Jewish Law Perspectives on Suicide and Physician-Assisted Dying

Steven H. Resnicoff

doi:10.2307/1051469

Jewish Law Perspectives on Suicide and Physician-Assisted Dying

Published online by Cambridge University Press: 24 April 2015

Steven H. Resnicoff

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Unlike nonreligious legal systems, Jewish law (halakha) assumes the existence of an omnipotent, omniscient and benevolent Creator whose purposes cannot always be fathomed. Jewish law also assumes a network of relationships between and among the Creator and all human beings. As a result of these assumptions, there is purpose in every instant of life, for the individual and for the community, even though the purpose is not always readily apparent. Two overarching principles that provide great guidance are G-d's commandments that Jews, individually and collectively, live by his commandments and be holy. This article explores how these assumptions and principles, along with other applicable Jewish law concepts, apply to physician-assisted dying.

Type: Articles
Information: Journal of Law and Religion , Volume 13 , Issue 2 , 1998 , pp. 289 - 349

DOI: https://doi.org/10.2307/1051469 [Opens in a new window]
Copyright: Copyright © Center for the Study of Law and Religion at Emory University 1998

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1. Rabbi Hayam HaLevi Donin aptly describes the term halakha:

Halakha is the overall term for Jewish law … Halakha is practical, not theoretical. Halakha is legal, not philosophical … Halakha asks for a commitment in behavior. It deals with ethical obligations and religious duties … [H]alakha covers every aspect and relationship of life, whether it be between man and man or between man and G-d. Thus the halakha concerns itself not only with those areas that are generally regarded as being in the realm of ritual and religion, but also with those areas that are generally assigned by non-Jewish scholars to the spheres of morality and ethics, or to civil and criminal law.

See Donin, Hayam HaLevi, To Be A Jew 29–30 (Harper Collins, 1972)Google Scholar.

2. According to some Jewish authorities, Divine Names, even when in languages other than Hebrew, are accorded special and limited treatment. See Bleich, David, Contemporary Halakhic Problems 202–06 (Ktav Pub Co, 1977)Google Scholar. Thus, the symbol “G-d” is used to refer to the Creator.

3. Lev 18:5Google Scholar. See Babylonian Talmud, Sanhedrin 4a.

4. Lev 19:2Google Scholar.

5. The Jewish law principles, priorities, and perceptions to be discussed will no doubt inform the contemporary secular dialogue regarding physician-assisted dying. Nonetheless, this Article leaves to others the broader issue as to whether, and if so, how, religious law, qua religious law, ought to influence secular law. See, for example, Bleich, J. David, God Talk: Should Religion inform Public Debate?, 29 Loyola Los Angeles L Rev 1523 (1996)Google Scholar. Similarly, this article does not discuss the many practical problems that might arise even if secular law permitted only those forms of physician-assisted dying that might arguably be allowed by Jewish law. Thus, we will not address the need: (1) to avoid undue influence on patients, whether from family, “friends,” physicians or insurers, see Garzino, Fred R., Undue Economic Influence on Physician-Assisted Suicide, 1 DePaul J Health Care L 537–540 (1997)Google Scholar PubMed; (2) to police physicians to ensure that they do not improperly exceed those practices that would be permitted; and (3) to remain vigilant against political and economic forces that would favor secular legalization of additional practices that would be inconsistent with Jewish law.

6. See Babylonian Talmud, Eruvin 13b.

7. See Mishnah, Pirkei Avot 4:29: “Against your will, you live, and against your will, you will die.”

8. As Rabbi David Ibn Avi Zimra (Radbaz) writes: “a person's soul is not his property; it is the property of the Holy One, Blessed be He, as it is written, ‘And the souls are Mine.’” See Radbaz, , Commentary on Mishneh Torah, Hilkhot Sanhedrin 18:6Google Scholar (explaining that this is the reason why a rabbinical court does not impose corporal punishment based on a defendant's admission of guilt). See also Waldenburg, Rabbi Eliezer, Tzitz Eliezer V, Ramat Rachel 29(1)Google Scholar; Abraham, Abraham S., Euthanasia, in Rosner, Fred, ed. Medicine and Jewish Law 123 (J. Aronson, 1990)Google Scholar; Bleich, J. David, Life as an Intrinsic Rather Than Instrumental Good: The “Spiritual” Case Against Euthanasia, 9 Issues L & Med 139, 144 (1993)Google Scholar PubMed (“[m]an's interest in his life and in his body are subservient to those of the Creator … [I]t is the Creator who is the ultimate proprietor of human life …”).

9. Jerusalem Talmud, Sanhedrin 22a. Contrast to Babylonian Talmud, Sanhedrin 37a, that refers to a “single Jewish soul” rather than simply to a “single soul.”

10. See, for example. Yitzkaki, Rabbi Shlomo(Rashi), Mikrot Gedolot, Lev 20:26Google Scholar:

Rabbi Eliezer ben Azariah says: How do you know that a person should not say, “Pork disgusts me. I do not want to wear clothes made from a combination of wool and linen,” but should instead say “I would like [to eat pork or wear such clothes] but what can I do? My father in heaven has decreed upon me [that I cannot]”? It is learned from the fact the verse says, “I have separated you from the nations to be mine.” [The message is that] “your separation should be for me. Separate yourselves from sin and accept the yoke of the kingship of heaven.”

As Rabbi Haim Shmuelevitz states, a Jew's job is to be G-d's servant, who fulfills the Master's commands without independently evaluating the appropriateness of the command. This is reflected in the Jewish tradition that emphasizes that, when G-d offered the Torah to the Jewish people, they immediately agreed to accept it - before looking to see what it required. See Shmuelevitz, Haim, Sihot Musar 36Google Scholar. Of course, one typically employs one's intellect in analyzing the Torah - and other Jewish law sources - to determine what the divine commandments are.

11. See, for example, Kaplan, Rabbi Aryeh, Handbook of Jewish Thought, vol II, 332–33. (Mozniam Pub. Corp., 1992)Google Scholar

It is extremely difficult to understand why innocent children are born blind or crippled, and are thereby condemned to suffer throughout their lives. It is also difficult to understand why unborn children are taken, or why orphans or the children of the righteous die when there is no parental sin. Likewise, the tortures and brutal deaths of absolute saints are not sufficiently explained …. However, all of these cases must be considered in terms of the overall plan for creation. According to this master plan, every soul that has ever been bom in this world must reach a minimum degree of perfection before G-d. In order to achieve this, many souls must be born or reincarnated more than once. [Citations omitted.]

12. See, for example. Rabbi Yisroel Meir HaKohen, Shemirat HaLoshon, part II, ch 2; Kaplan, Aryeh, The Handbook of Jewish Thought 74 (Vol I of II, Mozniam Pub. Corp., 1979)Google Scholar (“The main immediate benefit of the commandments is in the spiritual realm; obeying the commandments brings a person closer to G-d.”). To become holy, however, it may not be sufficient merely to satisfy the strict letter of the law. See, for example, Nahman, Rabbi Moshe ben (Nahmanides), in Mikrot Gedolot, Lev 19:2Google Scholar (arguing that one may technically comply with all biblical commandments while still leading a “repulsive” life). Nahmanides makes similar comments with respect to the biblical verse directing Jews to do that which is “good and right.” Id, Deut 6:18. Nonetheless, as a general rule, satisfying Jewish law obligations seems at least to represent a minimum condition for holiness.

13. See Mishnah, Pirkei Avot 4:21.

14. See, for example, Weiss, Rabbi Yitzhak, Minhat Yitzhak 5:14Google Scholar; Waldenburg, Eliezer, Tzitz Eliezer XV: 15Google Scholar; Feinstein, Rabbi Moshe, Iggerot Moshe, Yoreh De'ah 1:72Google Scholar.

15. Maimonides, , Mishneh Torah, Hilkhot Teshuva 3:4Google Scholar.

16. Id.

17. The Jewish law prohibition against murder applies equally to those who have but a little time left to live and those who have many years remaining to them. Thus, Babad, Rabbi Yosef ben Moshe, Minhat Hinukh, Commandment 34Google Scholar, states: “Even if [the Prophet] Eliyahu would come and tell us that a particular person will live only an hour or a moment, still the Torah does not distinguish between one who kills a lad who would live many years or one who kills an old man who had little more to live ….” Several modern Jewish law authorities cite this rule as supposed evidence that each Jewish life is of infinite value. See, for example, Abraham, , Euthanasia at 124–25 (cited in note 8)Google Scholar. The fact that the prohibition against murder applies to such a case does suggest that every instant of human life is extremely important. Nevertheless, it does not necessarily mean that each life has an infinite value. The act of killing may be proscribed not only because of the impact it has on the person killed, but also because of the moral corruption it causes the one who kills. Indeed, Jewish law recognizes that a person's character is shaped according to his actions (nifal lifie pe'ulotov). See, for example, HaLevi, Rabbi Aharon, Sefer HaHinukh, Commandment 16Google Scholar.

18. Id.

19. Moreover, Bleich emphasizes that this reasoning is not merely a “slippery slope” argument:

The slippery slope argument seeks to persuade that, although x is morally innocuous, if x is sanctioned it will rapidly lead, through desensitization, inability to make fine and precise moral distinctions, outright malice, or whatever, to y, with y representing something that, at least upon reflection, is clearly unacceptable. The problem with the notion of human life as an instrumental good rather than a bonum per se is not that it creates a dynamic in which acceptance of passive euthanasia today improperly leads to condoning active euthanasia tomorrow but that the two are morally indistinguishable. Hence acceptance of one logically entails acceptance of the other. The intuitive repugnance of the conclusion of this moral syllogism should serve to demonstrate not that the reasoning is faulty but that its major premise is faulty.

See Bleich, , 9 Issues L & Med at 148–49 (cited in note 8)Google Scholar.

20. Id.

21. See Part IV:C.

22. See Part IV:A.

23. Of course, this would not be possible as a practical matter unless the criteria for valuing such lives were known and could be accurately applied.

24. Bleich, , 9 Issues L & Med at 149 (cited in note 8)Google Scholar. Jewish law does not justify actively killing one innocent life to save another. Nevertheless, if a person is in a position to rescue only one of two or more people, Jewish law does set forth rules for determining which person to save. See, generally, Shulhan Arukh, Yoreh De'ah 252:9-11. See, also Rosner, Fred, The Allocation of Scarce Medical Resources, reprinted in Halperin, Mordechai and Priner, Yerucham, eds, The Second International Colloquium on Medicine, Ethics & Jewish Law (Dr. Falk Schlesinger Institute for Medical Halachic, 1996)Google Scholar.

25. Compare, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah 11:174(3)Google Scholar, who states that we must assume that a comatose goses, discussed at Part II:E, experiences “a severe metaphysical pain” even if the attending physicians assure us that the goses feels no such sensation. He writes that the doctors may simply be unable to detect this metaphysical phenomenon.

26. Many provisions of Jewish law apply only to Jews. Nevertheless, Jewish law imposes some obligations, including a prohibition against murder, on non-Jews as well. See generally Rakover, Rabbi Nahum, The “Law” and the Noahides, Jewish Law Association Studies: The Boston Conference Volume 169–80 (Ministry of Justice, Jewish Legal Heritage Soc'y, 1990)Google Scholar; Enker, Arnold N., Aspects of Interaction Between the Torah Law, the King's Law, and the Noahide Law in Jewish Criminal Law, 12 Cardozo L Rev 1157 (1991)Google Scholar; Stone, Suzanne Last, Sinaitic and Noahide Law: Legal Pluralism in Jewish Law, 12 Cardozo L Rev 1157–69 (1991)Google Scholar. But see Babad, Yosef ben Moshe, Minhat Hinukh, Commandment 34Google Scholar (arguing that the Jewish law prohibition against suicide may not apply to non-Jews).

27. See, for example, Maimonides, , Mishneh Torah, Hilkhot Me'elah 8:8Google Scholar.

28. Isaiah 38:1Google Scholar, as translated in Bleich, , 9 Issues L & Med at 141 (cited in note 8)Google Scholar.

29. Babylonian Talmud, Berakhot 10a.

30. See note 67, for the rest of the story.

31. HaLevi, Aharon, Sefer HaHinukh, Commandment 1Google Scholar.

32. Shmuelevitz, , Sihot Mussar at 35 (cited in note 10)Google Scholar.

33. Bleich, , 9 Issues L & Med at 141–42 (cited in note 8)Google Scholar. Ironically, this lesson can also be derived from a situation in which G-d seemed to prescribe the taking of a life. In one of the most dramatic of biblical passages, G-d commands Avraham to bring his son, Yitzhak, as a sacrifice. This instruction seemed to flatly contradict G-d's promise that Avraham's descendants would come from Yitzhak. Moreover, it seemed inconsistent with Avraham's life's work, the performance of merciful acts (hessed) and the sanctification of G-d's name (kiddush HaShem). Yet this was precisely the trial - to see if Avraham could perform his duty despite such logical, emotional and ethical concerns. See generally Shmuelevitz, , Sihot Mussar at 36 (cited in note 10)Google Scholar.

34. HaLevi, Aharon, Sefer HaHinukh, Commandment 34Google Scholar. In carefully circumscribed circumstances, however, Jewish law recognizes that those who are guilty of particular offenses may be killed. See, for example, Elon, Menachem, ed. The Principles of Jewish Law at cols 526–29 (Encyclopedia Judaica, 1975)Google Scholar.

35. Id.

36. Similarly, under Jewish law one is not considered to own one's body. See note 7. This is one reason why it is generally forbidden for someone to injure oneself. See, for example, Maimonides, , Mishneh Torah, Laws of Wounding and Damaging 5:1Google Scholar; Shulhan Arukh, Hoshen Mishpat 420:31; Zalman, Rabbi Shneur, Shulhan Arukh Ha-Rav, Laws of Bodily Damages 4Google Scholar. For the same reason, neither a person - through his last will and testament - nor a person's inheritors can donate his body for medical experimentation. See Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah IV:59Google Scholar (“[n]o person is the owner of his body such that he can order what is to be done [after his death] with his body, or even with one of his limbs, for any purpose - not even for the purpose of furthering medical knowledge. A fortiori, his children and his other relatives [have no such right].”), Yoreh De'ah III:140. See also Bleich, J. David, The Obligation to Heal in the Judaic Tradition: A Comparative Analysis, in Rosner, Fred and Bleich, J. David, eds, Jewish Bioethics 18–19 (Hebrew Pub Co, 1979)Google Scholar. But see Cohen, Rabbi Alfred, Whose Body? Living With Pain, 32 J Halacha & Contemporary Soc'y 39, 43–44 n 9 (1996) (discussing a contrary view)Google Scholar PubMed.

37. Maimonides, , Mishneh Torah, Hilkhot Hovel U'Mazik 5:1Google Scholar. See also Babylonian Talmud, Bava Kama 90b).

38. Maimonides, , Mishneh Torah, Hilkhot Rozeah U'Shemirat Nefesh 2:2Google Scholar. Interestingly, the prohibition of suicide is not learned by an a fortiori logical argument from the ban against wounding oneself. Instead, authorities identify various specific bases for this prohibition. Thus, even the minority view expressed in the Talmud, that a person could wound himself, would agree that suicide is outlawed. See Oshry, Ephraim, Shut MiMa 'amakim I, 46, (1959)Google Scholar.

39. Nonetheless, as a practical matter, personal “choice” may play various roles in Jewish law decisions regarding life and death. For example, as discussed in the text associated with notes 47-52, and at Part IV:C, Jewish law itself imposes parameters on the extent to which a person may be obligated to fulfill certain duties. It is possible that the rules setting such limits are themselves defined by the relative values a person places on such matters as the avoidance of pain or the consumption of his wealth. Similarly, whether a person should undergo certain types of therapy may depend on the person's beliefs as to the therapy's prospective effect. See Gombiner, Rabbi Abraham Abeli, Magen Avraham, Orah Hayyim 328:1Google Scholar (if a patient thinks that he needs a particular food, the Sabbath laws are violated, if necessary, to obtain such food even if the physician believes that the food is). Even if Jewish law might otherwise require certain therapy to be coercively administered, if the patient is strongly opposed so that administration of the treatment may be counterproductive, the treatment may not be pursued. See Part IV:C.

The significance of personal choice, however, is delimited in some circumstances. In some situations, a person may be forced to undergo medical treatment. In addition, there are situations in which many Jewish law authorities would not fully disclose to a patient the details of the patient's condition, thereby preventing the patient from being able to give informed consent. See, generally, Jakobovits, Rabbi Immanuel, Ethical Problems Regarding the Termination of Life, in Meier, Levi, ed, Jewish Values in Bioethics (Human Sciences Press, Inc., 1986)Google Scholar. Herring, Rabbi Basil F., Jewish Ethics and Halakhah For Our Time 477–65 (Ktav, 1984)Google Scholar. Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat II:74(1)Google Scholar.

40. Deut 4:9Google Scholar. See, for example, Maimonides, , Mishneh Torah, Hilkhot Rozeah U'Shemirat Nefesh 11:4Google Scholar; Sofer, Moshe, Hatam Sofer, Yoreh De'ah 326Google Scholar (also citing the verse, Lev 18:5Google Scholar, “and you shall live by [the commandments] …”).

41. Lev 25:38Google Scholar.

42. See Bleich, J. David, Treatment of the Terminally Ill, 30 Tradition 51, 79 n 12 (1996)Google Scholar PubMed (referring to Babylonian Talmud, Bava Metsia 52a).

43. See HaHasid, Rabbi Yehuda, Sefer Hasidim 675Google Scholar:

The blood of your own souls I will seek: … [I]f a person goes to a place fraught with danger [for example, if] during the winter [he treads] on ice which is likely to break [causing his] drowning, or if a person enters a ruin which collapses on him, or if a person quarrels with a violent man who becomes exceedingly angry [and kills him], these people will be punished, for they caused their own deaths.

44. Lev 19:16Google Scholar.

45. See Bleich, , 30 Tradition at 79, n12 (cited in note 42)Google Scholar (citing authorities discussing this argument).

46. Jewish jurisprudence differentiates between biblical commandments, which are those deemed to have been directly transmitted by the Creator to Moses, and non-biblical rules. Non-biblical rules arise in various ways, such as through rabbinic legislation and the development of custom. See, generally, Menachem Elon, Mishpat Ivri; Rabbi H. Chaim Schimmel, The Oral Law. 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. For example, the Torah states that on the holiday of Succot, referred to by some as the “Feast of Tabernacles,” one must perform a ritual involving the waving of certain plants. One of these is referred to as a pri etz hadar, which literally means “a fruit of the glorious tree.” The Torah does not otherwise specify what type of tree is meant. The oral tradition explains that the verse refers to a particular citron, the etrog. Similarly, the Torah uses certain terms without providing their full legal content. For instance, the Torah states that one may not do melakha (“work”) on the Sabbath, see, for example, Exod 31:14Google Scholar, or on certain other occasions, but does not clarify what does or does not constitute “work.” In addition, although the Torah requires ritual slaughtering of certain animals before their meat may be eaten, nowhere does the written text describe the slaughtering process. Instead, it simply states that animals are to be slaughtered “as I have instructed you,” Deut 12:21Google Scholar, implying that detailed directions had been previously transmitted orally. For a fuller discussion of this topic, see Schimmel, H. Chaim, The Oral Law 19–31 (Feldheim Publishers, 1996)Google Scholar; Epstein, Rabbi Barukh, Torah Temimah, on Deut 12:21Google Scholar.

Instead, Jewish law maintains that an oral tradition transmitted to Moses both amplified and interpreted the written Torah. See Elon, Menachem, Mishpat Ivri 1:179Google Scholar. This oral tradition not only contained specific laws and information but also hermeneutical rules to be used to elucidate the Torah. Id at 270; Handbook of Jewish Thought at 181 (cited in note 12). According to Jewish tradition, there were a variety of purposes, unrelated to our present subject, for the creation of complementary written and oral traditions. See Maimonides, Introduction to the Mishnah; Kaplaa, Handbook of Jewish Thought at 178–81 (cited in note 12)Google Scholar.

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. Kaplan, , Handbook of Jewish Thought at 187 (cited in note 12)Google Scholar (citing sources and calculating date). 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. The Jerusalem Talmud was redacted around the year 350 of the common era, while the Babylonian Talmud was not completed until about the year 500. See Fendel, Rabbi Zechariah, Challenge of Sinai at 581Google Scholar. Partly because the Babylonian discussions benefited from knowledge of the Jerusalem Talmud, the Babylonian Talmud is the more influential. See Chiyat, Rabbi Mahritz, Commentary on Babylonian Talmud, Taanit 16aGoogle Scholar; Kaplan, , Handbook of Jewish Law at 234–35 (cited in note 11)Google Scholar. See also Elon, Menachem, Mishpat Ivri 2:901Google Scholar (states that political and other societal factors limited the intellectual investment in the Jerusalem Talmud and asserts that for this reason the Babylonian Talmud is more reliable).

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. See Heller, Rabbi Yom Tov Lipman, Tosafot Yom Tov, Mishnah. Berakhot 5:4Google Scholar; Asher, Rebbenu, Commentary to Babylonian Talmud, Sanhedrin 4:6Google Scholar.

47. See Shulhan Arukh, Orah Hayyim 656:1. Although this is clearly the accepted rule, for a commentator who questions it, see Epstein, Barukh, Torah Temimah, on Gen 28:22Google Scholar.

An interesting question arises as to whether the obligation to use all of one's wealth would require one to draw on his creditworthiness to borrow funds. Rabbi David ben Shlomo ibn Avi Zimra (Radbaz) states that if a Jew is among Gentiles, he must use up all of his money on kosher food rather than eat non-kosher food. Once he has used up his money and cannot afford kosher food, the Jew, because of the duress of needing to eat, can eat non-kosher food if it is available. Radbaz rules that the Jew need not borrow money from Gentiles to purchase kosher food, because, should he be unable to repay the loan, the Gentiles from whom he borrowed may place him in physical danger. See Eger, Rabbi Akiva, Hidushei Rabbi Akiva on Shulhan Arukh, Yoreh De'ah 157Google Scholar. In the United States, at least, the risk of physical harm from being unable to repay one's debt (at least if the debt is not owed to the Mafia) is negligible. Consequently, if the risk of physical danger is the only reason why one need avoid violation of a negative commandment by borrowing, it would seem that in the United States, at least, one would have to borrow before being permitted to violate a negative commandment. One might not, however, be required - or even permitted - to borrow beyond one's expectation to repay, because doing so might violate a different negativecommandment, the one against stealing.

If a person has no money and is unable to borrow money, would he be required to ask for charity rather than eat non-kosher food? In ruling whether a person is required to make a particular sacrifice in order to avoid violating a negative commandment, Rabbi Moshe Feinstein asks whether the sacrifice is greater than the loss of all of one's wealth. Only if the answer is “no” must the person sustain the sacrifice and avoid the violation. See Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II:174(4)Google Scholar. R. Feinstein's responsum is not clear as to whether, when applying this test, one must: (1) evaluate how much these burdens would mean to a hypothetical “reasonable person” rather than to the particular person in question; or (2) evaluate how much the loss of money would mean to the particular person if he had money. Nevertheless, it seems almost certain that under either approach the sacrifice involved in seeking charity would be less than that involved in the expenditure of all of one's resources. If so, one would be obligated to seek charity rather than violate a negative commandment.

48. Id. Rabbi Moshe Isserles states that one need not spend a large amount of money (hon rav) to fulfill a particular affirmative commandment and makes reference to a particular rabbinic decree that one should not distribute more than 20% of one's wealth to the poor. Id. It is unclear precisely how much a person must spend, if an expenditure is necessary, in order to fulfill an affirmative commandment. Rabbi Yehiel M. Epstein seems to believe that one generally need not spend up to the 20% limit. See Epstein, Yehiel M., Arukh HaShulhan, Orah Hayyim 656:4Google Scholar. Some say that, if necessary, a person must spend at least 10% of his wealth. See Karo, Rabbi Yosef, Yosef, Beit, Orah Hayyim 656 (citing this view)Google Scholar. Rabbi Shlomo Luria, however, disagrees and states that if someone is very poor it is possible that, with two exceptions, he need not spend any money in order to fulfill an affirmative commandment. See Gombiner, Avraham Abeli, Orah Hayyim 656(7)Google Scholar. But see HaKohen, Yisroel Meir, Biur Halakha, Orah Hayyim 656 (disagreeing with Rabbi Luria)Google Scholar.

49. In ancient times, there existed a supreme rabbinical court, the Sanhedrin HaGodol, that was the ultimate Jewish law authority. Nonetheless, this institution was dissolved over 1,500 years ago. Since then, Jewish law has lacked any official procedure for resolving differences in opinions among Jewish law scholars. Informal processes, whereby scholars exchange their views privately or in print, have settled debates over many issues. Of course, the more complex the question, the higher the stakes, and the more ambiguous or scant the Talmudic sources, the more difficult it is to reach universal agreement, especially as to the “details.” Thus, there remain important differences regarding many issues relevant to our discussion.

50. Deut 4:9Google Scholar. See, for example, Maimonides, , Mishneh Torah, Hilkhot Rozeah U'Shemirat Nefesh 11:4Google Scholar.

51. Lev 19:16Google Scholar.

52. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II: 174(4)Google Scholar (ruling that this is the source of the duty to rescue and that it is a negative commandment); Shapiro, Rabbi Zvi Hirsch, Darkei Teshuva, Yoreh De'ah 157 no. 57Google Scholar (citing Shut Zera Emet II:51).

53. See generally Eger, Akiva, Hidushei Rabbi Akiva Eger, Shulhan Arukh, Yoreh De'ah 157:1Google Scholar; HaKohen, Yisroel Meir, Mishnah Brurah, Orah Hayyim 656Google Scholar, sif koton 9 (explaining that the more demanding rule applies to an affirmative action contrary to the divine will as opposed to mere inaction).

54. See, for example, Shwadron, Rabbi Shlomo Mordekhai ben Moshe, Shut Maharsham II:54Google Scholar.

55. HaKohen, Yisroel Meir, Ahavat Hessed 20:2Google Scholar (stating one must spend all of one's money to save a life; concluding, based on Babylonian Talmud, Bava Metsia 62a, that although one's life takes precedence over another person's life, one's money does not); Kook, Rabbi Avraham Yitzhak HaKohen, Mishpat Kohen 144(17)Google Scholar (stating one must spend all of one's money to save another's life). See also Uzziel, Rabbi Ben Zion Meir Chai, Piskei Uzziel Bi'She 'elot HaZeman 48 (approving view of Yisroel Meir HaKohen)Google Scholar. Yitzhak Zilberstein discusses various views as to whether one must spend all of one's money to save another's life, and appears to conclude that one need not do so. He nonetheless reasons that one must spend all of one's money to save his own life. His logic is that: (1) one must spend all of one's money to avoid violating a Sabbath prohibition, and (2) one must violate a Sabbath prohibition to preserve his life, even briefly. Consequently, he argues, one must spend all of one's money to preserve his life. See Zilberstein, Yitzhak, Monetary Considerations Regarding the Saving of Human Life, 12:3Assia 50 (1958)Google Scholar. Rabbi Zilberstein's logic is questionable. For example, Jewish law requires the circumcision of a child on the eighth day of his life, even if the eighth day is Sabbath and even if such circumcision involves what would otherwise be a Sabbath violation. Nevertheless, one is not obligated to spend all of one's money in order to perform such circumcision on that Sabbath. In any event, assuming, arguendo, that Zilberstein's logic were valid, it seems that the same logic would require a person to spend all of his money to save the life of another person because: (1) one must spend all of one's money to avoid violating a Sabbath prohibition, and (2) one must violate a Sabbath prohibition to preserve someone else's life, even briefly. Indeed, the classical Talmudic passage that requires violating the Sabbath even to temporarily extend life does not deal with someone's saving his own life but, rather, with someone's violating the Sabbath in order to save another person's life. See Babylonian Talmud, Yoma 85a.

56. See, for example, Gerondi, Rabbi Nissim ben Reuven(Ran), Babylonian Talmud, Shevuot 28aGoogle Scholar (citing Deut 4:9Google Scholar as one of two verses establishing the prohibition against suicide).

57. Gen 9:5Google Scholar. See Maimonides, , Mishneh Torah, Hilkhot Rozeah U'Shemirat Nefesh 2:3Google Scholar. See also Gerondi, Rabbi Nissim ben Reuven(Ran), Babylonian Talmud, Shevuot 28aGoogle Scholar (citing this verse as one of two that establish the prohibition against suicide); , ed, The Principles of Jewish Law at col 477–78 (cited in note 34)Google Scholar. (identifying this verse as the source of the prohibition). Rabbi Yosef ben Moshe Babad identifies this verse as the source for the proscription against suicide and then, saying that this verse does not apply to non-Jews, contends that non-Jews are not forbidden from committing suicide. See Babad, Yosef ben Moshe, Minhat Hinukh, Commandment 34Google Scholar.

58. Exod 20:13Google Scholar. See Bleich, , 30 Tradition at 79 n 12 (cited in note 42) (citing this view)Google Scholar.

59. Id at 86 n 54.

60. Maimonides, , Mishneh Torah, Hilkhot Rozeah U'Shemirat Nefesh 2:2Google Scholar; Rabbenu Nissim Gerondi (Ran), Commentary on Rif, Yoma; Tukazinsky, Rabbi Yehiel Michoel, Gesher HaHayyim I at 269Google Scholar (because life belongs to G-d, there is essentially no difference between killing oneself and killing someone else).

61. Mishnah, Sanhedrin 10:1: “All Israelites have a share in the World to Come, as it is said [Isaiah 60:21]Google Scholar: ‘And all your people will be righteous. They will inherit the land forever. They are the plants of my hands, wherein I am glorified.’”

62. See Babylonian Talmud, Sanhedrin 90a. See also Oshry, Ephraim, Shut MiMa 'amakim I:6, 46–47 (citing various authorities)Google Scholar; Kluger, Rabbi Shlomo, HaElef Lekhah Shlomo, Yoreh De'ah 321Google Scholar; Waldenburg, Eliezer, Tzitz Eliezer 7:49Google Scholar, Kuntras Even Yaakov, ch 1.

63. Shulhan Arukh, Yoreh De'ah 345; Maimonides, , Mishneh Torah, Hilkhot Avel 1:11Google Scholar. See also Babylonian Talmud, Semahot, ch 2:1.

64. The reasons in the text may not be the only explanations why suicide is so strongly condemned. For example, by committing suicide, one also displays ingratitude for the unique opportunities that life offers.

65. Rosner, Fred, Suicide in Jewish Law, in Rosner, Fred and Bleich, J. David, eds, Jewish Bioethics 317, 326–27 (Hebrew Pub Co, 1979)Google Scholar; Tukazinsky, Yehiel Michal, Gesher HaHayyim I at 269Google Scholar.

66. Similarly, a person is compared to a Torah scroll and just as it is a sin to destroy a Torah scroll it is a sin to kill a person. See Tukazinsky, Yehiel Michoel, Gesher HaHayyim I at 269Google Scholar. An analogous concern is reflected in the rule that, although every person executed by the rabbinical court had to be hanged, the person had to be taken down and buried before nightfall. Deut 21:22, 23Google Scholar. To leave a human body hanging longer than that was considered to be an offense to G-d in whose image man was made. See Yitzkaki, Shlomo, Mikrot Gedolot, Deut 21:23Google Scholar. See also Nahmanides, , Mikrot Gedolot, Deut 21:22.Google Scholar

67. In the Talmudic narrative discussed in the text associated with notes 28-30, after the Prophet Isaiah tells King Hezekiah that Hezekiah will soon die, Hezekiah asks to wed Isaiah's daughter. Hezekiah suggests that in light of the combination of his merits and Isaiah's merits resulting from such a union, G-d might change his decree. In response, Isaiah says that it is too late. Hezekiah rebukes Isaiah with these words: “Son of Amoz, complete your business and be gone, because I have a family tradition that ‘though the sword be laid against his throat, let a man never despair of divine mercy,’ as it is said [in Job 13:15], ‘Though He slay me yet will I trust in Him.’” King Hezekiah married Isaiah's daughter and his repentance was divinely accepted. Hezekiah was given an additional fifteen years to live. Friedmann, N.Z., as cited by Herring, , Jewish Ethics and Halakhah at 83 (cited in note 39)Google Scholar, argues that if Isaiah's prognosis, based on accurate, prophetic knowledge of a divine decree, could be changed for the good, certainly one should not despair because of a physician's much less reliable prognosis.

68. See Tukazinsky, Yehiel Michoel, Gesher HaHayyim I at 269–70Google Scholar.

69. Rosner, , Suicide in Jewish Law at 327 (cited in note 65)Google Scholar. The Mishnah explains that Rabbi Yaakov used to say: “Better is one hour of repentance and good deeds in this world than all of the life in the world to come.” Mishnah, Pirkei Avot 4:22. See Bunim, Irving M., Ethics From Sinai II at 152 (1966)Google Scholar:

The Midrash tells that ultimately, when the wicked stand in judgment before the Holy, Blessed One, they will plead, “Permit us, and we will repent.” And the Holy One will reply, “You utter fools, the world in which you lived is like a Friday, and this realm is like a Sabbath. If a man does not prepare [food] on Friday, what will he eat on the Sabbath? Shall he then make his preparations on the Sabbath and thus desecrate it? Only one who has made his preparations beforehand can now eat. And do you not know that the world in which you lived is like the shore, while this realm is like the sea? Do you not know that this realm is like a wilderness, while the world from which you came is like a settlement? If a man does not prepare [food to take along] from the settlement, what will he eat in the wilderness? Again, the world in which you lived is like a sunny season, while this realm is like the rainy season. If a man does not plow in the sunny months, what will he eat when the rains descend? (citing Midrash Mishle vi; Midrash Rabbah, Ecc i, 15Google Scholar; Yalkut Shimoni II, Mishle 938).

See also Avot DeRav Natan, perek 121, Mishnah 8. In addition, many authorities believe that even if the suicide tries to repent before he actually dies from his act, his act of repentance will be ineffective. See Rabbi Yaakov ben Asher, , Arba'ah Turim, Yoreh De'ah 348Google Scholar (citing authorities that contend that such a suicide is similar to a person who tries to become pure by immersing in a ritual bath while holding a source of impurity in his hand).

70. See Tukazinsky, Yehiel Michoel, Gesher HaHayyim I at 269Google Scholar. Interestingly, Herring makes the following argument:

A further reason is adduced for the prohibition of suicide: Every sinner is normally afforded a measure of forgiveness by the very act of death, for death itself is a punishment or deprivation that is taken into account in the heavenly tribunal … But the suicide must be denied even this, for his very death is criminal beyond any atonement by a subsequent act. (Emphasis added)

Herring, , Jewish Ethics and Halakhah at 74 (cited in note 39)Google Scholar. It seems, however, that this argument, without more, is somewhat circular. After all, if suicide were not prohibited, the suicide's death would not be criminal.

71. Rosner, , Suicide in Jewish Law at 326 (cited in note 65)Google Scholar (“stating [d]eath in most circumstances is the greatest atonement for one's sins (Yoma 86); however, in a suicide's death there has been committed a cardinal transgression rather than expiation”). See also Maimonides, , Mishneh Torah, Hilkhot Teshuva 1:4, 2:1Google Scholar.

72. See I Sam 31:1–6Google Scholar; II Sam 1:1–16Google Scholar

73. Although Scripture relates that an Amalekite youth later told King David that he found Saul near death and killed Saul at Saul's request, commentators disagree as to whether the youth was telling the truth. They suggest he may simply have been trying to make himself seem important by claiming to have put Saul out of his misery. See, for example, Rosner, Fred, The Jewish Attitude Toward Euthanasia, in Rosner, Fred and Bleich, J. David, eds, Jewish Bioethics 261 (Hebrew Pub. Co, 1979)Google Scholar.

74. Id.

75. See Babylonian Talmud, Yevamot 78b. Midrash Rabbah, an ancient text that comments on Scripture on a verse by verse basis, contains a statement regarding Saul's action. See Midrash Rabbah, on Gen 34:13Google Scholar. Some have purportedly interpreted it as criticizing Saul's conduct, but this construction seems questionable. See Oshry, Ephraim, Shut MiMa 'amakim I no. 6 (citing this view)Google Scholar. Others explain that it excepts only Saul's conduct from the prohibition against suicide, but does not permit suicides in cases that would seem similar to Saul's. See Herring, , Jewish Ethics and Halakhah at 75 (cited in note 39) (citing this view)Google Scholar. Finally, some seem to construe the Midrashic dictum as approving Saul's suicide as well as suicides in cases similar to Saul's. Id (saying that such a view can be found in Friedmann, N., Nezer Matta'ai 125 (1957)Google Scholar; Da'at Zekainim MiBa 'alei HaTosafot, Mikrot Gedolot, Gen 9:5Google Scholar. In any event, the Talmud is regarded as a more authoritative source regarding Jewish law than the Midrash, which is principally dedicated to homiletical teachings. The Shulhan Arukh, a sixteen century treatise, and the subsequent commentaries thereupon, are even more reliable guides to normative Jewish law.

76. Authorship was initially attributed to Rabbenu Asher (Rosh), a leading 14th-century scholar. Nevertheless, most Jewish law scholars seem to believe that Besamim Rosh was written by a writer who was much more recent and far less authoritative. See, for example, Herring, , Jewish Ethics and Halakhah at 77 (cited in note 39)Google Scholar (mentioning this controversy). See also Sofer, Moshe, Shut Hatam Sofer, Yoreh De'ah 326Google Scholar.

77. Besamim Rosh is quoted as saying that someone who kills oneself because of such reasons is not considered an illegal suicide. See, for example, Eisenstadt, Rabbi Zvi Hirsch, Teshuvah, Pishei, Commentary on Shulhan Arukh, Yoreh De'ah 345:2 (citing authorities)Google Scholar; Tukazinsky, Yehiel Michoel, Gesher HaHayyim I at 273Google Scholar; Sofer, Moshe, Shut Hatam Sofer, Yoreh De'ah 326Google Scholar.

78. Some suggest that two 12th-century authorities, Rabbi David Kimchi (Radak) and Nahmanides, held such views. In his commentary to I Sam 31:4Google Scholar, Radak states:

Saul did not commit a sin when he killed himself. He knew he was anyway going to die in the battle because [the Prophet] Shmuel had told him so … In addition, he saw that archers had spotted him and that he was unable to escape them. It was good that he killedhimself rather than have the uncircumcised [for example, the Philistines] make sport of him.

Rabbi Yaakov Weiner, a contemporary writer, asserts that Radak, “under conditions of certain humiliation, disgrace and torture, … permits the shortening of life.” Weiner, Yaakov, Ye Shall Surely Heal: Medical Ethics from a Halachic Perspective 7 (Jerusalem Center for Research, 1995)Google Scholar. Weiner writes that the Radak “enhances our understanding of the statement of … [Rabbi Hanina ben Teradion], who told his students that ‘It is better [mutav] that the One Who gave the soul should take it.”” (Emphasis in original) Id. Rabbi Weiner argues that Rabbi Hanina did not say that it was prohibited for him to open his mouth and hasten his death, but merely that, for some unstated reason - applicable to a special person such as Rabbi Hanina and not to others - it was “better,” for example, preferable, that Rabbi Hanina not do so. See also Oshry, Ephraim, Shut MiMa 'amakim I:6Google Scholar (noting that it is possible that Rabbi Hanina was acting stringently as a matter of personal piety rather than stating a generally applicable rule).

Nevertheless, Weiner's interpretation is not particularly persuasive. He adduces no evidence for the proposition that the Hebrew word mutav, as used in the Talmud, was intended to signify only a preference rather than an obligation. In addition, by being somewhat less literal in his translation of the Radak, he avoids reference to the “uncircumcised.” Yet the Radak's use of that word arguably supports the position that Saul's case was unique because Saul feared a Hillul HaShem would result from the fact non-Jews would make sport of the Jewish king. Moreover, in explaining Saul's action, Radak emphasizes that Saul anyway knew, through the prophesy of Shmuel, that he was anyway going to die that very day. See also Nathanson, Rabbi Yosef Saul, Sho'el U-Meshiv I, part 1 no. 172Google Scholar (identifying this as the reason why Saul was not to be considered an illegal suicide). This factor certainly differentiates the case of Saul from the case of any contemporary Jew who would consider suicide.

Nahmanides writes that committing suicide was “permitted” to Saul because he feared torture. See Nahmanides, , Writings of the Ramban 84 (Heb., ed, Chavel, 1964)Google Scholar. This same word, “permitted,” is used by Rabbenu Asher ben Yehiel (the Rosh), a fourteenth century scholar, in his commentary (no. 94) to Babylonian Talmud, Moed Katan. Shulhan Arukh, Yoreh De'ah 345:3, states that a person, such as Saul, who commits suicide because of duress is entitled to a eulogy. Rabbi Moshe Rivkes, in Be'er HaGoleh, his seventeenth century commentary on Shulhan Arukh, indicates that Nahmanides is the source for this law. Consequently, if Nahmanides' use of the word “permitted” is interpreted to mean that it was a perfectly appropriate thing for Saul to do, one could argue that suicide would be similarly acceptable for someone suffering from uncontrollable pain.

Noam J. Zohar provides a detailed discussion of Saul's death and of various explanations as to why he should have been eulogized. See Zohar, Noam J., Alternatives in Jewish Bioethics 54–58 (SUNY Press, 1977)Google Scholar. Zohar points out that the former Chief Rabbi of Cairo, Rabbi R.A. ben-Shimon applied the Shulhan Arukh's rule to a sick woman who, being driven by intractable pain, committed suicide by throwing herself out of the window of a building. Zohar asserts that: “We can, then, conclude with confidence that condemnation of such suicide is hardly the only voice in the Halakhic tradition; nor is such condemnation entailed by the tradition's basic values.” (Emphasis added).

Zohar's assertion deserves comment, because ben-Shimon's ruling does not disprove that Jewish law condemns suicide. As presented by Zohar, ben-Shimon merely decided that, post facto, the deceased should not be deprived of customary post-mortem procedures. This is similar to the position of Rabbi Eliezer Waldenburg, who rules that although Saul violated Jewish law when he committed suicide, Saul was still entitled to the usual burial rites. See text associated with notes 84-85. Zohar himself acknowledges that Waldenburg's view, differentiating between Jewish law's a priori and post facto positions, follows a “well-known [analytical] model.” Zohar, id at 55. Furthermore, it is not entirely unclear whether either Nahmanides or Rosh takes a completely lenient view toward suicide, even for a person facing the prospect of terrible pain or imminent death, despite Zohar's correct focus on their use of the word “permitted.” Id at 66-67 n 34. Even if they did mean that Saul's conduct was entirely permitted, their position may be based, at least in part, to the special circumstances surrounding Saul's death, such as the need to avoid a Hillul HaShem.

79. See, for example, Herring, , Jewish Ethics and Halakhah at 77 (cited in note 39)Google Scholar. (“[M]ost authorities likewise disagree with the Besamim Rosh …”); Eisenstadt, Zvi Hirsch, Teshuvah, Pishei, Commentary on Shulhan Arukh, Yoreh De'ah 345:2 (citing authorities)Google Scholar; Sofer, Moshe, Shut Hatam Sofer, Yoreh De'ah 326Google Scholar; Waldenburg, Eliezer, Tzitz Eliezer VIII, Ramat Rachel 29Google Scholar; Luria, Shlomo, Yam Shel Shlomo, on Babylonian Talmud, Bava Kama 8:59Google Scholar; Tukazinsky, Yehiel Michoel, Gesher HaHayyim I at 273Google Scholar; Oshry, Ephraim, Responsa from the Holocaust 34 (Judaica Press, 1989)Google Scholar. Herring, , Jewish Ethics and Halakhah at 76–77 (cited in note 39)Google Scholar, argues that Maimonides also believed that it was impermissible to commit suicide merely to avoid sickness or pain.

80. Babylonian Talmud, Avodah Zarah 18a.

81. Id. Interestingly, Rabbi Hanina promised the executioner a place in the World to Come if the executioner removed the wool and fanned the flames. After a heavenly voice announced that this promise would be fulfilled, the executioner complied - and then jumped into the flames himself. This part of the story seems to suggest that the executioner's fanning of the flames, an affirmative act that hastened Rabbi Hanina's death, as well as the executioner's own suicide were proper. Nevertheless, Jewish authorities explain that one cannot derive any general lessons from this part of the narrative. An examination of the various reasons that they give would, however, exceed the scope of this article. See, for example, Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat II:73Google Scholar and Yoreh De'ah II:173(4).

82. Sofer, Moshe, Shut Hatam Sofer, Yoreh De'ah 326Google Scholar.

83. Tukazinsky, Yehiel Michoel, Gesher HaHayyim I at 273Google Scholar.

84. See, for example, Waldenburg, Eliezer, Tzitz Eliezer VIII, Ramat Rachel 29Google Scholar.

85. There are many technical rules that permit lenient post facto treatment of persons who may in fact be guilty, in the eyes of heaven, for having committed suicide. See, generally, Shulhan Arukh, Yoreh De'ah 345 and commentaries thereto. Interestingly, Rabbi Oshry, in the case discussed in the text, ruled that if the person did in fact commit suicide, he should not be denied any burial rites. See Oshry, Ephraim, Shut MiMa 'amakim I:6 at 52 (1959)Google Scholar.

86. Oshry, , Responsa from the Holocaust at 34 (cited in note 79)Google Scholar.

87. The man also believed that by killing himself in the ghetto he would be able to be buried in the Jewish cemetery rather than have his remains mistreated by the Germans. Id at 34.

88. Rabbi Oshry originally published a multi-volume Hebrew edition of his responsa, entitled Shut MiMa 'amakim (cited in note 85). A condensed one-volume English version, Responsa from the Holocaust (translated by Leiman, Y.), was published in 1989Google Scholar. In the English version, his ruling is clear: “Although the man knew he would definitely be subjected to unbearable suffering by the abominable murderers, and so hoped to be buried among Jews, he still was not allowed to commit suicide.” Id at 34. Although I personally read the longer, Hebrew version of this responsum as reaching this same conclusion as to the a priori impermissibility of such a suicide, see Oshry, Ephraim, Shut MiMa 'amakim I:6 at 52 (cited in note 85)Google Scholar, at least two commentators characterized that responsum as ruling in agreement with Besamim Rosh. See Rosenbaum, Irving J., The Holocaust and Halakhah 39 (Ktav, 1976)Google Scholar; and Herring, , Jewish Ethics and Halakhah at 78 (cited in note 39)Google Scholar. After reading the views of Rosenbaum and Herring, I phoned Rabbi Oshry, who lives in New York. He told me that he had ruled that suicide, even in the circumstances described in his responsum, was a priori prohibited.

89. But see Luria, Rabbi Shlomo, Yam Shel Shlomo, on Babylonian Talmud, Bava Kama 8:59Google Scholar (arguing that Saul was justified because he feared that, were he, the king, to be captured, many would lose their lives unsuccessfully trying to rescue him).

90. Lev 19:2Google Scholar.

91. The Torah clearly connects the holiness of the Jewish people with the emulation of G-d's virtues. Thus, it states: “The Lo-d will establish you for Himself as a holy nation, as He swore to you - if you keep His commandments and follow in His ways.” Deut 28:9Google Scholar. Similarly, it states “After the Lo-d, your G-d, shall you walk …” Id 13:5. See also Hirsch, Samson Raphael, Horeb: A Philosophy of Jewish Laws and Observances 359–60 (Soncino Press, 4th ed 1996)Google Scholar:

He set Himself before you as a model and said: “Follow after Me in love.” To no other being but man did G-d give the eyes to discern Him and to recognize Him. But the purpose of this recognition should be to imitate Him in action, for G-d created you in His image …. As G-d is merciful, so you also be merciful. As He loves and cares for all His creatures, because they are His creatures and His children and are related to Him, because He is their Father, so you also love all His creatures as your brethren … As He is gracious, so you also be gracious … As He is long-suffering, so you also show yourself long-suffering..

92. Lev 22:32Google Scholar. See HaLevi, Aharon, Sefer HaHinukh, Commandment 396Google Scholar; Maimonides, , Mishneh Torah, Hilkhot Yesodei HaTorah 5:1Google Scholar.

93. Lev 22:32Google Scholar. See HaLevi, Aharon, Sefer HaHinukh, Commandment 395Google Scholar; Maimonides, , Mishneh Torah, Hilkhot Yesodei HaTorah 5:1Google Scholar.

94. Lev 18:5Google Scholar.

95. Maimonides, , Mishneh Torah, Hilkhot Yesodei HaTorah 5:2Google Scholar.

96. Id.

97. Maimonides, , Mishneh Torah, Hilkhot Yesodei HaTorah 5:3Google Scholar. Although Maimonides mentions an evil king, the same rule would presumably apply to a different form of evil government.

98. Id.

99. Id at 5:4.

100. Babylonian Talmud, Gittin 57b.

101. The word “mitzva” literally means commandment. Nonetheless, from the fact that Rabbenu Tarn does not use the word “hiyuv” (obligation), he does not appear to think that one is strictly required to kill oneself in such circumstances, but that one who does so acts commendably and is deemed to have fulfilled a commandment.

102. Tosafot, Commentary on Babylonian Talmud, Avodah Zarah 18a, s.v. Vi'al. See also Babylonian Talmud, Bava Basra 3b (Hasmonean woman jumped to her death from a rooftop rather than allow herself to be wed by a slave). In tractate Gittin itself, the commentary of Tosafot seems to cite two justifications for the captives' conduct. See Tosafot, Commentary on Babylonian Talmud, Gittin, 57b, s. v. Kofzu. The first is arguably ambiguous, but could be read as justifying suicide to avoid torture. If so, it might support the view of the Besamim Rosh, cited in the text, unless a distinction is made between pain and suffering that arises naturally and that which occurs as a result of another man's free-will. In any event, the second justification seems to be the same as that given by Rabbenu Tam.

103. See, for example, Herring, , Jewish Ethics and Halakhah at 76 (cited in note 39)Google Scholar. Shmuelevitz, , Sihot Mussar at 36 (cited in note 10)Google Scholar; Newman, Eugene, Life & Teachings of Isaiah Horowitz 190 (1972) (citing historical examples)Google Scholar. Sometimes before killing themselves, parents killed their children to prevent the children from being forcibly converted. This would be consistent with the view, see note 58 above, that killing oneself is a form of murder. Accordingly, just as killing oneself might be permissible as an alternative to forced conversion, killing another might also be permissible. But see Weiner, , Ye Shall Surely Heal at 7–8 (cited in note 78) (questioning this argument)Google Scholar.

104. See, for example. Luria, Shlomo, Yam Shel Shlomo, Bava Kama 8:59Google Scholar (ruling that such killings are prohibited). See, generally, Weiner, Yaakov, Ye Shall Surely Heal: Medical Ethics from a Halachic Perspective at 4–6 (cited in note 78)Google Scholar; HaTosafot, Da'at Zekainim MiBa'alei, Commentary to Genesis 9:5Google Scholar; Karo, Yosef, Beit Yosef, Yoreh De'ah 157Google Scholar.

105. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II: 174(4)Google Scholar.

106. See Abraham, Abraham S., The Comprehensive Guide to Medical Halachah 23–24 (Feldham, 1996) (citing rules and authorities)Google Scholar.

107. Ran, Commentary to Rabbenu Alfasi (the Rif), on Babylonian Talmud, Yoma.

108. See Weiner, , Ye Shall Surely Heal at 4 (cited in note 78)Google Scholar (citing this view of the Radbaz). See also Maimonides, , Mishneh Torah, Yesodei HaTorah 5:1Google Scholar. But see Cohen, , 32 J Halacha & Contemporary Soc'y at 45 (cited in note 36)Google Scholar (citing an early dissenting rabbinic view, which Cohen admits is not reflective of normative Jewish law).

109. See, for example, Rabbi Shlomo Zalman Auerbach, Minhat Shlomo 91. See also HaKohen, Yisroel Meir, Biur Halakha, Orah Hayyim 329:2Google Scholar.

110. As to whether this is because life is instrumentally or intrinsically important, see generally, Part I of this article.

111. See, for example, Asher, Yaakov ben, Tur, Yoreh De'ah 157Google Scholar; Isserlein, Rabbi Israel, Terumat HaDeshen 199Google Scholar. Compare, Yosef Karo, Kesef Mishneh, Hilkhot, Yesodei HaTorah 5:4Google Scholar.

112. See, for example, Maimonides, , Mishneh Torah, Hilkhot Yesodei HaTorah 5:1, 4Google Scholar.

113. For a rabbinic court to apply the biblically prescribed punishment of death, various conditions had to be satisfied. For example, two qualified witnesses had to testify that the wrongdoer was explicitly warned immediately prior to the offense, the matter had to be heard by a court of twenty-three judges, and a conviction had to be reached by a majority of at least two judges. See, generally, Mishnah, Sanhedrin 4:1; Maimonides, Mishneh Torah, Hilkhot Sanhedrin chs 9-12. The authority to impose biblical death sentences ended with the destruction of the Holy Temple in Jerusalem. There are situations, however, in which a religious king of the Jewish nation or Jewish rabbinic authorities may nonetheless be authorized to resort to capital punishment without satisfaction of the conditions for imposition of the biblical sentence. See, for example, Schreiber, Aaron M., Jewish Law and Decision-Making: A Study Through Time 385–86 (Temple U Press, 1979)Google Scholar. (providing translated responsum of Yehuda ben Asher, reportedly published in Zikhron Yehuda no. 58); Isserles, Moshe, Shulhan Arukh, Hoshen Mishpat 425:1Google Scholar (Rabbi Isserles' comments immediately precede those of the Yosef Karo); Elon, Menachem, ed, The Principles of Jewish Law at col 529 (cited in note 34)Google Scholar, as to whether Jewish law permits capital punishment after the destruction of the Temple in Jerusalem.

114. See, for example, id at col 478; Oshry, , Shut MiMa 'amakim at 47–48 (cited in note 85)Google Scholar.

115. Exod 20:12Google Scholar; Deut 5:16Google Scholar.

116. See note 109, as above.

117. Gen 9:6Google Scholar.

118. See, for example. Maimonides, , Mishneh Torah, Hilkhot Rozeah U'Shemirat Nefesh 3:10Google Scholar:

But one who ties up another and leaves him to die of hunger, or ties him in a place in which cold or heat will result in his death … in any of these [cases] he is not liable for capital punishment [imposed by a rabbinic court], but is still considered a murderer. The One that seeks blood will seek from him the blood which he spilled.

119. Id.

120. See Maimonides, , Mishneh Torah, Hilkhot Rozeah U'Shemirat Nefesh 2:2Google Scholar.

121. Maimonides, , Mishneh Torah, Hilkhot Yesodei HaTorah 5:1Google Scholar. See also Abraham, , Guide to Medical Halachah at 23–24 (cited in note 106)Google Scholar (citing rules and authorities).

122. Maimonides, , Mishneh Torah, Hilkhot Yesodei HaTorah 5:2, 7Google Scholar.

123. Babad, Yosef ben Moshe, Minhat Hinukh, Commandment 34Google Scholar (the prohibition against murder applies equally to someone with only a moment to live as to someone with many years to live).

124. See, for example. Fleckeles, Rabbi Eliezer, Teshuvah MeAhavah 1:53Google Scholar (there was an affirmative obligation to preserve the life of a child born with animal-like organs and features); Waldenburg, Eliezer, Tzitz Eliezer 13:88Google Scholar (the lives of children born with severe birth defects must be preserved just as the lives of any other children); HaHasid, Yehuda, Sefer Hasidim 186Google Scholar.

125. Maimonides, , Mishneh Torah, Hilkhot Rozeah U'Shemirat Nefesh 2:7Google Scholar: “There is no difference between a person who kills either a healthy person or one who is ill and dying or even a goses. In all of these cases, the murderer is put to death.”

126. See, for example, Auerbach, Shlomo Zalman, Minhat Shlomo 91Google Scholar.

127. HaLevi, Aharon, Sefer HaHinukh, Commandment 34Google Scholar.

128. See, for example, Waldenburg, Eliezer, Tzitz Eliezer IX, Ramat Rachel 29Google Scholar; Epstein, Yehiel M., Arukh HaShulhan, Yoreh De'ah 331Google Scholar.

129. Gen 9:5Google Scholar, as translated by Bleich, , 9 Issues L & Med at 139 (cited in note 8)Google Scholar.

130. Mecklenburg, Jacob Zevi, HaKetav VeHa Kabbalah 20 (5th ed 1946)Google Scholar, cited by Bleich, , 9 Issues L & Med at 139–40 (cited in note 8)Google Scholar. See also Abraham, , Guide to Medical Halachah at 193 (cited in note 106) (citing sources)Google Scholar.

A number of authorities explain that Jewish law believes that life, even a life with suffering, is in a person's own best interests. To support this proposition, they cite a Talmudic passage regarding a Soteh, a woman accused of adultery under certain specific circumstances. In the times of the Temple, a Soteh might be required to drink a certain potion. Num 5:11–31Google Scholar. If guilty, she would die - but not always immediately. The Talmud explains that if, unrelated to the adultery, the woman had other merits, the potion would cause a degenerative, lingering death. Although this condition would presumably involve physical and emotional pain, it was nonetheless considered a reward in contrast to immediate death. See, for example, Bleich, , 9 Issues L & Med 141 (cited in note 8)Google Scholar, (citing Psalms 118:18Google Scholar, states that this “sentiment … is reflected in the words of the Psalmist: “The Lord has indeed punished me, but He has not left me to die.’”). See also Auerbach, R. Shlomo Zalman, Minhat Shlomo 91Google Scholar; Abraham, Abraham S., Nishmat Avraham, Yoreh De'ah 339(4)Google Scholar. Of course, it may be that a particular person's suffering could exceed the pain involved in a Soteh's lingering death. If so, the case of the Soteh would not prove that continued life coupled with excessive pain would be a boon. As to the general issue whether a life with pain and suffering is considered preferable to death. Weiner, Yaakov, Ye Shall Surely Heal at 33–46 (cited in note 78)Google Scholar.

131. See, generally, Kirschenbaum, Aaron, The Bystander's Duty to Rescue in Jewish Law, reprinted in Golding, Martin P., ed, Jewish Law and Legal Theory (NY U Press, 1993)Google Scholar. Interestingly, this duty extends to saving someone from financial, as well as physical harm. Id.

132. Lev 19:16Google Scholar. See, for example, Bleich, , 30 Tradition at 79 n 12 (cited in note 42)Google Scholar.

133. Deut 22:2Google Scholar. See Babylonian Talmud, Sanhedrin 73.

134. See, for example, HaKohen, Yisroel Meir, Ahavat Hessed 20:2Google Scholar, who argues that although one's life comes before another's life, one's wealth must be sacrificed to save another's life. See also Bleich, , 30 Tradition at 86 n 54 (cited in note 42)Google Scholar (citing Rabbi Avraham Yitzhak HaKohen Kook). But see Zilberstein, Yitzhak, 14:3Assia, 50 (1998)Google Scholar (citing view of Y.S. Eliashiv, stating that the need to spend money to save another's life arises from the verse “if your fellow is missing something, you shall restore it to him,” and that, therefore, one need not spend more than 20% of one's wealth). See note 55, as above for further discussion of Rabbi Zilberstein's position.

135. Deut 22:2Google Scholar.

136. Babad, Rabbi Yosef ben Moshe, Kometz Minhah, Commandment 232Google Scholar. See also Epstein, Barukh, Tosafot Berakha, Lev 19:16Google Scholar (arguing that if a person's terminal, painful condition is such that it would be permissible to pray for his death, one should not rescue him if one sees him drowning himself to end his suffering. Another authority, Rabbi Shlomo Kluger, argues, based on a specific detail regarding the relevant verse, that a person need not rescue someone if the rescue effort would require an act inconsistent with the rescuer's “dignity.” This position is explained and rejected in Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II: 174(3)Google Scholar; Weiss, Yitzhak Yaakov, Minhat Yitzhak V:8Google Scholar.

137. Babad, Rabbi Yosef ben Moshe, Kometz Minhah, Commandment 232Google Scholar.

138. Id.

139. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah 2:174(3)Google Scholar and Yoreh De'ah III:90; Herzog, Rabbi Yitzhak, Heikhal Yitzhak, Even HaEzer 1:3Google Scholar; Waldenburg, Eliezer, Tzitz Eliezer 8:15Google Scholar, Kuntras Meshivat Nefesh, chs 4 and 17, Kuntras Refuah BeShabbat, ch 11 (citing authorities); Yosef, Rabbi Ovadia, Yabbia Omer 8, Orah Hayyim 37 (citing authorities)Google Scholar; Klein, Rabbi Menashe, Mishne Halachoth 8:56, 9:399Google Scholar. See also Weiner, Yaakov, Ye Shall Surely Heal: Medical Ethics from a Halachic Perspective at 41–42 (cited in note 78)Google Scholar.

140. Id.

141. See Arukh, Shulhan, Yoreh De'ah 195:3; 157:1Google Scholar; Maimonides, , Mishneh Torah, Foundations of the Torah 5:1Google Scholar. See also T.B., , Sanhedrin 84aGoogle Scholar; Jakobovits, Immanuel, Medical Experimentation on Humans in Jewish Law, in Rosner, Fred and Bleich, J. David, eds, Jewish Bioethics 379 (Jewish Pub Co, 1979)Google Scholar.

142. See, for example, Auerbach, Shlomo Zalman, Minhat Shlomo 91Google Scholar.

143. Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II:174(3)Google Scholar and Yoreh De'ah III.90; Waldenburg, Eliezer, Tzitz Eliezer 8:15Google Scholar, Kuntras Meshivat Nefesh, ch 4; Yosef, Ovadia, Yabbia Omer 8, Orah Hayyim 37 (citing authorities)Google Scholar; Abraham, , Guide to Medical Halachah at 54 (cited in note 106) (citing authorities)Google Scholar.

144. Bleich, J. David, Compelling Tissue Donations, 27:3Tradition 59–61 (1993)Google Scholar PubMed.

145. Id at 80-82 n 19.

146. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II:174(4)Google Scholar (one may not expose oneself to certain death).

147. Bleich, Contrast, 27:3Tradition at 63 (cited in note 144)Google Scholar (one must donate blood and tissue to save a life and one may have to donate bone marrow) with Waldenburg, Eliezer, Tzitz Eliezer 16:23Google Scholar (Jewish law does not compel donations of more than a revi'it (a maximum of 5.07 fluid ounces) of blood).

148. See, for example, Rakover, Nahum, The One v the Many in Life and Death Situations, in 8 Jewish Law Association Studies (Scholars Press, 1996) (discussing various views)Google Scholar; Azulai, Rabbi Chaim Yosef David, Tov Ayin 18Google Scholar (arguing that one may surrender one's life to save those of a group); Rath, Rabbi Meshulam, Kol Mevasser 1:47Google Scholar (ruling that one may not surrender one's life to save a group).

149. Exod 21:19Google Scholar.

150. Before secular licensing systems, rabbinical authorities were responsible for establishing standards to determine who qualified to practice medicine. See Jakobovitz, Immanuel, Jewish Medical Ethics, 216–17 (Bloch Pub Co, 1967)Google Scholar. Dr. Jakobovitz asserts that “[t]he Jewish system, therefore, would appear to represent the oldest, and certainly the longest established, form of regular control over the practice of medicine.” Id at 217. Once civil authorities implemented licensing laws, rabbinic authorities recognized persons so licensed as qualified as a matter of Jewish law as well. Id (citing authorities).

151. See Arukh, Shulhan, Hoshen Mishpat 336:1Google Scholar. See also Babylonian Talmud, Bava Kama 85a.

152. See Arukh, Shulhan, Hoshen Mishpat 336:1Google Scholar (“if [one who is qualified to practice medicine] refrains from [providing life-saving medical treatment], he is a murderer”). See Babylonian Talmud, Sanhedrin Tia stating that a doctor's duty to treat based on the verses “[d]o not stand idly by your fellow's blood,” Exod 20:13Google Scholar, and “if your fellow is missing something, you shall restore it to him,” Deut 22:2Google Scholar. The detailed rules regarding matters such as which of several available doctors would be obligated to treat, the right to payment for treatment, and liability for improper treatment exceed the scope of this Article.

153. A statement published in Hebrew in 1994 by four leading Israeli authorities, Rabbis Yosef Shalom Eliashiv, Shlomo Zalman Auerbach, Shmuel Ha-Levi Woszner and S.Y. Nissim Karelitz, reads, in part: “According to the law of the Torah it is obligatory to treat even a patient who, according to the opinion of the physicians, is a terminal, moribund patient with all medications and usual medical procedures as needed.” See Bleich, , 30:3Tradition at 58 (cited in note 43)Google Scholar (translating the Hebrew statement). Attached to this statement was a list of medical treatments including “intravenous or gastric feeding, IV fluid replacement, insulin injections, controlled dosages of morphine, antibiotics and blood transfusions.” Id.

Similarly, a statement dated February 29, 1996, was issued by Rabbi Ahron Soloveichik, an American rabbinic authority, stating, in part: “It is my unmitigated, convinced opinion that a doctor must do his utmost to treat terminally ill patients. This is true whether doctors believe that the patient can survive for even an extremely brief period of time, or even if they believe that the patient is brain dead …” Id.

154. Id at 59: “Any distinction between ‘natural’ and ‘artificial’ means of treatment is without precedent in Jewish law.” Rabbi Bleich argues that this position is supported by Maimonides' Commentary on the Mishnah. Id.

155. Id at 61.

156. Id.

157. As an example, consider a case in which a person will surely die soon if he does not take a particular medicine. However, although the medicine may provide a cure, it may also kill him more quickly. If the latter effect is more likely than not, Jewish law authorities differ as to whether the treatment is permissible. Contrast, for example, Grodzinsky, Rabbi Hayyim Ozer, Shut Ahiezer, Yoreh De'ah 16Google Scholar (permissible) with Mishnat Hakhamim (impermissible), cited in Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah 3:36Google Scholar. Interestingly, Rabbi Feinstein himself seems to have ruled both ways on this question. Feinstein, Contrast Moshe, Iggerot Moshe, Yoreh De'ah 2:58Google Scholar (stating that treatment is permissible even if would more likely kill the patient than cure him) with Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah 3:36Google Scholar (opining that treatment is only permissible if it is at least equally likely to cure as it is to kill, but acknowledging that a person could rely on Rabbi Grodzinsky who ruled more permissibly).

158. See, for example, Emden, Rabbi Yaakov, Mor U'Ketzia, Orah Hayyim 328Google Scholar.

159. See, for example, Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat 2:73(9), 74(1)Google Scholar.

160. See, for example, Abraham, , Guide to Medical Halacha at 94 (cited in note 106)Google Scholar.

161. “A person with severe pulmonary disease who requires morphine because of intense pain may be so treated, only if the dose is carefully titrated so as not to cause life-threatening respiratory depression, or if the treatment is accompanied by artificial respiration.” Id (citing sources).

162. Babylonian Talmud, Semahot 1:1-4. A goses is to be distinguished from a treifah:

There is considerable confusion in some circles regarding the distinction between a goses and treifah. A treifah is a person or animal who, either as the result of congenital anomaly or trauma, suffers the loss or perforation of one or more specified organs and, as a result, is presumed to be incapable of surviving for a period of twelve months. The primary import of classification of a human being as a treifah is with regard to punishment for homicide: murder of a treifah, although encompassed within [the] commandment “Thou shalt not kill,” is not punishable as a capital offense. For virtually all other dimensions of Jewish law the status of a treifah [is] no different from that of normal persons. A goses, as defined by Rema, is a moribund person whose demise is imminent. A person suffering from a degenerative, physiological malady may or may not be a goses depending upon his clinical state, but in the absence of congenital anomaly or trauma affecting specific organs, such a person is not a treifah. Moreover, it must be emphasized that, insofar as the obligation to rescue and the obligation to prolong life is concerned, a treifah is treated no differently from any other person. See Iggerot Moshe, Hoshen Mishpat II, no 73, § 4.

Bleich, , Tradition 30:3 at 81 n 23 (cited in note 42)Google Scholar. For our purposes, however, it is unnecessary for the text to focus separately on the laws regarding a treifah.

163. See Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat II, no 75Google Scholar (argues that if someone deemed to be a goses lives more than 72 hours, it is more likely that the person never was a goses than that the person was from the small minority of gosesim that survive more than 72 hours). But see Asher, Rabbenu, Commentary 3:97Google Scholar, on Babylonian Talmud, Moed Katan (gesisah lasts 3 or 4 days).

164. Shulhan Arukh, Yoreh De'ah 339:2.

165. See, for example, Uri, Rabbi Shmuel ben, Beit Shmuel Commentary on Shulhan Arukh, Even HaEzer 17:18 (citing authority) and 17:94Google Scholar. This view, however, is not accepted by the majority of Jewish law authorities. See, for example, Landau, Rabbi Yehezkel, Dagul Mervavah Commentary on Shulhan Arukh, Even HaEzer 17:94Google Scholar.

166. See Shulhan Arukh, Yoreh De'ah 339:1 (“A goses is considered alive for all matters …”). See also Mishnah, Semahot 1:1; Maimonides, , Mishneh Torah, Hilkhot Avelut 4:5Google Scholar.

167. See, for example, Yosef ben Moshe Babad, Minhat Hinukh, commentary on Sefer HaHinukh, commandment 34: “Even if [the Prophet] Eliyahu would come and tell us that a particular person will live only an hour or a moment, still the Torah does not distinguish between one who kills a lad who would live many years or one who kills an old man who had little more to live …” See also Babylonian Talmud, Semahot 1:4; Maimonides, Mishneh Torah, Hilkhot Avel 4:5.

168. See Shulhan Arukh, Yoreh De'ah 339:1; Commentary of Rabbi Shabtai Kohen (Shakh) thereto The goses is likened to a candle whose flame is about to expire. If one places a finger on it, it is extinguished. Babylonian Talmud, Shabbat 151b. There is some disagreement among authorities as to whether touching - without moving - is forbidden.

169. The source of this rule is a statement published by the thirteenth century scholar, Rabbi Yehuda HaHasid, in his work Sefer Hasidim at 723, 173: “[I]f a person is dying and someone near his house is chopping wood so that the soul cannot depart, one should remove the chopper from there …”

170. See, for example, Reicher, Rabbi Yaakov, Shevut Yaakov I:13Google Scholar; Eger, Rabbi Shlomo, Gilyon Maharsha, Commentary to Shulhan Arukh, Yoreh De'ah 339:1Google Scholar; Waldenburg, Rabbi Eliezer, Tzitz Eliezer 8, Ramat Rachel 28Google Scholar; Abraham, Abraham S., Nishmat Avraham, Orah Hayyim 329:4(11) (citing sources)Google Scholar, Yoreh De'ah 339:2 (“stating “so long as it is not clear that the [goses] is definitely dead, he is called a live person for all purposes, and a doctor is obligated to treat him in every way that is possible and appropriate … even if there is only a small chance that the patient will remain alive and even if the patient may stay alive for only a short while.”).

171. See Part IV of this article as to possible limitations on the obligation to preserve life.

172. For instance, the Talmud states that it is permissible to violate the Sabbath by digging out a person on whom a wall had fallen even after initial digging revealed that the person had a crushed skull, that the person would die extremely soon and that continued digging would only momentarily extend his life. Babylonian Talmud, Yoma 85a. This law, memorialized in Shulhan Arukh, Orah Hayyim 329:4, certainly seems to be describing a person who would surely die within 3 days. Consequently, according to any authorities who do not require the precise symptoms specified by the Rema, see note 177, infra, this person with a crushed skull would seem to be a goses. Moreover, it seems quite possible that this person with a crushed skull might also have the Rema's symptoms.

173. In his earlier work, the Darkei Moshe, Yoreh De'ah 339(1), the Rema, apparently approvingly, cites an authority forbidding someone to commence such an action. In his commentary to the Shulhan Arukh, Yoreh De'ah 339:1, the Rema does not seem to retreat from this position. Instead, he appears to focus on a person who did not initiate the action and states that such a person may put a stop to it. Rabbi Waldenburg indicates that a person responsible for the wrongful commencement of the action may be obligated to terminate the action. See Waldenburg, Eliezer, Tzitz Eliezer 8:89Google Scholar.

174. See, for example, Bleich, J. David, The Quintan Case: A Jewish Perspective in Rosner, Fred and Bleich, J. David, eds, Jewish Bioethics 275 n 2 (Hebrew Pub Co, 1979)Google Scholar (describing these distinctions). Some commentators use language which purports to provide a third approach which distinguishes between procedures that strengthen the body, which are required, and those that “merely” preserve the status quo, which the Rema supposedly proscribes. The problem, however, is that preserving a patient's life is an important feat and, according to the authorities whose views this part of the text discusses, any established medical procedure that preserves life is required. At least one author seems to conflate this apparently illegitimate distinction - between treatments that enhance one's condition versus those that “merely” preserve one's life - and the apparently legitimate distinction between scientific and nonscientific practices - described in the immediately following text. See, for example, Weiner, , Ye Shall Surely Heal at 31 (cited in note 78)Google Scholar (“stating [m]edical treatment strengthens the body and prevents a goses from deteriorating towards death (as compared, for example, to salt on the tongue which only metaphysically prevents the soul from departing, but which has no physically ameliorative effect on the body, such as strengthening it.”).

175. Bleich, , 30 Tradition at 69–70 (cited in note 42)Google Scholar.

176. See, for example, Waldenburg, Eliezer, Tzitz Eliezer 8:89(14)Google Scholar. One might think this position to be problematic. After all, the Rema refers simply to a goses and seems to set forth his rule regarding the entire period of gesisah. If special rules are to apply only at the end of the period of gesisah, it would seem essential for the Rema to enumerate criteria for determining when gesisah is about to end. Rabbi Weiner's position, which combines the two approaches mentioned in the text, may implicitly answer such objections. Weiner argues not only that the effect of the actions identified by the Rema are metaphysical rather than medical but that, even if initiated at an earlier part of the gesisah period, the actions have their metaphysical impact at the end of gesisah. The actions are therefore prohibited at any time during gesisah because of their ultimate effect. See Weiner, Yaakov, Insights on the Treatment of the Terminally Ill, Jerusalem Forum on Medicine and Halacha, Report #5Google Scholar.

177. See Bleich, , 30 Tradition at 85 n 47 (cited in note 42)Google Scholar (discussing Babylonian Talmud, Yoma 20b).

178. See Part 4:C: 1, of this article.

179. Rema, Shulhan Arukh, Even HaEzer 121:7 and Hoshen Mishpat 211:2.

180. Commentators disagree as to the Rema's meaning. Rabbi Bleich, for instance, translates the Rema as referring to a patient who “brings up secretion in his throat on account of the narrowing of his chest.” Bleich, , 30 Tradition at 63 (cited in note 42)Google Scholar. In a phone conversation with this author, Bleich described the secretions as saliva and stated that the goses experiences difficulties in swallowing. Another contemporary writer, however, identifies the secretion as phlegm and states that the goses experiences problems in breathing. See Weiner, , Ye Shall Surely Heal at 25 (cited in note 78)Google Scholar. See also Friedman, Rabbi Fred, The Chronic Vegetative Patient: A Torah Perspective, 26 J Halacha & Contemporary Soc'y 88, 99 (1993)Google Scholar PubMed (stating that the “current pathophysiological explanation would be a person who is asphyxiating on his own secretions which accumulate in the airway”).

181. Rabbi Bleich, for instance, states that the Rema's description is a “necessary criterion of gesisah.” Bleich, , 30 Tradition at 63 (cited in note 42)Google Scholar. See also the following statement of Rabbi Ahron Soloveichik, “The situation of a goses does not even have to be considered since today very few, if any, patients manifest the symptoms of a goses.” (quoted in Bleich, id at 58). The late Rabbi Moshe Feinstein, however, is ambiguous as to whether someone could be a goses even if he does not have the symptoms described by the Rema. Rabbi Feinstein states that he has heard that most doctors are unfamiliar with the signs of gesisah. Nevertheless, Rabbi Feinstein neither recites the symptoms identified by the Rema nor refers doctors to die Rema's words in the Shulhan Arukh. Instead, Rabbi Feinstein asserts that members of local Jewish burial societies are familiar with such symptoms because they are often around people who are dying (perhaps because these same people frequently visit the sick). Rabbi Feinstein suggests that doctors could learn these symptoms, too, if they if they would spend time with patients who were near death. See Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat 2:73Google Scholar. Consequently, it is possible that Rabbi Feinstein's position is that anyone whose clinical profile, as observed by those who are experienced with people who are dying, conclusively indicates that he will die within three days is a goses.

182. Shmuel, Yaakov bar, Shut Beit Yaakov 59Google Scholar, as cited by Bleich, , 30 Tradition at 81–82 n 27 (cited in note 42)Google Scholar.

183. See, for example, Bleich, , 30 Tradition at 64 (cited in note 42)Google Scholar. Rabbi Bleich argues that Rabbi Moshe Feinstein agrees with him on this point. Id at 82 n 31. See also Bleich, , The Quintan Case at 108 n 2 (cited in note 174)Google Scholar. Compare, Steinberg, Abraham, Encyclopedia Halakhatit Refuit, vol 4, col 371 n 149Google Scholar (stating that he heard from Rabbi Shlomo Zalman Auerbach that, in light of the ability of modem technology to keep patients alive for more than three days, it is often not possible to characterize a particular patient as a goses); Abraham, Abraham S., Nishmat Avraham, vol 4, 138Google Scholar (reporting that contemporary scholar Rabbi Y.S. Eliashiv stated that he considers a vegetative, respirator-dependent patient to be a sofek-goses (possibly a goses and possibly already dead) and therapy should not be withheld). But see Rabinowitz, Rabbi G.A., 3 Halakha and Refuah 102 et. seq.Google Scholar (arguing that in light of modem technology, a person may be a goses even though he survives for many more than 3 days), cited in Steinberg, Abraham, Encyclopedia Halakhatit Refuit, vol 4, col 371 n 149Google Scholar; Friedman, , 26 J Halacha & Contemporary Soc'y at 100–01 (cited in note 180)Google Scholar.

184. See Bleich, , 30 Tradition at 64 (cited in note 42)Google Scholar.

185. The number of gosesim is especially small according to those who believe that a person can only be a goses if she exhibits the specific symptoms cited by the Rema.

186. See Shmuel, Yaakov bar, Shut Beit Yaakov 59Google Scholar; Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II:174Google Scholar.

187. See Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah 2:174(3)Google Scholar.

188. Gen 4:9Google Scholar.

189. In addition to the commandment not to rescue someone, there are also various duties to provide charity. See, for example, Maimonides, , Mishneh Torah, Hilkhot Evyonim 7:1 et seq.Google Scholar

190. See, for example, HaHasid, Yehuda, Sefer Hasidim 93, 233, 601Google Scholar.

191. See, for example, Kaplan, , Handbook of Jewish Thought II at 136–37 (cited in note 12)Google Scholar:

When a single Jew sins, it is not he alone who suffers, but the entire Jewish people. In the Midrash, this is likened to passengers on a single huge ship. Though all the passengers may be very careful not to damage the hull, if one of them takes a drill and begins drilling holes under his own seat, the ship will sink, and all will drown. In the same manner, whenever any Jew does not keep the Torah, all others are affected spiritually. Such actions may even precipitate physical suffering for the Jewish people. [Footnotes omitted]

192. Lev 19:17Google Scholar. See also Shulhan Arukh, Orah Hayyim 608. Some commentators explain that this obligation comprises two elements. The first is a duty to gently admonish someone who has violated, or seems about to violate, Jewish law - and, according to many authorities, applies even if the person admonished will not alter his conduct. The second, based on the interrelationship established by the biblical oaths the nation took on Mounts Eval and Gerizin, requires more vigorous action to prevent another from breaching Jewish law. See Weiss, Yitzhak, Minhat Yitzhak III:79Google Scholar; Shick, Moshe, Maharam Shik, Orah Hayyim 303Google Scholar. But see Waldenburg, Eliezer, Tzitz Eliezer 17Google Scholar, Kuntras Refuah BeShabbat, perek 11. See generally, HaHasid, Yehuda, Sefer Hasidim 93Google Scholar:

All Jews are responsible for each other. If it were not for this responsibility a person would not admonish his fellow about his fellow's sins and he would not pay attention to find out who is a transgressor [and take steps to stop them] …

193. Babylonian Talmud, Sanhedrin 27a: “A person dies because of the iniquity of his brother - to teach you that everyone is responsible for each other. That is where it was possible for them to [effectively] admonish the wrongdoers and they did not do so.” See also Isserles, Moshe, Shulhan Arukh, Yoreh De'ah 157Google Scholar.

194. An unknowing violation is a less serious breach of Jewish law. Shulhan Arukh, Orach Hayyim 608. This sort of situation might arise, for example, when B is so certain that what he is doing is permitted that he will not pay any heed to A (especially if B believes that A is much less learned than he about Jewish law).

195. In this situation, B is already violating Jewish law knowingly. Consequently, the argument that “it is better for a person to violate unknowingly rather than knowingly” does not apply.

196. See, for example, HaKohen, Yisroel Meir, Mishnah Brurah, Orah Hayyim 608:7Google Scholar. See also Isserles, Moshe, Shulhan Arukh, Yoreh De'ah 157, 334Google Scholar, and Hoshen Mishpat 12. One might expect that a person would be required to spend up to 20% of his wealth to fulfill the affirmative biblical obligation to admonish another. See notes 46-55 and accompanying text, supra; Yaakov Weiss, Minhat Yitzhak V:8. Nevertheless, Moshe Isserles, supra, who cites Rabbi Asher Weil, seems to rule that a person need not spend any money to fulfill the duty to admonish. See Weil, Asher, Shut Mahariv 157Google Scholar. See generally. Eisenstadt, Zvi Hirsch, Teshuvah, Pishei, Yoreh De'ah 157, sifkoton 5Google Scholar (citing various views, including one that suggests a possible obligation to spend all of one's money to fulfill this duty) and Yoreh De'ah 334, sifkoton 19.

197. See, for example, HaKohen, Yisroel Meir, Biur Halakha, Orah Hayyim 608Google Scholar, s.v. Aval (citing various authorities); Epstein, Yehiel M., Arukh HaShulhan, Orah Hayyim 608:7Google Scholar. If, however, you may convince such a person to do the right thing, some say that you must try to do so. See, for example, Babad, Yosef ben Moshe, Minhat Hinukh 239Google Scholar.

198. Kaplan, , Handbook of Jewish Thought II at 151 (cited in note 12)Google Scholar (citing authorities, some of which admittedly do not seem to support the precise statements made in his text). A number of poskim indicate that many contemporary Jews, especially those raised by non-observant parents, should be considered to be such “child-abductees.” See, for example, Reisman, Rabbi Yisroel, The Laws of Ribis 98 note 17Google Scholar (citing Rabbis Shimon Grinfeld (Maharshag) and Avraham Isaiah Karelitz (Hazon Ish) for the rule that non-observant Jews who were not raised in an orthodox home must be treated just as observant Jews regarding prohibitions concerning interest-bearing loans). See also Ettlinger, Rabbi Yaakov, Binyon Tziyon HaHadashot 23Google Scholar; Hoffmann, Rabbi David Zvi, Melamed LeHoyel, Orah Hayyim 5, 29Google Scholar; Karelitz, Avraham Isaiah, Hazon Ish, Yoreh De'ah, Hilkhot Sheitah 2:16Google Scholar; Weinberg, Rabbi Yehiel Yaakov, Seridei Eish 11:10Google Scholar; Sternbuch, Rabbi Moshe, Teshuvot VeHanhagot, vol 1, Orah Hayyim 132, 319 and 363Google Scholar; Koenig, Rabbi Chaim, Shut Hukei Hayyim Nishmat Sarah, vol 4, Hoshen Mishpat 20 (citing authorities)Google Scholar; Henkin, Eliyahu, Kitvei haGrayah Henkin I at 103Google Scholar; Sternbuch, R. Moshe, Teshuvot VeHanhagot I:363Google Scholar (most irreligious Jews today are like children who were abducted); Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II:52Google Scholar (they are treated as unintentional violators because they are as children who were kidnapped by Gentiles); Auerbach, Shlomo Zalman, Minhat Shlomo II:97(5)Google Scholar (it is prohibited to help a person who has the status of a “kidnapped child” to commit a transgression). In a letter (on file with the author) dated 29th day of Menachem Av, 5758 (1998), a contemporary Israeli posek, R. Ezra Basri writes that “[T]he non-religious are regarded [literally, ‘have a din'] as people who were kidnapped like children just as the Hazon Ish writes.” Some authorities argue that there is an obligation to rebuke modern irreligious Jews, because some may well respond positively to such admonition. See Weiss, Yitzhak, Minhat Yitzhak IV:79 (citing authority)Google Scholar. But see Silber, Binyomin Yehoshua, Az Nidabru IX:55Google Scholar; Weiss, Yitzhak, Minhat Yitzhak III:79Google Scholar (using the distinction between observant and non-observant Jews as one of several reasons which, taken together, warranted the leniency of not requiring one to openly object to another's purchase of goods produced by non-observant Jewish workers, even when the purchase might “cause” such non-observant Jews to work on the Sabbath); Yosef, Ovadia, Yabia Omer II, Orah Hayyim 15Google Scholar.

199. Maimonides, Sefer HaMitzvot, Mitzvot Aseh 205. See Nahmanides, , Mikrot Gedolot, Deut 27:26Google Scholar, who says that if one does not prevent others from sinning, the verse, “Cursed is the man who does not uphold all the words of this Torah,” applies to him. See also Kaplan, , Handbook of Jewish Thought II at 151–53 (cited in note 12)Google Scholar. Rabbinic authorities disagree as to whether the duty to stop someone from sinning, as opposed to the obligation of admonishing a sinner, is biblical or rabbinic. See, for example, Sofer, Rabbi Moshe, Ketav Sofer, Yoreh De'ah 83 (citing these views)Google Scholar; Belzer, Yitzhak, Pri Yitzhak I:53Google Scholar (printing a responsum of Rabbi Naftali Amsterdam discussing these views and concluding that the duty is biblical).

200. See, for example, HaHasid, Yehuda, Sefer Hasidim 405Google Scholar; Arukh, Shulhan, Yoreh De'ah 334:48Google Scholar, Hoshen Mishpat 12:1.

201. Contrast, for example, Leib, Rabbi Aryeh, Kitzot HaHoshen, Hoshen Mishpat 3:1Google Scholar (arguing that only courts could coerce individuals to perform affirmative commandments) with Yaakov, Rabbi, Nitivot HaMishpat, Hoshen Mishpat 3:1Google Scholar (contending that individuals had the right to coerce other individuals to perform such obligations). In what seems to be clearly a minority view, one modern commentator, Rabbi Shilo Refael, is said to argue that only a religious court composed of a judges with special authorization transmitted in a direct line from Moses, such judges are called “simuhim,” would be permitted to use such coercion. See Povarsky, Haim, Is Euthanasia Permissible Under Jewish Law?, Jewish Law Report 23 (08 1994)Google Scholar (describing Refael's position). But many Jewish law authorities who lived long after this special authorization ceased to be transmitted have held that coercion could be used to force people to take medical treatment. See, for example, Gombiner, Avraham Abeli, Magen Avraham, Orah Hayyim 328 (6)Google Scholar (“if the patient refuses to accept the prescribed treatment [because doing so would desecrate the Sabbath], we compel him to do so”); Abraham, , Guide to Medical Halachah at 53 (cited in note 106)Google Scholar (citing authorities).

202. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah IV:24(4)Google Scholar (if there is much more than a 50% chance that surgery will cure the patient who will otherwise die, there is an obligation to do the surgery even against the patient's wishes); Hoshen Mishpat II:73(5) (same). See also Abraham, , Guide to Medical Halachah at 23 (cited in note 106)Google Scholar (citing authorities).

203. Lev 19:14Google Scholar.

204. Interestingly, there is a debate among Jewish law authorities as to whether or not this prohibition also applies to the literal case in which one places a physical obstacle in front of a person who is visually impaired. See, generally, Adler, Yitzhak Eliyahu HaKohen, Lifnei Iver 15–18 (Ofakkim, 1988) (citing various views)Google Scholar.

205. See generally Steven H. Resnicoff, Helping a Client Violate Jewish Law, in Hannah Sprecher, ed, Jewish Law Studies (forthcoming).

206. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah I:3Google Scholar (causing another to sin is not prohibited because it is a wrong against the sinner but because it is a wrong against the Almighty); Orah Hayyim V:13(9).

207. See note 26, as above.

208. As a general proposition, Jewish law does not recognize an agency relationship between a person who directly violates Jewish law and some other person. Instead, Jewish law asserts that there is no agency with respect to wrongdoing. See Babylonian Talmud, Kiddushin 42b; See also Epstein, Yehiel, Arukh HaShulhan, Hoshen Mishpat 182:9–13Google Scholar. See, generally, Levinthal, Israel Herbert, The Jewish Law of Agency, in Gershfield, Edward M., ed, Studies in Jewish Jurisprudence at 51–58 (Hermon Press, 1971)Google Scholar.

209. See, for example, Arukh, Shulhan, Yoreh De'ah 151:1Google Scholar, and commentaries thereto.

210. Babad, Contrast Yosef ben Moshe, Kometz Minhah, Commandment 232Google Scholar (citing Tosafot, , Babylonian Talmud, Avodah Zarah 22aGoogle Scholar, s.v. talmud lomar, that enabling the commission of a rabbinic sin constitutes a biblical violation of lifnei iver) to Teomim, Rabbi Yosef ben Meir, Pri Megadim, Eshel Avraham. Orah Hayyim 163Google Scholar, sifkoten 2 (ruling that if the violator is guilty of only a rabbinic infraction, the assister cannot be liable for an issur medeoraita). See generally Adler, , Lifnei Iver at 44–46 (cited in note 204) (discussing various views)Google Scholar. Some poskim differentiate between two rabbinic prohibitions, lifnei iver derabbanon, and mesayeah bidei ovrei aveirah. They contend that the former applies when a rabbinic violation would not have been accomplished without one's help, while the latter applies when a sin would have been committed even without one's assistance. See, for example,, Teomim, Yosef ben Meir, Pri Megadim, Eshel Avraham, Orah Hayyim 163Google Scholar, sifkoten 2. For convenience, however, the text will refer to both situations as involving the mesayeah doctrine.

211. See generally Adler, , Lifnei Iver at 21–22 (cited in note 204)Google Scholar. Nonetheless, even where assistance is unnecessary, there are situations - such as when an assister directly (biyadayim) feeds someone a forbidden substance - in which the assister may still be guilty of violating lifnei iver medeoraita. Id at 23-31.

212. See, for example, Gombiner, Abraham Abeli, Magen Avraham, Orah Hayyim 347, sif koton 4Google Scholar; Meir, Yisroel, Mishnah Brurah, Orah Hayyim 347Google Scholar; Rabbi Elijah of Vilna, Biur haGra, Yoreh De'ah 151. With respect to selling to Gentiles items they would use in their religious practices, Rabbi Moshe Isserles (Rema) states that, while a pious person (a ba 'al nefesh) should be strict, the custom has developed to be lenient when the Gentiles could anyway purchase the items from others. Rema, Yoreh De'ah 151:1. This comment is sometimes characterized as evidence that Rema allows a person to assist someone - Jew or Gentile - to violate Jewish law when the violation would occur even without the assistance. See Broyde, Michael, The Pursuit of Justice at 59 (Ktav Pub House, 1996)Google Scholar. Yet in a responsum Rema explicitly states that helping a Jew to sin is rabbinically prohibited even if the help is unnecessary. See Shut Rema 52. Moreover, in Darkei Moshe HaAruch, Rema states that the Gentile religious practices referred to in Yoreh De'ah 151 did not really constitute idolatry and, for Gentiles, did not actually violate Jewish law. Rema explains that this is the reason why the lenient custom referred to in Yoreh De'ah 151 developed. See Darkei Moshe HaAruch, Yoreh De'ah 151; HaKohen, R. Shabtai, Shakh, Yoreh De'ah 151, sif koton 7Google Scholar. Rema never states that there is a lenient custom to assist actual violations of Jewish law. See, for example, Bachrach, Rabbi Yair Chaim, Chavot Yair 185Google Scholar; Sofer, Avraham Shmuel Binyamin, Ketav Sofer, Yoreh De'ah 83Google Scholar; Kotler, Rabbi Ahron, Shut Mishnat Rav Ahron 1:3Google Scholar; Feinstein, Moshe, Iggerot Moshe, Orah Hayyim 3:27Google Scholar. In fact, by ruling that a ba 'al nefesh should act stringently even where no violation is involved, Rema expresses a rather stringent position.

213. A few authorities seem to rule that providing such assistance would be prohibited. See, for example, Duran, Rabbi Shimon ben Tzedek, Tashbetz 3:133Google Scholar; Babad, Yosef ben Moshe, Kometz Minhah, Commandment 232 (stating that this is Maimonides' view)Google Scholar. Even some who acknowledge that it is not technically forbidden for a Jew to provide a Gentile with such assistance argue that it would be preferable for the Jew to convince the Gentile to do G-d's will. Thus, Rabbi Yehuda HaHasid, a 12th-century authority, states: “If you see a non-Jew committing a transgression and you can stop him, stop him. [After all], G-d sent [the prophet] Jonah to Ninveh to cause them [for example, the non-Jews there] to repent.” HaHasid, Yehuda, Sefer Hasidim 1124Google Scholar.

214. See Klein, Menashe, Mishne Halachot 7:115 (citing various authorities)Google Scholar.

215. See, for example, HaKohen, Shabtai, Shakh, Yoreh De'ah 151, sifkoton 6Google Scholar.

216. Landau, Yehezkel, Dagul Mervavah, Yoreh De'ah 151Google Scholar.

217. Among authorities that explicitly reject the view of the Dagul Mervavah, see, for example, Bachrach, Yair Hayyim, Hawot Yair 185Google Scholar; Assad, Yehuda ben Israel, Shut Yehuda Ya'aleh I:177Google Scholar; Rath, Meshulam, Kol Mevasser I:48Google Scholar; Ettlinger, Yaakov, Binyon Tzion 15Google Scholar; Hildesheimer, Ezriel, Shut Rabbi Ezriel I, Yoreh De'ah 182Google Scholar (stating, at least as of the nineteenth century in which he wrote, that most of the Jewish law authorities disagreed with Rabbi Landau); Grunwald, Moshe Ben Amram, Arugat HaBosem, Orah Hayyim 54Google Scholar; Weiss, Yitzhak, Minhat Yitzhak 3:79Google Scholar. See also Adler, , Lifnei Iver at 134–35 (cited in note 204)Google Scholar (describing opposition to the Dagul Mervavah's view). Indeed, if a Jew is intentionally sinning, many authorities rule that there is an obligation to rebuke him even if it is clear that the rebuke will be ignored. Shulhan Arukh, Orah Hayyim 608; HaKohen, Yisroel Meir, Mishnah Brurah 608Google Scholar. Even some authorities who agree with the Dagul Mervavah contend that one should a prior (l 'khathila) be strict in accordance with the view of the Magen Avraham. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah 1:72, at 128Google Scholar.

218. See note 198 and accompanying text.

219. See Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah I:3Google Scholar (the duty not to give bad advice, arising from the biblical lifnei iver rule, is an obligation one owes to a fellow; consequently, it only applies to advice given to a fellow Jew).

220. HaLevi, Aharon, Sefer HaHinukh, Commandment 232Google Scholar.

221. In 1968, an ad hoc committee of the Harvard Medical School announced that “responsible medical opinion” was prepared to expand the criteria of death to include “irreversible coma as a result of permanent brain damage.” See The Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Irreversible Coma, A Definition of Irreversible Coma, 205 JAMA 337, 339 (1968)Google Scholar. Generally speaking, there are two types of cessation of brain function. The first affects only the part of the brain that is believed to be associated with “higher brain function,” such as consciousness. The other, more complete cessation of brain function, referred to as “whole brain death” or “brain stem death,” occurs when even the brain stem ceases to operate. The Harvard ad hoc committee made it fairly clear that its proposal was only to extend the criterion of death to those who experienced “whole brain death.”

From 1970 to 1978, some states enacted statutes recognizing the whole brain death criterion. In 1978, the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) proposed the “Uniform Brain Death Act” (“Brain Death Act”). In 1980, the NCCUSL proposed the “Uniform Determination of Death Act” (“Determination of Death Act”). In 1981, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research issued a report supporting the whole brain death standard. See President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: A Report on the Medical, Legal And Ethical Issues in the Determination of Death (1981)Google Scholar. Although several states originally enacted the Brain Death Act, all but Alabama has subsequently replaced it with the Determination of Death Act. Virtually all states, whether by statute, case precedent or administrative regulation, have adopted the whole brain death criterion as a method of determining death. See, generally, Magnusson, Roger S., the Sanctity of Life and the Right to Die: Social and Jurisprudential Aspects of the Euthanasia Debate in Australia and the United States, 6 Pacific Rim Law & Policy J 1 (1997)Google Scholar; Atkinson, Jeff, Boshes, Louis D., and Oldershaw, John B., Persistent Vegetative State: Medical, Ethical, Religious, Economic and Legal Perspectives, 1 DePaul J Health Care L 495 (1997)Google Scholar.

222. See, for example, NJSA 26:6A–3Google Scholar.

223. See, generally, Bleich, J. David, Time of Death in Jewish Law (Z. Berman Pub., 1991)Google Scholar; Soloveichik, Aaron, The Halakhic Definition of Death, in Rosner, Fred and Bleich, David, eds, Jewish Bioethics 302 (Hebrew Pub Co, 1979)Google Scholar; Abraham, , Guide to Medical Halacha at 188 (cited in note 106)Google Scholar (citing authorities and stating that someone who is clinically brain-stem dead is not considered dead but, rather, is in the category of a possible goses such that tests to verify the diagnosis are forbidden); Friedman, , 26 J Halacha & Contemporary Soc'y at 91 (cited in note 180)Google Scholar (asserting that most contemporary rabbinic authorities “do not accept ‘brain death’ as sufficient to define an individual as dead” under Jewish law); Yitzchok Breitowitz, The Brain Death Controversy in Jewish Law, at http://www.JLaw.com/Articles/brain/html.

224. Many of the Jewish law authorities who support the brain stem death standard contend that this was the position of Rabbi Moshe Feinstein. See, for example, Tendler, R. Moshe, Letter to Editor, Jewish Observer at 12–14 (10 1991)Google Scholar (asserting that this was R. Feinstein's ruling); Rappaport, R. Shabtai, Letter in 12:3-4Assia 11–13 (Kislev 5750)Google Scholar. Whether Rabbi Feinstein actually accepted the brain stem death standard is the subject of much debate. See Dr.Jakobovits, Yoel, [Brain Death and] Heart Transplants: The [Israeli] Chief Rabbinate's Directives, 24:4Tradition 1, 9–10 n 9 (1989)Google Scholar (stating that R. Aaron Soloveichik and R. J. David Bleich are among those who argue that R. Feinstein's responsa fail to show that he adopted the brain stem death standard); Avraham, R.Avraham, S., Nishmat Avraham, vol 2, Yoreh De'ah 339 (disputing R. Tendler's interpretation)Google Scholar. In any event, Rabbi Feinstein did make it clear, when referring to brain stem death, that he was relying on the assertion of R. Tendler that brain stem death, when confirmed by a nuclide slide, proved that there is no functional connection between the brain and the rest of the body. See Moshe, Iggerot, Yoreh De'ah III: 132Google Scholar.

225. See, for example,, Truog, Robert D., Is It Time to “Abandon Brain Death?”, Hastings Center Report 27 n 1 (1997):29, 29–30CrossRef Google Scholar; Bleich, J. David, Moral Debate and Semantic Sleight of Hand, 27 Suffolk U L Rev 1173 (1993)Google Scholar PubMed.

226. See Part II:A.

227. See notes 89-114 and accompanying text.

228. It might, however, be meritorious for one to sacrifice one's life to save an entire community. See generally Rakover, The One v the Many (cited in note 148). This is not likely to be the situation confronting a patient.

229. For example, secular authorities may regard a patient as legally incompetent even though the patient is competent under Jewish law. This might occur, for example, either because of a flaw in the secular adjudication or a substantive difference between the secular and halakhic standards for competency. In such a case, a secularly authorized surrogate decision-maker may be directing that treatment continue despite the patient's opposition.

230. See note 79 and accompanying text.

231. Id.

232. haShulhan, Arukh, Yoreh De'ah 339:1Google Scholar. See also Danzig, Rabbi Abraham, Hokhmat Adam 151:14Google Scholar (“[I]t is prohibited to cause [a goses] to die more quickly even if he has been a goses for a long time and … [he] and his relatives are suffering a great deal …”).

233. See Feinstein, Moshe, Moshe, Iggerot, Yoreh De'ah 11:174(3)Google Scholar. See also Abraham, , Guide to Medical Halachah at 193–94 (cited in note 106)Google Scholar (citing rules and authorities); Tendler, Moshe and Rosner, Fred, Quality and Sanctity of Life in the Talmud and the Midrash, 28 Tradition 18, 20 (1993)Google Scholar PubMed.

234. See, for example, Feinstein, Moshe, Moshe, Iggerot, Yoreh De'ah II:174(3)Google Scholar and Yoreh De'ah III:90; Waldenburg, Eliezer, Eliezer, Tzitz VIII: 15, Kuntras Meshivat Nefesh, ch 4Google Scholar; Yosef, Ovadia, Omer, Yabbia VIII, Orah Hayyim 37 (citing authorities)Google Scholar; Abraham, , Guide to Medical Halachah at 54 (cited in note 106), (citing authorities).Google Scholar; Rabbi Meir HaKohen, Biur Halakha Orah Hayyam 329, s.v. Eleh; Azulai, Rabbi Hayyim, Yosef, Birkei, Orah Hayyim 329(4)Google Scholar; Tosephot, , Commentary on Babylonian Talmud, Nidah 44bGoogle Scholar. See also Abraham, , Avraham, Nishmat, vol 2, Yoreh De'ah 339:2Google Scholar.

235. Talmud, Babylonian, Kiddushin 82aGoogle Scholar.

236. See Herring, , Jewish Ethics and Halakhah at 88 (cited in note 39)Google Scholar.

237. Id (citing the view of Rabbi N. Friedmann's, reportedly set forth in Friedmann's book, Nezer Mata'ai, which, unfortunately, is not available to me).

238. See, for example, Feinstein, Moshe, Moshe, Iggerot, Hoshen Mishpat II:73(3)Google Scholar (physicians must be careful about touching a goses).

239. Abraham, , Guide to Medical Halachah at 192 (cited in note 106)Google Scholar.

240. The same may be true if the patient is not Jewish. But at least one authority contends that the prohibition against suicide does not apply to non-Jews. See Babad, Yosef ben Moshe, Minhat Hinukh, Commandment 34Google Scholar.

241. See Part II:A: 1.

242. Id.

243. See Part III:A

244. See Part III.

245. See also Babad, Yosef bar Moshe, Minhat Hinukh, Mitzvah 239Google Scholar (failure to convince someone not to commit a sin is a violation of lifnei iver).

246. See Arukh, Shulhan, Yoreh De'ah 151:1Google Scholar.

247. See notes 208-10 and accompanying text.

248. See Part III:B.

249. See, for example, Abraham, , Euthanasing at 126–27Google Scholar (cited in note 8):

I recently treated a patient with end-stage emphysema … He managed to painfully gasp out his request that I inject “something to make him sleep forever.” He was tired of suffering, tired of burdening his wife and family, and tired of the supreme effort of breathing. Two years previously he had been admitted to our respiratory intensive care unit (ICU) with pneumonia, and had been intubated there for many days. At the time he had written, “Please let me die”; the note was still in his file. This patient's mental and physical pain was truly an agonizing, heartbreaking thing to witness. One of our conversations, during rounds one day and in the presence of the patient's wife, left few dry eyes among those in attendance. “What have the last two years been like before your admission to the ICU?” I asked him now.

“A living death, worth nothing,” he replied.

“Do you have any grandchildren?” I asked.

“Yes, four.”

“Do they visit you?”

“Yes, often,” he said and his face lit up.

“And do you enjoy them?” I asked.

“What a question!” he said. “Every minute is Heaven!”

“Worth living for?” I asked. There was no answer.

“Were these two years wasted?” Silence.

250. It should be noted, however, that modern advances indicate that pain can in fact be effectively controlled in most instances. See, for example, Einstein, Albert, Overview of Cancer Pain Management, in Kornell, Judy, ed, Pain Management and Care of the Terminal Patient at 4 (1992)Google Scholar (“adequate inventions exist to control pain in 90 to 99% of patients”); Burke J. Balsch and David Waters, Why We Shouldn't Legalize Assisting Suicide, Part II: Pain Control, http://www.nrlc.org/euthanasia/asisuid2.html. Hopefully, additional, aggressive pain palliation research will even further reduce the number of people who experience significant pain.

251. See note 196 and accompanying text..

252. It is not practicable for this Article to examine the various Jewish law rules relating to the permissibility of initiating any sort of secular litigation. See, for example, Schachter, Rabbi Hershel, Dina DeMalchusa Dina: Secular Law As a Religious Obligation, 1 J Halacha & Contemporary Soc'y 103 (1981)Google Scholar. Nonetheless, such action should certainly be allowed for the purpose of saving someone's life.

253. But see Zilberstein, Yitzhak, Assia, 50Google Scholar (listing authorities taking conflicting positions). In computing the “cost” of keeping a person alive, one may consider the possibility of financial liability under secular law. Nevertheless, it is interesting that in some jurisdictions, secular law may not imposé substantial liability for preserving a person's life against the person's wishes. See Anderson v St. Francis-St. George Hospital, Inc., 77 Ohio St 3d 82, 671 N E 2d 225 (1996)Google Scholar (no cause of action for treating someone in violation of a do not resuscitate order; and, as to battery, here there is no physical harm, the “victim” can only collect nominal damages). See generally, Vernaglia, Lawrence W., Annotation, Propriety Of, and Liability Related To. Issuance or Enforcement of Do Not Resuscitate (DNR) Orders, 46 ALR 5th 793 (1997)Google Scholar.

254. See notes 95-99 and accompanying text, supra.

255. See, for example, Jakobovits, Immanuel, Ethical Problems Regarding the Termination of Life, in Meier, Levi, ed, Jewish Values in Bioethics (1986)Google Scholar; Herring, , in Jewish Ethics and Halakhah at 47–65 (cited in note 39)Google Scholar; Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat II:74(1)Google Scholar.

256. If the patient were Jewish, then, based on the special relationship that exists among Jews, there would also be an affirmative requirement to rescue him, as discussed in the preceding text.

257. See Part II:A.

258. See, for example, Bleich, , 30 Tradition 51 (cited in note 42)Google Scholar (arguing that such refusal would be justified only in a rare instance in which intractable pain were so great that the person affected would be willing to give up all of her wealth in order to escape it).

259. This episode is discussed in Babylonian Talmud, Ketubot 104a.

260. She prayed:

The immortals [for example, angels] desire Rebbe [to join them] and the mortals [for example, the Rabbis] desire Rebbe [to remain with them]; may it be the will [of G-d] that the mortals overpower the immortals.

See Tendler, and Rosner, , 28:1Tradition at 22 (cited in note 233)Google Scholar.

261. She changed her prayer to: “May it be the will [of G-d] that the immortals overpower the mortals.” See Id.

262. Babylonian Talmud, Ketubot 104a.

263. See, for example. Ran, Commentary on Babylonian Talmud, Nedarim 40a; Auerbach, Shlomo Zalman, Minhat Shlomo 91Google Scholar; Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat II:73Google Scholar; Epstein, Yehiel M., Arukh HaShulhan, Yoreh De'ah 335:3Google Scholar; Bleich, , 30 Tradition at 56 and 59 (cited in note 42)Google Scholar (stating own view and quoting statement by Rabbi Ahron Soloveichik); Abraham, , Euthanasing, at 125 (cited in note 8) (citing authorities)Google Scholar. There are additional Talmudic examples apparently approving of praying for the death of someone who is suffering uncontrollably. See, for example, Babylonian Talmud, Bava Metsia 84 (after Reish Lakish died, Rabbi Yochanon was greatly depressed, and the rabbis prayed for his death); Babylonian Talmud, Sabbath 19:2 (Rabbi Ada bar Ahava accidentally mutilated his son during circumcision in such as way that the son would not be able to marry; to save his son from disgrace, he prayed that the boy die and his prayer was answered).

The authorities seem to think that if one can pray for the death of another who is suffering, certainly the person who is suffering can pray for her own death. See also Babylonian Talmud, Taanit 23a (Honi the Circle-Drawer awoke from a 70-year sleep, suffered severe emotional distress and prayed for death); I Kings 19:4 (Eliyahu); Jonah 4:8 (Jonah).

264. See, for example,, Waldenburg, Eliezer, Tzitz Eliezer V, Ramat Rachel 5, and VII:49Google Scholar, Kuntres Even Yaakov, perek 13 (one should not pray for someone else's death).

265. Palaggi, Rabbi Haim, Hikkekei Lev I, Yoreh De'ah 50Google Scholar, discussed in Bleich, , 30:3Tradition at 56–57 (cited in note 42)Google Scholar.

266. See Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II: 174(3)Google Scholar.

267. Auerbach, Shlomo Zalman, Minhat Shlomo 91Google Scholar (arguing, however, that it would be preferable for the patient to choose treatment). Ironically, Rabbi Auerbach begins by stating that we have no measuring stick with which to evaluate life and that we would repeatedly transgress the laws of Sabbath to save the life of someone who is suffering, is totally incompetent, and who could fulfill no commandments. Nevertheless, in rendering his ultimate ruling allowing the patient to refuse the prospective surgery, he counts as a relevant factor the negative qualitative features associated with the life of one who is paralyzed.

268. Rabbi Auerbach states that this should be provided even against the patient's will. Rabbi Feinstein requires that it be made available and that efforts be made to convince the patient to accept the treatment. See Schostak, Rabbi Zev, Ethical Guidelines for Treatment of the Dying Elderly, 22 J Halacha & Contemporary Soc'y 62, 83 (1991)Google Scholar PubMed. See also Rosner, Tendler and, 28:1Tradition at 26–27 n 8 (cited in note 233)Google Scholar; Friedman, , 26 J Halacha & Contemporary Soc'y at 105 (cited in note 180)Google Scholar.

269. See Schostak, , 22 J Halacha & Contemporary Soc'y at 83–85 (cited in note 268)Google Scholar (discussing these various views). But see Bleich, , 30 Tradition 51, 70–77 (1996)Google Scholar (explaining, analyzing and criticizing the Feinstein-Auerbach approach).

270. See, for example, Abraham, , Euthanasing, at 129 (cited in note 8)Google Scholar (appearing to implicitly make this argument); Povarsky, Jewish Law Report (August 1994) at 25 (cited in note 201); Friedman, , 26 J Halacha & Contemporary Soc'y at 100 n 28 (cited in note 180)Google Scholar.

271. Interestingly, Rabbi Feinstein emphasizes that the justification for refusing life-preserving treatment is only because of pain and is not to be confused with an overall “quality of life” analysis. He explains that the life of a mentally incompetent or a person in a permanent vegetative state must be prolonged as much as possible so long a the person is not experiencing pain. See Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat II:74(1)Google Scholar; Bleich, , 30 Tradition at 71 (cited in note 42)Google Scholar.

272. See Waldenburg, Eliezer, Tzitz Eliezer XIII:89Google Scholar. See generally, HaLevi, Rabbi Haim David, The Disconnection of a Terminally Ill Patient from an Artificial Respirator, 2 Techumin 297 (1981)Google Scholar.

273. See Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II:174(3)Google Scholar.

274. Id at III:132.

275. See Waldenburg, Eliezer, Tzitz Eliezer XIII:89Google Scholar.

276. See, for example, Bleich, , 30 Tradition at 56 and 59 (cited in note 42)Google Scholar (stating own view and quoting statement by Rabbi Ahron Soloveichik); Waldenburg, Eliezer, Tzitz Eliezer XV:40Google Scholar.

277. Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II:174(4)Google Scholar. The Talmudic passage involved a case in which a fire threatened to consume one's home on the Sabbath. See Babylonian Talmud, Sabbath 44. Where life is not in danger, it is forbidden on the Sabbath to extinguish the fire. Assuming that all of the homeowner's money were in the house and going to be bumed, could the homeowner move his money to a safer location? Even assuming that the homeowner could theoretically move the money in a way which would only violate rabbinic law, the Talmud states that he is not allowed to do so. On the other hand, if the corpse of a relative were in the home, the Talmud states that the homeowner is allowed to move the corpse to a safe place even if doing so violates rabbinic law. The Talmud explains that the reason for this leniency is that there is a fear that the homeowner would be so concerned about the corpse that, if he were not allowed to move it, he might come to violate the law against extinguishing the fire. Feinstein relies on the fact that no such fear is mentioned with respect to the homeowner's possible loss of money as proof that the unseemly treatment of a relative's corpse is more of a loss to a person than the sacrifice of all of his money.

There seem to be a number of possible problems with Feinstein's analysis. For example, it is unclear whether the purposeless incineration of a corpse is comparable to use of a corpse to save a life. The former seems to be a much more disgraceful disposition of the corpse. Consequently, even if the deceased's relatives are unwilling to permit the transplant, this unwillingness does not mean that the pain they would suffer should their wishes be ignored would be the same as if the corpse were involuntarily destroyed in a fire - or greater than the loss of all of their wealth. See also Bleich, 30 Tradition at 86 n 56 (cited in note 42) (raising a different objection to Feinstein's analysis).

Interestingly, the financial loss at stake in the Talmudic discussion does not seem to have involved all of the homeowner's future earning power but, instead, just the money at hand. The homeowner's concern for the corpse exceeded the concern for the money at hand. Feinstein's reliance on this Talmudic episode may reflect a belief that the duty to dedicate up to all of one's money to save a life does not require one to become indebted (thereby dedicating one's future earning power). If the duty did require such a sacrifice, the Talmudic passage would not necessarily prove that the concern for the corpse exceeded the concern for one's present wealth plus one's future earning power.

278. Rabbi Feinstein encouraged relatives in such a case to voluntarily permit the transplant. See Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah II: 174(4)Google Scholar

279. Bleich uses this same analysis to explain responsa by certain other halakhic authorities as well. See Bleich, , 27 Tradition at 61 and 82 n 24 (cited in note 144)Google Scholar.

280. Professor Michael Broyde has pointed out to me orally that if Bleich is correct and Feinstein's position is based on whether the patient would be willing to forego all of his wealth in order to escape intractable pain, a patient might be willing to forfeit such assets to escape pain even if his life - and the associated pain - would be extended indefinitely. Indeed, the Talmud suggests that although people may not be willing to accept death to avoid temporary pain, they may be willing to accept death to avoid indefinite suffering. See Babylonian Talmud, Ketubot 33a-b. Yet Feinstein seems only to state that a patient has the right to refuse treatment when the treatment would merely extend the patient's life for a relatively short period of time. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah 11:174Google Scholar. Perhaps Rabbi Feinstein presupposes that, given today's technology, if one's condition were not imminently terminable, the pain associated with the condition could be so effectively palliated that no one would be willing to give up all of one's assets to eliminate the residual pain.

Interestingly, the Talmudic passage cited above poses a number of problems and is subject to various interpretations. At least one authority (Rabbi Eliezer, cited Shita Mekubezet) cites this passage as proof that Jewish law regards a life of indefinitely prolonged physical pain as worse than death. See Babylonian Talmud, Ketubot 33a-b. The passage refers to three righteous people - Hananya, Mishoel and Azarya - who allowed themselves to be put into a fiery oven (rather than violate a rabbinic (according to some) or a biblical (according to others) ban on idolatry. According Rabbi Eliezer's interpretation, the Talmud states that the three, however, would have committed the violation, and would have been justified in doing so, had the only alternative been indefinite torture rather than death. Incidentally, the three were miraculously survived the furnace. See generally, Weiner, , Ye Shall Surely Heal at 35–40 (1995)Google Scholar. Some authorities cite this Talmudic narrative as proof that one who is in constant pain may violate the directive to Alive by the commandments” by undergoing risky medical treatment. Their argument is: (1) that by being willing to die rather than violate the rule against idolatry, the three showed that the rule against idolatry was more important that the obligation to live; (2) that by being willing (according to Rabbi Eliezer's view of the passage) to perform the idolatry rather than suffer unlimited torture, the three showed that avoiding torture is more important than the prohibition on idolatry, and, a fortiori, than the obligation “to live by the commandments.” See Waldenburg, Eliezer, Tzitz Eliezer X:25, perek 17 (presenting this view)Google Scholar.

Ironically, one might use this same logic to argue that the Talmudic passage is proof that, when faced with indefinite, unrelenting pain, one might be permitted to passively violate the duty to “live by the commandments.” Nevertheless, most authorities disagree with Rabbi Eliezer's interpretation of this passage. They say that Jewish law surely considers loss of life to be more serious than prolonged suffering. They argue that the acts which the three were told to perform were not really idolatry, and that, as a matter of strict Jewish law, they were not required to allow themselves to be placed in the furnace. They contend that the three nonetheless permitted themselves to be put in the oven, because they hoped that their sacrifice would sanctify G-d's name. According to these authorities, this purpose was enough to permit the three's conduct despite the commandment to Alive by the commandments.” Had the three been faced with the prospect of indefinite torture, however, they would not have made this voluntary choice to sanctify G-d's name.

Understood in this way, the Talmud was simply stating that, irrespective of the relative values that Jewish law places on death and suffering, people - even the righteous three mentioned in Ketubot - prefer death to continuous pain. Such a preference, however, does not justify the non-fulfillment of the duty to safeguard one's life. As stated in the text, a person may pray that G-d relieves him from his sufferings. But until and unless that prayer is granted, a person must perform G-d's commandments. See generally, id; see also note 273.

281. Id at 76.

282. See Emden, Yaakov, Mor Uktziah 328Google Scholar; Cohen, , 32 J Halacha & Contemporary Soc'y. at 49 (cited in note 36)Google Scholar. See generally Bleich, J. David, Contemporary Halakhic Problems 203–17 (Ktav, 1977)Google Scholar.

283. As to what extent a person may risk her life by taking experimental treatment or to reduce pain. See, for example, Weiner, , Ye Shall Surely Heal at 75–81 (1995)Google Scholar; Feinstein, Moshe, Iggerot Moshe, Hoshen Mishpat II: 73(9)Google Scholar (allowing surgical removal of patient's testicles in prostrate cancer in order to reduce pain; argues that reduction in pain would prolong patient's life); Abraham, , Guide to Medical Halachah, at 53 (cited in note 106)Google Scholar; Cohen, , 32 J Halacha & Contemporary Soc'y at 49 (cited in note 36)Google Scholar.

284. See generally, Weiner, , Ye Shall Surely Heal (1995)Google Scholar.

285. See, for example, Md Health-General Code Ann § 5–611 (Michie 1994, Supp 1995)Google Scholar (legislating that physicians need not provide “ethically inappropriate or medically ineffective” treatment). See, generally, Shiner, Keith, Note, Medical Futility: A Futile Concept?, 53 Wash. & Lee L Rev 803 (1996)Google Scholar; Daar, Judith F., Medical Futility and Implications for Physician Autonomy, 21 American J Law & Med 221 (1995)Google Scholar PubMed.

286. Some state cases have held that treatment may not be withheld against the wishes of a patient or, in the case of an incompetent patient, the patient's family,. See, for example, In re Jane Doe, No. D-93064 (Sup Ct Fulton County, Ga October 17, 1991), aff'd, 418 S E 2d 3 (Ga 1992); In re Wanglie. No. PX-91-283 (Hennepin County, Minn, P Ct 06 28, 1991)Google Scholar, reprinted in 7 Issues L & Med 369 (1991)Google Scholar. Nevertheless, it is not certain that many jurisdictions will so rule.

In 1994, a decision by the Fourth Circuit Court of Appeals suggested that federal law importantly restricted a hospital's ability to refuse to provide treatment that it deemed to be “futile.” Specifically, the Court ruled that, in light of the Emergency Medical Treatment and Active Labor Act (EMTALA), a hospital was required to provide respiratory support to an anencephalic infant even if the hospital felt that such treatment was “morally and ethically inappropriate.” In the Matter of Baby “K.“ 16 F3d 590 (1994), (4th Cir 1994) cert, denied, 115 S Ct 91 (1994). The effect of this case, however, has been limited by various courts, which have held that EMTALA merely requires that a hospital provide an emergency room patient with the same way that it would have treated “any other patient in a similar condition with similar symptoms.” See Marshall v East Carroll Parish Hospital Service District, 134 F3d 319, 323 (5th Cir 1998) (citing cases). Under this approach, if a hospital determines that providing respiratory support to any similar anencephalic infant is futile, the hospital would be able to refuse such treatment without violating ENTALA.

Moreover, in Bryan v Rectors and Visitors of the University of Va, 95 F 3d 349 (4th Cir 1996), the Fourth Circuit itself identified an important limitation on its ruling in Baby “K.“ Bryan involved a patient who entered a hospital's emergency room because of respiratory distress. The hospital treated her, stabilized her condition and admitted her as a patient. Nonetheless, twelve days later the hospital, against the express wishes of the patient's family, entered a “do not resuscitate” order. Eight days later, the patient experienced emergency respiratory distress. Id at 50. The hospital, pursuant to the “do not resuscitate” order, failed to treat her and she died. Id. The Court held that EMTALA only applies to emergency stabilization prior to a person's being admitted to a hospital. Id at 353. In Bryan, once the emergency treatment was provided and the patient was admitted to the hospital, the patient's rights were regulated by state tort law, not by EMTALA. Id.

287. Alas, for purposes of clarity, I reluctantly use the common expression, “persistent vegetative state,” which is typically used to refer to patients who are in deep coma and who are not expected to “regain” consciousness. The phrase itself is indicative of the lexicographical gerrymandering of those who would belittle human life. How is it that they are so sure that such patients do not have a level of consciousness that is simply undetected by today's technology? Moreover, how can they be certain that a human life, even if in a state in which consciousness may be lacking, is no different from vegetation? This hubris is exacerbated by those who prefer to say “permanent vegetative state” rather than “persistent vegetative state.” After all, it is undisputed that a number of patients who are characterized as “pvs” actually regain socially-interactive consciousness.

288. Compare, Bleich, , The Quinlan Case at 272 (cited in note 174)Google Scholar:

The hassidic Seer, the Hozeh of Lublin, added a pithy comment: “The Torah gives permission to heal. It does not give the physician dispensation to refrain from healing because in his opinion the patient's condition is hopeless.”

This lesson is the moral of a story told of the 19th-century Polish scholar, popularly known as Reb Eisel Charif. The venerable Rabbi was afflicted with a severe illness and was attended by an eminent specialist. As the disease progressed beyond hope of cure, the physician informed the Rabbi's family of the gravity of the situation. He also informed them that he therefore felt justified in withdrawing from the case. The doctor's grave prognosis notwithstanding, Reb Eisel Charif recovered completely. Some time later, the physician chanced to come upon the Rabbi in the street. The doctor stopped in his tracks in astonishment and exclaimed, “Rabbi, have you come back from the other world?” The Rabbi responded, “You are indeed correct. I have returned from the other world. Moreover, I did you a great favor while I was there. An angel ushered me in to a large chamber. At the far end of the room was a door and lined up in front of the door were a large number of well-dressed, dignified and intelligent-looking men. These men were proceeding through the doorway in a single file. I asked the angel who these men were and where the door led. He informed me that the door was the entrance to the netherworld and that the men passing through those portals were those of whom the Mishnah says, “The best of physicians merits Gehinnom [hell]'. Much to my surprise, I noticed that you too were standing in the line about to proceed through the door. I immediately approached the angel and told him: ‘Remove that man immediately! He is no doctor. He does not treat patients; he abandons them!’”

As discussed above, a person's obligation to act to save another may be limited according to his wealth. According to some authorities, a person may be required to use all of one's wealth, while other authorities compel expenditure of a lower percentage. See Part II: A: 1, supra. In some situations, rescue activities - especially if they are contrary to a patient's directions - may threaten a health care worker's job or professional license. However, Jewish law is not entirely clear as to how such a threat is to be considered. For example, it is uncertain whether a person's medical license is to be capitalized and counted as part of one's wealth.

289. See, for example, Adler, , Lifnei Iver at 121–51 (cited in note 204) (citing views)Google Scholar.

290. See, for example, Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah IV:54(2)Google Scholar (“Even if through this rescue the doctor will become obligated to spend a great sum of money (hon rav) to pay for the equipment and other medications, he is obligated to do so…”).

291. Contrast, for example, Leib, Rabbi Aryeh, Kitzot HaHoshen, Hoshen Mishpat 3:1Google Scholar (arguing that only courts could coerce individuals to perform affirmative commandments) with Yaakov, Rabbi, Nitivot HaMishpat, Hoshen Mishpat 3:1Google Scholar (contending that individuals had the right to coerce other individuals to perform such obligations).

292. See Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah IV:24(4)Google Scholar (if there is much more than a 50% chance that surgery will cure the patient who will otherwise die, there is an obligation to do the surgery even against the patient's wishes) and Hoshen Mishpat II:73(5) (same).

293. See, for example, Feinstein, Moshe, Iggerot Moshe, Hoshen Mishp at II:73(5)Google Scholar.

294. See Jakobovits, , Medical Experimentation on Humans in Jewish Law at 381 (cited in note 141)Google Scholar (“His [the doctor's] obligation to save life and health … is altogether independent from the patient's wishes or opposition. The conscientious physician may even have to expose himself to the risk of malpractice claims against him in the performance of this superior duty.”); Feinstein, Moshe, Iggerot Moshe, Yoreh De'ah IV:54(2)Google Scholar (“Even if through this rescue the doctor will become obligated to spend a great sum of money to pay for the [medical] equipment and other medications, he is obligated to do so.”).

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Jewish Law Perspectives on Suicide and Physician-Assisted Dying

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