American Reform Responsa
(Vol. XXV, 1925, pp. 130-134)QUESTION: What is the attitude of Jewish law towards the practice of autopsy? Are there any objections to it on the part of the Jewish religious consciousness? If there are such objections, will you please inform me whether they are based on valid grounds and whether, in your opinion, these objections hold good even in our day?ANSWER: To my knowledge no law or regulation expressly forbidding the practice of autopsy can be found in the Bible, the Talmud, or the Shulchan Aruch. It may be safely stated that in case the autopsy would not unduly delay the funeral, one could not find the least support for any objection to it in these authoritative sources of Jewish law. In case the autopsy would unduly delay the burial, one might object to it on the ground that the ancient Jewish law recommended burial on the same day on which the death occurred. For the law in Deuteronomy 21:23, “But thou shalt surely bury him on the same day,” though originally prescribed for the criminal who has been put to death as punishment for his sin, was understood by the rabbis of the Talmud to apply to every dead person, even to one who died a natural and peaceful death. Hence, they recommend that, unless delay is necessary for the sake of showing honor to the dead person or in order to have time for making the proper arrangements for the funeral, burial should take place on the same day in which the death occurred. One might, therefore, cite this Talmudic regulation–which, however, is nowadays generally disregarded even by the Orthodox–as a reason for objecting to autopsy if it would unduly and unnecessarily delay the funeral. But to the practice of autopsy as such one cannot find any express objection in the Talmud. On the contrary, one could cite the Talmud in support of the practice, since it is evident from Talmudic reports that some of the rabbis of the Talmud–no doubt prompted by their interest in the science of medicine–actually performed an autopsy. According to the Talmudic theory of anatomy, the human body contains 248 parts or joints, “Ramach Evarim,” and 365 sinews or veins “Shesah Gidin” (B. Makot 23b). Whether this theory of the Rabbis is scientifically correct or not is not our concern now. But it is evident that they could not have obtained the knowledge of anatomical detail upon which they based their theory except by dissecting a human corpse and counting its joints and sinews. Had they acquired this knowledge indirectly from non-Jewish physicians, they would have quoted their authority or expressly mentioned that this was a theory of the non-Jewish scientists, Chachmei Umot Ha-olam, as they do in other cases when they mention theories of the wise men of the Gentiles (comp. B. Sanhedrin 91b, R.H. 12a, Pesachim 94b). The fact that this theory is stated by the Rabbis in an unqualified form as an indisputable fact certainly justifies the assumption that they learned this fact from their own direct observations by dissecting a human body. This assumption is confirmed by the express report found in the Talmud (B. Bechorot 45a). There we read that the disciples of R. Ishmael, who had learned from their teachers that the human body contains 248 joints, had the opportunity to test this anatomical theory of their teachers. They obtained the body of a woman who had been sentenced to death and executed by the Roman authorities. They boiled the body and dissected it and counted the number of the joints and to their great surprise they found that it contained 252 joints instead of only 248. This fact seemed to refute the theory which they had learned from their teachers. They came to their master and told him that they had found by their own observation in dissecting a corpse that the theory about the 248 joints was not correct. The master answered them by saying, “Shema be-isha bedaktem,” “Perhaps you have examined the body of a woman.” And he informed them that the theory about the 248 joints applied only to the body of a male, but that the female of the species had four more joints. It is evident from this report that the practice of autopsy was not considered by the Rabbis as forbidden or objectionable. The master does not express any surprise when he hears that his disciples dissected a human body. He does not reproach them for having done such a thing. He does not even ask where they obtained the body or whether it was a Jewish or a non-Jewish corpse. It evidently made no difference to him whose body it was. This consideration would also answer the possible argument that it was only because a woman had been sentenced to death and executed as a criminal that they did not mind performing the autopsy on her body. In the first place, it is doubtful that the Rabbis considered the woman a criminal even though the Roman government treated her as such. The Rabbis may have disagreed with the Roman law on the question whether the woman in the case deserved death or not. Secondly, even if the woman had been sentenced to death and executed by a Jewish court and according to the Jewish law, the Rabbis could not have treated her differently from any other dead person. After she had paid the penalty for her crime, her death brought her atonement and her body was not to be mistreated. Had there been a law against dissecting a dead body they could not have ignored such a law in this case on the ground that the body was executed to death and did not die a natural death. But, above all, it is evident from our report that when the disciples first reported the case to their master they did not give any details–they did not tell him whether it was the body of a Jew or a non-Jew, man or woman, saint or criminal–and the master did not care to ask for any details. Only when it was necessary for him to maintain the theory about the 248 joints did it occur to him to ask: “Was it perhaps the body of a woman that you dissected and examined?” It is also significant that no discussion or remarks by later teachers follow this report in the Talmud. This argumentum e silencio has some weight considering that, usually, when some action or practice of older teachers is reported in the Talmud, later teachers–if they know of some law forbidding such a practice–take up the discussion of the whole question. Evidently in this case, the later teachers did not know of any law forbidding the practice. The objection to the practice of autopsy which is prevalent among Jewish people is based merely on the assumption that such a practice is a disgrace to the human body (nivul) and an insult to the dead person (bizyon hamet). And, of course, we are not permitted to treat disrespectfully a dead person. This supposition, however, that a post-mortem examination constitutes a disgrace to the human body has no real basis in Jewish literature. It is true, in the Talmud (Chulin llb) it is assumed that to dissect and examine a dead body might be considered a disgrace (nivul) to that body, which, of course, should be avoided. This, however, holds good only in the case when it is done unnecessarily and for no good purpose. For in the same passage in the Talmud it is taken for granted that if such a post-mortem examination might possibly result in saving another man’s life–e.g., in the case of a suspected murderer when a post-mortem examination of the killed person might prove the innocence of the suspected murderer–we should by all means dissect and examine the dead body, so that we may possibly avoid the loss of another life, “Mishum ibud neshAma dehai ninveleih.” And on general psychological grounds we have no reason to assume that the dead person would feel insulted if subjected to a post-mortem examination. We may rather assume the contrary. Just as a living person, while undergoing an operation, has no objection to physicians and students seeing him cut open and watching the surgeon performing the operation, so also the dead person, since it gives him no pain, would have no objection to the physicians cutting him up in order to learn the cause of his death or the nature of his disease. To apply the Talmudic phrase, “Denicha leih le-enash lekayomei mitzva begufeih” (Pesachim 4b)–in a somewhat different sense than the one in which it was originally used in the Talmud–we may say that it would be pleasing to the dead person to know that he is benefiting humanity, in that from his body the physicians might learn to combat disease and to alleviate the sufferings of other people. The consideration that by a post-mortem examination, the physicians may learn the nature of a certain disease, and thus be enabled to help other people suffering from the same disease, has indeed led two great Rabbinical authorities of the 18th and 19th centuries to permit autopsy under certain conditions. R. Ezekiel Landau (1713-1793) in his Noda BiYehuda (Yoreh De-a, no. 210), and, following him, R. Moses Sofer (1763-1839) in his Chatam Sofer (Yoreh De-a, no. 336), permit autopsy, but only when there is in the same locality another person with the same disease from which the person to be subjected to autopsy died. Their reasons for permitting the autopsy are very cogent. Since by the autopsy the physicians may learn to understand better the nature of the disease, and thus be enabled to save the life of the other person afflicted with it, it is a case of Pikuach Nefesh. Then, according to the Talmudic-Rabbinic law– even if there could be found an express law in the Torah prohibiting the dissecting of a human body–it would have to be ignored in favor of autopsy which might lead to the saving of a human life. Thus far we can fully agree with these two great Rabbinical authorities. But, with all due respect to them, we cannot see any reason for limiting–as they do–the permission of autopsy only to cases when there is, right then and there, another person suffering from the same disease who might immediately be benefited by the findings of the physicians. The Talmudic law, that consideration for the saving of a human life sets aside any law of the Torah except the three mentioned above, applies also to doubtful cases; that is, when we are not sure that by the act involving a violation of the law we shall save a human being, but there is merely a chance of saving a human life, we should nevertheless proceed with the act and ignore the law (B. Yoma 88a). And, certainly there is more than a mere chance of probability that the enrichment of the medical science, and the wider knowledge and experience gained by physicians from their findings through autopsy, will result in the saving of human life here and now, or somewhere else and at some other time. For in our days any discovery made in one hospital and the knowledge acquired by one physician in one part of the world is easily communicated through books or medical journals to physicians living in other parts of the world. We can, therefore, not argue against autopsy even in an instance when we do not know of any person suffering from the same disease. For if there is no such case here, it may be elsewhere, and if there is none right now, it may turn up tomorrow or next year. I believe that in the above I have proved that there can be no objection to autopsy on the ground of any Talmudic-Rabbinical law. I would go still further and state that in our days there are good reasons why Jewish people should modify their customary attitude towards autopsy. This attitude on the part of the Jews has created bad feelings among Christian students of medicine. In some universities in Europe, Jewish medical students find it very difficult and almost impossible to get admission to the medical laboratories for the very reason that Jews ordinarily refuse to deliver Jewish corpses for purposes of anatomical dissection (comp. CCAR Yearbook, vol. XXXIII, 1923, p. 452). The exclusion of Jewish students from the anatomical laboratories ultimately means that Jewish students will be deprived of the opportunity of studying medicine. For we must consider the possibility of such an attitude towards Jewish medical students on the part of Christian students or university authorities spreading to all other universities outside of Poland, Austria-Hungary, and Rumania, if we Jews persist in our unjustified objections to autopsy. These considerations have prompted Orthodox Jewish communities in Europe to change their attitude towards autopsy and to agree to deliver Jewish corpses for purposes of anatomical dissection. According to a report from Bucharest, Rumania, printed in the Jewish Daily Bulletin (March 10, 1925, p. 3), the Jewish community in Jassy has agreed and has actually already begun to deliver Jewish corpses for dissection to the university of that city. No doubt, this decision of the Jassy community had the approval of the rabbinate of that city. Another dispatch of the Jewish Telegraphic Agency brings the following report from Kishinev (printed in the Jewish Daily Bulletin, April 7, 1925, p. 1): “An unparalleled scene took place in the hall of the local rabbinate when an aged Jewish physician made a declaration of his intentions with regard to his body after death. Dr. Rabinovitch, sixty years of age, before Rabbi Zirelson and a Minyan (ten men, the quorum necessary for solemn declarations) declared that after his death his body should be delivered to the Medical College of Jassy University for dissection, in order to remove the cause of the anti-Semitic riots among the Rumanian students, who claim that the Jews refuse to submit Jewish corpses.” And, according to press reports, the Jewish Burial Society in Szegedin, Hungary, resolved to deliver Jewish corpses for purposes of anatomical dissection to the medical laboratory of the university of that city (see American Jewish Yearbook XXVII, 1925, p. 33). If all these reports are true–and we have no reason to doubt them–they certainly prove that the authorities of the Jewish community in Jassy and the members of the Chevra Kadisha in Szegedin, as well as Rabbi Zirelson of Kishinev and the ten men associated with him who received the declaration of Dr. Rabinovitch, were all of the opinion that the Jewish religious consciousness can have no valid objection to autopsy. To this opinion I fully subscribe, as I cannot find any law in Bible, Talmud, or Shulchan Aruch, which would justify such an objection.Jacob Z. Lauterbach See also:S.B. Freehof, “Donating a Body to Science,” Reform Responsa, pp. 130ff; “Bequeathing Parts of the Body,” Contemporary Reform Responsa, pp. 216ff.
If needed, please consult Abbreviations used in CCAR Responsa.