addition, a life is lost. We must, therefore, conclude that there is a special halachah: when one’s life is endangered, there is no mitzvah to do charity.
Indeed, the Talmud in Sanhedrin 73, citing the verse “Thou shalt not stand idly by your friend while his life is endangered,” does not require the forfeiture or the endangerment of one’s own life. Rather, as the Talmud says, it obligates one to spend money to hire a physician to save the life of one’s fellow man, even though one cannot personally help him. I must seek help elsewhere, and pay for it. This commandment “energetically to seek help even if expenditure of money is required” is both an obligation and a limitation. It is not required to do more than spend time and money.
Therefore, when it is necessary to forfeit one’s life in order to save someone else by a charitable act, it is not a transgression of the mitzvah of charity to refrain from doing so because of the danger to oneself, but rather the halachah of “you come first.” It is but one life against another life. It is not a life and a mitzvah, for there is no mitzvah under these circumstances. To make this point clearer, imagine a case in which someone falls into a well, and to prevent him from escaping one is coerced, on threat of death, to remove a ladder from the well and thus cause the death of the person who fell into it. Even though removal of the ladder may not be considered a direct act of murder, it certainly is a contributory cause of this individual’s death, not to be considered a passive act, but rather an active, aggressive act against someone else in order to save one’s own life. For this, we have the commandment that one may not save one’s own life at the expense of someone else’s life.
If, however, one is prevented from calling a doctor and paying his fee by a threat to one’s life, one should not forfeit one’s life. The reason is that the mitzvah does not exist when one’s own life is endangered. Therefore, the issue is clear: “My life or his?” To this we answer: “Your own life comes first.” It is clear to me that Ben Petura considers failure to share the water analogous to removing the ladder or removing the water supply from an imprisoned individual which will surely lead to his death. Even if one’s own life be endangered, according to Ben Petura, one is not permitted to save it at the expense of someone else’s life.
Rebbe Akiva, therefore, introduces the concept, based upon a verse in the Torah, “And you shall live by them.” The statutes of the Torah are not [intended] to cause the death of an individual. Therefore, according to Rebbe Akiva, there is no mitzvah to share that which you need for yourself. In the absence of a mitzvah, the issue is simply who shall live and who shall die, to which Rabbe Akiva answers hayecha kodmin, “your life comes first.”
This principle applies not only to life-threatening situations, but even in strictly monetary matters. If two lost objects are located simultaneously and there is no time to return both, if one of the objects belongs to you, it takes precedence over the other. Therefore, in our case, since the canteen of water is in your possession, you are now to evaluate whether you are obligated to give water to someone who is in need. However, your own need comes first. There is no mitzvah to give away that which you must have for yourself. This principle is so clearly established that we must conclude that Ben Petura, who does not apply this principle to the case of the two men in the desert, claims that this principle does not apply in cases of pikuach nefesh.
We might offer an analysis of Ben Petura’s position based upon the halachah that to save one’s life it is permitted to violate the laws of theft. Hence, the concept of ownership cannot be applied here, since the individual without the water is permitted to steal the water for his own use. Once we disregard the ownership of the canteen of water, it must follow logically that since each can lay claim to the water, the only equitable solution is for them to share the water equally in the hope that both will survive and, if not, both will perish. We might even add that in the absence of ownership, which would give the one who has the canteen some priority over all others, the mitzvah of tzedakah is in full effect. Consequently, we would now have an equation in which if one refrains from giving the water he violates the mitzvah of tzedakah, at the same time causing the death of another individual. Therefore, once again, the equation ends up in the negative, for a life is lost and a sin has been committed.
Rebbe Akiva’s original contribution is, as we said, to analyze the circumstances and conclude that when one’s life in endangered there is no mitzvah of tzedakah. If one is impoverished and cannot afford to buy tefillin or an esrog and lulav, he is not free of the mitzvah. The mitzvah is an obligation, but he is under duress. Forces beyond his control make it impossible for him to fulfill his obligation.
Rebbe Akiva’s analysis is that as far as the mitzvah of tzedakah is concerned, in the case at hand, it is not that one has the obligation, but is unable to fulfill it due to extenuating circumstances. Rather, the mitzvah does not exist. The mitzvah of tzedakah is limited to that which is in excess of what one must have as a basic minimum for oneself. If one has just enough food for oneself, there is no mitzvah to share this food with others.
Since one has but one life, one is not asked to share this life with anyone else. Therefore, one does not violate a mitzvah or fail to fulfill a mitzvah when one does not share the water with one’s fellow traveler. There is just the rule: You shall live by “My commandments.” If one’s life is endangered by My commandments, with the exception of the three previously mentioned sins of idolatry, adultery, and murder, the Torah establishes no obligation.
This principle of Rebbe Akiva’s is codified by the Rambam in Laws of Charity 7, where the Rambam defines the mitzvah of tzedakah as follows: “It is a positive commandment to give tzedakah if one has the ability to do so.” The ability to do qualifies the mitzvah of tzedakah.
Now to answer the question succinctly: You asked why the Rambam does not record the law of Rebbe Akiva of “your brother shall live with you,” that your life comes first. This is a most important halachah and the Rambam does record it, but not where you searched, but rather in the Laws of Charity, where the principle is established. Charity is obligatory only for those who can afford to share. When one’s life is at stake, sharing is neither possible nor permitted.
Introductory Note
Iggeros Moshe, Orach Chaim IV 79
The Conduct of a Doctor on the Sabbath
[This responsum was written to a young medical school graduate who posed a number of important questions as to his conduct on the Sabbath.]
The Rambam, in Laws of Shabbos chapter 2, refers to the treatment of the critically ill on the Sabbath, using the term dechuyah, i.e., that the laws of saving life supplants the laws of Shabbos. The author of the Shulchan Aruch, in his Kesef Mishnah commentary to the Rambam, explains that the concept of dechuyah, as opposed to the concept of hutrah, means that the decision to save a life takes precedence over the commitment to observe the Sabbath.
The concept of hutrah is that on the Sabbath there are no laws that govern relationships to the critically ill. The law is not supplanted. It is not a value judgment of which law is more important; rather, the Sabbath laws were originally given for all people who were not critically ill. The difference in halachah is significant. When a law is supplanted, there is an obligation to avoid conflict if possible. If this were the case, then on the Sabbath, for example, if there were a non-Jewish physician, equally competent, the Jewish physician should defer to the non-Jewish physician. It is, therefore, strange that the Rambam's laws should be interpreted as dechuyah when, as we all know, there is a special mitzvah for a Jew to be involved in the saving of a fellow Jew's life. He is not to defer to a non-Jewish physician, lest people say that the Sabbath law is only reluctantly supplanted and he will not hasten to respond to an emergency call. Even if a non-Jewish physician is standing by, it is a special mitzvah for the Jew to undertake to transgress the Sabbath law and do whatever is necessary to save the patient.
In my opinion, there is no difference between the concepts of dechuyah and hutrah with reference to medical care on the Sabbath except if the patient has not yet called a physician. [A second difference might be the need to perform the task al yedei shinnui, i.e., not in the usual manner, assuming that to do so will not introduce any delay. M. D. T.] That is, if the concept is really dechuyah, the physician is not obliged to make himself easily available so that people can find him in time of need. Therefore, it is quite proper to have an unlisted telephone number that can be given only to those who have a halachic right to contact the physician, such as a patient whose care is being managed by the observant physician and may require his advice or services on the Sabbath. This assumes that there are sufficient numbers of other physicians in the area who can be contacted by anybody who needs a physician.
If, however, he is the only physician in the area, then, of course, it is necessary for him to be available so that people in need can contact him. If he lives in an area where most of the inhabitants are non-Jewish, it surely is right and proper for him to choose the Sabbath as his day off. Physicians whose schedule calls for them to be off one day of the week do not hesitate to be unavailable during that day by traveling to some distant place. They generally do not to respond to telephone calls but have a service refer the caller to the physician who is covering their practice for the day.
Now to focus directly on the question that was posed concerning the care of a non-Jewish patient on the Sabbath. There was, indeed, a time when the explanation in the Talmud [Avodah Zarah 26a] was fully acceptable. People who were devoted to their religion understood that different religions have different regulations as well as privileges for those who belong to the same faith community. Thus, a Jewish physician, as Abaye explains in the Talmud, could tell a non-Jew: "I may transgress the Sabbath only for those who are Sabbath observers." [This explanation] was fully acceptable to the non-Jew.
All must appreciate that an answer of this kind would now be totally unacceptable in every country known to us. Surely, neither the relatives of a patient nor governmental agencies nor hospital administrators would appreciate that response. Indeed, I suspect that a doctor who refused to treat a patient would have to face some legal, possibly criminal action. Therefore, it is important for a physician on the staff of a hospital to arrange his schedule so as not to be on duty on the Sabbath. Since in America Sunday is a day when most people like to be off, it should not be too difficult to change the on-duty schedule by agreeing to work on Sunday in return for others covering your duty assignment on the Sabbath.
By arranging matters so that you are never assigned any duties on the Sabbath, obviously others will be assigned in your place. There should be no concern that because of your arrangement other Jews will be forced to work on the Sabbath. It would most likely be a kindness to a Jewish physician who is not a Shomer Shabbos to be on duty in the hospital on the Sabbath, where many of his activities are covered under the mitzvah of pikuach nefesh, rather than to be at home or elsewhere, where he is committing transgressions of the Sabbath without any redeeming circumstance, such as providing medical care.
If a situation should arise in which you must be in the hospital, since you have been unable to rearrange your schedule and a non-Jewish patient is presented to you, surely you must treat the patient even if [doing so] involves transgression of Biblical prohibitions on the Sabbath.
Similarly, if there is an accident near your home and people rush in to call you, since you are the physician closest to the scene, even though the injured individual may not be Jewish, you are required to offer your full services in disregard of the transgressions of the Sabbath. There is no distinction between Jew and non-Jew.
The great sage, the Chofetz Chaim, in his Mishnah Berurah 338, criticizes doctors who are Sabbath observers for traveling great distances in order to treat a non-Jew and often compounding their own prescriptions on the Sabbath, as was the custom in Russia. He concludes that they are Sabbath transgressors. This is surely not in consonance with the current social condition. The halachic principle of eivah [i.e., minimizing factors which cause enmity between people] is not based solely on the desire for good human relations within a community. There is a far greater concern that a breakdown in human relations will actually lead to the killing of Jews. Thus, not treating a non-Jew on the Sabbath may very well endanger the lives of other Jews. This is why I find it so difficult to understand the position of the Chofetz Chaim.
I can certify that in Russia, in small towns where there was only a single physician for an entire district, a Jewish physician who refused to travel to care for a non-Jew on the Sabbath, regardless of his defense that his religion did not allow it, would surely have endangered his life and the lives of other Jews. Even the police would have made no effort to protect him from the wrath of [the patient's] relatives, who would have claimed that his failure to treat their relative had caused his death.
It is obvious to me that the [author of the] Mishnah Berurah was aware of this problem, because he appended a footnote to explain that his position that the prohibition of a Jewish physician treating a non-Jew on the Sabbath applies "to the country of India, who[se inhabitants] are even today true idolaters."
Obviously, he also feared that in the West the Jew would be endangering his own life and the lives of other Jews if he failed to treat all patients on the Sabbath who needed his help, without regard to the their religious affiliation. The Chasam Sofer, in his responsum on Yoreh De'ah 131, said this quite openly. If there is danger that enmity will result from failure to treat a non-Jew on the Sabbath, this involves danger to life. Therefore, it is permissible to transgress even the Sabbath Biblical laws in order to treat the non-Jew.
It is interesting to note that the author of Divrei Chaim (Orach Chaim II:25) explains that the concept of eivah, or enmity, that might result, is not adequate justification for transgressing Biblical commandments on the Sabbath. Nevertheless, he records the custom of religious physicians to transgress the Sabbath, even with reference to Biblical commandments, in order to treat non-Jews on the Sabbath, basing themselves on a special edict issued by the Council of the Four Lands (an organization of the greatest rabbinic scholars that held the sway from the mid-sixteenth century until 1764), which ruled that in light of the social impact of failure to treat all patients who needed a physician's help, it was required that physicians treat patients on the Sabbath, regardless of religious affiliation. It is difficult for me to understand why this edict was needed since it is quite obvious that the law is as I have stated it and as recorded by the Chasam Sofer. The edict must be understood, therefore, as recording the consensus of the opinion of the poskim of the time that even if the physician personally feels that it will not lead to the animosities that are our concern, the edict was issued to order him to disregard his personal evaluations and accept this as a pesak din of the gedolim of the generation.
It is interesting that the Divrei Chaim never expressed himself in opposition to the actions of these physicians, recording his own opinion and then stating the reason for the current practice of the physicians who take the more lenient approach. It should be obvious to everyone that whether [such a refusal] leads to enmity or not may vary in different places, and hence, the necessity for a general ruling so that the conduct of a physician in one part of Europe should not have a negative impact upon the Jewish population in other parts of Europe.
The personal opinion of the physician only has validity in his own town, but he is unaware of the far-reaching impact of his actions in refusing to treat a no-Jew on the Sabbath. I must reiterate that it is my considered opinion that in our day we have to worry about the impact on the Jewish community worldwide. If it should be reported that a Jewish physician refuses to treat a non-Jew on the Sabbath while he does treat his Jewish compatriots, true enmity will result to the great detriment of the Jewish inhabitants.
It has been reported, in the name of the Klausenberger Rebbe זצ"ל, that physicians should not take any fee for treatment [rendered] on the Sabbath. This ruling is right and proper. Surely, it is forbidden to profit from any Sabbath transgression, and therefore in this case, his entire motivation should be the saving of a human life and the performance of that mitzvah.
Iggeros Moshe, Orach Chaim IV 81
Use of Beepers by Medical Personnel on the Sabbath
[This responsum was written to clarify the workings of the Hatzolah organization in Brooklyn, New York, with specific reference to carrying a beeper on the Sabbath.]
The question posed to me concerns the wearing of a radio by members of the Hatzolah organization. If they could not wear the radio and be in contact with the central office while away from home, it would necessitate their staying in their apartments with a radio receiver turned on waiting for a call for their services. Not to be able to leave home on the Sabbath would be surely a great burden and would reduce the number of volunteers so necessary for the proper functioning of this organization.
The Talmudic discussion in tractate Shabbos [63a] makes it clear that an object can be classified as an article of clothing even though it does not serve the usual function of clothing, namely, to protect the body from the elements. The controversy recorded there concerns a soldier wearing his sword or carrying his bow, and involves the aesthetic evaluation of these items. If they are regarded as a sign of his status and importance as a defender of society, he may wear it on the Sabbath. If, however, it is a degrading symbol of his association with killing and warfare, then he may not. Clearly, if the item under discussion has no negative connotations, it can be considered an accessory to clothing, even though it may not be made of anything more than base metal.
The Hatzolah beeper certainly does not signify an individual involved in a degrading activity. On the contrary, it identifies someone who is waiting to serve his fellow man in time of need. Although there is a controversy in the Talmud as to whether weapons will be needed during the Messianic era, and those who believe they will not be needed (for there will be no wars) do not look upon the sword as a symbol that gives honor and importance to the wearer, this does not apply to a beeper.
Even if we accept the opinion of Rebbe Eliezer that there will be no illness in the Messianic era, and hence [there will be] no need for the Hatzolah organization, this in no way casts aspersions on the social approval accorded those who wear the beeper because of their great mitzvah work. There are no negative connotations to the wearing of the beeper as there may be to the wearing of a sword. In my opinion, therefore, it is permissible to wear a beeper on the Sabbath. They may leave their homes with it attached to their belts, so that they may respond quickly to a call from someone in need. It would be too burdensome to expect these people to stay at home waiting for the call to come, and as I have said, this would surely reduce the number of volunteers for this important work. Someone has suggested that the Sabbath work should be done by hiring non-Jews to serve as Hatzolah members. This contravenes the halachah that says that pikuach nefesh activities should be performed only by Jews and not by non-Jews, even when a non-Jew is readily available. In addition, a staff which works for money cannot be expected to respond with the same alacrity, the same devotion as those who do it in order to perform the great mitzvah of pikuach nefesh.
Iggeros Moshe, Orach Chaim IV 80
Emergency Medical Personnel and the Observance of the Sabbath
[This teshuvah concerns a very important instruction to the Hatzolah movement. It has evoked significant opposition from the Chasidic Rebbe community.]
I begin by extending my sincerest blessings to those who have undertaken the holy work of providing the means to respond quickly to individuals who may fall critically ill and need immediate aid in order to survive. May Hashem crown their efforts with great success, and may they be rewarded for their great mitzvah.
Rushing to bring oxygen to someone in critical need of help often necessitates transgressing many Sabbath laws. First-aid equipment must be transported from and to the public domain, and the use of electricity or, occasionally, even the driving of the ambulance, involves many Biblical and rabbinic transgressions. Surely this is what is meant when we are taught in the Talmud that the saving of life supersedes Sabbath observances. I believe it would be wise for the organization to have a non-Jewish driver. Even though pikuach nefesh activities should be performed only by Jews, the driving of the ambulance is not directly the pikuach nefesh, whereas the first aid performed by the Hatzolah member is the actual performance of the mitzvah of pikuach nefesh, so that there is no objection to having a non-Jew drive the vehicle. This has the advantage that with a non-Jew driving, the ambulance can be moved to a suitable parking place once the patient has been delivered to the hospital, thus facilitating the Sabbath observances of the Hatzolah member and not involving any confrontation with the authorities, whether the hospital's security staff or police officers. However, if waiting for the non-Jewish driver would involve any delay, even the slightest, the Hatzolah member should drive the ambulance himself.
I would like to direct my attention to a very important halachah concerning the Hatzolah organization. It is clear that going to the patient is an act that can be designated as life-saving. Thus, all Sabbath laws are suspended in order to allow the Hatzolah volunteer to save a human life. However, returning with the ambulance to the home base is halachically problematic. Often the hospital where the patient is brought is at too great a distance from home to allow the Hatzolah member to walk home, nor is it sufficiently safe to walk the streets, especially if the call responded to came in the early morning hours. The lawlessness in our streets makes it too dangerous to walk alone even when the hospital is not at a great distance from the Hatzolah member's home. If the Hatzolah member were required to stay at the hospital until the end of the Sabbath, surely this would inconvenience him and his family to such a degree that they would be reluctant to allow him to continue his work. Indeed, he might also be reluctant to disrupt his Sabbath to such a great extent, especially if this occurred with some regularity. The question of whether the Hatzolah member may return home after his life-saving mission has been completed has its answer in the two primary sources, Eruvin 44 [b], especially the Tosafos there [s.v. kol ha-yotzin], and Beitzah 11b, where the halachic principle referred to as "permitting the end because of the beginning" is discussed in great detail. The halachic concept of permitting the concluding stage of an action in order [not to discourage] the first stage refers to a number of cases, such as witnesses coming to testify that they have seen the new moon, a midwife who goes to deliver a baby, and a Jewish defense force that goes out to save a town that is under attack, as well as other cases.
The present question concerning Hatzolah members must be understood to refer to circumstances where the work of the Hatzolah organization is not endangered if the equipment which is now at the place where the call came from [remains there] and as a result cannot be used again. Presumably there is sufficient staff and adequate equipment for [Hatzolah] to continue to function on the Sabbath. The question concerns those who go out on a call, complete their duty, and now ask whether they must wait where they are until the end of the Sabbath or may return home, preferably, of course, with the help of a non-Jewish driver.
However, the questioner directed my attention to the circumstance where there is no non-Jewish driver because the Hatzolah team responded to the emergency before the non-Jewish driver was available. May the Hatzolah member drive home on the Sabbath?
[The responsum contains a lengthy discussion of the text of the Talmud in Eruvin and in Beitzah that deserves the attention of scholarly readers, who will benefit greatly from the brilliance of this analysis.]
The Tosafos in Eruvin and the commentary of the Rashba in Beitzah clearly conclude that someone who goes out on a Hatzolah mission need not wait until the end of the Sabbath, but may return home even though it involves the transgression of Biblical Sabbath commandments. That is, even if he must travel a distance of more than twelve kilometers (a Biblical transgression), or must carry from the private domain to the public domain, or even if it requires driving a car, which involves multiple Biblical transgressions if a non-Jew is not available to drive him home. This is what is meant by "They permitted the end because of the beginning." The rabbis ruled that it is permissible at the end of the mission to transgress the Sabbath lest the inconvenience to the rescuer cause him and others to hesitate when called again the following Sabbath. We may add that many times the decision to remain where the rescue operation occurs could expose the rescuer to the danger of [attempted] robbery and mugging, which sadly are so omnipresent in our communities today.
Maimonides, in Laws of Sabbath 2:23, wrote as follows: "Those who go out to help their brethren who are under attack by the enemy on the Sabbath, when they succeed in rescuing their brethren, they may return with all their weapons to their starting point lest they be discouraged from responding to a call for help in the future." This clearly supports the position of Tosafos and the Rashba.
[However,] many have noted what appears to be a contradiction in the Rambam. In Laws of Sabbath 27:17 the Rambam writes as follows: "Those who go out to save their brethren from attack by non-Jews, or to help them in time of flood or collapse of buildings, must conduct themselves [in the same manner] as residents of the town and [therefore] may walk two thousand cubits [a kilometer] in any direction." This refers to the halachah of techumin on Shabbos, which states that an individual is prohibited from walking more than two thousand cubits beyond the inhabited portion of town. The rescuers are granted the same rights as the citizens of the town. We might conclude from this ruling that the rescuers may not return home but must remain in the town.
However, this [conclusion] is not accurate. There is no contradiction. The Rambam in a second paragraph refers to rescuers who have completed their mission and now may return home except that the Sabbath laws inhibit them from doing so. In this case the Rabbis ruled that they are permitted to return, for otherwise people would be discouraged from initially responding to the call.
The Rambam in chapter 27 refers to an entirely different set of circumstances. Careful reading of the text and the commentaries leads me to conclude that the situation there is that the rescuers had gone out on a rescue mission in the expectation that repulsing the enemy might take several days. They had made the necessary arrangements at home to permit their absence. Thus, nothing compels them to return home, nor do they fear an attack by the enemy, whom they have repulsed completely. Under these circumstances, the Rambam feels that it is proper for them to remain in the town, and therefore he records the halachah that they have the same rights and privileges as other members of the town, namely, to walk freely within the town and up to two thousand cubits in any direction outside the town.
This leads me to deduce a novel, and important, halachah. In the case discussed by the Rambam in chapter 2, the rescuers may return home because they are unwilling to subject themselves to continued attack. Having successfully repulsed the enemy this time, they have decided to return home even though there is still a danger that the enemy will attack. This circumstance is, of course, not uncommon where the secular authorities either will not or cannot control the marauding gangs that loot and pillage at will. The halachic novelty of this suggestion of the circumstance, referred to in the second chapter of Rambam, must be underscored. The rescuers need not subject themselves, for a prolonged period of time, to personal danger; having done their duty once, they may decide that they will not incur the continued risk of personal death or injury. The townspeople would be wise to accompany their rescuers away from the town, since the town is now a potential battlefield with continued danger to both townspeople and rescuers. However, the townspeople, feeling that they have no choice, decide to remain in town, and not to flee and leave their homes and possessions to be looted. The rescuers, however, have decided to return home. That is why the Rambam in chapter 27 introduces the notion of fear. They fear to remain in the town.
This critical distinction in understanding the two halachos in the Rambam [in chapters 2 and 27] provides insight into the halachah [in question]. In chapter 2 the Rambam notes that a town was being attacked. In chapter 27 the Rambam refers to rescuers coming to save the lives of Jews being attacked by non-Jews or being threatened by flood or collapse of houses possibly due to earthquake. It is my understanding of the Rambam that chapter 2 refers to a rescue squad. Once they arrive in sufficient strength, the enemy will flee and the town will be spared. Those who come on the rescue mission realize that [their mission] is only for a limited time, and their very arrival constitutes the rescue. Therefore, our only concern is that they not be discouraged from responding a second time when needed. Thus the Rabbis ruled that they may return home even though it involves transgressing of the Sabbath.
I do not refer to a return home with weapons. [The question of weapons] is dealt with by a special rabbinic edict requiring the rescuers to return with their weapons at all times because of an incident in which a misjudgment of the circumstances resulted in the storage of weapons in the town so as not to transgress the Sabbath; when the enemy attacked from ambush [the defenders weapons were not available to them]. For this reason the Rabbis ruled that the rescuers must return home with their weapons and not trust their [optimistic] judgment of the situation. However, other transgressions of the Sabbath are not involved in this rabbinic edict. They are covered by the halachah that we permit "the end because of the beginning." We permit the transgression of the Sabbath after the successful mission lest the rescuers be reluctant to undertake the mission in the future.
In chapter 27, [however,] there is no mention of non-Jews laying siege to a town, but merely the saving of Jewish lives. The case, as I conceive it, is that of a pogrom in which Jews are under attack, hiding in various hidden places to escape the murderers, and it is the job of the rescuers to search every house and courtyard—all the places where people can hide, so as to restore law and order in the town. The rescuers know very well that they are on a prolonged mission, and therefore we are not concerned that requiring them to wait until the end of the Sabbath may discourage them from responding in the future. They were fully aware that this would be a lengthy mission and are prepared to spend that time.
This is not the case in chapter 2, where the rescuers come for the specific task of repulsing a siege of the town and, indeed, may not want to remain in the town, a town that is exposed to enemy attacks. Having done their duty once successfully, [they are not willing to linger]. It is of great halachic interest to note that such a town with its inherent dangers is not considered to be unfit dwelling for Jews. The inhabitants are not required to vacate the town in order to protect their lives, leaving their homes. One cannot compare the reaction of a rescue squad, which may, indeed, decide not to spend much time in the town for fear of future attacks, to that of the townspeople, who feel they have no choice but to remain.
Obviously, the townspeople hope to be able to repulse the attacks themselves, and only when about to be overwhelmed by superior forces do they call for rescue by others living in distant towns.
Therefore it is abundantly clear that the Rambam does not question the ruling in our case (neither in his halachah of chapter 2 nor that of chapter 27) that it is proper for the members of Hatzolah to return to their homes or their base after they have successfully completed their rescue mission, so as not to discourage the volunteers from making themselves available for future missions that may occur on the Sabbath.
Iggeros Moshe, Yoreh De'ah II 174
Concerning Heart Transplants for Sick Patients
[This teshuvah was written in 1968 to the Gaon Rav Yitzchok Yaakov Weiss when he was in Manchester, England, prior to assuming the role of Av Beis Din of the Beis Din Tzedek in Yerushalayim.]
Concerning your question about a heart transplant for a sick patient, a new surgical procedure that some surgeons have instituted. I do not want to enter into any extended discussion or analysis of this question. The conclusion that it is forbidden to do this is obvious, and any discussion of the issue will serve only to weaken the clear halachic ruling. Heart transplants involve the murder of two people. They kill the donor by taking his heart while he is still alive according to Torah law, and they kill the recipient because he could have lived much longer if managed by other medical means. By removing his diseased heart and transplanting the heart of someone else, the reality is that he will die from this procedure. This seems to be the consensus of most learned physicians who have studied this procedure. It is clear to me that doctors who permit this procedure do so because they consider the donor's life to be only of limited duration and, therefore, do not regard their shortening of his life as ethically significant. Of course, in Torah law, shortening the life of any patient is an act of murder, even if the patient would die of natural causes sometime in the near future.
[Soon after this teshuvah was written, the medical profession declared a moratorium on heart transplants because of the procedure's lack of success and the qualms some of them had as to the status of the donor. This was a time when brain-stem death was not yet clearly differentiated from deep coma.
This lengthy responsum is presented in English translation in outline form so as to highlight its significant halachic conclusions.]
1. Concerning a person who has been decapitated. This is the case referred to in Mishnah Ohalos 1:6. Even though the body shows signs of trembling or motion, the individual is halachically dead and "defiles the tent" [i.e., is halachically dead]. [This ruling] should not be confused with the halachah regarding someone who has suffered a severe neck wound that severs both the trachea and the esophagus. Such an individual is considered to be fully alive and may even gesture to order a divorce written for his wife so as to exempt her from any complications of a levirate marriage (yibbum). Imminence of death is not equivalent to death itself. [On the other hand,] decapitation is equivalent [to death].
2. Since a decapitated person is considered halachically dead, even if one could develop a means of reattaching the head so as to allow the individual to recover, there is no ethical obligation to do so. There is no chiyuv [obligation] to resurrect the dead. Surely, if it could be done there would be no reason not to do so, but if such an incident occurred on the Sabbath, when the permissibility of saving of human life is based upon the fact that saving human life takes precedence over Sabbath law, it would not be permissible to transgress Sabbath law for a person who has already been declared halachically dead. This situation is not covered by the heter of pikuach nefesh, which supersedes the Sabbath laws.
3. You question the ruling in the Shulchan Aruch, Orach Chaim 330:5, that we do not permit the posthumous cesarean section of a woman who seemingly dies in labor in order to attempt to save the fetus, because we are uncertain as to the moment of death of the pregnant woman. Let me explain what this uncertainty is. Since death is determined solely by the cessation of breathing, why are we not able to determine the time of death as well as any prior generation? It is my opinion that the sages were concerned about the presence of shallow breathing not easily discernible. Death occurs when breathing stops completely, but often breathing becomes shallow and irregular, so that absolute concentration on the patient is required to make sure that the patient is not breathing even sporadically. Because of this uncertainty, the sages ruled that it is too dangerous to allow people to rush into a cesarean section in order to save a fetus without first giving the careful attention needed to ascertain whether the mother is in fact dead. Once this very careful attention is given to, and it is determined that there is no shallow breathing, even sporadically, then, of course, there would be no point in attempting a cesarean, since by then the oxygenation of the blood would have been reduced to a point where the fetus would not be viable.
Indeed, the Rambam does not prohibit closing the eyes of a patient who appears to have died, as long as it is not done before the patient is [declared halachically] dead. The Rambam does not require a lengthy period of time to ascertain that the patient has died before it is permissible to touch him. Unlike a cesarean section, the closing of the eyes may have a detrimental effect on the patient's last moments of life, but clearly it is in no way comparable to doing a cesarean section on the patient. Since closing the eyes is for the benefit of the patient before rigor mortis sets in, the sages did not prohibit it as they did the attempted cesarean, which is done solely for the benefit of the fetus.
4. You ask whether it is permissible for the doctors to keep a patient in an intensive care unit, providing him with all heroic measures, solely for the purpose of maintaining him as a potential donor. If prolonging the life of this patient means that he will be maintained in a state of suffering, then it is forbidden to do so. We know from the Shulchan Aruch, Yoreh De'ah 339:1, that the Rema permitted removal of the crystal of salt put under the tongue of a dying patient, which was at that time believed to be [a means of] prolonging his life. Removal of this deterrent to dying was permitted because of the anguish the patient was suffering. Surely, it is forbidden to do anything that will prolong a life of anguish. Moreover, if the patient is not suffering and it is possible to prolong his life, then it is certainly not permitted to cease therapy. The only justification for refraining from further treatment is that the quality of life of this pain-ridden patient is such as to justify refraining from further treatment.
5. I strongly oppose the opinion cited in the Minchas Chinuch (Kometz Minchah 237) that if someone attempts suicide, there is no mitzvah to save his life. [Saving a life] is based upon a direct application of the principle of "returning a lost object," the ethical basis for medical care. As the Talmud explains, if you must return a person's lost object, how much more must you return his lost health!
The [author of the] Minchas Chinuch carries the analogy to a lost object to its rational conclusion. If someone throws away an object, there is no mitzvah to return it to him. Likewise, if someone throws away his life, there is no mitzvah to return it to him.
I believe this is a misapplication of the principle. A person is permitted to relinquish ownership of his physical possessions. This is called hefker. However, to destroy life is a capital crime, a Biblical prohibition. The fact that an individual transgresses that prohibition and attempts to destroy his life in no way exempts onlookers from attempting to save his life. They have the special mitzvah of hatzolas nefashos regardless of whether the individual himself thought his life worthless. In the eyes of Hashem, and therefore in our eyes, that life is still of infinite worth and must receive whatever ministrations enable the individual to survive.
6. You ask whether it is obligatory to forfeit a limb in order to save a fellow man from certain death. A Jew is required to spend his entire wealth in order to avoid transgressing a lo ta'aseh [negative Biblical commandment]. This is recorded in Yoreh De'ah 157:1. It is clear from the commentaries that one must forfeit one's wealth but need not incur the pain and danger of forfeiting a limb in order to avoid transgressing a Biblical prohibition. Since the prohibition of "Thou shalt not stand idly by when your brother is wallowing in his blood" is no different than any other prohibition, the expenditure of funds becomes an obligation but not the sacrifice of a limb.
This matter is discussed by the Radbaz and the Or Same'ach, in [connection with the Rambam's] Laws of Murder 7:8. Both of them conclude that it is not required to sacrifice a limb in order to save another person's life. The same logic can be applied concerning the question of assuming a significant risk in order to save someone else's life. It is not only not required to enter into a situation in which you endanger your life in order to avoid a Biblical prohibition (except for adultery, idolatry, and murder)—it is forbidden to do so.
However, with reference to the Biblical prohibition against standing idly by and not helping someone who is in danger of dying, we can make [the following] distinction: In this case there is no obligation to risk one's life to save one's fellow man, but it is permissible to do so. It is forbidden to endanger one's life to avoid committing a sin, because the key principle of Judaism is "And you shall live by My commandments." Therefore, if one endangers one's life, [in the end] it may very well be that life will be lost solely in order to safeguard the Biblical commandment which does not stand in the way of human life! [This is a contradiction in terms!] However, in the case of saving someone else's life, the forfeiture of one's own life is counterbalanced by the saving of the life of the one in danger.
Therefore, although it is forbidden to forfeit one's own life to save another's, and there is no obligation to endanger one's own life to save another's, it is an option available to someone who wants to attempt a risky rescue. He may choose to risk his life in order to save another person from certain death, since it is possible that both will be saved.
7. Concerning your question why I permit organ donation when the family of the deceased is greatly anguished at the thought of the mutilation of their loved one, I would analyze the situation as follows: It is true, as mentioned by Tosafos (Shabbos 44[a, s.v mitoch]), that concern for the dignity of a deceased relative is of greater significance than loss of money. Pain and anguish at the thought of the mutilation of a relative would, indeed, exempt one from signing a donor permission card. The Torah requires us to spend money to avoid a prohibition. Therefore, to avoid the prohibition of "Thou shalt not stand idly by [thy brother's blood]," one must spend money but not suffer pain and anguish at the thought of the mutilation.
However, I must point out that the anguish a person feels at the thought of the mutilation should be counterbalanced by the knowledge that by doing so he is saving a human life. There are some who believe it is an act of great piety even to forfeit a limb to save someone else's life. Therefore, surely it is possible to explain to the family that they should not be anguished over the mutilation, since it is not a desecration of the dead, leading as it does to the saving of human life. That being so, the family should not be anguished and should permit the donation.
Iggeros Moshe, Yoreh De'ah II 166
May a Kohein Visit a Sick Patient in a Hospital?
The issue concerns two halachic problems: the presence of autopsy specimens in the pathology department or in a research laboratory, and concern lest there be a deceased patient in the hospital at the time of the visit.
Concerning the possibility that autopsy or pathology specimens may be present in the hospital at the time of the kohein's visit, we may assume that since the vast majority of the people in the United States are not Jewish, the specimens can be presumed to come from a non-Jewish cadaver. [The halachah that an entire house is under the halachic restrictions of tum'as mes applies only to Jewish dead. The dead of other religions may not be touched by a kohein but the halachah of tum'as ohel does not apply.]
In addition, even irreligious Jews are unlikely to permit the keeping of anatomical parts of the body and not require that they be buried after medical examination. There is but a slight possibility that these specimens are from Jewish patients, and therefore le-halachah it is permissible to visit the hospital when there is a need to do so.
Visiting a relative, and certainly visiting a wife, involves the halachos of shalom bayis and shalom of the family with reference to relatives. Therefore, if it is possible to ask someone in the administration in order to find out for sure whether at that moment there is no deceased patient in the hospital, it is permissible to visit. If it is not possible to make such a determination, it is still permissible, again because we assume that if there is a dead patient, he would not be of the country's Jewish minority group, but rather of the non-Jewish majority population. [In Israel, hospitals have a means of informing visitors that a kohein may not enter until the body of the deceased is removed to the morgue.]
Iggeros Moshe, Yoreh De'ah II 164
Kohanim and Travel in an Airplane Carrying a Corpse
[This teshuvah concerns the halachic problem faced by kohanim when traveling in an airplane, especially to Eretz Yisroel, since there is a significant likelihood that there might be a casket on the plane bringing a Jewish deceased for burial in Israel.]
The airplane must be regarded as a "single container." Even though the plane is divided into a cargo compartment and a passenger section, the entire plane is made of metal and consequently cannot be considered to have a halachically valid separation between the cargo and passenger sections.
It is interesting to consider the possibility that the airplane is made of a metallic material that is not one of the six varieties mentioned in the Torah to which the laws of tum'ah of utensils captured from the Midianites is discussed. Only six varieties of metal are mentioned: gold, silver, copper, iron, lead, and tin. Surely, Hakadosh Baruch Hu knew that there are other metals that can be extracted from the soil, yet He saw fit to list only these six. I believe that airplanes are made of metals other than these six [e.g., aluminum, magnesium].
If my assumption that the airplane is made of materials other than the six listed metals is correct, we should certainly not add newly discovered metals to the list. The halachos of tum'ah and taharah are all strictly defined in the Torah. It is not for us to add or subtract from these laws. Glass, also extracted from the soil, is not considered to be a material that is involved in the Biblical laws of tum'ah and taharah. The Rabbis imposed the laws of tum'ah upon glassware to avoid confusion in the minds of people, since earthenware [pottery, stoneware, chinaware] is governed by the laws of tum'ah, as are metals. It would be confusing to the uneducated to differentiate glassware even though the Torah excludes glassware from the laws of tum'ah.
Nevertheless, this is a question worthy of further investigation. Is it true that airplanes do not contain any of the six metals? If they do, even if only as an alloy, then we would consider the metallic component of the airplane to be governed by the laws of tum'ah ve-taharah.
The fact that an airplane is a "movable tent" is not particularly relevant to our discussion; the kohein enters the plane when it is stationary, and in addition the concept of a movable tent should not be applied to the material within that tent. The concept of a movable tent, which is not governed by the laws of tum'at ohel according to most authorities, applies to material or people outside the tent, not to those within the confines of the movable tent.
Iggeros Moshe, Yoreh De'ah II 162
Disinterment and Reburial
This teshuvah concerns the permissibility of disinterring a body so as to rebury a parent in a cemetery closer to where the children reside. Doing so will permit them to visit the grave, which now is at a great distance from their home. The halachah is quite clear on this matter. Disinterring Jewish dead is not permitted unless it is done for the honor and dignity of the deceased. The intent of this disinterment is to facilitate visits by the children. Hence, it is for their benefit, not for the benefit of their deceased parent.
It should be noted that there is no halachic obligation to visit the cemetery where a parent is buried. Admittedly, it has become customary to do so, and people consider it a sign of respect to honor their parents both in life and after life. Nevertheless, it is not an honor that would permit violating the law which states that it is forbidden to disinter a body once it is buried. The Shach in Yoreh De'ah 363:2 permits the reburial of a deceased person if it is to be in a family plot next to his parents, which is considered to be an honor. Therefore in this case, where the reburial is planned only to facilitate visits by the children, it is not permitted to do so.
Unpublished Responsum "So One May Live"
Siamese Twins
Early in September, 1977, a drama began that added much kavod, much dignity, to the wisdom of Torah and to those who spend their lives applying Torah knowledge to the complex problems encountered daily in the modern world. In Lakewood, New Jersey, Siamese twins were born to a prestigious family of Torah educators. The twins were taken by helicopter, on September 15, to the Children's Hospital in Philadelphia, where Dr. C. Everett Koop, who subsequently became the Surgeon General of the United States, was then the hospital's Chief of Surgery. Immediately after the initial evaluation, it was obvious to all the physicians called in to evaluate the twins that both would die unless they were separated. However, the only way one child would be viable was if the other child was killed during surgery. The question was referred to Rav Moshe Feinstein for his evaluation and decision.
The children, designated Baby A and Baby B, were fused in the ventral area all the way from the shoulder down to the pelvic region. The twins shared one six-chambered heart. The wall separating the essentially normal four chambers from the other two, most likely the stunted heart of Baby A, was too thin to be divided. It was not possible to give the two-chambered heart to Baby A, so that she would survive for as long as a two-chambered heart could carry her physiological needs. There was only one solution. The entire six-chambered heart had to be given to Baby B, and the life of Baby A would have to be sacrificed.
It was clear to all concerned that this was a major ethical issue that had ramifications for the abortion debate, and for the ethics of neonate salvage. The Chief Surgeon, a deeply religious man, was fully aware of the ethical import of any decision in this case. Dr. Koop referred the case to the courts so as not to have any accusation of premeditated murder leveled against him. In addition, nurses and doctors at Children's Hospital consulted with their religious guides, and many reported back that they would not be able to participate in the surgery.
On September 20, I met with Dr. Koop and his staff to determine the medical facts. The first halachic concern was to establish that we were, in fact, dealing with two separate human beings. Although they were joined at the chest and their livers were co-joined, as were the hearts, the girls were separate human beings with their own brains and nervous systems. Dr. Koop recommended that the twins should be separated as soon as possible, because there were signs that the heart was failing and could not maintain the load of supplying blood to two infants. It was emphasized that even with surgery the chance was slim that one could be saved. Never before had Siamese twins been successfully separated from a ventral connection, and certainly not when they had a joined liver and a single heart between them.
On September 30, twenty doctors and nurses assembled in the meeting room to be brought up to date. Many were already disturbed by the lapse of time. They were all leaders in their fields and had gathered to be able to participate in the separation. Practically every surgical and medical specialty was represented, since no one really knew, despite the X-rays and the many tests that had been done, what they would encounter during actual surgery. Dr. Koop had prepared a team that would be able to handle any emergency that might arise. In brainstorming sessions, all possible problems were discussed. The simple problem of fitting a six-chambered heart into the small chest of Baby B proved to be unexpectedly difficult and could be resolved only by building the chest larger by using part of the chest of Baby A. On October 3, the intensive care unit nurse assigned to the twins noticed significant changes in the heart rate and respiration and in the electrocardiograph tracings. This was reported to Rav Feinstein, who then posed, once again, the key question: Was Dr. Koop sure that the six-chambered heart could only be given to Baby B? Could it not also be given to Baby A and have Baby B die?
Dr. Koop responded that there was no doubt that the only infant who could be helped by surgery was Baby B, because in addition to the shared liver and heart, Baby A also had a circulatory defect that would not permit her to survive any length of time, even if she were given the six-chambered heart.
Discussion involved many members of the Feinstein/Tendler family, each contributing his own insight. The surgical team had essentially completed its work and had a plan which allowed for the separation of the twins despite the unknown consequences of the separation. If Baby A was to be sacrificed, it was important that the separation be done immediately after Baby A was no longer alive, so that the toxins that immediately pour out when tissue is devitalized would not begin to affect the survival of Baby B. Yet there was little knowledge as to what impact the sudden removal of a large volume of blood (the blood that was circulating in Baby A) would have on the functioning of the six-chambered heart now in Baby B's chest.
On October 6, Rav Feinstein asked me to call Dr. Koop and instruct him to go ahead with the surgery. On Tuesday, October 11, the surgery was completed. Baby B successfully survived the surgery. Baby A had to be sacrificed. The following is a summation of Rav Moshe's reasoning for approving the surgery. A second approach that leads to the same conclusion, but based upon a different halachic principle, is also here recorded since it was presented in great detail during the discussions that led to the final permissive ruling.
One of the fundamental rules of halachah is that one life is not to be sacrificed for another. An exception to this rule is the sacrifice of a fetus in order to save the life of the mother during delivery. The Mishnah in Ohalos [7:6] records: "If a woman is in difficulty during childbirth, it is permissible to destroy the fetus surgically because her life comes first. If, however, the head of the fetus has already been delivered, then it is forbidden to intercede even though it may cost the life of the mother. The fetus is now an infant with the ability for independent life. Therefore, we do not sacrifice one life to save another."
The Talmud in Sanhedrin [72b] elaborates on this mishnah by posing the question: "Why should you not sacrifice the infant even though the head has already been presented, since this infant is endangering the life of the mother? Is not the infant, then, a rodef [pursuer]? The law of the pursuer should apply, which is to kill the pursuer in order to save the life of the victim." The Talmud answers: "No, Heaven is the pursuer." In other words, this is an act of Hashem, and therefore it is not correct to assume that the fetus is the attacker. We cannot decide to favor either the child or the mother in this terrible dilemma. While the child is in the uterine environment, totally dependent on the mother's life yet threatening it, we classify the fetus as a pursuer. The logic is, as Maimonides says, "simple." While in the uterine environment, the child is totally dependent on the mother's life forces. Thus, either the mother's death or the fetus's death would result in a fetus that was not viable. This complete dependency on the mother, so that if the mother dies the fetus will also die, is the reason for giving the mother priority over the fetus, because she is the source of fetal life.
Once the head appears, however, and the child is able to breathe independently, he is treated as an entity separate from the mother. He is now independent of the mother's circulatory and respiratory systems. We grant him the full rights and privileges of an adult. The most important of these privileges is the right to life.
This is surely the Rambam's reasoning in Laws of Murder [1:9]. The Rambam states as follows: "When the head has appeared we no longer intervene because we cannot destroy one life for the sake of another." He adds the explanation: "For this is natural law." Why is this case less a matter of natural law than when the fetus is still in utero? Why do we not say that "Heaven is the pursuer," and not intervene, even in early pregnancy? It is, after all, an "act of Heaven"? Surely, it is the fetal status of dependency on the mother that justifies the sacrifice of fetal life to save maternal life.
Rav Feinstein compared the case of the Siamese twins to this classic case of the conflict for survival between a mother in childbirth and the fetus. Baby A had no independent ability to survive. Her entire survival was completely dependent on her sister, who had the circulatory system to back up the functioning of the heart and liver.
To Rav Feinstein's critical question, "Can the heart be given to Baby A and she would live?" Dr. Koop had responded, "No, there is no way to save Baby A. The issue is only should both die or should Baby B be saved." Without the attempted separation, both would surely die, and therefore in halachic terminology we classify the baby that had no independent survival, Baby A, as the pursuer, as if she were pursuing her sister and threatening her life.
Further, sophisticated testing had determined that the halachic concept of dependency was, indeed, the relationship between the twins. The two-chambered heart, which was the heart of Baby A, was receiving its blood though two apertures leaking from the four-chambered heart. Except for that contribution of blood to the two chambers Baby A would have died in utero. This was the analysis that allowed the surgery to proceed.
I recall how impressed I was with a statement Dr. Koop made, a statement that in my opinion revealed the man's personality and also incurred a special merit. When the team of twenty or so professionals were awaiting Rav Feinstein's decision, and, indeed, were expressing impatience at the lapse of time, which interfered with their private, professional lives significantly, Dr. Koop quieted the group with the following statement: "The ethics and morals involved in this decision are too complex for me. I believe they are too complex for you as well. Therefore I referred it to an old rabbi on the Lower East Side of New York. He is a great scholar, a saintly individual. He knows how to answer such questions. When he tells me, I too will know."
During the almost two weeks of intensive discussions held under the guidance of Rav Moshe, an objection was raised to the analogy to a mother in difficult childbirth. The Rambam uses the expression: "For this is tiv'o shel olam, or the law of nature, or more accurately, the natural event of our world."
It is easy to see how such an expression applies to a woman in childbirth, since childbirth, a normal natural event, sometimes involves dangers that result in a serious conflict between the mother and the child about to be brought into the world. It is difficult to see how this concept can be applied to so rare an occurrence as the birth of a Siamese twin, especially one with a six-chambered heart and a shared liver, as was our case. Therefore, a second approach was suggested which received the careful attention of Rav Moshe. It did not receive his concurrence, only his appreciation for the analysis suggested.
The Talmud in Sanhedrin [72b] and the commentary of Rashi on the case of Sheva ben Bichri recorded in II Samuel 20:
There was an evil man named Sheva ben Bichri … and he said, "I have no allegiance to David HaMelech" [i.e., he led a rebellion against King David]. Yoav's men chased after him and they came to a town and laid siege to it. Yoav announced to the townspeople, "Sheva ben Bichri has raised his hand against David HaMelech. Send him out of your town, for he alone is the one that is guilty, and I will then withdraw my forces from the siege." A woman responded to Yoav, "Behold, here is his head which I am throwing to you next to the walls of the city."
The whole story is cited in great detail in the Talmud Yerushalmi, Terumot [8:4]. From this story is derived a halachic ruling concerning a caravan of Jews surrounded by gentiles. The gentiles had the military power to destroy the Jews but instead offered a deal: "If you will give us one of you so that we may do as we will with him and kill him, then you can all go free. If not, we will kill you all."
The Talmud rules that it is forbidden to hand over one Jewish life to them even though all must forfeit their lives. If, however, the gentiles had singled out one individual against whom they had some complaint, as specified: "Give us this man," just as in the case of Sheva ben Bichri, the halachah states that he should be turned over to them and the entire caravan be saved.
Resh Lakish qualifies this ruling by saying that it applies only if he is guilty of a death penalty, as was Sheva ben Bichri, who rebelled against the king and incurred such a penalty. Rav Yochanan states that is not a prerequisite. Even if he was not guilty, as long as they specified "this man and this man alone," it is permitted to turn him over in order to save the rest. Rashi, in his commentary on Sanhedrin, analyzes the case further and points out that whereas it was permissible to turn over Sheva ben Bichri, it is not permissible to kill a fetus which has already presented its head so that there is independent life, because sacrificing one life for another is forbidden. In the case of Sheva ben Bichri, even if they had not handed him over, they would not have been able to protect him against the siege laid by Yoav. They could only have died with him. If, however, there had been a possibility that defending him would have given him an opportunity to escape, so that there was no certainty that he would die, then they would have been required to raise a defense, and not save themselves by causing the death of Sheva ben Bichri.
The Rambam, in Law of the Foundations of Torah 5:5, concludes that Resh Lakish's opinion, and not Rav Yochanan's, is the correct one: "If he is liable to the penalty of death, as was Sheva ben Bichri, they are permitted to turn him over in order to save themselves. If, however, he is not guilty of any death penalty, then it is forbidden to turn him over, but they must defend themselves and him even if it means forfeiting all their lives."
It is clear, according to Rashi's analysis in his commentary on Sanhedrin, that in our case, where both would have died, it was permissible to sacrifice one in order to save the other. But according to Maimonides' ruling, unless one of them had incurred the penalty of death, it was forbidden to do so. The Rema, in Yoreh De'ah 157, records the Rambam's ruling as the correct halachah that it is forbidden to save one life at the cost of another unless that individual was guilty of a death penalty, as was the case of Sheva ben Bichri.
The analysis of the case of the Siamese twins, however, seems to satisfy even the requirement of Maimonides, so that in this case all would have concurred with the opinion of Rav Moshe. Baby A could not live, no matter what surgical plan was followed. Although there was no ruling of a Beit Din that she was guilty of any sin and therefore would be subjected to capital punishment, Hashem Himself issued such a ruling. There was an edict from Heaven that the child could not live. Nobody could help this child. Even if all the organs were placed in her body, she could not survive. Therefore, Baby A should be classified as if she were Sheva ben Bichri, for whom there was no hope, and the destiny was already inscribed by Hashem Himself, that this soul would enter the world only for a limited period of time so as to "help empty the storehouse of souls and hasten the coming of Moshiach" (Yevamot 62a).
The decision to sacrifice her is one that would have had the approval of both Rashi and the Rambam. The logic of equating inevitable death from physiological causes, because of the anatomical deficiencies of Baby A, and a case in which an individual is guilty of a capital crime, is based on an analysis by the Rema in Sanhedrin 72b, and I quote: "The case of the woman in labor requires deep analysis. The fetus was not guilty of any crime. It is like the case of a caravan surrounded by enemies in which the gentiles demand one life in order to let the other go, where the ruling is that we may not sacrifice one life even to save many lives."
The Rema concludes [that the rule that "we do not sacrifice one life even to save many lives" applies] only because the fetus has a chance to live. If the fetus did not have a chance to live, there would be no problem about killing it to save the mother, because the absence of any hope that the fetus could survive, and not the mother, makes it as if this individual were designated for death. According to Rema's analysis, then, in an early pregnancy, where the child still does not have viability, it is tantamount to being designated for death. Thus, in our case, Baby A, because of the defects in her body structure, had been designated for death, and therefore it is permissible to hasten that death in order to save the life of the sister.
[M. D. T.]
Quality and Sanctity of Life in the Talmud and Midrash Coauthored by Dr Fred Rosner
Introduction
The Talmudic maxim "to save one life is tantamount to saving a whole world" (Sanhedrin 37a) indicates that the value of human life is infinite. A fraction of infinity is still infinity. Nothing in this world is of higher value or greater ethical import than human life. Even Torah commandments of the Holy One, blessed be He, must give way to the higher value of preserving human life. The Biblical verse "You shall study and observe My laws and live thereby" (Lev. 18:5) is interpreted in the Talmud (Yoma 85b) to mean that the saving of a life takes precedence over Sabbath observance. By inference, all other Torah laws must also be suspended to save a life since none are more important than the Sabbath laws.
One exception exists to this absolute "vote for life." Rav Yochanan (Sanhedrin 84a) taught that the rabbinic consensus is that if someone's life is in danger, he should transgress all Torah laws to save his life. If, however, to save his life, he must transgress the laws of murder, idolatry, or forbidden sexual relations, such as adultery, he must rather forfeit his life. Maimonides explains that these three exceptions to the rule of "transgress and do not die" exist because of the duty to sanctify God's name.
All the members of the house of Israel are commanded to sanctify the great Name of God…. Should an idolater arise and coerce an Israelite to violate any one of the commandments mentioned in the Torah under the threat that otherwise he would put him to death, the Israelite is to commit the transgression rather than suffer death…. This rule applies to all commandments except the prohibitions of idolatry, forbidden sexual relations, and murder.'
The sanctity of human life is superseded only by the Biblical imperative to sanctify God's Name. One may not, even pro forma, engage in an idolatrous act or service, as the infinite worth of human life is devalued by the debasing idolatrous service. It is prohibited to commit murder to save a life since there is no net gain of life—only a substitution of one life for another. Forbidden sexual relations, such as adultery, are equated, by Divine decree, with murder.
This essay explores the attitude of the rabbinic sages to the question of quality of life. Is there a level of quality of life beneath which life loses its sanctity? Is such life no longer of infinite worth? Are there qualities of life which rank higher than the sanctity of life? If there are, they are, for the purposes of this essay, encompassed in the term "quality of life." The secular world has indeed reached such a conclusion. The courts in the United States have repeatedly permitted the withdrawal of hydration and nutrition from a patient in the irreversible coma known as persistent vegetative state. The reasoning offered is that the quality of life in coma has usually been unacceptable to those patients who have expressed their opinions on this issue when they were yet competent.
Torah law disputes such court decisions because the inevitability of death by dehydration classifies the removal of hydration as active euthanasia. But must we fight for every additional breath of life with every weapon of modern medical pharmacology and technology? Can a terminally ill but competent patient refuse further treatment because of intractable pain or the psychotrauma that results from the loss of control over his life, or the unrelieved loneliness of a mind preoccupied with thoughts of dying? Is life with a little quality of life also of infinite worth?
The competent patient is the only one who can decide that life has lost its quality, not the family or friends or the courts. What is an unacceptable quality of life for a healthy thirty-year-old man may be perfectly acceptable to him as a wheel-chair-bound invalid of eighty. A recently published study revealed that 87 percent of patients with muscular dystrophy using long-term mechanical ventilatory support who must spend the rest of their lives bound to a ventilator and a wheelchair "have a positive affect and are satisfied with life despite the physical dependence which precludes many of the activities most commonly associated with perceived quality of life for physically intact individuals."
Our analysis in this essay should not be interpreted or misconstrued as a final halachic ruling. Each case must be presented to a competent rabbinic authority (posek) for a halachic directive. This individualized decision-making approach is particularly important concerning decisions about withholding specific therapy for a terminally ill patient. Decisions about resuscitative measures or discontinuation of ventilator or pressor drugs are not free of family and physician emotional involvement or bias. Only the objective, individualized analysis of a posek can help plan a course of action in accord with Torah law.
Treatment of the Dying in Judaism
Judaism never condones the deliberate destruction of human life except in judicial execution for certain criminal acts, in self defense, or in time of war. One may not even sacrifice one life to save another life. The principles of Jewish medical ethics are based on this concept of the sanctity and infinite value of human life. Judaism is a "right to life" religion. The obligation to save lives is both an individual and a communal obligation. A physician is Biblically mandated to use his medical skills to heal the sick and thereby prolong and preserve life. A patient is also (authorized and perhaps) mandated to seek healing from a physician. How far do the physician's obligation and the patient's mandate extend? Is a physician always obligated to provide even futile therapy just to keep the patient alive a little longer? Is a patient obligated to accept all medical treatments even if the medical situation is hopeless and the patient has considerable pain and is suffering? Jewish law opposes euthanasia without qualification, and it condemns as sheer murder any active or deliberate hastening of death, whether the physician acts with or without the patient's consent. How does Judaism resolve the conflict between the sanctity of life and the relief of human suffering? Rav Moses Isserles (Rema), in his famous gloss, asserts: "If there is anything which causes a hindrance to the departure of the soul, such as the sound of a wood chopper or a lump of salt on the patient's tongue … it is permissible to remove them because it is only the removal of the impediment to the dying process."
Rav Solomon Eger comments that "it is forbidden to hinder the departure of the soul by the use of medicines."
In modern medical care, are antibiotics, blood transfusions, medications, dialysis machines, respirators, and the like, impediments to dying? The impediments spoken of in the codes of Jewish law, whether far removed from the patient (as exemplified by the noise of wood chopping) or in physical contact with him (such as the case of salt on the patient's tongue), did not constitute even at that time any part of the therapeutic armamentarium employed in the medical management of the patient. They were not intended to restore the patient to a former, healthier condition. Therefore, such impediments may be removed. However, the discontinuation of life-support systems, which are specifically designed and utilized in the treatment of both curable and incurable patients, might only be permissible if one is certain that in doing so one is shortening the act of dying and not interrupting life. Is there any basis for such a formulation? Is there indeed a difference between prolonging life and postponing death?
Recent Rabbinic Rulings
The numerous responsa of Rav Moshe Feinstein on the treatment (or non-treatment) of the dying and terminally ill have been reviewed elsewhere. These responsa comprise the most authoritative rulings on matters of life and death. With reference to comatose patients, the terminally ill, and those suffering from intractable pain, he rules that no effort should be made to prolong their lives by pharmacological or technical means; however, hydration and nutrition must be provided. If the patient is competent to decide and refuses to eat, no coerced feeding is permitted. Food and drink should be offered at regular intervals with proper emotional support. But how does the rabbinic decisor (posek) direct the treatment modalities for the many different kinds of patients who are terminally ill? Does he take into account the patient's "quality of life," or is this phrase foreign to Judaism because of the principle of the sanctity and infinite value of human life? Is there any validity in the claim of some rabbis that we are obligated to fight for the last breath of life?
Quality of Life in Classic Jewish Sources
Although mercy killing and assisted suicide are opposed by Jewish law and considered to be a deliberate hastening of death, Judaism is deeply concerned about pain and suffering. Judaism does not always require physicians to resort to "heroic" measures to prolong life but sanctions the omission of machines and artificial life support systems that only serve to prolong the dying patient's agony, provided, however, that basic care, such as food, good nursing, and psychosocial support, is provided. All reputable commentators on the halachic perspective on terminal care concur that analgesics and narcotics may be given to relieve pain and suffering even if they increase the danger of depressing respiration and of predisposing the patient to contracting pneumonia.
Quality of life is a recognized concept in Judaism. The Talmud (Kesubos 77b) relates an amazing tale about the great righteous sage Rav Yehoshua ben Levi, who feared not the fatal infectious disease ra'athan but attached himself to sufferers of that disease and studied the Torah with them, saying, "Torah bestows grace upon those who study Torah and protects them." When he was about to die, the Angel of Death was instructed, "Go and carry out his wish." While traveling toward Paradise in fulfillment of his wish to see his place in Paradise before he died, Rav Yehoshua ben Levi asked to hold the sword of the Angel of Death. When shown his place in Paradise, he jumped in and refused to return the sword. God exclaimed, "Return it to him, for it is required by My mortals." The sword is the scythe of the grim reaper in modern imagery and is needed when life becomes so burdensome that death is preferred.
Quality of life is a major concern even for a condemned man, who, according to Jewish law, is given a cup of wine containing a grain of frankincense to benumb his senses and intoxicate him prior to execution (Sanhedrin 43a). Rashi there explains that the benumbing of the senses is an act of compassion to minimize or eliminate the anxiety of the accused during the execution. Although the criminal's right to live was forfeited by his crime, the duty to maintain as much of a quality of life as possible is imposed on society.
Physical Pain
Intractable pain is described in the Talmud in several cases. In each instance, death is the preferred outcome, and either the removal of an impediment to death or the withholding of a life-prolonging measure to allow death to occur naturally is not only sanctioned but praised. One case concerns Rav Yehuda haNasi, known as Rebbe, the compiler of the Mishnah. When he fell deathly ill, his handmaid ascended the roof and prayed for his recovery as follows: "The immortals [i.e., angels] desire Rebbe [to join them] and the mortals [i.e., the Rabbis desire Rebbe [to remain with them]; may it be the will [of God] that the mortals overpower the immortals" (Baba Metzia 85a).
She saw how often he resorted to the privy because he suffered from acute and painful intestinal disease. She observed him painfully taking off his phylacteries whenever he went to the privy and putting them on again when he returned. As a result she prayed, "May it be the will [of God] that the immortals overpower the mortals."
But the Rabbis incessantly continued their prayers for heavenly mercy for Rebbe's recovery. She, therefore, interrupted the prayer service by throwing an urn to the ground. The noise startled the Rabbis, who momentarily ceased praying and the soul of Rebbe departed to its eternal rest (Kesubos 104a).
Another quality of life case involving intractable pain is that recorded in the Talmud as follows: "One of Rav Akiva's disciples fell sick and none of his fellow students visited him. So Rav Akiva himself entered [his house] to visit him and provided necessary care. 'My master, you have revived me,' said the disciple. [Straightaway] Rav Akiva went forth and lectured: He who does not visit the sick is like one who sheds blood" (Nedarim 40a).
Rav Nissim Gerondi, known as Ran (1320–1380), states in his Talmudic commentary that "none visited him" and, therefore, none prayed on his behalf either that he recover or die. What the Talmud means, continues Ran, is that sometimes it is appropriate to pray that a patient die, particularly if the patient is undergoing great suffering and has an incurable disease or condition. He then cites the case of Rebbe and his handmaid as an example of severe suffering where it is to the patient's benefit that one pray for his death.
Perhaps the most famous Talmudic case of severe physical pain and suffering is the story of Rav Chanina ben Tradyion, who was martyred because he refused to abide by the Roman decree not to study and teach Torah. According to the Talmud (Avodah Zarah 1 8a), he was wrapped in the Torah scroll, and bundles of branches were placed around him and set on fire. The story continues as follows:
They then brought tufts of wool, which they had soaked in water, and placed them over his heart, so that he should not expire quickly…. His disciples called out, "Rav, what seest thou?" He answered them, "The parchments are being burnt, but the letters of the Torah are soaring on high." "Open then thy mouth" [said they] "so that the fire enter into thee" [and put an end to the agony]. He replied, "Let Him who gave me [my soul] take it away, but no one should injure oneself." The executioner then said to him, "Rav, if I raise the flame and take away the tufts of wool from over thy heart, will thou cause me to enter into the life to come?" "Yes," he replied.
Several lessons are derived from this narrative. First, the removal of an impediment to death, i.e., the tufts of wool, is permitted to allow nature to take its course. Second, it is forbidden to hasten one's death, i.e., by opening the mouth to let the flames enter. Third, there was great concern voiced about the intractable pain that the rabbi was suffering—an important quality of life issue.
Increasing the flame presents a serious challenge to the unanimity of halachic opinion that active euthanasia is never condoned. This view was affirmed by Rav Chanina who refused to open his mouth and breathe in the flames. One of us (M. D. T) has suggested that, as an extra measure of cruelty not mandated by the emperor or governor, the executioner had placed the wads of wet wool and had lowered the flame. Burning at the stake had a formal protocol which was not followed by the cruel executioner. Restoring the flame to its original intensity was not an act of hastening death but merely the removal of the extra measure of cruel torture introduced by the executioner.
Mental Anguish
Judaism is not only concerned with physical pain but also with psychological or emotional pain. Mental anguish is just as significant as intractable physical pain. Mental and physical suffering are recognized as being of equal importance in Jewish legal thought. A woman who has had two postpartum psychoses is allowed to use contraception, since another pregnancy would be a serious threat to her mental health. Even abortion is sanctioned for serious maternal psychiatric disease that may lead to suicide.
In the area of death and dying, Judaism is concerned with psychological trauma. A classic example of this concern is the Talmudic story of the great righteous sage, Choni the Circle-Drawer, who slept for seventy years. When he awoke and identified himself, no one would believe him. When he came to the house of study and told the rabbinic scholars who he was, they did not believe him or give him the honor due to him although they recognized his great mastery of Torah law. This hurt him greatly and he prayed for death and was granted his wish. Raba commented: "Hence the maxim, 'Either companionship or death' (Ta'anis 23a). Choni had no terminal illness but suffered from severe mental anguish and psychological pain. By divine intervention his suffering was ended and his wish for relief by death was granted.
Another example of concern for psychological pain is recorded in the Midrash. A very old woman came to Rav Yose ben Halafta saying that she was so old that life had no more meaning. She complained of loss of appetite and lack of desire to live, and asked to be taken from this world. He said to her, "How did you reach such a ripe old age?" She replied, "I go to synagogue services every morning to pray, I allow nothing to interfere with that daily activity." He said, "Absent yourself from the synagogue for three consecutive days." She complied with the rabbi's suggestion. On the third day she took ill and died. The Midrash is a proper source for halachic directives when unopposed by Talmudic sources.
This story illustrates the fact that the psychotrauma of depression and the mental anguish of loneliness, resignation, senility, and the like, are of significant concern in Judaism. Even in the absence of terminal illness, death is sometimes a welcome and desired goal as God instructed Rav Yehoshua ben Levi, "My mortals need it." There are times, however, when it is appropriate to pray for the death of a suffering patient in intractable physical pain or with severe psychological or mental pain.
Another Talmudic passage dealing with the quality of life relates to the old men of the city of Luz, who became tired of life and "became greatly depressed" (Sotah 46b). The Angel of Death had no permission to enter that city. When the elderly righteous men of Luz determined that life had lost its quality and that life was tiresome to them, they went outside the walls of Luz to await natural death. No negative comment is recorded by the Talmudic sages. Loss of quality of life is seen to be adequate justification for their behavior.
Two additional traditional sources about the quality of life relate to Moses. One homiletical passage states that if Moses had wanted to live many more years he could have lived, for the Holy One, blessed be He, told him, "Avenge the vengeance of the children of Israel of the Midianites; afterward thou shalt be gathered unto thy people" (Numbers 31:2), making his death dependent upon the punishment of Midian. Had he delayed waging war with Midian, he could have prolonged his life. But Moses decided not to delay. He thought: Shall Israel's vengeance be delayed that I may live? He immediately ordered the Israelites "Arm ye men from among you for the war" (Numbers 31:3). Why did not Moses wait? One must conclude that the desire or need to avenge Jewish honor took precedence over increasing his life span. Sanctity of life is not the supreme value in Judaism. The quality of life of his nation, which had been degraded by the Midianites, who led Jewish youth to lechery and idol worship, had to be restored in preference to a longer personal life for Moses.
The other homiletical passage deals with the imminent death of Moses. When God told Moses to call his successor Joshua (Deut. 31:14), Moses said to God, "Master of the Universe, let Joshua take over my office and I will continue to live." Whereupon God replied, "Treat him as he treats you." Immediately Moses arose early and went to Joshua's house, and Joshua became frightened. Moses said to Joshua: "My teacher came to me," and they set out to go, Moses walking on the left of Joshua as a disciple walks on the left of his teacher. When they entered the Tent of Meeting (Ohel Moed) the pillar of cloud came down and separated them. When the pillar of cloud departed, Moses approached Joshua and asked him, "What was revealed to you?" Joshua replied, "When the word was revealed to you did I know what God spoke with you?" At that moment Moses exclaimed: "Better to die a hundred times than to experience envy, even once." Solomon has expressed this clearly: "For love is strong as death, jealousy is evil as the grave" (Song of Songs 8:6). This refers to the love wherewith Moses loved Joshua, and the jealousy of Moses toward Joshua. A life of envy and jealousy is not worth living for a man of the ethical stature of our Teacher, Moses.
Summary
Judaism espouses the principle of the infinite value of human life and requires that all Biblical and rabbinic commandments (except the cardinal three) be waived to save a human life. Physicians are divinely licensed and obligated to heal, and patients are mandated to seek healing from physicians. Any deliberate hastening of death of even a terminally ill patient is prohibited as murder. Active euthanasia is not allowed in Judaism.
A physician is only obligated to heal when he has some medical treatment to offer the patient. If the patient is dying from an incurable illness and all therapy has failed or is not available, the physician's role changes from that of a curer to that of a carer. Only supportive care is required at that stage, such as food and water, good nursing care and maximal psychosocial support.
If a patient near death is in severe pain and no therapeutic protocol holds any hope for recovery, it may be proper to withhold any additional pharmacological or technological interventions so as to permit the natural ebbing of the life forces. The physician's role at that point may be limited to providing pain relief. Experimental therapy, if available, is an option which the patient can accept or reject, particularly if significant side effects are anticipated. Judaism is concerned about the quality of life, about the mitigation of pain, and the cure of illness wherever possible. If no cure or remission can be achieved, nature may be allowed to take its course. To prolong life is a mitzvah, to prolong dying is not.
Additional Note
The Nisan 5755 issue of Hamaayan, a journal published by Poalei Agudas Yisrael, printed a eulogy of HaGaon Rav S. Z. Auerbach זצ"ל which had been delivered by Rav Y. Neuwirth שליט"א. In the course of his remarks, however, Rav Neuwirth introduced a revisionist version of the halakhic rulings of Rav Auerbach זצ"ל regarding brain death, and likewise of HaGaon, Posek HaDor, Rav Moshe Feinstein זצ"ל. The following is a response submitted to HaMaayan.
Clarification of the Halakhic Rulings of Rav Moshe Feinstein and of Rav Shlomo Zalman Auerbach in Regard to Brain Death
Since Rav Neuwirth's שליט"א remarks reveal a certain confusion regarding the opinions of these two Gaonim on this important and controversial subject, I hope the following will clarify the matter as succinctly as possible.
Concerning the view of Rav Moshe זצ"ל
Some ten years before his passing, my father-in-law informed me in a letter that total cessation of respiration in a brain-stem-dead patient is tantamount to decapitation, since this would constitute halakhic death. Such a patient is not a safek goses, but rather a vadai mes; the action of the ventilator in oxygenating the patient is not to be confused with breathing. Rav Moshe published this pesak din in Iggeros Moshe Y. D. III:132. If such a brainstem dead patient would be considered a safek goses, as suggested by Rav Auerbach, Rav Moshe would oppose Rav Auerbach's decision to permit removal of the ventilator, such this would constitute safek retzihah. He so stated this point in Iggeros Moshe H. M. II:73:1 and 74:3, based on the Talmudic rulings in Sanhedrin 77a.
The opinions I have publicized in the name of Rav Moshe were not inferred from his writings, but are direct quotations of his statements to me and from what he actually decided in the many cases presented to him. Tens of his students can testify that they heard from him the Torah truth that when a patient appears to be dead, totally unable to breathe independently, he is considered halakhically dead, without any reservation. When Rav Moshe was alive, no one dared question either the accuracy or the veracity of my report of his pesak. Only after the "death of the lion" have some individuals attempted to distort his words in an attempt to nullify his pesak. Although it is unnecessary to affirm the above statement, below I will review some of the written evidence to emphasize the accuracy of my report of Moshe's opinion on this matter.
(1) In a responsum to Dr. E. Bondi (grandson of HaGaon Rav Yosef Breuer זצ"ל and a leading pulmonalogist), written Kislev 5745:
"Since the patient cannot breathe independently, he is considered to have died, even if the heart continues to beat for several days, as I wrote in my responsum in Y.D. III:132."
(2) Rav Dovid Feinstein שליט"א wrote to a questioner on Kislev 5753:
"I have already written that the responsum of my father זצ"ל in Y. D. III:132 is an accurate statement [of his view that brain death is halakhic death], but as further clarification I state his opinion once more. "'If the patient is motionless, even if his heart is still beating, since he cannot breathe autonomously he is absolutely dead.'"
(3) A confirmatory letter published in Assia, Kislev 5750, by his editor and grandson, Rav Shabsai Rappaport שליט"א:
"There is absolutely no doubt that Iggeros Moshe Y. D. III:132 refers to a brain dead patient whose heart is beating. I confirmed this directly from my grandfather, both by phone and in person, during the printing of the sefer.
(4) Concerning organ donation, Rav Moshe expressed his opinion in Iggeros Moshe, Y. D. II:174, Tammuz 5728, in a responsum to HaGaon Y. Y. Weiss זצ"ל when the latter was Rav of Manchester, England. Rav Moshe's pesak clearly enunciated the view that it is a great mitzvah to donate organs from the deceased in order to save someone's life.
I will now clarify the view of Rav Shlomo Zalman Auerbach .זצ"ל
(1) 18 Av 5751: In a four-line opinion printed in the Jewish Observer, the official organ of Agudas Israel of America, Rav S. Z. Auerbach is quoted to the effect that "it is not permissible to remove any organ [from a brain dead patient], for this is an act of murder."
(2) After I wrote a lengthy analysis of Rav Moshe's opinion to Rav S. Z. Auerbach on 23 Elul 5751, Rav Shlomo Zalman wrote [in an opinion now printed in Nishmas Avraham]: "In my opinion, someone needing an organ transplant in America may receive one, and it is not an act of murder. According to the description of Rav Tendler, since it is determined by radioactive injection that the brain is not being perfused with blood. If this test (nuclide scan) is performed, and if the experiment now being planned to prove that a pregnant sheep can continue to gestate a lamb even after decapitation will so confirm, a brain stem dead patient is tantamount to one who has been decapitated or as an elderly man whose neck was broken even if there is no external wound [cf. Chulin 231a]."
Rav Shlomo Zalman thus repeated verbatim the opinion of Rav Moshe in Y. D. III:132! This clearly-stated opinion was never questioned in his subsequent writings or verbal comments. Brain stem death is final, absolute, halakhic death!
However, erroneous "facts" transmitted to him by his medical advisor caused him to doubt the "safety" of the test to confirm brain stem death. Rav Shlomo Zalman then wrote:
"The brain stem dead donor will surely die, but [until the death is confirmed,] he has the halakhic status of a goses and it is forbidden to touch him. Despite Rav Tendler's claim that [the nuclide scan] can be performed without even touching the potential donor, I have heard form my medical advisor that it cannot be performed without moving the patient. Moreover, the injection of the isotope is even more stressful to the patient than moving him would be, or closing his eyes, acts which are themselves forbidden, since these [tests] are done for the benefit of others and not for the benefit of the patient."
It is indeed astounding that Rav Shlomo Zalman did not have available to him a medical advisor of both competence and integrity to provide him with accurate information. The "facts" he was given were erroneous.
a) The test to determine brain stem death are done for the benefit of the injured patient. If it is determined that he is not brain dead, aggressive medical or surgical treatments will be initiated.
b) It is absolutely false to state that the injection of a radioisotope is in any way harmful to the patient.
c) The injection can be given without touching the patient, since there is always an intravenous line in the patient, and the isotope is injected through this line.
d) A portable "camera" can be brought to the bedside to measure the radioactivity in the head region in order to determine whether the brain is being perfused with blood.
e) The conclusion of Rav Shlomo Zalman is most difficult to fathom. He wrote: "… In conclusion, outside of Israel, where most inhabitants are non-Jews, it is permitted to receive an organ transplant, but in Israel it is forbidden."
Is it permissible to kill a non-Jew to save a Jew? Even if non-Jews do not accept our halakhic standards, we are required to apply these standards to Jew and non-Jew alike. If brain death is not an acceptable criterion for determining halakhic death for a Jew, it should not apply to a non-Jew either.
(3) Rav Shlomo Zalman wrote to me [Nisan 5752] to reaffirm his concurrence with the view that brain death is halakhic death, but he was still concerned about the test protocol. He therefore suggested:
a) removal of the ventilator;
b) waiting until the heart beat ceases for 30 seconds;
c) the organ can then be removed or the heart beat restored, if possible.
(4) In Elul 5754 he published the above instructions in Assia, in a note originally written for Dr. Schulman whom he mentioned in Rav Neuwirth's eulogy of 2 Adar 5752. There R. Shlomo Zalman זצ"ל reduced the time of asystole (no heart-beat) to 15 seconds. Several leading transplant surgeons announced that they would accept such a donor (i.e., after 15 seconds asystole) if it would increase the size of the donor pool.
(5) Rav Dr. Abraham Steinberg and Rav Yigal Shafran שליט"א confirmed that Rav Shlomo Zalman concurred with the pesak of Rav Waldenberg שליט"א to perform a Caesarian section on a brain dead woman in an attempt to save the fetus, even though this surgery would cause the cardiac-pulmonary death of the woman. Surely, if he did not fully agree that brain stem death is halakhic death he would not have agreed. But since the tests to confirm brain stem death had already been completed, his concern for the safety of these tests was now a moot point. He therefore ruled on the post facto acceptability of the brain death criterion.
In sum, therefore, although he was unwilling to approve initiating the test protocol, once the tests were performed and brain stem death was confirmed, Rav Shlomo Zalman זצ"ל ruled that the patient was halakhically dead and could serve as an organ donor.
6) On Jan 9, 1994, the Anglo-Jewish press reported that Rav Shlomo Zalman זצ"ל joined Rav Dovid Feinstein and Rav Tuvia Goldstein שליט"א זצוק"ל in an appeal to the Orthodox Jewish community to find a lung donor for a young woman, though the donor could only be someone who was a brain dead relative of those he addressed.
7) Several personal communications affirmed that numerous times Rav Shlomo Zalman approved the donation of vital organs from Jews, if the brain stem test protocol had already been completed.
It should be carefully noted that most poskim, Rishonim and Aharonim, permit an individual to assume significant personal risk in order to save someone else from certain death. Therefore, even if the brain dead test-protocol would involve some danger to the patient (which it does not), the signing of a donor card would constitute the voluntary assumption of this risk in order to save someone threatened by certain death because of the failure of a vital organ.
(8) In Assia, Elul 5754, Rav Shlomo Zalman introduced a final variation in the halakhic ruling on brain death.
"I have been informed that a portion of the brain, the hypothalamus, remains alive after brain stem death has been confirmed. Therefore a doubt has been introduced; perhaps a 30-second asystole is not sufficient and we must wait until the hypothalamus also dies."
The source of this information was presumably Rav Shlomo Zalman's medical advisor, who should surely know that the issue at hand concerns the halakhah to which Rav Shlomo Zalman referred in his article in Nishmas Avraham—that one whose neck is broken is considered as though he were decapitated [Chulin 21a]. Such an individual is unquestionably considered to be dead; see Shulchan Arukh Y. D. 370. Anyone with an elementary education in biomedical subjects surely knows that the hypothalamus is fully viable immediately following this grievous injury. Thus the viability of the hypothalamus is entirely irrelevant to the question of determination of death! Yet Rav Shlomo Zalman's source of information seems to have misled Rav Shlomo Zalman with the information that the hypothalamus is part of the brain in regard to the halachic determination of death.
The Rambam in his commentary on Mishnah Oholot 1:7 defines the "halachic brain" as the control center for bodily movements. The hypothalamus is not part of the halachic brain, but rather a secretory tissue, no different from other glands of the body which secrete hormones. It does not control the body's motion. Upon death many parts of the body remain viable for various lengths of time without affecting the decision to declare the patient dead.
I hope that the above analysis finally puts to rest the doubts that have been raised in this connection, doubts which are based on erroneous information. HaGaon Rav Moshe Feinstein זצ"ל ruled that after brain death has been confirmed, organ donation is a great mitzvah. HaGaon Rav Shlomo Zalman Auerbach זצ"ל concurred fully with this position, but was concerned with the test-protocol used to verify brain death. This concern was a direct result of the erroneous information provided him by his medical advisor. Indeed, it is sad to realize that this great posek, to whom every doctor in Israel and outside Israel was available for consultation, chose as his advisor one who was unable or unwilling to provide him with accurate information on which to base his halachic ruling.
Iggeros Moshe, Yoreh De'ah I 145
Why the Rambam Omitted the Law of "Your Life Comes First" (Hayecha Kodmin)
Introductory Note
This responsum reveals the analytical method that Rav Moshe used in all his Torah studies and, most evidently, in his responsa. It demonstrates his technique of first analyzing the earliest primary halachic source available, the Talmud itself. After dissecting the logic of the disputants in the Talmud he proceeds to draw analogies from other halachos to establish a principle. Once this principle is established, the application to the case at hand becomes self-evident. The question posed to Rav Moshe concerned the omission of the law of “your life comes first” from the halachos governing life-threatening situations. Rav Moshe, without citing the exact question, begins his responsum by analyzing the ethical dilemma recorded in the Talmud, Bava Metzia 72a:
Two people are lost in the desert. One has a canteen of water which is inadequate for both to survive until they reach a habitation. Ben Petura is of the opinion that both should drink, and indeed, that if they are not rescued, both will die, but one should not witness the death of his fellow. Rebbe Akiva decries this ruling and cites the verse in the Bible: “Your brother shall live with you,” or, as our sages put it, “Your life comes first.”
Rav Moshe rejects the suggestion that the Rambam really did not omit this halachah. Although the Rambam does not record Rebbe Akiva’s opinion of “your life comes first” as a separate halachah, he does include it earlier in a summation of the law of Kiddush Hashem (i.e., at times, one must sanctify the name of Hashem and not transgress a Biblical commandment). In the summation, the Rambam clearly states that it is forbidden to forfeit one’s his life except to avoid the three cardinal sins of adultery, idolatry, and murder. Saving another’s life does not warrant forfeiting your own life. Rav Moshe points out that this does not “excuse” the Rambam for omitting the law of Rebbe Akiva, because the two cases are not comparable. In the decision of Rebbe Akiva to instruct the one who has the canteen not to share it lest both die, we have a decision that leads to loss of life. In the law that one’s life takes precedence over all but the three mitzvos recorded previously, a Torah law will be violated so as to prevent a loss of life. But in Rebbe Akiva’s ruling, a life will be lost and a law will be transgressed, the law of charity. Therefore, surely there is such novelty in this law that the Rambam would have had to record it even though he had a prior discussion concerning forfeiting one’s life for the honor of Hashem.
Let us analyze Ben Petura’s logic. Surely, it is a strange halachah to urge sharing of the water though in doing so both will die. We know that the law of murder, which does not allow one to save one’s own life by committing murder, refers only to active, aggressive acts. If death is caused by a passive act, a failure to respond to the needs of another individual who is in mortal danger does not incur the death penalty. The halachah distinguishes between a coercive order to kill, which must be rejected even at the cost of one’s life, and a passive act. If a person is threatened with death unless he allows himself to be thrown on an infant, he need not forfeit his life in resistance, because his life comes first. It is, therefore, strange that Ben Petura would disregard these halachic facts, facts that do not seem to be in dispute.
In summary, only an act of murder cannot be committed to save one’s life. Passive nonresistance that will lead to the death of someone else does not require that one’s own life be forfeited. Even Ben Petura agrees that it is proper to save one’s own life by refraining from taking any action and remaining passively uninvolved. Why would Ben Petura then order the individual to share the water and thus forfeit his life when he can remain uninvolved, keep the water, and drink it himself, since all agree that one’s own life comes first? [Note: The Netziv, in Ha-amek She’elah, Parshas Re’eh, suggests that the controversy between Ben Petura and Rebbe Akiva concerns the degree of risk that one is required to assume in order to save another person’s life. If there really is no hope and both will die if they share the water, then even Ben Petura concurs that one’s own life takes precedence. However, the situation, as Ben Petura sees it, is that sharing the water may enable them to survive long enough to be found or to reach an oasis, and thus both lives will be saved. This decision involves the potential risk that neither will survive, and hence the halachic question that Ben Petura ruled on was: “If we both drink, we have a hope of both being saved. If I drink alone, then my friend must die. Am I required to enter into the risk situation, not forfeiting my life, but endangering it?” In this situation, Rebbe Akiva insists that there is no halachah that requires one to enter into a mortal risk in order to save someone else’s life.
This controversy, as understood by the Netziv, has great significance in the halachic evaluation of transplantation surgery. The donation of a kidney from a live donor or, as is occasionally practiced today, of a liver or lung lobe, surely involves risk to the donor. The modicum of risk that the donor must assume is the basis of the controversy in the Talmud. According to the final ruling, which concurs with Rebbe Akiva, a donation of a liver, lung, or lung lobe may not be permitted, depending on the current evaluation of the degree of risk.]
To continue the analysis of the controversy between Ben Petura and Rebbe Akiva: Rashi and Tosafos (Sanhedrin 74a, Yoma 82a, Pesochim 25b, Yevamos 53b, Avodah Zarah 54a) explain that one may not commit murder to save one’s own life because the “bottom line” is a negative calculation. A life is lost either way; to forfeit one’s own life and not murder, or to murder and save one’s own life. But in the latter case a sin is also committed, the sin of murder. Hence, one is forbidden to save his own life by taking someone else’s life.
It should follow that to allow someone to die by not giving him charity, even if one is coerced, is not permitted, and one must forfeit one’s own life rather than refuse to give the charity. It would seem that again the calculation comes out in the negative. For by not giving charity, and not helping his fellow man, the one who refuses violates a mitzvah of the Torah, the positive commandment to give charity. In addition, a life is lost. We must, therefore, conclude that there is a special halachah: when one’s life is endangered, there is no mitzvah to do charity.
Indeed, the Talmud in Sanhedrin 73, citing the verse “Thou shalt not stand idly by your friend while his life is endangered,” does not require the forfeiture or the endangerment of one’s own life. Rather, as the Talmud says, it obligates one to spend money to hire a physician to save the life of one’s fellow man, even though one cannot personally help him. I must seek help elsewhere, and pay for it. This commandment “energetically to seek help even if expenditure of money is required” is both an obligation and a limitation. It is not required to do more than spend time and money.
Therefore, when it is necessary to forfeit one’s life in order to save someone else by a charitable act, it is not a transgression of the mitzvah of charity to refrain from doing so because of the danger to oneself, but rather the halachah of “you come first.” It is but one life against another life. It is not a life and a mitzvah, for there is no mitzvah under these circumstances. To make this point clearer, imagine a case in which someone falls into a well, and to prevent him from escaping one is coerced, on threat of death, to remove a ladder from the well and thus cause the death of the person who fell into it. Even though removal of the ladder may not be considered a direct act of murder, it certainly is a contributory cause of this individual’s death, not to be considered a passive act, but rather an active, aggressive act against someone else in order to save one’s own life. For this, we have the commandment that one may not save one’s own life at the expense of someone else’s life.
If, however, one is prevented from calling a doctor and paying his fee by a threat to one’s life, one should not forfeit one’s life. The reason is that the mitzvah does not exist when one’s own life is endangered. Therefore, the issue is clear: “My life or his?” To this we answer: “Your own life comes first.” It is clear to me that Ben Petura considers failure to share the water analogous to removing the ladder or removing the water supply from an imprisoned individual which will surely lead to his death. Even if one’s own life be endangered, according to Ben Petura, one is not permitted to save it at the expense of someone else’s life.
Rebbe Akiva, therefore, introduces the concept, based upon a verse in the Torah, “And you shall live by them.” The statutes of the Torah are not [intended] to cause the death of an individual. Therefore, according to Rebbe Akiva, there is no mitzvah to share that which you need for yourself. In the absence of a mitzvah, the issue is simply who shall live and who shall die, to which Rabbe Akiva answers hayecha kodmin, “your life comes first.”
This principle applies not only to life-threatening situations, but even in strictly monetary matters. If two lost objects are located simultaneously and there is no time to return both, if one of the objects belongs to you, it takes precedence over the other. Therefore, in our case, since the canteen of water is in your possession, you are now to evaluate whether you are obligated to give water to someone who is in need. However, your own need comes first. There is no mitzvah to give away that which you must have for yourself. This principle is so clearly established that we must conclude that Ben Petura, who does not apply this principle to the case of the two men in the desert, claims that this principle does not apply in cases of pikuach nefesh.
We might offer an analysis of Ben Petura’s position based upon the halachah that to save one’s life it is permitted to violate the laws of theft. Hence, the concept of ownership cannot be applied here, since the individual without the water is permitted to steal the water for his own use. Once we disregard the ownership of the canteen of water, it must follow logically that since each can lay claim to the water, the only equitable solution is for them to share the water equally in the hope that both will survive and, if not, both will perish. We might even add that in the absence of ownership, which would give the one who has the canteen some priority over all others, the mitzvah of tzedakah is in full effect. Consequently, we would now have an equation in which if one refrains from giving the water he violates the mitzvah of tzedakah, at the same time causing the death of another individual. Therefore, once again, the equation ends up in the negative, for a life is lost and a sin has been committed.
Rebbe Akiva’s original contribution is, as we said, to analyze the circumstances and conclude that when one’s life in endangered there is no mitzvah of tzedakah. If one is impoverished and cannot afford to buy tefillin or an esrog and lulav, he is not free of the mitzvah. The mitzvah is an obligation, but he is under duress. Forces beyond his control make it impossible for him to fulfill his obligation.
Rebbe Akiva’s analysis is that as far as the mitzvah of tzedakah is concerned, in the case at hand, it is not that one has the obligation, but is unable to fulfill it due to extenuating circumstances. Rather, the mitzvah does not exist. The mitzvah of tzedakah is limited to that which is in excess of what one must have as a basic minimum for oneself. If one has just enough food for oneself, there is no mitzvah to share this food with others.
Since one has but one life, one is not asked to share this life with anyone else. Therefore, one does not violate a mitzvah or fail to fulfill a mitzvah when one does not share the water with one’s fellow traveler. There is just the rule: You shall live by “My commandments.” If one’s life is endangered by My commandments, with the exception of the three previously mentioned sins of idolatry, adultery, and murder, the Torah establishes no obligation.
This principle of Rebbe Akiva’s is codified by the Rambam in Laws of Charity 7, where the Rambam defines the mitzvah of tzedakah as follows: “It is a positive commandment to give tzedakah if one has the ability to do so.” The ability to do qualifies the mitzvah of tzedakah.
Now to answer the question succinctly: You asked why the Rambam does not record the law of Rebbe Akiva of “your brother shall live with you,” that your life comes first. This is a most important halachah and the Rambam does record it, but not where you searched, but rather in the Laws of Charity, where the principle is established. Charity is obligatory only for those who can afford to share. When one’s life is at stake, sharing is neither possible nor permitted.
Introductory Note
Iggeros Moshe, Orach Chaim IV 79
The Conduct of a Doctor on the Sabbath
[This responsum was written to a young medical school graduate who posed a number of important questions as to his conduct on the Sabbath.]
The Rambam, in Laws of Shabbos chapter 2, refers to the treatment of the critically ill on the Sabbath, using the term dechuyah, i.e., that the laws of saving life supplants the laws of Shabbos. The author of the Shulchan Aruch, in his Kesef Mishnah commentary to the Rambam, explains that the concept of dechuyah, as opposed to the concept of hutrah, means that the decision to save a life takes precedence over the commitment to observe the Sabbath.
The concept of hutrah is that on the Sabbath there are no laws that govern relationships to the critically ill. The law is not supplanted. It is not a value judgment of which law is more important; rather, the Sabbath laws were originally given for all people who were not critically ill. The difference in halachah is significant. When a law is supplanted, there is an obligation to avoid conflict if possible. If this were the case, then on the Sabbath, for example, if there were a non-Jewish physician, equally competent, the Jewish physician should defer to the non-Jewish physician. It is, therefore, strange that the Rambam's laws should be interpreted as dechuyah when, as we all know, there is a special mitzvah for a Jew to be involved in the saving of a fellow Jew's life. He is not to defer to a non-Jewish physician, lest people say that the Sabbath law is only reluctantly supplanted and he will not hasten to respond to an emergency call. Even if a non-Jewish physician is standing by, it is a special mitzvah for the Jew to undertake to transgress the Sabbath law and do whatever is necessary to save the patient.
In my opinion, there is no difference between the concepts of dechuyah and hutrah with reference to medical care on the Sabbath except if the patient has not yet called a physician. [A second difference might be the need to perform the task al yedei shinnui, i.e., not in the usual manner, assuming that to do so will not introduce any delay. M. D. T.] That is, if the concept is really dechuyah, the physician is not obliged to make himself easily available so that people can find him in time of need. Therefore, it is quite proper to have an unlisted telephone number that can be given only to those who have a halachic right to contact the physician, such as a patient whose care is being managed by the observant physician and may require his advice or services on the Sabbath. This assumes that there are sufficient numbers of other physicians in the area who can be contacted by anybody who needs a physician.
If, however, he is the only physician in the area, then, of course, it is necessary for him to be available so that people in need can contact him. If he lives in an area where most of the inhabitants are non-Jewish, it surely is right and proper for him to choose the Sabbath as his day off. Physicians whose schedule calls for them to be off one day of the week do not hesitate to be unavailable during that day by traveling to some distant place. They generally do not to respond to telephone calls but have a service refer the caller to the physician who is covering their practice for the day.
Now to focus directly on the question that was posed concerning the care of a non-Jewish patient on the Sabbath. There was, indeed, a time when the explanation in the Talmud [Avodah Zarah 26a] was fully acceptable. People who were devoted to their religion understood that different religions have different regulations as well as privileges for those who belong to the same faith community. Thus, a Jewish physician, as Abaye explains in the Talmud, could tell a non-Jew: "I may transgress the Sabbath only for those who are Sabbath observers." [This explanation] was fully acceptable to the non-Jew.
All must appreciate that an answer of this kind would now be totally unacceptable in every country known to us. Surely, neither the relatives of a patient nor governmental agencies nor hospital administrators would appreciate that response. Indeed, I suspect that a doctor who refused to treat a patient would have to face some legal, possibly criminal action. Therefore, it is important for a physician on the staff of a hospital to arrange his schedule so as not to be on duty on the Sabbath. Since in America Sunday is a day when most people like to be off, it should not be too difficult to change the on-duty schedule by agreeing to work on Sunday in return for others covering your duty assignment on the Sabbath.
By arranging matters so that you are never assigned any duties on the Sabbath, obviously others will be assigned in your place. There should be no concern that because of your arrangement other Jews will be forced to work on the Sabbath. It would most likely be a kindness to a Jewish physician who is not a Shomer Shabbos to be on duty in the hospital on the Sabbath, where many of his activities are covered under the mitzvah of pikuach nefesh, rather than to be at home or elsewhere, where he is committing transgressions of the Sabbath without any redeeming circumstance, such as providing medical care.
If a situation should arise in which you must be in the hospital, since you have been unable to rearrange your schedule and a non-Jewish patient is presented to you, surely you must treat the patient even if [doing so] involves transgression of Biblical prohibitions on the Sabbath.
Similarly, if there is an accident near your home and people rush in to call you, since you are the physician closest to the scene, even though the injured individual may not be Jewish, you are required to offer your full services in disregard of the transgressions of the Sabbath. There is no distinction between Jew and non-Jew.
The great sage, the Chofetz Chaim, in his Mishnah Berurah 338, criticizes doctors who are Sabbath observers for traveling great distances in order to treat a non-Jew and often compounding their own prescriptions on the Sabbath, as was the custom in Russia. He concludes that they are Sabbath transgressors. This is surely not in consonance with the current social condition. The halachic principle of eivah [i.e., minimizing factors which cause enmity between people] is not based solely on the desire for good human relations within a community. There is a far greater concern that a breakdown in human relations will actually lead to the killing of Jews. Thus, not treating a non-Jew on the Sabbath may very well endanger the lives of other Jews. This is why I find it so difficult to understand the position of the Chofetz Chaim.
I can certify that in Russia, in small towns where there was only a single physician for an entire district, a Jewish physician who refused to travel to care for a non-Jew on the Sabbath, regardless of his defense that his religion did not allow it, would surely have endangered his life and the lives of other Jews. Even the police would have made no effort to protect him from the wrath of [the patient's] relatives, who would have claimed that his failure to treat their relative had caused his death.
It is obvious to me that the [author of the] Mishnah Berurah was aware of this problem, because he appended a footnote to explain that his position that the prohibition of a Jewish physician treating a non-Jew on the Sabbath applies "to the country of India, who[se inhabitants] are even today true idolaters."
Obviously, he also feared that in the West the Jew would be endangering his own life and the lives of other Jews if he failed to treat all patients on the Sabbath who needed his help, without regard to the their religious affiliation. The Chasam Sofer, in his responsum on Yoreh De'ah 131, said this quite openly. If there is danger that enmity will result from failure to treat a non-Jew on the Sabbath, this involves danger to life. Therefore, it is permissible to transgress even the Sabbath Biblical laws in order to treat the non-Jew.
It is interesting to note that the author of Divrei Chaim (Orach Chaim II:25) explains that the concept of eivah, or enmity, that might result, is not adequate justification for transgressing Biblical commandments on the Sabbath. Nevertheless, he records the custom of religious physicians to transgress the Sabbath, even with reference to Biblical commandments, in order to treat non-Jews on the Sabbath, basing themselves on a special edict issued by the Council of the Four Lands (an organization of the greatest rabbinic scholars that held the sway from the mid-sixteenth century until 1764), which ruled that in light of the social impact of failure to treat all patients who needed a physician's help, it was required that physicians treat patients on the Sabbath, regardless of religious affiliation. It is difficult for me to understand why this edict was needed since it is quite obvious that the law is as I have stated it and as recorded by the Chasam Sofer. The edict must be understood, therefore, as recording the consensus of the opinion of the poskim of the time that even if the physician personally feels that it will not lead to the animosities that are our concern, the edict was issued to order him to disregard his personal evaluations and accept this as a pesak din of the gedolim of the generation.
It is interesting that the Divrei Chaim never expressed himself in opposition to the actions of these physicians, recording his own opinion and then stating the reason for the current practice of the physicians who take the more lenient approach. It should be obvious to everyone that whether [such a refusal] leads to enmity or not may vary in different places, and hence, the necessity for a general ruling so that the conduct of a physician in one part of Europe should not have a negative impact upon the Jewish population in other parts of Europe.
The personal opinion of the physician only has validity in his own town, but he is unaware of the far-reaching impact of his actions in refusing to treat a no-Jew on the Sabbath. I must reiterate that it is my considered opinion that in our day we have to worry about the impact on the Jewish community worldwide. If it should be reported that a Jewish physician refuses to treat a non-Jew on the Sabbath while he does treat his Jewish compatriots, true enmity will result to the great detriment of the Jewish inhabitants.
It has been reported, in the name of the Klausenberger Rebbe זצ"ל, that physicians should not take any fee for treatment [rendered] on the Sabbath. This ruling is right and proper. Surely, it is forbidden to profit from any Sabbath transgression, and therefore in this case, his entire motivation should be the saving of a human life and the performance of that mitzvah.
Iggeros Moshe, Orach Chaim IV 81
Use of Beepers by Medical Personnel on the Sabbath
[This responsum was written to clarify the workings of the Hatzolah organization in Brooklyn, New York, with specific reference to carrying a beeper on the Sabbath.]
The question posed to me concerns the wearing of a radio by members of the Hatzolah organization. If they could not wear the radio and be in contact with the central office while away from home, it would necessitate their staying in their apartments with a radio receiver turned on waiting for a call for their services. Not to be able to leave home on the Sabbath would be surely a great burden and would reduce the number of volunteers so necessary for the proper functioning of this organization.
The Talmudic discussion in tractate Shabbos [63a] makes it clear that an object can be classified as an article of clothing even though it does not serve the usual function of clothing, namely, to protect the body from the elements. The controversy recorded there concerns a soldier wearing his sword or carrying his bow, and involves the aesthetic evaluation of these items. If they are regarded as a sign of his status and importance as a defender of society, he may wear it on the Sabbath. If, however, it is a degrading symbol of his association with killing and warfare, then he may not. Clearly, if the item under discussion has no negative connotations, it can be considered an accessory to clothing, even though it may not be made of anything more than base metal.
The Hatzolah beeper certainly does not signify an individual involved in a degrading activity. On the contrary, it identifies someone who is waiting to serve his fellow man in time of need. Although there is a controversy in the Talmud as to whether weapons will be needed during the Messianic era, and those who believe they will not be needed (for there will be no wars) do not look upon the sword as a symbol that gives honor and importance to the wearer, this does not apply to a beeper.
Even if we accept the opinion of Rebbe Eliezer that there will be no illness in the Messianic era, and hence [there will be] no need for the Hatzolah organization, this in no way casts aspersions on the social approval accorded those who wear the beeper because of their great mitzvah work. There are no negative connotations to the wearing of the beeper as there may be to the wearing of a sword. In my opinion, therefore, it is permissible to wear a beeper on the Sabbath. They may leave their homes with it attached to their belts, so that they may respond quickly to a call from someone in need. It would be too burdensome to expect these people to stay at home waiting for the call to come, and as I have said, this would surely reduce the number of volunteers for this important work. Someone has suggested that the Sabbath work should be done by hiring non-Jews to serve as Hatzolah members. This contravenes the halachah that says that pikuach nefesh activities should be performed only by Jews and not by non-Jews, even when a non-Jew is readily available. In addition, a staff which works for money cannot be expected to respond with the same alacrity, the same devotion as those who do it in order to perform the great mitzvah of pikuach nefesh.
Iggeros Moshe, Orach Chaim IV 80
Emergency Medical Personnel and the Observance of the Sabbath
[This teshuvah concerns a very important instruction to the Hatzolah movement. It has evoked significant opposition from the Chasidic Rebbe community.]
I begin by extending my sincerest blessings to those who have undertaken the holy work of providing the means to respond quickly to individuals who may fall critically ill and need immediate aid in order to survive. May Hashem crown their efforts with great success, and may they be rewarded for their great mitzvah.
Rushing to bring oxygen to someone in critical need of help often necessitates transgressing many Sabbath laws. First-aid equipment must be transported from and to the public domain, and the use of electricity or, occasionally, even the driving of the ambulance, involves many Biblical and rabbinic transgressions. Surely this is what is meant when we are taught in the Talmud that the saving of life supersedes Sabbath observances. I believe it would be wise for the organization to have a non-Jewish driver. Even though pikuach nefesh activities should be performed only by Jews, the driving of the ambulance is not directly the pikuach nefesh, whereas the first aid performed by the Hatzolah member is the actual performance of the mitzvah of pikuach nefesh, so that there is no objection to having a non-Jew drive the vehicle. This has the advantage that with a non-Jew driving, the ambulance can be moved to a suitable parking place once the patient has been delivered to the hospital, thus facilitating the Sabbath observances of the Hatzolah member and not involving any confrontation with the authorities, whether the hospital's security staff or police officers. However, if waiting for the non-Jewish driver would involve any delay, even the slightest, the Hatzolah member should drive the ambulance himself.
I would like to direct my attention to a very important halachah concerning the Hatzolah organization. It is clear that going to the patient is an act that can be designated as life-saving. Thus, all Sabbath laws are suspended in order to allow the Hatzolah volunteer to save a human life. However, returning with the ambulance to the home base is halachically problematic. Often the hospital where the patient is brought is at too great a distance from home to allow the Hatzolah member to walk home, nor is it sufficiently safe to walk the streets, especially if the call responded to came in the early morning hours. The lawlessness in our streets makes it too dangerous to walk alone even when the hospital is not at a great distance from the Hatzolah member's home. If the Hatzolah member were required to stay at the hospital until the end of the Sabbath, surely this would inconvenience him and his family to such a degree that they would be reluctant to allow him to continue his work. Indeed, he might also be reluctant to disrupt his Sabbath to such a great extent, especially if this occurred with some regularity. The question of whether the Hatzolah member may return home after his life-saving mission has been completed has its answer in the two primary sources, Eruvin 44 [b], especially the Tosafos there [s.v. kol ha-yotzin], and Beitzah 11b, where the halachic principle referred to as "permitting the end because of the beginning" is discussed in great detail. The halachic concept of permitting the concluding stage of an action in order [not to discourage] the first stage refers to a number of cases, such as witnesses coming to testify that they have seen the new moon, a midwife who goes to deliver a baby, and a Jewish defense force that goes out to save a town that is under attack, as well as other cases.
The present question concerning Hatzolah members must be understood to refer to circumstances where the work of the Hatzolah organization is not endangered if the equipment which is now at the place where the call came from [remains there] and as a result cannot be used again. Presumably there is sufficient staff and adequate equipment for [Hatzolah] to continue to function on the Sabbath. The question concerns those who go out on a call, complete their duty, and now ask whether they must wait where they are until the end of the Sabbath or may return home, preferably, of course, with the help of a non-Jewish driver.
However, the questioner directed my attention to the circumstance where there is no non-Jewish driver because the Hatzolah team responded to the emergency before the non-Jewish driver was available. May the Hatzolah member drive home on the Sabbath?
[The responsum contains a lengthy discussion of the text of the Talmud in Eruvin and in Beitzah that deserves the attention of scholarly readers, who will benefit greatly from the brilliance of this analysis.]
The Tosafos in Eruvin and the commentary of the Rashba in Beitzah clearly conclude that someone who goes out on a Hatzolah mission need not wait until the end of the Sabbath, but may return home even though it involves the transgression of Biblical Sabbath commandments. That is, even if he must travel a distance of more than twelve kilometers (a Biblical transgression), or must carry from the private domain to the public domain, or even if it requires driving a car, which involves multiple Biblical transgressions if a non-Jew is not available to drive him home. This is what is meant by "They permitted the end because of the beginning." The rabbis ruled that it is permissible at the end of the mission to transgress the Sabbath lest the inconvenience to the rescuer cause him and others to hesitate when called again the following Sabbath. We may add that many times the decision to remain where the rescue operation occurs could expose the rescuer to the danger of [attempted] robbery and mugging, which sadly are so omnipresent in our communities today.
Maimonides, in Laws of Sabbath 2:23, wrote as follows: "Those who go out to help their brethren who are under attack by the enemy on the Sabbath, when they succeed in rescuing their brethren, they may return with all their weapons to their starting point lest they be discouraged from responding to a call for help in the future." This clearly supports the position of Tosafos and the Rashba.
[However,] many have noted what appears to be a contradiction in the Rambam. In Laws of Sabbath 27:17 the Rambam writes as follows: "Those who go out to save their brethren from attack by non-Jews, or to help them in time of flood or collapse of buildings, must conduct themselves [in the same manner] as residents of the town and [therefore] may walk two thousand cubits [a kilometer] in any direction." This refers to the halachah of techumin on Shabbos, which states that an individual is prohibited from walking more than two thousand cubits beyond the inhabited portion of town. The rescuers are granted the same rights as the citizens of the town. We might conclude from this ruling that the rescuers may not return home but must remain in the town.
However, this [conclusion] is not accurate. There is no contradiction. The Rambam in a second paragraph refers to rescuers who have completed their mission and now may return home except that the Sabbath laws inhibit them from doing so. In this case the Rabbis ruled that they are permitted to return, for otherwise people would be discouraged from initially responding to the call.
The Rambam in chapter 27 refers to an entirely different set of circumstances. Careful reading of the text and the commentaries leads me to conclude that the situation there is that the rescuers had gone out on a rescue mission in the expectation that repulsing the enemy might take several days. They had made the necessary arrangements at home to permit their absence. Thus, nothing compels them to return home, nor do they fear an attack by the enemy, whom they have repulsed completely. Under these circumstances, the Rambam feels that it is proper for them to remain in the town, and therefore he records the halachah that they have the same rights and privileges as other members of the town, namely, to walk freely within the town and up to two thousand cubits in any direction outside the town.
This leads me to deduce a novel, and important, halachah. In the case discussed by the Rambam in chapter 2, the rescuers may return home because they are unwilling to subject themselves to continued attack. Having successfully repulsed the enemy this time, they have decided to return home even though there is still a danger that the enemy will attack. This circumstance is, of course, not uncommon where the secular authorities either will not or cannot control the marauding gangs that loot and pillage at will. The halachic novelty of this suggestion of the circumstance, referred to in the second chapter of Rambam, must be underscored. The rescuers need not subject themselves, for a prolonged period of time, to personal danger; having done their duty once, they may decide that they will not incur the continued risk of personal death or injury. The townspeople would be wise to accompany their rescuers away from the town, since the town is now a potential battlefield with continued danger to both townspeople and rescuers. However, the townspeople, feeling that they have no choice, decide to remain in town, and not to flee and leave their homes and possessions to be looted. The rescuers, however, have decided to return home. That is why the Rambam in chapter 27 introduces the notion of fear. They fear to remain in the town.
This critical distinction in understanding the two halachos in the Rambam [in chapters 2 and 27] provides insight into the halachah [in question]. In chapter 2 the Rambam notes that a town was being attacked. In chapter 27 the Rambam refers to rescuers coming to save the lives of Jews being attacked by non-Jews or being threatened by flood or collapse of houses possibly due to earthquake. It is my understanding of the Rambam that chapter 2 refers to a rescue squad. Once they arrive in sufficient strength, the enemy will flee and the town will be spared. Those who come on the rescue mission realize that [their mission] is only for a limited time, and their very arrival constitutes the rescue. Therefore, our only concern is that they not be discouraged from responding a second time when needed. Thus the Rabbis ruled that they may return home even though it involves transgressing of the Sabbath.
I do not refer to a return home with weapons. [The question of weapons] is dealt with by a special rabbinic edict requiring the rescuers to return with their weapons at all times because of an incident in which a misjudgment of the circumstances resulted in the storage of weapons in the town so as not to transgress the Sabbath; when the enemy attacked from ambush [the defenders weapons were not available to them]. For this reason the Rabbis ruled that the rescuers must return home with their weapons and not trust their [optimistic] judgment of the situation. However, other transgressions of the Sabbath are not involved in this rabbinic edict. They are covered by the halachah that we permit "the end because of the beginning." We permit the transgression of the Sabbath after the successful mission lest the rescuers be reluctant to undertake the mission in the future.
In chapter 27, [however,] there is no mention of non-Jews laying siege to a town, but merely the saving of Jewish lives. The case, as I conceive it, is that of a pogrom in which Jews are under attack, hiding in various hidden places to escape the murderers, and it is the job of the rescuers to search every house and courtyard—all the places where people can hide, so as to restore law and order in the town. The rescuers know very well that they are on a prolonged mission, and therefore we are not concerned that requiring them to wait until the end of the Sabbath may discourage them from responding in the future. They were fully aware that this would be a lengthy mission and are prepared to spend that time.
This is not the case in chapter 2, where the rescuers come for the specific task of repulsing a siege of the town and, indeed, may not want to remain in the town, a town that is exposed to enemy attacks. Having done their duty once successfully, [they are not willing to linger]. It is of great halachic interest to note that such a town with its inherent dangers is not considered to be unfit dwelling for Jews. The inhabitants are not required to vacate the town in order to protect their lives, leaving their homes. One cannot compare the reaction of a rescue squad, which may, indeed, decide not to spend much time in the town for fear of future attacks, to that of the townspeople, who feel they have no choice but to remain.
Obviously, the townspeople hope to be able to repulse the attacks themselves, and only when about to be overwhelmed by superior forces do they call for rescue by others living in distant towns.
Therefore it is abundantly clear that the Rambam does not question the ruling in our case (neither in his halachah of chapter 2 nor that of chapter 27) that it is proper for the members of Hatzolah to return to their homes or their base after they have successfully completed their rescue mission, so as not to discourage the volunteers from making themselves available for future missions that may occur on the Sabbath.
Iggeros Moshe, Yoreh De'ah II 174
Concerning Heart Transplants for Sick Patients
[This teshuvah was written in 1968 to the Gaon Rav Yitzchok Yaakov Weiss when he was in Manchester, England, prior to assuming the role of Av Beis Din of the Beis Din Tzedek in Yerushalayim.]
Concerning your question about a heart transplant for a sick patient, a new surgical procedure that some surgeons have instituted. I do not want to enter into any extended discussion or analysis of this question. The conclusion that it is forbidden to do this is obvious, and any discussion of the issue will serve only to weaken the clear halachic ruling. Heart transplants involve the murder of two people. They kill the donor by taking his heart while he is still alive according to Torah law, and they kill the recipient because he could have lived much longer if managed by other medical means. By removing his diseased heart and transplanting the heart of someone else, the reality is that he will die from this procedure. This seems to be the consensus of most learned physicians who have studied this procedure. It is clear to me that doctors who permit this procedure do so because they consider the donor's life to be only of limited duration and, therefore, do not regard their shortening of his life as ethically significant. Of course, in Torah law, shortening the life of any patient is an act of murder, even if the patient would die of natural causes sometime in the near future.
[Soon after this teshuvah was written, the medical profession declared a moratorium on heart transplants because of the procedure's lack of success and the qualms some of them had as to the status of the donor. This was a time when brain-stem death was not yet clearly differentiated from deep coma.
This lengthy responsum is presented in English translation in outline form so as to highlight its significant halachic conclusions.]
1. Concerning a person who has been decapitated. This is the case referred to in Mishnah Ohalos 1:6. Even though the body shows signs of trembling or motion, the individual is halachically dead and "defiles the tent" [i.e., is halachically dead]. [This ruling] should not be confused with the halachah regarding someone who has suffered a severe neck wound that severs both the trachea and the esophagus. Such an individual is considered to be fully alive and may even gesture to order a divorce written for his wife so as to exempt her from any complications of a levirate marriage (yibbum). Imminence of death is not equivalent to death itself. [On the other hand,] decapitation is equivalent [to death].
2. Since a decapitated person is considered halachically dead, even if one could develop a means of reattaching the head so as to allow the individual to recover, there is no ethical obligation to do so. There is no chiyuv [obligation] to resurrect the dead. Surely, if it could be done there would be no reason not to do so, but if such an incident occurred on the Sabbath, when the permissibility of saving of human life is based upon the fact that saving human life takes precedence over Sabbath law, it would not be permissible to transgress Sabbath law for a person who has already been declared halachically dead. This situation is not covered by the heter of pikuach nefesh, which supersedes the Sabbath laws.
3. You question the ruling in the Shulchan Aruch, Orach Chaim 330:5, that we do not permit the posthumous cesarean section of a woman who seemingly dies in labor in order to attempt to save the fetus, because we are uncertain as to the moment of death of the pregnant woman. Let me explain what this uncertainty is. Since death is determined solely by the cessation of breathing, why are we not able to determine the time of death as well as any prior generation? It is my opinion that the sages were concerned about the presence of shallow breathing not easily discernible. Death occurs when breathing stops completely, but often breathing becomes shallow and irregular, so that absolute concentration on the patient is required to make sure that the patient is not breathing even sporadically. Because of this uncertainty, the sages ruled that it is too dangerous to allow people to rush into a cesarean section in order to save a fetus without first giving the careful attention needed to ascertain whether the mother is in fact dead. Once this very careful attention is given to, and it is determined that there is no shallow breathing, even sporadically, then, of course, there would be no point in attempting a cesarean, since by then the oxygenation of the blood would have been reduced to a point where the fetus would not be viable.
Indeed, the Rambam does not prohibit closing the eyes of a patient who appears to have died, as long as it is not done before the patient is [declared halachically] dead. The Rambam does not require a lengthy period of time to ascertain that the patient has died before it is permissible to touch him. Unlike a cesarean section, the closing of the eyes may have a detrimental effect on the patient's last moments of life, but clearly it is in no way comparable to doing a cesarean section on the patient. Since closing the eyes is for the benefit of the patient before rigor mortis sets in, the sages did not prohibit it as they did the attempted cesarean, which is done solely for the benefit of the fetus.
4. You ask whether it is permissible for the doctors to keep a patient in an intensive care unit, providing him with all heroic measures, solely for the purpose of maintaining him as a potential donor. If prolonging the life of this patient means that he will be maintained in a state of suffering, then it is forbidden to do so. We know from the Shulchan Aruch, Yoreh De'ah 339:1, that the Rema permitted removal of the crystal of salt put under the tongue of a dying patient, which was at that time believed to be [a means of] prolonging his life. Removal of this deterrent to dying was permitted because of the anguish the patient was suffering. Surely, it is forbidden to do anything that will prolong a life of anguish. Moreover, if the patient is not suffering and it is possible to prolong his life, then it is certainly not permitted to cease therapy. The only justification for refraining from further treatment is that the quality of life of this pain-ridden patient is such as to justify refraining from further treatment.
5. I strongly oppose the opinion cited in the Minchas Chinuch (Kometz Minchah 237) that if someone attempts suicide, there is no mitzvah to save his life. [Saving a life] is based upon a direct application of the principle of "returning a lost object," the ethical basis for medical care. As the Talmud explains, if you must return a person's lost object, how much more must you return his lost health!
The [author of the] Minchas Chinuch carries the analogy to a lost object to its rational conclusion. If someone throws away an object, there is no mitzvah to return it to him. Likewise, if someone throws away his life, there is no mitzvah to return it to him.
I believe this is a misapplication of the principle. A person is permitted to relinquish ownership of his physical possessions. This is called hefker. However, to destroy life is a capital crime, a Biblical prohibition. The fact that an individual transgresses that prohibition and attempts to destroy his life in no way exempts onlookers from attempting to save his life. They have the special mitzvah of hatzolas nefashos regardless of whether the individual himself thought his life worthless. In the eyes of Hashem, and therefore in our eyes, that life is still of infinite worth and must receive whatever ministrations enable the individual to survive.
6. You ask whether it is obligatory to forfeit a limb in order to save a fellow man from certain death. A Jew is required to spend his entire wealth in order to avoid transgressing a lo ta'aseh [negative Biblical commandment]. This is recorded in Yoreh De'ah 157:1. It is clear from the commentaries that one must forfeit one's wealth but need not incur the pain and danger of forfeiting a limb in order to avoid transgressing a Biblical prohibition. Since the prohibition of "Thou shalt not stand idly by when your brother is wallowing in his blood" is no different than any other prohibition, the expenditure of funds becomes an obligation but not the sacrifice of a limb.
This matter is discussed by the Radbaz and the Or Same'ach, in [connection with the Rambam's] Laws of Murder 7:8. Both of them conclude that it is not required to sacrifice a limb in order to save another person's life. The same logic can be applied concerning the question of assuming a significant risk in order to save someone else's life. It is not only not required to enter into a situation in which you endanger your life in order to avoid a Biblical prohibition (except for adultery, idolatry, and murder)—it is forbidden to do so.
However, with reference to the Biblical prohibition against standing idly by and not helping someone who is in danger of dying, we can make [the following] distinction: In this case there is no obligation to risk one's life to save one's fellow man, but it is permissible to do so. It is forbidden to endanger one's life to avoid committing a sin, because the key principle of Judaism is "And you shall live by My commandments." Therefore, if one endangers one's life, [in the end] it may very well be that life will be lost solely in order to safeguard the Biblical commandment which does not stand in the way of human life! [This is a contradiction in terms!] However, in the case of saving someone else's life, the forfeiture of one's own life is counterbalanced by the saving of the life of the one in danger.
Therefore, although it is forbidden to forfeit one's own life to save another's, and there is no obligation to endanger one's own life to save another's, it is an option available to someone who wants to attempt a risky rescue. He may choose to risk his life in order to save another person from certain death, since it is possible that both will be saved.
7. Concerning your question why I permit organ donation when the family of the deceased is greatly anguished at the thought of the mutilation of their loved one, I would analyze the situation as follows: It is true, as mentioned by Tosafos (Shabbos 44[a, s.v mitoch]), that concern for the dignity of a deceased relative is of greater significance than loss of money. Pain and anguish at the thought of the mutilation of a relative would, indeed, exempt one from signing a donor permission card. The Torah requires us to spend money to avoid a prohibition. Therefore, to avoid the prohibition of "Thou shalt not stand idly by [thy brother's blood]," one must spend money but not suffer pain and anguish at the thought of the mutilation.
However, I must point out that the anguish a person feels at the thought of the mutilation should be counterbalanced by the knowledge that by doing so he is saving a human life. There are some who believe it is an act of great piety even to forfeit a limb to save someone else's life. Therefore, surely it is possible to explain to the family that they should not be anguished over the mutilation, since it is not a desecration of the dead, leading as it does to the saving of human life. That being so, the family should not be anguished and should permit the donation.
Iggeros Moshe, Yoreh De'ah II 166
May a Kohein Visit a Sick Patient in a Hospital?
The issue concerns two halachic problems: the presence of autopsy specimens in the pathology department or in a research laboratory, and concern lest there be a deceased patient in the hospital at the time of the visit.
Concerning the possibility that autopsy or pathology specimens may be present in the hospital at the time of the kohein's visit, we may assume that since the vast majority of the people in the United States are not Jewish, the specimens can be presumed to come from a non-Jewish cadaver. [The halachah that an entire house is under the halachic restrictions of tum'as mes applies only to Jewish dead. The dead of other religions may not be touched by a kohein but the halachah of tum'as ohel does not apply.]
In addition, even irreligious Jews are unlikely to permit the keeping of anatomical parts of the body and not require that they be buried after medical examination. There is but a slight possibility that these specimens are from Jewish patients, and therefore le-halachah it is permissible to visit the hospital when there is a need to do so.
Visiting a relative, and certainly visiting a wife, involves the halachos of shalom bayis and shalom of the family with reference to relatives. Therefore, if it is possible to ask someone in the administration in order to find out for sure whether at that moment there is no deceased patient in the hospital, it is permissible to visit. If it is not possible to make such a determination, it is still permissible, again because we assume that if there is a dead patient, he would not be of the country's Jewish minority group, but rather of the non-Jewish majority population. [In Israel, hospitals have a means of informing visitors that a kohein may not enter until the body of the deceased is removed to the morgue.]
Iggeros Moshe, Yoreh De'ah II 164
Kohanim and Travel in an Airplane Carrying a Corpse
[This teshuvah concerns the halachic problem faced by kohanim when traveling in an airplane, especially to Eretz Yisroel, since there is a significant likelihood that there might be a casket on the plane bringing a Jewish deceased for burial in Israel.]
The airplane must be regarded as a "single container." Even though the plane is divided into a cargo compartment and a passenger section, the entire plane is made of metal and consequently cannot be considered to have a halachically valid separation between the cargo and passenger sections.
It is interesting to consider the possibility that the airplane is made of a metallic material that is not one of the six varieties mentioned in the Torah to which the laws of tum'ah of utensils captured from the Midianites is discussed. Only six varieties of metal are mentioned: gold, silver, copper, iron, lead, and tin. Surely, Hakadosh Baruch Hu knew that there are other metals that can be extracted from the soil, yet He saw fit to list only these six. I believe that airplanes are made of metals other than these six [e.g., aluminum, magnesium].
If my assumption that the airplane is made of materials other than the six listed metals is correct, we should certainly not add newly discovered metals to the list. The halachos of tum'ah and taharah are all strictly defined in the Torah. It is not for us to add or subtract from these laws. Glass, also extracted from the soil, is not considered to be a material that is involved in the Biblical laws of tum'ah and taharah. The Rabbis imposed the laws of tum'ah upon glassware to avoid confusion in the minds of people, since earthenware [pottery, stoneware, chinaware] is governed by the laws of tum'ah, as are metals. It would be confusing to the uneducated to differentiate glassware even though the Torah excludes glassware from the laws of tum'ah.
Nevertheless, this is a question worthy of further investigation. Is it true that airplanes do not contain any of the six metals? If they do, even if only as an alloy, then we would consider the metallic component of the airplane to be governed by the laws of tum'ah ve-taharah.
The fact that an airplane is a "movable tent" is not particularly relevant to our discussion; the kohein enters the plane when it is stationary, and in addition the concept of a movable tent should not be applied to the material within that tent. The concept of a movable tent, which is not governed by the laws of tum'at ohel according to most authorities, applies to material or people outside the tent, not to those within the confines of the movable tent.
Iggeros Moshe, Yoreh De'ah II 162
Disinterment and Reburial
This teshuvah concerns the permissibility of disinterring a body so as to rebury a parent in a cemetery closer to where the children reside. Doing so will permit them to visit the grave, which now is at a great distance from their home. The halachah is quite clear on this matter. Disinterring Jewish dead is not permitted unless it is done for the honor and dignity of the deceased. The intent of this disinterment is to facilitate visits by the children. Hence, it is for their benefit, not for the benefit of their deceased parent.
It should be noted that there is no halachic obligation to visit the cemetery where a parent is buried. Admittedly, it has become customary to do so, and people consider it a sign of respect to honor their parents both in life and after life. Nevertheless, it is not an honor that would permit violating the law which states that it is forbidden to disinter a body once it is buried. The Shach in Yoreh De'ah 363:2 permits the reburial of a deceased person if it is to be in a family plot next to his parents, which is considered to be an honor. Therefore in this case, where the reburial is planned only to facilitate visits by the children, it is not permitted to do so.
Unpublished Responsum "So One May Live"
Siamese Twins
Early in September, 1977, a drama began that added much kavod, much dignity, to the wisdom of Torah and to those who spend their lives applying Torah knowledge to the complex problems encountered daily in the modern world. In Lakewood, New Jersey, Siamese twins were born to a prestigious family of Torah educators. The twins were taken by helicopter, on September 15, to the Children's Hospital in Philadelphia, where Dr. C. Everett Koop, who subsequently became the Surgeon General of the United States, was then the hospital's Chief of Surgery. Immediately after the initial evaluation, it was obvious to all the physicians called in to evaluate the twins that both would die unless they were separated. However, the only way one child would be viable was if the other child was killed during surgery. The question was referred to Rav Moshe Feinstein for his evaluation and decision.
The children, designated Baby A and Baby B, were fused in the ventral area all the way from the shoulder down to the pelvic region. The twins shared one six-chambered heart. The wall separating the essentially normal four chambers from the other two, most likely the stunted heart of Baby A, was too thin to be divided. It was not possible to give the two-chambered heart to Baby A, so that she would survive for as long as a two-chambered heart could carry her physiological needs. There was only one solution. The entire six-chambered heart had to be given to Baby B, and the life of Baby A would have to be sacrificed.
It was clear to all concerned that this was a major ethical issue that had ramifications for the abortion debate, and for the ethics of neonate salvage. The Chief Surgeon, a deeply religious man, was fully aware of the ethical import of any decision in this case. Dr. Koop referred the case to the courts so as not to have any accusation of premeditated murder leveled against him. In addition, nurses and doctors at Children's Hospital consulted with their religious guides, and many reported back that they would not be able to participate in the surgery.
On September 20, I met with Dr. Koop and his staff to determine the medical facts. The first halachic concern was to establish that we were, in fact, dealing with two separate human beings. Although they were joined at the chest and their livers were co-joined, as were the hearts, the girls were separate human beings with their own brains and nervous systems. Dr. Koop recommended that the twins should be separated as soon as possible, because there were signs that the heart was failing and could not maintain the load of supplying blood to two infants. It was emphasized that even with surgery the chance was slim that one could be saved. Never before had Siamese twins been successfully separated from a ventral connection, and certainly not when they had a joined liver and a single heart between them.
On September 30, twenty doctors and nurses assembled in the meeting room to be brought up to date. Many were already disturbed by the lapse of time. They were all leaders in their fields and had gathered to be able to participate in the separation. Practically every surgical and medical specialty was represented, since no one really knew, despite the X-rays and the many tests that had been done, what they would encounter during actual surgery. Dr. Koop had prepared a team that would be able to handle any emergency that might arise. In brainstorming sessions, all possible problems were discussed. The simple problem of fitting a six-chambered heart into the small chest of Baby B proved to be unexpectedly difficult and could be resolved only by building the chest larger by using part of the chest of Baby A. On October 3, the intensive care unit nurse assigned to the twins noticed significant changes in the heart rate and respiration and in the electrocardiograph tracings. This was reported to Rav Feinstein, who then posed, once again, the key question: Was Dr. Koop sure that the six-chambered heart could only be given to Baby B? Could it not also be given to Baby A and have Baby B die?
Dr. Koop responded that there was no doubt that the only infant who could be helped by surgery was Baby B, because in addition to the shared liver and heart, Baby A also had a circulatory defect that would not permit her to survive any length of time, even if she were given the six-chambered heart.
Discussion involved many members of the Feinstein/Tendler family, each contributing his own insight. The surgical team had essentially completed its work and had a plan which allowed for the separation of the twins despite the unknown consequences of the separation. If Baby A was to be sacrificed, it was important that the separation be done immediately after Baby A was no longer alive, so that the toxins that immediately pour out when tissue is devitalized would not begin to affect the survival of Baby B. Yet there was little knowledge as to what impact the sudden removal of a large volume of blood (the blood that was circulating in Baby A) would have on the functioning of the six-chambered heart now in Baby B's chest.
On October 6, Rav Feinstein asked me to call Dr. Koop and instruct him to go ahead with the surgery. On Tuesday, October 11, the surgery was completed. Baby B successfully survived the surgery. Baby A had to be sacrificed. The following is a summation of Rav Moshe's reasoning for approving the surgery. A second approach that leads to the same conclusion, but based upon a different halachic principle, is also here recorded since it was presented in great detail during the discussions that led to the final permissive ruling.
One of the fundamental rules of halachah is that one life is not to be sacrificed for another. An exception to this rule is the sacrifice of a fetus in order to save the life of the mother during delivery. The Mishnah in Ohalos [7:6] records: "If a woman is in difficulty during childbirth, it is permissible to destroy the fetus surgically because her life comes first. If, however, the head of the fetus has already been delivered, then it is forbidden to intercede even though it may cost the life of the mother. The fetus is now an infant with the ability for independent life. Therefore, we do not sacrifice one life to save another."
The Talmud in Sanhedrin [72b] elaborates on this mishnah by posing the question: "Why should you not sacrifice the infant even though the head has already been presented, since this infant is endangering the life of the mother? Is not the infant, then, a rodef [pursuer]? The law of the pursuer should apply, which is to kill the pursuer in order to save the life of the victim." The Talmud answers: "No, Heaven is the pursuer." In other words, this is an act of Hashem, and therefore it is not correct to assume that the fetus is the attacker. We cannot decide to favor either the child or the mother in this terrible dilemma. While the child is in the uterine environment, totally dependent on the mother's life yet threatening it, we classify the fetus as a pursuer. The logic is, as Maimonides says, "simple." While in the uterine environment, the child is totally dependent on the mother's life forces. Thus, either the mother's death or the fetus's death would result in a fetus that was not viable. This complete dependency on the mother, so that if the mother dies the fetus will also die, is the reason for giving the mother priority over the fetus, because she is the source of fetal life.
Once the head appears, however, and the child is able to breathe independently, he is treated as an entity separate from the mother. He is now independent of the mother's circulatory and respiratory systems. We grant him the full rights and privileges of an adult. The most important of these privileges is the right to life.
This is surely the Rambam's reasoning in Laws of Murder [1:9]. The Rambam states as follows: "When the head has appeared we no longer intervene because we cannot destroy one life for the sake of another." He adds the explanation: "For this is natural law." Why is this case less a matter of natural law than when the fetus is still in utero? Why do we not say that "Heaven is the pursuer," and not intervene, even in early pregnancy? It is, after all, an "act of Heaven"? Surely, it is the fetal status of dependency on the mother that justifies the sacrifice of fetal life to save maternal life.
Rav Feinstein compared the case of the Siamese twins to this classic case of the conflict for survival between a mother in childbirth and the fetus. Baby A had no independent ability to survive. Her entire survival was completely dependent on her sister, who had the circulatory system to back up the functioning of the heart and liver.
To Rav Feinstein's critical question, "Can the heart be given to Baby A and she would live?" Dr. Koop had responded, "No, there is no way to save Baby A. The issue is only should both die or should Baby B be saved." Without the attempted separation, both would surely die, and therefore in halachic terminology we classify the baby that had no independent survival, Baby A, as the pursuer, as if she were pursuing her sister and threatening her life.
Further, sophisticated testing had determined that the halachic concept of dependency was, indeed, the relationship between the twins. The two-chambered heart, which was the heart of Baby A, was receiving its blood though two apertures leaking from the four-chambered heart. Except for that contribution of blood to the two chambers Baby A would have died in utero. This was the analysis that allowed the surgery to proceed.
I recall how impressed I was with a statement Dr. Koop made, a statement that in my opinion revealed the man's personality and also incurred a special merit. When the team of twenty or so professionals were awaiting Rav Feinstein's decision, and, indeed, were expressing impatience at the lapse of time, which interfered with their private, professional lives significantly, Dr. Koop quieted the group with the following statement: "The ethics and morals involved in this decision are too complex for me. I believe they are too complex for you as well. Therefore I referred it to an old rabbi on the Lower East Side of New York. He is a great scholar, a saintly individual. He knows how to answer such questions. When he tells me, I too will know."
During the almost two weeks of intensive discussions held under the guidance of Rav Moshe, an objection was raised to the analogy to a mother in difficult childbirth. The Rambam uses the expression: "For this is tiv'o shel olam, or the law of nature, or more accurately, the natural event of our world."
It is easy to see how such an expression applies to a woman in childbirth, since childbirth, a normal natural event, sometimes involves dangers that result in a serious conflict between the mother and the child about to be brought into the world. It is difficult to see how this concept can be applied to so rare an occurrence as the birth of a Siamese twin, especially one with a six-chambered heart and a shared liver, as was our case. Therefore, a second approach was suggested which received the careful attention of Rav Moshe. It did not receive his concurrence, only his appreciation for the analysis suggested.
The Talmud in Sanhedrin [72b] and the commentary of Rashi on the case of Sheva ben Bichri recorded in II Samuel 20:
There was an evil man named Sheva ben Bichri … and he said, "I have no allegiance to David HaMelech" [i.e., he led a rebellion against King David]. Yoav's men chased after him and they came to a town and laid siege to it. Yoav announced to the townspeople, "Sheva ben Bichri has raised his hand against David HaMelech. Send him out of your town, for he alone is the one that is guilty, and I will then withdraw my forces from the siege." A woman responded to Yoav, "Behold, here is his head which I am throwing to you next to the walls of the city."
The whole story is cited in great detail in the Talmud Yerushalmi, Terumot [8:4]. From this story is derived a halachic ruling concerning a caravan of Jews surrounded by gentiles. The gentiles had the military power to destroy the Jews but instead offered a deal: "If you will give us one of you so that we may do as we will with him and kill him, then you can all go free. If not, we will kill you all."
The Talmud rules that it is forbidden to hand over one Jewish life to them even though all must forfeit their lives. If, however, the gentiles had singled out one individual against whom they had some complaint, as specified: "Give us this man," just as in the case of Sheva ben Bichri, the halachah states that he should be turned over to them and the entire caravan be saved.
Resh Lakish qualifies this ruling by saying that it applies only if he is guilty of a death penalty, as was Sheva ben Bichri, who rebelled against the king and incurred such a penalty. Rav Yochanan states that is not a prerequisite. Even if he was not guilty, as long as they specified "this man and this man alone," it is permitted to turn him over in order to save the rest. Rashi, in his commentary on Sanhedrin, analyzes the case further and points out that whereas it was permissible to turn over Sheva ben Bichri, it is not permissible to kill a fetus which has already presented its head so that there is independent life, because sacrificing one life for another is forbidden. In the case of Sheva ben Bichri, even if they had not handed him over, they would not have been able to protect him against the siege laid by Yoav. They could only have died with him. If, however, there had been a possibility that defending him would have given him an opportunity to escape, so that there was no certainty that he would die, then they would have been required to raise a defense, and not save themselves by causing the death of Sheva ben Bichri.
The Rambam, in Law of the Foundations of Torah 5:5, concludes that Resh Lakish's opinion, and not Rav Yochanan's, is the correct one: "If he is liable to the penalty of death, as was Sheva ben Bichri, they are permitted to turn him over in order to save themselves. If, however, he is not guilty of any death penalty, then it is forbidden to turn him over, but they must defend themselves and him even if it means forfeiting all their lives."
It is clear, according to Rashi's analysis in his commentary on Sanhedrin, that in our case, where both would have died, it was permissible to sacrifice one in order to save the other. But according to Maimonides' ruling, unless one of them had incurred the penalty of death, it was forbidden to do so. The Rema, in Yoreh De'ah 157, records the Rambam's ruling as the correct halachah that it is forbidden to save one life at the cost of another unless that individual was guilty of a death penalty, as was the case of Sheva ben Bichri.
The analysis of the case of the Siamese twins, however, seems to satisfy even the requirement of Maimonides, so that in this case all would have concurred with the opinion of Rav Moshe. Baby A could not live, no matter what surgical plan was followed. Although there was no ruling of a Beit Din that she was guilty of any sin and therefore would be subjected to capital punishment, Hashem Himself issued such a ruling. There was an edict from Heaven that the child could not live. Nobody could help this child. Even if all the organs were placed in her body, she could not survive. Therefore, Baby A should be classified as if she were Sheva ben Bichri, for whom there was no hope, and the destiny was already inscribed by Hashem Himself, that this soul would enter the world only for a limited period of time so as to "help empty the storehouse of souls and hasten the coming of Moshiach" (Yevamot 62a).
The decision to sacrifice her is one that would have had the approval of both Rashi and the Rambam. The logic of equating inevitable death from physiological causes, because of the anatomical deficiencies of Baby A, and a case in which an individual is guilty of a capital crime, is based on an analysis by the Rema in Sanhedrin 72b, and I quote: "The case of the woman in labor requires deep analysis. The fetus was not guilty of any crime. It is like the case of a caravan surrounded by enemies in which the gentiles demand one life in order to let the other go, where the ruling is that we may not sacrifice one life even to save many lives."
The Rema concludes [that the rule that "we do not sacrifice one life even to save many lives" applies] only because the fetus has a chance to live. If the fetus did not have a chance to live, there would be no problem about killing it to save the mother, because the absence of any hope that the fetus could survive, and not the mother, makes it as if this individual were designated for death. According to Rema's analysis, then, in an early pregnancy, where the child still does not have viability, it is tantamount to being designated for death. Thus, in our case, Baby A, because of the defects in her body structure, had been designated for death, and therefore it is permissible to hasten that death in order to save the life of the sister.
[M. D. T.]
Quality and Sanctity of Life in the Talmud and Midrash Coauthored by Dr Fred Rosner
Introduction
The Talmudic maxim "to save one life is tantamount to saving a whole world" (Sanhedrin 37a) indicates that the value of human life is infinite. A fraction of infinity is still infinity. Nothing in this world is of higher value or greater ethical import than human life. Even Torah commandments of the Holy One, blessed be He, must give way to the higher value of preserving human life. The Biblical verse "You shall study and observe My laws and live thereby" (Lev. 18:5) is interpreted in the Talmud (Yoma 85b) to mean that the saving of a life takes precedence over Sabbath observance. By inference, all other Torah laws must also be suspended to save a life since none are more important than the Sabbath laws.
One exception exists to this absolute "vote for life." Rav Yochanan (Sanhedrin 84a) taught that the rabbinic consensus is that if someone's life is in danger, he should transgress all Torah laws to save his life. If, however, to save his life, he must transgress the laws of murder, idolatry, or forbidden sexual relations, such as adultery, he must rather forfeit his life. Maimonides explains that these three exceptions to the rule of "transgress and do not die" exist because of the duty to sanctify God's name.
All the members of the house of Israel are commanded to sanctify the great Name of God…. Should an idolater arise and coerce an Israelite to violate any one of the commandments mentioned in the Torah under the threat that otherwise he would put him to death, the Israelite is to commit the transgression rather than suffer death…. This rule applies to all commandments except the prohibitions of idolatry, forbidden sexual relations, and murder.'
The sanctity of human life is superseded only by the Biblical imperative to sanctify God's Name. One may not, even pro forma, engage in an idolatrous act or service, as the infinite worth of human life is devalued by the debasing idolatrous service. It is prohibited to commit murder to save a life since there is no net gain of life—only a substitution of one life for another. Forbidden sexual relations, such as adultery, are equated, by Divine decree, with murder.
This essay explores the attitude of the rabbinic sages to the question of quality of life. Is there a level of quality of life beneath which life loses its sanctity? Is such life no longer of infinite worth? Are there qualities of life which rank higher than the sanctity of life? If there are, they are, for the purposes of this essay, encompassed in the term "quality of life." The secular world has indeed reached such a conclusion. The courts in the United States have repeatedly permitted the withdrawal of hydration and nutrition from a patient in the irreversible coma known as persistent vegetative state. The reasoning offered is that the quality of life in coma has usually been unacceptable to those patients who have expressed their opinions on this issue when they were yet competent.
Torah law disputes such court decisions because the inevitability of death by dehydration classifies the removal of hydration as active euthanasia. But must we fight for every additional breath of life with every weapon of modern medical pharmacology and technology? Can a terminally ill but competent patient refuse further treatment because of intractable pain or the psychotrauma that results from the loss of control over his life, or the unrelieved loneliness of a mind preoccupied with thoughts of dying? Is life with a little quality of life also of infinite worth?
The competent patient is the only one who can decide that life has lost its quality, not the family or friends or the courts. What is an unacceptable quality of life for a healthy thirty-year-old man may be perfectly acceptable to him as a wheel-chair-bound invalid of eighty. A recently published study revealed that 87 percent of patients with muscular dystrophy using long-term mechanical ventilatory support who must spend the rest of their lives bound to a ventilator and a wheelchair "have a positive affect and are satisfied with life despite the physical dependence which precludes many of the activities most commonly associated with perceived quality of life for physically intact individuals."2J. R. Bach, D. I. Campagnolo, and S. Hoeman, “Life Satisfaction of Individuals with Duchenne Muscular Dystrophy Using Long-term Mechanical Ventilatory Support,” American Journal of Physical Medicine and Rehabilitation, 70, no. 3 (June 1991): 129–135.
Our analysis in this essay should not be interpreted or misconstrued as a final halachic ruling. Each case must be presented to a competent rabbinic authority (posek) for a halachic directive. This individualized decision-making approach is particularly important concerning decisions about withholding specific therapy for a terminally ill patient. Decisions about resuscitative measures or discontinuation of ventilator or pressor drugs are not free of family and physician emotional involvement or bias. Only the objective, individualized analysis of a posek can help plan a course of action in accord with Torah law.
Treatment of the Dying in Judaism
Judaism never condones the deliberate destruction of human life except in judicial execution for certain criminal acts, in self defense, or in time of war. One may not even sacrifice one life to save another life. The principles of Jewish medical ethics are based on this concept of the sanctity and infinite value of human life. Judaism is a "right to life" religion. The obligation to save lives is both an individual and a communal obligation. A physician is Biblically mandated to use his medical skills to heal the sick and thereby prolong and preserve life.3Bava Kamma 85a; Maimonides, Commentary to the Mishna, Nedarim 4:4, Maimonides, Mishneh Torah, Hil. Rotzeah 1:14; Shulchan Aruch, Yoreh De’ah 336. A patient is also (authorized and perhaps) mandated to seek healing from a physician.4Maimonides, Mishneh Torah, Hil. Deot 4:1; Bava Kamma 46b; Yoma 83b. How far do the physician's obligation and the patient's mandate extend? Is a physician always obligated to provide even futile therapy just to keep the patient alive a little longer? Is a patient obligated to accept all medical treatments even if the medical situation is hopeless and the patient has considerable pain and is suffering? Jewish law opposes euthanasia without qualification, and it condemns as sheer murder any active or deliberate hastening of death, whether the physician acts with or without the patient's consent. How does Judaism resolve the conflict between the sanctity of life and the relief of human suffering? Rav Moses Isserles (Rema), in his famous gloss, asserts: "If there is anything which causes a hindrance to the departure of the soul, such as the sound of a wood chopper or a lump of salt on the patient's tongue … it is permissible to remove them because it is only the removal of the impediment to the dying process."5Rema, Shulhan Arukh, Yoreh De’ah 339:1.
Rav Solomon Eger comments that "it is forbidden to hinder the departure of the soul by the use of medicines."6Rav Sh. Eger, commentary Gilyon Maharsha on Shulchan Aruch, Yoreh De’ah 339:1. Other rabbinic authorities, such as Responsa Shevut Yaakov, part 3 no. 13, disagree.
In modern medical care, are antibiotics, blood transfusions, medications, dialysis machines, respirators, and the like, impediments to dying? The impediments spoken of in the codes of Jewish law, whether far removed from the patient (as exemplified by the noise of wood chopping) or in physical contact with him (such as the case of salt on the patient's tongue), did not constitute even at that time any part of the therapeutic armamentarium employed in the medical management of the patient. They were not intended to restore the patient to a former, healthier condition. Therefore, such impediments may be removed. However, the discontinuation of life-support systems, which are specifically designed and utilized in the treatment of both curable and incurable patients, might only be permissible if one is certain that in doing so one is shortening the act of dying and not interrupting life. Is there any basis for such a formulation? Is there indeed a difference between prolonging life and postponing death?
Recent Rabbinic Rulings
The numerous responsa of Rav Moshe Feinstein on the treatment (or non-treatment) of the dying and terminally ill have been reviewed elsewhere.7Fred Rosner, “Rav Moshe Feinstein on the Treatment of the Terminally Ill,” Judaism 37 (Spring 1988):188–189. These responsa comprise the most authoritative rulings on matters of life and death. With reference to comatose patients, the terminally ill, and those suffering from intractable pain, he rules that no effort should be made to prolong their lives by pharmacological or technical means; however, hydration and nutrition must be provided. If the patient is competent to decide and refuses to eat, no coerced feeding is permitted. Food and drink should be offered at regular intervals with proper emotional support. But how does the rabbinic decisor (posek) direct the treatment modalities for the many different kinds of patients who are terminally ill? Does he take into account the patient's "quality of life," or is this phrase foreign to Judaism because of the principle of the sanctity and infinite value of human life? Is there any validity in the claim of some rabbis8Rav Eliezer Yehuda Waldenberg (Responsa Tsits Eliezer,5, Ramat Rahel, no. 28:5) rules that physicians and others are obligated to do everything possible to save the life of a dying patient, even if the patient will only live for a brief period, and even if the patient is suffering greatly. Any action that results in hastening of the death of a dying patient is forbidden and considered an act of murder. Even if the patient is beyond cure and suffering greatly and requests that his death be hastened, one may not do so or advise the patient to do so (ibid., no. 29 and 10, no. 25:6). A terminally ill incurable patient, continues R. Waldenberg, may be given oral or parenteral narcotics or other powerful analgesics to relieve his pain and suffering even at the risk of depressing his respiratory center and hastening his death, provided the medications are prescribed solely for pain relief and not to hasten death (ibid., 13, no. 87). He also states that it is not considered interference with the Divine will to place a patient on a respirator or other life-support system (ibid., 15, no. 37). On the contrary, all attempts must be made to prolong and preserve the life of a patient who has a potentially curable disease or reversible condition (ibid., 13, no. 89). Thus, one must attempt resuscitation on a drowning victim who has no spontaneous respiration or heartbeat because of the possibility of resuscitation and reversibility (ibid., 14, no. 81). One is not obligated or even permitted, however, to initiate artificial life-support and/or other resuscitative efforts if it is obvious that the patient is terminally and incurably and irreversibly ill with no chance of recovery.