American Reform Responsa
75. Choosing Which Patient to Save
(Vol. LXXVIII, 1968, pp. 111-118)
QUESTION: The head of a clinic in Boston asked, following a forum session at the last Biennial Convention of the Union of American Hebrew Congregations in Montreal (November, 1967): “What guidance can Jewish tradition give us in the excruciating, ethical dilemma of selecting one patient over many others to keep him alive by means of a mechanical kidney machine? Since such facilities are extremely limited, many patients must be rejected and are certain to die. The same question may also be raised with reference to the very limited supply of organs for transplantation. On what basis can a conscientious doctor make the decision as to which patient is to live or die?”
ANSWER: Solomon Landau, in a responsum embodied in the collection of his father Ezekiel Landau’s responsa (Noda biYehuda,vol. II, #74), was asked whether a man sought by the government as a criminal should be turned over or not. He says at the outset: “It is difficult to make a decision in matters which involve the life of a human being.” Such a decision is always a difficult one in any decent tradition, religious or social. The question asked here by the physician of the clinic is especially difficult to decide on the basis of Jewish traditional literature. Obviously, there were in those days no such remarkable inventions, or the means for the preservation of vital organs, as there are today. In those days, when a person was dying, they would discourage any artificial attempt to keep him alive for another hour or so, because a man has a right to die when the time comes (cf. “Ran” to Nedarim 40a). But nowadays it is possible, in the case of moribund patients, to effect what often amounts to a cure. So there is no real precedent for the problem in the traditional literature.
Nevertheless, there are quite a number of somewhat different discussions which involve the question of choosing one person to live or another person to die. In the discussion of these various dilemmas there may perhaps be found an ethical principle, or at least an ethical mood, which might help indicate what Jewish tradition would have said in a situation such as this one which now occurs frequently in modern hospitals.
The Mishna (in Oholot VII.6) deals with a question which involves the choosing between one life and another. A mother is apparently dying because of the childbirth. Either she or her child can be saved. Which one should it be? The law is that the child is looked upon as an assailant and therefore may be destroyed before he kills the mother. Therefore, the unborn child should be destroyed, and the mother saved. If, however, the child puts forth its head, then it may no longer be destroyed. It is now considered a separate person, and now the law is thus stated: “We do not dispose of [or push aside] one person in favor of another” (cf. also Sanhedrin 72b). This is stated as the fixed law in the Shulchan Aruch, Choshen Mishpat 425.2).
This clear-cut principle that we may not save one life at the expense of another seemed at first glance to be somewhat contradicted by the discussion in the Mishna and the Talmud as to the relative respect to be paid to a father and to a teacher. This Mishna (Bava Metsi-a II.11) says that if a person finds an object lost by his father and another object lost by his teacher, he must first return the one lost by his teacher. The Mishna explains the reasons as follows: “For his father has brought him into the light of this world, while his teacher, who teaches him wisdom, has brought him into the light of the world to come.” Upon that basis the Mishna continues to say that if both his father and his teacher are held in captivity, he must first redeem his teacher and after that redeem his father. This is discussed in the Talmud in Bava Metsi-a 33a, and is codified as law by Maimonides in Hil. Aveda 12.2 and in the Shulchan Aruchin Yoreh De-a 242.34. All this seems to contradict the principle that you may not choose one life to save in preference to another, but actually this is not so. The Rabbis do not speak here of such an irreversible fact as death, but only at most of captivity in which both are to be saved (except, of course, that they give the order as to who should be saved first). When it comes to an actual matter of life or death, in which a choice is final, the principle remains that one life is as precious as another.
This principle that we do not destroy one life in order to save another is further exemplified in a discussion in Pesachim 25b. A man comes before Rava and says: “The governor of my city has given me the alternative that either I should kill so-and-so or the governor will kill me. What shall I do?” Rava answered him: “Be killed rather than kill. What makes you think that your blood is redder than his?”
This Talmudic phrase, “Your blood is redder than his,” was used in rather a reverse sense in the latest volume of Tsits Eli-ezer, vol. 9, 45, Eliezer Wildenberg, Jerusalem, 1967. In this volume, devoted to a large extent to modern medical questions, the author concludes that a person is certainly not required by law to donate an organ of his body in order that it may be planted into the body of another. If he is endangered by the removal of the organ, then he is actually forbidden to risk his life. Of course, if the danger to him were minimal and the benefit to the recipient were maximal, it would be a good deed; but, otherwise, one should not endanger his life in this way because one life–in this case his own–is as valuable as the life he wishes to save. Wildenberg then uses the Talmudic dictum cited above: “What makes you think (that his blood is redder than yours)?” But whichever way the phrase is taken, its meaning is clear enough: Every life is as equally valuable as any other life.
The two instances–that of the infant and that of the man ordered to become a murderer–both differ from the case inquired about here because these two cases involve actually taking steps to put people to death, while the case of the clinic involves merely allowing dying people to die. Nevertheless, in spite of this difference, this much at least is relevant: we have no right to say that one person’s life is more important than that of the other–the mother’s or the child’s, or the man’s or his intended victim’s. From the standpoint of religion, all people are alike in status as to the right to life.
There is still another set of circumstances developed in a series of discussions in the literature, all of which spring from the same Biblical account. These discussions, different from those above, do not deal with the worth of one person rather than another, but with the safety of a social group as against the life of one person. The question now is whether a city or a group may save itself by handing over one of its number to death. In the Second Book of Samuel, chapter 20, Sheva ben Bichri, who rebelled against King David, takes refuge in the city of Abel. There he is pursued by Joab and his army, which surrounds the city and threatens to destroy it. The wise woman of the city gives up Sheva to Joab, and thus the city is spared. This incident is discussed in the Tosefta (Terumot, end of chapter 7) and in the Palestinian Talmud(Terumot, end of chapter 8), where it is cited as a guide in the following situation. A group of travelers is stopped by brigands who say to the travelers: “Give us one of your number. We will kill him and let the rest of you go.” May they do so? This, now, is a case of saving a large number of people by having one person die. The decision is that they must say: “No, we would rather all be killed than give up one of our number to death” (since the shedding of blood is one of the three sins for which a person must be willing to die rather than commit it, the other two being idolatry and immorality). The conclusion is, so far, that rather than commit what amounts to one murder, we would rather be killed ourselves, even though there are twenty of us and the victim would be only one.
However, the discussion in the Tosefta and in the Talmud continues as follows: This wholesale self-sacrifice applies only when the brigands are not specific and merely say “one of you,” thus compelling us to choose the man to be killed. But if they are specific and they are searching for a certain man who they mention by name, then we do not all have to be killed for his sake, since it is not we who selected him for death. This, however, is only one opinion. The opposite opinion is that this one man, even though specifically named, may not be turned over to the brigands unless he is criminal, as Sheva was in the Biblical account, since he rebelled against King David. This distinction is embodied in the law (see Maimonides, Hilchot Yesodei Torah V.5). There is some disagreement about whether the man needs to be a known criminal before he is surrendered to save the lives of all the others, or whether it is sufficient if the brigands named him and it is not we who have selected him. See the discussion by Joseph Caro in Kesef Mishneh to the law in Maimonides.
The bearing of this discussion on the case in point is that actually the other patients, who will not be given the rare remedy, have not been directly selected for death. They have already been marked for death by forces beyond the physician’s control (as by the brigands in this case), and if they die, it is not directly the physician’s fault. They would die anyhow. It is not he who has really named them for death.
It is also clear from this aversion against turning someone over to death in order to save someone else, or even a group, that it would be absolutely forbidden by the spirit of Jewish law to hasten the death of some terminal patient already marked for death in order to take something from his body in order to save another patient or for the increase of medical knowledge.
But so far all of the incidents cited involve a direct choice between living and healthy people as to who should live and who should die. The case involved in the question asked is of people who are dying. Is there any guidance in the law for choosing between people who are already marked for death? It is possible to say that, since they are already dying, we should just let them all die and not attempt the bitter choice of picking one of them to live. Is such a “hands-off” attitude permissible?
This very question, by close analogy, is discussed in the Talmud(Bava Metsi-a, 62a). The case is stated as follows: Two men are walking (presumably in the desert). They have one pitcher of water which contains enough to keep only one of them alive long enough to cross the desert safely. If both of them drink, they will both die. If one drinks, he will be saved and the other will die. What shall be done? Ben Petura said: “Let them both die and let not one be a witness to the death of his fellow man.” But Rabbi Akiva’s greater authority is cited to refute this opinion of Ben Petura. He says: “Your life comes first.” In other words, a man must strive to save his own life. Although this narrative is cited in a discussion about the taking of interest and whether it should be returned, nevertheless it constitutes an independent homily (see the statement of Asher ben Yehiel to the passage). While, of course, Akiva’s decision is not directly helpful to the question of deciding which shall live (since it does not indicate in which manner the matter will be settled with each one trying to save his own life); nevertheless, this much is clear: We may not permit both men to die when at least one of them can be saved. The passage is unfortunately too terse, and therefore we cannot tell the method of selection, but it is clear enough that a selection will and should be made, and that it is not right to allow both of them to die merely because it would be painful to make a decision. Thus, the final problem still remains. He should choose, but which one?
As to whom he chooses, there is, in a sense, a negative guideline. The passage which speaks of the brigands or captors demanding one of the group of men to be given up for death, speaks first of a group of captive women. The captors ask for one woman to be given to them for sexual abuse. The sexual fate of a captive woman receives considerable discussion in the law. The married status of the captive wife may be affected by what had happened to her during her captivity. If one of the women in the group has already been abused, the other women may not say that since this unfortunate one has already been abused, she is the one who should be given up. (See Kesef Mishneh to Yad, Hil. Yesodei Torah, V. 5, where Caro cites the responsa of Solomon b. Aderet to this effect.) They have no right to decide on the basis of her unhappy past and so select her in order to save themselves.
In other words, in matters which are equivalent to life or death (as this was considered to be), the past status or character of the prospective victim may not be considered. We may not say: “This one’s life may be set aside in favor of the other’s.” All are of equal status in relation to life or death.
There is, however, some other standard of choice before the physician, one which is precisely relevant. There is a discussion in the Talmud (in Avoda Zara 27b) which is developed in the legal literature into a principle. It can be stated as follows: [When there is a chance for a cure] we do not put too much value upon the last hours of a dying man (“Ein mashgichim lechayei sha-a”). In other words, these last few hours are not so valuable that we may not risk them if we want to try out some new and hitherto untried remedy. These last hours are fading anyhow. So Jacob Reischer, Rabbi of Metz (died 1733), in his responsa (Shevut Ya-akov III, #75) concludes that we may risk the few hours of a dying man and try an untried remedy, if there is a fair prospect that he can be cured enough to have, say, a year of life. He says at first that even the chayei sha-a (the remaining hours of life) are important and we must guard them (i.e., we never hasten death); nevertheless, if there is a remedy by use of which it is possible to cure him, then in that case we may risk it. The same decision was arrived at in a responsum published this past year by Mordecai Jacob Breisch (Chelkat Ya-akovIII, #141). From this we conclude that the physician must endeavor to decide not on the basis of personality reasons, but on medical grounds. He must select the patient–rich or poor, good or bad–who has the better prospect of survival and of getting more of relatively healthy life. As for the others, no direct action should be taken by him against them. Their sickness will run its course.
This same conclusion, i.e., that the one who will benefit most should receive the remedy, was arrived at over a hundred and fifty years ago by Joseph Teomim (1727-1793). Of course, he could not have had any knowledge of modern transplants, nor of the special problems involved in them. He came to his conclusion purely on the basis of the spirit of the law. His statement is in his commentary Peri Megadim to Orach Chayim 328 (commenting on the Magen David). The Shulchan Aruchat that point deals with the question of which patients may have the Sabbath violated for them and to what extent. The discussion involves the question of which patient is in real danger and which is not in immediate danger. Joseph Teomim then widens his conclusion from the Sabbath law to a more general application and says: If there is doubt about whether one patient is in danger, and there is no doubt that the other patient is in danger–if there is not enough medicine for both of them, we give it to the one who is in greater danger.
From all this discussion in the Talmudic and later literature, a certain mood emerges. First, that one life is as important as another; and this must certainly be so in the eyes of the physician. Second, that actively to take steps to destroy another life for our own benefit is not permitted. Third, that when it comes to a choice between people who are dying anyway, the choice cannot be evaded, but must be made (nothing is gained by allowing both men to die in the desert!). But as to whom to choose for survival, it must be on purely medical grounds, selecting the one who has a better chance of benefiting from the remedy. Of course, this is not an absolute test, because out of ten patients there may be two or three who could greatly benefit from the remedy. But at least this principle narrows the choice and in many cases can decide the case. So, while there is no case in Jewish legal tradition precisely like this modern question, there is enough in it to give at least this much guidance.
Dr. Julius Kravetz, a member of our committee, calls my attention to a sequence of passages in Mishna and Talmudwhich points in the opposite direction from the conclusion arrived at above. These passages should be mentioned, not only for the sake of completeness, but also as a possible balance to the opinion expressed in the responsum.
The Mishna (in Horayot III.7,8) says that a man precedes a woman (i.e., has prior right) “to be kept alive” (lehachayot) and to have his lost articles returned. But a woman precedes a man in being provided with clothing and being redeemed from captivity. A Cohen has precedence over a Levi, a Levi over an Israelite, and an Israelite over an illegitimate, etc.
The Talmud discusses this Mishna in two places: Horayot 13bff and Nazir 47b. In both passages the Talmud gives the reasons for the various priorities. There is, however, a further development in the passage in Nazir. Mar Ukba says that the priority (of the Battlepriest over the Segan) means that he has precedence in our duty to keep him alive. The Tosafot are still more specific, saying that if a heap has fallen on both, it is he who must be rescued first. Rabbi Untermann (in HaTorah Veha-medina IV, 22-29) takes this as the meaning of the discussion in the Mishnaand applies it in the case of a pharmacist having a limited supply of penicillin, etc.
This, then, is a halachic discussion which points to an order of precedence in the saving of lives (a man before a woman, a Priest before a Levite, etc.). However, it seems to me that the discussion, in spite of the Tosafot, does not necessarily refer to the rescue of endangered lives. The Mishna uses the word lehachayot. If the Mishna meant “to rescue from danger,” we would have expected it to use the word lehatsil. In fact, the Shach (to Yoreh De-a 351.14) says that the word does mean lehatsil and interprets accordingly. But the Mishna uses this word in precisely the same way in which it is used in Psalm 33:19. The Psalm makes use of both words, lehatsil and lehachayot, each for a specific thought. It says “to rescue (lehatsil) thee from death, and to sustain thee (lehachayot) in famine.” So our Mishna here uses the word lehachayot precisely in connection with providing clothing and ransoming from captivity. If our Mishna had actually meant “to rescue from death,” then we would expect that the Codifiers, when giving the laws of rescue, would refer to this priority. But neither Maimonides, nor the Tur, nor the Shulchan Aruch mention any of these priorities in the laws of rescue (cf. Yad, Hilchot Rotseach I 14; Tur and Shulchan Aruch, Choshen Mishpat 42b).
Judging by the context of this Mishna and by the Biblical use of the word in the Psalm, lehachayot is not used here loosely as meaning the same as lehatsil, but precisely as meaning “to keep alive,” in the sense of ‘to sustain or to support.” This is clearly the way in which the Codifiers understood the discussion. They do mention the list of personal priorities, but only in connection with charity. So Maimonides in Yad (Matnat Aniyim VIII.15-17), the Tur, and Shulchan Aruch(Yoreh De-a 251).
Solomon B. Freehof
If needed, please consult Abbreviations used in CCAR Responsa.