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Published online by Cambridge University Press: 24 April 2015
The first part of the article deals with the tension between Divine and human healing in the Bible and the Talmud. The second part focuses on the halakhic status of medical practice and, in particular, the question of whether or not it constitutes the fulfilment of an independent halakhic obligation (mitzvah) in Jewish law. Section three is concerned with the legality of coercive life-sustaining medical treatment and the role played by patient autonomy in this area of the law. The theological aspect of human healing is referred to in section four; and the fifth section is devoted to a discussion of recent Israeli cases involving coercive medical therapy and end of life issues.
Under Biblical law, the victim of an assault is entitled to claim medical expenses from his or her attacker and this proviso provides the basis for the Talmudic ruling that “permission has been given to the physician to heal.” It is assumed that the Bible would not actively condone conduct which does not accord with true faith and hence, it may be inferred from this law that human healing is a religiously legitimate activity and not an act of rebellion against God.
1. Exod 21:19Google Scholar. The relevant phrase in this passage is a suggestive one since it reads “and shall surely heal.” Whilst the context is clearly concerned with the compensation which must be paid to the victim of an assault, this particular phrase could also be construed as laying a charge upon the physician to practice medicine. Hence, it is used by the Talmud as a source for establishing the legitimacy of human healing.
2. Berakhot 60a; Bava Kamma 85a.
3. Rashi explains that without Biblical permission human healing might indeed be considered as an act of rebellion against God (Bava Kamma 85a, s.v. nitnah reshut).
4. Exod 15:26Google Scholar; Deut 32:39Google Scholar.
5. 2 Chron 16:12Google Scholar.
6. Berakhot 60a.
7. See Hagahot R. Zvi Hirsch Chayyes, Berakhot 60a, s.v. R. Abahu which casts doubt on the attribution of this statement to R. Aha.
8. Rashi comments that “they ought not to have occupied themselves with medicine but rather they should have asked God to show them mercy.” (Berakhot 60a, s.v. she'en darkhan). Also see Berakhot 10b, s.v. sheganaz; Pesahim 56a, s.v. veganaz. Rashi consistently explains Talmudic objections to medicine in terms of a lost opportunity for prayer.
9. See note 1.
10. See Sanhedrin 17b in which a scholar is warned against living in a city which lacks a physician and Bava Mezia 85b where the curing of R. Judah the Prince by Samuel is discussed at length. Also see 11 Encyclopaedia Judaica 1181–1183Google Scholar.
11. Kiddushin 4:14Google Scholar
12. See Kottek, S., The Best of Physicians are Destined for Purgatory (Heb), Steinberg, A., ed, 2Sefer Assia 21–26 (Jerusalem, 1981)Google Scholar.
13. See Shabbat 32a; Avodah Zarah 55a; Bayit Hadash, Yoreh Deah 336; Resp. Teshuvah Me'ahayah, 3 Yoreh Deah 336Google Scholar; Resp. Hatam Sofer, Orah Hayyim 177; Resp. Binyan Zion 111; 5 Resp. Divrei Malkiel 35; Resp. Ziz Eliezer, Ramat Rahel 20; Resp. Yehave Da'at 61.
14. Kovez Iggrot Hazon Ish 136. Also see Karelitz's, R.Inyanei Emunah Uvitachon 5Google Scholar.
15. Commentary to the Torah, Leviticus 26:11Google Scholar; compare Ha'adam, Torat, 2 Kol Kitvei Haramban 42 and see note 37Google Scholar. The distinction between physician and patient is criticised by R. Isaac Arama who claims that “it would be illogical to permit the physician to heal while at the same time forbidding the patient to seek a cure” (Akedat Yitzhak, Vayishlah, Gate 26, 201a). In fact, Nahmanides did not say that it is “forbidden” for a patient to see a cure. According to Nahmanides, a patient is not obliged to seek human healing. This does not mean that he is not permitted to do so. Nahmanides' approach is that a person should, in the first place, strive to avoid physicians and throw himself upon God's mercy. Such a step, however, requires great faith, and since most people lack such faith, recourse to physicians is permitted. Nahmanides' distinction is not, therefore, inherently flawed on logical grounds and R. Arama's critique is a rebuttable one.
16. Nahmanides cites the Talmudic statement that “during all the 22 years that Rabbah filled the post of Head of the Academy at Pumpeditha, Rabbi Joseph did not even call a bloodletter to his house” (Horayat 14a; Berakhot 64a). According to Nahmanides, the meaning of this statement is that Rabbi Joseph's great modesty in declining the office of Head of the Academy in favour of Rabbah won him protection from all sickness and disease. This is also the explanation given in Tosafot Harosh, Horayot 14a, s.v. qfilu umna. Rashi, however, explains that the episode illustrates R. Joseph's great modesty in that he did not even want to summon a bloodletter to his house—which would certainly have been justified in the light of his great learning—but went instead to the bloodletter's surgery for treatment. Nahmanides also quotes a late Midrashic aphorism, that is “a gate which is not open for the performance of mitzvot is open for the physician” (Shir Hashirim Rabbah 6:17) in support of the active connection between spirituality and health in post-prophetic times.
17. Commentary to the Torah, Exod 21:19Google Scholar. This distinction is also accepted by Asher, R. Bahya b. in his commentary on Exod 21:19Google Scholar.
18. R. Mat cites the passage describing how Samuel, a prominent Talmudic authority, cured R. Judah, the Prince, of an eye ailment (see note 10) to demonstrate that internal medical procedures are, in fact, legitimate.
19. Matteh Moshe, Amud Gemilut Hassadim 4:3.
20. Mor Ukeziah 328.
21. See notes 68-99.
22. Berakhot 10b; Pesahim 56a.
23. Berakhot 10b.
24. Berakhot 10b, s.v. sheganaz and see note 8.
25. Commentary to the Mishnah, Pesahim 4:10Google Scholar.
26. See Eight Chapters ch 5; Guide for the Perplexed 3:33Google Scholar; Hilkhot Deot 1:4, 20-21; Commentary to the Mishnah, Yomah 8:4Google Scholar, Twersky, I., Halakhah and Science: Perspectives on the Epistemology of Maimonides (Heb), 14–15Google Scholar; Shenaton Hamishpat Ha'ivri 1475, 135–140 (1988–1989)Google Scholar; Sinclair, D., Torah and Scientific Methodology in Rambam's Halakhic Writings, 39 Le'ela 30–33 (1995)Google Scholar.
27. See Hilkhot Avel 14:5; Commentary to the Mishnah Yoma 8:2Google Scholar. In his commentary to Kelim 1:5, he observes that “the halakhah is not in accordance with the view of R. Judah but we inspect each organ individually in accordance with standard medical practice.” Also see his Sefer Harefuot, ch 30. In this context, Maimonides' strong opposition to astrological medicine is worthy of mention (See Hilkot Avodah Zarah 11:12; Resp. Harambam 218; Hilkot Mezuzah 5:4) as is the strong contrast between his view and that of Nahmanides. According to R. Solomon ibn Adret, a student of Nahmanides, the latter used talismans such as the image of a gold tongueless lion in order to cure patients suffering from kidney disease (Resp. Rashba 167, 413 and 652). Nahmanides advocates a qualified acceptance of astrology and his position is probably closer to the codified halakhah than that of Maimonides (see Resp. Ramban 282; Beth Yosef, Yoreh Deah 179; Shulhan Arukh, Yoreh Deah 179:1; Rema and Hagahot Hagra, Yoreh Deah 179:2). Also see Sinclair, D., The Relationship Between the Process of Reasoning and the Legitimacy of Medical Therapy in Medieval Spanish Halakhah in Medicine and Medical Ethics in Medieval and Early Modern Spain, Kottek, S. & Garcia-Ballester, L., eds, 173–188 (1995)Google Scholar.
28. See Eisenstein, J., ed, Midrash Temurah, 2 Ozar Midrashim, 580–81 (1915)Google Scholar.
29. See Birkhei Yosef, Yoreh Deah 336:2; Shevet Yehudah, Yoreh Deah 336.
30. In his discussion of the Book of Cures (see note 25) Maimonides raises the possibility that it was also concealed because the genuine medical information it did contain was subject to abuse.
31. See the observation by R. Karelitz in Inyanei Emunah Uvitahon ch 5.
32. See note 27.
33. In this context, see the discussion of homeopathy in halakhic sources in Rabinowitz, R. Gedaliah, A Responsum Regarding Homeopathy, (Heb) 3 Halakhah Urefuah 249 (1983)Google Scholar; Rosenberg, R. Hayyim, 3 Halakhah Urefuah 244Google Scholar; Resp. Aseh Lekha Rav 5:13Google Scholar.
34. Forcing Medical Therapy on a Patient (Heb) Torah Shebal Peh 33:74 (1992)Google Scholar.
35. See Raziel, R. Moshe, 2 Forcing a Patient to Accept Medical Treatment (Heb) Tehumin 325 (1981)Google Scholar.
36. See notes 1 and 2.
37. Chavel, C., ed, 2 Torat Ha'adam, Kol Kitvei Haramban 41–45 (1964)Google Scholar. For general comments on Nahmanides' Torat Ha'adam, see Kottek, S., Medical Practice and Jewish Law: Nahmanides' Sefer Torat Ha'adam in Kottek, S. & Garcia-Ballester, L., eds, Medicine and Medical Ethics in Medieval and Early Modern Spain 163–72 (cited in note 27)Google Scholar.
38. Deut 22:2Google Scholar; Sanhedrin 73a; Bava Kamma 81b.
39. Perishah, Yoreh Deah 336:4. The influence of the Biblical Commentary upon Torat Ha'adam is, of course, an interesting point for further research.
40. Chavel, C., ed, 2 Torat Ha'adam, Kol Kitvei Haramban at 42–44 (cited in note 37)Google Scholar.
41. The issue of the role of Biblical commentary and aggadah in determining halakhah is an interesting and complex issue which figures extensively in the area of biomedical law. It is worthwhile observing that whilst ibn Ezra's Commentary is certainly lacking in normative halakhic weight (Tashbetz 1:51; Resp. Yehave Da'at 61) Nahmanides' Commentary is treated with much greater respect, undoubtedly as a result of his stature as a halakhic authority. On this point see Sinclair, D., The Status of Medicine and Medical Treatment Against the Will of the Patient, (Heb), 18–19 Shenaton Hamishpat Haivri 270 (1922, 1994)Google Scholar.
42. See note 38.
43. Commentary to the Mishnah, Nedarim 4:4Google Scholar; Hilkot Nedarim 6:8.
44. See Temimah, Torah, Deut 22:2 number 18Google Scholar.
45. See Jakobovits, R. Immanuel, The Law Relating to the Precipitation of Death of a Terminally Ill and Suffering Patient (Heb), 31 Hapardes 18 (1957)Google Scholar.
46. See Elon, M., ed, The Principles of Jewish Law 530–32 (1974)Google Scholar.
47. Makkot 8a; Maimonides, , Hilkhot Rozeah 5:6Google Scholar.
48. Chavel, C., ed, 2 Torat Ha'adam, Kol Kitvei Haramban 42–43 (cited in note 37)Google Scholar; Tosefta, Makkot 2:5; Tosefta Bava Kamma 9:3; Tashbez 3:82; Biur Hagra, Yoreh Deah 336:6.
49. Yoreh Deah 336.
50. Yoreh Deah 336:1.
51. See Bayit Hadash, Yoreh Deah 336 for the significance of the expression “becomes aware” in the formulations of both the Tur and the Shulhan Arukh, and the required causal nexus between treatment and death.
52. See, for example, Tashbez 3:82Google Scholar in which R. Duran observes that “there is a distinction between the cases,” but does not articulate it.
53. Yad Avraham, Yoreh Deah 336:1.
54. Gilyonei Hashas, Berakhot 60a.
55. See Arukh Hashulhan, Yoreh Deah 336:2.
56. See Resp. Avnei Nezer, Hoshen Mishpai 193; Resp. Ha'elef Lekha Shlomoh, Orah Hayyim 351. Also see note 34.
57. See 13 Encyclopaedia Judaica 509Google Scholar.
58. Yoma 8:5Google Scholar. In the same dictum, the Jerusalem Talmud states that one who asks whether or not it is permissible to break the Sabbath in order to save life is considered “a shedder of blood” since during the time it takes to pose the question, the individual concerned could have had his or her life saved.
59. Tur and Shulhan Arukh, Orah Hayyim 328; Mishnah Berurah, Orah Hayyim 618:5.
60. See Resp. Mahari Asad, Orah Hayyim 160; Resp. Maharam Shick, Orah Hayyim 260; Resp. Minhat Yizhak 4:102.
61. Yoreh Deah 155:3.
62. See Hagahot Maimoniot, Hilkhot Ma'akhalot Asurot 12:2.
63. Magen Avraham, Orah Hayyim 339:1. On the relationship between these two criteria, see Shulhan Arukh, Orah Hayyim 328:618; Nishmat Avraham, Yoreh Deah 155:1.
64. Resp. Radbaz 4:1139; Mor Ukeziah 328; Magen Avraham, Orah Hayyim 328:6. Also see Shulhan Arukh Harav, Orah Hayyim 328:11.
65. Rosner, F. & Bleich, J.D., eds, Jewish Bioethics 18–19 (1979)Google Scholar.
66. Tosefta, Shekalim 1:6. A number of commentators on the Tosefta observe that since sacrifices purchased with money not freely given are invalid, there must be some form of retroactive consent in this case. The dominant view amongst the commentators is that once the Israelites whose property had been distrained realized the spiritual benefits accruing to them by virtue of the upkeep of the sacrificial services, they would be happy to ratify their contributions retroactively (See Tosefta Kifeshula Shekalim 1:6 s.v. vekhavanal habrayta). There is, therefore, a notion of constructive consent underlying the coercive principle in relation to sacrifices which ought also to extend to medical therapy. This point is of interest in terms of comparative jurisprudence since the common law also uses the notion of retroactive consent in order to justify non-consensual treatment in cases in which such consent will most likely be forthcoming (See Skegg, P., Law, Ethics and Medicine 115 (1984)Google Scholar. Also, see Israel's Patients Rights Law 1997, § 15(2) (cited in notes 124-26)Google Scholar.
67. See note 63.
68. Mor Ukeziah 328.
69. See notes 17-20.
70. See Mishnah Berurah, Orah Hayyim 328:5; Resp. Ziz Eliezer 15 40: Aseh Lekha Rav 4:64; Resp. Iggrot Moshe, Hoshen Mishpat 2:73-74;
71. Non-Consensual Medical Treatment (Heb), Hazofeh (1991).
72. Compare Metzger, R. Yonah, Is There an Obligation to Force a Patient to Receive Medical Treatment in Jewish Law? (Heb), Hazofeh (1991)Google Scholar.
73. See note 33.
74. Yoma 82a; Shulhan Arukh, Orah Hayyim 328:5, 619:1; Shulhan Arukh Harav, Orah Hayyim 328:12.
75. Prov 14:10Google Scholar.
76. See Urbach, E., Baalei Hatosafot 165–173 (1980)Google Scholar.
77. Piskei Recanati 166; see also Shlomo, E. Ben, Rejecting Medical Therapy on Grounds of Piety (Heb), Assia 49-50, 173 (1990)Google Scholar, in which an attempt is made to explain Riba's conduct as part of a typically Ashkenazic approach to the relationship between medicine and halakhah, and to contrast it with an opposing Sephardic model of behavior in the same circumstances.
78. Resp. Radbaz 3:485Google Scholar.
79. See Israel Medical Association, Biomedical Legal Decisions (Heb), 194 (1989)Google Scholar.
80. The Kibiyeh Incident in the Light of the Halakhah, (Heb) Hatorah Vehamedinah 4–6:109 (1953, 1954)Google Scholar.
81. Resp. Rosh 68:10Google Scholar; Resp. Rivash 484; Tur, Hoshen Mishpat 384; Shulhan Arukh, Hoshen Mishpat 97:15; Zevin, R. Shlomo, Le'or Hahalakhah 318 (1957)Google Scholar.
82. See Jakobovits, R. Immanuel, Some Modern Responsa on Medico-Moral Problems, 1 Jewish Medical Ethics 6 (1988)Google ScholarPubMed.
83. See Avodah Zarah 27b; Resp. Shevat Ya'akov 3:75Google Scholar; Resp. Binyan Zion 111; Resp. Melamed Leho'il 104; Resp. Ahiezer 2:15Google Scholar; Resp. Iggrot Moshe, Yoreh Deah 2:58. The principle that higher risk operations are permitted where the patient will die within twelve months, (see note 86) is articulated in a sixteenth century case involving a year-old baby suffering from a protruding intestine. The doctors recommended an operation and referred the parents to an expert in this type of procedure. Due to the high risk of death, however, the expert insisted that the parents sign a document absolving him of all responsibility should their child die in the course of treatment. The operation was permitted on the grounds that the child was in danger of losing his life in any case and in such circumstances, temporary life may certainly be risked, even if the risk is a very high one, for the sake of a long-term cure (see Darkhei Teshuvah, Yoreh Deah 155:2, 6).
84. Sefer Hahayim, Orah Hayyim 328.
85. Resp.Lev Aryeh 2:35Google Scholar.
86. The halakhic term for a fatally-ill patient who has twelve months or less to live is terefah and a detailed discussion of the nature and significance of this category will be found in the next chapter.
87. See Nishmat Avraham, Yoreh Deah 155:2.
88. Resp. Iggrol Moshe, Hoshen Mishpat 2:73.
89. See Feinstein, R. Moses, Endangering Transient Life for the Sake of a Doubtful Recovery (Heb), 1 Halakhah Urefuah 131 (1980)Google Scholar.
90. Resp. Iggrot Moshe, Hoshen Mishpat 2:73.
91. Id at 2:74.
92. Id at 2:73.
93. See Bava Bathra 147b; 156b and Ketubot 70a.
94. See Skegg, P., Law, Ethics and Medicine ch 2 (1984)Google Scholar; Schloendorff v Society of New York Hospital, 105 NE 92, 93 (NY 1914)Google Scholar.
95. In re Quinlan, 355 A 2d 647 (NJ, 1976)Google Scholar; Cantor, N., Legal Frontiers of Death and Dying (1987)Google Scholar.
96. 179 Cal App 3d 1127, 225 Cal Rptr 297 (1986).
97. 110 SCt 2841 (1990).
98. See Cantor, N., A Patient's Decision to Decline Life-Saving Medical Treatment, 26 Rutgers L Rev 228 (1973)Google Scholar.
99. See Rabinovitch, R. Nahum, All Israel Are Responsible for Each Other, (Heb), 11 Tehumin 56 (1990)Google Scholar who maintain that, at the very most, present-day rabbis could use verbal persuasion in this type of situation. Physical force is beyond the pale of the permitted in contemporary halakhah.
100. See note 34.
101. Seen note 15.
102. Resp. Avnei Nezer (cited in note 56).
103. See notes 17 and 41.
104. Resp. Ha'elef Lekha Shlomoh (cited in note 56).
105. See note 34.
106. Cr. A. 480/85, 527/85, 40 (31 P.D. 673).
107. Id at 697. Bach, J. approached the issue from the perspective of Israel's Protection of Privacy Law, 5741–1981Google Scholar and Anglo-American legal doctrine. In the course of his judgment, however, he also referred to the obligation of the physician to save life (Garti v State of Israel, C.A. 322/63, 18 (21 P.D. 449) and the background in Jewish law to this obligation (Zim Israel Merchant Marine Inc. v Maziar, C.A. 461/62 (17 P.D. 1319)). Also see Sinclair, D., Jewish Law in the State of Israel, 11 Jewish Law Annual 237 (1994)Google Scholar.
108. See Shiloh, S., Comments and Some New Light on the Foundations of Law, (Heb), 13 Shenaton Hamishpat Haivri 351 (1987)Google Scholar.
109. See P. kegg, Law, Ethics and Medicine ch 2 (cited in note 66); Schloendorff v Society of New York Hospital, 105 NE 92, 93 (NY, 1914)Google Scholar; In re Quintan, 355 A 2d 64 (NJ 1976)Google Scholar; Cantor, N., Legal Frontiers of Death and Dying ch 1 (1987)Google Scholar.
110. C.A. 560/88, 48 (11 P.D. 87).
111. The combination of “Judaism and democracy” is referred to in § 1 of Israel's Basic Law: Human Dignity and Freedom Law, 5752-1992 as the basis for resolving conflicts between state laws and democratic rights. Elon, J. held that the Foundations of Law Act, 1980Google Scholar provides the framework for achieving a synthesis of these two values.
112. P.M. 1141/90, K.P.M. 5751 (3) 187.
113. P.M. 759/92 (unpublished).
114. See Attorney General v A, C.A. 698/86, (42(2) P.D. 661); Sinclair, D., Kidney Donations from the Legally Incompetent in Jewish and Comparative Law, 27 Israel L Rev 587 (1993)Google ScholarPubMed.
115. See note 93.
116. See note 91.
117. See Sinclair, D., Patient Self-Determination and Advance Directives, 8 Jewish Law Association Studies 173 (1996)Google Scholar.