Abstract
The main theme of the article is the tension between the obligation to preserve life, and the value of timely death. This tension is resolved by distinguishing between precipitating death, which is prohibited, and merely removing an impediment to it, which is permitted. In contemporary Jewish law, a distinction is made between therapy, which may be discontinued, and life-support, which must be maintained until the establishment of death. Another theme is that of “soft” patient autonomy, and its role in dealing with the dying in both traditional Jewish law and Israel’s Terminal Patient Law, 2005. Preventing suffering in relation to a dying person, and praying for his or her death are also discussed in the article.
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Notes
See Elon (1974, 477); Deuteronomy 4:9. In his Laws of Murder and the Preservation of Life 1:4, Maimonides states that “whoever transgresses the decrees of the Sages concerning self-endangerment, and says that as long as he is prepared to take the risk, his actions should be of no concern to others, is to be beaten for his rebelliousness”. In other words, there is no room for the liberal approach associated with J.S. Mill in Jewish Law.
The idea that human life is Divine property, and may not be damaged by its human stewards is also found in Greek thought. Plato’s Phaedo contains the following exchange between Socrates and Cebes: “But I do think, Cebes, that it is true that the gods are our guardians and that we men are part of their property. Do you not think so? I do, said Cebes. Well then, said he, if one of your possessions were to kill itself, though you had not signified that you wished it to die, should you not be angry with it? Should you not punish it if punishment were possible? Certainly, he replied”. Socrates uses this argument in order to refute the legitimacy of suicide in circumstances other than those mandated by the gods (Plato 1910, 113).
Israeli law is a secular legal system based upon rules and principles of English Common law and equity which were put into place during the British Mandate. Only marriage and divorce are governed solely by traditional Jewish law. Nevertheless, in cases of first impression, Israeli judges sometimes turn to Jewish law in areas other than marriage and divorce, and since 1980 there is a legislative basis for such a course of action (Foundations of Law Act 1980). In recent years, secular courts in Israel have tended to use Jewish law in their decisions in the field of biomedical law on a fairly frequent basis, and one of the features of Israeli legislation in this area in the use of Jewish law in crafting laws relating to matters of life, death and assisted reproduction; see Sinclair (Sinclair 1996, 421). It is also important to note that once a halakhic principle has been adopted by secular Israeli law, it loses its Jewish pedigree, and for all intents and purposes becomes part of Israeli law (Cohen v State of Israel).
A strong critique of the Kurtam decision as an example of extreme and unjustified paternalism was mounted by Shapira (1989, 225 ff). Also see: Sinclair (2003, 176–177) for a discussion of this point, and the view of Elon J. that the Kurtam decision conforms to the values of the State of Israel as a “Jewish and democratic state” under Section 8 of the Basic Law: Human Dignity and Freedom Act, 1992.
Rema, Yoreh Deah 339:7. Also see: Siftei Cohen, Yoreh Deah 339:7; Beth Lehem Yehuda, Yoreh Deah 339:1; Resp. Tsits Eliezer, 13 no. 89; 14 no. 80. The question addressed by these authorities is the extent to which R. Isserless’s permission to brush salt off the tongue constitutes permission to withdraw therapy in addition to the mandate to withhold it.
Resp. Minhat Shlomoh no.31. This responsum deals with withdrawing life support, not with its withholding. In the light of the permission given in the Sefer Hasidim to withhold salt from a goses, many modern authorities maintain that in certain circumstances, life support may be withheld. Once commenced, however, it is almost universally agreed that it may not be terminated until death (Steinberg 1994, 406–408).
It ought to be pointed out that this interpretation of R. Feinstein’s position is not an uncontroversial one, and it is possible to argue that his responsum is confined to cases of withholding, not withdrawing. Such an interpretation would contend that the patient had already pulled out the tube, and the sole question was whether or not it must be reinserted. This interpretation is possible, but it is certainly not definitive. There is room to read the responsum in such a way that it refers to withdrawal as well as to withholding. Also, in this type of case, the distinction between withholding and withdrawing tends to become highly artificial, if not entirely vacuous, since, in effect, the decision not to reconnect leads to death in exactly the same way that withdrawal leads to the patient’s demise.
In his Commentary on the Mishnah, Maimonides makes the following broad generalization: “Give heart to this great principle…all that we disdain or perform…we do so solely by virtue of the command of the Holy One, blessed be He through our teacher Moses…” (Hullin 7:6). Judaism certainly recognizes free will, but that free will is meant to be used in order to fulfill the Divine commandments. This is readily evidenced by the following Biblical text: “Behold, I set before you this day a blessing and a curse. The blessing, if you obey the commandments of the Lord your God which I command you this day. And a curse if you will not obey the commandments of the Lord your God…” (Deuteronomy 11: 26–28). The role of human reason as a source of halakhic obligation in a traditional context is a tricky issue, and has been addressed by the present author in: “Feticide, Cannibalism, Nudity and Extra-Legal Sanctions: Elements of Natural Law in 19th–20th Century Halakhists (Sinclair 2010, in press)” (due to appear in the forthcoming issue of the Jewish Law Association Studies).
The Chair of the Draft Law Committee, Prof. Abraham Steinberg, is an expert in the field of biomedical halakhah, and he has analysed the halakhic background to the Draft Law which was accepted by the vast majority of the mixed religious and secular Committee (Steinberg 1993). R. Feinstein is cited on almost every page, and his pervasive influence on the provisions of the Draft Law is patent.
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Sinclair, D.B. Dealing With Death in the Jewish Legal Tradition. Bioethical Inquiry 6, 297–305 (2009). https://doi.org/10.1007/s11673-009-9176-z
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DOI: https://doi.org/10.1007/s11673-009-9176-z