Jewish jurisprudence differentiates between biblical commandments, which are those deemed to have been directly transmitted by the Creator to Moses, and non-biblical rules.8 Interestingly, Jewish law does not recognize the literal meaning of a verse in the bible, the Torah, as an authoritative statement of law. Indeed, some verses, taken literally, are incomprehensible.9 Instead, Jewish law maintains that an oral tradition transmitted to Moses both amplified and interpreted the written Torah.10 This oral tradition not only contained specific laws and information but also hermeneutical rules to be used to elucidate the Torah.11 According to Jewish tradition, there were a variety of purposes, unrelated to our present subject, for the creation of complementary written and oral traditions.12
Religious persecution of Jews, including orders banning the teaching of Jewish law, threatened preservation of the oral law. In response, a concession was made by ancient rabbinic leaders such that a succinct, incomplete form of the oral tradition, the Mishnah, was put into writing around the year 188 of the common era.13
The discussions and debates of early scholars in academies in Babylon and Jerusalem were separately recorded, forming, respectively, the Babylonian and Jerusalem Talmuds. The Babylonian Talmud was completed later than the Jerusalem Talmud,14 and, because the Babylonian discussions benefitted from knowledge of the Jerusalem Talmud, the Babylonian Talmud is the more influential.15
The writing of the Talmuds, however, was also seen as an allowance warranted only by the exigencies of the times. Consequently, the language of both Talmuds is terse and ambiguous.
Talmudic discussions typically focus on specific cases, which frequently involve relatively unusual - and, therefore, memorable - facts. The mission of a Jewish law scholar is to discern conceptual principles from these paradigms and to use them to reach legal conclusions regarding modern scenarios with quite different facts. Jewish law scholars must not only inspect the thought processes implicit in the questions, answers and statements of each participant in a given Talmudic discussion, but must test hypotheses in light of apparently inconsistent debates elsewhere in the Talmud. In addition, Jewish law recognizes a multi-tiered hierarchy of post-Talmudic commentators whose concerns and opinions must be considered as well. Talmudic sources, as construed by later rabbinic leaders, are regarded as the most authoritative statement of Jewish law.16 Because of various practical constraints, however, this Article cannot identify all of the Talmudic sources relevant to physician-assisted suicide and trace how they have been construed and applied by Jewish law experts. Nor will this Article attempt to introduce novel interpretations of Jewish law or to decisively resolve contemporary debate among Jewish law scholars. Instead, our limited purpose is to explain how Jewish law, as understood by most contemporary authorities, applies to physician-assisted suicide.17
PART II: APPLICATION OF SPECIFIC JEWISH LAW PRINCIPLES TO PHYSICIAN-ASSISTED SUICIDE
Part II-A will articulate the fundamental Jewish law principles pertinent to physician-assisted suicide. Part II-B will study how these principles apply, in light of various possible extenuating circumstances, to the case of a competent patient who, because of intractable pain, wants to end her life.
A. Relevant Jewish Law Principles
As to physician-assisted suicide, the most important Jewish law concerns include:
1. The rules against murder and suicide - and the duty to rescue and to preserve life;
2. A person's lack of a proprietary interest in his life;
3. The general permissibility of medical intervention;
4. The special status of a goses; and
5. The prohibition against giving someone improper advice and enabling someone to violate Jewish law.
1.Murder and Suicide - and the Duty to Rescue and to Preserve Life
One source of the prohibition against murder is found in the verse, "If one spills the blood of a man, one's [own] blood will be spilled."18 Each phrase of the immediately preceding passage, "The blood of your lives will I require; from the hand of every beast will I require it, and from the hand of man, from the hand of a person's brother, will I require the life of man,"19 provides a related rule. "From every beast will I require it" promises punishment to those who incapacitate someone, such as by tying him up, thereby leaving him defenseless to the fatal attack of a wild animal.20 "From the hand of man" assures punishment to those who hire someone to commit murder for them.21 "The blood of your lives will I require" assigns punishment to those who commit suicide. These pronouncements, which refer to heavenly imposed punishment, apply not only to direct acts of murder or suicide, but also to acts which indirectly cause the loss of life.22 Similarly, a variety of verses are cited as sources for the obligation to preserve one's own life and to rescue others.23
Jewish law accords great significance to these rules because it places a supreme value on the life of each individual human being. Thus, in discussing the creation of Adam, the Talmud explains:
[O]nly a single human being was created in the world [at first] to teach that if any person has caused a single soul to perish. Scripture regards him as if he had caused an entire world to perish; and if any human being saves a single soul, Scripture regards him as if he had saved an entire world."24
One cannot kill another person even to save one's own life.25 It does not matter whether the other person is comatose, mentally deranged, physically handicapped26 or terminally ill.27 Similarly, to save one's own life or that of another, virtually all Jewish laws are suspended.28 For instance, despite the religious centrality of the Sabbath, if necessary to save his life, a person must actively do that which would otherwise violate the Sabbath laws.29 Rabbenu Nissim (the Ran), a fourteenth century authority, states that one who, out of a misguided sense of righteousness, fails to desecrate the Sabbath to save his life, "is a murderer and is culpable for [losing] his life."30 Rabbi David ben Shlomo ibn Avi Zimra (the Radbaz), a sixteenth century leader, comments: "There is no righteousness in his refusal, for it constitutes suicide . . . and HaShem [God] will hold him accountable for his [loss of] life."31 Moreover, these rules apply even if a person's life can be only momentarily extended, for each instant of life is of infinite value.32
2.A Person's Lack of a Proprietary Interest in His Life
These rules reflect the belief that life is a responsibility. Man is required to safeguard even his own life, because it is not his "property" to forfeit at will.33 Rather, Jewish law describes man as the Creator's "bailee," charged with living his life to the fullest extent possible.34 This possibly explains the propinquity of the Pentateuchal passages proscribing murder and suicide. A similar rationale underlies both rules.35 Nobody - not a third party and not oneself - is permitted to destroy the life divinely loaned. Quite the contrary, everyone is specifically enjoined to preserve that life and to promote the divine purpose thus served.
On the other hand, man should not assume that he understands what the divine purpose is. Instead, man is supposed to regard life as an intrinsically and metaphysically valuable experience - not as a means to an end. Consequently, man is not entitled to evaluate the "quality" of a life by considering what that life may accomplish.36 Indeed, there exists no system of measurements that is capable of evaluating the quality of a human life.37
Rabbi Bleich, a contemporary scholar, supports this proposition by referring to the Talmudic discussion of the following biblical passage:
In those days Hezekiah was sick unto death and the prophet, Isaiah the son of Amoz, came to him and said unto him, "Thus said the Lord: Command your house, for you shall die and not live."38
The phrase "for you shall die and not live" seems redundant. According to the Talmud, the verse means "you shall die in this world and not live in the world to come." Hezekiah asked why he warranted such a harsh sentence.39 Isaiah responded by saying it was because Hezekiah had not engaged in procreation. To this, Hezekiah replied, "I saw by means of the holy spirit that wicked children would descend from me." Isaiah retorted, "What have you to do with the plans of the All-Merciful? You should do what you are commanded to do and let the Holy One, blessed be He, do that which is pleasing to Him."40
The obligation to procreate is an affirmative commandment. Loss of the opportunity to live in the world to come is not the prescribed punishment for failure to perform an affirmative commandment. The late Rabbi Chaim Shmuelevitz, a twentieth century scholar, explains that the reason the punishment was so severe was because of the reason why King Hezekiah had failed to perform the commandment. Rabbi Shmuelevitz explains that Hezekiah, who the Talmud elsewhere repeatedly and lavishly extols, had improperly impinged upon the province of the Creator. Hezekiah failed to appreciate the relatively limited parameters of personal autonomy with respect to issues of procreation. Consequently, his encroachment into the sphere reserved for Divine decision was regarded as a form of rebellion against the Creator's authority.41
Rabbi Bleich argues that this Talmudic lesson regarding the generation of life applies equally with respect to the protection and preservation of life.42 Indeed, even if a person is so ill that, as discussed further below, some Jewish law authorities believe it would be proper to pray that the Creator take the person's soul and end the person's life, it is nonetheless required to violate the Sabbath - and, if necessary, to do so repeatedly - to try preserve that life.43
There are legal consequences to the principle that man's life is not his to do with what he wants. In a society ruled by Jewish law, the government would compel a person to fulfill his responsibility to safeguard his heath. Thus, in the case mentioned above, where a Jew refuses to violate the Sabbath to save his life, the government would ordinarily compel him to do so. Even in a secularly governed society, most authorities rule that a third party's duty to rescue would theoretically demand that the third party try to force the sick person to violate the Sabbath and save his life.44 Thus, despite the biblical prohibition against eating on Yom Kippur, a person must eat if doing so is necessary to preserve his life. If the person wrongfully abstains, another person should force him to do so.45 One must take such steps even if the risk to life is doubtful.46 Moreover, one must take these steps even when the likelihood of their success is slight47 or even if such success will only preserve life momentarily.48 Nevertheless, as explored in Part II-B, below, additional variables may affect whether a person has a duty to do specific types of things to preserve his life or the life of someone else in a particular case.
3.The General Permissibility of Medical Intervention
Given that Jewish law emphasizes that the Creator should decide matters of life and death, one might think that medical intervention would be perceived as an improper interference with the Divine Will. But this is not the case. The Torah specifically states that, in addition to other liabilities, a tortfeasor must "provide for [the victim's] healing."49 This verse is construed as permitting physicians50 to provide medical treatment.51 Moreover, once such treatment is permitted, it becomes part of the commandment to preserve a person's health an to save a person's life.52 The obligation to treat applies even to those who are terminally ill and who seem unlikely to live for more than a brief period of time.53
Rabbi Bleich asserts that Jewish law does not distinguish between "natural" or "artificial" treatments.54 He argues:
God created food and water; we are obliged to use them in staving off hunger and thirst. God created drugs and medicaments and endowed man with the intelligence necessary to discover their medicinal properties; we are obliged to use them in warding off illness and disease. Similarly, God provided the materials and the technology which make possible catheters, intravenous infusions and respirators; we are likewise obligated to use them in order to prolong life.55
Rabbi Bleich also maintains that Jewish law makes no distinction between "ordinary," "extraordinary," or "heroic" treatment. As a general rule, he argues that any treatment that will preserve a patient's life is required.56 Nonetheless, as discussed in Part II-B, there are authorities who disagree, particularly in instances involving pain or suffering to the patient.
4.The Special Case of the "Goses"
Under Jewish law, a person close to death may have a special status as a goses. The experience of being a goses is referred to as gesisah. According to Jewish law, a very large majority of those who become a goses die within 72 hours.57 Thus, if someone sees that an immediate relative is a goses and then loses contact with that relative for 72 hours, the Jewish laws regarding mourning apply because it is assumed that the goses has died.58 Similarly, although Jewish law does not allow a widow to remarry unless there is proof that her prior husband has died, some authorities rule that testimony that the prior husband was a goses 72 hours earlier is sufficient to permit her to remarry in the absence of more direct evidence of his death.59
With respect to most aspects of Jewish law, a goses is just like any other person.60 Thus, the punishment for killing a goses is the same as that for killing a non-goses.61 There are, however, two specific rules regarding gosesim that have given rise to an important debate both as to the underlying conceptualization of gesisah as well as to specific rules regarding gesisah. First, it is generally forbidden to touch a goses, because, in light of his condition, such touching might hasten the goses' death.62 Second, as Rabbi Moses Isserles (the Rema) states, one may remove "anything that prevents the departure of the soul, such as a clanging noise [such as the sound of a nearby woodchopper] or a grain of salt that is on his tongue . . . since such acts do not quicken death but merely remove an impediment to death."63
According to a number of authorities, the laws regarding gesisah reflect the belief that a person who exhibits certain symptoms is so weak in the three days immediately preceding his death that any unnecessary touching or movement could hasten that death and is therefore prohibited. On the other hand, medical intervention that could prolong the patient's life is not only permitted but required64 to the same extent as it would be required with respect to a person who is not a goses.65 After all, there is no Talmudic source that suggests that the commandments to save someone's life do not apply to a goses. The absence of such a Talmudic source is especially noteworthy given that the Talmud clearly requires that the Sabbath be violated to rescue even those who face imminent death. As to such rescues the Talmud mentions no basis for differentiating gosesim from others who are about to die. Indeed, the particular Talmudic examples may in fact be dealing with people who are gosesim.66
The scholars that believe that it is important to extend the life of a goses must explain why the Rema permits67 the discontinuance of certain actions that prevent a goses from dying. These seem to be two basic approaches.68 The first approach restricts the Rema's rule to actions that do not medically affect the goses' condition but, instead, are merely believed, perhaps mistakenly, to have a metaphysical effect that may keep the goses alive. This position contends that while the religious obligation to preserve life requires resort to established medical therapy, it does not require use of nonscientific practices (segulot).69 The second approach appears to argue that the Rema's rule only applies to the very end of the gesisah period, when a person's soul is trying to escape the body.70 The Talmud suggests that there is pain at the moment of death.71
The Rema72 identifies the symptoms of gesisah as involving the bringing up of secretions in the throat because of certain severe chest problems.73 Some authorities seem to suggest that a person is not a goses unless he exhibits these particular symptoms.74 Even if a person has symptoms of gesisah, he is not a goses unless his condition is irreversibly75 terminal within three days. According to this view, it seems that if a person is expected to live more than three days, it is not assumed that he is so weak that needless touching will hasten his death. Of course, if in a particular case, doctors conclude that the touching of someone who is sick could hasten his death, it would be prohibited to touch him, even if the person did not exhibit the symptoms of a goses. Where someone is a goses, however, Jewish law forbids such unnecessary touching even without a particularized medical diagnosis that such touching could be fatal.
There is some debate among contemporary rabbinic scholars as to whether someone who could only live more than three days through modern medical intervention - such as the use of a respirator - is considered a goses.76 Those who say such a person is not a goses point out that the Jewish laws mentioned above, regarding the laws of mourning and remarriage, must have assumed that a goses would have died within three days despite medical intervention.77 Otherwise, the possibility of medical intervention extending the person's life to beyond three days would have precluded the woman's remarriage without better proof of the husband's death. If, as according to this view, a person is only a goses if it seems clear that he will die within three days despite all available medical technology, the number of modern cases involving gosesim seems relatively small.78
Some other Jewish law authorities appear regard gesisah as a painful period of dying which is not to be prolonged, even by well-established medical intervention.79 One recent, influential scholar, the late Rabbi Moshe Feinstein, would apply this rule even to a comatose goses and even if attending physicians would say that the goses experienced no pain. Rabbi Feinstein asserted that, as the soul detaches itself from the body, a goses experiences a severe metaphysical pain that doctors may simply be unable to detect.80 Indeed, only by positing the existence of such pain could Rabbi Feinstein explain why the Rema would permit the removal of obstacles to a goses' death. According to Rabbi Feinstein, if there were no such special pain, the general commandment to preserve a person's life would obligate a person to place obstacles in the path of a goses' death. The absence of any Talmudic source stating that a goses feels metaphysical pain is, however, problematic for Rabbi Feinstein's position.