American Reform Responsa
80. Caeserian on a Dead Mother
(Vol. LXXXII, 1972, pp. 51-53)QUESTION: A mother eight months pregnant has died. Does Jewish law permit a Caesarean to be performed on her body to save the child? Or, perhaps even more: Does Jewish tradition recommend or urge such an operation? (Asked by Dr. Thomas H. Redding through Rabbi Leonard S. Zoll, Cleveland, Ohio)ANSWER: The question of cutting open the body of a mother who has died in order to remove and thus save the child is discussed as far back as the Talmud itself in Arachin 7a (cf. also B.B. 142b and Nidda 44a). The discussion is based upon the Mishnaic law dealing with a pregnant woman who is condemned to death. Do we delay execution of the sentence until she has given birth or not? In the development of that discussion, Rabbi Samuel (in Arachin) extends the discussion from that of a convicted criminal to any woman who dies when she is near to giving birth (“a woman on the mashber, the birth-stool, who dies”). In such circumstances, Rabbi Samuel says that we may bring a knife even on the Sabbath (bringing a knife on the Sabbath is forbidden gen-erally), and we may cut open her body to save the child. The discussion there in the Talmud involves the question of whether the child is alive or not, and the opinion is expressed that generally the child dies immediately (or even before) the mother, and therefore the Sabbath would be violated (by bringing the instruments) in vain, since the child is already dead. But Rashi says: Even in the case of the “doubtful saving of life,” we may violate the Sabbath; and therefore, on the chance that the child may be alive, we bring the knife and perform the operation. It is exactly in this form that the law is recorded by the great legalist and physician, Moses Maimonides, in his Hilchot Shabbat 2.15. He says: We perform the operation even on the Sabbath, for even when there is doubt whether we are saving a life, we may violate the Sabbath (cf. also Tur, ibid., and Ephraim Margolis, Yad Efrayim to Orach Chayim 320). A new ground for doubt arises, however, in the Shulchan Aruch (besides the doubt of violating the Sabbath in vain if the child is already dead). In Orach Chayim 330.4, Joseph Caro gives the law according to the Talmud and Maimonides; but Moses Isserles (Poland, 16th century) says: We do not do this operation nowadays because we are no longer skilled in determining precisely whether the mother is dead or not; perhaps she is alive (that is, in coma) and may give birth to the child naturally. However, Isserles himself in his Responsa does not seem concerned with this doubt (that the mother may still be alive), and in his Responsum #40 he answers in the affirmative–that is, that the operation should be performed. As for the later authorities, they all are practically unanimous in favor of permitting the operation (even on the Sabbath, and certainly on week days). What concerns these later authorities is whether or not the permission to perform this operation after the mother is dead may not imply the larger permission for autopsy in general, which Jewish law forbids, except under special circumstances. Generally speaking, it is not permitted to mutilate (lenavel) the body of the dead. Therefore, in a discussion between Moses Schick of Ofen and Jacob Ettlinger of Hamburg (both in the first half of the 19th century), this matter is debated (see Responsa of Ettlinger, Binyan Tsiyon 1.171). Moses Schick said in this discussion (in his Responsa, Yoreh De-a 347) that we may mutilate the body of a woman to save her child, and Ettlinger says that this permission does not justify general mutilation (as in autopsy) because this operation (that is, the Caesarean) is not really a disfiguring of the body of the woman. Moses Kunitz (of Budapest, d. 1837) gives almost the exact case discussed here in answer to a question asked of him by Abraham Oppenheimer. The woman was eight months pregnant when she died. A skilled doctor said that she is definitely dead, and that the baby is alive. Accepting the opinion of the skilled physician, both doubts mentioned above are canceled. The woman is definitely dead, so the doubt mentioned by Isserles that we have not the skill to be sure when a person is dead is now obviated; and the physician says that the child is definitely alive, so the doubt discussed by Rashi and the Talmud that we may be violating the Sabbath (if this occurred on the Sabbath) for an unnecessary purpose (since the child may be dead) is also obviated. Therefore, Moses Kunitz said that the physician should operate and does not even need to ask permission of the Jewish ecclesiastical court. Moses Kunitz here actually uses the word “Caesarean,” and gives the origin of the term (namely, that Julius Caesar was born by such an operation). Jacob Reischer, Rabbi of Metz two centuries ago, in his Responsa (Shevut Ya-akov 1.13, at the end), not only gives permission for such an operation but ends his responsum by saying that he who performs it must be praised for doing so and his reward will be great. See also Abraham of Buczacz (Eshel Avraham to Orach Chayim 330), who cites an authority who praises the physician for prompt action to save the child. There is, of course, a possible complication somewhat related to this question. Since the child will die unless the operation is performed very quickly, I was asked a number of years ago by a physician whether–if the mother is not quite dead, but is definitely dying (for example, of cancer)–we may not make sure to save the child by performing the operation before the mother is dead, although it is certain that the operation itself will definitely put an end to the mother’s life. See the discussion of this special question in Reform Responsa, pp. 214ff. But this is a special form of the question and does not apply directly here, where the physician assures us that the mother is dead. See further discussion of the matter in Eliezer Spiro (der Muncaczer) in his Minchat Eli-ezer IV.28, and Greenwald in Kol Bo Al Avelut, p. 49, section 18, and pp. 43ff. To sum up: if it is certain that the mother is dead and that the child is alive, there is no question that the Caesarean operation not only may be performed, but must be performed, and is indeed deemed praiseworthy.Solomon B. FreehofSee also:S.B. Freehof, “Caesarean Operation on Dying Woman,” Reform Responsa, pp. 212ff.
If needed, please consult Abbreviations used in CCAR Responsa.