Not Yet in Print (responsa published by the Responsa Committee, but not yet in bound collections)

NYP no. 5765.5

CCAR RESPONSA COMMITTEE

5765.5

May a Non-Jew Wear a Talit?

 

She’elah.

A certain congregation family has asked whether or not the non-Jewish grandfather of a Bar Mitzvah may wear a talit during the Sabbath morning service when the Bar Mitzvah will lead the congregation in worship. If he wears the talit, he may wear it on the bimah. In our congregation, the non-Jewish parent or grandparents stand on the bimah but do not pass the Torah when the Torah is passed from one generation to another.

This question is the subject of two existing Reform responsa. Rabbi Solomon B. Freehof[1] allows a non-Jewish clergy to wear a talit in an ecumenical service in a synagogue. He reasons that since the talit, especially the tzitzit, are of lesser sanctity than the Torah and its accouterments, and since they may be discarded when worn out, unlike the Torah and its accouterments which must be stored away, that we may deal with them differently. He continues that we may offer the talit to the non-Jew “for the sake of peace.” However, Rabbi Walter Jacob[2] mentions that wearing the talit is a mitzvah from the Torah and requires a berakhah which specifically mentions the chosenness of Israel and so may be recited only by a Jew.

So, may a non-Jew wear a talit during the Sabbath morning service? (Rabbi Harry D. Rothstein, Utica, NY)

 

Teshuvah.

This she’elah asks us to decide between two conflicting teshuvot, each authored by an eminent posek and teacher of the Reform movement. We therefore state at the outset our profound debt of gratitude to our teachers, even though we may disagree with them on one issue or another. Although our interpretations of text and our religious stance may diverge from those of our predecessors, we are able to conduct this discussion solely because they taught us the art and the process of Reform responsa and halakhic thought. We stand on the shoulders of giants and that very fact, ironically, accounts for the different angle of vision that we bring to this and to other questions.[3]

With that in mind, let us consider the responsum of Rabbi Freehof. He bases his permissive ruling upon the distinction between tashmishei kedushah, “appurtenances of sanctity,” and tashmishei mitzvah, “appurtenances of a mitzvah.” Ritual articles belonging to the former category, including “the Torah and its accouterments,” are of a higher degree of sanctity than those belonging to the latter category, such as the tzitzit. Thus, if a Torah mantle has become worn and is no longer suitable for use, it must be stored away (placed in a “genizah”), while the fringes of a talit that are broken or no longer used may, in the words of the Shulchan Arukh, “be thrown onto the ash heap because it is an appurtenance of a mitzvah and not inherently holy.”[4] Indeed, Rabbi Freehof continues, the halakhah even permits one “to go to the toilet wearing the talit.”[5] This leads him to the following kal vachomer argument: “If, therefore, the talit may be worn in all sorts of places, and if its fringes (when separated) may even be tossed upon the ash heap, there is no question that one may lend it to a Gentile minister who will handle it reverently.”[6] He adds that in allowing the minister to wear the talit “we will thus fulfill the basic mitzvah of acting ‘to follow the paths of peace’ (mipney darkhey shalom),” which, he notes, our tradition also states as “to avoid ill will” (mishum eivah).

In our view, Rabbi Freehof’s teshuvah is somewhat less than persuasive. This is true, in part because of some of the debatable points of halakhah that it contains,[7] but primarily because we do not think it is a helpful way to frame the question. The talit’s inherent ritual sanctity (or lack thereof) is not the point. Even a Torah scroll, which possesses much more sanctity that a talit, is hardly “defiled” if a non-Jew should touch it, yet this does not mean that we may or should call a non-Jew to the Torah for an aliyah. The relevant issue in all these matters is whether it is appropriate for a non-Jew to participate in a particular public ritual observance. In the case of being called to the Torah, our answer is “no,”[8] and we would say the same here. To wear a talit is to perform the mitzvah “to remember to observe all My mitzvot and be holy to your God” (Numbers15:40); it is, in other words, a material expression of one’s membership in the community of Israel, a people sanctified through the mitzvot that characterize its covenant with God. The Rabbinic tradition understands the tzitzit as a physical sign that marks Israel as a separate people, “made distinct by the mitzvot.”[9] A Gentile may wish to wear a talit for his or her own reasons, but the talit is our symbol; it does not belong to the non-Jew, and it is not for him or her to define. The talit, as our symbol, functions for us as a declaration that the one who wears it is a Jew, who bears the title yisrael, who partakes with the rest of us in the covenant that distinguishes us as a unique religious community. The grandfather in our she’elah may well feel a deep sense of familial pride in his grandson’s becoming a Bar Mitzvah, and his desire to participate in this special event is understandable. He is not, however, a Jew, a member of our covenant community. He should not wear a talit.

We also hesitate to apply here the categories “to follow the paths of peace” and “to avoid ill will.”[10] While we certainly want to maintain good relations with our non-Jewish neighbors and to avoid causing family strife, we doubt that these principles are the appropriate way to frame the issues at stake in this question. We are dealing, after all, with matters of deep religious principle, with observances that define us as a Jewish community and that therefore set us apart from others. By calling ourselves a Jewish community, we necessarily draw lines and establish boundaries that flow from and reinforce our identity as Jews. To do so inevitably limits the role that non-Jews, those who do not partake in that identity, may play in our communal ritual life.[11] After all, we do not argue that a Gentile ought to be called to the Torah, recite kiddush, or lead the synagogue service on the grounds that this would help preserve friendly relations with non-Jews. Indeed, our sho’el’s congregation places clear limits upon the role that the non-Jewish grandparents play at the service marking Bar Mitzvah. The non-Jew should understand the need of the Jewish community to assert the right — a right that belongs by every self-identified community, religious or otherwise[12] — to define itself, its patterns of life, and its qualifications for membership. This is especially true in democratic and pluralistic societies such as our own, where this right is acknowledged and where Jews are proud and equal citizens. It is good to preserve peace and to avoid hostility, but these goals, worthy as they are, do not convince us of the need to compromise our basic religious principles.

For these reasons, we endorse the position taken by Rabbi Walter Jacob in his responsum. We do so not exclusively because the wearing of a talit is preceded by the recitation of a berakhah that stresses the nature of this act as a mitzvah. We frequently invite our Gentile neighbors to participate in activities – for example, attending a Passover seder,[13] sitting in the sukkah –  over which we recite birkhot mitzvah. Since it is obvious to all that they join with us as guests and not as Jews, we would not think to regard their participation as improper. Yet for a Gentile to don a talit at a public worship service, something he or she need not do in order to take part in that event, is to identify physically as one of us. Again, our position is based primarily upon the symbolic function of the talit as a statement of Jewish identity and of membership in the covenant community. The Gentile cannot make this statement; therefore, he or she should not wear a talit at our synagogue services.

 

NOTES

  1. R. Solomon B. Freehof, Reform Responsa for Our Time, no. 5.
  2. R. Walter Jacob, Halakhah, a publication of the Freehof Institute of Progressive Halakhah, Spring/Summer ed., 1996.
  3. The classic statement – “we are dwarfs, standing on the shoulders of giants” – seems to have originated with the 12th century Scholastic philosopher Bernard of Chartres. R. Yeshayahu di Trani (d. Ca. 1250) is apparently the first Jewish author to use the phrase, which he calls “a saying (mashal) of the philosophers”; Resp. RYD, no. 62. R. Yeshayahu learns from this saying that although the dwarf certainly lacks the great stature of the giant, he nevertheless can see farther, precisely because the giant enables him to do so. This explains how we acharonim, or “later” sages, are permitted to disagree with our predecessors (the rishonim), even though the rishonim, according to traditionalist ideology, are by definition greater and wiser than we. On this subject, see Yisrael Ta-Shema, Halakhah, minhag, umetzi’ut be’ashkenaz (Jerusalem: Magnes, 1996), 70-71, and Robert K. Merton, On the Shoulders of Giants: A Shandean Postscript (Chicago: University of Chicago Press, 1993).
  4. Orach Chayim 21:1. Actually, the passage reads “because no sanctity attaches to its physical substance” (she’ein begufah kedushah); i.e., the tzitzit is holy only because it is whole and attached to a four-cornered garment. A tzitzit that is detached from the talit is mere thread; no mitzvah is performed with it, and it thus may be discarded. We wonder whether a proper analogy can be drawn from a detached tzitzit to a fringed talit with which a mitzvah is indeed performed.
  5. Shulchan Arukh Orach Chayim 21:3. The commentators on that passage, however, notably the Magen David and the Mishnah Berurah, write that this refers to the talit katan, the fringed undergarment that one may wear all day long, and not to the talit shel mitzvah that is worn specially during prayer. The latter, they declare, should not be worn in the toilet.
  6. The precise she’elah addressed by Rabbi Freehof concerns a Christian minister who is to participate in a joint service at the synagogue and who wishes “to wear a talit as the rabbi does.”
  7. See notes 4 and 5, above.
  8. On the general question of Gentile participation in synagogue services, see Teshuvot for the Nineties, no. 5754.4, 55-75 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=5&year=5754).
  9. Pesikta deRav Kahana 16:3 on Lamentations 2:13; Sifre Deuteronomy, ch. 36 (to Deut. 6:9).
  10. Mipney darkhey shalom is the justification cited for a number of takanot (rabbinic legislative ordinances) during Tanaitic times. See M. Gitin 5:8-9 and Shevi`it 4:3, among other places. Mishum eivah appears during the later, Amoraic period; see, for example, B. Bava Metzi`a 32b and Avodah Zarah 26a.
  11. This Committee has spoken to the issue on a number of occasions. Non-Jews are not called to the Torah, do not read the haftarah, do not receive important “honors” surrounding the Torah service, and do not lead the central rubrics of our liturgy; Teshuvot for the Nineties, no. 5754.4, 55-75 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=5&year=5754); Responsa Committee, no. 5758.11 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=11&year=5758); American Reform Responsa, no. 6, 21-24 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=6&year=arr); Current Reform Responsa, no. 23, 91-93; and New Reform Responsa, no. 7, 33-36.
  12. For example, as one member of our Committee puts it: “How would we feel about a Jew attending a Catholic mass for a relative’s confirmation, and taking communion?” The members of that Catholic church would surely question whether the Jew had acted appropriately with regard to their sacrament.
  13. Many traditionally observant Jews will not invite non-Jews to a seder or to any other yom tov meal. This is because the permission to cook on a festival day (so long as it does not fall on Shabbat) is interpreted to apply only to food that is cooked for Jews; therefore, “it is forbidden to invite the non-Jew, lest one cook extra food on the festival day specifically for him” (Shulchan Arukh Orach Chayim 512:1; see B. Beitzah 21b on Exodus 12:16). We Reform Jews clearly do not observe this restriction. Moreover, so long as it is clear that one will complete the cooking prior to the onset of the holiday, there is no reason why Orthodox Jews should refrain from inviting non-Jews to the meal.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5765.8

CCAR RESPONSA

5765.8

Including the Name of a Stepfather in One.s Jewish Name

She’elah

May a person who has two fathers, a stepfather who raised her and a biological father who was a regular part of her life, be called to the Torah with the names of both fathers? If so, which of the fathers should be listed first? My daughter’s Bat Mitzvah is approaching, and when I am called to the Torah I would like my name to include the names of both of my fathers and my mother.

Teshuvah

In our tradition, one’s name follows the formula “Peloni ben/bat Almoni,” where “Peloni” is one’s given name and “Almoni” is the name of one’s father. (In Reform Judaism, we customarily add the name of the mother.) This custom, which the Bible dates to patriarchal times,[1] made it possible to identify individuals for legal purposes[2] and to establish one’s lineage (yichus) in the community, particularly in matters related to priestly status.[3] You ask whether it is appropriate to depart from this custom in order to include the name of your stepfather, along with those of your biological parents, in your Jewish name.

We certainly applaud your desire to show appreciation to one who has loved and raised you since you were a child. It is a mitzvah to honor and to revere one’s parents,[4] and as we have argued, that obligation extends to one’s adoptive parents as well.[5] Our parents, in Jewish terms, are those who raise us, care for us, provide for our needs and educate us, and adoptive parents perform these functions as surely do biological parents. Stepparents also fill the role of parent in our lives, even though the law does not accord them that precise status; we therefore owe a similar duty of honor to them. As the Rabbis teach, “One who raises an orphan in his home is regarded by the Torah as though he has given birth to that child” (B. Sanhedrin 19b), and “the one who raises a child is called the ‘parent,’ not the one who begets the child” (Exodus Rabah 46:6).

Yet the duty to honor one’s stepparent does not imply that one should alter his or her Jewish name. Our Jewish names do more than record a simple genealogical fact. They register the avenue through which we have become members of the community of Israel. If we are born into the Jewish people, we receive our Jewish status from our parents, and our name testifies to that fact. If we have chosen as adults to embrace Judaism, our name indicates that we are the “son/daughter of our father Abraham and our mother Sarah,” whom our tradition recognizes as the spiritual parents of all proselytes.[6]  An adopted child born of Gentile parents may be named “the son/daughter of” the adoptive Jewish parents, rather than “ben/bat Avraham avinu veSarah imenu,” precisely because it is the adoptive parents who bring that child into the covenant of Israel.[7] To put this in terms of Jewish theology, we were all present at Sinai, even those of us alive today, either because we were born to Jewish parents or have converted to Judaism.[8] Your stepfather loved and cared for you, and he surely participated in your Jewish education and upbringing. But he did not bequeath to you your membership in the Jewish people; that is a status you have inherited from your biological parents.[9] Your Jewish name, which we understand as a covenantal name,[10] should attest to that reality.

To be sure, our tradition permits one to change his or her Jewish name under certain conditions. For example, the halakhah provides that while an individual is called to the Torah by his Jewish name, he may omit his father’s name (perhaps substituting the name of his paternal grandfather in its place) should the father be an apostate, that is, a convert to another religion.[11] Your biological father, however, has not done anything so grievous. He has not abandoned you or forsaken his duty as a father; indeed, you acknowledge that he has been “a regular part of (your) life.” Even were we to agree, therefore, that at times one’s Jewish name might be altered, this is not one of those times.

Conclusion. Your stepfather deserves all the respect and honor that a child owes to a parent. There are numerous ways that you can express that respect throughout your life and, in particular, during your daughter’s Bat Mitzvah observance. Our Jewish names, however, are not the appropriate means for bestowing honor upon a stepparent or, for that matter, upon other persons who may have cared for, taught, and guided us through our lives. Our Jewish names are rather the symbolic expression of our identity as Jews, the record of how each of us has become part of the covenant of Israel.

NOTES

 

  • See, for example, Genesis 25:12, 19; 28:9; and 34:1.
  • For example, the witnesses to a divorce document (get peturin) must be able to identify both the husband and the wife by name “and by the names of their fathers”; see Beit Yosef to Tur Even Ha`ezer 120, s.v. vekotvin lo, and Isserles, Shulchan Arukh Even Ha`ezer 120:3. The formula peloni bar (or ben) peloni appears in the text of the divorce document (Yad, Gerushin 4:12), the chalitzah document (Yad, Hilkhot Yibum Vechalitzah 4:30), and in commercial deeds (Yad, Malveh Veloveh 22:8 and 24:3).
  • This accounts for the Torah’s care in specifying the names Itamar ben Aharon Hakohen (Exodus 38:21, Numbers 4:28, 4:33, 7:8), Elazar ben Aharon Hakohen (Numbers 3:32, 4:16, 17:2, 26:1), and Pinchas ben Elazar ben Aharon Halohen (Numbers 25:7, 25:11).
  • Exodus 20:12; Leviticus 19:3; Deuteronomy 5:16. On the definition of the “honor” and “reverence” spoken of in these verses see Yad, Mamrim 6 and Shulchan Arukh Yoreh De`ah 240.
  • Ibid., and R. Moshe Feinstein, Resp. Igerot Moshe, Yoreh De`ah 1:161. We do not address the question of a child born through reproductive technologies such as in vitro fertilization whose biological parents (i.e., those who donate the genetic materials) and whose adoptive parents are Jews. The issue in that case is a complex one that requires further study; therefore, nothing we say here should be understood as conveying our position concerning it. In the meantime, see our responsum 5757.2, “In Vitro Fertilization and the Status of the Embryo” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5757).
  • See Deuteronomy 29:14, along with Rashi ad loc.; Midrash Tanchuma, Nitzavim ch. 3; and B. Shabbat 146a.
  • We note here that this affirmation is supported by the CCAR’s Resolution on Patrilineal Descent; see Rabbi’s Manual (New York: CCAR, 1988, 226; (http://data.ccarnet.org/cgi-bin/resodisp.pl?file=mm&year=1983 ). That resolution provides that “the child of one Jewish parent is under a presumption of Jewish descent. This presumption of the Jewish offspring of any mixed marriage is to be established through appropriate and timely public and formal acts of identification with the Jewish faith and people” (emphasis added). The resolution speaks only and explicitly to the status of a child born to one Jewish and one non-Jewish parent. By implication, the child born of two Jewish parents is Jewish; his or her Jewish status is not “presumed” but firmly fixed.
  • R. Yisrael Isserlein (15th-cent. Germany), Resp. Terumat Hadeshen 1:21; Isserles, Shulchan Arukh Orach Chayim 139:3. This ruling is limited, however, to cases where the change of name will not cause embarrassment to the son; see Resp. Maharam Padua (16th-cent. Italy), no. 87.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5763.1

CCAR RESPONSA

5763.1

Solicitation of Synagogue Members by Other Jewish Organizations

She’elah
In many communities, organizations such as Chabad, Aish HaTorah and others either directly or indirectly solicit members of existing congregations for programs, activities, worship and financial support. Are these practices ethical according to Jewish tradition? Does such solicitation or even ministering to members of existing congregations transgress the prohibition of hasagat gevul? (Rabbi Ned Soltz, Fullerton, CA)

Teshuvah
Our canons of professional practice, as embodied in the CCAR’s Code of Ethics for Rabbis, expressly forbid us from rendering “pastoral attentions to members of other congregations, havurot, and other religious institutions” if such attentions would harm collegial or institutional relationships. A rabbi, moreover, “should neither solicit nor sanction efforts to solicit members of another congregation.”[1] It is clear, therefore, that by our own takanah, or authoritative legislative enactment, it would be wrong for rabbis and synagogues to engage in the practices described in our she’elah. The problem, of course, is that the Code of Ethics is binding only upon members of the CCAR; it does not apply to other rabbis or to organizations such as Chabad and Aish HaTorah. Hence, our sho’el asks whether such solicitation is prohibited by traditional Jewish law and ethics, that is, by standards that are independent of our own rabbinical community and that other religious Jews would find persuasive and compelling.

In particular, our she’elah points to the principle of hasagat gevul, a term drawn from the Torah’s prohibition against removing the boundary markers that separate one’s property from that of one’s neighbor (Deuteronomy 19:14 and 27:17). Although the Biblical sources do not apply this concept to matters outside the realm of property law, it does receive such an interpretation in the classical Midrash and the Geonic literature.[2] By the late medieval period, halakhic authorities use the phrase hasagat gevul to describe unauthorized economic competition, that is, transgression against individual’s legally valid claim to the control of a particular office or market.[3] Might we utilize this principle in our case? When another Jewish organization asks our members for financial support or seeks their participation in its programs or activities, does it “violate the boundaries” that define and protect our synagogue community?

To answer this question requires that we make two judgments, one quantitative and one qualitative. On the quantitative side, we should keep in mind that the prohibition of hasagat gevul, when applied to issues like those raised in our she’elah, is an economic concept; its purpose is to protect the livelihood of individuals and businesses against ruinous competition. Under certain conditions, Jewish law allows an existing business to restrain the entry into its market of a potential competitor, on the grounds that the competitor would destroy the livelihood (mekape’ach et parnasato) of the existing business. If the level of competition is not “ruinous” – that is, if the entry of the competitor would not necessarily drive the existing merchant or artisan out of business – this restriction does not apply.[4] As a qualitative matter, restrictions against competition are generally not invoked against those, like melamdim (teachers of Torah to children) and communal rabbis, whose business involves mitzvot.[5]The Talmud justifies this free competition on the principle kin’at sofrim marbah chokhmah, literally, “jealousy among scribes  increases wisdom,”[6] essentially, “free intellectual competition is good for Jewish life.” There are, of course, exceptions to this rule.[7] The rabbinate, for example, has become a salaried profession, and rabbis can qualify for the same protections accorded to other professionals.[8] Still, Jewish tradition in general frowns upon actions that artificially restrict competition and free market entry in matters related to Torah and mitzvot, particularly when this competition is not “ruinous.”

How do we apply these judgments to cases such as the one described in our she’elah? Are these other Jewish organizations, when they enter our “market,” guilty of hasagat gevul? True, they “compete” with us for funding from the community and for participation by our members in their programs and activities. In the vast majority of cases, however, this competition is far from “ruinous”; the financial stability of our synagogue is not called into question. Moreover, precisely because these organizations perform mitzvot, we want our members to be involved in their programming. The goal of our own activity, after all, is to help produce good and caring Jews, and such people should be involved with other Jewish organizations that fulfill needed and vital tasks. Obviously, we do not want their involvement to lessen the amount of support they give to our synagogue, but on this point, we think, we have little to fear. A Jew who becomes active to the fullest extent in the life of the community will likely be more rather than less conscientious in contributing to the life of our congregation. At any rate, we suffer when we assume a narrow perspective on Jewish community life. When we actively discourage the participation of our own members in the work of other Jewish organizations (and, indeed, in the work of agencies in the general community that feed the hungry and care for the needy), we declare that our congregation is somehow isolated from the concerns that those groups address. A good synagogue, one that is truly committed to the cause of Torah, mitzvot, gemilut chasadim, and tikun ha`olam would not send such a message to its own members and to the community at large.

Does this approach change when our “competitors” are Chabad, Aish HaTorah, or other Orthodox groups?[9] Such organizations might be construed as “inimical to Reform Judaism,” thereby forfeiting any claim to our active support.[10] We need not, however, directly oppose their activity on grounds of hasagat gevul. First of all, Jewish tradition does not absolutely forbid a group of individuals within the community from leaving a congregation to form their own synagogue, especially when the new congregation follows a different liturgical ritual (nusach) from the old one, which would certainly be the case here.[11] Moreover, the competition these groups pose to us is hardly “ruinous”; it is highly doubtful that their activity will drive our congregations into insolvency. Nor do we fear exposing our members to their point of view. On the contrary: as liberal Jews, committed to the concept of Jewish religious pluralism, we welcome the vigorous discourse and debate that these groups might introduce into our community. If this should awaken the intellectual curiosity of our members and make them question long-held assumptions about their Judaism, then mah tov; so much the better. Our knowledge of and confidence in our own approach to Jewish belief and practice can only benefit and be strengthened by such encounters. As Reform Jews, open to the intellectual currents of modernity and ready to wrestle with the challenges they present to us, we therefore embrace that ancient dictum: kin’at sofrim marbah chokhmah. Good argument is good for the Jews.

Conclusion. Although we Reform rabbis have resolved not to solicit members from other congregations, the traditional principle of hasagat gevul would not prevent other Jewish organizations from soliciting our members to participate in their programs. We should meet these organizations, even if we consider them “competitors,” in a spirit of friendly discussion and argument, with confidence that our own position is right for us. On the other hand, we are under no obligation to provide any assistance to organizations we deem to be “inimical to Reform Judaism.”

NOTES

  • Central Conference of American Rabbis, Code of Ethics for Rabbis, Adopted in convention assembled, June, 1991, and as amended in 1993, 1998, 2001, 2003 and 2004, sec. II. C. 3-4, available at
  • In Sifrei Deuteronomy (to 19:14) the prohibition is applied to “one who exchanges the rulings of R. Eliezer with those of R. Yehoshua”; i.e., one who cites the ruling of one sage in the name of the other. Rav Sherira Gaon learns from the verse that “one should not transgress against accepted communal custom (minhag)”, the “boundaries” drawn up by “previous generations” (the responsum is collected in Resp. Sha`arei Tzedek, no. 20 and cited in Tur, Choshen Mishpat 368). The same interpretation is applied to the very similar verse in Proverbs 22:28; see Midrash Mishle, ed. Buber,22:28, and Rashi to the verse.
  • For example, R. Shelomo Luria (16th-century Poland) rules that when an individual has contracted with the local ruler to collect taxes, one who supplants that individual (by offering a higher sum to the ruler) violates the rule of hasagat gevul. Luria concedes that the prohibition in Deut. 19:14 applies strictly to violations of real property rights; nonetheless, the repetition of the prohibition in Deut. 27:17 extends its terms to other aspects of commerce and economic life. See Resp. Maharshal, no. 89. Luria’s contemporary, R. Meir Katznelbogen, applies the rule to competition among merchants; Resp. Maharam Padua, no. 41.
  • B. Bava Batra 21b-22a; Yad, Shekhenim 6:8ff.; Shulchan Arukh Choshen Mishpat 156:5ff. The rules concerning “ruinous competition” (hayored le’omanut chaveiro) are exceedingly complex, and this area of the law is filled with machloket, points of dispute. This is because the halakhah wishes to strike a careful if complicated balance between two important interests. It wishes to protect the livelihood of merchants and artisans; at the same time, it does not oppose free competition, and it recognizes the value of such competition to the economy and to consumers.
  • B. Bava Batra 21b; Yad, Talmud Torah 2:7; Shulchan Arukh Yoreh De`ah 245:22.
  • Rashi, Bava Batra 21b, s.v. umodeh rav huna, explains that as a result of this “jealous” competition the teachers “will be careful to do their work well, since they are wary of each other.” Rambam (Yad, Talmud Torah 2:7) does not mention this explanation, but substitutes it with Isaiah 42:21, that is, God wishes that “Torah be increased and glorified”; hence, competition in the field of mitzvot is a good thing.
  • For example, halakhic authorities have permitted the granting of copyright to the printers and publishers of sacred texts, even though such a monopoly is difficult to square with traditional Jewish legal doctrine, on the grounds that without the protection that copyright affords them, these individuals would never assume the financial risks involved in bringing editions of the Talmud and the Mishneh Torah, among other works, to market. Thus, copyright is a matter over which the community has no real choice. See R. Moshe Isserles, Resp. Rema, no. 10, and R. Moshe Sofer, Resp. Chatam Sofer, Choshen Mishpat, no. 41. On another matter, the Rambam rules that a mohel who interferes with another mohel’s expected income is guilty of hasagat gevul; Resp. Harambam (ed. Blau), no. 273. Note, however, the author’s language: the offending mohel “interferes with the set livelihood (parnasah kevu`ah) of a poor, God-fearing Jew (ani ben Torah). In other words, this is a case of “ruinous competition,” not competition pure and simple.
  • This position, which applies the doctrines of hasagat gevul and “ruinous competition” to the rabbinate, is a departure from the more traditional position perhaps best expressed by the 15th-century German authority R. Yisrael Isserlein, in Resp. Terumat Hadeshen, 2:128: the fact that we rabbis receive an income for performing our communal function is an embarrassment to us, so much so that we cannot justify a claim of entitlement to that income and protection from competition. The economic situation of the rabbinate clearly has changed, as is noted in Resp. Chatam Sofer, Choshen Mishpat, no. 21: rabbis now accept the reality that they are salaried professionals and are not embarrassed to demand they be treated with the same respect as is accorded to other professionals. In the North American Reform rabbinate, issues of “ruinous competition” are regulated in the CCAR Code of Ethics for Rabbis, section II. C.
  • We distinguish here between Jewish organizations, even though they disagree with our own approach to Judaism, and apostate groups such as Jews for Jesus or Messianic Jewish congregations. Our approach to apostates is one of “strict separation tempered with openness.” See our responsum 5761.2, “Donations to Synagogue By Messianic Jews,” , at notes 1-4. Unlike Orthodoxy, we do not regard apostasy as a legitimate Jewish religious choice, and we approach apostate groups accordingly. We take no position in this responsum on the question of the messianism present in the doctrine of Chabad Chasidism or on the question of whether, given the messianic claims raised by many members of Chabad for their late Rebbe, Chabad has “crossed the line” from legitimate Judaism to apostasy. A powerful argument that it has crossed that line is raised by Professor David Berger, an Orthodox Jewish scholar, in his The Rebbe, the Messiah, and the Scandal of Orthodox Indifference (London: Littman Library, 2001). The matter therefore deserves our attention, and any contacts between Reform rabbis and the Chabad movement should be maintained with the utmost caution.
  • See Contemporary American Reform Responsa (CARR), no. 25, “Gifts to Organizations Inimical to Reform Judaism”( ), and Questions and Reform Jewish Answers (QRJA), no. 92, “Reform Support for Orthodox Institutions” ( ). We make no determination here that either Chabad or Aish HaTorah is “inimical” to our interests as a Reform movement; we note simply that the local rabbi must make that judgment and is entitled to act accordingly.
  • The word “absolutely” indicates that this, too, is a complex question. On the one hand, Jewish tradition favors large congregations over small ones and would discourage individuals from leaving an established synagogue on that account; for sources, see TFN, no. 5752.12, pp. 3-6, at notes 2-5 ( ). On the other hand, if an individual finds that he cannot pray with kavanah (intention and concentration) in an existing synagogue because of discord between him and the other members should pray elsewhere; R. David ibn Zimra (16th-17th cent. Egypt), Resp. Radbaz 3:472, and R. Avraham Danzig (18th-19th cent. Germany/Lithuania), Chayei Adam 17:5. R. Yitzchak bar Sheshet (14th cent. Spain/North Africa) rules that individuals have the unfettered right to leave an existing synagogue to form their own congregation (Resp. Rivash, no. 331). Although some authorities limit this right in cases where the split would cause significant financial loss to the existing congregation, there is no opposition to the formation of a new synagogue that follows a different nusach from the old one. For discussion, see Zalman Druck, Mikdash Me`at (Jerusalem, 1973), 10-15.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5765.10

CCAR RESPONSA

5765.10

Inheritance: How Much To Leave To A Child?

She’elah
I received a call from a temple member who is rewriting his will and would like some guidance from Jewish tradition regarding disposition of his assets upon his death. He has two children and three grandchildren and is concerned about leaving so much to them that they might not lead productive lives. He seeks some kind of formula on how his wealth should be divided between charitable bequests and gifts to his family. His philanthropy occupies an ever increasing amount of his semi-retirement time. (Rabbi Stephen S. Pearce, San Francisco, CA)

Teshuvah
For a comprehensive treatment of the Jewish law of inheritance, as well as for a consideration of a question quite similar to the one you ask, we refer you and your congregant to a teshuvah of our colleague and teacher R. Walter Jacob.[1] The issue dealt with the distribution of the estate: may the normal order of inheritance be “rearranged from the standard recommendation and favor one child over another,” to compensate for that child’s “bad luck” or inability to take care of him- or herself? Unfortunately, as Rabbi Jacob notes, “in the lengthy discussions of wills and estates, which took place in traditional literature, there is little which deals with the question which you have asked.” The same might be said for the present she’elah. The tradition offers no specific formula of the kind that your congregant seeks. Still, it offers guidance as to how a parent should think about these issues, and from that guidance we might be able to formulate a general approach, if not a specific formula. We therefore turn to a consideration of those aspects of the Jewish law of inheritance relevant to your question. Once again, a fuller analysis may be found in Rabbi Jacob’s teshuvah. This responsum relies upon many of the sources he cites and accordingly should be read as a supplement to his work.

Your congregant seeks to rewrite his will so as to limit the amount of his estate that he leaves to his children and grandchildren. The difficulty with this course of action, from a traditional Jewish perspective, is that the Torah sets forth the order of inheritance in strict and specific fashion. Property is inherited by sons, not by daughters (unless there are no sons); the first-born son receives a double portion of the estate; and so forth. No “will” is valid at Jewish law that deviates from the Torah’s order of testamentary succession.[2] In fact, Jewish law does not recognize a “will” per se, since the “last will and testament” familiar in our contemporary legal systems takes effect only upon the death of the testator (i.e., the one who issues the will), and according to the Jewish legal tradition a gift made after the death of the donor is invalid (ein shetar le’achar mitah).[3]

None of this means that an individual is powerless to affect the ultimate distribution of his property. He may do so in any way he wishes, provided that he does it in the form of a gift executed while he is still alive. The gift may be made while he is perfectly well (matanat bari) or when he is on his (presumed) death bed (matanat shekhiv mera`). In some cases, the Rabbis encouraged a father to make such gifts as a means of rectifying the perceived inequities of the inheritance laws.[4] In theory, then, so long as he executes valid acts of gift prior to his death, therefore, a father can create his own order of “inheritance,” transferring his estate to anyone he wishes.

Does this mean that a father may effectively disinherit one or more of his children under Jewish law? Not exactly. Although he is legally empowered to make gifts prior to his death, “the Sages are displeased” with the one who “gives his property to others and leaves his children with nothing,” even if his children are not of good character.[5] The reason given for this is that, even if one’s child does not act properly, how does one know that the child’s son will not be worthy?[6] One should therefore leave intact the Torah’s order of succession rather than try to influence one’s children’s behavior from beyond the grave. True, one authority suggests that “the Sages” would not be “displeased” with such a gift so long as the donor reserves a symbolic (if small) amount for his legal heirs.[7] Others, however, approve of this device only when the donor has no children and would be inherited by other relatives; if he has children, they insist, the principal part of his estate (`ikar `izevono) must go to them.[8] It follows that, while Jewish law enables parents to transfer their estate away from their children, it prefers that they not do so.

The tradition also teaches that it may be unwise for parents to attempt to control the behavior of their adult children. The Talmud, for example, forbids a father from exerting physical discipline upon his adult son, on the grounds of the commandment: “do not place a stumbling-block before the blind” (Leviticus 19:14): that is, the discipline might cause the son to lash out in resentment or to bear a grudge against his father and thereby violate the commandment “honor your father and your mother.”[9] There is a time, in other words, when overt acts of discipline or “education” toward our children become inappropriate and counterproductive. While it is understandable, therefore, that this parents wishes to influence his children in a positive direction, Jewish tradition would counsel him (and all of us) to seek a proper balance between actions that express legitimate parental concerns and those which, however well-intentioned, would be perceived as intrusive or punitive.

Let us now consider our she’elah in light of both our Jewish tradition and the particular perspective that we Reform Jews bring to bear upon it. What sort of guidance does it offer our sho’el? First, we would note that as Reform Judaism insists upon gender equality in matters of religious or legal obligation, it makes no difference whether the testator is a father or a mother, and it is irrelevant whether the heir is a son or a daughter. The rules of inheritance ought to be the same in either case. Second, we see nothing objectionable in the tradition’s strong preference that the children receive “the principal part” of the estate. At the same time, we think that parents on occasion may have a legitimate interest in determining that their estates be distributed in a manner other than that specified in the classical Jewish order of inheritance. The power to disburse the estate through gifts made prior to death can be an effective means of performing acts of tzedakah and social justice, and it is a tool through which unfortunate consequences might be avoided. Third, although we agree that parents should not distribute their estate in a way that the children will see as “punitive,” there is no reason why they cannot set reasonable, non-punitive terms to govern the estate’s distribution. We suspect, in other words, that “the Sages” would not be “displeased” if a parent sought to establish reasonable controls upon the distribution of the estate to adult children who, in her considered judgment, would use it to negative ends. For example, while the tradition offers your congregant no “formula” of the kind he seeks, it would permit him to stipulate that the inheritance be distributed in stages. He might establish a trust fund that would insure his children and grandchildren receive a certain level of income even though they are not permitted to access the principal. He might also stipulate the purposes for which funds may be withdrawn from the trust: to pay tuition and other educational expenses, to assist the children and grandchildren in entering business or professional life, to make donations to tzedakah, and so forth. Given that these purposes allow either the father or his heirs to perform mitzvot, such stipulations do not in our opinion qualify as punitive in nature. They serve rather as proper expressions of a parent’s wish that his children and grandchildren might leave, as our she’elah puts it, “productive lives.”

The children and grandchildren, of course, might disagree with this assessment and regard restrictions of this type as “punitive” indeed. For this reason, among others, it is obviously the better course for your congregant and his heirs to resolve their differences while he is still alive. Surely both sides would wish to avoid the unpleasantness that all too often erupts among families over provisions in a deceased person’s will. If, however, such a resolution proves impossible to achieve, your congregant is entitled according to the letter and spirit of Jewish tradition to dispose of his estate along the lines that we have suggested.

NOTES

  • Questions and Reform Jewish Answers (New American Reform Responsa), no. 239 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=239&year=narr ).
  • The father may, however, direct his entire estate to one legitimate heir among the others; M. Bava Batra 8:5; Yad, Nachalot 6:2; Shulchan Arukh Choshen Mishpat 281:1. This is the case only when he is shekhiv mera`; see below.
  • See B. Bava Batra 135b; Yad, Zekhiyah umatanah 8:12; Shulchan Arukh Choshen Mishpat 250:18.
  • One famous example of this is the ketubat banin dikhrin (M. Ketubot 4:10), an obligation that the Rabbis imposed upon the groom at the time of marriage. The groom was to stipulate that upon his death his wife’s sons would inherit the entire value of their mother’s ketubah; they would not be required to share that sum with sons that their father may have had by other wives. The purpose of this obligation was to encourage the bride’s father to make a gift of property to her prior to marriage (“that he would transfer property to her as he would do to his son”), which he would be more likely to do if he knew in advance that the property she brought into the marriage would be passed down through her (and her father’s) family line (B. Ketubot 52b). The practical effect of this was to insure that the daughter “inherited” a fair share of the father’s estate, though this was done as a gift rather than as a formal inheritance.
  • M. Bava Batra 8:5; B. Bava Batra 133b; Yad, Nachalot 6:11; Shulchan Arukh Choshen Mishpat 282:1; Resp. Maharashdam (15th-cent. Salonika), Choshen Mishpat, no. 311.
  • B. Ketubot 53a; Beit Yosef to Tur, Choshen Mishpat 282; Sefer Me’irat Einayim to Shulchan Arukh Choshen Mishpat 282.
  • R. Shimeon ben Tzemach Duran (15th-cent. Algiers), Resp. Tashbetz 3:147.
  • Resp. Chatam Sofer, Choshen Mishpat, no. 151; Arukh Hashulchan, Choshen Mishpat 282:3.
  • B. Mo`ed Katan 17a and Yad, Mamrim 6:9. In general, the commandment “you shall not place a stumbling block before the blind” is understood to forbid us from leading another person into sin unwittingly; see B. Pesachim 22b.If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5763.2

CCAR RESPONSA COMMITTEE 

5763.2

Live Liver Transplantation

She’elah.

My question concerns the medical procedure known as live liver transplantation, in which a significant part of a donor’s liver is removed and transplanted into the body of a recipient. This is unlike the case of live kidney donation. There, an individual who donates one of two healthy kidneys places him- or herself in no serious danger aside from the risks normally associated with major surgery (e.g., from anesthesia), so that the life-saving benefit to the recipient far outweighs the risk incurred by the donor. In the case of live liver donation, the donor faces a much greater degree of danger. This means that the risk-benefit comparison, which is so favorable with respect to live kidney donation, is much more difficult to assess.

According to our understanding of Reform Judaism, is it ethical to conduct this procedure? Should we permit an individual to risk his or her life and health by donating a large section of his or her liver, even if this would save the life of the recipient? How does this procedure comport with the basic medical ethic of “do no harm”? And how do we evaluate this procedure in light of the concept of “informed consent,” a standard so much a part of the current medical environment? Can there really be “informed consent” when a person is asked to put his or her life in danger? Can there be “informed consent” when it is a family member in need and when “no” is not an answer easily lived with? (Rabbi Deborah Pipe-Mazo, New York, NY)

Teshuvah.

Before we begin our teshuvah, we should acknowledge the principle that stands behind it and that guides it throughout: the mitzvah of healing, refu’ah.[1] The practice of medicine is the most common means by which we fulfill the obligation to preserve human life (pikuach nefesh), a duty that takes precedence over virtually every other core Jewish value. All Jews, we would think, agree on this general point. Where we disagree is on the specifics: what, in any particular situation, constitutes an acceptable practice of “medicine”? That is the case here, with our she’elah. Our generation has long since accepted the proposition that organ transplantation from donors dead or living is a valid form of medicine, of the healing arts. Yet as our questioner notes, some transplantation procedures seem to pose an unacceptable risk to the living organ donor, thus constituting an example not of medicine but of the “harm” that physicians must not inflict upon their patients. In framing our response, we shall first consider the issue of organ transplantation in general: what are the circumstances under which Jewish law, according to our understanding of it, permits the donation of a human organ from a dead or a living person to help save the life or health of another? How does the element of risk, the danger to the living organ donor, affect the calculation of these circumstances? At that point, we will be in a position to ask whether our tradition forbids, permits, encourages, or even requires an individual to donate part of his or her liver to another human being.

  1. Cadaveric Organ Donation. As of this writing, nearly eighty percent of all organs transplanted in the United States are taken from deceased donors.[2] Given the large number of potential organ recipients who currently await transplantation[3] and the efforts by governments and other institutions to encourage individuals to become organ donors upon death,[4]it is clear that cadaveric organ donation is a critically important resource in the struggle against disease. For this reason, we might suppose that Jewish law, which places such great emphasis upon the mitzvah of healing, would raise no objections to this practice. Yet it is far from obvious that this is so. The harvesting of organs from deceased persons might well conflict with another central Judaic value, that of kevod hamet, the obligation to respect the dignity of the dead. This respect entails that human remains are to be quickly and properly buried; we are not to utilize or manipulate them for our own purposes, even for the fulfillment of the mitzvah of refu’ah.[5] “The dead,” it has been noted, “are not obligated to fulfill the commandments…and we are (therefore) not empowered to deny them the honor that is their due.”[6] In particular, the use of cadaver organs for transplantation would seem to conflict with three separate ritual prohibitions:[7] the ban against deriving benefit or profit from the dead (isur hana’ah min hamet),[8] the disrespectful treatment of the corpse (nivul hamet),[9] and the delay in burial of the remains (meni`at hakevurah).[10]

Halakhic authorities, however, have come to recognize organ donation as an exception to each of these prohibitions. For example, Rabbi Isser Yehudah Unterman, a former chief rabbi of Israel, rules that the positive duty to preserve human life (pikuach nefesh) outweighs the prohibition against deriving benefit from the dead. As additional support, he offers the novel argument that the prohibition ceases to apply “when these organs are ‘resurrected’ [i.e., through the process of transplantation]” and can be considered “alive” rather than “dead.”[11] Various poskim waive the proscription against “disrespectful treatment” when the otherwise forbidden act is undertaken for a good and appropriate reason.[12] And once an organ has been transplanted into the body of the recipient, it is no longer part of the body of the deceased and thus no longer subject to the requirement of burial.[13]

Reform Jewish tradition concurs with this permissive view. Indeed, we teach our people that organ donation is a mitzvah,[14] and we are not so concerned in this regard with the various prohibitions concerning the handling of the remains of the deceased. This is not to say that we do not believe that the dead deserve respectful treatment, but simply that the traditional definitions of kevod hamet and nivul hamet came into being long before medical science developed the technologies of organ transplantation. Now that physicians and surgeons can save many lives through these procedures, they have become an integral feature of the legitimate practice of medicine. In this new scientific reality, the operative rule is the dictum that “any and all measures, with the exception of idolatry, sexual immorality, and murder, may be utilized for the sake of healing.”[15] Cadaveric organ donation is included in these measures. It is a mitzvah, and it must not in any way be associated with the acts that our tradition condemns as disgraceful treatment of the dead.

  1. Organ Donation By Live Donors. When a suitable cadaveric organ is not available for transplantation, doctors may take an organ from a live volunteer. From the standpoint of Jewish tradition, an organ donor fulfills one of the most profound duties recognized by the Torah: the mitzvah to rescue a person from mortal danger. As the Talmud states:

From where do we learn that if one sees his fellow drowning in the river, attacked by wild beasts, or endangered by robbers that one is obligated to save him? “You shall not stand idly by the blood of your neighbor” (Leviticus 19:16).[16]

This obligation, however, may conflict with another requirement, the duty to preserve one’s own life, which stems from the obligation to preserve human life in general (pikuach nefesh). The Rabbis learn this obligation from Leviticus 18:5: “These are the mitzvot…that a person shall perform and live by them,” to which the Midrash adds: “and not die by them.”[17] This implies that a person should not perform a mitzvah if that act endangers his or her life. Thus, the prohibitions against work (melakhah) on Shabbat and the commandment to fast on Yom Kippur are waived when the observance of these mitzvot would jeopardize an individual’s life or health.[18] It follows that the mitzvah of rescue is also annulled when that action would endanger the life of the potential rescuer.

We shall examine this question in some detail below, because it is central to every halakhic discussion concerning the propriety of organ donation. For the moment, let it suffice to say that, in Jewish terms, the ethical issue demands a measurement of the degree of risk in each particular case. While halakhah forbids suicide and does not require us to risk mortal danger in order to fulfill the commandments (including Leviticus 19:16), halakhic authorities are generally willing to permit a living person to donate an organ when physicians judge the operation to pose no serious risk of death or injury to the donor.[19]

  1. Live Liver Transplantation: The Procedure. What degree of risk does live liver donation pose to the donor? The surgery[20] usually involves the taking of the left lateral part of the liver from the donor. The principal arteries, veins, and biliary ducts of the donor organ are connected to the corresponding vessels and ducts of the recipient. The cut vessels and ducts on the surface of the donor liver are sealed to minimize leakage of blood or bile. The incision is then closed. Those who perform the surgery argue that it is safe, on the basis of several facts: a) an individual with a normally functioning liver can survive a 75% loss of liver tissue; b) no more than 30% of the donor liver mass is excised; c) in the above case, the donor’s liver should regenerate in one month; d) the donor will recover most, if not all, of his or her liver function. The above applies to donation of the left lobe of the liver; some researchers have obtained similar results when taking the donor’s right liver lobe, a more difficult and potentially dangerous procedure.[21] A team of Japanese physicians, surveying 470 cases of live liver transplantation at Kyoto University hospital from 1990 to 1999, found no donor deaths and concluded that “the morbidity of living donors is low or minimal even for right lobectomy, the most extended procedure, and complete recovery can be expected in all cases.”[22] An American survey published in 2000 estimated that donor death occurs in 0.2% of cases of adult donors and 0.13% for pediatric donors; among other cases, “all donors returned to predonation activities,” most by the end of three months following the surgery and all by the end of one year.[23]

Yet some observers are more cautious in their evaluation of the data. In the opinion of one expert, although “formidable success appears to have been attained with the adult-to-adult procedure thus far,” the world “still awaits center-specific and compiled data to determine whether the procedure truly reduces adult waiting list times for liver transplant recipients with minimal donor risk.”[24] The director of a live donor program in Massachusetts states frankly that “adult living liver donation is much riskier (than living kidney donation), and there is little published data on rates of complications and mortality among the donors.”[25] A recent study finds that while the mortality rate for live liver donations is low, the rate of complications (morbidity) is “significant”: 65 of the 449 donors surveyed (14.5%) experienced one or more complications of donation, including bile leak (in 27 donors), the need for blood transfusion, and the need for a subsequent operation.[26]

The evidence, therefore, presents a decidedly mixed picture. Live liver donation is “safe” in that many medical practitioners believe its risks to be manageable: the overwhelming majority of liver donors survive the operation and recover full function. Yet the procedure is definitely a serious one; liver donors do risk more significant medical complications than those posed by donors of other organs.

  1. Live Liver Transplantation: The Ethics. In addressing this question, our sho’elet refers to two separate and distinct ethical traditions: the philosophical discourse known as “secular medical ethics” and the tradition of Jewish thought and lore that we generally designate as halakhah. Concerning the former, she asks whether the procedure transgresses against the guiding medical-ethical principles of nonmalfeasance (“above all, do no harm”[27]) and of informed consent. The response in the first case depends, we think, upon one’s definition of “harm.” For example, some argue that organ donation is not “harmful” so long as “the benefits to both donor and recipient… outweigh the risks associated with the donation and transplantation of the living donor organ.”[28] This general standard may very well apply to live liver transplantation, which is a clear benefit to the recipient and which, it can be argued, may not pose an unacceptably high degree of risk to the donor. The second principle, on the other hand, presents a greater difficulty. “Informed consent” means, first, that a patient agrees to a suggested medical procedure only when he or she has been supplied with all material information that a reasonable medical layperson would consider significant with regard to that decision, and second, that the patient make his or her decision in an autonomous manner, free of coercion.[29] Yet, as our sho’elet notes, “autonomy” and “informed consent” may not apply in a situation such as ours, where the potential donor is likely to be a family member operating under powerful emotional pressures to agree to the surgery. This is a telling point. Research indicates that decisions concerning organ donation are often made quickly, as soon as the possibility is raised to the potential donor, and not on the basis of deliberation or informed consent.[30] Indeed, concludes one study, “informed consent in living donation is a myth,” because the context in which the donor must choose guarantees that the decision cannot be made in a coercion-free manner.[31]

The Jewish ethical tradition, as we have seen, would analyze our she’elah in accordance with the conflicting duties of rescue and of self-preservation: if the attempt to rescue would endanger the life of the would-be rescuer, then he or she is not required–indeed, is forbidden–to make the attempt. The logic of this prohibition is as stark as it is elegant: since each human being is created in God’s image, then each human life possesses the same intrinsic value. No life is more “worthy” of preservation than another; although my blood is no redder than yours, neither is your blood any redder than mine. One who risks mortal danger in order to rescue another is thereby making the ethically-unacceptable calculation that the value of the other’s life surpasses that of his or her own. In the event that we must choose between saving one life or another, the only sure course is to make no “choice” at all, to allow events to take their course, even if that means that the endangered person will die.[32]

Does this rule govern our case? Although the live liver donor does undertake a certain degree of risk, that risk is much less than the danger to the life of the patient who needs the transplant. To put this into traditional halakhic terminology, the donor enters a situation of safek sakanah (possible, but less-than-mortal danger), while the patient is in a situation of vadai sakanah (mortal danger). We would therefore ask: does vadai outweigh safek? Granted that one need not risk mortal danger to save the life of another, is one permitted–or even required–to accept a lesser degree of risk in order to fulfill the duty of rescue, the obligation imposed by Leviticus 19:16?

We begin our answer with what must be considered the predominant view in the halakhah. Most halakhic authorities who have considered this question rule there is no obligation to rescue when the attempt would involve even safek sakanah to the life of the rescuer.[33] Their analysis tends to being with the words of Maimonides, who codifies the rule of rescue as follows: “One who is able to rescue (kol hayakhol lehatzil) and does not do so violates the commandment ‘you shall not stand idly by the blood of your neighbor.’”[34] Some suggest that by these italicized words, which do not appear in the Talmudic source of the rule, Rambam seeks to place limits upon the requirement when the element of risk is present. R. Menachem Hame’iri, for example, writes that one is required to attempt the rescue “if one is able to do so (yakhol lehatzilo) in the absence of danger (belo sakanah).”[35] Hame’iri, of course, might be referring here to vadai sakanah, mortal danger. R. Yoel Sirkes, however, reads less-than-mortal risk into Maimonides’ words: “when Rambam writes ‘one who is able to rescue,’ he refers to a situation in which one is certain (be-de’ein safek) that he will be successful in the attempt. One is not, therefore, obligated to risk potential danger (safek sakanah) in order to rescue another.”[36] A leading commentator interprets the Shulchan Arukh to the same effect.[37] Many authorities go farther, ruling that one is forbidden to enter into a situation of potential danger to save a person whose life is in mortal danger.[38] They base this conclusion upon various passages of the Talmud[39] as well as a strictly literal (and eminently logical) reading of Leviticus 18:5: if one is commanded to live and not die by the mitzvot, then one is forbidden to place one’s life in any jeopardy whatsoever, to risk even the possibility of death (safek mitah) in order to perform any mitzvah, including the duty to rescue.[40] R. David ibn Zimra (Radbaz, 16th-17th cent. Egypt) offers a somewhat different line of reasoning in a famous responsum. Suppose, he was asked, that the sultan were to give a Jew the following choice: either let me cut off one of your limbs, or I will kill one of your fellow Jews. Is the first Jew obligated to undergo the “surgery,” inasmuch as he faces a lesser degree of danger than does the second Jew? Radbaz answers that such a demand would offend against reason and common sense (hasekhel vehasevara). Since the Torah’s ways “are ways of pleasantness,”[41] we cannot imagine that it would impose such a moral obligation upon us. Whoever enters a situation of safek sakanah in order to fulfill the mitzvah of Leviticus 19:16, concludes Radbaz, is a “pious fool” (chasid shoteh).[42]

With these considerations in mind, contemporary poskim arrive at their decisions concerning organ transplantation. R. Yitzchak Ya`akov Weiss, basing himself in large part upon the responsum of Radbaz, forbids live kidney donation on the grounds that the surgery and the possible subsequent complications place the donor in a state of safek sakanah.[43] While other authorities permit live kidney donation, they tend to do so because physicians report that the surgery has become routine to the point that it poses no risk, not even safek sakanah, to the donor.[44] If, on the other hand, kidney donation did pose such a risk, these authorities, too, would likely prohibit the surgery. Given that, according to the medical data we have surveyed, live liver donation surgery is regarded as significantly “riskier” than kidney donation, it surely constitutes safek sakanah. If so, then in light of the position we have just described, an individual is not obligated–and may well be forbidden–to donate part of his or her liver for transplantation.

The foregoing, however, is but one side of an old dispute in Jewish law. There is another side, a different voice that emerges from our source. It is a voice that declares, against the predominant view we have just described, that we are obliged to rescue our fellow human being even when the attempt would place us in potential danger (safek sakanah). This interpretation is supported by several arguments. First, none of the passages from the Babylonian Talmud that are usually cited on this question clearly state that one is forbidden to risk safek sakanah in order to save another. True, it is possible to derive that conclusion from those passages, but an interpreter need not do so.[45] In fact, one can just as easily arrive at the opposite decision on the basis of those very sources[46] and others.[47] Second, none of the major halakhic compendia, such as Maimonides’ Code, the Tur, or the Shulchan Arukh, rule that the obligation to rescue is annulled in the face of safek sakanah. Again, it is possible to read these works in such a way as to support that ruling, but one is not compelled to do so by the logic of the texts.[48] Finally, commentators have for centuries cited a passage from the Talmud Yerushalmi as evidence that one is indeed obliged to accept a lesser degree of danger in order to rescue a person whose life is in mortal danger.[49] Although that passage, like those in the Babylonian Talmud, is hardly free of difficulty,[50] some poskim do rely upon it for purposes of halakhic decision.[51]

The “other” view, a more stringent interpretation of the duty ro rescue, has never been completely vanquished by its opponents. It has, in fact, exerted a constant and considerable influence upon the pesikah (halakhic decision) of a number of authorities who hold to the predominant halakhic position. In his Arukh Hashulchan, R. Yechiel M. Epstein (19th-20th cent. Lithuania) writes:[52]

The poskim cite the Talmud Yerushalmi to the effect that a person is obligated to risk safek sakanah in order to rescue his fellow. This passage has been omitted from the earlier codes, since our [i.e., the Babylonian] Talmud takes the opposite position. Each instance, however, must be judged on its own merits. One should weigh one’s decision carefully and not protect himself more than is necessary (yoter midai)… for when a person saves one Jewish life, it is as though he has saved an entire world.[53]

A commentator to the Shulchan Arukh states the point as follows:

One should in any event weigh the situation carefully, to determine whether it is in fact a case of safek sakanah, and not to be overly strict (shelo ledakdek beyoter) in the matter. As we have learned elsewhere, one who is overly strict in insisting upon his own rights will one day lose that which he seeks to protect.[54]

These remarks express a tension between what the authors perceive as the letter of the law and what we might call the law’s higher aspirations. The authors are aware that a too-literal application of the halakhah’s minimum standard, the mitzvah of self-preservation, will allow the individual to exempt him- or herself in virtually all cases from the mitzvah of rescue. Yet such an outcome sharply conflicts with the Torah’s vision of the just and compassionate society. Nowhere is this tension more evident than in the words of Rabbi Isser Yehudah Unterman:[55]

Since the leading codes do not rule explicitly (that one is obligated to assume potential danger in order to rescue), the uncertainty in the law requires that we apply the rule “your own life takes precedence.” Yet we must define what we mean by safek sakanah. Not every fear or concern on the part of the would-be rescuer deserves to be called “danger.” For example, if a person is drowning in a river, and a man is present who knows how to swim, but this man worries lest he catch cold on account of the chilly water–can this really be called safek sakanah? Suppose that a person hears his neighbor cry for help against men who are attacking him. Is this person exempt in any such case from offering assistance, simply because he fears that the attackers may harm him?

We agree: a literal application of the predominant halakhic viewpoint–if, indeed, that viewpoint is the “correct “ understanding of the Jewish law of rescue–can lead to absurd and intolerable consequences. A community whose citizens press the mitzvah of self-preservation to its legal and logical extreme is a community defined by selfishness, where none will reach out to aid their endangered brothers and sisters.[56] It is a community where the qualities of personal courage, nobility, and selflessness do not exist. It is the sort of community in which none of us would wish to live. Our understanding of Torah, of Jewish tradition, and of our ethical responsibilities to our fellow human beings demands that we balance the predominant viewpoint, which grants us the necessary right to safeguard our own lives from danger, with the minority viewpoint, which reaches beyond this bare minimum standard of conduct toward a higher aspiration for our lives. What this means in practice is that those who teach and interpret Jewish tradition must find a way to say “yes” to the decision to become a live organ donor, even when that decision involves a degree of risk to the one who makes it.

Various poskim do just that. In addressing the question of live kidney donation, Rabbi Moshe Feinstein notes that the commandment to preserve one’s own life supersedes virtually all other obligations; under its terms, we are even forbidden to place ourselves in a situation of possible danger. Still, he rules that the duty to rescue may be an exception to this rule. Since the purpose of rescue is to save a human life that is equal in God’s eyes to our own, then although one cannot be required to endanger himself to rescue, “it is obviously permissible to risk potential danger (safek) to save a person who faces mortal danger (vadai).”[57] In dealing with the same question, Rabbi Ovadyah Yosef writes that “it is a permissible act and a mitzvah (mutar vegam mitzvah) for a person to donate one of his kidneys to his fellow.”[58] By mitzvah, Rabbi Yosef clearly means that the donation of a kidney is a meritorious and praiseworthy act though not an obligatory one, for which he would have used the word chovah.[59] A mitzvah, in this sense, is an act that is encouraged if not necessarily required of us, an act that, if performed, is worthy of our commendation and respect, an act that reaches the higher aspirations that Torah would have us set for our lives. Both these rabbis, in other words, uphold the predominant interpretation of the halakhah, but they refuse to let it confine them like a straitjacket. They want the religious Jew to consider a choice that advances beyond that which the law absolutely requires. Aware that today’s surgeons are not to be compared to the sultan’s executioner, they know that the act of organ donation, in a procedure that is carefully supervised by medical professionals, is hardly the behavior of a”pious fool.” To put this another way, they read the halakhah not only according to its predominant interpretation but also according to the minority viewpoint that calls upon us to realize a more demanding standard of moral conduct.

It is the way that we, too, read our Torah and apply it to the she’elah before us. The question we consider here–the assumption of personal risk in order to save the life of another–is a difficult one that admits of two plausible answers. Accordingly, our tradition would have us address it in a way that does justice to both sides. On the one hand, the majority interpretation of Jewish tradition reminds us that undertaking a risk to one’s life, even when that risk is safek or potential, is a fateful decision that should not be forced upon a person. This is all the more true in the case of live liver donation, a procedure that poses a greater degree of risk than do other kinds of safek sakanah. Yet the minority position, the “other voice” that emerges from our sources, teaches us that a person’s free and reasonable decision to become a live liver donor and thereby save the life of a fellow human being is by no means a violation of Jewish law and ethics. On the contrary: it is a choice that reflects Judaism’s highest legal and ethical standards.

 

Conclusion. All of the above leads us to the following points.

  1. Jewish tradition sees the preservation of human life as a mitzvah of the highest order. By its terms, we are required to protect ourselves from danger and to rescue, if we can, the lives of those in harm’s way.
  2. In the event of an unavoidable clash between these two requirements, if the attempt to rescue another person would pose a mortal danger (vadai sakanah) to our own lives, we are forbidden to attempt the rescue. In such a case, we learn that “your own life takes precedence” (chayekha kodmin; BT Bava Metzi`a 62a).
  3. The tradition gives us no unambiguous guidance should the attempt to rescue another pose a less-than-mortal danger (safek sakanah) to our lives. Most halakhic authorities rule that one is not obligated, and is perhaps even forbidden, to risk safek sakanah in order to save another. At the same time, the opposing viewpoint, which permits or even requires us to take on safek sakanah in such an instance, is at least as well supported by our sources. That more stringent minority viewpoint reflects a higher standard for our duty to our fellow human beings, a higher aspiration for our moral conduct.
  4. Since live liver donation involves a measure of risk to donor, an individual cannot be required to undergo that procedure in order to save the life of another. Indeed, that very refusal to serve as a donor can be seen as fulfilling the mitzvah of Leviticus 18:5, the duty to preserve one’s life. That decision is a valid Jewish choice, and we must not criticize a person for making it.
  5. The procedure’s risks, though not insignificant, are manageable, so that the donor is far more likely to recover full physical function than to suffer permanent medical complications. One is therefore permitted to serve as a live liver donor, thereby fulfilling the mitzvah of Leviticus 19:16, the duty to rescue. That person sets an example of nobility and courage worthy of our admiration and even our emulation.
  6. We recognize that the value of “informed consent” is exceedingly difficult to realize in situations such as this. Potential liver donors are often family members of the patient, subject to the sorts of emotional pressure that negate the likelihood of an autonomous, non-coerced decision. Yet this does not mean that an ethical decision for live liver donation is impossible to obtain. First, we must remember that ethical decisions are made in the real world, a world in which every one of us lives within a tight web of social connection and in which none of us is immune to the “pressures” of social and family life. The demand for total autonomy, therefore, is unrealistic. Second, while “pressures” cannot be entirely avoided, physicians, other medical personnel, and, indeed, the family’s rabbi can make sure to that precautions are taken to protect the would-be donor against excessive pressure.[60] They can also remind him or her that one is not obligated to say “yes,” that “no” is also a legitimate decision.

NOTES

  1. For sources and discussion, see our responsum no. 5761.7, “Human Stem Cell Research,” section 3, at notes 5ff.
  2. The data, covering the period from January 1, 1988 – March 31, 2003, are collected by The Organ Procurement and Transplantation Network, the unified transplant network established by the United States Congress under the National Organ Transplant Act (NOTA) of 1984. (These figures deal with the following organs: kidney, liver, pancreas, heart, lung, and intestine. Other donations (for example, corneal tissue) are not included.
  3. As of this writing, more than 82,000 persons are currently on waiting lists for organ transplantation in the United States, while 6,279 transplantation were performed in the United States during the first three months of 2003. See the data collected by UNOS ( ), the non-profit, scientific, and educational organization that administers the Organ Procurement and Transplantation Network.
  4. Resources and information may be found at the website , sponsored by the United States Department of Health and Human Services. Among the many organizations that actively promote organ donation are the American Medical Association ( ) and the Coalition on Donation, an alliance of for-profit and not-for-profit organizations ( ).
  5. Yechiel M. Tucazinsky (20th cent. Eretz Yisrael) entitles the fifth chapter of his Gesher Hachayim, a treatise on the Jewish law of mourning and burial, “kevod hamet.” The chapter begins with a one-sentence paragraph: “whosoever takes part in the preparation and burial of a human corpse must bear in mind that he is dealing with a holy thing.”
  6. Yitzchak Ya`akov Weiss (20th-cent. England and Israel), Resp. Minchat Yitzchak 5:8.
  7. See R. A. S. Avraham, Nishmat Avraham (Jerusalem, 1982), Yore De`ah 349:3, pp. 261-264. On all the following, we are indebted to our colleague, Rabbi Moshe Zemer, for his article “Terumat eivarim vehahalakhah,” in R. Cohen-Almagor, ed., Dilemot be-etikah refu’it (Jerusalem: Van Leer Institute/Hakibbutz Hameuchad, 2002), 265-282.
  8. BT Sanhedrin 47b; Yad, Avel 14:21; Shulchan Arukh Yore De`ah 349:1.
  9. The phrase nivul hamet is not found in the classical rabbinic sources. Indeed, the word nivul as “disgraceful treatment” is applied twice by R. Yehudah b. Ilai to activities with respect to living persons: a form of cosmetics ( Mo`ed Katan 1:7) and a form of execution (M. Sanhedrin 7:3).On the other hand, the concept of nivul is used with respect to the dead in various places, including BT Arakhin 7a, Mo`ed Katan 27b-28a, and Bava Batra 154a.
  10. The mitzvah to bury the dead in the ground is derived from Deuteronomy 21:23; see BT Sanhedrin The prohibition against unnecessary delay in burial is found in M. Sanhedrin 6:5, Yad, Avel 4:8, and Shulchan Arukh Yore De`ah 357:1.
  11. Rabbi I. Y. Unterman, Shevet Mi’hudah (Jerusalem: Mosad Harav Kook, 1955), 54-55. Rabbi Unterman, who admits that his chidush (novel legal argument) is at first glance somewhat “strange” (muzar), compares organ transplantation to famous instances of resurrection (techiyat hametim) in the Bible (g., Ezekiel 37; II Kings 4): just as there is never a question of forbidden hana’ah in those Biblical cases, so there should be no similar issue with respect to transplantation. Like many chidushim, Unterman’s is forced and, we think, ultimately unpersuasive. Kidneys, corneal tissue and other organs retrieved from corpses are in fact “dead,” not “living,” at the time of the transplantation. Techiyat hametim, moreover, pertains not to the realm of human science but to the miracles traditionally associated with the end of days. The argument that pikuach nefesh takes precedence over the prohibition against deriving benefit from the dead is more than sufficient to permit this medical procedure. Still, Rabbi Unterman’s suggestion is an important example of the power of creative thinking in halakhah–a trait not restricted to liberal rabbis–and of the readiness of a leading posek to find a way to transcend the existing conceptual structure of Jewish law in a situation where it is vital to forge an affirmative response.
  12. Ovadyah Yosef (20th-21st cent. Israel), Resp. Yabi`a Omer 3, Yore De`ah, no. 23. The classic precedent is provided by R. Yechezkel Landau (18th cent. Bohemia), Resp. Noda Bi’hudah 2, Yore De`ah 210, who permits autopsies when the procedure is needed to uncover information to save the lives of persons “in our presence,” despite the fact that autopsy was generally regarded as an instance of nivul hamet. See as well R. Shaul Natanson (19th cent. Galicia), Resp. Sho’el Umeshiv I, 1:231, who permitted the exhumation and examination of a corpse in order to determine its identity and to permit the deceased’s wife to remarry; nivul hamet applies only when the “desecration” is committed for no valid purpose, and sparing a woman from the fate of the agunah is indeed a valid purpose.
  13. Yabi`a Omer 3, Yore De`ah, no. 22. R. Yosef cites the opinion of Rabbi Unterman (see at note 11) in this context.
  14. For example, the “Matan Chaim” program of the Union of American Hebrew Congregations ( ) actively encourages organ donation.
  15. BT Avodah Zarah 25a; Yad, Yesodey Hatorah 5:6; Shulchan Arukh Yore De`ah 155:2.
  16. BT Sanhedrin The passage goes on to ask why the verse from Leviticus is necessary, seeing that the duty to rescue one’s fellow is also derived from Deuteronomy 22:2. It answers that the Leviticus verse adds an obligation to hire others to perform the rescue when one cannot personally perform that action.
  17. BT Yoma
  18. For details, see Shulchan Arukh Orach Chayim 328 and 618.
  19. See below at note 44.
  20. The Responsa Committee expresses its deep gratitude to the Committee on Bioethics of the Union of American Hebrew Congregations, chaired by Harvey S. Gordon. M.D., for its invaluable assistance in the collection and analysis of the relevant scientific data.
  21. T. Fan et al., “Safety of donors in live donor liver transplantation using right lobe grafts,” Archives of Surgery 135:3 (March, 2000), 336-340.
  22. Fujita et al., “Hepatic grafts from live donors: donor morbidity for 470 cases of live donation,” Transplantation International 13:5 (2000), 333-339.
  23. F. Renz and J. P. Roberts, “Long-term complications of living donor transplantation,” Liver Transplantation 6 (6 Suppl 2), S73-76.
  24. S. Seaman, “Adult living donor liver transplantation: current status,” Journal of Clinical Gastroenterology 33:2 (August, 2001) 97-106.
  25. “Panacea or peril? Do new treatments save lives or do they endanger them?” Medical Ethics Advisor, August 2001, citing Elizabeth Pomfret, M.D., director of live donor program at Lahey Clinic in Burlington, MA.
  26. Robert S. Brown, Jr., in New England Journal of Medicine 348 (February, 2003), 818-825.
  27. This maxim, most familiar in its Latin formulation primum non nocere, is often attributed to Hippocrates and/or Galen. Although both those authorities do make statements to this effect, the source of the precise wording remains unclear. See Albert R. Jonsen, “Do No Harm: Axiom of Medical Ethics,” in S. F. Spicker and H. Tristam Engelhardt, Jr., eds., Philosophical Medical Ethics: Its Nature and Significance (Boston: Reidel, 1977), 27-41.
  28. Abecassis et al., “Consensus statement of the live donor organ,” Journal of the American Medical Association 284:22 (2000), 2919-2926.
  29. This definition reflects the formulation of American law, represented especially by the leading case Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). One of the major building blocks of the doctrine of informed consent was the decision of Judge Benjamin N. Cardozo in Schloendorff v. Society of N.Y. Hospital, 105 N.E. 92 (N.Y. 1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” See, in general, Ruth R. Faden, Tom L. Beauchamp, in collaboration with Nancy M.P. King, A History and Theory of Informed Consent (New York : Oxford University Press, 1986).
  30. “Empirical studies show that most kidney donors make their decision to donate immediately after the subject of transplant is first mentioned to them, and no additional information has any effect on their decision”; J. D. Lantos and M. Siegler ,“Re-evaluating donor criteria: Live donors,” The Surgeon General’s Workshop on Increasing Organ Donation: Background Papers (July 8-10, 1991), (Washington, D.C.: U.S. Department of Health and Human Services, 1992), 271-290.
  31. See Austern Garwood-Gowers, Living Donor Organ Transplantation: Key Legal and Ethical Issues (Brookfield, VT: Ashgate/Dartmouth, 1999), 67.
  32. The foregoing rests upon the following sources: BT Sanhedrin 74a (“how do you know that your blood is redder than that of another?”); Rashi ad loc., v. mai chazit (the requirement to do nothing when faced with a choice between two lives); BT Bava Metzi`a 62a (in accordance with the view of Rabbi Akiva: when two men are lost in the desert, the one who holds the container of water may drink it all in order to survive–i.e., he allows the status quo to remain in effect–rather than share the water with his fellow or give it all to him).
  33. See R. Ovadyah Yosef, who surveys the literature in his usual comprehensive manner and finds that “most of the later authorities” (rov ha’acharonim) hold this position; Yechaveh Da`at 3:84.
  34. Yad, Rotzeach 1:14.
  35. Me’iri, Beit Habechirah, Sanhedrin 73a (ed. A. Sofer, Frankfurt, 1930, pp.272-273).
  36. Bayit Chadash to Tur, Choshen Mishpat
  37. Sefer Me’irat Einayim, Choshen Mishpat 426, no. 1.
  38. Among these are: R. Yonah Ashkenaazi (15th Germany), Sefer Isur Veheter, kelal 59, no. 38; R. Shneur Zalman of Liady (18th cent.), Shulchan Arukh Harav, Orach Chayim 329:8; R. Naftali Tzvi Yehudah Berlin (19th cent. Volozhyn), Ha`amek Hashe’elah, she’lta 147, end; R. Yosef Babad (19th cent. Poland), Minchat Chinukh, mitzvah 237, no. 2; R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 9:45, ch. 7; R. Yechiel Ya`akov Weinberg (20th cent. Germany-Switzerland), Resp. Seridei Eish 2:78; R. Ya`akov Breisch (20th cent. Germany-Switzerland), Resp. Chelkah Ya`akov, Choshen Mishpat, no. 33; R. Moshe Feinstein (20th cent. USA), Resp. Igerot Moshe, Yoreh De`ah 2:174.
  39. One of these passages is the dilemma of the “two men lost in the desert” (BT Bava Metzi`a 62a). There, Ben Petura requires the one who holds the water to share it with his fellow, even if both of them will thereby die of thirst, while R. Akiva rules that the one who holds the water should keep in for himself, insuring his survival. R. Berlin (see the preceding note) understands Ben Petura’s position as a hopeful stopgap: if the two men share the water, perhaps they can survive a day or two and someone will come along to rescue them. Thus, sharing the water does not place its owner in a situation of mortal danger but of possible danger; after all, he will not necessarily die if he shares it. Thus, by ruling that the man need not share the water, R. Akiva declares that he must not risk even safek sakanah in order to save his fellow.
  40. See Rashi, BT Yoma 85b, v. deshmuel leit leih pirka.
  41. After Proverbs 3:17.
  42. Radbaz 3:627. Radbaz does conclude that if the first Jew is certain that he will not die if the oppressors sever, say, his hand or foot, he is permitted to submit to this demand as an act of piety (midat chasidut). He warns, however, that if there is any danger that the severing of the organ will lead to the “donor’s” death, he is forbidden even on grounds of piety from assenting to this demand.
  43. Minchat Yitzchak 6:103.
  44. Yosef, note 33; R. Waldenberg, Resp. Tzitz Eliezer 10:25, ch. 7; R. Yisrael Meir Lau (20th-21st cent. Israel), Resp. Yichal Yisrael, no. 73.
  45. See R. Unterman (note 11), 17-21. One example: the case of the two men lost in the desert (BT Bava Metzi`a 62a). As we have seen (at note 39), R. Naftali Tzvi Yehudah Berlin interprets the act of sharing the water as placing one’s life in a state of safek sakanah. Hence, because we follow Rabbi Akiva, who rules that one is forbidden to share his water, we learn that one is forbidden to risk safek sakanah in order to save the life of another. Yet this reading of the case is surely forced. The Talmud never hints that the men may be rescued in a day or two. On the contrary: “if they both drink the water, they will both die (Rashi: because there is not enough water to allow them to reach the next settlement).” There is no ambiguity here: by sharing his water, the man holding the container risks mortal danger (vadai sakanah). The story teaches us nothing about his obligation should he run the risk of less-than-mortal danger (safek sakanah).
  46. See, for example, R. Yair Bachrach (17th Germany), Resp. Chavat Yair, no. 146, on BT Bava Metzi`a 62a: R. Akiva forbids the holder of the container to share his water only because if he does so he will certainly die (i.e., a case of vadai sakanah). But if by sharing the water he were to face a lesser degree of danger (safek sakanah), R. Akiva would rule that he must do so in order to rescue his fellow from mortal danger.
  47. Barukh Halevy Epstein (20th cent. Lithuania), Torah Temimah to Lev. 19:16, no. 110, learns from the stories surrounding R. Chaninah ben Dosa that one is required to risk potential danger in order to rescue.
  48. On Maimonides, see above at note 34. On the Shulchan Arukh, see above at note 37. In the latter case, although there is no mention of the element of danger, either safek or vadai–indeed, the author, R. Yosef Karo, merely repeats Rambam’s formulation–the commentary Sefer Me’irat Einayim notes that Karo omits mention of the opposing view, namely that one is obliged to risk safek sakanah in order to rescue. Given that Karo does mention that opposing view in his Kesef Mishneh to Yad, Rotzeach 1:14 and Beit Yosef to Tur Choshen Mishpat 426, its omission in the Shulchan Arukh is taken to imply his agreement that one must not risk safek sakanah. This is an argument from silence, which however persuasive it may be to some is hardly conclusive.
  49. The passage apparently is PT Terumot 8:4 (46b), the story of R. Shimeon ben Lakish’s rescue of a kidnaped colleague. R. Yosef Karo, in his Kesef Mishneh (Yad, Rotzeach 1:14) and Beit Yosef (Choshen Mishpat 426), claims that this passage was cited as halakhicly authoritative by the 13th- Hagahot Maimoniot, although the citation does not appear in our printed versions of that work.
  50. See R. Waldenberg (note 38), who suggests that it is not clear from the Yerushalmi text that the halakhah in fact follows R. Shimeon b. Lakish.
  51. See R. Bachrach, note 46, and R. Shmuel di Medinah [16th Italy], Resp. Maharashdam, Yoreh De`ah 204.
  52. Arukh Hashulchan, Choshen Mishpat 426, par. 4.
  53. This is a quotation from Sanhedrin 4:5. A number of manuscript variants omit the word “Jewish” from the text; see Dikdkey Soferim to Sanhedrin 37a and Chanokh Albeck’s hashlamot to M. Sanhedrin 4:5 in his edition of the Mishnah. We would agree that the word “Jewish” is out of place in this text: first, because the context clearly refers to a general human situation and not a specifically Jewish one; and second, because as Reform Jews we adhere to a tradition of moral thought that makes no distinction between Jews and Gentiles in matters that have nothing to do with ritual law.
  54. Pitchey Teshuvah to Choshen Mishpat 426, no. 2. “As we have learned elsewhere,” etc. refers to BT Bava Metzi`a 33a and Shulchan Arukh Choshen Mishpat 264:1, on the laws of returning a lost object.
  55. Shevet Mi’hudah (note 11), 21.
  56. See Avot 5:10: “One who says ‘what is mine is mine and what is yours is yours’ is of an average level of morality. But some say that this is the characteristic of Sodom.”
  57. See note 38.
  58. See note 33. R. Yosef, to be sure, declares that one is not permitted to risk safek sakanah in order to save another person, but he insists that the term “potential risk” be reserved for substantive dangers (safek shakul, a “weighty” potential risk) rather than for more tenuous, far-fetched possibilities of danger (ketzat safek sakanah). In this point, his reasoning closely follows that of Rabbi Unterman (note 55).
  59. On the categories reshut (a permitted act), mitzvah (a praiseworthy act, one that fulfills the Torah’s higher aspirations but is not absolutely required), and chovah (a required, obligatory act), see our responsum no. 5758.3, “In Vitro Fertilization and the Mitzvah of Childbearing,” ( ), at notes 47-48.
  60. For example, when a relative does not wish to donate an organ, the physicians can explain to the family that “medical complications” rule out that relative as a donor. Though this is an untruth, our tradition does permit us to tell such “little white lies” in order to preserve family peace (shalom bayit). See tractate Derekh Eretz Zuta, chapter “Hashalom,” and Rashi to Genesis 18:13.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5766.1

CCAR RESPONSA

5766.1

When A Parent Instructs A Child Not To Say Kaddish

She’elah
A convert is anticipating the way in which she will mourn for her elderly and ailing father. He has never been entirely reconciled to her conversion to Judaism, and his own parents, she says, were out-and-out anti-Semites. The father plans to be buried in the family plot near his own father. He has asked his daughter not to recite Kaddish over his grave, citing his own parents. negative feelings toward Judaism. The daughter now faces a conflict between the obligation to honor her father’s wishes (kibud av) and her own Jewish mourning practices. When the time comes, should she ignore her father’s wishes and recite Kaddish at his grave? (Rabbi David Ostrich, State College, PA)

Teshuvah

A person’s choice to become a Jew should be an occasion for happiness in our community. Unfortunately, as in this case, that decision can be accompanied by family tension and lingering bitterness. Our Committee cannot directly speak to this woman’s difficult family situation; that is a personal issue that must be addressed in her conversations with her rabbi. Our task is to consider the more formal question she poses: what is the Jewish religious duty of the Jew-by-choice in such a case? We do hope, though, that our words will offer some emotional support to her and to others who face a similar dilemma.

1. The Ger’s Obligation To Mourn Non-Jewish Relatives. We begin with our tradition’s discussion of the relationship between the ger, the Jew-by-choice, and his/her blood relatives. The Talmud declares that “the one who converts to Judaism is like a newborn child,”[1] expressing the conviction that the proselyte begins a brand new life upon joining the Jewish people. In a legal sense, this means that all blood ties between the ger and his or her non-Jewish relatives are rendered null and void.[2] However, the halakhah does not develop this principle to its logical extreme. For example, a Jew-by-choice is not permitted to marry any blood relative that would be forbidden to a born Jew, even though according to the halakhah they are not his “relatives.” Similarly, the ger is required to honor her Gentile parents, even though she is a “newborn child” and they, technically, are no longer her mother and father. The law makes these exceptions to the rule of the convert’s “newborn” status because “let it not be said that a proselyte has descended in holiness.”[3] That is, conversion to Judaism should not serve as a justification for behavior considered shameful by all people, Jews and non-Jews alike. Our Reform tradition applies this reasoning to the case of the mourner as well. Thus, the Jew-by-choice observes the rites of mourning for his or her non-Jewish relatives in the same way that a born Jew would mourn his or her loved ones. This includes the obligation to recite Kaddish for them.[4]

2. May A Parent Exempt A Child From The Duty To Say Kaddish? The ger owes the same moral obligation to his or her parents as does the Jew by birth. We must now consider the following question: what is the duty of any Jew whose parent requests that he or she not recite Kaddish when the parent dies? On the one hand, as our she’elah indicates, it is a mitzvah to honor and to revere our parents,[5] which implies that we should endeavor to fulfill their wishes, especially those they communicate to us toward the end of their life.[6] On the other hand, our parents are not entitled to demand that we violate other mitzvot,[7] and perhaps this means that they may not require that we forego the traditional practices of mourning (avelut).

The view among traditional authorities is mixed. The 19th-century Galician posek R. Shaul Nathanson[8] rules that a child should honor a parent’s instruction not to say Kaddish for him or her. His reason is that the recitation of the mourner’s Kaddish (kadish yatom) is for the benefit of the dead. Traditionally, it is considered a tikun lenefesh hamet, an act of expiation by the son that speeds his parent’s entry into Paradise or the World to Come.[9] Since a person is entitled to reject a benefit that another wishes to confer upon him, the child is not obligated to recite Kaddish against the parent’s wishes. R. Ovadyah Yosef, the contemporary Israeli scholar, takes the opposing view: the child should not honor this request, for had the parent truly considered how important it was that his soul be lifted toward Paradise, he never would have instructed the child not to recite Kaddish.[10] This dispute evokes the Talmudic discussion over the eulogy (hesped):[11] do we honor the deceased’s request that he not be eulogized at his funeral? Is the eulogy “an honor for the dead,” in which case the deceased is entitled to forego the honor, or “an honor for the living,” in which case we would say that the deceased cannot deny his mourners an honor to which they are entitled? The later authorities determine that the eulogy is “for the honor of the dead”; hence, they rule that we obey the deceased’s request that no eulogy be recited.[12] Both Nathanson and Yosef regard the Kaddish as “an honor for the dead” that the deceased may refuse, though Yosef holds that such a refusal cannot be understood as an “informed decision.”

We Reform Jews take a different approach to the theology of Kaddish. We do not believe that we elevate the souls of our dead to Paradise by reciting Kaddish for them. Rather, we recite Kaddish because it is the primary liturgical expression of traditional Jewish mourning. For us, it evokes the unbroken link of memory that binds every Jewish generation to its past. Its recitation is the way we declare our faith, even at the darkest moments of loss, in the eternity of Israel’s covenant with God, in the triumph of hope and “in the coming of the Divine kingdom.”[13] We no longer hold, therefore, that the recitation of Kaddish is “for the honor of the dead”; it is, however, vitally important for us that we say it. As such, this ritual indisputably serves “the honor of the living,” and the dead, according to the Talmudic principle, are not entitled to deny us the “honor” – we would prefer to say “responsibility” – of mourning as Jews. Thus, we recite Kaddish whether or not our loved ones request us to do so, or even if they forbid us from doing so after they are gone.

3. To Honor One’s (Non-Jewish) Parent. A Jew is therefore obligated to say Kaddish and to mourn a parent even though the parent has instructed the child to the contrary.[14] Our duty to honor our parents does not empower them to demand that we cease to act as Jews. This parent, however, is a non-Jew who for his own very heartfelt reasons does not want his daughter to recite Kaddish over his grave. She might argue that her practice of mourning is her own business, one that flows from her sense of Jewish religious duty, and that this duty overrides any obligation to honor his wishes. Yet this non-Jewish father has every right to believe that the commandment “honor your father and your mother” prohibits his daughter from drawing him against his will into a world of religious duty and observance that is not his own. We are speaking, after all, of his funeral, his burial place in a non-Jewish cemetery. Seen from this perspective, the daughter who stands at that place and recites Kaddish is no longer simply “minding her own business” or “mourning in her own way”; she has invaded her father’s “space” with Jewish ritual in direct contradiction to his wishes.

We think that the daughter should honor her father’s request and not say Kaddish at his grave. We base our conclusion primarily upon two reasons.

First, to say Kaddish over the father’s grave in violation of his explicit instruction would smack of religious coercion. As we have noted in another context, our experience as Jews in a free society has made us quite sensitive to actions that, however unobjectionable they appear to some, strike others as an unwanted intrusion of religion into their lives. We reject those actions when others perform them; we should avoid them as well.[15]

Second, since the funeral service will be a non-Jewish one, taking place in a non-Jewish cemetery, it is arguably inappropriate to introduce Jewish ritual into that setting. Such, after all, is our own policy: although we in the Reform movement permit the burial of non-Jews in our cemeteries, we insist that the burial service be a liturgy of our own devising, that no non-Jewish liturgy be used, and that no non-Jewish religious symbolism be displayed during the service or on the tombstone.[16] We believe that this is a reasonable standard, and we also believe it to be reasonable when non-Jews apply it to their services. It is only right to accord to this father the same understanding that, were the situation reversed, we would ask of him.

Note that we are speaking of the non-Jewish funeral and the father’s grave. It is there that the daughter should honor her father’s wishes. Elsewhere, however, her decisions as to how she shall mourn are very much her own. If, for example, her father had requested that she never say Kaddish for him, even while observing shiv`ah or at a synagogue service, she would be under no obligation to honor that request. In those Jewish settings, her wishes and her sense of religious duty would prevail over his. Fortunately, the father’s request does not seem to extend beyond the boundaries of the cemetery in which he is to be buried.

Conclusion. We have argued the following points.

  • The Jew-by-choice owes the same duty of honor to his or her parents as does the born Jew. This includes the obligation to mourn them when they die.
  • A Jewish parent is not entitled to instruct his or her child not observe the rites of mourning or recite Kaddish. The child, though obliged to “honor” the parent, has no duty to fulfill such an instruction.
  • The Jew-by-choice should honor his or her non-Jewish parent’s request that Kaddish not be recited and other Jewish rites not be performed at the parent’s grave in the non-Jewish cemetery. At his or her home or in any other Jewish setting, however, the ger should recite Kaddish and mourn as a Jew, even if the parent had requested otherwise.Our teshuvah attempts to chart a compromise between two sets of duties: the duty of every Jew to mourn our loved ones in a Jewish manner and our duty to honor our parents. These duties usually do not conflict, since our parents are not entitled to demand that we abandon our Jewish practices in order to please them. In this case, the dying father does not ask that his daughter abandon her Judaism. He has asked her, however, not to recite Kaddish at his grave, because he is struggling with his own issues of filial responsibility and because he perceives the introduction of Jewish ritual into that non-Jewish setting as an encroachment upon his own religious integrity. Although his daughter does not share that perception, we think it is a reasonable one and that he is entitled to make that request.

    It is indeed unfortunate, from our standpoint, that the father has never become “entirely reconciled” to his daughter’s conversion. We hope that, as his death approaches, a way can be found to resolve, at least in part, the issues that have divided them. And we believe that, by honoring her father in acceding to this request, the daughter would take a significant step toward that end.

    NOTES

    1.         B. Yevamot 22a and parallels.

    2.         For example, a ger may testify in court concerning his brother; Yad, Edut 13:3 and Shulchan Arukh Choshen Mishpat 33:11.

    3.         B. Yevamot 22a. On marriage, see Yad, Isurey Bi’ah 14:12 and Shulchan Arukh Yoreh De`ah 269:1. On honoring one’s Gentile parent, see Yad, Mamrim 5:11 and Kesef Mishneh ad loc.

    4.         Contemporary American Reform Responsa, no. 121 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=121&year=carr). At least one Orthodox posek rules likewise; see R. Aharon Walkin, Resp. Zekan Aharon 2:87. The codes, it should be noted, exempt the ger from the obligation to mourn for a blood relative, including a parent (Yad, Avel 2:3 and Shulchan Arukh Yoreh De`ah 374:5). This stance is justified on the basis of the dictum, cited above, that “the one who converts to Judaism is like a newborn child” (Kesef Mishneh to Avel 2:3). For our part, we would argue that this ruling conflicts with the halakhah’s explicitly stated desire that the ger live according to the same standard of holiness as the born Jew; see the sources in the preceding note. It therefore makes no religious sense to us to require the Jew-by-choice to honor his parents when they are alive but to exempt her from the requirement to mourn them when they are dead. Rather, we encourage this Jewish person to express his or her feelings at such a moment in the way that all Jews express them. We think this position is preferable to forced efforts to reconcile the halakhah, as traditionally interpreted, with modern sensibilities; see, for example, Maurice Lamm, The Jewish Way in Death and Mourning (New York: Jonathan David, 1969), 82-83.

    5.         Exodus 20:12 and Deuteronomy 5:16; Leviticus 19:3.

    6.         “It is a mitzvah to fulfill a dying person’s instructions”; B. Gitin 14b and parallels; Yad, Zekhiah 4:4-5; Shulchan Arukh Choshen Mishpat 125:8.

    7.         B. Yevamot 5b; Yad, Mamrim 6:12; Shulchan Arukh Yoreh De`ah 240:15.

    8.         Resp. Sho’el Uumeshiv v. 3, 1:259.

    9.         On the history of the Kaddish, with a discussion of the origins of the mourner’s Kaddish, see Ismar Elbogen, Jewish Liturgy (Philadelphia: Jewish Publication Society, 1993), 80-84.

    10.       Resp. Yabi`a Omer 6, Yoreh De`ah 31, par. 4.

    11.       B. Sanhedrin 46b.

    12.       Yad, Avel 12:1; Shulchan Arukh Yoreh De`ah 344:10. Whether we would rule that way is another question, but one that we need not address here.

    13.       See Gates of Prayer, 628.

    14.       See Shulchan Arukh Yoreh De`ah 344:10 and commentaries. Some authorities take the view that all the rituals of avelut, including shiv`ah, sheloshim, etc., are “for the honor of the dead” and that the dead may exempt the mourners from the obligation to observe these practices. Others disagree (see Kol Bo `al Avelut, 301, par. 7), and we side with them. We see the practices of mourning as important religious expressions for the mourners, quite apart from what the deceased would have wished.

    15.       See Questions and Reform Jewish Answers, no. 93, “A Circumcision without Parental Consent” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=93&year=narr). The case there involved a mohel’s surreptitious recitation of the berakhot of milah at a medical circumcision of a Jewish boy whose parents had explicitly requested that no religious ritual take place.

    16.       Rabbi’s Manual (New York, CCAR, 1987), 250-251; Simeon Maslin, ed., Gates of Mitzvah (New York: CCAR, 1979), 57; American Reform Responsa, no. 99 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=99&year=arr).

    If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5763.3

CCAR RESPONSA

5763.3

Hastening the Death of a Potential Organ Donor

She’elah

I serve on the board of the Mid-America Transplant Association. One of our committees is struggling with the issue of non-beating organ retrieval. This concerns someone who may not be technically brain dead but cannot live without life support. All concerned recognize that the person will most likely die and the family has given consent for organ donation. The issue concerns the massive amount of anti-coagulant that must be given to keep the organ viable for donation. Technically, the administration of this medicine (usually heparin) “kills” the person because it causes internal bleeding. I know that we are supposed to do nothing to hasten death. I also know that there is nothing holier than saving a life by donating an organ. (Rabbi Susan Talve, St. Louis, MO)

Teshuvah

This question, as our sho’elet correctly notes, arises out of our commitment to two fundamentalBand, in this case, perhaps conflicting Jewish ethical principles. The first principle is what we might call the sanctity or the inviolability of human life.[1] We are forbidden to take any action that shortens human life or hastens death, even in the case of the goses, one whose death is imminent. The goses is compared to a flickering candle; “the one who touches it and causes it to go out is guilty of bloodshed.”[2] At the same time, we are commanded to preserve human life through the practice of medicine (refu’ah),[3] and the transplantation of human organs has become a major weapon in our struggle against life-threatening diseases. The critical shortage of organs available for transplantation is in large part responsible for creating the situation to which our she’elah alludes.[4] Our task here is to consider whether the desire to acquire organs, in the name of the preservation of life, has led to the adoption of measures that are in some way destructive of life and of our duty to preserve it.

1. The Medical Context.[5] Human organs destined for transplant can be retrieved from one of four sources: cadavers; live donors; donors who are brain dead but whose organs are maintained by life-support technology; and non-heart beating donors (NHBDs), that is, individuals whose deaths are determined by cessation of heart and respiratory function rather than loss of whole brain function. Our she’elah deals primarily with donors in this latter category, which in some ways marks a return to the “old” cardiorespiratory criteria of death that were superseded by the general acceptance in the medical profession of neurological criteria (brain death) as the determinative indicator that death has taken place.[6] The NHBD category was reintroduced in response to two perceived needs. The first of these was the growing shortage of organs available to meet the demand for transplantation. The second was the desire among some dying patients, usually acting through their surrogates, to donate their organs upon death. To meet these needs, the University of Pittsburgh Medical Center developed a set of guidelines, commonly referred to as the “Pittsburgh protocol,” to allow for “planned” organ retrieval. In the hypothetical case, a patient or the patient’s surrogates make a legal and ethical decision to withdraw life support. The patient is weaned from the ventilator and is simultaneously prepared (“prepped”) for organ retrieval. The patient’s pulse is monitored by a femoral catheter, and the heart’s electrical activity is measured by electrocardiogram (EKG). When these show a total absence of a pulse and of cardiac activity for a period of two minutes, the patient is pronounced dead and organ retrieval may proceed. If the patient spontaneously resumes breathing after the removal of the ventilator, he or she is returned to the intensive care unit.

During this process, anticoagulant drugs such as heparin are administered to the donor a few minutes before the withdrawal of life support. This is done to prevent blood clots that would render the retrieved organs useless for transplantation. Our she’elah indicates that heparin “‘kills’ the person because it causes internal bleeding.” This assertion, as far as we can determine, is unproven. According to a report by the Institute of Medicine, an arm of the National Academy of Science, heparin may cause internal bleeding if administered to some NHBDs, especially in large doses. The report therefore concludes that it is appropriate to use heparin for the purposes described here, provided that this decision is made on a case-by-case basis and that the drug is administered carefully, so as not to harm the patient or to hasten his or her death.[7] According to the information made available to us, standard medical practice restricts the dosage of heparin administered to NHBDs to the “safe” range, so that it does not harm the donor. Indeed, given that hemorrhagic organs would be useless for transplantation, physicians have no motivation for administering these drugs in doses large enough to kill the patient by causing internal bleeding.[8] In light of these findings, there is no Jewish ethical reason to prohibit the use of heparin or other anticoagulants in this situation, provided that the drugs are in fact administered so as not to shorten the life of the donor.

2. Non-Heart Beating Donors and The Criteria for Death. Beyond the specific concern of anticoagulant drugs, our she’elah raises a more general and troubling issue. The “Pittsburgh protocol” specifies that organs may be retrieved once Athe patient meets the cardiopulmonary criteria for death, i.e., the irreversible cessation of cardiopulmonary function,”[9] and it determines that “irreversible cessation” has occurred once the patient’s pulse has stopped for a period of two minutes. To wait longer than two minutes would subject the internal organs to warm ischemia (damage caused by lack of blood flow) and possibly render them useless for transplantation. This presents a serious problem for those who accept neurological criteria (brain death) as the determinative indicator of death. Put starkly, “there are no clear empirical data proving that a patient who meets the Pittsburgh protocol’s criteria for cardiopulmonary death, two minutes of pulselessness, also meets the neurological criteria for death, irreversible loss of all brain functions.”[10] Indeed, since “no one would claim that two minutes of anoxia is sufficient evidence that the brain has ceased to function,”[11] a patient declared dead according to the Pittsburgh protocol may not in fact be brain dead at the time his or her organs are retrieved. We must therefore address the question: are the Pittsburgh protocol’s criteria for death for non-heart beating organ donors acceptable according to our understanding of Jewish tradition?

The “classic” halakhic “definition” of death (that is, the set of criteria accepted by virtually all Jewish legal authorities prior to the late 1960s) is based upon cardiopulmonary indicators: death is established by the complete and irretrievable cessation of heartbeat and respiration.[12] This standard proceeds from Mishnah Yoma 8:6-7, which declares that the saving of life supersedes the laws of Shabbat even when it is not certain that an individual’s life is in danger or, for that matter, that he is still alive.[13] Thus, when a building collapses upon an individual on the Sabbath, the halakhah permits all necessary labor to remove the debris so that it can be determined whether he is still alive. The Talmud (BT Yoma 85a) cites a dispute as to how we are to ascertain that fact: do we examine his heartbeat or his respiration? The major codes rule that the cessation of respiration is the determinative criterion for death.[14] This does not mean that heartbeat is an irrelevant factor; later poskim realized that the cardiac and respiratory functions are inextricably linked.[15] Thus, R. Moshe Sofer, the “Chatam Sofer” (18th-19th century Hungary), established a threefold set of criteria for death: “when a person lies still as a stone [i.e., absence of reflexes], with no discernible pulse, and then his respiration ceases, he is certainly dead.”[16]

Yet alongside the Yoma passage, we find in the halakhic sources suggestions of a different “definition,” namely that death is indicated by the cessation of neurological activity.[17] With the advent of the “Harvard criteria,”[18] which established testing protocols for determining that all neurological activity (including that of the brain stem) has ceased, some halakhists came to accept brain death as a proper indication of death according to Jewish law. This does not, in their view, contradict the cardiopulmonary standard as promulgated by Sofer: death is still indicated by the complete cessation of independent cardiac and respiratory activity. The difference is one of diagnostic technology. In Sofer’s day, death could be determined solely by the actual measurement of heartbeat and respiration. Today, when the accepted tests can establish the cessation of all neurological activity, the patient may be declared dead, since “brain death is final and irreversible and there is no possibility that autonomous respiration will begin anew.”[19] The fact that the organs of a brain-dead person are kept functioning by means of life support technology does not mean that the person is still alive, because with the cessation of neurological activity autonomous, independent heartbeat and respiration cannot be restored. Those Orthodox poskim who accept brain death as an adequate indicator of death have ruled in favor of heart and liver transplantation surgery, which require that these organs be retrieved from brain-dead donors.[20] This stance, however, remains controversial within the Orthodox world; most noted halakhists continue to insist on the literal application of the “Chatam Sofer” standard: death occurs only when heartbeat and respiration have irretrievably ceased.[21]

Liberal halakhic opinion,[22] including that of this Committee,[23] accepts the brain death standard as a proper criterion for death. Brain death, again, does not replace the “older,” cardiopulmonary criteria; rather, it confirms them. Since the determination of brain death signals that the body has irretrievably lost its ability to maintain cardiopulmonary functions on an independent basis, the brain death standard satisfies the demands of both Jewish tradition and simple moral sense. When clinical tests establish beyond scientific doubt that brain activity has irretrievably ceased and that circulation and respiration are maintained solely through mechanical means, the patient is dead. It is then, and only then, that the body’s organs may be removed for transplantation.

As we have seen, the Pittsburgh protocol standard does not meet the criteria for brain death. We should also note that it does not meet the Jewish standard of establishing death according to cardiopulmonary criteria. That standard, like the brain death standard, was meant to indicate that heartbeat and respiration have irreversibly ceased to function. Two minutes of pulselessness are not sufficient to meet this test: cardiopulmonary functions can return spontaneously or be restored through resuscitation during a much longer period, even up to ten minutes following asystole (cardiac arrest).[24] It may be, of course, that physicians and family members have no intention of resuscitating such a patient. That decision can be a proper one. As we have written, there are times when it is ethically permissible to withdraw most forms of medical treatment, to “allow nature to take its course” and to let the patient die without further “heroic” measures.[25] Yet such a decision does not indicate “irreversibility.” The fact that pulse and respiration will not be restored through medical intervention does not prove that they cannot be restored. Until that latter point is reached, until it is clear that “there is no possibility that autonomous respiration will begin anew,” we cannot certify that the cessation of heartbeat and respiration are in fact irreversible. It is for this reason that the brain death standard, which does testify to the irreversible cessation of autonomous heart and lung activity, meets the criteria for death as set forth in the sources of our Jewish tradition.

3. To Change the Criteria for Death? Why have some hospitals and clinics adopted the Pittsburgh protocol as a standard for determining the death of non-heart beating organ donors? Why have they abandoned the brain death standard, which is still recognized as the predominant criterion for establishing death?[26] The obvious, practical reason is the desire to increase the availability of organs for transplantation: “(T)he number of persons eligible to donate organs who die when heart and lung functions stop is believed to be much larger than the number who are pronounced ‘brain dead’ while on life support.”[27] This desire, to be sure, is not evidence of evil intent. The goal of organ transplantation, after all, is to save human life, to fulfill the mitzvah of pikuach nefesh. The donors (or their surrogates) have consented in advance to this procedure: they have asked to be removed from life support and have permitted the removal of the needed organs from their bodies. Nor is the acceptance of the Pittsburgh protocol necessarily an act of cynical manipulation, the altering of the definition of death in order to serve our own purposes, however exalted. As some ethicists argue,[28] “death” is not a biological event that can be defined by medical criteria. All that science can do is to identify specific clinical situations, such as the irreversible cessation of heartbeat or of brain activity. The decision to regard those situations as evidence of “death” is a legal or moral decision, arrived at through discussion among scientists, practitioners, and the community as a whole. Death “happens,” in other words, at a point in the clinical situation that is morally, sociologically, and anthropologically acceptable. Why then is it wrong or immoral to declare death at a moment which is consistent with the retrieval of vital organs? Such thinking may have motivated the acceptance of the brain death standard several decades ago,[29] and such thinking lies behind the Pittsburgh protocol and other current proposals to accept alternative criteria for death (for example, higher-brain death or a diagnosis of permanent vegetative state) so as to increase the availability of organs for transplantation.[30]

With all this in mind, should we Reform Jews, who honor our Jewish tradition but who are open to new ways of thinking about our moral responsibilities, reconsider our own criteria for death? Should we abandon the traditional Jewish standards in favor of a new definition that, like the Pittsburgh protocol, would facilitate the retrieval of more human organs for transplantation?

We oppose such a step. We do so out of our commitment to the principle with which we began this teshuvah: the sanctity of human life. Any discussion of a Jewish approach to the determination of death must proceed from that fundamental affirmation. To perceive human life as “sacred,” in Jewish terms, is to hold it inviolate: as the ultimate possession of the God who has created it and given it to us, human life may never be taken or shortened save for those circumstances under which the Torah permits or mandates that outcome.[31] For this reason, although we are not obligated to delay a terminal patient’s impending death through the employment of therapeutically useless measures, we are forbidden to practice active euthanasia or assisted suicide, to hasten the death of that patient. The fact that there is nothing physicians can do to save the life of this patient does not entitle us to kill him or her, even out of compassion and Bimportantly for our she’elahBeven when it would benefit others were we to do so.[32] It makes no difference that the patients or their surrogates have consented to them. The sanctity of life precludes suicide just as it forbids homicide.[33] The act, however benign or beneficent, remains an act of killing.

Since our tradition regards human life as sacred, it bids us to do everything we can to save life and to heal the sick. By that same token, however, because all human lives are equally sacred, it does not and cannot permit us to save the life of one person by shortening the life of another.[34] Yes, we have accepted “new criteria for death (the brain-death standard) that justify the retrieval of human organs from donors whose hearts are still beating. Yet as we have written, the neurological criteria did not represent a change but rather a reliable alternative indicator that the traditional Jewish standard for death (the complete and irreversible cessation of autonomous heartbeat and respiration) had been met. A brain dead person is, by Jewish criteria, dead. By contrast, a medical institution that implements the Pittsburgh protocol or some of the other “alternative” criteria for death is retrieving organs from persons who, in the eyes of Jewish tradition, are likely still alive. That is a difference that makes all the difference in the world. The prospect of killing NHBDs may not trouble those who do not share the Jewish conception of the sanctity of human life. But those of us who do, who participate in a tradition that regards human life as inviolate and beyond our power to destroy even for beneficial purposes, find it a chilling thought indeed.

Conclusion.

The administration of anticoagulant drugs to a non-heart beating organ donor is permissible so long as it is done so as not to harm the patient or hasten his or her death. Organ retrieval is permissible when, but not before, the patient is declared to be brain dead.

NOTES

  1. The term “sanctity of human life” is not native to the Jewish tradition. We do not find its probable Hebrew equivalent, k’dushat hachayyim, in the Talmudic or halakhic sources. On the other hand, it reflects the conviction, most certainly present throughout Jewish thought and discussed below in this responsum, that human life possesses supreme value and is therefore inviolate. This insight is applied in contemporary halakhic writing to the issue of suicide: (R. Ovadyah Yosef, Yabi`a Omer 8, Orach Chayim 37, sec. 5). And, in fact, some present-day Orthodox writers do use the term k’dushat hachayyim or “sanctity of life” as a way of expressing this commitment: see Piskei Din Rabani’im 1, p. 164, and J. David Bleich in Fred Rosner and J. David Bleich, eds., Jewish Bioethics (Brooklyn: Hebrew Publishing Co., 1985), 273. We think, therefore, that the term “sanctity” conveys an accurate description of the Jewish belief that life possesses inestimable value and must be protected as though it belongs to the God Who created it.
  2. S’machot 1:1: “the goses is considered a living person in all respects”; Rambam, Yad, Avel 4:5; Shulchan Arukh Yore De`ah 339:1.
  3. For sources and discussion, see our responsa 5754.14, “Treatment of the Terminally Ill,” Teshuvot for the Nineties (TFN), 337-363, at pp. 346ff. (https://www.ccarnet.org/ccar-responsa/tfn-no-5754-14-337-364); 5754.18, “Physicians and Indigent Patients,” TFN, 373-380, at pp. 373-375 (https://www.ccarnet.org/ccar-responsa/tfn-no-5754-18-373-380) ; and 5761.7, “Human Stem Cell Research,” at notes 5-13 (https://www.ccarnet.org/ccar-responsa/nyp-no-5761-7 ).
  4. See, in general, our responsum 5763.2, “Live Liver Transplantation,” https://www.ccarnet.org/ccar-responsa/nyp-no-5763-2 .
  5. We are deeply indebted to the Bioethics Committee of the Union of American Hebrew Congregations, chaired by Harvey L. Gordon, M.D., for their assistance and instruction in the preparation of this part of our t’shuvah.
  6. “Brain death” refers to the complete and irreversible cessation or stopping of all cerebral and brain-stem function. The clinical tests to determine brain death are described in ”Definition of Irreversible Coma – Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” Journal of the American Medical Association 205 (1968), 337-340. That brain death became a consensus standard is indicated by the statement signed by nearly all the leading American authorities in the field in Journal of the American Medical Association 246 (1981), 2184-2187. The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research officially recognized the brain death standard in Defining Death: A Report on the Medical, Legal, and Ethical Issues in the Determination of Death (Washington: US Government Printing Office, 1981). On the question of brain death in Jewish law and in the Reform responsa tradition, see below in this t’shuvah.
  7. Institute of Medicine, Non-heart-beating Organ Transplantation: Medical and Ethical issues in Procurement (Washington: National Academy Press, 1997); see especially pp. 4 and 52.
  8. George J. Agich, “From Pittsburgh to Cleveland: NHBD Controversies and Bioethics,” Cambridge Quarterly of Healthcare Ethics 8 (1999), 517-523. In the interests of full disclosure, we note that Dr. Agich is the chair of the Department of Bioethics at the Cleveland Clinic Foundation. The Cleveland Clinic was the subject of a controversy in 1997 over the very issue that impels this she’elah: the administration of anticoagulant drugs to non-heart beating donors prior to the withdrawal of life support. Agich supports the procedure on the grounds indicated here, namely that the drugs are administered under the Institute of Medicine guidelines (see preceding note) and in dosages that do not cause harm to the patient. The Bioethics Committee of the UAHC, in a communication to this committee, agrees with Agich’s assessment: “(we) have found nothing in the literature to substantiate the assumption of your questioner that heparin causes internal bleeding, much less that it is the cause of the donor’s death.”
  9. University of Pittsburgh Medical Center, “Management of Terminally Ill Patients Who May Become Organ Donors After Death,” 1992. A text of the protocol is included in Robert M. Arnold, et al., Procuring Organs for Transplant: The Debate Over Non-Heart-Beating Cadaver Protocols (Baltimore: The Johns Hopkins University Press, 1995), 235-249. The quotation in the text is at p. 240, paragraph S. See also Kennedy Institute of Ethics Journal (1993), 3:A-1 to A-15. The “the cardiopulmonary criteria for death” referred to in the protocol match those set by the Uniform Declaration of Death Act (UDDA), sec. 1, 12 ULA 340 (suppl. 1991): “An individual who has sustained either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem, is dead.”
  10. Arnold, et al. (note 9, above), 7.
  11. Joanne Lynn, “Are the Patients Who Become Organ Donors under the Pittsburgh Protocol for ‘Non-Heart-Beating Donors’ Really Dead?” in Arnold et al. (note 9, above), 91-102. The quotation is at 99. Dr. Lynn is director of the Center to Improve Care of the Dying at George Washington University. At the time of the publication of the Arnold volume, she was a Professor of Medicine at Dartmouth-Hitchcock Medical Center in Hanover, NH.
  12. See, in general, the article by our colleague, Moshe Zemer, “Terumat Eivarim Vehahalakhah,” in R. Cohen-Almagor, Dilemot Be’etikah Refu’it (Jerusalem: Van Leer Institute, 2002, 265-282.
  13. In Jewish tradition, the saving of life is called pikuach nefesh. The situation referred to in our Mishnah is one of safek n’fashot, a case where it is uncertain that life is in fact in danger. On this subject, see our responsum 5763.2, “Live Liver Transplantation” (note 4, above).
  14. See Yad, Shabbat 2:19 and Shulchan Arukh Orach Chayim 329:4. The ruling is based upon the statement of Rav Papa in BT Yoma 85a, along with the citation in that passage of Genesis 7:22 (“every creature with the breath of life in its nostrils”).
  15. That is to say, the poskim have rejected the literal reading of Rambam and the Shulchan Arukh, according to which cessation of respiration is the exclusive indicator of death. The 19th-century Galician authority Rabbi Shalom Schwadron, for example, declared that cessation of breathing indicates death only “if there is no indication to the contrary…but if any sign of vitality is detected elsewhere in the body…then it is obvious that we do not declare death on the basis of the cessation of respiration alone” ( Maharsham 6:91). See also R. Isser Yehudah Unterman in No`am 13 (1970), 1-9, and R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 9:46 and 10:25, ch. 4.
  16. Chatam Sofer, Yore De`ah, no. 338.
  17. These include the following: 1) Ohalot 1:6: one whose head is severed from the body is immediately regarded as dead and capable of transmitting ritual impurity, even if all physical reflexes have not yet ceased (and see Rambam’s commentary to that mishnah, where he speaks of an “animating force” in the body that emanates from one source, suggesting that he saw the brain as the source of all bodily reflexes, including respiration); 2) BT Chulin 21a: a person whose neck is broken immediately transmits ritual impurity (i.e., is dead); 3) Yad, Tumat Met 1:15, codifying the above sources: “one does not transmit impurity until the soul has departed… if the neck has been broken… or if the head is severed… he transmits impurity even though there may be some residual reflexes in one of his limbs.”
  18. See note 6, above.
  19. Avraham Steinberg, “The Definition of Death,” in Fred Rosner, ed., Medicine and Jewish Law (Northvale, NJ: Jason Aronson, 1990), 146. Steinberg’s definition of brain death parallels that of the President’s Commission (note 6, above): “The heart and lungs are not important as basic prerequisites to continue life but rather because the irreversible cessation of their functions shows that the brain had ceased functioning.” The “accepted tests” he lists are: apnea tests, cerebral blood flow studies (e.g., radioisotope studies), Doppler tests, cerebral arteriograms, and electrophysiological examinations. “The electroencephalogram is insufficient to determine total brain death”; loc. cit.
  20. See especially R. Moshe David Tendler, who is both a rosh yeshivah at RIETS seminary and the chair of the biology department at Yeshiva University, “Kevi`at rega hamavet ve-hashtalat eivarim,” in A. Steinberg, ed., Emek Halakhah (New York: yeshiva University, 1989), 213-219 (“that the heart continues to beat (after brain death) is no sign of life, since the heart, when removed from the body and placed in a bucket with certain chemicals can maintain its pulse for hours or even for weeks”; p. 215); decision of the Chief Rabbinate of Israel, “Hashtalat lev be-yisra’el,” published in T’chumin 7 (1986), 187-189; R. Shelomo Goren, Torat harefu’ah (Jerusalem: Hemed, 2001), 82 and 112; R. Moshe Feinstein, Igerot Moshe, Yore De`ah 3:132 (dated 1976) and Choshen Mishpat 2:72 (dated 1978). The position of Rabbi Feinstein on this issue remains a subject of controversy in Orthodox circles, largely because earlier t’shuvot of his explicitly forbade the heart transplantation procedure. Tendler, op. cit., who is Feinstein’s son-in-law, insists that Feinstein changed his view as he became more informed of the technology that measures brain death.
  21. Among these are R. Eliezer Yehudah Waldenberg, Tzitz Eliezer 10:25, ch. 25; R. Yitzchak Ya`akov Weiss, Resp. Minchat Yitzchak 5:7, 9; and R. S. Z. Auerbach, cited in Nishmat Avraham, vol. 5, Yore De`ah 339:1. See, in general, J. David Bleich, Contemporary Halakhic Problems, v. 4 (New York: Ktav/Yeshiva, 1995), 316-350.
  22. See the responsa of R. Avram Reisner and R. Elliot N. Dorff in Proceedings of the Committee on Jewish Law and Standards, 1986-1990 (New York: The Rabbinical Assembly, 2001), 13-126.
  23. Contemporary American Reform Responsa (CARR), no. 78 (https://www.ccarnet.org/ccar-responsa/carr-128-132 ); R. Walter Jacob, Questions and Reform Jewish Answers (QRJA), no. 156 (https://www.ccarnet.org/ccar-responsa/narr-254-259 ).
  24. See N. Zamparetti et al., “Defining Death in Non-Heart Beating Donors,” Journal of Medical Ethics 29 (2003), 182-185, at notes 19-24.
  25. On this subject, see our responsum 5754.14, “Treatment of the Terminally Ill” (note 3, above).
  26. The Bioethics Committee of the UAHC informs us that the institutions employing the Pittsburgh protocol constitute “a small percentage” of all medical establishments and that “brain-dead donors continue to constitute the vast majority.”
  27. Arthur L. Caplan, in Arnold, et al. (note 9, above), 208. Dr. Caplan is director of the Center for Bioethics at the University of Pennsylvania.
  28. On the following, see Zampretti et al. (note 24, above).
  29. Henry Beecher, the chairman of the Harvard committee that established the brain death criteria (see note 6, above), wrote in 1971: “At whatever level we choose to call death, it is an arbitrary decision… The need is to choose an irreversible state where the brain no longer functions. It is best to choose a level where, although the brain is dead, usefulness of other organs is still present”; cited in Zampretti et al. (note 24, above) at note 36.
  30. Among these are James M. DuBois, “Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death,” Journal of Law, Medicine and Ethics 27 (1999), 126-136; Robert D. Truog, “Is It Time to Abandon Brain Death?” Hastings Center Report 27:1 (1997), 29-37; Arnold, R. M. and Youngner, S. J., “The Dead-Donor Rule: Should We Stretch It, Bend It or Abandon It?” Kennedy Institute of Ethics Journal 3 (1993), 263-278; Zampretti et al., note 24, above; and Linda Emanuel, “Reexamining Death: The Asymptomatic Model and a Bounded Zone Definition,” Hastings Center Report 25:4 (1995), 27-35. The “permanent vegetative state” criterion is a feature of Emanuel’s proposal.
  31. One major expression of this commitment is the notion that one’s life is not one’s personal property, to dispose of as one wishes; rather, human life belongs to God, to Whom we are obliged to render an account for the way in which we have used it. Thus, writes Maimonides, the beit din is not permitted to accept a ransom from a murderer in order to spare him from execution, “for the life of the victim is not the property of the avenger (or of the court) but of the Holy One” (Yad, Rotzeach 1:4). In a similar vein, under Jewish law we cannot execute a wrongdoer on the evidence of his own confession. The reason for this, explains one scholar, is that “the life of the human being is not his own property but the property of God, Who said ‘all lives are mine’ (Ezekiel 18:4). Therefore, a person’s own confession has no power to dispose of that which does not belong to him” (Commentary of R. David ibn Zimra to Yad, Sanhedrin 18:6).
  32. See TFN, no. 5754.14, “On the Treatment of the Terminally Ill” (note 3, above).
  33. Jewish law forbids suicide as it forbids homicide; S’machot 2:1; BT Bava Kama 91b (and see Genesis 9:5 and Rashi ad loc.); Shulchan Arukh Yore De`ah The halakhah as developed in the later sources presumes that the one who takes his own life is driven to do so by circumstances beyond his or her control; in other words, suicide by definition is an irrational act.
  34. See BT Sanhedrin 74a, Rabbah’s classic question mai chazit: “How can you say that your blood is redder than that of another? Perhaps his blood is redder than yours.”

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5766.2

CCAR RESPONSA

5766.2

When A Parent Requests Cremation

She’elah

A man, who is approaching death, has instructed that his body be cremated. His children are very uncomfortable with this request. They ask whether, under Jewish tradition, they are obliged to honor it, or are they entitled to bury him intact, in contradiction to his express wishes? Rabbi Solomon B. Freehof has ruled that in such a case we apply the Talmudic dictum “it is a mitzvah to fulfill the wishes of the deceased” (B. Gitin 40a and elsewhere). I wonder, however, if a more nuanced approach is better suited to a case such as this, where the children have strong religious objections to their father’s instruction? (Rabbi David Katz, Binghamton, NY)

Teshuvah

In the responsum that our sho’el mentions, Rabbi Freehof rules that “we should urge” the family to carry out a father’s wish to be cremated.[1] He acknowledges that the principle “it is a mitzvah to fulfill the wishes of the deceased” is not absolute; we are in fact forbidden to fulfill the wishes of the deceased if he or she instructs us to commit a transgression against Jewish law.[2] Thus, an Orthodox rabbi would surely rule against the request: “since cremation is contrary to Jewish law, the man’s wish contravenes the law and may not be carried out.” However, since the question has been posed to a Reform rabbi, “the answer cannot be so clear-cut.” For us, cremation does not necessarily “contravene the law”; the Central Conference of American Rabbis (CCAR) resolved in 1892 that “in case we should be invited to officiate” at a cremation, “we ought not to refuse on the plea that cremation be anti-Jewish or irreligious.”[3] Rabbi Freehof notes that there is no clear and obvious prohibition against cremation in the sources of Jewish law and that “the Orthodox agitation against cremation actually began about a century ago” in response to the growing movement toward cremation in Western societies. Indeed, “when one studies the (Orthodox) arguments adduced against cremation, one can see that they are forced.” On this basis, Rabbi Freehof concludes that Reform Jews can have no principled religious objections to cremation. In the instant case, unless the man’s family is Orthodox, we should counsel them to honor his instruction. “Surely, if we officiate at a cremation, we cannot refrain from fulfilling or encouraging the fulfillment of a man’s wish for this type of disposal of his body.”

We have quoted at length from Rabbi Freehof’s responsum because we do not want to minimize the challenge that faces us. Our sho’el is asking that we rule against our teacher, and we are ordinarily reluctant to do so.[4] We would argue, though, that the times demand a different response. For one thing, the situation is no longer “so clear-cut”; the Reform position on cremation is more complex today than it was when Rabbi Freehof wrote his teshuvah. We also think that our attitude toward the maintenance and encouragement of traditional forms of Jewish observance has changed quite a bit over the last several decades. For these reasons, we hold that the children in this case may well be entitled to act upon their own religious beliefs and not to fulfill their father’s request.

In order to make this argument, we shall have to consider, first of all, the attitude of Jewish law and tradition toward cremation as a means of the disposal of human remains. We shall then look at the developing Reform Jewish attitude toward cremation as expressed in the literature of the CCAR. Finally, we shall consider this particular case in the context of Jewish tradition, Reform Jewish practice, and the ethical obligations that the children may owe to their dying father.

1. Cremation in Jewish Law. There is no explicit requirement in the Biblical text that the dead be buried rather than cremated. The sources make clear that burial was the normative practice in ancient Israel,[5]  but nowhere do we find an express prohibition of the burning of the corpse. The Rabbis understand burial to be a requirement of Torah law, derived from Deuteronomy 21:23.[6] Maimonides codifies the law as follows: “If the deceased gave instructions that his body not be buried, we ignore him, inasmuch as burial is a mitzvah, as the Torah says (Deut. 21:23), ‘you shall surely bury him.’”[7] Yet like the Bible, the Talmud and the classical halakhic literature contain no explicit prohibition of cremation. The subject seems almost never to have come up, most likely because cremation was simply not practiced by the Jews and no one thought to ask whether it was permitted or forbidden.[8] The silence lasted until the nineteenth century, “when cremation became an ideal that was agitated for through many societies in the western lands.”[9] At that time, the leading halakhic authorities condemned cremation as a transgression against Jewish law, an opinion that remains the consensus viewpoint.[10] This prohibitive opinion rests primarily on two halakhic grounds. First, cremation does not fulfill the commandment to bury the dead, based as we have seen on Deuteronomy 21:23. Burial of the cremains would not rectify this, since the mitzvah of burial applies to the body itself and not to its ashes.[11] Second, Jewish tradition mandates kevod hamet, that we treat the corpse with honor and respect, and it regards the burning of a body as an act of nivul (or bizayon) hamet, contemptible treatment of a corpse.[12] Other arguments include the prohibition against imitating Gentile customs (chukot hagoyim)[13] and the contention that cremation is tantamount to an act of heresy in that it denies the belief in techiyat hametim, the physical resurrection of the dead.[14]

These arguments may or may not be “forced,” as Rabbi Freehof describes them. Some of them may be more persuasive than others. What is certain, though, is that Orthodox authorities are united in the opinion that cremation violates traditional Jewish law, an opinion shared by Conservative[15] and Reform[16] writers.

2. Cremation in the Literature of the CCAR. Our Conference has published a number of statements with respect to cremation.

a. The 1892 resolution, referred to above, declares that “in case we should be invited to officiate as ministers of religion at the cremation of a departed co-religionist, we ought not to refuse on the plea that cremation be anti-Jewish or anti-religion.”[17] The resolution followed upon the report of a special committee, chaired by Rabbi Bernard Felsenthal, that had been appointed to study the issue. The report made two essential points. First, it demonstrated at some length that the practice of cremation was contrary to Jewish law and tradition.[18] Second, it sought to avoid the substantive issue of whether to endorse cremation as a method for disposal of human remains. “The writer of this does not wish to be understood that he pleads for cremation. He also does not oppose it.” Since a rabbi is not “a competent expert” in the matter of whether cremation is “preferable” to burial, the only motion “in order in a rabbinical conference” is one that calls upon rabbis, whatever their position concerning cremation, to provide pastoral care for those of their people who do choose the procedure.[19]

b. The 1961 Rabbi’s Manual, recounting the 1892 resolution, states: “Since that time, most Reform Jews have gone beyond this cautious tolerance and have accepted cremation as an entirely proper procedure. A number of leading Reform rabbis have requested that their bodies be cremated.”[20] In its section on funeral liturgy the Manual contains a prayer suggested for recitation when “the body is to be cremated.”[21]

c. The 1974 responsum of Rabbi Freehof discussed at the beginning of our teshuvah.

d. Gates of Mitzvah, a guide to Reform Jewish life-cycle observance published in 1979, stresses that “while both cremation and entombment in mausoleums are acceptable in Reform Judaism, burial is the normative Jewish practice.”

e. In1980 the CCAR Responsa Committee appended a comment to the 1892 resolution. It notes that the resolution “remains unchallenged policy within our Conference,” but adds: “In this generation of the Holocaust we are sensitive to terrible images associated with the burning of a body. Rabbis may, therefore, choose to discourage the option of cremation. The practice remains permissible, however, for our families.”[22]

f. The current Rabbi’s Manual, published in 1988, states: “We continue to stress that burial is the time-honored Jewish way of disposing of the dead… However, the practice of cremation has lately spread, for a number of reasons. We would reiterate that it ought to be discouraged if possible, especially in our generation which has seen the murderous dispatch of millions of our people by way of crematoria. If, however, cremation has been decided upon by the family, we should not refuse to officiate. It is suggested in such cases that the service be held at an appropriate place and not at a crematorium.”

g. A 1990 responsum notes: “Reform Jewish practice permits cremation… although… we would, after the Holocaust, generally discourage it because of the tragic overtones.”[23]

The record of these statements suggests a perceptible shift of attitude toward cremation within North American Reform Judaism during recent decades. While our earlier pronouncements accept cremation as permissible or even as “entirely proper,” the Conference since 1979 has pulled back from that affirmative stance. Although acknowledging that the 1892 resolution remains on the books and that Reform Jewish practice “permits” cremation, our more recent statements call upon rabbis to actively “discourage” the practice. This negative position is based upon two threads of argument: that burial is the normative traditional Jewish practice and that, after the Holocaust, cremation has become associated with one of the darkest periods in Jewish and human history.

These threads of argument, in turn, reflect two important transformations in the way that many Reform Jews have come to think about their religious lives and decisions. The first has to do with the positive reevaluation of “tradition.” In the past, the fact that a particular observance was “traditional” or accepted Jewish practice did not in and of itself recommend that observance to Reform Jews. Indeed, we were quite ready to dispense with any such practices that were “not adapted to the views and habits of modern civilization” and that “fail to impress the modern Jew with a spirit of priestly holiness.”[24] It is for this reason that Rabbi Felsenthal could argue both that cremation was a transgression against traditional Jewish law and that this fact was irrelevant to Reform Jewish thinking on the subject:

Joseph Qaro’s Code is of no obligatory authority to you. The Talmud is of no obligatory authority to you. Even the laws of the Bible as such are of no obligatory authority to you… Shall we for the sake of the living inquire of the dead? Shall we for the sake of the living open the old folios, and submit to what they have said hundreds of years ago under quite different conditions of life? Shall we learn there whether or not cremation is in accord with the spirit of Judaism?[25]

Rabbi Felsenthal’s words remain an eloquent expression of a central article of Reform Jewish faith. To this day, we affirm our right to define the “spirit of Judaism” and to abandon, alter, or replace old practices that we no longer find religiously meaningful. In this view, we cannot declare to Reform Jews that cremation ought to be forbidden solely because it runs counter to the halakhah or to the customs of our ancestors.

In recent decades, however, a new attitude has taken hold within our community. We have described it as follows:

(M)any of us have reclaimed ritual observances abandoned by previous generations of Reform Jews, from the generous use of Hebrew in the liturgy, to the wearing of kipah, talit and tefilin, to the dietary laws (kashrut), to the ceremonies surrounding marriage and conversion. These examples – and more could be cited – testify that our approach to traditional ritual practice differs significantly from that of our predecessors. This difference stems, no doubt, from the divergent religious agenda that we have set for ourselves. If our predecessors regarded their acculturation into the surrounding society as a predominant objective, we who benefit from the social and political gains that they achieved are more concerned with taking active measures to preserve our distinctive Jewishness. Thus, where they may have viewed many ritual observances as barriers to social integration and as obstructions to “modern spiritual elevation,” we may find them an appropriate and desirable expression of our Jewish consciousness.[26]

This is what we mean by the positive reevaluation of “tradition.” The point is not that traditional practices exert, to use Rabbi Felsenthal’s words, “obligatory authority” upon us. The point, rather, is that we take the Bible, the Talmud, and even “Joseph Qaro’s Code” more seriously than we did in his day as positive influences upon our own religious behavior. We are now more inclined than ever before to adopt or to preserve a ritual observance precisely because it is “Jewish.” We are more likely to regard a practice’s traditional pedigree as a reason for maintaining it, especially when there are no compelling moral or aesthetic arguments against that practice. We are therefore today more likely – though not obligated – to oppose cremation on the grounds that burial is a mitzvah, the “normative” Jewish way of disposing of human remains.

 

We might in a similar way explain our differences over whether cremation constitutes an act of nivul hamet (contemptible treatment of a corpse). A Reform Jew is certainly entitled to define this term in a way that is “adapted to the views and habits of modern civilization.” Cremation is widely accepted in Western culture as an honorable way of treating human remains. We are therefore under no obligation to regard it as an act of nivul hamet solely because some rabbinic texts portray it as such. Yet to say that we are not obligated to adopt the traditional definition does not entail that we are forbidden to do so. It is true that concepts such as “honor” and “disgrace” do not admit of objective definition. All this means, however, is that such terms can only be defined from within a particular social context; to reach these definitions, we must choose to work within a particular culture’s set of values and affirmations. The particular culture that is Jewish tradition declares the burning of the corpse to be an act of nivul or bizayon. A Reform Jew today who finds special and satisfying meaning in the values and affirmations of Jewish tradition is thus entitled – though, again, not obligated – to adopt this definition precisely because it flows from the religious and cultural heritage of our people.

 

The second transformation in our religious thinking concerns our sensitivity to the experience of the Shoah (Holocaust). There is, to be sure, all the difference in the world between the Nazi crematoria and the freely-made choice of cremation for ourselves and our loved ones. We should, moreover, be wary of invoking the memory of the Shoah as a facile justification for decisions concerning religious practice.[27] Yet for all that, the Jewish world is a different place now, “after Auschwitz,” than it was before. Neither we nor our religious consciousness has emerged unchanged from our confrontation with that event. And one such change, as the recent statements of our Conference affirm, has to do with our attitude toward the machinery of cremation. The images of fire, ovens, and smokestacks, which we recall so vividly when we contemplate the mass murder of our people, can and do persuade many liberal Jews that today, after Auschwitz, the consigning of our dead to the flames is not the proper Jewish way to honor them.[28]

 

We emphasize that we are dealing here with general trends. To speak of transformations in our religious thinking is to describe what is happening within large segments of the Reform Jewish community rather than to prescribe a correct course of action in a specific instance. Not all Reform Jews are affected in the same way by these trends, and not every Reform Jew will draw from them the same conclusions concerning his or her religious observance. As a noted jurist once remarked, “General propositions do not decide concrete cases.”[29] Yet in this particular concrete case, the Conference has moved decisively away from its previous acceptance of cremation. The members of this Committee reiterate this stance. Although we, like our more recent predecessors, continue to acknowledge that the 1892 resolution remains the formal policy of the CCAR, we would continue to call upon our rabbis to discourage the practice of cremation among our people. We do so for three primary reasons. First, burial is the normative traditional Jewish practice; as such, it is a mitzvah that exerts a strong persuasive force upon us. Second, we note the absence of convincing moral or aesthetic objections to the practice of traditional burial that would move us to abandon it.[30] Finally, we concur with our predecessors that today, after the Shoah, the symbolism of cremation is profoundly disturbing to us as Jews.

 

3. The Question Before Us. How should the children of whom our she’elah speaks respond to their father’s request? Considering all the above, we would counsel the following.

 

a. The North American Reform movement does not regard cremation as a “sin.” The 1892 resolution of the CCAR calls upon rabbis to officiate at cremation services, and despite our reservations concerning cremation, we hold that the procedure does not “contravene the law.” Therefore, the children are not forbidden to honor this request, and they may arrange for cremation in response to the mitzvah to honor our parents and to the dictum that we should seek to fulfill the wishes of the deceased.

 

b. Nonetheless, the children are not obligated to honor their father’s request. The CCAR discourages the choice of cremation; it supports the choice of traditional burial; and Reform thought today recognizes the right of our people to adopt traditional standards of religious practice that previous generations of Reform Jews may have abandoned. The commandment to honor one’s parents does not apply in such a case, for a parent is not entitled to compel his or her children to violate their sincerely held Judaic religious principles.[31] Thus, when a Reform Jew has serious and substantive religious objections to cremation, he or she may refuse a loved one’s request for it.

 

c. By “traditional burial,” we do not mean to endorse many of the practices that, although associated with burial in the public mind, would be deemed as excessive or inappropriate by many of us. Among these are such elaborate and unnecessary steps as embalming, expensive caskets, and the like. Jewish tradition emphasizes simplicity and modesty in burial practices; individuals should not feel driven to choose cremation in order to avoid the expense and elaborate display that all too often accompany contemporary burial.[32]

 

d. It is essential that families speak about such matters openly, honestly, and before the approach of death. When the child fails explicitly to say “no” to a parent’s request for cremation, the parent will justifiably think that the child has agreed to carry out that instruction. In such a case, the child quite likely has made an implied promise to the parent and thus bears an ethical responsibility to keep it. Therefore, if the children have objections to cremation, they should make their feelings known to their parents sooner – much sooner – rather than later.

NOTES

1.         “Family Disagreement Over Cremation,” Contemporary Reform Responsa (1974), no. 51.

 

2.         See the midrash cited in  B. Yevamot 5b. Leviticus 19:3 says: “Each of you shall revere his mother and father, and you shall keep my Sabbaths.” The midrash explains that the second clause comes to limit the scope of the first: we “revere” our parents (i.e., we fulfill their wishes) so long as they do not instruct us to contravene the laws of the Torah, of which Shabbat is an example. See also Yad, Mamrim 6:12 and Shulchan Arukh Yoreh De`ah 240:15.

 

3.         American Reform Responsa (ARR), no. 100 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=100&year=arr). A much more complete version of the debate that led to the adoption of this resolution can be found in CCAR Yearbook 3 (1893), 53-68.

 

4.         We have on occasion differed with Rabbi Freehof. Often, this is due to transformations in the religious outlook of Reform Jews from his day to ours. Such changes are inevitable over the course of time, so that by responding to them we do not believe that we do any dishonor to Rabbi Freehof’s teachings or to his accomplishments in the field of Reform responsa, a genre he did so much to develop. In fact, we think he would be pleased that we, his successors, continue his work in the spirit of free and critical inquiry, an ideal which he always championed and to which our movement has long pledged loyalty. On the other hand, we are aware that were he with us Rabbi Freehof would no doubt offer cogent responses to our objections. We don’t do this lightly; after all, as the Talmud cautions, “do not contradict the lion after his death” (B. Gitin 83a-b).

 

5.         “There is no evidence that corpses were cremated in Palestine, except in days long before the coming of the Israelites, or among groups of foreigners; the Israelites never practiced it”; Roland de Vaux, Ancient Israel (New York: McGraw-Hill, 1965), volume 1, 57. See also Encyclopedia Mikra’it, v. 7, 4-5: “it is clear that (cremation) was not generally practiced.” This doesn’t mean that it never happened. Amos 6:10 speaks of the mesaref who comes to the house during time of plague to collect the bones of the dead, presumably for burning (s-r-f). Scholars, however, are unsure of the precise explanation of the term; see F. I. Anderson and D. N. Freeman, The Anchor Bible: Amos (New York: Doubleday, 1989), 572, 574. Then there is the burning of the corpses of Saul and his sons by the men of Yavesh-Gilead (I Samuel 31:12-13). This detail causes some obvious perplexity and embarrassment to later writers; the Chronicler (I Chron. 10:12) omits it entirely, and the traditional Jewish commentators are at pains to explain it away. From this, we can learn two important points: first, that cremation was not unheard of in ancient Israel, and second, that later Jewish tradition did not derive any positive support for the practice of cremation from these isolated references.

 

6.         Although that verse speaks of the body of an executed offender, its requirement of burial is interpreted to apply to all the dead. See B. Sanhedrin 46b, which cites the verse as a remez(a hint; an indication) to the fact that burial is a Toraitic obligation.

 

7.         Yad, Avel 12:1. See also Rambam’s Sefer Hamitzvot, pos. comm. no. 231. In the Talmud (B. Sanhedrin 46b) we find a dispute over whether the purpose of burial is to safeguard the corpse from contemptible treatment (mishum bizyona) or to effect atonement (kaparah) for the deceased. If the latter is the case, the Talmud suggests that the deceased would be within his rights to instruct his heirs not to bury him, since he is entitled to refuse atonement for himself. The dispute is not firmly resolved (Hilkhot Harosh, Sanhedrin 6:2); therefore, say some authorities, we ought to rule strictly and require burial, inasmuch as the Torah mentions it (Sefer Or Zaru`a, Hilkhot Avelut, ch. 422). R. Yosef Karo (Kesef Mishneh, Hilkhot Avel 12:1 and Beit Yosef, Yoreh De`ah 348) arrives at a similar conclusion, which he attributes to Nachmanides. The Lechem Mishneh (Yad, Avel 12:1) argues that this dispute is relevant only for those who hold that the mitzvah of burial is of Rabbinic origin. Maimonides, quite clearly, holds that it is a Toraitic commandment. In any event, we find no evidence in the traditional halakhah that one is in fact entitled to instruct his heirs not to bury him.

8.         In the 13th century, R. Shelomo ben Adret permitted mourners, who wanted to transport their father to a family plot, to put quicklime on the corpse in order that the flesh be consumed rapidly and to spare it the dishonor (bizayon) of rotting (Resp. Rashba 1:369; see Isserles, Yoreh De`ah 363:2). Does this serve as a precedent to allow cremation? Most likely, the answer is no. For one thing, not everyone would be persuaded that fire is analogous to quicklime. For another, subsequent interpreters have limited Rashba’s decision to precisely this sort of case: the exhumation and transport of a corpse for permanent burial. See the 18th-century R. Ya`akov Reischer (Resp. Shevut Ya`akov 2:97), who permits quicklime in a case where the alternative to transporting the corpse would be to bury it in a place where it could not be protected and would necessarily suffer bizayon. See also Arukh Hashulchan, Yoreh De`ah 363, par. 2. This line of thinking, in other words, deals with exceptional circumstances and not to the use of cremation as a regular means of disposing of human remains.

 

9.         Freehof (see note 1), at 230. Does this mean, as Rabbi Freehof suggests, that cremation is considered a transgression only because of the 19th-century Orthodox “agitation” against it? Not necessarily. It is just as likely that cremation would have been explicitly prohibited had the question been raised during the 17th century, or the 13th, or earlier. The question was not considered until the practice became widespread in the West.

 

10.       R. Yitzchak Shmelkes, Resp. Beit Yitzchak, Yoreh De`ah 2:155; R. David Zvi Hoffmann, Resp. Melamed Leho`il, 2:113-114; R. Chaim Ozer Grodzinsky, Resp. Achiezer 3:72; R. Avraham Yitzchak Hakohen Kook, Resp. Da`at Kohen, no. 197; R. Ya`akov Breisch, Resp. Chelkat Ya`akov, Yoreh De`ah, no. 203; R. Yekutiel Greenwald, Kol Bo `al Avelut, 53-54; R. Yechiel M. Tykocinski, Gesher Hachayim 16:9.

 

11.       Hoffman (see note 10) learns this from Y. Nazir 7:1 (55d): Deuteronomy’s commandment to “bury him”applies to the entire body (kulo, or at least to the major part of the body) and not to a small portion of it (miktzato). He points as well to the fact that the ashes of a burnt human corpse, unlike the corpse itself, are not a source of ritual impurity (M. Ohalot 2:2; Yad, Tumat Met 3:9-10). In other words, burnt remains are not a “body” such as requires burial under the law. Grodzinsky (note 10) notes simply that ashes are not the “body” of the dead person. Although it may be proper (rau’i) to bury the ashes of those who have been accidentally burned in a Jewish cemetery, he concludes, no actual obligation is fulfilled thereby.

 

12.       Among other prooftexts, the authorities point to the law that permits the removal of a corpse on Shabbat from a courtyard in which a fire has broken out. Transferring the corpse under normal conditions would violate the rules concerning the moving of objects on Shabbat, but it is permitted in this case because it would be a disgrace (bizayon) to the body were it consumed in the fire. See Shulchan Arukh Orach Chayim 311:1 and commentaries (the latter make it clear that the permit to remove the body extends to transferring it to another reshut.). Although the Magen Avraham commentary to that passage (no. 3) suggests that burning would not be a case of bizayon hamet (or, at least, not enough of a bizayon to warrant setting aside the restrictions of Shabbat), his opinion is rejected by virtually all other commentators.

 

13.       Leviticus 18:3 and 20:23. On the issue, see our responsum “Blessing the Fleet,” Teshuvot for the Nineties, no. 5751.3, pp. 159-164 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5751).

 

14.       See Freehof (note 1, above) at 230. This point does appear in the writings of some of the authorities cited in note 10. It is, however, a somewhat tangential argument. The poskim do not spend much time developing it, nor do they present it as the major focus of their objection to cremation. It is unfortunate, therefore, that Rabbi Freehof cites this contention as his only example of the “arguments adduced (in the last century) against cremation,” which he describes as “forced.” This might give the reader the erroneous impression that Orthodox opposition to cremation is founded mainly upon a doctrine that we Reform Jews have long since rejected, at least in its literal form. In fact, the Orthodox writers invest a great deal more intellectual effort into the halakhic arguments that we have noted, namely that cremation does not fulfill the mitzvah of burial and that it constitutes an act of bizayon hamet.

 

15.       See the responsum authored by Rabbi Morris N. Shapiro, “Cremation in the Jewish Tradition,” issued in 1986 by the Committee on Jewish Law and Standards of the Conservative movement’s Rabbinical Assembly (http://rabbinicalassembly.org/teshuvot/docs/19861990/shapiro_cremation.pdf) .

 

16.       See at notes 18 and 19, below.

 

17.       See note 3, above.

 

18.       This was in response to a paper delivered at a previous conference by Rabbi Max Schlesinger (CCAR Yearbook 2 (1892-1893), 33-40. Schlesinger’s argument, namely that cremation was “the primitive custom among the Hebrews” (p. 36), was thoroughly refuted by Felsenthal and his committee.

 

19.       CCAR Yearbook 3 (1893), 67-68.

 

20.       Rabbi’s Manual (New York: CCAR, 1961), 140.

 

21.       Ibid., 90.

 

22.       Found at the conclusion of ARR, no. 100 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=100&year=arr).

 

23.       Questions and Reform Jewish Answers (QRJA), no. 191; (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=191&year=narr ).

 

24.       The “Pittsburgh Platform” of 1885, paragraphs 4 and 5. A text is available at http://www.ccarnet.org/documentsandpositions/platforms.

 

25.       CCAR Yearbook 3 (1893), 66.

 

26.       Responsa Committee, no. 5759.7, “The Second Festival Day and Reform Judaism” (notes omitted) (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5759).

 

27.       An argument in this vein can be found in our responsum “A Defective ‘Holocaust’ Torah Scroll,” no. 5760.3 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5760).

 

28.       The above paragraph reflects the ways in which the CCAR, through the publications we have cited, has described this particular “transformation in our religious thinking.” Rabbi David Lilienthal, a corresponding member of our Committee, notes that the reaction of survivors of the Shoah may be quite different. His work in Europe with many survivors and children of survivors indicates that some may be inclined to choose cremation for themselves as a sign of solidarity with murdered family members. Other members of our Committee report that they have detected no such tendency among survivors and descendants. In any event, we stress again that we are referring here to general trends and that, when it comes to the perception of the symbolic meaning of particular ritual acts, one community may well differ from another.

 

29.       Justice Oliver Wendell Holmes, Jr., dissenting in the case of Lochner v. New York (198 U.S. 45, 76). He continues: “The decision will depend on a judgment or intuition more subtle than any articulate major premise.”

 

30.       This is not to say that such objections cannot be raised but rather that they do not persuade us that there is a compelling reason to adopt cremation as the standard procedure for the disposal of human remains. Individuals, of course, may be impressed by arguments to this effect, but we as a Committee are not. Although this is not the place for a lengthy discussion of specific issues, we think that the ecological and economic criticisms that are raised from time to time against traditional burial can be addressed in ways that do not entail the choice of cremation. See the article by our colleague Daniel Schiff, “Cremation: Considering Contemporary Concerns,” Journal of Reform Judaism 34:2 (Spring, 1987), 37-48, and see below in the text at note 32.

 

31.       See our responsum no. 5766.1, “When A Parent Instructs A Child Not to Say Kaddish.”

 

32.       See Gates of Mitzvah, 55. We should follow the example of Rabban Gamliel, who instructed that he be buried in simple linen shrouds rather than expensive ones to demonstrate that burial need not impose a crushing financial burden upon the mourners; B. Mo`ed Katan 27b.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5763.4

CCAR RESPONSA

5763.4

Conversion of an Illegal Immigrant

She’elah

A woman came to me for the purposes of conversion and told me that she is in the United States illegally. Am I obligated to treat her like any other potential proselyte (with an open heart) or would it be against our Jewish tradition to work with someone who I knew was here illegally? (Rabbi Michelle Missaghieh, Los Angeles, CA)

Teshuvah

In framing an answer to this question, we draw guidance from two principles of Jewish tradition. The first of these may be summarized by Deuteronomy 10:19: “you shall love the ger, for you were gerim in the land of Egypt.” The second is expressed by the halakhic principle that, in matters of conversion, “the decision is left to the discretion of the court.”[1]

1. It would be a sad irony were we to reject this potential Jew by choice on the grounds that she is an illegal immigrant. The word ger, which we translate as “proselyte,” in Biblical times carried the meaning of “resident alien,”[2] the “stranger” or foreigner who dwelled alongside the Israelite community but was not of the community.[3] The Biblical connotation of the word has never disappeared from the Hebrew language.[4] Thus, when the Torah notes that we were once gerim in a foreign land, it reminds us that we once shared the fate and experience of the individual in question here. As the Torah puts it, we “know the soul of the stranger” (Exodus 23:9); we of all people must not subject her to the sort of oppression and injustice that was once our lot (Leviticus 19:34 and Exodus 22:20). Indeed, the mitzvah to love and to care for the stranger lies at the root of our Reform Jewish commitment to social justice.[5] And a fundamental aspect of this commitment has been our demand that the immigrant–the ger–receive fair and ethical treatment in our society.[6]

For these reasons, one’s status as an illegal immigrant should not in and of itself disqualify him or her from conversion to Judaism. Why would we think otherwise? True, this individual has violated the laws of the United States by residing in the country without the proper legal permit. The government of the United States is entitled to prosecute or deport her, both according to its own law and according to Jewish law: under the principle dina demalkhuta dina, Jewish law accepts the validity of all legislation that pertains to the legitimate rights and powers of the civil government, and it is clear that a state enjoys the right to control its borders and to regulate matters of immigration and citizenship.[7] Yet while a government may set and enforce such laws (provided that it do so in a fair and equitable manner), this enforcement is a matter for the state and not for religious communities. On the contrary, we have always held that dina demalkhuta dina applies only to the area of monetary law (dinei mamonot) and that it has no bearing upon matters of ritual practice (isur veheter).[8] Conversion to Judaism is just such a “ritual” matter, properly the concern of the Jewish people and not of the United States government. Obviously, the rabbi and the congregation will want to consult with an attorney knowledgeable in the area of immigration law in order to determine their legal responsibilities in this case. But from the standpoint of Jewish law and tradition, this woman’s immigration status does not bar her from entering our community. When we look at her, we do not see an “illegal immigrant”; we see a stranger, a reflection of our own history. She has every right to seek to join us and to take refuge “under the wings of the Shekhinah.”[9]

2. At the same time, the decision in any particular case of conversion is left to the discretion of the supervising rabbi. This authority has traditionally exerted a lenient influence upon the law, empowering rabbis to accept proselytes in cases where the circumstances might have argued for rejection.[10] Yet it also allows the rabbi to say “no” when, in his or her considered judgment, an apparently valid request for conversion is hasty, not well thought out, or based upon improper motivations. Conversion, we should remember, is an institution, an aspect of organized community life, and not simply a personal and private religious concern. As we have written before:

Conversion… is not a decision left to the heart and mind of the proselyte but a formal and public matter. One who seeks to convert seeks to join our community as a full and participating “citizen” thereof. It is accordingly for the Jewish community, acting through its acknowledged rabbinical representatives, to determine in each and every case whether an individual who wishes to convert is in fact ready to do so, for reasons that we find persuasive and compelling.[11]

As we have said, the rabbi should not turn this woman away simply because she is an illegal immigrant. On the other hand, it is the rabbi’s task to inquire as to the reasons that motivate an individual to seek conversion,[12] and it is reasonable to presume that this individual’s immigration status is a factor, an aspect of her life story, that must be explored. Indeed, it would be irresponsible for the rabbi not to explore it. Such an inquiry might lead the rabbi to conclude that the status issue functions as an improper or unacceptable influence in the decision to convert; perhaps this person believes that conversion will improve her prospects for remaining in the country. Similarly, the rabbi might find that the individual’s immigration status is an element or a symptom of a deeper issue that, in the rabbi’s opinion, augurs against conversion. The members of this Committee do not and cannot know, of course, whether such possibilities apply in this particular case; if, however, they do apply, then the rabbi may properly decide that “no” or “not yet” is the best response to this request for conversion.

Conclusion

. The fact that one is an illegal immigrant does not constitute valid, objective grounds for denying his or her request to become a Jew. Yet immigration status can be one important factor in the rabbi’s inquiry into a candidate’s readiness to take the fateful step of joining the Jewish people. The decision, in all cases, lies within the rabbi’s discretion. If this individual is accepted for conversion, the rabbi should certainly counsel and assist her in resolving her immigration status as soon as possible. The mitzvah to love the ger implies a duty to help her relieve her distress: we do not want her to remain in violation of the laws of the United States. Whatever the rabbi’s course of action, we trust that it will be undertaken with perception, sensitivity and, as our sho’elet puts it, with an open heart.

NOTES

 

  • Hakol lefi re’ut einei habeit din

; R. Yosef Karo, Beit Yosef to Tur, Yoreh De`ah 268, and R. Shabetai Kohen, Siftei Kohen to Shulchan Arukh, Yoreh De`ah 268, no. 23.

  • The Targum of Onkelos preserves this bivalence. In each of the verses cited above, the ger whom we are required to love or forbidden to oppress is rendered as giyora, “proselyte,” while the word gerim as a description of our status in Egypt is translated as dayarin, “temporary residents.”
  • See Bernard J. Bamberger, Proselytism in the Talmudic Period (New York: Ktav, 1968), 16: “in the Bible the word ger means a foreign resident in Palestine. It is frequently joined by ‘and’ to the word toshab, meaning the same thing, and usually translated ‘sojourner.'” See also his comment to Lev. 19:34 in W. Gunther Plaut, The Torah: A Modern Commentary (New York: Union of American Hebrew Congregations, 1981), 899. On the legal distinctions between the ger and the native-born Israelite (ezrach), see Moshe Weinfeld, Deuteronomy and the Deuteronomic School (London: Oxford U. Press, 1972), 229-232, and Jacob Milgrom, “Religious Conversion and the Revolt Model for the Formation of Israel,” Journal of Biblical Literature 101/2 (1982), 169-176. See also Milgrom’s remarks in The JPS Torah Commentary: Numbers (Philadelphia: The Jewish Publication Society, 1990), Excursus 34, 398-402.
  • See, for example, Rashi to Exodus 22:20: “the word ‘ger’ refers to a person who was not born in that particular community but came from another community to dwell (lagur) there.”
  • In 1997, citing Exodus 22:20 (“You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt”), the Central Conference of American Rabbis called upon the United States Congress not to reduce welfare benefits to immigrant families and to facilitate their acquisition of citizenship. In addition, the resolution urged Reform congregations to undertake efforts to provide vital services to immigrants, including those immigrants who for one reason or another are unable to attain citizenship. See CCAR Yearbook 107 (1998), 65-67 (www.ccarnet.org/cgi-bin/resodisp.pl?file=citizen&year=1997).
  • On the subject of dina demalkhuta dina, see our responsum 5757.1, “Loyalty to One’s Company Versus Love for Israel,” at www.ccarnet.org/cgi-bin/respdisp.pl?file’1&year’5757 .
  • On the conditions for and limitations upon the principle dina demalkhuta dina see ibid. at notes 13-15.
  • See BT Shabbat 31a, the statement of the three proselytes: “Shamai’s strictness would have expelled us, but Hillel’s patience brought us under the wings of God’s presence.”
  • See Tosafot, Yevamot 24b, s.v. lo, referring to the decisions by Hillel (BT Shabbat 31a) and Rabbi Hiya (BT Menachot 44a) to accept proselytes whose motivations to become Jewish were not considered to be religiously sincere. In each case, the rabbi believed that the individual would one day be a good Jew (sofo la`asot leshem shamayim) and was therefore “worth the risk.”
  • CCAR Responsa Committee, no. 5758.7, “Conversion of a Person Suffering From Mental Illness,” www.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5758 . See also our responsum 5760.5, “Conversion When The Spouse Remains A Gentile” (http://www.ccarnet.org/cgi-bin/respdisp.pl?file’5&year’5760), at the conclusion: “A person who wishes to become a Jew should not be rejected merely because his or her spouse will remain a Gentile… On the other hand, the spouse’s decision not to become a Jew may be an indication of serious obstacles to the proselyte’s creation of a Jewish life and of problems in the marriage. The rabbi must be satisfied that these difficulties are not serious before proceeding with giyur.”
  • Shulchan Arukh Yoreh De`ah

268:12: when a prospective ger or giyoret comes before us, we examine him or her to determine whether the motivation for the conversion is religiously sincere and–in our eyes–acceptable.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5766.3

CCAR RESPONSA

5766.3

Hunger Strike: On the Force Feeding of Prisoners

She’elah
What would be the Jewish view of force feeding (strapping somebody to a chair and putting a tube down their nose in as painless a fashion as possible) a mentally stable prisoner who desires to starve himself to death to make a political statement? (Rabbi Joel Schwartzman, Morrison, CO)

Teshuvah

This question arises with respect to the treatment of detainees imprisoned at the U.S. naval base at Guantanamo Bay, Cuba. These detainees were captured during military operations beginning in 2001 against the Al Qaeda terrorist organization and the Taliban government of Afghanistan. During the summer and fall of 2005, they staged a hunger strike to protest their detention and treatment. In February, 2006, various news organizations reported that prison officials were force feeding the detainees, in a manner similar to that described by our sho’el, as a means of breaking the strike. Military officials justified these harsh measures as necessary to save the lives of the hunger strikers. The prisoners themselves have charged that both the restraint and the insertion of the feeding tubes were accomplished through excessive violence.[1]

We compose this responsum in the summer of 2006, a time when the “war on terror” and the invasions of Afghanistan and Iraq are subjects of intense political controversy. We seek, however, to set the politics aside and to view this she’elah, as we do all others, as a Jewish one, involving the interpretation and application of values central to our religious tradition. With respect to this question, those values point us in different and conflicting directions. This is not an easy question for us; the “Jewish view,” as our sho’el puts it, is far from obvious. We will therefore set forth as thoroughly as we can the arguments both for and against force feeding, in the hope that our answer will encompass the valid points raised by both sides and do justice to the genuine complexity of the case.

Arguments In Favor of Force Feeding. Jewish tradition teaches that pikuach nefesh, the preservation of human life, is a mitzvah, a religious duty, and that it transcends and supersedes virtually all others.[2]  The Rabbis derive this from Leviticus 18:5: “You shall keep My statutes and My laws, which a person shall perform and live by them.” They interpret the words “and live by them” to mean: “and not die by them.”[3] Thus, “one is to perform the mitzvot in such a way that one’s life is not subjected to danger.”[4] The supreme value that Judaism places upon the safeguarding of life expresses itself in three related rules. First, we are forbidden to cause physical harm (chavalah) to ourselves[5] or to place ourselves in any unnecessary danger.[6] Second, the practice of medicine is itself a form of pikuach nefesh and therefore supersedes other conflicting religious obligations,[7] even such serious ones as the prohibitions surrounding Shabbat and Yom Kippur.[8] And third, we are forbidden “to stand idly by the blood” of another (Leviticus 19:16): that is, we bear a positive obligation to rescue the lives of those who are in danger.[9]

These teachings raise a sharp critique of the tactics of the hunger strikers. If there is a single, uncontested feature of the “Jewish view” of this question, it is that human life is sacred and that it must be treated with the utmost reverence. Yes, there are times when our tradition would permit and even demand that one die rather than violate a mitzvah, but the circumstances in which this demand applies are strictly limited.[10] In other words, one is not entitled to choose martyrdom in order “to make a political statement.”[11] All of this would lead to the conclusion that the prisoners are forbidden to endanger their lives by engaging in a hunger strike and that the prison officials, who are ultimately responsible for the health and safety of those in their custody, are justified in taking strong action if necessary to bring the strike to an end. That such action may involve force and violence is regrettable, but the blame for this unhappy result lies with the prisoners themselves. By refusing nourishment, it is they who are endangering their lives. The prison officials, by contrast, are simply following the dictates of Jewish law, which enjoins us to fulfill the obligation of pikuach nefesh quickly and diligently: “whosoever delays in the performance of this mitzvah is guilty of bloodshed.”[12]

Arguments Against Force Feeding. On the other hand, a case can be made that Jewish tradition does not warrant the force feeding of prisoners who have undertaken a hunger strike. That case rests upon the following three points.

1. This is a political, not a medical question. Answers are frequently dictated by the way in which we frame the questions. If we define this question primarily as a medical one, we will tend to ask it as follows: “under Jewish law, is a patient entitled to refuse life-sustaining medical treatment?” The answer, clearly, is “no”: under the rule of pikuach nefesh, a patient is morally obligated to accept a remedy that consensus medical opinion regards as refu’ah bedukah or refu’ah vada’it, one that offers a reasonably certain prospect of a successful therapeutic outcome.[13] If hunger is a disease, then food is a “sure remedy” for it. Yet we would note that the prisoners themselves do not see this as a medical question. They have chosen the hunger strike as a tactic to protest against the conditions of their captivity. Their goal is to bring pressure upon their jailors, not necessarily to kill themselves or to cause themselves irreparable physical harm. Indeed, the prison officials at Guantanamo concur in this assessment.[14] If so, then the forceful insertion of nasogastric tubes is arguably a political rather than a medical intervention, designed not to save lives but “to break the hunger strikes because they were having a disruptive effect and causing stress for the medical staff.” If the strike and the attendant force feeding both serve political goals, then the rules and principles that apply to a medical context may not be appropriate here.[15] In this connection, we would note that the prohibition against inflicting physical damage upon oneself, to which we refer above, is limited to cases in which the injury is done “in a contemptible manner” or for no good purpose.[16] Obviously, those who undertake a hunger strike in protest against prison conditions would say that the harm they inflict upon themselves does not fall into that category. We would add that a number of Orthodox rabbis participated in hunger strikes during the 1990s in protest of the Oslo peace accords between Israel and the Palestine Liberation Organization. Although the strikes were controversial, the fact that they took place suggests that they were able to distinguish, on Jewish grounds, between an action designed to endanger one’s life and health (forbidden) and an action intended to “make a political statement” (permitted).[17]

2. Force feeding is widely regarded as torture. This policy is set forth by the World Medical Association (WMA) in its “Declaration of Tokyo” concerning “torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment”:[18]

Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner.

The American Medical Association, a member organization of the WMA, has reaffirmed its endorsement of this clause of the Tokyo policy.[19] In March, 2006, the British medical journal The Lancet published a letter of protest, signed by over 250 distinguished physicians from the United States and Europe, against the force feeding at Guantanamo. The letter, which calls upon the U.S. government “to ensure that detainees are assessed by independent physicians and that techniques such as forcefeeding and restraint chairs are abandoned forthwith in accordance with internationally agreed standards,”[20] has garnered the support of well-known human rights organizations.[21] We take these statements with the utmost seriousness. As Jews, we are heirs to a tradition that commands us to pursue justice (Deuteronomy 16:20) and to a Torah “whose ways are pleasantness” and “whose paths are peace” (Proverbs 3:17).[22] How then can we support a tactic that much of the world’s enlightened medical-ethical opinion has castigated as a form of torture? To do so is arguably to perpetrate a chilul hashem, a profanation of God’s name, an offense we commit whenever we behave in a manner inconsistent with the high standards that the world expects of a people that lives in covenant with God.[23]

Before we reach that conclusion, however, let us consider that the Tokyo Declaration’s opposition to force feeding is based upon two principles that enjoy a dominant – some would say a “canonical”[24] – standing in contemporary secular bioethics. The first of these is patient autonomy, which holds that a medical procedure is ethical to the extent that a competent patient makes his or her own decision regarding that procedure in an autonomous manner, free of coercion. The second is informed consent: the patient agrees to a suggested treatment only when he or she has been supplied with all material information that a reasonable medical layperson would consider significant with regard to that decision.[25] Applied to our case, these principles suggest that when a prisoner makes a rational, informed decision that he does not wish to be fed, we are not permitted to feed him against his expressed will, even though the decision may result in his death.[26] Yet as we have seen, the classical Judaic approach to questions of life and death is founded not upon the affirmation of individual autonomy but upon the commitment to the sanctity of life and the duty to heal. In the traditional Jewish view, the patient has no right to make a decision, however “informed,” for suicide, and the physician, who like every person bears a positive duty to save life, has no right to sit passively and watch the patient die.[27] The Jewish physician can therefore make a powerful argument that, when confronted by a situation such as the one described in our she’elah, his or her ethical responsibility is to save the patient’s life rather than to respect the patient’s autonomy.[28]

We do not believe that the contemporary Western model of bioethics is any more exalted, noble, or humane than the Judaic approach. In saying this, we do not mean to disparage modernity or its contributions to moral thought. We mean rather that as heirs to both the classical Jewish tradition and the culture of modernity, we would not wish to live in a society that rejects either source of ethical value. Thus, while we acknowledge that the modern affirmation of the dignity of the individual human being serves in our world as a bulwark against tyranny and oppression, particularly of the sort rooted in religious extremism, we reject the notion that “modern, progressive, and Western” culture enjoys a monopoly upon moral truth. On the contrary: we believe that contemporary secular civilization can learn a great deal from the Jewish tradition, especially in the realm of bioethics, where the Judaic approach can yield answers that might well be morally superior to those produced by secular thought.[29] As citizens of Western society and participants in its culture, we cannot ignore the fact that the predominant medical-ethical opinion in our society and culture defines the force feeding of patients as an immoral act. But as Jews, we cannot apply the label “torture” to a procedure designed to save the life of prisoners in our custody, even if they seem bound and determined upon suicide.

 

3. Force feeding transgresses against Jewish ethical principles. Yet even if we view this as a medical rather than a political question, the fact that a patient is obligated to accept life-sustaining treatment does not necessarily mean that we may force it upon her against her will. Here it is essential to consider just what force feeding entails. As one Guantanamo detainee has described the procedure:[30]

The head is immobilized by a strap so it can’t be moved, their hands are cuffed to the chair and the legs are shackled. They ask, “Are you going to eat or not?” and if not, they insert the tube. People have been urinating and defecating on themselves in these feedings and vomiting and bleeding. They ask to be allowed to go to the bathroom, but they will not let them go. They have sometimes put diapers on them.

Another charges that “a lieutenant came to his isolation cell and told him that if he did not agree to eat solid food, he would be strapped into the chair and force-fed. After he refused to comply, he said, soldiers picked him up by the throat, threw him to the floor and strapped him to the restraint chair.”[31] The nasogastric tubes, inserted forcibly against the prisoners’ wishes, have been said to cause “unbearable pain.”[32] We have no way, of course, to verify these statements, and we also know that the force feeding has been defended by officials of the U.S. Defense Department as “compassionate” and “humane.”[33] Still, it is possible that these descriptions are accurate, and it is quite plausible that harsh, violent measures would be required to compel nutrients upon a prisoner who is determined to refuse them. And it is questionable whether Jewish tradition obligates us to resort to such violence even when the treatment is necessary to save a patient’s life. R. Moshe Feinstein, for example, has ruled that medical treatment, though compulsory under Jewish law, “must be administered in such a way that it does not frighten the patient. For fear, even though it be irrational, may itself cause him harm or even kill him… It is therefore preferable that the physicians not administer treatment against the patient’s will… and the physicians must consider this matter very carefully.”[34] We would phrase this point somewhat differently: medical treatment can be considered obligatory only when it is medicine, that is, when it partakes of the mitzvah of healing (refu’ah). To the extent that a medical procedure causes significant harm to a patient, it may be said to lose its therapeutic value and therefore its standing as “medicine” that the patient would be obligated to accept.[35] We are, of course, in no position to draw a proper balance in this case between the “harm” caused to the detainee by the violent force feeding and its obvious benefit of saving his life, provided that he was intent upon suicide in the first place. Nonetheless, the concern over the negative effects of these measures must give us pause before we assert that we are morally bound to administer them by force.

In addition, even if force feeding could be said to have no objective and observable “negative effects,” we would still have reason to oppose it. Violence against a patient, even when exercised by medical professionals convinced they are acting in the patient’s best interests, is still violence.[36]  It is the sort of treatment that offends against our most basic conceptions of kevod haberiyot, the essential dignity that all of us, including prisoners, possess as human beings created in the image of God.[37] Force is sometimes necessary in our dealings with others, but it should never be resorted to lightly. And when we do choose that path, we had best make sure that our actions are truly the only available means by which to achieve a vital purpose.

Toward a Conclusion. What is the “Jewish view” of force feeding? As we have indicated, we think that there can be no simple, one-sided answer to this question. We have encountered powerful Judaic arguments both for and against the practice, arguments based upon Jewish legal and moral values that demand our respect and assent. Accordingly, our response acknowledges the wisdom of all these arguments in an effort to arrive at what we think is the most persuasive interpretation of the teachings of our tradition.

We begin from the obvious starting point: pikuach nefesh, the duty to preserve human life and to rescue those in danger, is the overriding Jewish moral concern. In any sort of “Jewish view,” the obligation to save the life of a patient must take precedence over the desire to respect the patient’s autonomously chosen decision to die. This is especially true given that a decision to embark upon a hunger strike must raise concerns as to the patient’s ability to arrive at a truly rational choice based upon “informed consent.”[38]

At the same time, force feeding by its nature is a violent, even brutal tactic that “shocks the conscience”[39] and robs the prisoner of his fundamental human dignity. Although force feeding can under extreme circumstances be justified on medical grounds, we think that prison authorities can abuse it all too easily for non-medical purposes, as a tool for punishment or discipline. When they do so, we fully agree with those who condemn the measure as a form of torture. It is to be avoided in all cases except when it is obviously necessary to save the life of the hunger striker.

How do we draw a proper balance between these conflicting values and concerns? We find helpful guidance, surprisingly perhaps, in the regulations regarding hunger strikes adopted by the U.S. Federal Bureau of Prisons.[40] These provide that a prisoner who embarks on a hunger strike is at first permitted to maintain that action. He is placed under careful medical supervision, and food is brought to his cell three times a day. Prison officials will make efforts to persuade him to abandon the strike, but they will not force him to do so until “a physician determines that the inmate’s life or health will be threatened if treatment is not initiated immediately.” The prisoner may be fed involuntarily only “if the physician is convinced to a reasonable medical certainty that there is an immediate threat to the inmate’s life, or permanent damage to the inmate’s health.”[41] The words “immediate” and “permanent” are crucial here. They declare that the only acceptable grounds for force feeding are medical and that those grounds must be sufficiently urgent to remove virtually all doubt that the feeding is medically necessary. These regulations, if adhered to in the case of the Guantanamo detainees, would prevent the misuse of force feeding for other purposes, such as for maintaining prison discipline or for relieving “stress” upon the prison staff.[42]

One final note. The Bureau’s rules also provide that when nasogastric tubes are inserted by force, “these events should be videotaped.”[43] We cannot overemphasize the importance of this point for our teshuvah. The force feeding of prisoners must be carefully supervised, for only in that way can we hope to prevent excessive violence and other mistreatment. This supervision therefore should be performed by outside observers who do not represent the prison system or the military. Although this might interfere with the secrecy which currently surrounds the activities at the Guantanamo prison camp, we think it is the best way for the U.S. military to demonstrate its commitment to “humane” and “compassionate” treatment of the detainees in the face of severe international criticism. In so doing, they would fulfill the spirit of the Mishnah’s dictum that it is essential to display our innocence in the sight of people as well as in the sight of God.[44] It would also meet the high standard set by the United States Declaration of Independence, which proclaims the American people’s “decent respect to the opinions of mankind.”

NOTES

1.         This description is culled from the following news sources: “Force-Feeding at Guantanamo Is Now Acknowledged”, New York Times, February 22, 2006 (http://www.nytimes.com/2006/02/22/international/middleeast/22gitmo.html?ex=1298264400&en=7ea399aeaba6605e&ei=5090&partner=rssuserland&emc=rss); “Doctors Attack US Over Guantanamo,” British Broadcasting Corporation, March 10, 2006 (http://news.bbc.co.uk/1/hi/world/americas/4790742.stm);  “Guantanamo Force Feeding Tactics Are Called Torture,” Washington Post, March 1, 2006 (http://www.washingtonpost.com/wp-dyn/content/article/2006/02/28/AR2006022801344.html) .

2.         The classical formulation of this rule is the phrase ya`avor ve’al yehareg, “one should transgress the commandment rather than be killed,” in the event that a persecutor demands that a Jew either violate the mitzvah or forfeit his life. See B. Sanhedrin 74a and Avodah Zarah 27b; Yad, Yesodei Hatorah 5:1ff; Shulchan Arukh Yore De`ah 157:1. On the exceptions to this rule see note 10, below.

3.         B. Yoma 85b, Sanhedrin 74a, and Avodah Zarah 27b; Sifra to Lev. 18:5.

4.         Rashi, B. Yoma 85b, s.v. deshmu’el leit leh pirkha.

5.         B. Bava Kama 90b; Yad, Chovel Umazik 5:1. But see below in the text.

6.         Derived from Deuteronomy 4:9. Yad, Rotzeach 11:4; Shulchan Arukh Choshen Mishpat 427:8-10. On this basis, a number of contemporary Orthodox authorities have begun to prohibit smoking. See the discussion in Teshuvot for the Nineties (TFN), no. 5753.23, pp. 331-335 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=23&year=5753) .

7.         M. Yoma 8:5; Nachmanides, Torat Ha’adam, ed. Chavel (Jerusalem: Mosad Harav Kook, 1964), 41-42; Tur and Shulchan Arukh Yore De`ah 336:1.

8.         Thus, a person who rejects the instruction of a competent physician (rofe baki) on the grounds that the instruction involves prohibited labor on Shabbat is “a pious fool (chasid shoteh). This is not an act of piety but of suicide. One is required to do what the physicians prescribe”; R. David ibn Zimra (Egypt, 16th-17th centuries), Resp. Radbaz 1:1139.

9.         B. Sanhredrin 73a: “From where do we learn that one who sees his fellow drowning in the river, attacked by a wild beast, or threatened by robbers is obliged to save him? From the verse ‘do not stand idly by the blood of your fellow.’” Rambam (Yad, Rotzeach 1:14) codifies the rule as follows: “One who is able to save his fellow (from danger) and does not do so has transgressed against the mitzvah of Leviticus 19:16.” See also Shulchan Arukh Choshen Mishpat 426.

10.       See the sources enumerated in note 2, above. Jewish tradition requires martyrdom in three specific cases; to put this differently, there are three mitzvot which one must never violate, even at the cost of one’s life. These are idolatry, the sexual transgressions enumerated in Leviticus 18, and murder. These are formulated in the sources as “exceptions” to the rule of pikuach nefesh established by the interpretation of Leviticus 18:5. Each exception is itself derived by way of midrash (textual interpretation) or sevara (logical inference); see B. Sanhedrin 74a.

11.       See Yad, Yesodei Hatorah 5:4: “If the case is one in which the Torah says ‘transgress the commandment and save your life,’ the one who chooses to die rather than transgress is culpable for his own death”; i.e., he has committed suicide. But see below in the text.

 

12.       Shulchan Arukh Yore De`ah 336:1.

13.       See TFN, no. 5754.14, pp. 337ff (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754), at notes 38-40.

14.       According to Maj. Gen. Jay W. Hood, commander of the prison camp at the Guantanamo naval base, the hunger strikers are not suicidal but are simply protesting their confinement. “In none of these [cases] have I ever gotten the impression that these guys want to die.” See Susan Okie, M.D., “Glimpses of Guantanamo: Medical Ethics and the War on Terror,” New England Journal of Medicine 353:24 (Dec. 15, 2005), 2529-2534.

15.       “Force-Feeding at Guantanamo Is Now Acknowledged”, note 1, above. The quotation is attributed to two “Defense Department officials.” See also “Guantanamo Medics Accused of Abusive Force-feeding,” Boston Globe, Oct. 15, 2005 (http://www.boston.com/news/nation/articles/2005/10/15/guantanamo_medics_accused_of_abusive_force_feeding), quoting Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania: “Medicine is supposed to remain neutral. When you start to become complicit in efforts to break resistance using medical expertise that should be there simply to protect the health of people, you’re headed down the wrong track.”

16.       Yad, Chovel Umazik 5:1: the phrase is derekh nitzayon (or, in some readings, bizayon). See TFN, no. 5752.7, “Cosmetic Surgery” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5752).

17.       See R. Menachem Feliks, “Ve’af `al pi khen: shevitat ra`av,” Techumin 16 (1996/5756), 291-295. Feliks contends that the halakhah permits an individual to undertake a voluntary fast (ta`anit yachid) in order to protest against policies of the Israeli government that, in the individual’s opinion, endanger the Jewish people and state. He would not apply his argument, obviously,  to the Muslim detainees at Guantanamo. From a liberal perspective, though, the notion that one may declare a fast in service to a “higher purpose” is a principle that should not be restricted to Jews.

18.       The World Medical Association Declaration of Tokyo (1975, 2005, and 2006), paragraph 6 (http://www.wma.net/e/policy/c18.htm ).

19.       “AMA Reiterates Opposition to Feeding Individuals Against Their Will,” statement by Duane Cady, M.D. , chair, American Medical Association (http://www.ama-assn.org/ama/pub/category/16086.html ).

20.       David J. Nichol et al., “Forcefeeding and restraint of Guantanamo Bay hunger strikers,” The Lancet 367:9513 (March 11, 2006; http://www.thelancet.com/journals/lancet/article/PIIS0140673606683268/fulltext).

21.       Among these are Physicians for Human Rights   (http://www.phrusa.org/research/torture/news_2006-03-10.html) and Amnesty International (http://www.amnesty.org.uk/news_details.asp?NewsID=16898 ).

22.       Halakhic authorities sometimes cite this verse as a guide for the interpretation of the Torah’s laws according to its ultimate intent. Thus, Maimonides rules (Yad, Chanukah 4:14) that, in the event one has only enough oil either for household illumination or for the Chanukah lamp, one should use it for household illumination, “for the sake of domestic peace” (mishum shalom beito). He adds: “Great is peace, for the entire Torah was given to bring peace to the world, as it is said, “whose ways are pleasantness, etc.”

23.       For sources and discussion on chilul hashem, see our responsum no. 5764.1,  http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5764 , at notes 11-15.

24.       The term is used by R. Hamel, “The Reign of Autonomy: Is The End In Sight?” Second Opinion, January, 1995, 75-79.

25.       These definitions reflect the formulation of American law, represented especially by the leading case Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). The classic formulation is perhaps that of Judge Benjamin N. Cardozo in Schloendorff v. Society of N.Y. Hospital, 105 N.E. 92 (N.Y. 1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” See, in general, Ruth R. Faden, Tom L. Beauchamp, in collaboration with Nancy M.P. King, A History and Theory of Informed Consent (New York : Oxford University Press, 1986).

26.       See the statement from the WMA’s Tokyo Declaration at note 18, above. It is, however, not certain that the Guantanamo detainees are able to make an “informed” decision under the conditions of their incarceration. See Okie, note 14, above, at 2530-2531.

27.       In this, Jewish tradition would dissent from the decision of the British authorities who allowed hunger striking members of the Irish Republican Army to starve themselves to death while in prison in 1981. See Okie, note 14, above, 2530.

28.       For an example of such a powerful argument, see Shimeon Glick, M.D., “Unlimited Human Autonomy: A Cultural Bias?” New England Journal of Medicine 356 (March 27, 1997), 954-956  (http://content.nejm.org/cgi/content/full/336/13/954?ijkey=85e85facc59a79e4f0fc74e07b6ad449df1b0ce5&keytype2=tf_ipsecsha ).

29.       For an example, see our responsum no. 5763.2, “Live Liver Transplantation” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5763 ), section 4 and following.

30.       “Force-Feeding at Guantanamo Is Now Acknowledged,” note 1, above.

31.       Ibid.

32.       “Guantanamo Force Feeding Tactics Are Called Torture,” note 1, above.

33.       “Force-Feeding at Guantanamo is Now Acknowledged” and “Doctors Attack US Over Guantanamo,” note 1, above.

34.       Resp. Igerot Moshe, Choshen Mishpat 2:73, part 5.

35.       For a detailed analysis of this point, see TFN, no. 5754.14. “On the Treatment of the Terminally Ill,” 337-363, at section III (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754 ).

36.       Some of these objections, it might be argued, can be removed simply by sedating the prisoners prior to force feeding. While it is true that, as a matter of degree, sedation would reduce the amount of violence employed in force feeding, it would still in its essence, as a forcible transgression of the patient’s will, constitute an act of violence against him. As such, the Judaic principles cited in this paragraph would continue to apply. Needless to say, moreover, the procedure would still be defined as “torture” under the Tokyo Declaration (note 18, above).

37.       Although it may sound like a lofty ethical principle with little substantive content, kevod haberiyot functions as a real consideration in halakhah. In its general formulation, the rule is that considerations of “human dignity” may be great enough to supersede a conflicting Rabbinic ordinance (B. Berakhot 19b; Yad, Shabbat 26:23 and Kilayim 10:29). In this case, of course, the conflicting ordinance is pikuach nefesh, which originates in the Torah (de’oraita), and one might argue that the saving of life surely overrides considerations of kevod haberiyot. But one leading posek suggests that “dignity” (kavod) may in some cases override pikuach nefesh. See R. Shelomo Kluger (19th-cent. Galicia), Chokhmat Shelomo to Shulchan Arukh Choshen Mishpat 426, no. 1.

38.       See note 26, above, as well as Glick (note 28, above), 955: “One might perhaps see forcing people to undergo lifesaving therapy as an action that does respect their autonomy and for which they may ultimately be grateful; their judgment may be temporarily compromised by irrationality, although they remain within the bounds of legally defined competence.”

39.       This phrase is particularly appropriate here, in that it is the definition of “torture” adopted by the U. S. Supreme Court in a case involving the seizure of evidence from a suspect by means of induced vomiting. The Court held that “(t)he proceedings by which the conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience… They are methods too close to the rack and the screw to permit of constitutional differentiation.” Rochin v. California, 345 U.S. 165 (1952), at 172.

40.       U.S. Department of Justice, Federal Bureau of Prisons, Program Statement, no. P5562.05, July 29, 2005, available at http://bop.gov//policy/progstat/5562_005.pdf .

41.       Program Statement, p. 6.

42.       See above at note 15. The goal of prison population control can be met in other ways. For example, the Statement provides that when a prisoner undertakes a hunger strike, he or she may be isolated in “a medically appropriate locked room” (p. 3). The formal justification for this rule is medical: isolation allows for close monitoring of the prisoner’s physical condition. But it also addresses the concerns surrounding discipline (i.e.,preventing the hunger strike from causing disturbances among the inmate population), thereby avoiding the resort to force feeding as a means of breaking the strike.

43.       Program Statement, p. 7.

44.       M. Shekalim 3:2, based upon Numbers 32:22.

If needed, please consult Abbreviations used in CCAR Responsa.

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