DETERMINATION AND POSTPONEMENT OF DEATH

QUESTION:

What are the religious connotations of the fact that an artificial heart may for a time revive a patient whose heart has stopped beating? Or if a patient is revived after irreparable damage has been done to the brain, would such action be deemed justified by Jewish religious tradition? (Question referred by Nelson Glueck, Cincinnati, Ohio.)

ANSWER:

THE VARIOUS matters involved here have all become actual and practical due to modern methods of resuscitating those apparently dead. They involve many ethical and traditional problems as the questions quite properly indicate.

First of all, what does tradition consider physical evidence of death? When has death actually occurred? This question became a practical one almost two hun dred years ago when laws were passed in various Central European countries prohibiting the traditional Jewish custom of burying the dead on the very day of death. These new laws had in mind the possibility that a patient may seem to be dead and not really be dead and that, therefore, there must be no burial before three days have passed. When Moses Mendelssohn was asked, he argued that a threeday delay was permissible by Jewish law. Jacob Emden proved the opposite, namely, that it was not permissible to delay burial. Later when the same decree was passed in the Austro-Hungarian Empire, other incidental problems were involved. For example, could a doctor who was a Kohan examine the dead to see that they are actually dead? Could he examine the body two days after the apparent death, which the law would require and which Jewish law forbids to a Kohan?

This question was taken up by the great Hungarian authority, Moses Sofer, in his responsa, Yoreh Deah, #338, and his chief proof is based upon tradition, namely, that our people who deal with the burial (the Chevrah Kadisha) have an inherited tradition of ancient wisdom and they can tell whether the person is really dead or not. That test is mainly whether there is any breathing. When the breathing has finished and the pulse has ceased, the person is declared dead. This assumption of an ancient, inherited wisdom was a natural one for Moses Sofer to make in defense of the Jewish custom of burial on the day of death. (For a full discussion of this responsum, see Treasury of Response, p. 236 ff.)

All this, of course, deals merely with fixing the moment of death. But the law is concerned, also, with an earlier situation, namely, the state of such people who are so badly injured or so sick as to be definitely in a dying condition with no probability of long survival. In other words, there is a great deal of debate as to when a person, although living, no longer has real viability. Such a person is called trefah by analogy with an animal which is torn by beasts and thus called trefah. Which injuries in an animal make it virtually a dying animal and therefore prohibited for food? The main injuries and ailments are considered traditional from Moses from Mount Sinai (b. Chulin 43a top). Maimonides elaborates the list of traditional evidences of moribundity to an enumeration of seventy such ailments (Hil. Shechitah X, 9). Do such injuries apply to human beings also? In other words, if a person has such an injury or ailment is he considered to be already in dying condition? There is disagreement in the law among the scholars as to whether that is so. A convenient summary of the differing opinions of the Tosefists on this question is to be found in the commentary of Yom Tov Lipmann Heller, to Yev. XVI, 4. In general, they may disagree about certain animal ailments or injuries, whether they are a mark of moribundity when found in man, but by and large they accept the standards set down for ani mals, namely, that if a person (as is in the case with animals) cannot be expected to live more than twelve months, such a person is considered to be in a dying condition.

These discussions of whether a person is to be considered trefah, i.e., moribund, have bearing on practical legal questions. Chaim Alfandari, in his responsa, Magid Mereshit, #2, presents an interesting question involved here. A man may not marry his wife’s sister if his wife is still alive, but after she dies there is no such prohibition. The question asked here was the following: A man’s wife was moribund and he gave Kidushin to his wife’s sister. Are these Kidushin valid on the ground that his first wife, being moribund, is to be considered as legally dead? (The conclusion, incidentally, is that such Kidushin are prohibited.)

A fuller discussion of the question of moribundity in man is given again by Moses Sofer in his responsa (Yoreh Deah #52). It begins with a question of an animal that was shot with bird-shot and lived longer that the period of twelve months. Is the animal to be considered trefah and therefore unfit for food? After discussing this primary question, he goes into the question of the extent to which these rules of trefah animals apply to man, and he says, of course, that man may survive certain ailments and injuries which would be fatal in animals, because of the belief that man has a protecting angel or good luck, adam it lei mazala. (Shabat 53a) And sometimes medicines ap plied to a human being will cure him. On the other hand, he says, in some ways man is weaker than animals and the various injuries, etc., mentioned as fatal apply all the more to man than they do to animals

The questions asked involve also the matter of brain injuries. It is interesting to note that this question is also asked and discussed in the Talmud. For example, a brain injury would declare an animal trefah but with a man it would have to be not only a fracture of the skull but also an injury to the lining of the brain (cf. Tos. to Chulin 42b). And also, the Talmud in Chulin 57b tells of an incident that happened in the town of En Bol, where a man had a hole in his head and they made him a plug of pumpkin shell and he lived. But one rabbi says that the patient lived only because that event occurred in the summer but when the winter came he died.

Out of all this discussion they have a general standard of moribundity. First the one in the Mishnah, Chulin III, 1, that when similar injuries are fatal in others, these injuries, wherever they occur, are deemed fatal. And, secondly, the rule that those that are not likely to survive twelve months are considered to be moribund (trefah). Now the practical ethical problem is this: Whatever their ancient rules were as to moribundity, we must understand that the rules of analogy with animals were not deemed absolute and as Moses Sofer says, by good fortune and by medicine certain ailments can be cured. Our question becomes more specific: Is there a point where it would be considered morally wrong to apply modern devices? Let us say a patient is dying of cancer and is in great pain, and his heart has blessedly stopped; is it morally right to revive him, as can often be done, only that he may suffer longer? There is a general principle on this question which is derivable from Jewish tradition. It goes back to the narrative in the Talmud, Ketuvot 104a. Rabbi Judah the Prince was dying in great suffering. The rabbis insisted on ceaselessly praying so that he be kept alive a little longer; but his famous servantwoman (who is often referred to with honor in the Talmud) threw an earthen jar from the roof in 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 come times when we should pray for God’s mercy that he may die. So, too, in Sefer Chasidim, #315-318, basing its opinion on the statment of Ecclesiastes: “There is a time to live and a time to die,” says as follows: “If a man is dying, 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 he will endure great suffering. So, ‘there is a time to die.’ ” (See other such references in Reform Responsa, p. 117 ff.) In other words, according to the spirit of Jewish tradition just as a man has the right to live, so there come times when he has a right to die. And we have no right to deprive him of that peaceful departure. The Shulchan Aruch, Yoreh Deah 339, makes it clear that while we may do nothing to hasten death, we should not do anything to prevent its coming when it is inevitable.

The basic question here involved is: How much importance should we give to the last few hours of life of a dying man? Would we consider these last few hours so important that we would encourage the doc-tor to give him stimulants to keep him alive for another half hour and another half hour?

The chief source of the discussion is derivable from the Talmud in Avodah Zarah 27b, where the question is whether a Jew should submit to the medical attention of a heathen healer. The question arose because the heathens in those days would be suspected of putting the Jewish patient to death. So, too, a heathen was not permitted to circumcise. Of course this does not apply to Christian doctors, nor even in the case of heathens to a physician of proven skill. It applies to a heathen healer whose skill is dubious and whose motives are questionable. In discussing the question whether to use even such a dangerous pagan healer, the answer is that it depends on how sick the Jew is. If there is a fair chance that he might recover, that is, if the probabilities are equally balanced whether he will live or whether he will die, then we may not risk that fifty-fifty chance and employ the dangerous pa gan. But if it is strongly probable that he is dying anyhow, then the risk of using the help of the pagan is permitted. The reason given in the Talmud for this distinction is stated as a principle, namely, “We do not put too much importance on the last moments of life,” En maskgichin lechaye sha’ah. In other words, the last few moments of a dying man might as well be risked since they are not of too much importance. So, too, the law is stated in Maimonides, Hil. Rotseach, XII, 9, and so in the Shulchan Aruch, Yoreh Deah 155, #1.

Of course the principle that “we do not put too much importance on the last moments of life,” chaye sha’ah, does not mean that we may hasten death. That is clearly forbidden. We may not hasten death by any action. To that extent, we do care for the last hour; but on the other hand, if there is a fair chance that a person may actually be healed from his sickness, we may risk that last hour. This willingness to take a chance with the last hour for the sake of healing is clearly stated by Nachmanides in his Torat Ha’adam, p. 1 1d (Venice ed.) He says we disregard the dubiousness of “the life of the hour” (i.e., the last dying hour) in the face of the possibility that he might live for a considerable time.

This willingness to risk the last hours of life, which the Talmud in Avorah Zarah mentions as a regular rule, was applied practically in at least two instances in the responsa literature. Jacob Reischer of Metz (d. 1733) in his Shevut Yaakov, III, #75, had exactly such a question. The person was, in the doctor’s judgment, now dying. He had only one or two days to live. There was, however, a new medicine that could per-haps cure him, enabling him to live for a long time, but it might also kill him. Reischer, according to the principles mentioned above, said that while we may not in general hasten death, if however the doctors agree that there is a fair chance that he may be cured for a good extension of his life, then we should risk this last day of his life. Precisely the same question has come up recently in a responsum by Jacob Breisch of Zurich, Switzerland, in his newly appeared volume III, responsum #141. He comes to the same conclu-sion as did Jacob Reischer two centuries before.

The principle, therefore, is clear enough. These last few hours of life, chaye sha’ah, are not so important in the ethics of the Halachah that we may keep on preventing a person from dying, just in order to gain another hour or two. Of course, for a fair probability of cure, we must try all means and methods and even risk for a probable cure wiping out of his last hour or two.

Greater knowledge of the human body enables us to define much more closely than the rabbis of the past did when a person is actually moribund or whether he still has viability. We also have new remedies such as heart-pacers, adrenalin, etc. Nevertheless, the ethical principle underlying the Jewish tradition seems strong, although, of course, applied somewhat differently today. The ethics of the law would be substantially as follows: If the modern methods of revival bring with them a fair probability that the patient may recover some health for, let us say, twelve months (as their old test had it) and be fairly free of pain and be able to live a life of some activity, then the remedy is justified and the patient should be revived. But if these methods merely revive a patient for a longer period of pain, or continued weeks or even months of moribundity, then they are contrary to the spirit of Jewish ethicallegal tradition.