CCAR RESPONSA
American Reform Responsa
78. Euthanasia
(Vol. LX, 1950, pp. 107-120)
QUESTION: At the convention of the Central Conference of American Rabbis, held in Kansas City, Missouri, 1948, the following resolution emanating from the Commission on Justice and Peace, was adopted:
This Conference notes that a committee of two thousand physicians in the State of New York has drafted a bill for presentation to the New York Legislature seeking to legalize the practice of orderly scientific euthanasia. We recommend that a special committee of the Conference be appointed to study this important question in the light of Jewish teaching and to bring in a report at the next meeting. (Yearbook, vol. 58, p. 129)
ANSWER: To carry out the mandate of this resolution, the President of the Conference appointed a committee consisting of the Committee on Responsa and Rabbis Abram V. Goodman and Leon Fram. This committee submits the following report.
Neither in its theoretical nor in its practical aspects does euthanasia present anything new. Among certain primitive peoples, as Westermarck has pointed out, some form of euthanasia has always been prevalent. In ancient Greece, euthanasia was countenanced in some city states, and in Sparta it was rigidly practiced by the state itself. Plato and Aristotle, we know, endorsed it in principle. In the Renaissance period, no less important a person than Sir Thomas More advocated the practice of euthanasia in its voluntary form. He made special provision for it in his Utopia. In modern times, during the brief rule of the Nazis, systematic euthanasia, involving the lives of the “useless” and the incurably ill, was authorized by the head of the State and prosecuted with customary ruthlessness (New Republic, May 5, 1941; Berlin Diary, William L. Shirer, pp. 454-459)
It is a curious but incontrovertible fact that the theory of euthanasia, even in its most restricted construction, has never invaded Jewish thought, though “sufferance is the badge of our tribe.” In the history of our people, from remotest antiquity to days most recent, we come upon pages that tell of men in agony and despair turning to self-destruction for relief. We also read of men in high places counseling their followers, when faced with sure defeat by a cruel enemy, to welcome self-inflicted death rather than to submit to capture and disgrace. But nowhere do we encounter the suggestion that such examples merit praise and emulation.
The Bible, which affirms religious doctrine more often by implication than by direct command, leaves no doubt as to what the religious man’s attitude toward a life of affliction should be. He will accept the lot apportioned to him. He surely will not tamper with the life given him. When Job’s wife, herself prostrate at the sight of her husband’s overwhelming affliction, cried out, “Dost thou still hold fast thine integrity? Blaspheme God, and die,” Job indignantly replied, “Thou speakest as one of the impious women speaketh. What? Shall we receive good at the hand of God, and shall we not receive evil?’ (Job 2:9-10).
Later, in the early Rabbinic period, the same religious temper was evidenced by a famous rabbi who suffered martyrdom for his religious convictions. When Chananiah ben Teradion, a Tannaitic teacher of the second century, was condemned by the Romans to be burned at the stake, his disciples counseled him, as the fires began to flare, to let the consuming flames surge into his frame and thus put a speedy end to his suffering. In reply, the celebrated martyr is reported to have said: “It is best that He Who hath given the soul should also take it away; let no man hasten his own death” (Avoda Zara 18a).
Both of these statements, while seemingly made in casual manner, were by no means the stray utterances of individual teachers; they sprang from a common ethical tradition. They are closely related to a principle of faith that lies at the foundation of Jewish ethics. Human life is more than a biological phenomenon; it is the gracious gift of God; it is the inbreathing of His spirit. Man is more than a minute particle of the great mass known as society; he is the child of God, created in His image. “The spirit of God hath made me,” avers Job in the midst of his suffering, “and the breath of the Almighty gives me life” (Job 33:4). Thus, human life, coming from God, is sacred, and must be nurtured with great care. And man, bearing the divine image, is endowed with unique and hidden worth and must be treated with reverence.
This principle–which is basic to Judaism, and to which we probably owe whatever spiritual progress there has been made through the centuries–finds clear embodiment in the Halacha, in Rabbinic law. The Rabbis were no inflexible legalists; they recognized that not under all circumstances could we condemn unfeelingly the man who chose the way of self-destruction to escape from his hard lot. Yet in formulating the law, they proved uncompromising. The formal rites of mourning, they declared, shall be suspended in the case of one of sound and mature mind who deliberately and of his own volition has laid violent hands on himself; only those rites may be performed the omission of which would give undue offense to the bereaved family (Semachot 2.1-5). Likewise, in the case of one who is in dying condition, the law prohibits anyone else from employing any positive and direct means to hasten his death, no matter from what protracted an ailment he may suffer (Yoreh De-a 339). To abridge in some positive and direct manner the duration of life by a single second is tantamount to the shedding of blood (Shab. 151b).
Yet Rabbinic law sanctions the use of indirect and negative means to facilitate a peaceful death, such as the elimination of noise and the withholding of stimulants (Yoreh De-a 339; Avoda Zara 18a). In the eyes of the law, the causes which may retard the natural process and thus delay the moment of death are artificial, and may therefore be removed. Not so, however, when that which is withheld is a natural physical requirement and essential to sustain life. No nourishment, however little the amount required, may be denied a dying patient whose condition seems hopeless and his pain great, in order to hasten his death (Tel Talpiyot, Letter 42, vol. 30, 1923, Budapest).
Of course, we liberal rabbis have always claimed the right, in the interest of a progressive faith, to modify Rabbinic law and to remove what we regard as an obstacle in the advance of the spirit. And, indeed, we have eliminated many an old restriction which, though meant to safeguard Judaism, proved to obscure its essential nature. But we have never sought to nullify an effective Rabbinic implementation of a vital spiritual principle.
The Jewish ideal of the sanctity of human life and the supreme value of the individual soul would suffer incalculable harm if, contrary to the moral law, men were at liberty to determine the conditions under which they might put an end to their own lives and the lives of other men.
Israel Bettan
This report was received and referred to the Executive Board, by a vote of 109 to 56.
Discussion
Rabbi Solomon B. Freehof: Dr. Bettan’s report is in consonance with the main line of Jewish Halacha. The Halacha is never so absolutely consistent that exceptions or partial exceptions cannot be adduced. There is no question, however, that the distinction which Rabbi Bettan made is essentially correct, namely, that nothing positive must be done to shorten life. It is permitted to refrain from doing something positive to continue life when it seems insupportable. This is based upon the story in the Talmud telling that when Judah the Prince had such a difficult time dying and the Rabbis were gathered to pray for the continuation of his life, his beloved servant threw down some object from the roof to disturb their prayers so that they should not continue to pray to extend his unhappy life. I might quote a very interesting responsum by Rabbi Chaim Pallagi, Rabbi of Smyrna, who lived at the end of the 1700s, which expresses the same principle. A woman was dying of some lingering disease, and her husband and son were trying by every means–including prayers in the synagogue–to keep her alive. She called them to her bedside and said that she was grateful for their efforts, but asked that they please refrain from such prayers because her life was no longer bearable. The rabbi was asked whether this would be permitted, and he answered that to refrain from praying is permitted, but that nothing positive could be done to shorten her life. The law in Shulchan Aruch states that you may not even move a pillow from underneath the head of a dying person in order to hasten his death. Hence the Conference committee is perfectly justified in saying, “You may refrain from doing anything that will prolong a miserable life,” but to do something to terminate life is forbidden by Jewish law.
Rabbi Dudley Weinberg: I merely wish to ask some questions, the answers to which should be included with the responsum. I wonder about the latter part of the passage regarding the death of Rabbi Chananiah ben Teradion.
In that case, the executioner offered to make his death easier and speedier by building up the flames and removing some protective tufts of wool from vital areas of his body. Rabbi Chananiah agreed that if the executioner did these things, he would be admitted to the Olam Haba. After taking these steps, which hastened the death of Rabbi Chananiah, the executioner leaped into the flames and perished. The text then states that a bat kol declared that the executioner had been admitted to the Olam Haba, thereby giving approval to his action.
Is it not also necessary to deal with the passage which states, if memory serves me correctly, that “Hakol modim shehahoreg et haterefa patur”? It seems to me that the passage is relevant to the discussion.
Rabbi Israel Bettan: The passage you refer to is correct. Chananiah would not inhale the fire to hasten his own death, but he allowed the executioner to remove the sponge from his heart. The sponge, keeping him alive, was an artificial means which could be removed, but nothing of a positive nature would he permit. The other reference is not quite relevant. We are not discussing the question as to whether, if a man kills one who is about to die, he should be legally punished. The Talmud decides that the death sentence cannot be imposed upon him, but Maimonides is of the opinion that while no earthly court can impose such a penalty, the man stands condemned in the eyes of God.
Rabbi Jonah B. Wise: The question of euthanasia today is not one that can be discussed on the basis of the opinion of one who lived in Smyrna in the 17th century or of our distinguished Rabbinical predecessors in Talmudic times. The moral question involved has, of course, been discussed by Dr. Bettan, but the world has progressed since that time; conditions have changed. The advances in human knowledge, which I am sure our distinguished Halachists would have recognized, are a very important factor in making a decision. It is entirely possible that had these Rabbis been aware of the circumstances which confront us, they would have changed their attitude. They passed no real legislation; the references are not to cases in which the practice of euthanasia was discussed. We have any number of records in Jewish history of Jews who took their own lives and were not thereby put into the class of those who committed immoral acts. During the Roman Wars, many committed suicide rather than fall into the hands of the Romans. They were not criticized either in the Talmud or in any other subsequent literature. During the Middle Ages, many Jews killed their wives and children rather than have them fall into the hands of the Crusaders. I believe we should very carefully weigh our decision before we act on the paper which has been presented. The paper is of great interest, but the conclusions to which it comes, and the decisions which it asks us to make, are not the kind which the Central Conference of American Rabbis should present to the American public. The time may come when we may decide that euthanasia is undesirable or immoral, but that time is not yet here. Euthanasia is not practiced in the United States; it is not legal in any of our states. The Central Conference of American Rabbis is probably the most liberal body of religious leaders in the world today, and for it to base a decision on the argument brought by Rabbi Bettan would be extremely unfortunate. I therefore hope that the report will be received with thanks, but that it will not in any way be approved as the decision and policy of this progressive body of men.
Rabbi James G. Heller: I sincerely hope that the Central Conference of American Rabbis will not take action today on this subject. Though I think there is no controverting the historical side of the report, I do not believe that the treatment that was accorded to the question as a moral issue in our day measured up to the factual side of the statement in regard to Jewish sources. It is quite obvious to me that a matter upon which there is a deep division of opinion among people who cannot be ranked with Adolph Hitler in regard to euthanasia, must be a question on which there is no set certainty as to where the truth lies. You cannot dispose of the problem of euthanasia by calling attention to the abuses which occurred in Germany. If we were to judge moral questions by the possibility of abuse, there is hardly any type of injunction which would stand. It is not true that society stands upon the principle that human life is completely sacred. As long as there is capital punishment in a state, that is an obvious exception to such a rule. I happen to be opposed to capital punishment; the trouble is that many of the religious bodies which put down as an absolute principle that human life can never be taken also sanction capital punishment. Even in our own tradition, capital punishment is sanctioned in many cases, which obviously constitutes an exception to the general moral rule which Rabbi Bettan enunciated. It is not a question of whether there is a place for suffering. The question is what shall be done with people where medicine is as certain today as it can possibly be that there is no chance for their survival. It is the custom today in the case of people who are dying of some incurable disease to induce unconsciousness with some of the drugs that are available. In effect, those people die long before the actual cessation of life. It seems to me that it would have been wise to submit simultaneously with this report a statement as to the moral status of this problem today, and I hope that we will take no action at the present moment.
Opinion of Dr. Samuel Atlas
The two previous speakers have placed the problem of euthanasia on a purely moral and religious basis, so I would like to point out that apart from the legal aspect there is a philosophical question involved. When we speak of euthanasia, the question actually depends upon our attitude towards life: What is life? Can life be measured from the point of view of suffering and balancing the suffering with pleasure–the suffering of the patient and the suffering of those nearest to the patient against the amount of pleasure they had seeing their dearest one still living? Now, on the basis of a certain philosophy of life, as well as from a Jewish point of view, life cannot be measured in such terms. A Jewish thinker has said that “Life is more than mere living,” the implication being that while the life of species other than man is a merely biological function, human life implies something more. It is the element of creativity which is the distinguishing mark of human life. If a person is ill and about to die, and the idea of repentance arises in that man’s mind, that is worth more than an eternity of static existence. It is sufficient to recall the statement in Pikrei Avot that one hour of repentance is worth more than the whole future life. Why is one hour of repentance worth more than the whole future life? Is it because of the consideration that repentance is an act of creativity, and one hour of creative life is worth more than an eternity of static bliss? Consequently, it is wrong to deprive a hopelessly sick person of the opportunity for repentance which may arise in his mind. No man or doctor can decide that issue. And euthanasia cannot be justified on the basis of such a concept of human life.
As to the Halacha, if I may say a word on that, it has been pointed out that there is a distinction between terefa and goses. According to Jewish law, if one murders a terefa, there is no consequence such as capital punishment which is due to all murderers, but a goses is considered a normal human being with all due consequences. Goses means a person who is dying a natural death; terefa means a person in whose organs there is a deficiency. Here is a place, to my mind, for a change in the Halacha, which would be in the spirit of the Talmudic Halacha, for I am convinced that the Talmudic Halacha is so flexible that it can be made a living force and compatible with modern scientific concepts of medicine. The Halacha in itself demands an adjustment of certain elements in it which are the result of scientifiC conceptions of an older time no longer compatible with modern scientific developments. Only in this way could the Halacha be made existential, and a guide for life. The very meaning of the word Halacha implies a way of life, as it is derived from the Hebrew verb meaning “walking.” Now, according to modern scientific conceptions of medicine, the distinction between terefa and goses has no validity whatsoever. A goses means one who dies a natural death; but what is natural death in medicine today? While the ancients thought that no organic change occurs in the body of a person dying a natural death, modern medicine maintains that the cause of death is always, even in the case of a very old man, the result of some deficiency in some of his organs. Consequently, there is no distinction between goses and terefa.
Maimonides, in the beginning of his Code, in Sefer Hamada, has a section dealing with medicine. You will ask, how does medicine come into a code? The reason is simply this: medicine is closely connected with law. Since there is a commandment in the Torah to preserve life, medicine is a part of that commandment; for in order to preserve life we must know medicine. Maimonides believed that he had reached the pinnacle of the science of medicine; therefore, his medicine is part of Halacha. Our medicine would accordingly be part and parcel of our Halacha. In this respect, we will have to modify the law, but it will be a change in the letter of the Halacha for the sake of preserving its spirit. And Maimonides would subscribe to our medicine which is the result of a higher development of scientific thought. Consequently, the distinction between goses and terefa does not apply to us, and the former will have to be treated in the same manner as the latter. In this respect, there is room for development, and the application of Talmudic-Rabbinic law to our times should be brought up to date in agreement with the latest development of scientific thought, for even Maimonides would agree that our present-day medicine should serve as the basis of the law, and not his medicine, which is out of date. But while we will have to identify terefa and goses, it means only that there is no consequent punishment for an act of murder in both cases; but the law “Lo tirtsach” (“Do not murder”) which prohibits the act of cutting short a life which has in it the potentiality of creativity, obtains with regard to terefa as well as in respect to goses.
With reference to Dr. Freehof’s statement on the law that a person who takes life away from the terefa does not suffer the consequences of capital punishment, but still has to render an account before God, I would suggest the following definition of the legal basis of the law. Taking life away from a terefa is an offense against the commandment, “Thou shalt not kill,” for which, however, there is no consequence of capital punishment, since the murdered person is deficient and not whole. The law of “nefesh tachat nefesh” (“a soul for a soul”) cannot be applied. For there are two aspects governing the case of murder. There is first the principle of “a soul for a soul,” which does not apply in the case of the murdered person being a terefa (and, in our view, also in regard to a goses), and there is no capital punishment involved. Then there is the ethical-religious principle expressed in the commandment “Thou shalt not kill.” This law is valid even in relation to a terefa and goses because of the potential activity of human life, the value of which is absolute, independent of the time element involved, and cannot be measured by the criterion of time.
I should now like to refer briefly to the Biblical story of King Saul and David’s order that the Amalekite be killed for his slaying of Saul, which has a bearing on our problem. Saul had thrown himself upon his sword and he was a dying man when the Amalekite slew him, and yet David ordered capital punishment for this act of an Amalekite. This is contrary to Jewish law as explained above. The solution to this difficulty seems to be this: David’s reaction to the Amalekite’s report of his slaying of King Saul was motivated by political consideration, and he acted in the interest of the State. David had to show indignation at the slaying of Saul, thus dissipating any suspicion of his disloyalty to Saul which might arise in the mind of the people. In order to preserve the unity of the State and his kingship, David had to show loyalty to Saul, as is evident from his remark: “Wast thou not afraid to stretch forth thy hand against the Lord’s anointed?” (II Sam. 1:14). It was thus an act of statesmanship on the part of David; it cannot therefore serve as a basis for the legal consideration of our problem.
As a proof to the correctness of this interpretation of David’s act, I would like to point out another difficulty in the legal aspect of David’s reaction. David meted out capital punishment on the basis of the Amalekite’s confession, saying: “Thy blood is upon thy own head, for thy mouth has testified against thee,” which is contrary to Jewish law, that capital punishment can be meted out only on the basis of testimony of witnesses and not on that of confession (Sanhedrin 9b). Maimonides solves this difficulty by establishing the principle that a king is entitled to accept self-confession as sufficient evidence (Hilchot Sanhedrin 18.6). And just as David was entitled to deviate from the law with regard to confession, so we may conclude that he was entitled to ignore the fact that Saul was a dying man and, according to law, no capital punishment is involved in such a case.
That a king is permitted to deviate from the law does not mean, however, that a king stands above the law and is not subject to it. Only in cases of national emergency is the king entitled to deviate from the law (Maimonides quotes the law of the Mishna [Sanhedrin 2.4] that a king is entitled to break a way through anybody’s property without interference and comments that it refers only to time of war). It may seem at first thought that there is a contradiction involved in Maimonides. As it clearly follows from his exposition of the law in Mishna Sanhedrin, a king is subject to law and bound by it, and yet with reference to David’s acceptance of confession as sufficient testimony, Maimonides declares that a king is entitled to deviate from the law. This apparent difficulty dissolves itself on the basis of our explanation that David acted in the interest of the State. It was a case of national emergency where the king can make his own law and deviate from the established system of positive law. Our exposition of the case of David is thus borne out by Maimonides’ conception of the law.
I should like now to add the following: We do not intend here to present an historically correct interpretation of the case of David. I am well aware that at the time of David the law may have been different, and David did not have to follow the law as it evolved at a much later period. Our intention is merely to present an existentially correct picture of the legal case of David as it has been understood by the existing legal tradition. Jewish law was an existing and living force in Israel and underwent a long process of development, but it always attempted to present new ideas and conceptions as if they had existed previously. Our exposition of the legal aspect of David’s reaction in the light of the legal tradition as developed later is meant merely as an existential interpretation of the living legal tradition and its relation to the case of David.
Thus, in the light of our understanding of Jewish law, an act of euthanasia is to be considered a violation of the commandment “Thou shalt not kill.” Therefore, the Amalekite’s slaying of the dying Saul was an offense against this commandment. For an act of euthanasia, however, there can be no capital punishment. Since the murdered person is deficient and not whole, the principle of “nefesh tachat nefesh” cannot be applied. In the light of modern medicine, so it seems to me, there should be no difference in this respect between terefa and goses, for both have organic deficiencies. David, however, meted out capital punishment for an act of euthanasia on the basis of political considerations and in the interest of the State, just as he deviated from the legal procedure for the sake of preserving the unity of the State.
Rabbi Israel Bettan: The discussion has taken a peculiar turn. The committee was instructed to study the question from the Jewish point of view. The committee has fulfilled its task. I am rather startled to find teachers of religion bemoan the fact that religious idealism comes too high. Idealism has always called for sacrifice and painful struggle. Martyrdom is a most frightful price to pay for a religious ideal, but the martyr was a man who placed a very high valuation on his religious ideals. You and I are not called upon to be martyrs, but as religious teachers, we are committed to the principle that no cost is too high to preserve a religious ideal. All your committee asks you to do is to reaffirm the traditional attitude. We as religious teachers ought to have the courage to say: This is where we have stood for two thousand years and this is where we intend to stand.
If needed, please consult Abbreviations used in CCAR Responsa.