ALLOWING A TERMINAL PATIENT TO DIE

QUESTION:

A terminal patient was dying as the result of a series of strokes. Two physicians, one of whom was the patient’s son, decided with the consent of the family to hasten the end by withdrawing all medication and fluids given intravenously. Is such procedure permitted by Jewish law? (From Rabbi B.M.W.) ANSWER:

THIS IS A complex question and therefore is not quite clear in the law. However, there is enough in the legal literature to permit us to arrive at a conclusion. (See also the preceding responsum.)

First, let us dispose of a secondary question. It is not altogether irrelevant that one of the physicians, a noted surgeon, was the son of the patient. There is a great deal of discussion in Jewish law as to the relationship between a physician and a patient who is his father. There are many responsa which, even nowadays, discuss the question whether a son who is a surgeon may operate on his father. The basis of this legal debate is Exodus 21:15, which states that he who smites his father must be put to death; and the law is that “smiting” is not considered so grave a sin unless it creates a wound. Therefore it is the creating of a wound on the body of one’s father which is considered a grave sin. Hence the Mishnah, Sanhedrin XI: 1, Talmud b. Sanhedrin 84b, discusses whether a son may perform the operation of bloodletting on his father as part of his work as a physician, or make a wound on his body. This is discussed by Maimonides in Yad Hilchot Laws of Mamrim, V:7, and in the Shulchan Aruch, Yoreh Deah 241:3. In the Shulchan Aruch, Caro states the law that a son may not operate on a father, but Isserles says that if there is no one else available for the operation, he may do so. Isserles bases his opinion on the opinion of Maimonides (loc. cit.) . This would be the general con clusion of the law. All this, of course, is incidental to our question.

The real question is: What is the limit to the freedom of action of a physician with regard to a dying patient? By dying patient we do not mean a patient who is in danger of death but yet can be healed. If, for example, a person has a heart attack and can be healed, as many are from one attack or even two, or if a patient has been rescued from drowning and can be saved with resuscitation, but if no resuscitation is given he will die, such dying patients, all of whom have a prospect for recovery, must be given the full resources of medicine in the attempt to save them. One may even risk a remedy that might possibly kill them, provided there is a fair chance that the remedy may save them. Thus the Talmud in Avodah Zarah 27b says clearly that one may risk otherwise forbidden remedies (e.g., from a heathen healer) if this dying patient has a chance to be cured by the remedy. See the full discussion of this permission to risk death if there is a fair chance to cure in Shevut Yaakov III:75 (Jacob Reischer of Metz, d. 1733).

But in this case we are not dealing with a dying patient who has a chance for recovery if given the proper medication. We are dealing with a patient with regard to whom all the physicians present, including his own son, agree that he has no chance for recovery. In other words, he is a terminal patient. What, then, are the limits of freedom of action for a physician with a termi nal patient? Is it the physician’s duty to keep this hopeless patient, who is also in all likelihood suffering great pain, alive a little longer, maybe a day or two? On this question, as to what is the duty of the physician with regard to the terminal patient, Jewish law is quite clear. He is not in duty bound to force him to live a few more days or hours.

This law is based on the famous incident in b. Ketuvoth 104a (cited from the previous responsum). Rabbi Judah the Prince was dying in great suffering. The rabbis insisted on ceaselessly praying so that he might thus be kept alive a little longer. But his servant woman (who is often referred to with honor in the Talmud) threw down an earthen jar from the roof of the house into the midst of the praying rabbis, in order to stop their prayers so that Rabbi Judah might peacefully die. The Spanish scholar Nissim Gerondi (to Nedarim 40a top) says that while it is our duty to pray for a sick person that he may recover, there come times when we should pray for God’s mercy that he should die. So, too, Sefer Chasidim (#315-318, Frankfurt edition) basing its opinion on the statement of Ecclesiastes, “There is a time to live and a time to die,” says as follows: “If a man is dying, we do not pray too hard that his soul return and that he revive from the coma; he can at best live only a few days and in those days will endure great suffering; so ‘there is a time to die.’ ” (See other such references in Reform Responsa, p. 117 ff.) In other words, according to the spirit of Jewish tradition, just as a man has a right to live, so there come times when he has a right to die. Thus there is no duty incumbent upon the physician to force a terminal patient to live a little longer.

But what, under these circumstances, is a physician permitted actually to do? Here again the law is clear. He may do nothing positive to hasten death. The Mishnah in Shabat XXIII, 5, says that we may not close the eyes of a dying patient. The Talmud, Shabat 151b, compares the dying patient to a guttering candle that is about to go out. If a man touches his fingertip to the candle’s flame, it will go out at once. This he must not do. In other words, he must not hasten the death of a dying patient by closing his eyes. The Talmudic discussion is elaborated in the postTalmudic treatise, Semachot, Chapter I, and finally is codified in the Shulchan Aruch, Yoreh Deah 339, where it is clear that no action must be taken to hasten death. You may not remove a pillow from under his head. However (see Isserles, op. cit.) if someone outside is chopping wood and that rhythmic sound focuses the mind of the dying patient and prevents his soul from departing, you may stop the woodchopping so that the patient may relax and die in peace. Or, if there is salt on the patient’s tongue and the tartness of the salt focuses his mind and keeps him from relaxing into death, you may wipe the salt from his tongue and thus allow him to die. The Taz expresses some doubt about the permission to wipe the patient’s tongue, for that would shake and disturb the patient and would be an overt act.

The fullest discussion as to what is a permitted act and a nonpermitted act is found in Shilte Hagiborim (Joshua Boaz) to Moed Katan, third chapter (in Vilna edition, Alfas 16b). He concludes that while you must not do anything to hasten death, you may remove the causes of the delay of death. He bases his discussion upon the Sefer Chasidim (Frankfurt edition, #315) who says, “We may not put salt on his tongue in order to prevent his dying.” And so Isserles in the Shulchan Aruch ( loc cit.) sums up what is permitted and what is not permitted by saying that such things are permitted “which do not involve action at all, but merely remove that which hinders the death.”

All this brings us to a clearer understanding as to the limits of freedom of action of the physician in relation to the hopelessly dying patient. He may not take any overt action to hasten death such as giving him, perhaps, an overdose of an opiate; but he may refrain from doing that which will prevent his dying. Of course, in this case, if he ordered the removal of the intravenous apparatus, there may be some ground for objection if the removal of the apparatus was a rather forcible procedure and shook up the patient. But if, for example, the removal of the apparatus was so gentle as not to disturb him, it would be like the wiping off of the salt on his tongue, which Isserles permits. If he does not even do this, but merely gives the order that the bottle con taining the nutriment be not refilled when it is emptied, then he has committed no sin at all. He is merely, as the law says, preventing that which delays the death.

To sum up: If the patient is a hopelessly dying patient, the physician has no duty to keep him alive a lit-tle longer. He is entitled to die. If the physician attempts actively to hasten the death, that is against the ethics of Jewish law. In the case as described the term used in the question, “to hasten death,” is perhaps not correct, or at least should be modified. The physician is not really hastening the death; he has simply ceased his efforts to delay it. If as is actually the fact in this case, he is merely preventing the delay of death, no sin has been committed by him.