CCAR RESPONSA
American Reform Responsa
77. Allowing a Terminal Patient to Die
(Vol. LXXIX, 1969, pp. 118-121)
QUESTION: A terminal patient was dying as a result of a series of strokes. Two physicians, one of whom was the patient’s son, decided–with the consent of the family–to hasten the end by withdrawing all medication and fluids given intravenously. Is such procedure permitted by Jewish law?
ANSWER: This is a complex question and, therefore, is not quite clear in the law. However, there is enough in the legal literature to permit us to arrive at a conclusion.
First, let us dispose of a secondary question. It is not altogether irrelevant that one of the physicians, a noted surgeon, was the son of the patient. There is a great deal of discussion in Jewish law as to the relationship between a physician and a patient who is his father. There are many responsa which–even nowadays– discuss the question whether a son who is a surgeon may operate on his father.
The basis of this legal debate is Exodus 21:15, which states that he who smites his father must be put to death; and the law is that “smiting” is not considered so grave a sin unless it creates a wound. Therefore it is the creating of a wound on the body of one’s father which is considered a grave sin. Hence the Mishna (Sanhedrin XI.l) and the Talmud (Sanhedrin 84b) discuss whether a son may perform the operation of bloodletting on his father as part of his work as a physician, or make a wound on his body. This is discussed by Maimonides in Yad, Hilchot Mamrim, V.7, and in the Shulchan Aruch, Yoreh De-a 241.3. In the Shulchan Aruch, Caro states the law that a son may not operate on a father, but Isserles says that if there is no one else available for the operation, he may do so. Isserles bases his opinion on the opinion of Maimonides (loc. cit.).This would be the general conclusion of the law. All this, of course, is incidental to our question.
The real question is: What is the limit on the freedom of action of a physician with regard to a dying patient? By “dying patient” we do not mean a patient who is in danger of death but only who can yet be healed. If, for example, a person has a heart attack and can be healed (as many are from one attack or even two), or if a patient has been rescued from drowning and can be saved with resuscitation (but if no resuscitation is given he will die)–such dying patients, all of whom have a prospect for recovery, must be given the full resources of medicine in the attempt to save them. One may even risk a remedy that might possibly kill them, provided there is a fair chance that the remedy might save them. Thus, the Talmud, in Avoda Zara 27b, says clearly that one may risk otherwise forbidden remedies (e.g., from a heathen healer) if the dying patient has a chance to be cured by the remedy. See the full discussion of this permission to risk death if there is a fair chance to cure in Shevut Ya-akovIII.75 (Jacob Reischer of Metz, d. 1733).
But in the case under consideration we are not dealing with a dying patient who has a chance for recovery if given the proper medication. We are dealing with a patient with regard to whom all the physicians present, including his own son, agree that he has no chance for recovery. In other words, he is a terminal patient. What, then, are the limits of freedom of action of a physician with a terminal patient?
Is it the physician’s duty to keep this hopeless patient (who is also in all likelihood suffering great pain) alive a little longer, maybe a day or two? Jewish law is quite clear on this question. He is not in duty bound to force him to live a few more days or hours. This law is based on the famous incident in B. Ketubot 104a. Rabbi Judah the Prince was dying in great suffering. The Rabbis insisted on ceaselessly praying so that he might thus be kept alive a little longer. But his servant-woman (who is often referred to with honor in the Talmud) threw down an earthen jar from the roof of the house into the midst of the praying Rabbis, in order to stop their prayers so that Rabbi Judah might peacefully die. The Spanish scholar Nissim Gerondi (to Nedarim 40a, top) says that while it is our duty to pray for a sick person that he may recover, there comes a time when we should pray for God’s mercy that he should die. So, too, Sefer Chasidim (#315-318, edition Frankfurt)– basing its opinion on the statement of Ecclesiastes, “There is a time to live and a time to die”–says as follows: “If a man is dying, we do not pray too hard that his soul return and that he revive from the coma; he can at best live only a few days and in those days will endure great suffering; so ‘there is a time to die.”‘ (See other such references in Reform Responsa, pp. 117ff). In other words, according to the spirit of Jewish tradition, just as a man has a right to live, so there comes a time when he has a right to die. Thus, there is no duty incumbent upon the physician to force a terminal patient to live a little longer.
But what, under these circumstances, is a physician permitted actually to do? Here again the law is clear. He may do nothing positive to hasten death. The Mishna (in Shabbat XXIII.5) says that we may not close the eyes of a dying patient. The Talmud (Shabbat 151b) compares the dying patient to a guttering candle that is about to go out. If a man touches his fingertip to the candle flame, it will go out at once. This he must not do. In other words, he must not hasten the death of a dying patient by closing his eyes. The Talmudic discussion is elaborated on in the post-Talmudic treatise, Semachot, chapter 1, and finally is codified in the Shulchan Aruch, Yoreh De-a 339, where it is clear that no action must be taken to hasten death, i.e., you may not remove a pillow from under his head. However (see Isserles, ibid.), if someone outside is chopping wood and that rhythmic sound focuses the mind of the dying patient and prevents his soul from departing, you may stop the wood-chopping so that the patient may relax and die in peace. Or, if there is salt on the patient’s tongue and the tartness of the salt focuses his mind and keeps him from relaxing into death, you may wipe the salt from his tongue and thus allow him to die. The Taz expresses some doubt about the permission to wipe the patient’s tongue, for that would shake and disturb the patient and would be an overt act.
The fullest discussion as to what is a permitted act and what is a non-permitted act is found in Shiltei Hagiborim (Joshua Boaz) to Mo-ed Katan, third chapter (in Wilna edition, Alfasi, 16b). He concludes that while you must not do anything to hasten death, you may remove the causes of the delay of death. He bases his discussion upon the Sefer Chasidim (edition Frankfurt, #315), which says: “We may not put salt on his tongue in order to prevent his dying.” And so Isserles in the Shulchan Aruch (loc. cit.)sums up what is permitted and what is not permitted by saying that such things are permitted “which do not involve action at all, but merely remove that which hinders the death.”
All this brings us to a clearer understanding as to the limits of freedom of action of the physician in relation to the hopelessly dying patient. He may not take any overt action to hasten death, such as giving him, perhaps, an overdose of an opiate, but he may refrain from doing that which will prevent his dying. Of course, in this case, if he ordered the removal of the intravenous apparatus, there may be some ground for objection if the removal of the apparatus was a rather forcible procedure and shook up the patient. But if, for example, the removal of the apparatus was so gentle as not to disturb him, it would be like the wiping off of the salt on his tongue, which Isserles permits. If he does not even do this, but merely gives the order that the bottle containing the nutriment not be refilled when it is emptied out, then, too, he committed no sin at all. He is merely, as the law says, preventing that which delays the death.
We have mentioned that Isserles states (in Yoreh De-a 339.1) that one may remove that which prevents the person from dying, and thus, one may stop someone who is chopping wood outside because the regular sound concentrates the patient’s mind, and one may also remove some salt from his lips. The Taz objects only to wiping away the salt from the lips, because this action might move or shake the patient, and this would be an overt action hastening his death.
On the basis of this objection of the Taz, there might be some question, as we have mentioned, about removing the tubes from his arm through which the intravenous feeding enters his body. Of course, if this is done gently, the objection of the Taz would be obviated. Perhaps it would be better still if the tubes were not removed at all until the patient were dead. There might also be some question if the intravenous feeding would be continued automatically until the physician gives a direct order that it be stopped. It would be less objectionable if it is the practice in the hospital to have each day’s intravenous feeding kept up by the direct daily order of the physician, and if, on that particular day, he simply refrains from ordering it to be continued. Thus, in no way would he be taking any direct action. Here, then, the principle (Eruvin 100a) “Shev ve-al ta-aseh adif”would certainly apply.
To sum up: If the patient is a hopelessly dying patient, the physician has no duty to keep him alive a little longer. He is entitled to die. If the physician attempts actively to hasten the death, that is against the ethics of Jewish law. In the case as described, the term used in the question, “to hasten death,” is perhaps not correct, or at least should be modified. The physician is not really hastening the death; he has simply ceased his efforts to delay it.
Solomon B. Freehof
If needed, please consult Abbreviations used in CCAR Responsa.