Medical Ethics and Halakha: The “right to medical treatment” in Jewish tradition
(First appeared in Hebrew in Et La’asot, vol. 3, 1991)
Rabbi Michael Graetz
An expanded version of this article first appeared in Et La’asot No. 3 in 1991. The goal of the article was to deal with the thorny question “is there a conception of rights in halakha?”. I chose to deal with that question in the context of the right to medical treatment because of attacks on basic human rights of non-Jews that had begun to appear in Israeli society in a loud and frightening manner. This led me to deal with another thorny question “does halakha have any ethical considerations, or are such considerations extra-halakhic?”. These issues go to the very heart of human understanding of ethics as a system whose purpose is to provide guidelines that strive to guarantee certain inalienable rights that stem from the fact of being human.
My conclusion was that the answer to both questions was affirmative. There is a conception of rights and ethical considerations embedded in halakhic discourse. For our purposes it matters not whether those rights are conceived of as privileges of being human, as in Western philosophy, or as unspoken assumptions which generate obligations of one human towards another, as in Judaism. (For further reading on these issues see the comments on my original Hebrew article in Noam Zohar, Alternatives in Jewish Bioethics, NYU, 1997 p. 7ff. For a masterful treatment of ethical considerations as central to the process of Midrash Halakha cf. Moshe Halbertal, Mahapekhot Parshaniyot be-Hithavutan, Magnes Press, 1999) Thus, the specific issue of “a right to medical treatment” reveals much about the broader issue of “rights” in Jewish law, and the hope is that this paper will provide guidelines for discussing the broader issue.
One of the main tasks in dealing with Jewish Medical Ethics, should be to define the possible meanings of the topic. All too often, discussions are carried on without this task being attempted at all. The philosophical discipline of ethics tries to deal with what is good and bad, moral duty and obligation using the tools of human thought and logic.
But, ethics can also refer to a group of moral principles or set of values which is the result of a tradition which has defined the set. This definition is usually within a religious framework, and in the case of Judaism, is defined by both a legal framework (halakha) and a metaphysical framework (aggada). The tools of this enterprise are ongoing interpretation of traditional legal precedents, and ongoing interpretation of metaphysical midrashic sources. However, these precedents claim that their source is divine.
These different uses of the term ‘ethics’ raise many questions. Can a religious tradition which is based upon divine revelation, admit philosophical considerations about good and bad based upon human reasoning? Can a philosophical system, based upon reasoning, admit moral dicta which seem to contradict reasoning, just because they claim to be divine?
When we come to survey the existing discussions under the rubric of “Jewish Medical ethics” such as the work of Jackobovits, Rosner, and Bleich, we find that almost all of these discussions are confined to reporting and interpreting precedents of Jewish law (halakha). If Jewish medical ethics is only a description of halakhic decisions, then it can’t properly be called medical ethics, a term that implies a discussion of the ethical aspects of any medical decision, including halakhic ones. Furthermore, if the stance concerning halakhic decisions is that they are in some sense “divine”, then the assumption could be made that a Divine commandment cannot be branded as immoral.1
Scholars such as Daniel Gordis and Daniel Sinclair question the very methodology of halakhic decision. Their questions are triggered by the complex issues which must be decided in the realm of medicine. These discussions cast doubt on the classic methods of interpretation of precedent in the face of radically different medical circumstances.2
Other writers, such as Michael Wyschogrod, criticize traditional halakhic exegesis by arguing that it overlooks the role of ethical feelings and theology, thus becoming formalistic or even self contradictory. Wyschogrod relates ethical feeling to conscience. Conscience is a God given faculty which must come into play when responding to God’s will. He also argues that law is the human appropriation of revelation, and that, without the spirit of revelation; law alone is an ossification of the spirit. He argues convincingly that it is not possible to be ethical without law, but also that the law can reflect awareness of revelation.3
In the first case traditional halakhic discourse is seen to be too tradition-bound to adequately address modern reality. In the second case, it is seen to be too “legal” to adequately address the ethical components in modern reality. These discussions either assume that halakha is not the only way to decide a particular issue of medical ethics, or they assign a major role to external halakhic considerations, ethics, conscience or theology, in the process of halakhic decision.
One of the best statements of and suggestions for managing the various components of the debate is by Elliot Dorff.4 He advocates what he calls a “traditional but dynamic ethic”. He shows the strengths of a legal approach to moral issues, namely continuity, the ability to bring the wisdom of the past to bear, without being enslaved to it. The legal system includes authority and coherence, but its rules of interpretation allow for balancing changing needs. The alternative, relying primarily on individual conscience presents the danger of anarchy.
Dorff advocates the following methodological principles: 1) to look for policies not inviolable principles.5 2) to apply even general policies with sensitivity to context of specific cases 3) to retain legal method with its inherent discipline 4) to be aware of the inevitable and proper impact of the reader and his context, goals, and values in interpreting and applying a text. This awareness does not vitiate the authority of the text, but does open the door for contemporary moral sensitivities.
Dorff’s attempt to simultaneously consider the legal character of Jewish tradition and the recent criticisms of that tradition is outstanding. Furthermore, in order to be identifiably ‘Jewish’, any system must take halakha into account. In essence, Dorff is promoting traditional halakha with a) more flexibility and room for judicial discretion and b) more weight given to extra-halakhic considerations, such as modern legal theory and ethical discussion. Dorff even cautions against making a too facile or radical change by using such halakhic instruments as takkanah (amendment).
It seems to me, that most of Dorff’s approach is correct. This especially applies to concrete medical issues, such as end-care treatment. However, this approach may be less than satisfactory in other questions involving medical ethics. These include general questions of public policy, for example, the question of the “right to medical treatment”, and particularly the right of non-Jews and irreligious Jews to medical treatment.
Many questions in modern ethical discussion revolve around the assumption of “rights” which accrue to an individual. Western law also bases much of its ethical thrust on the concept of rights. The debate of many medical issues is couched in those terms, e.g. “the right to die”, “the right of control over one’s body”, “the right to treatment”.
Many who write about Jewish law have assumed that no concept of rights exists in Jewish law at all, and claim that the keyword in halakha is “obligation”, not “right”.6 This formulation implies an inherent contradiction between halakha and modern ethical discourse, as if there can be no common language of discussion, since basic premises are different.
If this is true than any attempt to harmonize halakha and ethical discourse would be so artificial as to be less than serious. Rather than it being possible to handle opposite considerations in some kind of synthesis, as Dorff suggests, it would be necessary to decide to which principle one would cling, and which one would be abandoned.
Furthermore, considerations of theology or belief could not enter into such discussions because these are always left open and dependent on individual tastes. As such, they can have no real voice in legal proceedings.
There are cases in Jewish law where there is a concept of “rights”, e.g. women’s right to board, clothing and conjugal rights. Indeed, the whole concept of conjugal rights is a biblical construct. Another example is the halakhic principle known as “mezakin la-adam shelo befanav”, conferring a right on someone not in his presence. Menahem Elon cites the case of the “right to make a living”, which was at first just a moral dictum. Later this right was expressed as a law which forbid unfair competition, and was based on the prohibition of moving boundary markers.7
Another way of seeing the use of the notion of rights in Jewish law is through the prohibition against discrimination. Discrimination is a topic which is associated with the notion of “rights”. If there is a concept of discrimination in the Torah this would be another indication of an underlying conception of “rights”. There are many verses in the Torah which use the phrase “mishpat ehad yiyeh lakhem”, namely an injunction that there must be one law for everyone, both citizen and stranger. The purpose of these verses seems to be to prevent unfair discrimination, that is, the law must be unified and equally applied. This sensitivity to unfair discrimination seems to imply some kind of universal “right”.
Indeed, the Mishnah assumes that the mitzvot in general are, in a sense, rights, i.e. when God obligates a Jew to do a mitzvah ; He is conferring upon that Jew a “right”, in the sense of privilege.8 It may be true that there is no spelling out of a concept or general theory of “rights” in Jewish law. Yet, the inherent implication of obligation is a notion which today we describe as “rights”. Our obligation is not only to God, but also to other men by virtue of some concept of their “rights” which I must respect and am obligated to uphold. God grants me rights and obligates me to uphold them both for myself and for others. It is an integrated system in which one cannot talk about rights without obligation, nor talk about obligation without rights.
In our case, the notion of a basic human “right” to life and to be treated as an end in itself is based on the theologic notion that all men are created in the image of God.9 This is elucidated in Mishnah Sanhedrin 4:5. There, witnesses in a capital case are warned to give true and accurate testimony. This warning is an interpretation of chapter one of Genesis, where God’s creation of a single man is taken to mean the ultimate value of all human life (each individual is worth the whole world), prohibition against discrimination (no one is inherently superior), and the paradox of each person being from the same mold yet at the same time totally unique and irreplaceable. This theology is the underpinning of the individuals’ “right”, as a human being, to life, and to being treated equally under the law, even if accused of a capital offense. This is an important source, in that it assumes a theologic belief as the main premise upon which everyone’s right to life is predicated. The witnesses’ obligation to testify truthfully and carefully exists because of the accused’s “right to life”, which accrues to him inherently as a creature of God.
The main point is that M. Sanhedrin 4:5 is halakha. What is the point of telling witnesses this theologic interpretation of Genesis, unless it is like a constitution, that is, a spelling out of the premises upon which the law is based? Thus, any textual change in this Mishnah would constitute tampering with the basic beliefs of the system. The influence on all subsequent decisions would be pervasive and automatic.
Other laws of obligation are based upon the implied “rights” of a citizen to own property, and his “rights” to his own property. For example, the law which obligates me to return my fellows lost property, straying animals etc. On what basis should I be obliged to return my friends wandering ass, unless I assume that he has a certain “right” to it. Otherwise, I might operate on the principle of “finders keepers losers weepers”. As long as my fellow has not despaired of getting his property back, his “right” to his property still adheres to it, and I have a concomitant obligation to return his property to him.10
Now return of property is an interesting question, for it relates directly to the question of medical treatment. Medical treatment, i.e. the permission for the physician to heal, is based on two basic sources. Theologically you might claim that if someone is sick, it is God’s will. Human beings have no permission to intervene, if God wills a person to be sick. Traditional halakhic exegesis derives the permission to intervene in two ways: verse 21, 9 of Exodus “…he shall pay for his total healing”. In the context of one’s obligation to heal someone whom he has physically injured, the Torah explicitly permits the physician to heal.11 The other is, oddly enough, speaks to the question of returning someone’s property which has gone astray, e.g. animals cf. Deut. 22, 1ff. Midrash halakha (Sifrei) extends that law to the person himself, if he is lost he has to be returned to whence he came. A further extension is, if he is sick he has to be restored to his former self.12
Eliezer Walldenberg poses the question: why did the sages formulate this matter by saying the physician is commanded to heal, and not say the patient is commanded to seek a cure. He answers so as not to drive the patient crazy with worry and care about his cure.13 In other words in that Israel is to be a holy nation and they are not yet at that level, they have to seek the help of physicians. When Israel will become a holy nation, they will not ever be sick.14 These sources imply that the Torah did not recognize a “right” of a patient to be cured, but only a “right” of the physician to heal.15
As regards the non-Jew’s rights, it can be shown that the pivotal mishnah of Sanhedrin 4:5 did undergo textual change. Raphael Rabbinovicz’s Variae Lectiones, the main collection of variant readings of manuscripts of the Mishnah and Talmud versus the printed editions, shows that the earlier manuscript versions did not confine the value of life to Israel. This was further proved by Prof. E. E. Auerbach.16 At some point in time the words “of Israel” were added to the original text. The later halakha, under the influence of that textual change, inadvertently perverted the theologic underpinning of the halakha when it decided that the “right to life” is confined to Jews only.
In addition, the Tosefta Bava Metzia 2:32-33, limits the law in the matter of return of property even when applied to health. Non-Jews, apostate Jews, informers etc. are not to be restored to health, but are to be passively permitted to die (“lo ma’alin ve-lo moridin”). Indeed, the latter can actively be put to death (“moridin ve-lo ma’alin”).17
In the Codified halakha this law is found in the Shulhan Arukh YD 158:1 and HM 425 end, and Rambam Yad Mada, Avodat Kokhavim 10:2. However in both these sources, the prohibition to cure gentiles and bad Jews only applies if Israel is in control of the land. If the Jews fear gentile rule, then Jewish doctors are permitted to cure gentiles. The debate then is if they are allowed to cure them for free or must be compensated.
Even in modern times, poskim such as Moshe Feinstein and Eliezer Walldenberg have dealt with these questions in various contexts, e.g. whether it is permitted for a Jewish doctor to travel on Shabbat to save a gentile or bad Jew’s life, or help deliver a gentile baby?18 The poskim do not always agree on this, but most tend to forbid it outright.
Moshe Feinstein tries to justify Jewish doctors in Russia traveling on Shabbat to heal gentile ill by saying that if the Jewish doctor would not violate Shabbat to treat the gentile, they might kill the Jew etc. This is a case of possible pikuah nefesh, and this is enough reason to violate the Shabbat.19 Eliezer Walldenberg does not agree. For him, those doctors who violate Shabbat to treat gentiles have no basis to justify this violation.20 Walldenberg even goes out of his way to disagree with explanations of some of the talmudic commentators which try to justify treating non-Jews. For example, one could claim that it is permitted to treat a non-Jew because the physician will learn from this experience and be better able to treat Jews. Walldenberg rejects this because if the gentile knows that the Jewish physician is an expert in a particular field he will definitely come to him antagonistically (“meshum eivah”) which Jews must try to avoid. 21
How does it come about that the majority opinion in the halakha is so discriminatory about curing gentiles and bad Jews? As mentioned above, the basis of sanctity, equality and worth of human life is based upon the account of creation in Genesis 1. The Mishnah in Sanhedrin 4:5 makes that clear. But, the printed version of the Mishnah, as opposed to the manuscript versions, add the provision that the life of a Jew is what is sacred and of ultimate worth.22
In addition, the Roman rule of Palestine and oppression of Jews and Jewish religion, certainly contributed to the view that the gentiles were “less than human”. This is most forcefully expressed by Shimon b. Yohai who says specifically that Israel is designated mankind, but the idolators23 are not designated mankind.24 The same Shimon b. Yohai was hunted by the Romans under sentence of death for teaching Torah, and expressed the sentiment that even the best of non Jews should be killed.25
It is true that some later commentators felt uncomfortable with these sayings. Most prominent among them is Israel Lifshitz (1782-1860), known as Tifereth Israel after the name of his extensive commentary on the Mishnah. He confesses to have difficulty with the statement that the nations are not mankind. He argues that that would mean that they are animals, and if that is the case what sense does it make to say that Israel is chosen among the nations? It would be like saying “you shall be special from among all the animals and monkeys, which look like humans”.26
What we have here is a process of interpretation of the theology of the Torah as understood in the formative generations of Judaism as we know it. There were apparently several schools of thought about basic theologic positions. One school interpreted the Jewish mission to be a holy people to imply an inherent sanctity above that of other men, and the other school did not accept such any such inherent superiority.
A classic example is the Talmudic debate27 between Akiba and Ben Azzai over what is the first principle of the Torah (“klal gadol”). Akiba says that it is the verse in Lev. 19, 18 which is taken to mean an obligation to love your fellow Jew as yourself. Ben Azzai says that a greater principle than that one is the verse in Gen. 5, 1 “This is the book of the generations of man, from the day that God created man, making him in God’s image”. Ben Azzai finds the unity and equality of mankind, as expressed in Gen. 5, to be the greatest principle of the Torah.
In short there are different positions in the literature. It is obvious that the position one adopts will directly effect and color one’s halakhic decision making. One cannot claim that belief or ethical principles are irrelevant to the halakhic stance on this issue. Nor, can one who accepts the position of universal right to life irrespective of religious practice or national origin be satisfied by the existing precedents in halakha.
It may be possible to understand the rabbinic dictums, especially in light of the historic settings of the Hadrianic persecutions, the crusades or modern anti-Semitism. Yet, even understanding the historic background of such halakhot it is impossible to justify them, certainly in our historic setting of independence and power in the State of Israel which carry with them ultimate responsibility for every human being under our rule.
Some modern rabbis, e.g. Ovadia Yosef, have tried to use traditional methods of judicial interpretation to ensure proper treatment for Arab residents of Israel by deciding that they are to be considered resident aliens (“ger toshav”) for whom the Torah specifically commands us to care.28 Such interpretation shows the weakness of certain features of the traditional halakhic process. When an issue is so fundamental, such as the right of all men to medical treatment, it is a weakness to leave its resolution up to a particular interpretation of certain normative texts.
On some issues our theologic beliefs or firmly held ethical principles leave us no choice but to reject the majority halakhic opinions totally, admit they were mistaken and appropriate for our own halakhic stance minority views which uphold the principles which we wish to normalize. The use of “takkanah”, amendment, needs to be revitalized in Jewish law in an activist fashion, for certain rules which are fundamental in their ethical implications.29 In this case, the principle of the “right to healing and life” for all men, irrespective of to which nation they belong or of their religious practice, must be upheld even at the expense of formerly normative opinions.30
Finally, I believe that in these questions we must always take into account the view of Rabbi Heschel: “Judaism is not another word for legalism…The law is the means, not the end…The Torah is guidance to an end through a law. It is both a vision and a law. Man created in the likeness of God is called upon to re-create the world in the likeness of the vision of God.”31
NOTES
1. cf. David Weiss Halivni, “Can a Religious Law be Immoral?”, in Perspectives on Jews and Judaism, Essays in honor of Wolfe Kelman, ed. Arthur Chiel, NY 1978, p. 165-170. Halivni argues that the rabbis did not consciously take ethics into account in halakhic decision. Others have argued that they did. cf. Elliot Dorff, “The Interaction of Jewish Law with Morality”, in Judaism 26:4 (fall, 1977), p. 455-66. Seymour Siegel, “Ethics and Halakhah”, in Conservative Judaism 25:3 (Spring 1971), p. 33-40.
2. cf. Daniel H. Gordis, “Wanted — The Ethical in Jewish Bio-Ethics”, in Judaism, 38:1 (winter, 1989), p. 2840; Daniel B. Sinclair, Tradition and the Biological Revolution: The Application of Jewish Law to the Treatment of the Critically Ill, Edinburgh, 1989
3. cf. Michael Wyschogrod, The Body of Faith: Judaism as Corporeal Election, 1983, cf. especially p. 187-200
4. Elliot N. Dorff, “A Jewish Approach to End-Stage Medical Care”, CJLS, Dec. 1990, beginning. cf. also Dorff’s unpublished, “A Methodology for Jewish Medical Ethics”, July 1990. For an outstanding treatment of Jewish Law in the context of philosophy of law, and in particular US jurisprudence cf. Elliot Dorff and Arthur Rosett, A Living Tree, NY 1988.
5. Dorff rests the point of this distinction on the work of Ronald Dworkin. For a critique of this approach cf. Haim Marantz, “Dworkin’s Rights Thesis — a Critical Interpretation”, Metaphora, Spring 1991 (Hebrew)
6. cf. Robert M. Cover, “Obligation: A Jewish Jurisprudence of the Social Order”, in Journal of Law and Religion, 5(1988), p. 65-74
7. Menahem Elon, Ha-Mishpat Ha-Ivri,Jerusalem 1973, p.329-331
8. cf. Makkot 3:16
9. cf. Mishnah Sanhedrin 4:5
10. “despair” (“yeush”) implies a waiving of ones “right” to property.
11. cf. Shulhan Arukh YD 336 ,1
12. cf. Sifrei Devarim Ki Teze 323, p.256
13. Tzitz Eliezer idem. 10, 25 30 33-34
14. idem. 11 41 10, 1
15. i.e. the physician’s “right” to take part of God’s role. Again, the obligation of the physician to heal is in the context of God’s granting him a “right” to heal. Most authorities agree, however, that healing does not reduce the patients belief in God, and that most illness is caused by man’s own negligence and not directly by God.
16. cf. Rabbinovicz, Sanhedrin, reprint Jerusalem 1960, p. 100. cf. also Adin Steinsalz, Talmud Bavli, Sanhedrin, Jerusalem, 1974, p. 161 (girsaot); E. E. Auerbach, in Tarbitz 40, pp. 268-284 and in “Me-Olamam shel Hakhamim”, pp. 165-167
17. cf also Talmud Bavli AZ 13b; 26b; Sanhedrin 57a-b
18. There is a concomitant prohibition on helping to deliver a non-Jewish child in all of the above mentioned sources
19. Iggrot Moshe OH 4, 79, 6,2; cf. Minhat Yitzhak 3,20 10,1
20. Tzitz Eliezer 8, 15 Kuntres Meshivat Nefesh 6,2 1-2
21. ibid.; and idem. 6, 23 1-3
22. There are many differences between early manuscript versions of rabbinic literature, and later, printed versions. Later authorities, or even printers, changed early versions to coincide with their own views.
23. Some versions: nations of the world
24. Talmud Bavli Yevamot 61a
25. This sentiment reflects the period of harsh religious persecution under Hadrian, and the martyrdom of Shimon’s teacher Akiba, cf. Mechilta Beshallah 2
26. Tifereth Israel on Avot 3:18. Lifshitz further argues there that if the nations were animals that would contradict other talmudic sayings, such as the saying that righteous gentiles have a share in the world to come, or indeed that they could be held responsible for their deeds at all!
27. Yerushalmi Nedarim 9, halakha 4
28. For the problematics of this solution cf. article Palliere, in EJ vol. 13, p. 43. See also the attempt of the Beer Golah to limit the halakha, HM 425:5 cited above. There are many general articles on this subject: e.g. Elisha Aviner “ma’amad ha-yishmaelim ba-medinat yisrael le-fi ha-halakha, Tehumin, vol. 8, p. 337ff.; Isaac Herzog, “zekhuyot ha-miutim ba-medinah yehudit be-halakha”, Shana be-Shanah, 5746. However, this approach, is just what I am describing as inherently crippling to the halakha. Cf. Daniel Gordis, op. cit.; Elliot Dorff, op. cit.
29. Menahem Elon writes about takkanot, “As far as the Halakhah is concerned, it is possible and it is desirable to solve difficult questions.” He laments the fact that the Israel Chief rabbinate showed promise of using takkanah creatively, but since 1950 has promulgated no new enactments. M. Elon, “Developments in the Rabbinic Judiciary of Israel”, in Dine Israel, V (1974), p. lxxvii.
30. For an excellent survey of the whole question see, Shubert Spero, Morality, Halakha and the Jewish Tradition, NY 1983. Spero tries to show that there are obligatory moral rules codified in halakha, and supererogatory or optional moral rules in Jewish tradition, but not codified. He makes the distinction based upon what can be enforced by a court and what cannot (for a similar interpretation cf. M. Elon, Ha-Mishpat Ha-Ivri, p. 171 ff). Spero’s book is very helpful in analyzing the question, but he too does not take account of some of the fundamental questions, such as discrimination against rights of non-Jews or non-observant Jews. Indeed, from this work one would not even know that such halakhic rules existed!
31. Abraham Joshua Heschel, God in Search of Man, NY, 1955, cf. p. 323 ff.
Rabbi Michael Graetz 