Rabbi Alfred Cohen
Rabbi, Cong. Ohaiv Yisroel, Monsey, N.Y.
Rabbi, Yeshiva University High School
Journal of Halacha & Contemporary Society, Fall 1996

One of the most difficult and painful experiences any person has to go through is seeing a loved one suffering greatly. The feeling of helplessness, of suffering for the sick one, of despair, often lead one to ask - is this really necessary? Must a sick person suffer so much? Is it necessary to try every procedure, no matter how fleeting its benefit and how difficult its implementation, just to buy for the dying person another day, another week - of what? Of pain, of suffering?

Thus, in our age - which has seen marvels of medicine and surgery, developed machines which can breathe for a person, pump his blood, cleanse his arteries, and keep the body alive long after one would have hoped for release - more and more often, the question is asked: is this necessary? Is a person committed to Torah and halacha obligated to do everything possible in order to prolong life? Whether it be one's own life, or the life of another for whom one is responsible, does Jewish law always require that "uvacharta bachclim", you must choose life?

Choosing To End Life
The Gemara1 relates the existence of a very unusual town. In this town, Luz, no one ever died.

However, the old people there, when their lives became intolerable, would go out beyond the city walls and [there] they would die.

What is the Gemara's point in telling us about this practice? Should we interpret it as indicating that when a person "has had enough", he can take steps to bring an end to life?

Certainly that does not seem to be the thrust of Jewish law. Halacha mandates violation of the Sabbath in order to save a life, even if it is only to free someone trapped under the debris of a fallen building, someone so gravely injured that at best he can live only a very short time thereafter.2 This shows how highly halacha regards even a few moments of life, even when there is no chance of saving that life for any appreciable time. Jewish law forbids even moving a person who is dying (gosses), for fear that thereby one may hasten death.3

These few points suffice to indicate why there is so much confusion about what Judaism requires or forbids us to do - the sources are in a sense ambiguous, open to a number of interpretations. While Jewish law is emphatic on the absolute prohibition against euthanasia, and halacha is clear that virtually all other considerations are set aside to save a life, nevertheless, there is some lack of clarity on a number of key questions: If the sick old people of Luz were free to choose when to leave town to die, does that imply that we have control over our deaths? If we may not intervene for a person in the throes of death, does that mean we have no control?4

And if we should desecrate Shabbat for a person who clearly cannot live much longer, doesn't that indicate that every moment of every life is infinitely precious?

The present study will explore this issue from a variety of perspectives, within the context of Jewish law. There is no question here of "assisted suicide", that euphemism for murder or suicide, which is always forbidden. Furthermore, let us understand that we are not dealing with questions to which one can find definitive answers of "yes", "no", "never", or "always". Perhaps, however, a clearer insight will lead to an understanding that some situations require learned religious guidance, not only learned medical advice.

Who Decides?
Our purpose is to investigate a very troubling issue, which is increasingly becoming an inescapable dilemma of many people's lives. There is much confusion about what the Torah requires or allows when it comes to taking or choosing not take measures which might extend life, due to the attendant pain.

To what extent, under Jewish law, does a patient have control, or at least a say, over the treatment he chooses or refuses to take? Who has the ultimate decision-making power? The late Rav Yisrael Gustman related to numerous people, including this writer, that Rav Chaim Ozer Grodzinski, his

rebbe, had maintained that the patient's wishes must be taken into account before rendering a p'sak. However, he hastened to add, all the other rabbonim in Vilna did not agree "But then," he mused, "who could compare to Reb Chaim Ozer?"

To return to the fundamental issue: whose body is it anyway? Does the rabbi make the ultimate decision or the doctor, or the patient (or his surrogate)?

The question itself is something of a "hot potato" as seems to fly in the face of all the hard-won acknowledgements which women and the elderly and the handicapped have fought for in the past generation. In the western world nowadays, the accepted wisdom generally is that a woman has the right to final decisions over her own body. Abortion, sterilization, pregnancy - these are her prerogatives, because it is her body. But this is not the approach of Jewish thinking, not for women and not for men.

The power of life over a person's body does not belong to him...not only is a person forbidden to destroy his own life...but even his life is not in any way his.

Rav Zevin cites the Ba'al HaTanya, who wrote:

...Because a person has no control whatsoever over his body, to strike it.6

He also brings the Radbaz:

...Inasmuch as a person's soul [life] is not his possession but rather the possession of the Holy One, Blessed be He, as it is written, "And the souls are Mine."7

These citations are expressions of the fundamental conviction that bodies and souls are entrusted to people for safekeeping, to be returned to their Owner when He sees fit.8 Individuals have limited use of these "items" entrusted to their care, and must carefully adhere to the conditions for their use, as outlined by their Maker in the Torah.9

Halacha recognizes specific instances when it is up to the person to make decisions regarding his body and health.10 For example, if a person feels sick on Yom Kippur and insists that without food he will die, "even if 100 doctors"11 say that he will not die without food," we tell him to eat.12 This ruling is based on the Gemara's supposition that "lev yodea morat nafsho," no one knows better than the individual involved how much pain he is suffering; ultimately, therefore, it has to be his call. He knows best whether he can withstand the pain of not eating.

Conversely, when a person perceives that fasting will cause his death but refuses nevertheless to eat, many consider that he is liable for causing his own death. The Radbaz castigates him as a "Chassid shoteh," a pious fool.13

Nevertheless, Tosafot grant the patient the option not to eat rather than transgress the holiness of Yom Kippur.14 According to them, he is entitled to refuse to engage in behavior which is permissible in order to save his life, if he prefers to observe the Torah stricture.15 As an example, although the rule is that all Torah prohibitions are waived (with the exception of idolatry, murder, and sexual immorality) in order to save a life, according to Tosafot, a person is allowed to say, "I don't care if you kill me, but I won't eat non-kosher food."16

To sum up the position of Jewish law: except for extraordinary situations, a person generally does not have the option to refuse to go on living. Life is a gift from the All-mighty, and only He can decide when to end it. Our concern now will be to investigate the parameters of this general statement and to see if there are circumstances which mitigate it.

Rav Moshe Feinstein has ruled that one may not simply abandon a patient who might recover; even an old person must be given full medical treatment. We are not allowed to say - he's old, what's the point? Even a patient who himself says, "I don't want to go on living. I'm old and tired" - we do not listen to him but try to cure him.17

There are some situations wherein a person may want to hasten his own death. Take the case, for example, of a gravely ill person who is in great pain; the doctors propose an operation or medication which can prolong his life but which cannot alleviate the pain. Must the patient agree to this? Not according to Rav Moshe Feinstein, who writes,

However, in a situation where the person suffers pains for which there is no known cure [for his sickness] nor a way to reduce his pain - in such a case, a person prefers to die rather than to live a life of such pain...it is not mandatory to give medical treatment to a person ..if he doesn't wish it, with medical treatments that prolong his life with such pain. And even in cases where it is not possible to know the patient's opinion, generally speaking we can assume that the patient would not want nor is there any requirement to give him medical treatment.18

In this ruling, R. Moshe Feinstein grants the sufferer the right not to prolong his suffering. We shall see that even R. Moshe did not consider it to be either an absolute or an unequivocal right. Nevertheless, it is evident that the Torah only gives a doctor the right to heal or to alleviate suffering. Extending a life of pain is beyond his prerogative. Now he is intruding into the sphere of the Ribono shel Olam.

Limits Of Patients' Rights
We have already noted the opinion of R. Moshe Feinstein that in certain cases, a patient may refuse treatment. Rav Feinstein's voice is not the only one raised to champion the patient's right - Rav Shlomo Zalman Auerbach was of a similar mind: In a situation where a woman needed an operation to save her life, but the surgery might leave her a paraplegic for life, he ruled,

Nevertheless, since ultimately the life of paralyzed persons is very bad and bitter, so that they consider death preferable to life, in such a case it makes sense that there is no obligation to make the choice of having the operation.19

But his contemporary, Rav Eliezer Waldenburg, does not equivocate in ruling otherwise:

We must do all that is necessary to save a life, [even] against the wishes of the patient, and every person is commanded [to do] this, arising from [the biblical directive], "Do not stand by your fellow Jew's blood" [i.e., do not passively allow another person to die]. And the matter is not dependent upon the choice of the patient, nor is he given the option to destroy his own life.20

Thus, we find two opposing bodies of thought: Rav Moshe Feinstein and R. Shlomo Zalman Auerbach are among those who allow the patient to choose not to undergo further medical treatment in order to end suffering; intervention which will only prolong pain and the process of dying is not required. But Rav Waldenburg expresses the view of those who maintain that one is not permitted at any time to forego treatment which might prolong life, albeit pain would also be prolonged. According to this position, even if the patient refuses medical treatment we should force him to have it because it is not his body to destroy; that is the option of G-d alone. As Rav Waldenburg cites the Talmud, "even a moment in this world is beautiful."21

Before we proceed in our inquiry, it is important to clarify that the differences of opinion between rabbis and poskim are not a function of their personal predilections. Rav Auerbach and Rav Feinstein do not rule a certain way because they are "more compassionate" to the sufferer; those who are strict are not "insensitive" to human needs. Let us be very clear - these are questions of Jewish law, not of emotions. The rabbis arrive at their conclusions on the basis of their understanding of Torah law.

There are certain situations where halacha gives the sick person the right to choose. For example, if a person is very sick, the doctors may offer him the following scenario: "Don't do anything, and the disease will kill you in a relatively short time;22 if you do choose to have an operation, it might cure you. On the other hand, it might kill you right away." This is a difficult choice - can the person gamble with the life span he is assured of, on the chance of gaining more time?

This situation parallels an incident related in II Kings 7:3-5: Four lepers were outside the walls of the city Shomron, which was being besieged by the Arameans. Due to the siege, there was a dreadful famine, and there was no food within the city. The lepers, who were banned from the city in any case, decided to go to the camp of the Aramean army and beg for bread. Their logic was simple - "We are going to die of hunger within a day or so anyway. Maybe the Arameans will give us some food. Although it is true that the Arameans might also kill us, what do we have to lose? We're going to be dead either way! And there's just a chance that we might not die, if we can get some food."23

Rabbinic thinking leans to the view that the patient should undergo a procedure if the choice exists. Nevertheless, he may exercise the option not to do anything.24 This is especially pertinent to the situation which sometimes confronts a cancer patient, where the treatment might succeed in curing him but might also kill him. Experimental drugs or surgery are permitted for a patient who will die without them; this is true also if he is in great pain. If the person is not in a condition to be able to make the choice, R. Shlomo Zalman Auerbach has ruled that the family is relied on to exercise the option which is best for the patient's welfare.25

An essential factor to be considered is the "track record" of the treatment.26 The less sure the doctors are of the possibility of cure, the greater is the patient's prerogative not to have the procedure. Conversely, if the treatment is generally efficacious, the patient has less option to refuse it.27 In those cases where the doctors are not confident of the outcome, he can choose to live whatever amount of time he has left and not take a chance on losing even that short time, or he can take a chance that he will lose everything - but might gain a lot.28

Rav Feinstein returns a number of times in his responsa to the central issue of a patient's right to refuse treatment, and expresses doubt whether a person is required to undergo treatment which will cure his malady but consign him to a life of pain. He tends to the opinion that the decision is really in the hands of the patient, who is entitled to know all the options and make his own decision.29

Rav Auerbach does not give a patient carte blanche to bring a quick end to his sufferings.30 Even against the patient's express will, he must be provided with food and oxygen; however, we should accede to the request for a cessation of further medical intervention,31 even if that cessation will bring a quicker death. Rav Feinstein concurs with this ruling:32

And with a person such as this, who the doctors know cannot recover and live, nor even that he can continue to live but without pain - but it is possible to give him medication to lengthen his life as it is now, with pain - one should not give him medication but rather leave him as he is33....However, if there are medicinal drugs which will relieve his pain but will not shorten his life even a moment, one must give them to him before he begins his death throes [gosses34].35

Rav Moshe, too, holds that it is permitted to withhold medical treatment but not food. Every patient must be fed, even intravenously or through a tube if that is necessary. The reasoning is that food is a requirement of nature, for all people and even for animals, in order to sustain life. Food may not be withheld. However, medicine is not part of the "natural process" and must be administered only if it can promote healing or alleviate pain.36

It is necessary to note a significant exception to the above statement: When a person is on his death bed (sh'chiv mira), the requirement to feed him no longer applies. That is because our Sages have taught that it is imperative to follow even the slightest wish of a dying person, for fear that the distress of not having his wishes fulfilled at that time may hasten his death. Thus, if the person does not want to eat, we are not allowed to force him, as we would otherwise have to do. For this reason, rules Rav Moshe in this responsum, one should not force-feed a deathly ill patient, lest we make matters worse.37

The basis for the "permissive" opinions of Rav Auerbach and Rav Feinstein is the ruling of Ramo, who permits one to stop making a noise which is holding the patients attention and thus stopping him from dying.38 Rav Moshe Feinstein reasons that removal of the impediment to dying is permitted in this case only due to the extreme pain which the patient is undergoing. "For if there were no pain, what reason could there be to allow removal of those things which are delaying the exit of the soul [from the body]?"39

Following this rationale to its logical conclusion, we may infer that it is not mandatory to take action to keep alive a person who is in great pain and cannot recover. If it is permitted to remove the distraction which is keeping him alive, it certainly shouldn't be necessary to take positive steps to keep him alive.

Based on what we have seen so far, there seems to be little requirement to attach a dying person to a machine in the first place, if the machine will only prolong pain (or dying) without effecting healing.40 We have also seen that the Shulchan Aruch permits removing an impediment to dying if the person is in pain. Since the mortally sick gosses is certainly in pain and certainly wants to die,41 we should not try to stop the will of the All-mighty.

But if the patient is already hooked up to a machine, may he be removed from it? Is it analogous to the case of a gosses, whom it is forbidden to move?42 Beit Lechem Yehudah43 writes that it is permitted to remove the patient from a machine, and it is not as if we are causing the early demise of the gosses. Rather, he sees it as analogous to removing specks of salt from the tongue of a dying person, which the Ramo allows. However, most poskim do not permit a dying person to be unhooked from the machine which is keeping him alive; they maintain that the Ramo allowed removing the salt (whose sensation was keeping the person alive) but only without touching the gosses.

One Life For Another
A critical problem in this area, which has become a viable reality only recently, is the question of taking an organ from a dying person to save the life of another person.44 There are certain situations where the doctors can perform a transplant only when taking the organ from a live person; transplant science does not yet make it possible to use the heart or certain other vital organs from a dead person. However, once the heart is removed for transplant, the donor of course dies instantly. This poses a dreadful quandary: on the one hand, a life might be saved by receipt of a donor organ. On the other hand, "harvesting" the organs of a still-living donor seems tantamount to murder.

That is the opinion of R. Moshe Feinstein, who in 1968 absolutely forbade taking a heart in such manner, expressing amazement that "civilized governments are permitting wicked doctors to kill people."45 (He refers to "two victims" of the procedure - the donor and the recipient. Obviously, at that time organ transplant knowledge was in its infancy, and recipients never survived for long.)

As always, we look to our rabbinic literature for guidance. In the Gemara we find: If an enemy surrounds a town and demands that one or more hostages be handed over (to be killed) or else they will kill everyone in the town, the law is that we are not permitted to hand over anybody, even if all the townspeople will be killed. The Gemara lays down the rule: "we do not take a life to save a life."46

Albeit the talmudic rule is that we do not sacrifice a life for a life - for who says your blood is redder than his? - that logic doesn't really apply in the case of a heart donor and the recipient. For the donor is always a person who is virtually dead, or will die very shortly, while the recipient is a person who has the potential for a relatively normal life span, once the transplant is effected. It may not be true in such a case that "your blood is not redder than his," for arguably the recipient's life should take precedence over the one who will die momentarily anyway.

Perhaps we can find a precedent for the question of taking the heart from a dying person to save the life of someone who might thereafter live normally, in a case raised by the Minchat Chinuch centuries ago.47 If two people are captured, and the captors are going to kill one of them, may he be saved by substituting for himself the other man, who is so sick anyway that he will not survive the year (trefa)? Surely it would be permitted, rules the Minchat Chinuch, inasmuch as the "lasting life" (chayei olam) of the healthy person is indisputably superior to the ephemeral existence (chayei sha'a) of the trefa. But his ruling is categorically denounced by the Noda Biyehuda, "I have never heard such a thing in my life! "48

Nevertheless, there is a story in the Gemara which seems to set a similar precedent: a rabbi, Ulla, was once traveling with a group. One of the criminals in the group took out a knife and slit the throat of another traveler. He turned to Ulla (while the victim was still alive) and asked "How am I doing?" to which Ulla responded, "Great!" Thereupon, the murderer finished killing the other man.49 Discussing this story, the Tiferet Yisrael asks, how could Ulla have said such a thing? What about the chaye sha 'a (few moments of life remaining) of the victim? Wasn't Ulla abetting in the murder of his fellow traveler? To which Tiferet Yisrael answers, "That would be true [that he is assisting in someone's murder] if there were no alternative of sustained life (chayei olam). But when [by flattering the murderer he had a chance for] chayei olam [for himself], then certainly that life takes precedence."50

A further incident in the Talmud which might shed light on the question if one is allowed to sacrifice a life to save another life is recorded in Pesachim. (51) The Gemara there heaps praise upon two brothers. Pappus and Lulianus. When the general of the Roman army occupying Israel became enraged over some crime that had been committed and threatened to wipe out the town unless the culprits were apprehended, these two "confessed" to the misdeed and were executed, although they were totally innocent of any wrongdoing. Their sacrifice saved the entire populace, and the Gemara concludes "no person can stand on their level. "

What happened to the rule that one life may not be sacrificed for another? Are we to conclude that this is a variable, not a constant? Or perhaps the rule was suspended because so many lives were at stake?52 How do we make a distinction - quantity of lives, quality of life, length of life? The author of Mekor Hachesed writes "We [the group] are not permitted to hand over [a hostage to the enemy]...in order to save others. However, individuals may themselves [decide to] do this." Apparently, an individual does have some leeway to voluntarily give up his life for a greater good. However, the present study is not the place to discuss this noble option.

To return to the thorny question of heart transplant: a perusal of the poskim who have dealt with this new issue indicates their virtual unanimity that Torah law cannot sanction it as it is presently performed. The author of Nishmat Avraham writes, at the conclusion of a thorough analysis of all the sources:54

And from all that has been said, it emerges that it is certainly forbidden to remove the heart of a person who is near death (trefa) and even more so [the heart of gosses in order to save the life of another person who is [otherwise] healthy. And this is how the giants of our generation have ruled.55

Surgery to Alleviate Pain
Life-and-death decisions do occasionally arise; however, far more common are instances of "ordinary" surgery. Since Jewish thinking basically considers that a person doesn't really "own" his body, but is only permitted to use it and care for it in accordance with the dictates of halacha, the question arises whether surgery is permitted in non-life-threatening situations.

Rambam encodes the law as follows:

It is forbidden for a person to cause [bodily] damage, whether it be to himself or to others, ..[and if he does] he has transgressed a negative biblical commandment (chovel be'atzmo).56

This ruling might be construed as disallowing surgery when it is not a matter of life or death. Indeed, that is the interpretation of some major poskim. One time, a question was raised about performing an operation to remove Kidney stones, a condition which induced much pain but which the doctors considered as not in itself life-threatening. Rav Yaakov Emden allow it:

And whenever there is no danger in the pain, it is not good to [operate] on it, even on a weekday [and certainly not on Shabbat]. A person is not permitted to put himself in a situation of possible danger to his life... and many persons have hastened their death through operations.57

Perhaps, however, the effect of this strongly negative position is somewhat attenuated by the realization that when Rav Yaakov Emden expressed this opinion some two hundred years ago, it reflected the medical realities of his age. No doubt the danger of having surgery then far outweighed the benefits which the surgery might bring. Furthermore, he seems to eschew surgery not because of the issur of chovel be'atzmo, but rather because of the inherent danger of the procedure at that time, or possibly due to problems with the anesthesia.58

Under what conditions, nowadays, may a person opt to undergo surgery which is not essential to save his life but which may relieve pain? As we have seen, there are poskim who have ruled that surgery even in such a case is impermissible. But there are many rabbonim who adopt a more permissive attitude towards surgery whose major function is to relieve pain. The tendency today seems to be not to consider this type of surgery as "elective" but rather as necessary for the maintenance of a reasonably normal life.

There is adequate precedent in Jewish law for permitting surgical or medical procedures to reduce pain. The author of Shemirat Shabbat Kehilchata59 notes that in talmudic times, the Gemara permitted the practice of bloodletting, which was often done to relieve discomfort. Tosafot60 are of the opinion that living with pain is worse than death.61 And although according to halacha it is not permitted for a son to cause his father to bleed, nevertheless, if the father is in great pain and there is no other doctor available, the Ramo permits the son to operate on his father in order to alleviate his pain.62

Rav Shlomo Zalman Auerbach has ruled that since dental extractions are a commonplace nowadays, they cannot be considered within the category of a "dangerous procedure " and they are definitely permitted. Nishmat Avraham63 further quotes Rav Auerbach as holding that when "everybody" does something, it can't rightfully be considered dangerous, for "G-d watches over the simple." Consequently, there seems to be little opposition nowadays to having surgery to alleviate pain.

Psychological Pain
How severe does the pain have to be in order for halacha to sanction surgery? Does psychological pain qualify as "real" pain? For example, if a person is dreadfully unhappy with his nose or some other physical characteristic, may he or she opt for plastic surgery? If the physical appearance perceived as handicapping a person's opportunities for marriage or for employment, does this have any impact on the halacha?

There are two specific areas of Jewish law which are relevant to the question of this type of "elective" surgery:

First, there is the issur (prohibition) of chavala, causing oneself bodily harm. As we have seen, this is forbidden by the Torah and is so redacted by Rambam and others in the law codes. However, some poskim have found avenues to be lenient in this regard. The Minchat Yitzchak64 maintains that damaging the body is forbidden only if it is done with the intention to cause disgrace (such as punching someone in the nose, or kicking him).65 Since one re-sculpts the nose for the enhancement of the person's appearance and for his benefit, it should be permissible. Chelkat Yaakov permits plastic surgery for a different reason - since a person who is too embarrassed to go out suffers great pain, it is permitted to perform the surgery in order to alleviate this pain.66

The second issue concerns sakana, danger. Jewish law does not permit a person to put his life in danger, and any time a person has anesthesia, there is a certain degree of danger. Minchat Yitzchak writes that he is uncertain how to rule in this regard.67 However, Chelkat Yaakov in his responsum68 considers that if people generally engage in a certain behavior, even if it is dangerous, we cannot prohibit it. Instead, we rely on the assurance that "G-d watches over the simple." Thus, women are permitted to marry and have children, even though there is an element of danger in every childbirth; people fly in planes, even though occasionally there are crashes; etc. therefore, he rules that it depends on the type of procedures, on the doctor, and on the mental state of the patient.

Rav Waldenburg, however, reaches the opposite conclusion. He rails against anyone's daring to change G-d s intentions, and considers that even the slightest danger would put this type of elective surgical procedure beyond the limits of halacha. Can one claim that "G-d made a mistake" when he created someone "ugly?"69 He is adamantly opposed to such an approach. The Book of Proverbs tell us that "grace is false and beauty is vain." The true value of a person is in his G-d-fearing nature, not in his physical appearance!70

We may sum up the conclusions of our investigation as follows:


1. Sota 46b

2. Yoma 82.

3. Shulchan Aruch, Yoreh Deah 339:1.

4. The Ran (Nedarim 40b) writes that it is permitted to pray for someone to die, in order to end his suffering. On the other hand, prayer is not really doing anything; it is not an action, but rather begging G-d to take action. Rav Shlomo Zalman Auerbach writes (Minchat Shlomo 91) that even if the patient is so sick that one is permitted to pray for his death, nevertheless, everything possible must be done to keep him alive, including chillul Shabbat if necessary. See Nishmat Avraham, Orach Chaim p. 134, for the question of traveling on Shabbat to tzaddik, to have him pray for the sick person.

5. Rav Zevin, L'or Hahalacha, 318. Interestingly, Rav Zevin raises the question in the context of discussing whether Shylock's contract to exact a pound of flesh would have been upheld in a Jewish court. He concludes that it could not, for the reason stated. He furthermore expresses amazement at the view expressed by Minchat Chinuch, mitzva 45 who maintains that a person is permitted to give someone else permission to inflict physical damage upon him.

6. Shulchan Aruch Harav, Hilchot Nezikei Haguf, 4. See also Iggerot Moshe, Yoreh Deah III, 140, where Rav Feinstein rules that a person may not donate or sell his body for experimentation after his death

7. Sanhedrin 18:6.

8. Sefer Chassidim 675 writes that when a person does not take proper care of himself it is tantamount to committing suicide.

9. On the other hand, Rabbi Shaul Yisraeli of Kfar HaRoeh thinks that the individual does have certain rights over his own body (Rav Shaul Yisraeli, "Takrit Kibiya Leor Hahalacha," HaTorah Vehamedina, No. 46, pp.71-112). The basic issue he is discussing is the morality of killing innocent non-combatants in wartime. He bases this ruling on a phrase in Rambam, who permits killing a housebreaker, "inasmuch as he [the intruder] is the aggressor, he has already opened himself up to death [hifkir atzmo lemita]" (Rambam, Hilchot Melachim 9:4). In Hilchot Rotzeach 7:8, Rambam employs the same terminology when describing the status of an accidental murderer who was sentenced to be exiled to an lr Miklat but decided to leave that place. Rav Yisraeli argues that if it is not the person's body, how could it be that the thief has already given his life away? How can one give away that which doesn't belong to him? Perforce, he reasons, there must be some measure of "ownership" which an individual does have, although that does not imply that he can destroy it. He draws an analogy to the owner of a tree. Although the tree is his, and he may eat the fruit, he most certainly is not allowed to destroy the tree, as the Torah says (Devarim 20:19).

Still, Rav Yisraeli maintains there is limited control which persons rightfully exercise over their lives. As an example, he notes the conventions of war which most nations of the world have agreed upon. It is recognized by the nations of the world that people killed in wartime are to be considered victims of war, not of murder. These "rules and regulations" of warfare are legitimate boundaries agreed upon by people, delimiting situations where loss of life, while regrettable, is lawful. Rambam rules that nations may enter into such agreements, and Jewish law recognizes their legitimacy, based on the principle "Dina demalchuta dina." Thus, he argues, we see that people have the right to "give their lives away" in some circumstances. Even according to Rav Yisraeli, however, the parameters of this liberty are determined by the Torah.

10. Medical procedures in non-life-threatening situations will be discussed hereinafter. Despite the opinion of Ramban in his commentary to Torah, beginning of parshat Bechukotai, that the proper action to take when a person is sick is to pray for him, it does not seem to be relevant to normative halacha. See Tzitz Eliezer XI, 41.

11. The doctors need not be Jewish; a professional expert is always considered trustworthy, since no expert would endanger his professional status. We therefore need not be concerned about possible prejudices he might harbor. See Nishmat Avraham, p. 185; he also discusses the status of a non-observant Jewish doctor.

12. Yoma 82. Before giving him food, we remind him of the severity of eating on Yom Kippur. Conversely, if a person is very sick and doctors say he must eat, but he refuses, we have to remind him that the Torah has said "However, I will demand [recompense] for your lives," i.e., we warn him that G-d will not forgive his causing his own death by refusing to listen to medical advice. Mishnah Berurah, 608:4. See also Nishmat Avraham, Orach Chaim, p.184, concerning a healthy person who claims he must eat.

13. Volume IV, 67.

14. Avoda Zara 27a.

15. Tosafot's view is not the halacha lema'ase.

16. A modern instance of this attitude is recorded by Rabbi Ephraim Oshry who relates that during the Holocaust, the director of a ghetto hospital begged the rabbi to instruct critically ill patients that they need not and should not fast on Yom Kippur. However, many patients simply refused to follow the medical and rabbinical instructions. Even people who in their entire lives had never observed Judaism and had not professed any Jewishness wished to fast together with the other patients and the rest of the Jewish people. Oshry, Sheilot Uteshuvot Mima'amakim V:4.

17. Iggerot Moshe, Choshen Mishpat 75, n. 3.

18. Ibid, Choshen Mishpat II, No. 72, n. 2. In Yoreh Deah II, 174 part 3, R. Moshe Feinstein forbids keeping a person alive by a machine if he is in great pain. This could be based on a text in Ketubot 36b, where Tosafot express the opinion that had Chananya, Mishael, and Azariah (who were thrown into a burning furnace by the Babylonian king rather than bow to his idol) been threatened with torture, they might have given in. A person is bidden to die rather than transgress the three cardinal sins; but sometimes pain is worse than death.

19. Minchat Shlomo No.91:24.

20. Tzitz Eliezer XV:40, no.4.

21. Sota 20a. The Gemara considers it a z'chut to be alive, no matter how much pain.

22. "Chayei Sha'a" - "a short time" - is defined by the halacha as living less than twelve months. See Darchei Teshuva, Yoreh Deah 155.

23. R. Moshe Feinstein brings this anecdote as part of the rationale for permitting taking a chance, although he wonders why Jewish law follows a precedent set by a group of outcasts. lggerot Moshe Yoreh Deah III:36, n. 14. See also Nishmat Avraham, Y.D. 155: Ahiezer II:15; Binyan Zion I:111; Tzitz Eliezer X:25.

24. Nishmat Avraham, Yoreh Deah 156, in the name of Sefer Hachaim 328. However, Responsa Lev Avraham II:30 is not certain about this ruling. Regarding treatment of internal organs, see Mor U'ketziyah, Orach Chaim 328, and Tzitz Eliezer, Vol. 11, p. 105. See also commentary of Ibn Ezra to Shemot 20:19.

25. Nishmat Avraham, Yoreh Deah 349;1, reports that Rav Auerbach sent him this opinion in a personal letter. Shemirat Shabbat Kehilchata, 328:8, rules that these tests may even be performed on Shabbat.

26. Ramo to Yoreh Deah 155:3; Yam Shel Shlomo, end of "Eilu Tereifot"; Taz, Yoreh Deah 84; Iggerot Moshe Choshen Mishpat 75, n.5. Rav Moshe Feinstein also discusses the halacha if the surgery will leave the patient crippled or deformed.

Rav Feinstein seems to feel that a young person should be pressured into having a procedure which might save his life, but that a mature person should make his own choice.

27. This opinion is found in the Taz, Yoreh Deah 84:24; Magen Avraham 328:1; and shulchan Aruch Harav 328:2. However, Pri Megadim Aishel Avraham I:1 writes that even if the treatment is doubtful, the patient should have it. After all, if there is even a chance that a person's life is in danger, we desecrate Shabbat for him. We see, therefore, that in case of doubt we should take action. Tosafot in Yoma 83a voice a similar opinion.

28. See Avoda Zara 26b.

29. Iggerot Moshe, Yoreh Deah II 75, n.1.

30. Minchat Shlomo, ibid. We are obligated to explain to the patient that every life has value, even a life of pain. See Rambam, Pirush Hamishnayot, Pesachim 4:9. See also Sefer HaRefuah 2.

31. Even if the doctor thinks there is a chance that the operation or procedure will help the patient, he must get approval from the patient or from his family, since "it is possible also that they [the doctors] might make it worse." Therefore, they cannot proceed without approval.

32. Choshen Mishpat, Ibid, n.l.

33. However, he writes, if one gives this patient medication to help him die - he is a murderer.

34. As noted earlier, when death is imminent [gosses], Jewish law forbids touching or moving him, for fear that even the slightest intervention might cause immediate death and thus constitute murder. See Iggerot Moshe, Choshen Moshe II 73:3, which defines the category gosses and also what a non-Jew may be permitted to do with him.

35. He also writes that the patient must be given oxygen even though it does not heal, since it prevents the suffering which would occur if he were unable to breathe. Rav Moshe advises removing the oxygen tube after an hour or two, to observe if the patient is still breathing. If he is, re-insert the tube for another few hours and test again. If the patient is not breathing, we know he has died.

36. Iggerot Moshe, Choshen Mishpat II:73, n.3.

37. See Nefesh Harav, p. 167, n.4, about sending a telegram on Shabbat to a tzaddik to ask him to pray for the sick person.

38. Shulchan Aruch, Yoreh Deah 339.

39. Iggerot Moshe, Yoreh Deah II, ibid.

40. Ibid. Rav Feinstein writes that every gosses is considered to be in great pain (and there is no mitzva to prolog pain), even if the doctors claim that the patient feels no pain.

41. Ibid.

42. See Taz, Yoreh Deah 339:2.

43. YD, ibid.

44. Taking an organ from a healthy person for transplant into a sick person is a separate question. For a full discussion of the many facets of this halachic issue, see the article on organ transplants by Rabbi Reuven Fink in Journal of Halacha and Contemporary Society, Vol. IV.

In setting aside any halacha in order to save a life, Jewish law follows the rule that such violation may occur only when there is "choleh lefanecha, " a sick person actually physically present who needs to be saved.

In Vol.XVII of JHCS, there are a number of articles on how to determine the time of death, an issue highly pertinent to this question.

45. lggerot Moshe, Yoreh Deah II, 134.

46. Sanhedrin, chapter 8.

47. 296, n. 28.

48. Choshen Mishpat 59.

49. Nedarim22a. See also Iggerot Moshe, Orach Chaim II, no. 51.

50. Tiferet Yisrael, Boaz , Yoma, chapter 8, no.3.

51. 50a.

52. That is the position of R. Moshe Feinstein. Iggerot Moshe, Yoreh Deah II, 134.

53. 599, no. 5. See also Noda Biyehudah, tanina, Yoreh Deah 74 and 157.

Apparently, this is the Jewish law also as understood by the Sefer Chassidim (No. 598): If there are two people together and the enemy wants to kill one of them; if one of them is a Torah scholar and one is an ordinary person, it is a mitzva for the ordinary individual to say, "kill me and not my friend"

54. Yoreh Deah 148.

55. Among the sources he cites are the following: Iggerot Moshe, II, 174; Tzitz Eliezer X:25; Minchat Yitzchak V:7; R. Moshe Kasher, Menachem Chalak, 27.

56, Hilchot Chovel Umazik 1. See also Iggerot Moshe, Choshen Mishpat 150, who discusses donating blood for money; also the responsum of Rav Neuwirth, cited in Nishmat Avraham Yoreh Deah, p.265.

57. Mor U'ketziyah 328. See also Chatam Sofer, Yoreh Deah 76; Minchat Yitzchak I 28.

58. In Tzitz Eliezer Vol. IX, 17:6, there is a responsum concerning a patient dying of prostate cancer, which had already begun to spread. The doctors declared that they could not prolong his life, but they said surgery would at least reduce the pain. Permission was granted by the rabbi, even though it could not heal the patient, because even the reduction of pain in itself is a permissible reason to allow surgery; furthermore, it stands to reason that a patient who is not only suffering from a malady but also experiencing great pain, will not be able to survive as well as one who has less pain.

59.Yoreh Deah 190:4.

60. Ketubot 33a, "ilmalei".

61. Cited in Nishmat Avraham, Orach Chaim p.171.

62. Ramo, Yoreh Deah 241:3.

63. Yoreh Deah 155.

64. I:105.

65. Rambam, Hilchot Chovel U'mazik 1.

66. Chelkat Yaakov III:11, based on a ruling in Tosafot, Shabbat 50b, s.v. bishvil.

67. Ibid.

68. Ibid.

69. In Ta'anit 20b, there is an interesting tale concerning someone who made such an assessment.

70. Tzitz Eliezer XI, 42.

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