CCAR RESPONSA

American Reform Responsa

76. Relieving Pain of a Dying Patient

(Vol. LXXXV, 1975, pp. 83-85)

QUESTION: A dying patient is suffering great pain. There are medicines available which will relieve his agony. However, the physician says that the pain-relieving medicine might react on the weakened respiratory system of the patient and bring death sooner. May, then, such medicine be used for the alleviation of the patient's agony? Would it make a difference to our conclusion if the patient himself gave permission for the use of this painkilling medicine? (Rabbi Sidney H. Brooks, Omaha, Nebraska)

ANSWER: Let us discuss the second question first, namely, what difference would it make if the patient himself gives permission for the use of this medicine, though he knows it may hasten his death? There have been some discussions in the law in recent years of the difference it would make if a dying patient gave certain permissions with regard to the handling of his body after death. For example, he might ask for certain parts of the usual funeral ritual to be omitted; and some authorities say that he may permit autopsy. If I remember rightly, this permission was given by the late Rabbi Hillel Posek of Tel Aviv. But all these statements, giving the dying man the right to make such requests, deal with what should be done with his body after death, but not with any permission that he may give for hastening his death. After all, for a man to ask that his life be ended sooner is the equivalent of his committing suicide (or asking someone else to shorten his life for him). Suicide is definitely forbidden by Jewish law.

However, we are dealing with a person who is in great physical agony. That fact makes an important difference. A person under great stress is no longer considered in Jewish law to be a free agent. He is, as the phrase has it, Anus, "under stress or compulsion." Such a person is forgiven the act of suicide, and the usual funeral rites--which generally are forbidden in the case of suicide--are permitted to the man whose suicide is under great stress. The classic example for this permissibility is King Saul on Mount Gilboa. His death (falling on his sword) and the forgiveness granted him gave rise to the classic phrase, in this case, "Anus keSha-ul." Thus, in many cases in the legal literature the person committing suicide was forgiven and given full religious rites after death, if in his last days he was under great stress. (See the various references given in Recent Reform Responsa, pages 114ff, especially the example of the boys and girls being taken captive to Rome who committed suicide [B. Gittin 57b]; the responsum of Jacob Weil, 114; and that of Mordecai Benet, Parashat Mordechai, Yoreh De-a 25; and the other responsa given in Recent Reform Responsa.)

However, a caution must be observed here. The law does not mean that a person may ask for death if he is in agony, but it means that if in his agony he does so, it is pardonable. In other words, here we must apply the well-known principle in Jewish law, the distinction between Lechatechila, "doing an action to begin with," and Bedi-avad, "after the action is done." Thus, we do not say that Lechatechila it is permissible for a man to ask for death, but Bedi-avad, if under great stress he has done so, it is forgivable.

So far we have discussed the situation from the point of view of the action of the patient. Now we must consider the question from the point of view of the physician. Is a physician justified in administering a pain reliever to a dying patient in agony when the physician knows beforehand that the medicine will tend to weaken his heart and perhaps hasten his death?

Jewish traditional law absolutely forbids hastening the death of a dying patient. It requires meticulous care in the environs of the dying patient, not to do anything that might hasten his death. All these laws are codified in the Shulchan Aruch, Yoreh De-a 339. See the full discussion in Modern Reform Responsa, pp. 197ff. If, therefore, this were definitely a lethal medicine, the direct effect of which would be to put an end to the patient's life, the use of such medicine would be absolutely forbidden. But this medicine is neither immediately, nor intentionally, directly lethal; its prime purpose and main effect is the alleviation of pain. The harmful effect on the heart of the patient is only incidental to its purpose and is only a possible secondary reaction. The question, therefore, amounts to this: May we take that amount of risk to the patient's life in order to relieve the great agony which he is now suffering?

Interestingly enough, there is very little discussion in the classic legal literature, beginning with the Talmud, about the relief of pain. Most of the discussion deals with the theological question of why pain is sent to us and how we are to endure it and with our attitude to God because of it. As for the paucity of reference on the relief of pain--that can be understood because, after all, in those days they had very little knowledge of opiates or narcotics. However, the Talmud does mention one pain-killing medicine which could be used in the ceremony of piercing the ear of a slave (Kiddushin 21b). This is the basis of all modern legal discussion as to whether anesthetic may be used in circumcision (see Current Reform Responsa, pp. 102ff). It should be noted in that responsum that most of the scholars agree on the permissibility of the relief of pain, at least in that ceremony.

But in the case which we are discussing, it is more than a question of relieving pain of a wound or an operation. It is a question of relieving pain at the risk of shortening life. Now, granted that it is forbidden to take any steps that will definitely shorten the life of the patient (as mentioned heretofore)--may it not be permitted in the case of a dying patient to take some risk with his remaining hours or days, if the risk is taken for his benefit?

This question may be answered in the affirmative. The law in this regard is based upon the Talmud (Avoda Zara 27a-b). There the question is whether we may make use of a Gentile physician (in that case, an idolater). What is involved is the enmity on the part of an idolater toward the Israelite, and the fact that the physician may--out of enmity--do harm to the patient. It makes a difference in the law whether the man is an amateur or a professional. The latter may generally always be employed. Also it makes a difference as to the present state of the patient's health, as follows: If the patient is dying anyhow, more risks may be taken for the chance of his possible benefit. The phrase used for these last dying hours is chayei sha-a, and the general statement of the law is that we may risk these fragile closing hours and take a chance on a medicine that may benefit the patient (cf. Shulchan Aruch, Yoreh De-a 154). See Modern Reform Responsa, p. 199, and especially the classic responsum on this subject by Jacob Reischer of Metz, Shevut Ya-akov III, 75. In other words, this is the case of a dying patient, and the law permits us in such a case to risk the chayei sha-a for his potential benefit.

However, this does not quite solve the problem. The law permits risking these last hours on the chance of curing the patient. But may we conclude from that permission also the right to risk those last hours, not with the hope of curing the patient, but for the purpose of relieving him of pain? Interestingly enough, there is a precedent in Talmudic literature precisely on this question (see the references in Modern Reform Responsa, 197ff). The incident referred to is in Ketubot 104a. Rabbi Judah the Prince was dying in great agony. The Rabbis surrounded his house in concerted prayer for his healing. But Rabbi Judah's servant (who is honored and praised in the Talmud) knew better than the Rabbis how much agony the rabbi was suffering. She therefore disrupted their prayers in order that he might die and his agony end.

In other words, we may take definite action to relieve pain, even if it is of some risk to the chayei sha-a, the last hours. In fact, it is possible to reason as follows: It is true that the medicine to relieve his pain may weaken his heart, but does not the great pain itself weaken his heart? And: May it not be that relieving the pain may strengthen him more than the medicine might weaken him? At all events, it is a matter of judgment, and in general we may say that in order to relieve his pain, we may incur some risk as to his final hours.

Solomon B. Freehof

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