CCAR RESPONSA
Testing for HIV
5750.1
She’elah
I have been informed that the Syrian-Sephardi Rabbinical Association of Brooklyn passed a resolution that they will not officiate at any marriage until they have received documentation attesting to the fact that both parties have undergone testing for the human immunodeficiency virus (HIV). Should Reform rabbis make the same requirement? There seems to be a parallel to the resolution we passed on Tay-Sachs disease. (Rabbi Alexander M. Schindler, UAHC, New York)
Teshuvah
I. HALAKHIC PRECEDENTS
The primary role of someone officiating at a marriage (mesadder kiddushin, usually a rabbi1) is to make sure that a valid marriage is being entered into.
Circumstances may arise under which the rabbi would refuse to officiate. A well-known example is that of an inebriated groom who is unable to enter into a legal obligation. In such an instance the rabbi’s judgment not to proceed with the ceremony is not contested.2 Since there is halakhic precedent for rabbinic refusal under certain circumstances, we must now ask whether the unwillingness of the couple or one of the partners to be tested for HIV would constitute a cogent reason for the rabbi’s unwillingness to officiate.
1. The rule that he/she would likely invoke is that of pikku’ach nefesh, the protection of life. Our tradition is firm in holding that, when pikku’ach nefesh is at stake, all mitzvot may be diregarded save bloodshed, idolatry and sexual transgressions (gilluy arayot).3 One who is too concerned with halakhic propriety when life is endangered is regarded as a shedder of blood.4
The officiating rabbi has also another (though implied) role, namely, to prevent a transgression from being committed. In the case of HIV and the possibility that it will develop into the acquired immune deficiency syndrome (AIDS), a disease for which there is presently no cure, the command that stands in danger of being violated would be “Do not stand idly by the blood of your neighbor.”5 R. Jacob Breisch derives from this Torah proscription a specific instruction to phyicians to inform the healthy party to a prospective marriage that the other partner is afflicted by a dangerous disease.6 In instances of this kind the person carrying it might be considered a rodef (literally “pursuer”7) who, albeit unintentionally, threatens the life of an innocent person.8
Can R. Breisch’s reasoning guide us in the question before us? Would the rabbi, like the doctor, be considered guilty of standing idly by the blood of the couple, should it turn out that indeed one of them is infected with HIV?
We believe that the precedent to which R. Breisch addressed himself is not operative here. The physician has actual knowledge of the presence of a dangerous disease and therefore is required to disclose that fact, while the rabbi has no knowledge of the couple’s personal exposure and knows only that many people in society carry the virus. There is a gulf between knowledge of the actual and fear of the potential.
It is worth noting, however, that the mere potential of a life-threatening situation was dealt with by the Hatam Sofer (Rabbi Moses Schreiber/Sofer) some 150 years ago. There was a severe outbreak of cholera in Europe, and physicians had warned that fasting on Yom Kippur might make people more susceptible to the disease. In view of this medical judgment the rabbi, who was Europe’s leading halakhist, permitted the consumption of food in quantities sufficient to prevent Jews from being overly weakened. Even though the violation of a direct prohibition was at issue, R. Sofer’s permission(hetteir) functioned as a prophylactic, to prevent people from becoming ill.9 But not all authorities agreed, and some urged their congregants to observe the fast if at all possible. Still others promoted the idea of shortening the services.10
As in R. Breisch’s ruling, we feel that the precedent of the Hatam Sofer (if we were to agree with him) is not applicable to our case. For his hetteir was advisory and not compelling. People were free to disregard it.
More recently, this question, with specific reference to AIDS, was addressed by Rabbi Shelomo Dichovsky, a rabbinical court judge in Israel.11 He asserts that, while the community is entitled to issue rulings (takkanot) in order to protect itself from various dangers, he would agree to particular measures for at-risk persons(kevutzot sikkun). He does not suggest that the general population be required to undergo testing.
In sum, we have not found the kind of precedent that would speak unequivocally to the she’elah before us. But before we go further it is well to look at an entirely different aspect, which is the right to privacy.
2. Actually, while it is not proper to speak of “rights” under Jewish law, there are numerous instances when it treats of obligations which in other legal systems might be termed “rights.” Thus, a home owner may take action to protect his household against the prying eyes of neighbors;12 or we may note the Torah’s prohibition of gossip (rekhilut).13 Tradition goes so far as to proclaim that someone who shames another in public has no place in the world to come.14 R. Eliezer Waldenberg has applied the issue of halbanat panim (making someone blanch with embarrassment) to a medical situation and ruled that, while a physician may ordinarily bring medical students to a patient’s bed, this should not be done when it causes halbanat panim.15
Thus, while the right to privacy as such has no direct precedent in Jewish law, its to safeguard the dignity of the individual — clearly has. In the case of AIDS, an illness surrounded by popular superstititons and anxieties, the possibility of having test results revealed (to public bodies or others) poses a definite threat to privacy and arouses fears of unwarranted disclosure and slander.
In sum, for reasons set out above in (1) and (2), halakhic precedents would lead us to view compulsory testing with caution.
II. FURTHER CONSIDERATIONS
What other consideration might then be brought to bear on the issue, and further, what additional guidelines might we obtain from precedents in the literature of the Reform movement?
1. The first that comes to mind is a resolution of the Central Conference of American Rabbis (CCAR) which, in l975, called on its members
…to urge those couples seeking their officiating at marriage ceremonies to undergo screening for Tay-Sachs and other genetic diseases which afflict Jews to a significant degree.16 That resolution, however, is not fully applicable to our case. For one, Tay-Sachs is a disease which afflicts Ashkenazic Jews in significant proportions, while HIV/AIDS have no such specific identification with Jews. Secondly, the rabbis were called upon to urge, but not require, couples to undergo testing. Hence, we cannot take this resolution to guide us in our answer.
2. Various jurisdictions have instituted certain pre-marriage requirements (e.g., Wassermann tests), and rabbis in such states have an obligation to await the issuance of a license before they officiate. In Illinois, beginning January 1, l988, all marriage applicants have been required by law to prove that they have been tested for the presence of HIV antibodies, and that the test results have been communicated to a government health agency as well as to both parties in the proposed marriage. But that law is operative only in Illinois, and since we have been asked whether rabbis should undertake a similar program for their people, we should look at the results of the Illinois statute.
In the year since the law was instituted, only 26 people out of 155,458 marriage license applicants were found to test positive. Either the incidence of HIV is very low in the state or, more likely, the figures are skewed, in that they do not take into account those prospective marriage partners who did not want to be tested and therefore went outside the state for their marriage. Under the circumstances, C. Kelly, a member of the Illiniois Department of Public Health, judged the whole procedure not to be cost- effective.17
In the question before us, the Illinois experience would lead us to conclude,
a. that if we were to require marriage applicants to be tested for HIV, those who believe themselves at risk would search out another rabbi or functionary who does not make such a requirement;
b. that we, as rabbis, have little reason to believe that, were we to require tests, we would be more effective than the state of Illinois. 3. Since the rabbi would request only that tests be taken, not that their results be revealed to him/her,18 the couple’s privacy may not at first sight appear to have been invaded. Yet a closer look at the interplay of private concerns and public policy does give us second thoughts.
In many places the process of HIV testing itself has serious social consequences. For instance, physicians or institutions that do the testing may be obligated to register any positive finding with a government health agency, as is the case in Illinois. In our present climate of gross and unwarranted discrimination even against persons suspected of infection, the very process of testing is laden with the danger of divulging private a danger which is enhanced by the potential accessibility of our electronic storage systems as well as by the still error-prone testing for the there being both “false negative” and “false positive” results. For these reasons many persons who fear that they might have the HIV hesitate to submit themselves to testing.
Despite the fact that California provides the strongest protection for the preservation of confidentiality, an examination of pre-1989 legal cases indicates a serious erosion of medical privacy for HIV infected persons.19 A rabbinic either/or requirement might therefore lead the couple to do something that will indeed expose them to social and psychological injury and make the rabbi an unwitting party thereto.
4. In the presence of HIV/AIDS we are faced with deep “social fears,” and therefore protection of the dignity of the individual must be a paramount concern.20 This is a matter to which the CCAR has addressed itself repeatedly. In 1954 it said:
No free society can long survive if its citizens are encouraged or permitted to inform indiscriminately on one another.21 While that resolution spoke to the concerns of the McCarthy era in the U.S., its message remains valid even when the informing arises from medical reports. In l955 the CCAR further stated:
The pivotal problem which confronts us today remains that of the proper balance between individual freedom and national security. Our Conference has spoken in clear and forthright terms on the subject.22 To be sure, HIV is different from the concern for national security referred to in the resolution, but the whole fabric of protection for the individual is affected when a portion of the citizenry is unduly exposed to state interference. Both in the l950’s and l990’s the individual must remain on guard against the incursion of the collective, and the rabbi should not by his/her actions diminish the protected realm of those who wish to arrange for their marriage.
5. But should we not consider the spread of AIDS a veritable plague which would sweep aside these considerations? To put it differently, does the interest of the community not require us to override our obligations to the couple and their right to privacy?
While, with regards to the spread of AIDS, the term epidemic is frequently used, it does not describe an illness against which the population cannot protect itself adequately. Rather, there are high- risk groups which are indeed gravely exposed and require urgent attention, but the majority of the population continues to experience low-prevalence exposure.23
6. We frequently deal with couples who are already living together and are now contemplating marriage because they wish to have children. Our responsibility should therefore be to help safeguard the health of such future offspring, and we should warn the couple that, since HIV is transmissable in utero, testing prior to marriage is highly advisable.
7. The question may also be asked whether Reform rabbis, who do not function in a judicial capacity, would go beyond their duties when they decide that the particular couple is not fit to be married. This kind of judgment is in any case highly problematic and should not be exercised unless very particular circumstances obtain.
8. Finally, we should also note the special characteristics of Syrian-Sephardi communities, such as the one referred to in the she’elah. They are tightly knit, family-like groups with strong internal controls, which observe, for instance, a stringent ban against conversions for the sake of marriage.24 We lack that kind of disciplinary control, even if we were to contemplate exercising it.
III. CONCLUSION
While halakhic precedents are inconclusive or cautionary regarding a rabbinic requirement to undergo pre-marital testing, other considerations would lead us to counsel against such procedure.
Though we have every regard for the seriousness of AIDS and are committed to extending our compassionate care to those afflicted by it, we cannot state that its spread is of pandemic proportions, nor do the results of compulsory testing in Illinois convince us that rabbinic action would be successful and wise.
Advising couples about testing is one thing and is encouraged; requiring them to undergo it is not, at least at this time. Should conditions change we would be open to reconsider our position.
(Editors’ note: The above responsum was written in the winter of 5750/1989-90, and the best data then available led us to our conclusion. Since then, the disease has taken on epidemic dimensions in certain parts of Africa, while in North America and other Western nations it remains confined to high-risk portions of the population. A review of up-to-date literature led Prof. Joseph Adelson of he University of Michigan to state in 1995 that AIDS will not touch most heterosexuals.25)
Notes
The emergence of the rabbi as the primary mesadder kiddushin has been set forth in a teshuvah written by R. Solomon B. Freehof and issued for the CCAR Responsa Committee; see CCAR Yearbook, LXV (1955), pp.85-88. Peri Megadim, Orach Hayyim 573, Mishbetzet Hazahav, n. 11 (refusal because of inebriation); Resp. Minchat Yitzhak, I 10 (refusal to officiate for an apostate); Resp. HaRambam, Blau, n. 347 (refusal until groom, who is not known in the community, proves he is unmarried or divorces his present wife). We might here also mention Mishnah Ketubot 7:10, which states that men with certain skin diseases are compelled to divorce their wives. The Mishnah speks of shehin, which is variously understood as a skin disease in general, or leprosy, or boils. It is also identified as the holi tsarfati, or syphilis; see Be’er Hetev to Sh.A., Even Ha-Ezer 154. The mishnaic obligation to divorce would appear to apply to a man having AIDS and thereby give the rabbi (who knows at the time of marriage of the presence of the disease) reason to refuse officiating. B.T., Yoma 85b; Sanhedrin 74a; Rambam, Yad , Yesodey HaTorah 5; S.A., Yoreh De’ah 157. Sh. A., Orach Hayyim 328:2. Leviticus 19:16. Helkat Ya’akov, 3:136, on the basis of his reading of Rambam’s Hilkhot rotze’ach 1:14. The Halakhah has made this term a legal concept , and someone so designated may be killed before he/she can kill. (In 1995 the designation by some rabbis of Yitzhak Rabin as a rodef became the subject of widespread controversy after the Prime Minister was assassinated. It was believed that this designation moved the killer to commit the deed (ed. note). See Bi’ur HaGera on Shulhan Arukh, Hoshen Mishpat 425, n. 11. Resp. Hatam Sofer 6, n.23. See Matteh Efrayim, ch. 618, Elef Ha-Magen. Asya (published by the Falk Schlesinger Institute at the Shaare Zedek Medical Center in Jerusalem), January 1989, pp. 28-32. Hezek re’iyah is treated in Mishnah, Baba Batra 3:7; Rambam, Yad, Hilkhot Shekhenim 5; Sh.A., Hoshen Mishpat 154. Lev. 19:16; the Rambam lists three types in an ascending order of severity, the worst offense being the spreading of news which, though true, is damaging to someone else’s reputation (Yad, Hilkhot De’ot 7:2). B.T., Baba Metsi’a 59a; Rambam, Yad, De’ot 6:8. Resp. Tsits Eliezer, vol.13, n. 81, sec. 2). CCAR Yearbook LXXXV (1975) 79. Fifth International Conference on AIDS, Abstracts, Montreal, June l989, p.68. We have not been asked what consequences might ensue for the rabbi should a positive test result come to his/her attention. This would raise additional halakhic as well as general legal questions. A responsum on aspects of this issue was published by Walter Jacob, Contemporary American Reform Responsa, n. 5, “Confidential Information.” Abstracts, see above, note 16, p.945; report by Clint Hockenberry, AIDS Legal Referral Panel, San Francisco. Ibid., p.967; lecture by C. Aredondo, Spanish Ministry of Health. CCAR Yearbook, LXIV (1954), p.54. Ibid., LXV (1955), p.65. Ida Onorato, Centers for Disease Control Atlanta, Abstracts, op. cit., p.78. See further Population Reports, published by the Population Information Program of Johns Hopkins University, Series L (Sept. 1989), especially p.4. The report covers North America as well as other areas. A survey of HIV prevalence on university campuses in the U.S. produced a rate of 0.2% (Helene Gayle, Centers for Disease Control; Abstracts, op. cit., p.79). Even among homosexuals and bisexuals reported AIDS cases are leveling in selected metropolitan areas, including New York, Los Angeles and San Francisco (Ruth Berkelman, Centers for Disease Control, ibid., p.66). AIDS researcher Dr. Catherine Hankins reported that in Montreal about one in every 400 women giving birth is HIV infected. “The rates are higher than we predicted and they reflect the increasing role that heterosexual transmission of HIV is playing in Quebec” (Globe and Mail, Toronto, Nov. 17, l989). The infection rate quoted, though higher than that reported in San Francisco, is still only 0.25%, which can hardly be termed epidemic. See also the latest report of the (U.S.) Federal Centers for Disease Control, reported in The New York Times, January 4, 1990. See Moshe Zemer, “The Rabbinic Ban on Conversions in Argentina,” Judaism, Winter 1988, pp. 84-96. Commentary, July 1995, pp. 26-30. He bases himself primarily on E. O. Laumann a.o., The Soscial Organization of Sexuality: Sexual Practices in the United States, University of Chicago Press, 1994.
If needed, please consult Abbreviations used in CCAR Responsa.