Responsa

TFN no.5755.11 381-390

CCAR RESPONSA

Testing Emergency Medical ProceduresWithout the Consent of the Patient

5755.11

She’elah

A physician who specializes in the research and development of cardiac resuscitation technology wants to know the ethical and halakhic issues involved in testing without consent. In many cases, the consent of the patient cannot be obtained prior to his or her cardiac arrest. Obtaining surrogate consent is not always practical, since the patient may well die without immediate treatment. There is a great need to test new emergency therapies, since current survival rates under standard manual cardiopulmonary resuscitation (CPR) are dismal. On the other hand, the critical condition of a small percentage of patients might actually be worsened prior to stopping these tests, despite ongoing supervision. (Rabbi Joseph A. Edelheit, Minneapolis)

Teshuvah

Jewish tradition has much to say concerning the practice of medicine. It also addresses the issue of individual consent, whether and under what circumstances a person is entitled to refuse medical care, as well as the distinction between proven and yet-to-be proven (experimental) methods of treatment. As Reform Jews, meanwhile, we are the heirs and the creators of a stream of Jewish tradition which places great positive value upon both scientific progress and personal autonomy. Taken together, these teachings and affirmations pull us toward opposite and contradictory conclusions when we face this difficult question. Yet we shall need to consider all of them as we seek to forge a consistent and satisfying Jewish ethical message.

The Dilemma.

The practice of medicine is understood as a mitzvah, a religious requirement under Jewish law. Thus, despite the fact that the Talmud speaks of a “permit” (reshut) rather than a duty to heal¹ and despite various indications in the sources of a negative attitude toward medicine and physicians,² most authorities regard medicine as the primary means by which we fulfill the commandment to save life (pikuach nefesh).³ This duty applies to one’s own life as it does to the lives of others;⁴ it would follow that a person is not entitled to refuse lifesaving medical treatment. The sixteenth-century authority R. David ibn Zimra drew just this conclusion when he condemned as a “pious fool” a person who refused to violate the Shabbat in order to prepare medication. “This is no act of piety but of suicide. He is therefore compelled to do what the physicians prescribe.”⁵ Contemporary authorities concur that the patient “must do as the doctor orders.”⁶ On this basis we could argue that traditional Jewish law requires a patient to accept CPR and that emergency medical personnel are entitled to administer the therapy even if the patient is incapable of expressing consent.

The difficulty with this argument is that the CPR method under discussion is experimental in nature. The doctors, that is, are not yet certain as to its therapeutic effects. And under Jewish law, a patient is under no obligation to accept medical treatment whose efficacy is doubtful or untested.⁷ Moreover, as the she’elah indicates, the condition of “a small percentage of patients” might actually worsen under the use of this therapy rather than the more conventional methods of CPR. The doctors therefore cannot necessarily presume the patient’s consent before testing this therapy upon him or her. To proceed with the test upon a person who has no moral obligation to accede to it and who, if conscious, might well refuse consent, is to invite strenuous objection on ethical grounds. By what authority do we ignore the patient’s right to make an informed choice to accept–or reject- -medical treatment? And what statement do we as a community make concerning our own values when we arrogate this right to ourselves? We Jews, who remember all too well the experiments conducted by Nazi “scientists” upon the inmates of concentration camps, surely recoil at the specter of a scientific establishment which turns human beings into involuntary subjects of experimentation.

On the other hand, we liberals have historically placed great faith and trust in the power of reason and science to improve the human condition. We therefore cannot ignore the critical importance of scientific experimentation to the advancement of medicine. The very institution of “modern medicine” whose achievements we praise and upon which we rely to protect our lives is largely the product of testing and experimentation, much of it upon human subjects. In many cases there is no alternative to testing upon humans. For example, the current, “accepted” methods of CPR could only have attained that status because they were tested and perfected upon human beings who were experiencing cardiac emergency. Should we place severe restraints upon physicians’ ability to test new and promising emergency procedures, we may prevent them from developing the tools needed to save countless lives in the future.

The dilemma is this: the patient has no moral obligation to accept treatment that is potentially dangerous and whose lifesaving–i.e., medical–properties are doubtful. At the same time, it is precisely by testing such treatments upon human subjects, who in cases of emergency are usually unable to express their desires, that doctors learn how to save lives, to fulfill the commandment of pikuach nefesh, to do “medicine” at all. Is there an answer that strikes a proper balance between the legitimate concern for patient autonomy and the equally legitimate needs of medical science?

Halakhic Considerations.

No such answer is to be found in the responsa of contemporary halakhic authorities. We think, however, that one can be derived through a consideration of the Jewish law on scientific experimentation on humans. The answer consists of three parts: first, that persons are allowed to subject themselves to controlled and careful scientific experimentation; second, that there exists in some cases a general ethical duty to submit to experimentation; and third, that in certain emergency situations physicians may within reasonable limits administer an experimental remedy to the patient.

1. Scientific Experimentation Upon Human Subjects. May a person volunteer to serve as a subject in a scientific experiment? A factor which argues for a prohibitive answer is the Talmudic tradition which forbids a person from inflicting physical injury upon his or her body.⁸ Maimonides cites this rule as halakhah, but it is significant that he limits the prohibition to injury caused “by way of contempt” for the body.⁹ How he derived this limitation is not clear; some suggest that, since physical injury can be financially compensated and that an injured person is entitled to waive the damages, the Rambam rules that the person is similarly entitled to inflict self-injury when that act is the source of some benefit.¹⁰ The contemporary halakhic debate concerning cosmetic surgery revolves around this point. Those who permit cosmetic surgery argue that, while an individual is ordinarily forbidden to inflict self-injury, the benefits which may accrue from an improved appearance demonstrate that the procedure is not undertaken out of “contempt”. That conclusion can obviously be debated; this Committee, among others, has expressed serious reservations over the supposed “benefits” of cosmetic surgery.¹¹ On the other hand, careful and legitimate medical experimentation holds the promise of increasing our fund of the kind of knowledge that may one day cure terrible diseases and save countless lives. Surely this constitutes an acceptable warrant for an individual to waive the prohibition against self- injury in order to submit to scientific experiment.

2. The Ethical Duty to Submit to Experimentation. This “right” to volunteer as a subject in a scientific experiment can also be expressed in the language of obligation. It is well-known that the tradition holds the preservation of life (pikuach nefesh) to supercede virtually all other commandments¹² and that we have a positive duty to rescue those whose lives are endangered when we can do so.¹³ Indeed, that we are commanded (rather than merely permitted) to practice medicine is based on this recognition of an obligation to save the lives of others.¹⁴ We would not suggest on the basis of this teaching that every person is required to volunteer as a subject in a scientific experiment, any more than we would conclude that the commandment to practice medicine obliges every person to become a physician. Rather, just as a person who does possess medical knowledge is said to have an ethical duty to use that knowledge to treat disease and to save lives, it can be argued that one who has the opportunity to participate in an experiment or study directed at the advancement of medicine has something of an obligation to do so. This may be especially true in our case, where the individual has no choice but to receive CPR and where the experimental therapy, which must be tested upon humans, has the potential of saving numerous lives which would be lost under current procedures of resuscitation.

The difficulty with this argument is that, while Jewish law requires me to save the life of another, it does not obligate me to endanger my own life to do so. The very text which establishes the duty of pikuach nefesh declares that we are to perform the mitzvot so as to “live by them” and not place our lives in jeopardy.¹⁵ Thus, while I am commanded to save a drowning person, I am not obliged to make the attempt if in doing so I place my own life at risk.¹⁶ The predominant halakhic position extends this to instances of less-than-mortal risk: I am not required–and perhaps am forbidden–to assume potential danger (safek sakanah) in order to rescue a person whose life is in clear and present danger (vadai sakanah).¹⁷ According to this view, there is no duty to submit to a scientific experiment, even one that could result in the discovery of life-saving information, so long as there is any significant degree of risk involved. On the other hand, this view is not unanimous: some authorities hold that the halakhah does not prohibit an individual from entering into a situation of potential danger in order to rescue a person facing vadai sakanah.¹⁸ It is, moreover, quite possible that the predominant view is in error and that the Talmudic and other sources upon which it is based do not forbid–and perhaps require–an individual to enter into safek sakanah to save another in clear and present danger.¹⁹

Our own conception of individual moral responsibility leads us to favor the latter, more stringent position. Most of us, we think, would prefer to live in a community whose members, rather than insisting rigidly upon their personal safety at all costs, are prepared to assume a limited degree of risk to save the lives of their neighbors. This is not, we stress, a call for an ethic of self-sacrifice; we do not believe that all people must live according to the terms of midat chasidut, a saintly standard of behavior. On the contrary: we would argue that the proposed standard is an eminently reasonable one that lies well within the reach of normal human beings. It represents the minimal level of care and concern for the lives and welfare of others below which an ethical community is scarcely imaginable. This standard, if not the dominant view among halakhists, is thus both arguably the more accurate interpretation of the sources and certainly the more exalted expression of Jewish thought. Under its terms, an individual would be permitted to volunteer as a subject in an experiment aimed at discovering life-saving information so long as whatever risk he or she assumes by participating is less than vadai sakanah. Indeed, in some cases, where the potential for saving life is both real and vital, participation in such an experiment could well take on the status of a moral duty.

3. Emergency Experimental Treatment Without the Patient’s Consent. The case at hand, however, is no ordinary experiment. By foregoing the accepted methods of cardiopulmonary resuscitation in order to test new ones, medical professionals may well be withholding life-sustaining care from a patient in critical condition. Remember, too, that the survival chances of a small percentage of patients will worsen under these experimental procedures. Their use might therefore place a patient in a situation of vadai sakanah, and while self- sacrifice may be admirable, Jewish tradition does not suggest that an individual must undertake mortal danger in order to save the life of another.²⁰ Is there an ethical rationale which would ever permit the testing of new methods of CPR in the absence of a patient’s consent?

It might be useful to compare our question to the employment of randomized clinical trials (RCTs) in medical experimentation. In these trials, subjects/patients are randomly assigned to different therapies or placebos in an effort to keep variables other than the differing treatments from distorting the results of the study. While this method offers great scientific value, it poses serious ethical problems. The physician’s primary responsibility, after all, is to the health of the patient; is this responsibility not violated when the patient is given a placebo instead of the treatment that the other subjects receive? The answer clearly is “yes” if we know that by including the patient in the experiment we lessen his or her chances for recovery. On the other hand, those who favor RCTs respond that these methods are ethical, provided they are utilized only when there is genuine doubt as to the efficacy of existing therapies, whether standard or experimental, so that “no patient…will receive a treatment known to be less effective or more dangerous than another available alternative.”²¹

Conclusion.

Let us translate this discussion into the Jewish vernacular. It is a mitzvah to heal, to practice medicine. Under the terms of this requirement, physicians are obligated to provide the accepted and recognized medical therapies to patients who come to them, and patients, in turn, are obliged to accept them. A placebo is not therapeutic; it does not qualify as refu’ah, medical treatment. We are, of course, aware that belief in the efficacy of the placebo may, in some cases, contribute to the patient’s healing. In our case, however, the experimental method of CPR is by no means a placebo. It is in fact a new technique which offers great promise in the saving of life. Nor is it obvious that the experimental method is less therapeutic to the patient than the standard methods. As the she’elah points out, though the condition of some patients might deteriorate under the use of the experimental method, the survival rates under current methods are in any event “dismal”. Given the unsatisfactory nature of current therapies, there would seem to be no reason to conclude that the new method is, in general, less therapeutic or medically efficacious than the standard one.

Our conclusion, then, is that emergency lifesaving therapies such as the one under discussion may in certain cases be tested upon patients without their express consent. This is because in those cases the experimental therapies qualify as legitimate medicine (refu’ah) which an individual is obligated to accept in fulfillment of the mitzvah of pikuach nefesh, the saving of life. These therapies are legitimate medicine under the following conditions:

1. The physicians are reasonably certain that the experimental therapy is neither significantly more dangerous nor less efficacious than the standard therapies. This “reasonable certainty”²² applies to the individual patient as well as to the population as a whole: if there is reason to suspect that this individual will fare worse under the experimental therapy, he or she must receive the standard treatment.

2. The medical personnel on the scene immediately discontinue the test once it becomes evident that the experimental method is not achieving the desired result. The strictest supervision must be maintained, for the life of this patient takes priority at all times over the potential lifesaving knowledge that can be gleaned by the test.

We add a final caveat. As we stated above, society ignores at its moral peril the requirement that patients be informed of their medical treatment and that they consent to it. While in some situations, such as this one, informed consent is difficult or impossible to obtain in advance, medical professionals must undertake every effort to educate the community as to the state of technology in various medical fields, the need for further research, and the therapeutic options available to physicians in specific situations. For we know that a medical establishment which does not meet the duty of disclosure to the public will soon lose the confidence of the public and, necessarily, its ability to function as an instrument of healing.

Notes

BT. Baba Kamma 85a, from Exo. 21:19. See II Chronicles 16:12 and Isaiah 38:3, and BT. Berakhot 10b and Pesachim 56a on the latter; BT. Berakhot 60a and Rashi, s.v. she’ein darkan shel benei adam; BT. Kiddushin 82a (M. Kid. 4:14) and Rashi, s.v. tov shebarof’im. For a general statement of this position, see Ramban on Lev. 26:11. Ramban, Torat Ha’Adam, Chavel ed. (Jerusalem, 1964), pp. 41-42. He notes that the prohibitions against work on Shabbat and Yom Kippur are set aside in cases when life is in danger and that we customarily rely upon a physician’s diagnosis to determine when danger exists. His words are embodied in the Tur and the SA, YD 336. Maimonides, by contrast, learns the mitzvah of medical practice from Deut. 22:2 and the Talmudic discussion in BT. Sanh. 73a (Rambam, Commentary on M. Nedarim 4:4). See our responsum 5754.14, above p. , for a detailed discussion. Lev. 18:5 and BT. Sanh. 74a: a person may violate almost any commandment in order to save his own life. The Rambam adds that, should he in such a case choose instead to follow the commandment and thereby lose his life, he is guilty of suicide (Yad, Yesodey HaTorah 5:1). Resp. Radbaz, v. 1, # 1139. R. Eliezer Yehudah Waldenberg, Resp. Tsits Eliezer, v. 5, Ramat Rachel, ch. 20; R. Ovadyah Yosef, Resp. Yechaveh Da`at, v. 1, # 61. R. Ya`akov Emden, Mor uKetzi`ah 328; R. Moshe Raziel in Techumin 2 (1981), 335-336. M. Baba Kamma 8:6 (90b); BT. Baba Kamma 91a-b. The Talmud cites here the familiar midrash (on Num. 6:11) concerning the nazir, who is regarded as a “sinner” because he denies himself the legitimate pleasures of wine: “if such a person is a `sinner’, then kal va-chomer is one who inflicts physical pain upon himself a `sinner'”. Yad, Hilkhot Chovel uMazik 5:1. Thus, in pietistic communities where physical means of atonement are practiced a person may hire another to administer the beatings; Shulchan Arukh of R. Shneur Zalman of Liady, CM, Hikhot, Nizkey HaGuf, no. 4. See R. Simchah Hakohen Kook in Sefer Asya, v. 3 (1983), 292. See our responsum 5752.7, “On the Permissibility of Cosmetic Surgery”, above p. , and the literature cited therein. Lev. 18:5; BT. Yoma 85b and Sanhedrin 74a; Yad, Hilkhot Yesodey HaTorah 5:1; SA, YD 157:1. Lev. 19:16; BT. Sanhedrin 73a; Yad, Hilkhot Rotseach 1:14; SA, CM 426:1. The authorities are divided as to the source of the commandment to heal. Nachmanides locates it in Ex. 21:19 and Lev. 18:5 (Torat Ha’Adam, Chavel ed., 41-42), while Maimonides relies upon Deut. 22:2 and BT. Sanhedrin 73a (Commentary to M. Nedarim 4:4). Lev. 18:5; BT. Yoma 85b and Rashi s.v. deShmuel. Minchat Chinukh, mitzvah 237, #. 2. We might also cite the famous passage concerning the two wanderers in the desert (BT. Baba Metsi`a 62a). The law is generally thought to follow R. Akiva, who rules that the traveller holding the container of water is not obliged to share the water with his fellow, since “your life takes precedence over his.” See, in general, Aaron Kirschenbaum, “The `Good Samaritan’ and Jewish Law,” Dine Israel 7 (1976), 46 and 51, and the essay by Avraham Avidan in Torah shebe`al Peh 16 (1974), 129-134. Sources include Bayit Chadash, Tur CM 426; Sefer Me’irat Eynayim, CM 426, n. 2; Shulchan Arukh of R. Shneur Zalman of Liady, Hilkhot Nizkey HaGuf, part 5; R. Naftali Zvi Yehudah Berlin, Ha`amek HaShe’elah, she’ilta 147, end; and R. Eliezer Yehudah Waldenberg, Resp. Tsits Eliezer 9, no. 17, ch. 5. Arukh HaShulchan, CM 426, n. 4; Torah Temimah to Lev. 19:16, n. 10. See also R. Yosef Karo, Beit Yosef, CM 426 and Kesef Mishneh, Hilkhot Rotseach 1:14. For a detailed version of this argument see Journal of Reform Judaism 36 (Winter 1989), 53-65. This statement needs some qualification. Some authorities, for example, do not apply this rule to a situation of wartime, where soldiers are indeed required to endanger themselves for the good of their comrades and of the nation; see Avidan (above, n. 17), 131ff. Then there is the position of R. Avraham Yitzchak HaKohen Kuk, who holds that in cases of communal emergency the individual Jew must be prepared to sacrifice his life on behalf of his people; Resp. Mishpat Kohen, # 142-144. Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics (New York, 1989), 351. It is not our province to define “reasonable certainty” with statistical precision. Any measure we adopt (say, a less-than-five-percent chance that the experimental treatment will prove less effective or more dangerous than the standard one) would be in some sense an arbitrary one. As is the case with all general legal standards, the parameters of “reasonable certainty” are set through a process of reasoned evaluation by those charged with making the decision. In this case, a medical judgment must be rendered by medical experts. If, in their informed opinion, the standard of “reasonable certainty” is met, then our answer applies. On the function of “expert medical opinion” in halakhic judgment, see SA OC 618 and Mishnah Berurah ad loc.

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 245-246

CCAR RESPONSA

American Reform Responsa

74. Physician Keeping Truth from a Patient

(Vol. LXIV, 1954, pp. 80-81)QUESTION: As a physician I know that in being truthful with my patients I retain their confidence as well as my own self-respect. But it is not always possible for me to disclose all I know or have reason to suspect. I feel at times that the interest of my patient is better served if I withhold from him information of a shocking nature. Having lived all my life in religious surroundings, I have often wondered what Jewish religion has to say on the subject. Am I ever justified, on religious grounds, in keeping the truth from my patients?ANSWER: Our ancient teachers, from whose utterances we draw deep draughts of wisdom even today, often voiced the conviction that religion was the handmaid rather than the lord of life. They held, for example, that with the exception of a number of vital negative commandments, the injunction to live in accord with the law precluded any situation in which complete obedience might prove perilous to life and health (Sifra, Lev. 18:5) It is not strange, therefore, to hear these pious men express the view that in order to preserve peaceful relations among men, the bare truth may be given an appropriate disguise. In fact, they discover that on one occasion God Himself, to forestall any possible discord between Abraham and Sarah, deviated from the line of strict veracity (Yevamot 65b). This general attitude finds embodiment in some legal enactments of the Rabbis. We are enjoined, for example, from apprising a sick person of the death of a close member of his family, lest the mental disturbance aggravate his condition (Yoreh De-a 337). Again, when one is about to die, and confession of his sins is in order, he shall be summoned to this last rite in a hopeful tone and in an atmosphere free from any display of grief. The prescribed formula reads: “Many men, after having made their final confession, continued to live; many others, having failed to confess, also failed to recover. You who are about to confess your sins will surely be rewarded with renewed life. Also, confession assures one of his due portion of the world to come” (ibid., 338). The physician, who respects the truth and maintains truthful relations with all men, need have no qualms of conscience when, in certain special cases, in the pursuit of the good of a patient, he complies with the requirements of the situation and suppresses what appears to him to be the truth.Israel BettanSee Also:S.B. Freehof, “Dying Patient Informed of his Condition,” in Reform Responsa, pp. 122ff.

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5750.5 365-369

CCAR RESPONSA

Hospital Patient Beyond Recovery

5750.5

She’elah

A man in his seventies suffered a stroke, but was expected to recover. During this period he received his nourishment through a feeding tube. However, recovery did not take place and for the past four or five months he has been in a semi-comatose condition, with no hope for improvement. Family and doctor wonder whether it is permissible to withdraw the feeding tube and let him die. (Rabbi Sheldon Ezring, Syracuse, NY)

Teshuvah

In order to consider the she’elah some additional information about the patient and his condition was solicited and was supplied by the attending physician:

The patient had been an intellectually and psychologically sound septuagenarian who developed a massive left sided cerebravascular accident secondary to emergency thoraic surgery. A nasogastric feeding tube was placed early after the onset of his stroke as all thought that a “meaningful recovery” would ensue. It did not. He remains mute and usually asleep. He barely responds to his name spoken — he might slowly and in a delayed fashion move his head toward the speaker. Occasionally he would be found rubbing his scalp. When his eyes are open, his stare is almost always “blank.” At most, he makes brief eye contact. There is no consistent response to voice command such as appropriately moving an extremity.

All of this remains the case greater than 4-5 months past onset of his stroke. His CT scan demonstrates massive left brain permanent damage.

The physician then posed some questions and proceeded to answer them:

1. Does he fulfill the criteria of persistent vegetative state? No! [sic]

2. What is his quality of life? As we can ascertain it, close to zero.

3. Will any further measures be undertaken besides oxygen or feeding tube? No.

4. Would he have wanted to be kept alive at this “level” based on pre-admission conversations? No.

5. Does the family view his quality of life as meaningful? No.

6. Can they ethically bring him home and stop feeding him through a feeding tube?? [sic; the doctor added the extra question mark and did not venture an answer.]

Withdrawal of life support systems.

The matter of withdrawing life support systems from a dying patient has been dealt with in a responsum by R. Solomon B. Freehof.¹The question put to him was as follows:

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?

In a wide ranging discussion Freehof drew, inter alia, on Joshua Boaz who stated that while one must not do anything to hasten death, one may remove the causes of the delay of death.²Freehof concluded:

If the physician actively attempts to hasten the death, that is against the ethics of Jewish law. In the case as described “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.

We see no reason to depart from Freehof’s decision, but must raise two questions:

a. whether our patient may be considered terminal;

b. if so, whether the nasogastric tube, which was originally a means of hoped-for recovery, may now be considered a “heroic measure” which might be discontinued.

Is the patient considered terminal?

Ad a. The physician’s letter does not suggest that the patient is near death, that is, in halakhic parlance, a goses. The writer denies that the patient’s state can be described as “persistent vegetative,” (sub 1 ) but also does not affirm that death is imminent or even near and merely says that no further measures, beyond oxygen and feeding tube, will be undertaken (sub 3 ). We therefore deal with a patient who is not facing imminent death but may be considered hopeless as far as recovery is concerned. In this regard his condition is similar to that of the Quinn girl in New Jersey some years ago.³

Ad b. Since the patient is not at death’s door the question becomes moot.

We must therefore conclude that Freehof’s discussion and teshuvah , which deal with a goses, do not to apply to the she’elah before us. Rather. we deal with a different question: May a feeding tube be withdrawn from a patient who, without such action, might remain alive for an unknown time? The she’elahis therefore about the permissibility of euthanasia.

Euthanasia and Jewish law.

This question too has been discussed with both in traditional sources and Reform responsa.

A teshuvah by the CCAR Responsa Committee (1980) dealt with a patient who had sunk into a deep coma and was kept alive solely by artificial means. The Committee was of the opinion that it would be permissible to remove life support systems once all signs of “natural independent life” had disappeared and brain death, as defined by the ad hoc committee of the Harvard Medical School, had occurred. The ruling concluded by saying: “We would not endorse any positive steps leading toward death…We would reject any general endorsement of euthanasia…”⁴

This was in keeping with an earlier report to the CCAR by a special committee, chaired by R. Israel Bettan (1950), which studied the permissibility of euthanasia in general terms and, reaffirming the Jewish ideal of the sanctity of human life and the supreme value of the individual soul, considered euthanasia “contrary to the moral law.” A spirited floor debate followed in which contrary opinions were brought forth. The Conference itself did not vote to endorse the report, but instead merely received it and referred it to the Executive Committee.⁵ This meant, in effect, that the report stands as the opinion of the Bettan committee but not as a resolution of the Conference. In that respect it has the same standing as a report of the Responsa Committee.

We are dealing with a patient who is neither dying nor even in a deep coma. On a greatly reduced level he still responds to some external stimuli. In all precedent considerations of similar conditions, the removal of the feeding tube would be seen as an act of euthanasia.

But what of the argument, contained in question 5 of the physician’s letter, that, in the opinion of the family, there is no further “meaningful quality” to the patient’s life, and that therefore the family would endorse removal of the tube? A more recent responsum by the CCAR Responsa Committee dealt with this very question (1985), when it addressed itself to the case of a person who was unable to communicate because a segment of the brain which provided intelligence seemed to be damaged beyond repair.

Judaism does not define human life only in terms of mental activity. Every person has been created in the image of God, and so even those individuals who may be defective…have always been considered as equally created in the image of God; their life is as precious as any other. It is necessary to guard their life and protect it just as any other human life. This is also true of an elderly individual who has lost some… mental ability or power of communication….⁶

The underlying concern of this teshuvah was that we really do not know what “quality of life” really means. Furthermore, we still have an incomplete understanding of what goes on in the mind of the paralyzed patient who is unable to communicate properly. We are prone to assume that he would not wish to keep on living and may in fact have talked about such a situation at some previous time (Doctor’s question no. 4 ). It is indeed possible that he now wishes to die and then again, he may wish to live, either because he still hopes to recover or because he has an active mental life of which we know little. As long as this uncertainty exists we need not address the question of whether we would have a right to help our patient die if indeed he wished to end his life. To be sure, there is also the emotional and financial drain on the family, a drain that is undoubtedly severe. But this responsum can hardly be expected to rule on a person’s life and death on such grounds. The responsibility for the former remains the family’s, and for the latter rests to a significant degree with society at large, which must provide a safety net for catastrophic illness.

In sum, since the patient is not dying the withdrawal of the feeding tube is not permissible in the light of Jewish tradition, as confirmed by precedent responsa. Though we have the deepest empathy with the unfortunate circumstances we have no choice but to confirm a larger principle.

Notes

CCAR Yearbook Lxxix (1969) pp. 118-121, reprinted in full in American Reform Responsa, ed. Walter Jacob (New York: CCAR, 1983), pp. 257-260. Shiltei Ha-giborim, commentary on B.T. Mo’ed Katan, ch.3 (16b in Vilna ed., Alfasi). In that case a court permitted the parents to cease “heroic” measures. This was subsequently done, though intravenous feeding was not ended. It was expected that the girl would die shortly, but to everyone’s surprise she lived on for some months, sustained merely by the feeding device. American Reform Responsa, op. cit., no. 79. Ibid., no. 78. Walter Jacob, Contemporary American Reform Responsa (New York: CCAR, 1987), no. 83.

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 259-262

CCAR RESPONSA

New American Reform Responsa

157. An Elderly Patient who Refuses Dialysis

QUESTION: An intelligent, articulate, eighty-three year old widow has renal disease which can be treated by kidney dialysis. She was diagnosed eight years ago and refused dialysis. Since then her health has generally deteriorated with a hip fracture, incontinence and heart disease. She has now entered a nursing home and suffers from end-stage renal disease as well as congestive heart failure. She has made it clear to her brother as well as those at the nursing home that she wishes no drastic treatments (CPR, mechanical ventilation, feeding tubes, etc.) but wants to die peacefully and without pain. One of the attending physicians feels a strong obligation to save this patient’s life. He argues that he cannot let her die of renal kidney disease and wants to impose dialysis upon her. Should she be forced to undergo dialysis? What are her rights and obligations and what are those of the physician in this case. (Rabbi Dayle Friedman, Philadelphia PA)ANSWER: A good deal has been written about the obligations of a physician to heal. Our tradition from Talmudic times onward has encouraged the use of every possible medical procedure in order to save lives. The discussions were based on “He shall cause him to be thoroughly healed” (Ex 21.20) and “You shall not stand idly by the blood of your fellow” (Lev 19.16). Even risky procedures may be undertaken if the physician thinks that there is a reasonable hope for recovery (San 73a; A Z 27b; J. Reischer Shevut Yaakov III #85; Eliezer Waldenberg, Tzitz Eliezer 10 #25 Chap 5 Sec 5; Moshe Feinstein Igrot Mosheh Yoreh Deah 2 #59; I. Y. Unterman Noam 12 p 5; W. Jacob (ed) American Reform Responsa #75, 76, 77, 79; W. Jacob Contemporary American Reform Responsa #77, 85). We have gone somewhat further and permitted a patient who understands the risks, to be part of a dangerous medical experiment in which the chances of recovery are slim (W. Jacob Contemporary American Reform Responsa #17) . Patients have always been encouraged to use physicians and to follow the Biblical dictum “Heal yourself”. Physicians have been held in high regard from early times onward (Ben Sirah 38.1; Tobit 2.10, Midrash Rabbah Exodus 21.7; see also I. Jakobovits Jewish Medical Ethics pp 201 ff). On the other hand skepticism about physicians has also played its role in Jewish life; the Mishnah quotes R. Judah: “The best among physicians is destined for hell”, (M Kid 4.14). All of these sources establish the physician’s duty to heal as well as the patient’s obligation to maintain good health and to do whatever is considered reasonable to regain health. It has been established that nothing positive may be done to hasten death even in a terminal patient, yet, there is also no obligation to intervene in a hopeless situation to minimally prolong life (S. B. Freehof Modern Reform Responsa #34 and 35). In most instances in which this has been discussed the terminal patient is no longer capable of making rational decisions and must rely completely on those who are providing treatment. In this instance we are dealing with an individual who has made her wishes known. We may understand the role which the patient and the physician play in their inter-relationship by looking at the frequently discussed theme of treatment for illness overriding various religious obligations. It has long been permitted to violate the Sabbath laws not only in order to save a life but even for someone who is dying (Yoma 84b; I. Lampronti Pahad Yitzhaq Holeh Beshabbat etc). The general principle is that if either the physician or the patient believe that a treatment is required and there is some risk to life then the normal religious legislation is suspended (Shulhan Arukh Orah Hayim 328.5 and commentaries). The decision favored the patient who considered a treatment necessary even if a hundred doctors considered it not sufficiently urgent to override religious obligations, “because a heart knows its own bitterness.” This and other discussions indicate that the patient is heavily involved in the treatments and not merely a quiet and subservient recipient. In the instance of our patient, proper persuasion might have brought the widow to dialysis eight years ago. The fact that she lived eight years without dialysis at this advanced age may indicate that she chose the appropriate path for herself. Now as she is suffering from end stage renal disease as well as congestive heart failure, it is not a question of saving her life, but possibly prolonging it at the expense of her dignity and with some pain both physical and psychological. This patient rejected dialysis while living independently at home; and should not have dialysis imposed upon her now that she is dependent upon the services of a nursing home. Her attitude has led to a full, long life. Additional medical attention which she does not wish should not be forced on her; it is only likely to shorten her life. The physician has done his duty by suggesting the treatment. The patient who knows that she is close to the end of her life with or without the treatment and is not obligated to accept the suggestion.November 1988

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 246-254

CCAR RESPONSA

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.

Addendum

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.

RR21 no. 5760.8

CCAR RESPONSA

5760.8

Withholding Paternity Information from a Father

She’elah
A single Jewish woman is pregnant by a Gentile man she has known for a short time. The pregnancy was unplanned, but she is happy about it and plans to raise the child. However, she does not wish to tell the child’s father. They remain friendly, but she does not want to share custody. They are not currently involves in a relationship; in fact, the man is now in a relationship with another woman, which may result in marriage. She plans to tell the child about his/her father only when the child is old enough to ask directly. She wonders, however, if withholding this information is a Jewishly proper thing to do. (Rabbi Faedra L. Weiss, Indianapolis, IN)

Teshuvah
We assume that this woman will consult an attorney to determine her duty under the law to share this information with her child’s father. The rules governing parental obligations fall under the category of dina demalkhuta dina, the principle by which Jewish law accepts as valid and binding the legitimate acts of the civil government.[1] While the law of the state will ultimately dispose of this matter, the task before us is to consider how Jewish law and tradition would speak to it. On that score, we believe the answer is unequivocal: this woman has a moral obligation to inform the father of her child of the fact of his paternity.

We base our answer upon the following considerations.

1. Judaism teaches us that it is forbidden to deceive other people, even when the deception arguably would not result in palpable harm to them.[2] True, the tradition recognizes that there are times when an overriding value, such as peace within a marriage or a family, justifies a certain measure of deceptive behavior.[3] Yet those instances are rare; surely the general standard of conduct as taught by Jewish tradition is that honesty and truthfulness ought to guide our actions. One who wishes to act deceptively must satisfy a high burden of proof that this case is serious enough to warrant a departure from that standard.

2. We do not think that our case justifies such a departure. Indeed, it seems that the only value served by withholding information from the father is the mother’s desire not to share custody of the child with him. Yet under Jewish law she is not entitled to do this. The Mishnah speaks of mitzvot haben `al ha’av, obligations that the father owes to his son.[4] The Talmud[5] lists these as follows: the requirement to have his son circumcised;[6] to perform the mitzvah of pidyon haben;[7] to teach him Torah;[8] to find him a wife; and to teach him a trade. These texts refer in part to religious obligations that apply only within a Jewish context, and they reflect distinctions in gender roles that no longer make sense to us as Reform Jews. It is our practice to read such texts in an egalitarian way and in a way that does not make invidious distinctions between Jews and non-Jews in determining ethical duties, responsibilities that we as human beings bear toward other human beings. When we read the texts in this manner, they teach us that a parent is obligated to provide for his or her child’s basic needs, to help educate that child so that he or she may become a responsible member of human society. This duty is expressed as well in the halakhah‘s rules concerning the custody of children. In a situation where the minor child does not live together with both parents, each parent owes certain personal and financial obligations toward him or her.[9] These obligations are ultimately adjudicated by the beit din, the Jewish court, in accordance with the best interests of the child, yet it must be kept in mind that both parents figure into the court’s deliberations.[10] In other words, the father as well as the mother owes duties of care and support to this child, and it would be wrong to deny him the opportunity to meet those duties and thereby to fulfill his obligations as a parent.

What if the child’s father does not wish to share custody of or provide financial support for his child? He may renounce his obligations through the process of adoption, by which all parental duties are transferred to the adoptive parent or parents.[11] This renunciation, however, must be intentional. A father who does not know of the birth of his child cannot be said to have renounced his obligations toward that child. To put this another way: the mother is not entitled to be a “gate-keeper,” the sole arbiter who will determine whether the biological father can be a true father to the child he has helped to create.

3. The Mishnah also speaks of mitzvot ha’av `al haben, obligations owed by a child to his or her parents.[12] These obligations are summarized under the heading of the mitzvot concerning the honor and reverence that one must show toward one’s parents.[13] Obviously, a child cannot fulfill these mitzvot unless he or she knows the identity of the parent; it is therefore wrong to withhold that information from the child. In our case, the mother “plans to tell the child about his/her father only when the child is old enough to ask directly.” This approach places the mother’s needs before the child’s and creates an atmosphere of secrecy and shame for the child which is not the child’s responsibility. To withhold the father’s identity until the child is ready to verbalize a request for it is to withhold information that is vital to the child’s self-understanding. Each of us creates a narrative for ourselves, a story that expresses in the most personal sort of way our conception of our origin and place in the world. We begin this journey of self-explanation at a most early age. Children learn at a very young age that everyone is “supposed” to have a father and a mother. While there are many legitimate different family constellations, it is critical that the mother acknowledge and talk about this child’s situation, so that its particular situation will be a natural part of his/her own self-understanding and personal narrative. To do otherwise requires the child to invent or imagine a story, and the child will get a message that there is a secret around his or her origins. We think, therefore, that it is essential for the mother to communicate this information to her child as soon as possible.

4. The mother may, of course, argue that withholding information from the father serves her child’s best interests. We think, however, that in most cases the opposite is true. It is better for the child’s long-term emotional health when he or she has the opportunity to know both parents. We suspect, moreover, that the mother’s desire to withhold this information from the father has less to do with her child’s best interests than with her own unresolved issues concerning her relationship with him. As our prophets teach us (Jeremiah 31:28-29 and Ezekiel 18:2ff.), it is wrong to make children suffer for the sins of their parents.

NOTES

For a discussion of this principle, see our responsum 5757.1. We argue that the validity of dina demalkhuta rests upon the fact that those who dwell in the “kingdom,” by virtue of their residence there, imply their willingness to accept the kingdom’s laws. This is especially true for those of us who are citizens of democratic political systems, who enjoy political rights and equality with all other citizens. Since the citizens of such a state make its laws, they accept in advance the validity of all legislation that falls into the purview of the state’s legitimate legislative power. While some laws, such as those that unfairly discriminate among citizens or that impede the free exercise of their civil and political rights, would not be accepted as “legitimate” under this doctrine, regulations concerning the legal obligations between parents and children are widely accepted as a valid exercise of the community’s power and jurisdiction.
The concept is geneivat da`at, literally the “theft of the mind.” See BT Chulin 94a; Yad, De`ot 2:6 and Mekhirah 18:1ff; and SA CM 228:6.
For example, in Genesis 18:13 God intentionally misquotes to Abraham Sarah’s remark in verse 12, in order to spare him embarrassment and to preserve peace between husband and wife. See BT Bava Metzi`a 87a and the final chapter of tractate Derekh Eretz Zuta. Nachmanides to Gen. 18:13 offers a less daring evaluation of God’s report, although he acknowledges that God’s statement does not reveal the whole truth.
M. Kiddushin 1:7.
BT Kiddushin 29a.
Yad, Milah 1:1; SA YD 260:1.
Yad, Bikurim 11:1; SA YD 305:1.
Yad, Talmud Torah 1:1; SA YD 245:1.
See BT Ketubot 65b; Yad, Ishut 12:14, and SA EHE 71:1. The father is obligated under Torah law to provide maintenance for his children until they reach the age of six, even if their mother has the means to support them. From that point on, the obligation is continued under rabbinic law, as an aspect of the general requirement to give tzedakah: the beit din can coerce the father to provide maintenance, just as it is empowered to coerce an individual to pay tzedakah according to his or her means.
See SA EHE 82:7.Custody of the child usually resides with the mother. The father, however, may demand custody of his son when the boy reaches the age of six; this derives from the father’s duty to teach Torah to his son (see at note 8). On the other hand, the beit din can decide that the child’s welfare demands an alteration of any of these arrangements (Isserles ad loc.). This “best interests of the child” rule is rooted in a responsum by R. Shmuel di Medina (16^th-cent. Salonika; Resp. Maharashdam, EHE, no. 123).
On adoption, see Teshuvot for the Nineties (TFN), no. 5753.12, pp. 201-207.
M. Kiddushin 1:7.
BT Kiddushin 29a; Exodus 20:12 and Deut. 5:16; Leviticus 19:3. On the extent and the limitations of the mitzvah to render honor and reverence, see our responsum on adoption, TFN 5753.12, pp. 201-207.
If needed, please consult Abbreviations used in CCAR Responsa.

ARR 139-141

CCAR RESPONSA

American Reform Responsa

53. Responsibility of Children to their Parents

(Vol. XCII, 1982, pp. 207-209)

QUESTION: A newly married couple wishes to know the extent of their responsibility towards their parents according to the Reform view of Halacha. What are the limits of the command, “Honor your father and your mother,” beyond the obvious duty of care and support in infirmity, sickness, and old age? Where is the boundary between independence and filial responsibility? (L.F.-W.R., Pittsburgh, Pennsylvania)

ANSWER: The commandment to honor your father is the fifth of the Decalogue. This along with the statement, “You shall each revere his father and his mother and keep My Sabbath: I am the Lord your God” (Lev. 19:3), is the Biblical source of kibud av va-em. This mitzvah, however, may come into direct conflict with other mitzvot such as, “Therefore a man leaves his father and mother and clings to his wife so that they may become one flesh” (Gen. 2:24). The possibility of tension between these mitzvot has always existed. The mitzvahof a new home take precedence without voiding the other (Kimchi).

The same kind of difficulty could arise with other mitzvot, too; for example, that of settling in the Land of Israel. The mitzva of Aliya took precedence (Meir Rothenburg, Responsa, vol. 2, pp. 120ff, 129). There are other areas of potential conflict, such as choice of residence, occupation, etc., but we are principally concerned with the tension which may arise between marriage and filial devotion.

Possible conflict in these matters is somewhat clouded by the fact that the father had complete rights over his daughter until she reached puberty and became a bogeret (M. Kid. 2.1; Kid. 41a), although he was cautioned to try to fulfill her wishes. On the other hand, the father had no such power over his son, though at various times the father, nevertheless, controlled the marriage completely (as, for example, in medieval Germany; see Moses Mintz, Responsa, #98). As children were likely to take matters into their own hands, various medieval synods tried to control them through ordinances (Friedmann, Toledot Erusin Venisu-in,pp. 138ff).

This question arises a number of times in the responsa literature. In most instances the authorities decided in favor of the children, as they alone could really decide what was proper for them. One of them put it beautifully and said that the couple was best able to judge the heavenly verdict in this matter. Others felt that marriage would be good only with those who truly loved one another; therefore, no element of compulsion could be introduced (Solomon ben Adret, Responsa, vol. 1, #272; Joseph Colon, Responsa, 174.3).

The authority of parents expressed only for its own sake, without need or frailty as a factor, was rejected in favor of those areas in which direct help should be provided for parents (Tos. to Kid. 32a; Yev. 5b). This point of view was reflected frequently in the responsa of the Middle Ages (Simon ben Zemah Duran, Responsa, vol. 3, #130), sec. 5; Samuel de Modena, Responsa, Yoreh De-a 90, 95; Isaac ben Sheshet, Responsa, #127). This point of view was later expressed in the Shulchan Aruchby Moses Isserles (Yoreh De-a 240.25).

Matters were seen somewhat differently in the case of a daughter, since a father might suffer financial loss through her actions. But many felt that daughters should be treated like sons and ruled for equality (Simon ben Zemach of Duran, ibid., sec. 5; David Pardo, Michtam LeDavid, #32; Ezekiel Landau, Noda BiYehuda 2, Even Ha-ezer, #45). Although this represented the majority view, another body of opinion ruled that the daughter must obey her father under all circumstances, even in the choice of a mate (Sefer Chasidim, sec. 564). Joseph of Trani followed the same line of reasoning (Responsa 2, Yoreh De-a, #27, as did Yehiel Weinberg, Seridei EshIII, p. 300). At the very least, a daughter should listen to the advice of her parents and be urged to make her decision accordingly.

Subsequent to marriage, the new wife owed her first allegiance to her husband, so honoring of parents became more the husband’s duty than hers (Tosefta, Kid. 1.11; Kid. 30b). The tension can be seen in some sad discussions. Should a deceased daughter be buried with her father or in her husband’s future burial place (Semachot 14)? Either way was considered proper (Shulchan Aruch, Yoreh De-a 361.3). Of course, if the wife had children, then she is definitely to be buried in her husband’s plot rather than her father’s. This shows that a family with children represented a much more independent unit.

In cases of conflict between mother-in-law and daughter-in-law who could no longer get along in the same household, the husband was obliged to move his family out of the house (Gaonic Responsa, cited by Meir of Rothenburg, Responsa II, 81). This rule was followed especially if the financial issues at stake were considerable (Teshuvot Hage-onim, Ket. 134, p. 292; Yad, Hil. Ishut 13.14). In another instance, both Maimonides and the earlier Alfasi recommended that a neutral person try to adjust the matter (Alfasi, Responsa, #235, p. 65a; Yad, Hil. Ishut 21.lO). Sefer Chasidimtook a different course and counseled that the young couple submit to the wishes of the parents (sec. 562ff), but the codes did not follow that path.

The medieval text encouraged children to settle near their parents, but they were not expected to make unusual sacrifices in order to accomplish that. They should be close enough to look after their needs (Sefer Chasidim, sec. 564). On the other hand, if father and son could not get along, it was better if they separated (ibid.,sec. 343).

All of the preceding material makes it quite clear that everything was done to balance the interest of the older and younger generations. Normative Judaism encouraged freedom for the younger generation. The children remained responsible for the maintenance of their parents and were to look after their physical and psychological needs, but the children were not to be subjected to every whim and desire of the older generation. Through this, the full personal development of the younger generation was constantly encouraged.

Walter Jacob

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 44-45

CCAR RESPONSA

Contemporary American Reform Responsa

26. Children’s Support of

Parents

QUESTION: Can the community force children to support their

parents? Can the community refuse to support them on the basis of the children’s obligation? (Rabbi R. Kahn, Houston, TX)

ANSWER: The basis for the support of parents by

their children is the fifth commandment: “Honor your father and your mother…” (Ex. 20, 12). This has been taken as one of the main sources for most aspects of the child-parent relationship. The question of financial support of parents by their children led to a division of opinion between the scholars of Babylonian and Palestinian Talmud. The authorities of the Palestinian Talmud felt that children had to support their parents, and of course, were also obligated to honor them through their personal service and devotion. This could be compelled by the community (J. Kid. 71b). The Babylonian authorities, in one long discussion, felt that although honor and devotion was due to the parents from their children; financial support was debatable. Arguments were presented on both sides, but ultimately the decision freed a son from any obligation to support his parents (Kid. 30a). Emphasis was placed upon personal service rather than on financial obligation. That service was to be rendered by a son, even if it led to a considerable financial loss. Such service could be forced by the community. Other discussions indicate that sons were forced to support their parents financially (Hul. 11()b; Ket. 49b, 50a). There are also numerous stories in the Midrash which emphasize this. This was the position ultimately taken by tradition.

The debate among the later authorities does not

deal with the need to support parents, which is taken for granted, but whether this could be compelled. The answer in most instances turned out to be positive, as this is a charitable duty and the community may compel charitable contributions. On the other hand, scholars felt uneasy about compelling devotion and respect.

Rabbi Meir of Rothenburg indicated that

charity must begin with close relatives; parents are first, then brothers and sisters; other relatives follow, and the total stranger comes last (Responsa, Vol. II, p. 118 f; Seder Elijahu Chap. 27, p. 135). It was normal in medieval Europe to support family members from the tithe allocated to the poor (Meir of Rothenburg, Responsa #75, p. 10b, ed. Bloch; Isaac of Vienna, Or Zaruda, Tzedaqa, Sec. 26). The community could go to considerable length to force a son in this direction. Solomon ben Aderet, for example, suggested that the synagogue be closed to a son and he be publicly shamed until he supported his father, yet he should not be placed under a ban (Responsa, Vol. 4, #56). In this case there was some doubt about the economic deprivation of the father. Somewhat similarly, David ben Zimiri felt that children could be compelled to support their parents in a manner appropriate to the financial status of the children (Responsa Vol. 2, p. 664). A decision akin to this was rendered much later by Moses Sofer (Hatam Sofer Yoreh Deah 229). It further indicated that anything which the son possessed must be placed at the disposal of the parents.

There are, of course,

many other responsa which deal with specialized problems in which there is controversy between parents and children over other matters which cloud the nature of these obligations. We may, therefore, conclude that the community may go to considerable length to force children to support their parents. The traditional authorities, naturally, mentioned only the responsibility of sons; we would broaden that to include all children. If the community does not succeed in obtaining such support as the enforcing powers of the modern community are limited, then the community itself is obligated to support the parents.

June 1982

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5758.12

CCAR RESPONSA

5758.12

Orthodox Minyan in a Reform Synagogue

She’elah.

A few years ago a young man converted to Judaism at our congregation, which is the only one in the city. He subsequently underwent an orthodox conversion, left the community and attended yeshiva in New York. During a recent visit to Jackson he requested the use of our facilities for an “orthodox” minyan. By this he means that women, though they may attend the service, will not count as part of the minyan and will be denied any opportunity to participate in the service.

My initial response to this request was “no,” on the grounds that the minyan would not be egalitarian and therefore contrary to our communal custom (minhag hamakom). On the other hand, I wonder if the Judaic value of hospitality to guests (hakhnasat or’chim) argues in favor of accommodating Orthodox visitors? Does the answer differ when these visitors ask for space for a minyan that meets on a regular or permanent basis? How forthcoming should we be, especially in view of the numerous incidents at the Western Wall, where, to put it mildly, no accommodations are made for liberal practice and “mixed” minyanim? (Rabbi James Egolf, Jackson, MS)

Teshuvah.

A Hard Case. There is an old saying that hard cases make bad law.[1] This may or may not be true;[2] what is clear, however, is that hard cases, questions for which the existing law offers no single clear and obviously “correct” solution, are unavoidable. We confront hard cases all the time, not only in the law but also in the other traditions in which we participate, such as ethics and religion, when the applicable rules, principles, and precedents of that tradition pull in conflicting directions. And when we do, we have no choice but to think our way toward an answer that, while recognizing the ambiguities of the situation, nonetheless represents our best and most coherent understanding of that tradition as a whole.

This she’elah presents just such a hard case. It involves a fundamental tension between two important Reform Jewish principles, both of which we proudly affirm. Each of these principles represents a range of values and commitments which express themselves throughout our personal and communal observance. And each of them would seem to argue for a contradictory response to our question. For the purposes of this teshuvah, we designate these principles by the labels “Jewish pluralism” and “Reform Jewish integrity.”

By “Jewish pluralism,” we mean our recognition as liberals that there are a number of different and even conflicting paths which Jews might legitimately walk in response to the call of Torah.[3] As Reform Jews, we demand the right to make our own religious decisions, and we reject any effort to impose upon our communities an “orthodoxy” which claims that there is but one correct way to believe, to pray, and to practice our faith. And simple fairness requires that, just as we assert this freedom for ourselves, we must grant it to others. We acknowledge that all Jews are entitled to observe their Judaism in a manner that speaks to them and suits their spirit. Accordingly, we do not insist that they adhere to our own version of “the correct way.”

This commitment would lead us to provide this young man and those who would join him with space to worship according to their custom. True, our congregation already offers religious services to which visitors are welcome, and we might think that in making these services available we have fulfilled toward them our duty of hakhnasat or’chim (if, indeed, that mitzvah can be said to apply to our case).[4] Yet by defining themselves as an Orthodox community, these individuals declare that they cannot meet their liturgical needs by participating in our own communal worship. As liberals who affirm Jewish pluralism, we do not wish to compel them to do so. Nor do we wish to bar our doors to them, to tell them that unless they are willing to follow our rules they shall have to assemble elsewhere. To do so smacks of rank intolerance, a narrow-mindedness that ill-befits a liberal movement such as ours. On the contrary: we who affirm the positive value of Jewish religious diversity would prefer that they gather in our synagogue, which might then serve its true purpose as a “house of prayer for all Jews,” a place where Jews of differing religious approaches may worship as they see fit.

By “Reform Jewish integrity,” on the other hand, we express our conviction that Reform Judaism is based upon certain fundamental affirmations which define and distinguish us as a religious community. These affirmations constitute our core values, the irreducible content of our approach to Judaism, a content we cannot compromise without surrendering our integrity, without denying who and what we are. We are prepared, to be sure, to make some adjustments in our practice out of respect to Jewish diversity. In the present case, we would not oppose a request by a group to hold in our building a service at which a traditional siddur is used.[5] We would object, however, when this group identifies itself as an Orthodox community, for Orthodox Judaism espouses fundamental affirmations of its own which are incompatible with ours. One of these is its denial of ritual equality to women; thus, female members of our congregation would not be counted in this minyan and would be excluded from equal participation in its service. Another is Orthodoxy’s refusal to recognize the halakhic validity of conversions supervised by Reform rabbis, on the grounds that our rabbis are incapable of constituting a valid beit din (rabbinical court); thus, the Orthodox group would not accept our Jews-by-choice as Jews at all. Our objection, in other words, is not that Orthodox practice differs from ours but that Orthodoxy disenfranchises well over half our membership and proclaims that Reform is not a legitimate expression of Judaism. To permit this group to assemble in our building is to transmit the message that its theology is somehow acceptable to us. We must not send that message.

Although we affirm Jewish religious pluralism as a great value, it is not our only value. Acceptance of diversity can never be allowed to call our other basic Judaic commitments into question. Put simply, there are limits to our pluralism. These limits are set by those standards which form the essence of our Jewish outlook, standards which can be violated only at the cost of our Reform Jewish integrity. For all our tolerance, we would never permit a group of Jews for Jesus or other apostates to hold their worship services in our facility. Nor would we allow a group to organize an “alternative” Jewish service which denies as a matter of religious principle the right of participation to any Jew on the basis of gender. No religious community, no matter how liberal, could possibly exist if it were unable to draw lines, to set boundaries, and to agree upon at least the most minimal definitions of what it does and does not believe.[6] Our commitment to gender equality and our affirmation of our own Jewish religious legitimacy are examples of such boundaries; indeed, they are in the category of minimal standards, values without which “Reform Judaism” as we know it could scarcely exist. Our congregations dedicate themselves to the furtherance of these values and to the observance of these standards. To allow space to groups which repudiate them is to act in contradiction of our very purpose as a religious community.

A Halakhic Precedent. We cannot resolve this issue, therefore, simply by invoking “Reform religious principles,” because more than one such principle speaks to it and because those principles draw us in contradictory directions. How then shall we proceed in this situation, in which Jews deeply divided over matters of religious outlook and practice seek to live together within the same institutional framework?

Our tradition offers us guidance in the form of a helpful precedent. We refer to the Talmud’s discussion of one of the halakhic conflicts which divided the early rabbinical “schools” of Hillel and Shammai.[7] The question arises: although the halakhah generally follows the view of the school of Hillel,[8] did the school of Shammai ever put its theoretical viewpoint into concrete practice? Some, the Talmud suggests, answer this question in the affirmative. Yet to say this raises a problem: would not such an act violate the prohibition, derived from Deuteronomy 14:1, “do not divide yourselves into separate sects”?[9] This rule, if applied literally, seems to demand that those holding the minority or rejected legal viewpoint yield in practice to the majority or accepted opinion. The Talmud responds that the rule “do not divide yourselves” applies only to the context of a single beit din (rabbinical court), so that once a decision is rendered its judges do not express public dissent over it; however, “in a case of two separate rabbinical courts within the same community, the rule does not apply.”[10] Each “court” is a distinct religious institution which enjoys its own halakhic integrity and is entitled to practice as it sees fit. The schools of Hillel and Shammai are equivalent to two separate “courts” within the same community; thus, each may practice according to its own understanding of the halakhah.

This passage reminds us of two important points. It teaches us, first of all, that the rabbinic tradition indeed places a high value upon unity in religious practice. We are, after all, one people, in possession of one Torah, who ought to be united in service to the one God. Divisiveness in practice should be discouraged, for it suggests that we have failed to study the Torah properly and are therefore unable to agree on its message for us; such disagreement makes it appear that we are following “two Torahs” instead of the one.[11]

Yet the existence of conflicting “schools” of Jewish thought and practice reminds us that diversity is inevitable. We Jews have never agreed on all questions of belief and observance, nor is it likely that we ever will. “Majority” and “minority” views will always exist among us; we cannot enforce a unity of religious life that, however ideal, is illusory in reality.[12]^[i] Our text therefore suggests a compromise which pays allegiance to both these goals. Opposing viewpoints (“courts”; “schools”) may coexist within the same institutional framework (“city”), so that each “court,” while accepting the existence of the other, possesses a distinct identity. Unity is preserved both as a theoretical goal and because each “school” retains the practical authority to determine its own standards. Diversity is acknowledged because each “school” is granted Jewish legitimacy within its own realm.

Our case, we believe, closely resembles the situation that obtained between the “schools” of Hillel and Shammai. We Reform Jews define our religious outlook in a particular way, and we want our synagogues and other institutions to reflect this definition. For this reason, we might well insist upon the rule “do not divide yourselves into separate sects” and require that those who meet to worship in our facilities do so according to our own standards of liturgical practice. Yet so long as the nascent Orthodox minyan enjoys a separate organizational identity from our own, there is no need to enforce this artificial unity. Like the school of Shammai, the Orthodox minyan is and can be seen by all to be a distinct entity–a beit din, “court”or “school”–whose practices and doctrines are not to be confused with those of the larger Reform congregation. This group can coexist within our “city,” alongside our Reform “court,” so long as the separate existence of each group is acknowledged and made clearly visible to all. By facilitating this coexistence, we most certainly do not endorse the religious views of the Orthodox minyan, any more than the coexistence of the schools of Hillel and Shammai meant that either beit din endorsed the conflicting decisions of the other. Our Reform Jewish integrity therefore remains intact. We say rather that Jewish unity and diversity–integrity and pluralism— are equally worthy goals and that our tradition would have us make room for both.

We are aware of the irony of this position. We know that, were the situation of our she’elah to be reversed, an Orthodox congregation would not likely grant permission to a Reform group to hold services in its synagogue building. This is because Orthodox Judaism is not a liberal creed. It proclaims that there is but one correct version of Jewish practice, and that Reform Jewish worship is not an acceptable variation of that correct version. They do not regard our disagreements as similar to the conflict between the schools of Hillel and Shammai, two legitimate if conflicting interpretations of the same Torah. On the contrary: they condemn us as heretics, they cast us outside the pale, they deny the Jewish validity of our practice. It may be tempting to respond in kind, to reject them in return, to deny them space within our precincts as they would surely deny it to us. Yet our religious principles forbid us the path of retaliation. The conduct of the Orthodox Jews who drive us from our rightful place at the Western Wall cannot serve as a model for our own behavior. If they are not liberals, we are; if their conception of Judaism cannot make room for diversity, ours does and must. We look upon Orthodox Jews not as enemies but as friends. We greet them not as aliens and heretics but as our brothers and sisters. And whether or not they would do the same for us, our liberal Jewish faith demands that we reach out to them in a spirit of fellowship and generosity.

Conclusion. A Reform congregation may provide space within its facility for an Orthodox congregation to worship, provided that the latter maintains a separate and distinct identity. In this way, all will know clearly that our synagogue, while reaching out in friendship to our fellow Jews, in no way endorses those aspects of their religious practice that are offensive to us.

How might we best maintain this “separateness” as we host the Orthodox congregation? On this point, the members of the Committee differ.

Some of us feel that the necessary separation can be maintained only by insisting that this arrangement be temporary. They are willing to provide space to the Orthodox minyan for a strictly limited period, to enable them to find suitable quarters of their own; should this prove impossible, it would be evidence that the community as a whole cannot support a separate Orthodox congregation. In any case, we will have done our duty to assist them.

Others are willing to allow the Orthodox minyan to meet in our building on a permanent basis, provided that they do not assemble for worship in our sanctuary. The sanctuary has been dedicated to Reform Jewish worship, in which all members of our congregation are accepted as equals. An Orthodox minyan would exclude many of us from equal participation. To permit them to assemble in our sacred space would amount to an insult, a lessening of its sanctity.

The majority of us, however, would permit the Orthodox group to meet on a permanent basis in our building, including the sanctuary; we do not agree that the worship service of any legtimately Jewish congregation affects the holiness of that space. We would place two provisos upon our permission. First, the Reform congregation must be acknowledged as the ba`al habayit, the owner of the building. This means that the Orthodox group may use our facilities only so long as their usage does not conflict with our own services and other events. A clear and binding written agreement specifying the restrictions placed upon their usage of our facilities is a necessity. Second, it is best that this Orthodox group formally and legally constitute itself as an independent congregation, so that it not appear to be a chavurah or sub-group of our own. Moreover, we should charge them rent for the use of our facilities, although this rent might well be set at a purely symbolic amount. In this fashion, it will be evident to all that the two groups, their congregation and ours, are separate and distinct entities, so that each may pursue–together yet independently of the other–its chosen path to Judaism and Torah.

NOTES

A legal maxim of uncertain origin. The definition of “hard cases” here follows that of the legal philosopher Ronald Dworkin; see his Law’s Empire (Cambridge, MA: Belknap/Harvard Press, 1986), 255-256. As such, it represents a change from the original understanding of the term: “judicial decisions which, to meet a case of hardship to a party, are not entirely consonant with the true principle of the law. It is said of such: ‘hard cases make bad law’”; J.R. Nolan and J.M. Nolan-Haley, eds., Black’s Law Dictionary, 6th ed. (St. Paul: West Publishing Co., 1990), 717, taken from Corpus Juris 29:213 (1922). It is this definition that Justice Oliver Wendell Holmes, Jr. had in mind when he wrote: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend”; Northern Sec. Co. v. United States, 193 U.S. 197, 400; 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904) (Holmes, J., dissenting). On the difference between the “new” and “old” definitions, see note 2, below.
Actually, the maxim makes sense only if we accept the original definition of a “hard case” as one in which law and equity, conceived of as two separate realms not to be mixed, are at loggerheads. In such an instance, it might be claimed that an equitable decision makes “bad law” by introducing non-legal considerations into the legal system. The definition adopted by Dworkin better refers to what we might call a “difficult case,” and as Richard A. Posner points out, “only difficult cases make law, good or bad. Cases that are easy to decide are so by virtue of being controlled by existing law”; see his The Problems of Jurisprudence (Cambridge, MA: Harvard U. Press, 1990), 161, n. 1.
Note the phrase “a number of different and even conflicting paths.” By this, we mean a not-unlimited “number.” No plausible interpretation of Jewish pluralism requires us to recognize every conceivable version of “Judaism” as legitimate. None of us, for example, would dissent from the thoughts expressed below concerning the Jews for Jesus.
On the source of the mitzvah of hospitality, see BT Shabbat 127a-b, where it is listed among the things “whose fruits one consumes in this world and whose principal remains available for one in the world-to-come,” an example of gemilut chasadim (acts of lovingkindness). Maimonides classifies such acts under the rubric of “love your neighbor as yourself” (Lev. 19:18; Yad, Avel 14:1). This obligation, however, is traditionally understood in the more literal sense as hospitality to travelers, hosting and feeding them in one’s home or in some other suitable location. We know of no interpretation of this mitzvah that calls a congregation to modify its liturgical practice in order to accommodate a visiting group within its midst. On the contrary: normative practice is for the visitors to accommodate themselves to the minhag of the host synagogue.
If there are objections as to the content of the siddur, we might respond that those passages which offend our religious sensibilities can either be reinterpreted or, if necessary, excised from the service.
For a fuller version of this point, see Teshuvot for the Nineties, Introduction, especially at xvii-xxi.
M. T’vamot 1:1-3 and B. Y’vamot 13a-14a. This particular dispute centers upon the institution of levirate marriage (yibum), the requirement that the widow of a childless man be married to her brother-in-law in order that she might raise up a child in the name of her deceased husband (Deuteronomy 25:5-10). Both schools agree that should the widow be forbidden to her brother-in-law as an ervah, one of the sexual unions prohibited in Leviticus 18, she is exempt from both the requirement of yibum and the legal ceremony of chalitzah which releases that requirement. The school of Hillel go farther, holding that if the deceased had two wives then both of them were equally forbidden as an ervah to the brother of the deceased. The school of Shammai disagreed; they held that the “second” wife in such a case had to submit to yibum or chalitzah if she were not actually an ervah. According to the school of Hillel, the child born of that union–permitted and required by the school of Shammai–is a mamzer. As we can see, therefore, this dispute was hardly a matter of superficial importance.
By virtue of the decision of the bat kol, the heavenly voice, which proclaimed that “the views of both schools are in accord with divine teaching (eilu ve’eilu divery elohim chayim hem), but the halakhah follows the school of Hillel”; B. Eruvin 13b.
From the phrase lo titgodedu. The literal meaning of these words, of course, is a prohibition against making gashes in one’s body with sharp instruments (Rashi to Deut. 14:1; Yad, Avodat Kokhavim 12:13). The Talmud here resorts to a fanciful midrash and reads the words as: lo te`asu agudot agudot, “do not divide yourselves into separate sects.” As the discussion in B. Y’vamot 13b-14a makes clear, the “separateness” referred to here is not a purely theological matter but one of separate standards of halakhic observance.
This is according to the opinion of Rava in B. Eruvin 14a, which is cited as halakhah in Hil. HaRosh, Yevamot 1:9 (see also R. Menachem Hameiri, Beit Habechirah, Y’vamot 14a). It differs from the opinion of Abaye, who declares that the prohibition does not apply in the case of two courts in two separate cities but does apply to two courts in the same city. Maimonides (Yad, Avodat Kokhavim 12:14) follows Abaye, a ruling which puzzles his commentators, since according to the normal rules of halakhic decision making the law follows Rava in virtually all cases when he is disputed by Abaye. Rava’s position, moreover, is presented by the Talmud as the conclusion of the sugya, another fact which indicates its predominance. And his view is clearly superior to that of Abaye, for it more effectively answers the difficulty raised against those who argue that the school of Shammai actually practiced according to their “incorrect” opinion. It has been suggested that Maimonides gives evidence here of his distaste for machloket: he thus decides according to Abaye because Rava’s view is the more lenient and tolerant of dispute. See R. David ibn Zimra, Resp. Radbaz, no. 1384.
Thus Rashi (Y’vamot 13b, s.v. lo te`asu) explains the prohibition against dividing into “separate sects”: “denir’in kenohagin shtei torot.”
See the remark of R. Menachem Hameiri, Beit Habechirah, Y’vamot 14a: “So long as we are dealing with two separate courts, even though they reside in the same city, each one holding to its own understanding of the law, they do not violate the rule ‘do not divide yourselves.’ For it is impossible that everyone should always agree to follow the same opinion.”

^[i] See the remark of R. Menachem Hameiri, Beit Habechirah, Yevamot 14a: “So long as we are dealing with two separate courts, even though they reside in the same city, each one holding to its own understanding of the law, they do not violate the rule ‘do not divide yourselves.’ For it is impossible that everyone should always agree to follow the same opinion.”

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 146-148

CCAR RESPONSA

New American Reform Responsa

92. Reform Support for Orthodox Institutions

QUESTION: Should the members of a Reform Congregation support an Orthodox congregation in the city or Orthodox institutions elsewhere, which do not recognize Reform and are unwilling to accept the pluralism of American Jewish life. lt is the policy of these institutions not to involve themselves in any activities associated with Reform congregations or the Reform movement. What should our attitude be toward providing funds for such organizations and what should our attitude be toward members of such organizations? (Rabbi Morley T. Feinstein, South Bend IN)ANSWER: Through our long history our people have continually sought unity, although it has often been difficult to attain. Bitter struggle among various segments of the Jewish community have occurred in virtually every century. The battles against Hassidism in the eighteenth century led to the opposing forces demanding intervention by the hostile Polish and Russian governments (S. Dubnow History of the Jews in Russia and Poland; Geschichte Des Chassidismus) Eventually, however, the Hassidic movement was recognized as part of Judaism and generally a modus vivendi exists although violence occasionally occurs between groups in Brooklyn or Jerusalem. The nineteenth century saw the herem invoked against the Reform movement in Germany and Hungary (David Philippson The Reform Movement in Judaism; Alexander Guttmann Struggle over Reform Judaism; Michael Meyer Jews of Modernity). Eventually the Reform movement became dominant in Germany and very strong in Hungary and so it was accepted. We should also remember the hostility against the Zionist movement which was long and bitter. A remnant of that is the Neturei Karta which refuse to recognize the Jewish state although its members live in a section of Jerusalem (A. Bein The History of Zionism; B. Halpern Zionism and Anti-Zionism in Orthodox Judaism). We should, therefore, understand the new Orthodox hostility in the light of history. We should not encourage that position. For forty years since the creation of the State of Israel, we Reform Jews have taken abuse along with the Conservative Movement in Israel in order to avoid rupturing Jewish unity. The worldwide unity, which has existed since the second world war has prevailed for a longer periods than ever before. Militant Orthodoxy in Israel, which seeks to change the Law of Return with the support of Orthodox institutions in the United States, threatens this unity in the United States. We must now deal with this new state of affairs and support unity and pluralism. We and our members should not support institutions which are unwilling to recognize pluralism or to work for unity within our community. We should note that Mosheh Feinstein long ago prohibited Orthodox Jews from supporting Reform institutions (Igrot Mosheh Yoreh Deah #149) through the United Jewish Federations which have emphasized unity and pluralism. Their resolution on this subject stressed unity and pluralism: “We reject any effort to divide our people by Israeli state legislation which seeks to amend, directly or indirectly, the Law of Return, which defines Who is a Jew. We associate ourselves with the overwhelming majorities of the Jews of Israel and the Diaspora who oppose any such legislation. While only a few people would be personally affected by this political action, millions would suffer a deep symbolic wound from this insult to our religious traditions and sense of peoplehood. Any such initiative threatens our community at a time when unity is essential to support Israel, still besieged by external foes, facing new internal uprising and fresh world-wide propaganda assaults.” We and they intend to reconstitute pluralism and unity in the worldwide Jewish community. We should not support institutions or congregations who are unwilling to recognize us or our movement. We should discourage any individual from offering such support and we should insist that Federations and other joint fund raising agencies refuse such support. We must distinguish between friendly and unfriendly Orthodox institutions. We will continue to labor for the unity of the Jewish community and will do everything possible to bring it about. Orthodox institutions which disrupt such efforts should not be rewarded. We and our members should not support them.December 1988

If needed, please consult Abbreviations used in CCAR Responsa.