Medicine, Halacha and Law: The Values of a Jewish and Democratic State
Medicine, Halacha, and Law
The Values of a Jewish and Democratic State
Prof. Menachem Elon*
The present volume is the first in the series of ASSIA-Jewish Medical Ethics books. [C1] The contents, divisions, and indices of the book are enumerated and described in the foreword by Dr. Mordechai Halperin, who toiled diligently in editing the book together with the assistant editor, Mrs. Leora Moshe. It is my pleasure to express my gratitude to them and to all those who assisted them.
The Schlesinger Institute also extends its thanks to those who have provided financial support for the publication of this series. A special donation was received from Mrs. Martha Samson on the occasion of her ninety-first birthday and in memory of her husband, Erwin I. Samson, Esq., who was a devoted friend of ASSIA.
We also remember the late Chaim Kahn, Esq., who worked devotedly on behalf of the public, who founded and headed the Schlesinger Institute, bringing honor and success to its endeavors. May his memory be blessed!
I. Medicine and Halacha – A National Dialogue on the Values of the State
II. Judicial Decision – A Value Determination
III. The Shefer Case – Euthanasia
2) Basic Law: Human Dignity and Freedom
3) The Values of a Jewish and Democratic State
4) A Jewish State
5) Fundamental Problems
6) Synthesis Between the Vales of a Jewish and a Democratic State
7) The Sanctity of Life
8) Parents and Children
IV. Kidney Donation from a Retarded Son
1) The Facts
2) “You Shall Not Stand Upon Your Brother’s Blood: The Obligation to Save Human Life – Definitions
3) Parents and Children
V. The Lubetsky Case – Terminating Feeding
1) Ruling of the District Court
2) The Appeal to the Supreme Court
3) Deliberate Starvation – Forbidden
4) Parents and Children
I. Medicine and Halacha – A National Dialogue on the Values of the State
I would like to begin by mentioning a valuable aspect of the study and writing concerning the many and various topics included within the ambit of medical halacha – namely, the public discussion and education towards the value of the State of Israel as a Jewish and democratic state, which is an important aspect of the world of medicine and halacha.
The issues involved in medicine and halacha are core subjects, discussed and debated in every society today. Their analysis and resolution encompass many issues, related to law and values, justice and ethics, philosophy and way of life. This is true of every society which examines its path and strives to shape its own identity.
The subjects involved in medical halacha are a living, vital element in Jewish law and in the life of the Jewish people – “living” and “vital” in the most literal sense, pertaining to the content of life and its very being. The worlds of halacha and of medicine are interconnected with one another. For generations many of the greatest great rabbis, poskim (decisors), and Jewish thinkers have been physicians by profession.
Moreover, the questions, principles, and proposed solutions in the fields of medicine and healing touch upon the life of every single person. Hence, the discussion and debate concerning them and the questions involved in their application and their resolution are the concern of the public at large. This being so, a good part of the subjects of medicine and therapy, the difficulties inherent in them and the solutions proposed, are not merely a matter for theoretical discussion, restricted to the world of experts and professionals. These matters are the concern of the entire society, collectively and individually. It follows as well that analysis of these matters is greatly influenced by various commonly held world-views, which influence the thinking of everyone in society, both collectively and individually.
As a result, analysis of medical practice and therapy, of what is permitted and prohibited, of the just and the enigmatic, as well as the pursuit of solutions which are proper and correct according to both halachic and human criteria – all these are highly influential in educating the public and forming the attitudes of the individual. These are issues of immediate relevance, with which our society is constantly concerned, studying them and analyzing them.
It is therefore proper that these matters be published, not only for professionals, but for the general interested public as well, as this material is of the utmost importance for anyone seeking an understanding of the ways of the Creator, the greatness of His Torah, and the depths of faith, and who wishes to understand the meaning of Torah, of faith, and of Judaism.
II. Judicial Decision – A Value Determination
I would like to mention here, as briefly as possible within the framework of an introduction to a volume containing such rich and abundant material, certain matters involving medicine and physicians which have arisen during my judicial career.
It ought to be clear that any concrete issue in the area of law and medicine that reaches the courts and therefore requires a judicial decision of necessity requires establishing a position regarding morals and values. Most of those questions of law and medicine which come before the court do not involve monetary obligations or financial rights, nor do they touch upon rights of ownership or criminal liability as established in any code of law. Rather, such cases are concerned with establishing a right which is fundamentally rooted in value judgments, or value judgments which have been infused with legal definition. This is particularly true of those cases in which the judicial decision involves not only law and medicine, but also involves the particular field of the family unit, the relationship between parent and child, and the relationship between spouses.
Let us briefly examine a number of illustrative examples.
III. The Shefer Case – Euthanasia
Yael Shefer was born on February 26, 1986 to Telila and Yair Shefer, members of Kibbutz Merom HaGolan. The family has another daughter who is older than Yael. When the latter was about one year old and her health was deteriorating, Yael was diagnosed as having a fatal genetic disease known as Tay-Sachs. Her condition deteriorated further, and on November 28, 1987, she was admitted to the Ziv Government Hospital in Safed. On August 3, 1988 a petition was submitted to the Tel-Aviv-Yaffo District court in Yael’s name, via her mother as natural guardian, to issue a declaration that, when and if Yael’s health condition should worsen due to developing pneumonia or any other illness for which she (Yael) will need help breathing and/or the intravenous administering of medications, or in any other fashion – with the exception of pain-killers to relieve her of her pain – she may refuse to accept the above-mentioned treatments, which shall not be administered against her will.
The District Court, the Hon. Judge Matza presiding, denied the request on 8 August 1988, leading to an appeal to the Supreme Court, which was in turn denied. When Yael was about three years old she died from her disease. The following are the opening remarks of my decision:
The subject at hand is a very difficult one, one that touches upon the depths of human values and ethics and the heights of philosophical thinking of generations past and present. The issue touches upon the cultural and spiritual foundations of our society. For these reasons we have delayed giving our opinion in this case, so as to fully examine the nature and substance of these values, following the precept: “Be deliberate when sitting in judgement” (Ethics of the Fathers 1.4).
“Against your will you are created, and against your will you are born; against your will you live and against your will you pass on” (ibid. 4.22) – thus teachings of our Sages. It is hard to imagine any questioning of the first two – conception and birth. We deal here with the latter two, which relate to the substance of the issue to be determined.
“Against our will” we sit in judgment of the case before us. The angel of justice stands over us and commands: Decide! Even in controversies such as these, a judge must adjudicate so that the patient may know his rights and be aware of his duty to make a request or to take action; so that the doctor may know what he may or may not do, what are his professional responsibilities; and so that all those involved in caring for the sick may understand their rights and obligations.
“Against our will” we adjudicate all this, for we are not at all certain that we have sufficiently mastered these funda- mental issues and that we have all the necessary information and knowledge to decide. Concerning this, too, we shall have something to say in our judgment and shall voice our opinion.
Notwithstanding all this, we are not free from fulfilling our judicial duty and we must probe, weigh and state our opinion.
2) Basic Law: Human Dignity and Freedom
Let us now turn to some of my comments in the beginning of the analysis of this difficult case
As we begin to probe this vast, complex and value laden area in accordance with the laws of the State of Israel, we must first and foremost turn to Basic Law: Human Dignity and Freedom, which serves as the guide for the fundamental values involved. Numerous provisions of this Basic Law apply to our case. Thus, Section 2, “Preservation of Life, Body and Dignity,” states:
“The life, body, and dignity of any person shall not be violated.”
Paragraph 4 of the same law, entitled “Defending the Life, Body and Dignity of a Person,” states:
“Every person is entitled to the protection of his life, body and dignity.”
Our issue involves the life, body and dignity of a person, all of which we are commanded to protect and preserve. To define these three basic values, even if each stands alone, requires much analysis and interpretation. While the supreme values of human life and bodily integrity seem straightforward and simple, this is not the case regarding that of human dignity. What is human dignity? It goes without saying that this concept, in terms of the scope of its application, includes many different areas and issues. Thus, human dignity applies not only during a person’s life, but also after his death. Thus, we determined in the Kastenbaum case that this fundamental value includes the dignity of the deceased, the dignity of the deceased’s family, and even the dignity of the public.
The contents and essence of the concept of human dignity are far more complex. We stated elsewhere concerning this issue:
Human dignity means not to disgrace or embarrass the divine image in man. Consider the matter well. Not every infringement of honor is included in the Basic Law: Human Dignity and Freedom. For example, insulting a respected person, who by dint of his stature ought to be seated with others of the same rank rather than among the ordinary people, might be regarded as a social insult (if it indeed is!), but is insufficient to cause a disgrace or embarrassment of his divine image, and such “offense” is in no way included within the framework of Basic Law: Human Dignity and Freedom.”
Yet we have still not exhausted even a fraction of what the concept of “human dignity” means, something which will be done from case to case as time dictates. We will return to this issue later. But already at this point I would like to make a certain comment in principle.
My colleague Justice Barak recently stated that “the content of ‘human dignity’ will be determined according to the outlook of the enlightened public in Israel based on the background of the purpose of the Basic Law: Human Dignity and Freedom.” With all due respect, I find these words unacceptable. I am puzzled as to how and from whence “the enlightened public in Israel” entered into the above-mentioned Basic Law so as to define the rights enumerated therein. Who is included in this public and who is not? What is the nature of this “enlightenment” and what is its significance? The idea of a public or person who is “enlightened” is a vague notion which in and of itself is virtually meaningless. The term was used during the Enlightenment era as a description of the “civilized man, who sees the light of knowledge and intellect, namely a civilized person – civilized, enlightened, aufgeklärt,” or as a person who is a “thinking person, enlightened, cultured.” But no one knows what quality, essence or measure of light, enlightenment or culture is required to merit the title of a “civilized” or “enlightened” person or a public.
Moreover, let us take note of a statement made by a leading thinker of an earlier generation regarding “education in the spirit of one of the enlightened nations in Europe.” Were this thinker from the days of the Jewish national renascence to return to life he would learn of the atrocious deeds of one of these so-called enlightened nations carried out by the light of day in the mid-twentieth century, during the days of destruction and Holocaust during World War II. The phrase “enlightened” and the like, used to define a person or public, has appeared from time to time in our previous decisions, albeit only rarely, and then too its usage has provoked much discussion and argument in the Court’s decisions and by thinkers and legal scholars.
In any case, given that Basic Law: Human Dignity and Freedom has entered our legal system, it is no longer necessary nor is it proper to introduce an element or definition such as “the outlook of the enlightened public in Israel.” It is not proper because the Basic Law refers to values whose interpretation reflects varied outlooks and basic approaches, and a term as ambiguous as “enlightened” can only add a profound uncertainty to the already difficult task of interpretation. Nor is it necessary, because the Basic Law includes within itself a binding directive regarding its purpose, and hence its interpretation – namely: its anchoring in the values of a Jewish and democratic state. It is this, and not the views of the “enlightened” individual or the “enlightened” public, which determines the breadth, content and essence of the supreme value of “human dignity.” The breadth, content and essence of this supreme value – as is the case of all the values, provisions and guidelines found in the Basic Law: Human Dignity and Freedom – must be determined and interpreted according to what is stated therein: namely, the values of a Jewish and democratic state. This may be accomplished by means of an analysis of these values, their exploration and a synthesis among them.
Nor do the terms “life,” “body,” and “dignity of man” encompass all of the supreme values contained in Basic Law: Human Dignity and Freedom. Section 5 of the Basic Law lists the fundamental right of personal liberty, while Section 7 of the Basic Law, entitled “Individual Privacy and Intimacy,” provides in its first two sub-sections that:
“(a) Each person is entitled to the privacy and intimacy of his life.”
“(b) A person’s domain may not be invaded without his consent.”
It goes without saying that these basic rights of personal liberty, privacy and intimacy, and the prohibition of entering into the personal domain of an individual are also fundamental and respected values, which are the subject of our case.
Moreover, a unique and singular question arises in respect to the issue at hand regarding the implementation of the supreme values protected by Basic Law: Human Dignity and Freedom. As a rule, the basic rights enumerated there complement one another. The protection of a person’s life and body, dignity and privacy, and his personal liberty and intimacy do not contradict each other, but are complementary. This is not so in our case. A fundamental problem that arises is that the protection of this individual’s life seemingly does not go hand in hand with the protection of her human dignity, personal liberty, privacy and intimacy.
In our case, the obligation to protect the life of the patient is opposed – such is the argument presented to us – to protecting the dignity of the patient, who wishes to die and who refuses to accept the medical treatment whose purpose is to preserve her life. Hence, it is in opposition to the personal liberty of the patient and her personal autonomy. With this, we reach the heart of the matter before us: Is there really a contradiction between a person’s fundamental right to life and its companion, human dignity? And if there is, indeed, a contradiction between certain basic rights and others, which among the rights is to be preferred over the other, and which one must we protect and preserve? In other words, as is common and accepted in our legal system: How and according to what standard shall the balance between them be struck?
3) The Values of a Jewish and Democratic State
The proper solution for resolving a clash between the fundamental values in the Basic Law is to resort to the balancing principle, found in section 8 of the Basic Law: Human Dignity and Freedom, which states:
“The rights enumerated in this Basic Law shall not be infringed except by a statute that exemplifies the values of the State of Israel, is directed towards a worthy purpose, and then only to an extent that does not exceed what is necessary.”
A necessary condition for infringing the basic rights of human dignity and freedom is, therefore, that such infringement be consistent with the values of the State of Israel. As mentioned earlier, the nature of these values is determined by the first section of the above mentioned Basic Law, that section which states that the purpose of the law is to foster the values of the State of Israel as a Jewish and democratic state. In considering this bi-valent goal, one must also interpret the two other conditions mentioned in allowing an infringement, i.e., that it be “directed towards a worthy purpose,” and that it “not exceed what is necessary.”
It is true that section 8 addresses a situation where a different statute contains provisions that infringe on the fundamental rights mentioned in Basic Law: Human Dignity and Freedom, and does not mention the case where there is a clash between two fundamental rights within the Basic Law itself, as in the case before us. Yet there is no reason nor logic not to apply the standard set out by the legislator in Basic Law: Human Dignity and Freedom for situations of conflict with a different statute, to one in which the clash is between two basic rights within the Basic Law itself. We shall return to this point later.
As stated, the purpose of the basic rights protected in the Basic Law: Human Dignity and Freedom is to anchor the values of the State of Israel as a Jewish and democratic state. We have dealt elsewhere with the character and essence of this multivalent goal and the way to arrive at a synthesis.
This examination of the values of the State of Israel as a Jewish and democratic state and the means of integrating these multiple goals is of great significance. The basic rights, provisions and guidelines found in Basic Law: Human Dignity and Freedom reflect not only upon themselves, but upon the entire legal system in Israel, in that they embody the basic values of the Israeli jurisprudential approach, with all that that implies. In light of the legal importance and standing of Basic Law: Human Dignity and Freedom, the provisions of this law are not simply the basic values of Israeli jurisprudence, but also embody the basic infrastructure of the Israeli legal system, whose rules and laws will be interpreted in accordance with the purpose set out in this Basic Law, i.e. to embody the values of a Jewish and democratic state. We shall discuss this matter later in this decision.
Thus, we shall first discuss the substance and implications of each of the fundamental values that arise in our case as they are embodied in the values of a Jewish State, followed by their substance and implications as they are embodied in a democratic state. In the light of our conclusions, we will then analyze the method to be taken to achieve a synthesis between them so as to achieve this bi–valent objective in the case before us.
4) A Jewish State
Having reached this point, we shall begin to discuss the values of a Jewish state with regard to these issues:
When Basic Law: Human Dignity and Freedom reached its final reading in the Knesset, the chairman of the Legislative Committee stated as follows regarding the definition of the values of a Jewish State:
This law is prepared with the understanding that a broad consensus must be achieved among all parties of the house, without which we cannot pass a Basic Law which anchors the values of the State of Israel as a Jewish and democratic state…
The law begins with a declarative statement, a declaration designed to protect human dignity and freedom in order to anchor in law the values of the State of Israel as a Jewish and democratic state. In this sense, from the very first section the law establishes that we see ourselves indebted to the legacy of Israel and the legacy of Judaism as it is set out positively and expressly – the values of the State of Israel as a Jewish and democratic state. The law defines some of the rights of the individual, none of which stand in opposition to the Jewish tradition or the world of values which are presently prevalent and accepted in the State of Israel among all the parties.
The interpretation of the values of the State of Israel as a Jewish state is thus determined by the values of the Jewish tradition and the legacy of Judaism – that is, the conclusions reached through study of the basic values contained in the sources of the Jewish tradition and Judaism’s legacy. In carrying out this task we will be fulfilling the wishes of the legislator in defining the values of the State of Israel as a Jewish state.
In this context I would like to reiterate what I have said on numerous occasions in regard to the method of resorting to the sources of the Jewish tradition, pursuant to the Foundations of Law Act, 1980, which in turn has special significance when we define the basic rights underlying this bi-valent goal of a Jewish and democratic state:
It is well-known that Jewish thought throughout the generations, including the halachic system itself (as will be seen later), is replete with differing views and contradictory approaches. It goes without saying that these divergent views and opinions have contributed to the depth and richness of Jewish thought throughout the generations. Nevertheless, the scholar and researcher must distinguish between statements made for a particular time only and statements intended for all times, as well as between statements reflecting the accepted view and those expressing dissident views. Out of this vast and rich treasure, the scholar must extract the ample material to be applied so as to meet the needs of his time. The new applications will then themselves be added to the store of Jewish thought and the Jewish heritage. Such an approach and such distinctions are essential to Jewish thought and the halacha as they are, because of their very nature, to every philosophical and theoretical system. The subject has many aspects and this is not the place to go into detail.
We shall apply these principles as we discuss the subject at hand.
5) Fundamental Problems
Further on in the decision in the Shefer case, I discussed the issues touching upon the physician and therapy, the physician and the judge, the right and the obligation to engage in medical therapy, the value of human life, and other fundamental problems at the root of the case. This discussion is based on halachic thought and the values of democracy. Inter alia, I wrote:
There have always been serious and complex moral problems regarding the end of one’s stay on this earth. Jewish law includes various rules dealing with the medical care to be given, as well as issues of civil and religious law concerning the person who is terminally ill (goses) and one who is dying (tereifah). Jewish law distinguishes between these states, but there are disagreements as to their definitions and their consequences. In any event this is not the place to elaborate. As to this terminal state, Jewish law emphasises the importance of ephemeral or brief life (hayyei sha’ah) and even momentary life, so long as “the candle flickers,” a topic referred to earlier. This is also true in non-Jewish cultures, evidence of which we find as early as the Hippocratic oath which states, inter alia: “I will not give poison to any person, even if he requests it; and I will not offer it.” Some cultures, however, did not have this approach.
These medical-legal problems, which involve fundamental questions of values, have grown more difficult and more complex in recent years, provoking much discussion and dispute in the medical and legal communities, as well as among philosophers, men of religion and the general public. On the one hand, the awesome advancement in science and medicine resulting from technological progress has allowed the prolongation of life by preventing the spread of disease and by various artificial means; on the other hand, the prolongation of life has not always led to improvement of its quality. At times, the prolongation of life brings with it physical and mental pain, and the disruption of day-to-day life. In addition, a patient in such circumstances today may find himself in a hospital or other institution, attached to various machines which keep him alive, and not – as in the past – within the walls of his own home, with his family and loved ones in the natural environment in which he lived and grew. Those who must deal with these problems are primarily the patient himself and his family, in addition to physicians, legal scholars, and people of religion and philosophy. The problems that arise involve serious and fundamental moral, religious and ethical questions. The basic question is: who understands all of these factors sufficiently to be competent to decide what is the proper life span of a person and whether to shorten or to refrain from prolonging it?
6) Synthesis Between the Values of a Jewish and a Democratic State
The continuation of the decision includes a detailed discussion of these problems according to principles of the world of halacha and according to the values of democracy. In this I followed the guiding principle of the Basic Law of the State of Israel, according to which “the values of the State of Israel as a Jewish and democratic state” are to be so interpreted. This discussion we summed up as follows:
“The Synthesis Between the Values of a Jewish and a Democratic State”
As directed by the legislature in Basic Law: Human Liberty and Freedom, we have examined the values of a Jewish state and those of a democratic state concerning the multifaceted and vast areas of medicine, halacha and law. Our discussion was conducted on the basis of a detailed analysis of the sources of both of these systems. In doing so, we have examined the supreme values within each system and the main principles which stem from these supreme values, some of which limit while others broaden. After this analysis, we are instructed to arrive at a synthesis between the bi-valent goal of Basic Law: Human Liberty and Freedom – to anchor the laws of the State of Israel in its values as a Jewish and democratic state.
The natural way of achieving this synthesis is to seek the common ground, the shared principles between the Jewish and democratic systems, or at least what can be integrated from them. In the Jewish legal system we found supreme values which were not shrouded in controversy, together with divergent opinions on specific doctrines and certain details. The same holds true for various democratic systems. Some differences of opinion within each system allow for an easier synthesis and others make the synthesis more difficult, but at no time do they make it impossible.
Let us elaborate and illustrate what is meant. One of the more fundamental issues of our subject is the question of actively shortening life. Jewish Law absolutely negates such a possibility. No opinion of even negligible weight allows this; Jewish law treats it as murder. In the democratic world we found that the United States forbids the active hastening of the patient’s death, while in Holland active euthanasia is even legislatively permitted. It goes without saying that the synthesis between the Jewish and the democratic systems requires the acceptance of what is common in both, i.e. the prohibition of active euthanasia and the absolute negation of the law in Holland that allows active euthanasia. Moreover, even if the majority of democratic legal systems in certain circumstances allowed active euthanasia, i.e. hastening death “with one’s own hands,” the synthesis would find expression in the common ground between Jewish Law and that particular legal system, in any democratic state that can be found, which forbids active euthanasia. Furthermore, even if no democratic legal system could in fact be found which forbade active euthanasia (and we have seen that certain states within the United States attempted to permit active euthanasia under certain circumstances but failed by a small majority – see §45 of this decision). Since active euthanasia negates the essence of the State of Israel as a Jewish state, as seen above, the synthesis between the two systems – “the values of a Jewish and democratic state” – requires the conclusion reached by the values of a Jewish state as interpreted according by Jewish Law.
In other basic issues in the field of law and medicine, the creation of a synthesis is possible but requires patience and much analysis. As we have seen, both Jewish law and American law distinguish between active euthanasia, which is forbidden, and passive euthanasia (“removal of the impediment”), which is permitted; between refraining from artificially prolonging life from the outset and discontinuing treatment that has already begun; between ordinary treatment and extraordinary treatment. At the same time, there are differences of opinion and approach in each system regarding the need for the patient’s consent and his right to refuse treatment, regarding which cases and under what circumstances this right can be exercised, and concerning other issues as well. Finally, there is an essential difference as to the point of departure in each of the systems.
The primary, overarching principle in Jewish law is that of the sanctity of life, based on the concept of the creation of man in God’s image. According to this, the life of every person qua person, whether healthy and sound or physically defective or mentally deficient, cannot be measured in terms of its worth or length. Acceptable limitations and boundaries to the principle of the sanctity of life are primarily based on the principle of preventing physical and mental pain and suffering, on adhering to the patient’s wishes when such adherence can influence his condition, on the application of the rule “love your fellow as yourself,” and others. In contrast, the point of departure in the American democratic system is the right of the patient to refuse medical treatment stemming from the principle of personal liberty, this right being limited in certain situations by the state’s interest in protecting the lives of its citizens, maintaining the dignity of the medical profession and other principles. It is clear that the difference in the point of departure is extremely significant in various situations, and much thought and analysis is required to reach a synthesis between the values of a Jewish state and those of a democratic state.
An instructive example of this synthesis can be seen in the Supreme Court’s opinion in the Kurtam case (see §55 of this decision). [C2] In that case, a suspect trying to escape from the police swallowed packages of drugs which endangered his life. All the judges on the bench agreed that the drugs were admissible evidence, but their reasoning differed. Professor Amos Shapira did not approve the opinions of Justices Bejski and Bach, mentioned above, finding in both paternalistic views deserving of criticism. He states:
These paternalistic views were stated as dicta, and almost none of them were necessary to reach the decision in the Kurtam case. However, they point to a judicial attitude which is astonishing and deserving of criticism. The limited permission Justice G. Bach is prepared to give to life-saving medical treatment against the wishes of the patient, and all the more so his sweeping approval of such treatment, are inconsistent with the doctrine of “informed consent” to medical treatment. They do not reflect the present law and are in glaring opposition to the principles of individual liberty and personal autonomy. According to Justice Bach, a doctor is legally permitted, and has an ethical and professional obligation, to perform an operation on a competent adult patient whose life is in danger, even against his will, if in the doctor’s opinion the patient does not present “a reasonable explanation” for his refusal, which as far as can be seen stems from “external considerations.” Justice Bejski totally waives the need for a competent adult’s consent to an operation which will save his life or prevent significant bodily harm. With all due respect, such norms do not belong in a legal system which advocates the right of the individual to self-expression, free choice and control of one’s fate.
I find Professor Shapira’s statement unacceptable. Even when written it was inconsistent with the existing law, and certainly today contradicts the legislative provisions of Basic Law: Human Dignity and Freedom, which anchors the laws of the State of Israel in the values of a Jewish and democratic state (§1). They also contradict the balancing principle in the Basic Law (§8), according to which an infringement of one of the basic rights must meet three prerequisites: that the infringement reflect the values of the State of Israel as a Jewish and democratic state; that it be intended for a worthy purpose; and that it only infringe to the extent necessary. These three requirements are fundamental to the entire legal system of the State of Israel, and attaching terms like “paternalism” has absolutely no bearing on their application.
It is well known that the task of achieving a proper and correct balance between the values of personal liberty and freedom – freedom of expression, movement and similar values – on the one hand; and the values of security, public order, a person’s good name, basic values of survival, and others, on the other hand; is a necessary and difficult challenge which is becoming increasingly important and portentous within our legal framework in general, and in our jurisprudential literature in particular. For example, every decision which is necessary for the security of the country and the public order can be deemed “paternalism of the government” or “paternalism of the court.” The task in our case is to find the balance between the basic value of personal liberty and free choice, and that of preserving human life. It was the finding of this balance which occupied this Court in the Kurtam case, each Justice according to his particular method of decision making.
At the time the judgement was rendered in the Kurtam case, there was room for the difference of opinion between Justice Bach and Bejski in explaining their views which, as stated, led to the same practical conclusion. Today, with the adoption of the Basic Law: Human Dignity and Freedom, which establishes the principle of anchoring the values of the State of Israel as a Jewish and democratic state, the words of Justice Bejski would seem to go hand in hand with the provisions and content of Basic Law: Human Dignity and Freedom. The protection of the life, body and dignity of the individual is based upon the anchoring in the legal system of the State of Israel of the values of a Jewish and democratic state. Our task, therefore, is to create the proper synthesis between the values of a Jewish and a democratic state, and it is only just and proper that the decision’s usage of the values of a Jewish state not only serve to support the exceptions found in the American and English systems, but also to fashion an original approach in our legal system.
Such value-laden concepts as liberty, justice, human life and dignity can be given the most perverted interpretation in a given society; there is no lack of examples in human history. In our generation, the generation of the Holocaust, the atrocities of the Third Reich and the tyranny of the “people’s republics” reached a point that no mind could have fathomed. The values of a Jewish state, rooted in the basic concepts of the dignity of the human being created in the image of God, the sanctity of life, and the prevention of pain and suffering – concepts which have stood the test of generations and which have nurtured and sustained the entire world – are the true guidelines for achieving the correct synthesis of the values of a Jewish and democratic state.
7) The Sanctity of Life
Further on, the decision contains detailed discussion of the fundamental questions of euthanasia, the role of the physician and the function of medicine, the principle of the sanctity of life, etc. This discussion is also based on principles of the world of halacha and democratic thought. This is not the correct forum to discuss these matters at length. As stated earlier, the appeal was rejected.
This is the conclusion of my analysis:
Yael is not suffering and is not in pain. Her dignity is exceptionally preserved. Yael cries like any other child when she needs to eat or requires routine medical care. Her “candle” is still alight and shines for all those surrounding her. In these circumstances and under these conditions, the sanctity of Yael’s life, even though terminal, is the sole and determining value. Any intervention and encroachment on that life stands in direct opposition to the values of a Jewish and democratic state.
8) Children and Parents
As stated, the petition for euthanasia had been submitted by the mother. This fact lead the court to relate to a question which is also of a moral nature, touching on weltanschauung, etc. – namely, the relationship between parents as it touches upon questions related to their offspring. Let me quote the text of the Decision:
We could have ended our opinion here, but we will say a few words about an additional question that confronted us, namely, the fact that the application was made only by the mother.
Section 3(a) of the Women’s Equal Rights Law, 1951 provides that the “father and mother together are the natural guardians over their children” (see also §14 of the Capacity Law). The first part of §18 of the Capacity Law states that, “in any matter submitted to their guardianship both parents must act by agreement.” It is true, as Mr. Hoshen points out, that the ending of §18 states that “it shall be presumed that one parent agrees with the actions of the other parent so long as the contrary has not been shown.” However, that presumption is not sufficient with regard to such a fateful decision as in this case and in any event, the presumption is confuted in this case. The father’s conduct clearly indicates that he has a different attitude than the mother. As will be remembered, Dr. Segal-Cooperschmidt declared:
 … a good part of the support the child needs (like washing and feeding) is administered by… the father of the child in the afternoon.
 From a supportive point of view, she is being treated more than reasonably… In addition, her above-standard physical surroundings should be noted, beginning with her having her own room, along with music played at the father’s request, a fan in her room, etc.
 The visits of the mother to the ward throughout the period of Yael’s stay were rare and infrequent.
 The father of the child visits her every day after work, stays with her for many hours, treats her with love and dedication that are reflected in everything he does with her, such as taking her for strolls in the carriage, sitting for hours with her on his chest, adhering strictly to her feeding schedule and personally feeding her when he is there. In my discussions with him, he said that he still hasn’t lost hope that her condition will change.
We should also mention the reason why the father did not appear before the District Court nor before us. The mother’s explanation that:
The father is completely shattered…. My husband could not appear before you nor would he appear before you because he hates publicity (p. 5 of the District Court records) is insufficient to support the conclusion that the father agrees with the steps the mother has taken or to contradict the statements made in the affidavit of Dr. Segal- Cooperschmidt.
This should not be construed as implying that we, God forbid, come with complaints or moral exhortations to the mother. Who knows a mother’s heart? Her thoughts are hidden. But it is impossible for the court to grant the request submitted, one that would determine “who is destined for life and whom for death,” without the clear and explicit understanding of both parents. Only under proper [C3] circumstances and in accordance with the values of a Jewish and democratic state, would there be any justification for granting such a request.
For all these reasons we dismissed the complaint.
I would point out that this position was espoused by Judge A. Matza in his Decision as well. Judge H. Ariel expressed a different approach. He wrote:
I also do not agree that one of the parents cannot, without the second parent, make application in the name of the minor. It is true that section 18 requires the consent of both, and under section 19 of said law the Court makes the decision if there is a difference of opinion between the parents, where both parents apply to the court for its decision. However, in such cases the application to the court is not that of parents or guardians specifically in their capacity as such, but acting as the voice of the minor.
The minor is himself permitted to apply in whatever manner or via any person or proper organization, and surely by his mother in this or other situation of distress, to the proper forum. A basis for this is found specifically in Section 68 of the Legal Capacity Law; see Chapter 4 in its entirety, and particularly section 72 of the Law (and there is no need to refer to section 3(a) of the Women’s Equal Rights Law, 1951), so long as the court will accept such an application as it is, or by means of appointing a different or additional guardian or a guardian ad litem, or hearing the minor himself.
We should not close the door in the face of a minor in distress so long as he does not use this procedure improperly. It is incumbent upon the Court, in this as in other cases, to leave the door open to prevent injustice and distress to minors when their application to the court is for a real need, including the need in a terminal issue, as in the case here, in the sense of: “Open for us a gate at the time of the locking of the gate, for the day has passed.”
Thoughts, Analysis, Enigmas, and Hesitations: The more, within reason, the better
IV. Kidney Donation from a Retarded Son
In this decision I discussed the question of nephrectomy for transplantation from a son into the body of his father. The case involved unique circumstances. Hence, a few words are in order to describe the case.
1) The Facts
Is it permitted to remove a kidney from an adult, but retarded son for transplantation into the body of his father, who is his legal guardian and care provider? If so, who has the authority to permit the procedure? Under what circumstances and conditions can permission be granted?
These are the basic questions which arise in this case. Because of these questions and because of difficult legal and medical problems which touch upon the world of halacha and the realm of ethics and because of the limitations in time imposed by the pressing nature of the case, we can deal with the issues only briefly. The decision must ultimately be taken in accord with the findings and data as presented to us….
The father, born in 1921, suffers from terminal kidney disease. He began septic dialysis in December 1983. His treatment requires being connected for eight hours to a machine which he has at home. The treatment must be followed “very rigorously.”
The legally incompetent son, approximately 39 years of age, suffers moderate to mild retardation. From a young age, his motor development has been very slow. His retardation was discovered when he was one year old. From age 12 through age 17 he was institutionalised in a private institute. Later he was at home and from age 19 he as been taken care of in Kfar Tiqva, where he remained through age 26. At age 26 he returned home and began to work. Since then his father has cared for him, seeing to all his needs.
The boy’s mother, a holocaust survivor currently 62 years of age, underwent traumatic experiences. She is mentally disturbed, uncooperative and nervous. Her relationship to her son is one of rejection; she does not get along with him.
The family has two other adult daughters – one a physical education teacher, married with three children; the other a dance instructor and educator, divorced with two children who live with her.
At the basis of the petition to remove the kidney rests the fact of the father’s unusually great dedication to his son. It is the father who is responsible for the son’s well-being and comfort. Any deterioration in the father’s condition will adversely effect the son in a direct way because the father will no longer be able to continue treating him as heretofore. On the other hand, any improvement in the father’s condition, as is to be expected pursuant to a kidney transplantation, will help the son and enable the father to continue treating the son, who is dependent on him. These, along with other reasons to be adduced later, have lead Mr. Mazor to petition this court.
These are the facts which call for a solution. The case is complex, difficult, and perplexing.
2) “You Shall Not Stand Upon Your Brother’s Blood: The Obligation to Save Human Life – Definitions
The District Court, after a detailed, multi-staged analysis, approved the father’s petition. An appeal was presented to the Supreme Court, which decided to hear the appeal and prohibited the father from using the retarded son’s kidney.
The decision of the Supreme Court contains an extensive and profound discussion of the legal and moral issues involved, on the basis of both general law and examination of the world of halacha as it pertains to the most important and difficult question to be resolved. I will not go into detail here; instead, I shall quote a portion of our discussion regarding the position of Jewish law in this complex and difficult subject:
It is a great principle in the world of halacha that “anyone who can save a life and does not do so is in violation of ‘thou shalt not stand idly by.’” Maimonides stated that the prohibition against “standing idly by” is “one of the gravest commandments, for destroying a single life is comparable to destroying a full world; and preserving a single life is comparable to preserving the whole world.”
When there is no danger to the lifesaver, it is clear that the obligation to save life absolutely devolves upon him. But the difficult question is, how far is one obligated – or perhaps the question ought to be phrased, how far is one permitted – to endanger one’s own life in order to save another’s life? This question has occupied not a few rabbinic scholars. According to some authorities, one ought even put oneself in a situation of possible danger to save another who is in a certainly dangerous situation. Many authorities, however, disagree. One of the great recent rabbis summarised the point quite well: “It depends on the situation. One must weigh the matter carefully and not protect oneself too much… Saving a single life is comparable to saving an entire world.”
In their discussions, the sages of the halacha connect the removal of a human organ in order to save another’s life with the question of the concomitant danger which devolves upon the donor. But this problem has further aspects: is there any basis to obligate a person, even in lifesaving situations, to donate an organ? The answer of Radbaz (i.e., Rabbi David ibn Zimra, the rabbi of Egypt and Eretz Yisrael in the 16th century) is illuminating. Radbaz’s responsa were composed on the background of the tragic-heroic reality of the Diaspora and the relationship of the foreign government to its Jewish minority. This is the question: 
You have asked me, and I shall tell you my opinion regarding what you have seen written: If the authorities say to a Jew: Let me cut off one of your limbs in a way which will not be fatal, otherwise, I shall kill your fellow Jew….
How must the Jew relate, according to halacha, to such a draconian suggestion? In the continuation of his question, the interlocutor added that some say that the Jew is obligated to authorise the cutting of the limb in order to save his companion’s life, as this constitutes no threat to his own life. This is in accord with the rule of saving life, which supersedes all other commandments of the Torah. In his response, Radbaz presents us with a detailed halachic analysis, leading to the conclusion that even if it is clear that cutting off the limb will not endanger his life, there is still no obligation to authorise the procedure. But he is permitted to authorise it, and it would be a pious act to do so. His conclusion is illuminating:
Furthermore, it is written: “its ways are ways of pleasantness” (Prov 3:17). The laws of our Torah must agree with the intellect and common sense. How can we consider the possibility that a person must blind himself or cut off a hand or a foot in order not to kill his companion? Therefore, I do not see any basis for such a law except as an act of piety. Blessed be he who can endure this! If there would be some possibility of threat to his life, he would be a pious fool [to authorise the procedure], for the possible threat to his life overweighs the certain threat to his companion’s life.
Even if there is no threat to the donor’s life, removal of an organ in order to save another person’s life cannot be obligatory, for this would contradict the fundamental principle that the ways of Torah are ways of pleasantness and “the laws of our Torah must agree with the intellect and common sense.” It follows that we cannot entertain the possibility of obligating the donation of an organ even to save another’s life. Nonetheless, such a donation would indeed be an act of piety, which would be proper as an act over and beyond the requirements of Jewish law.
In our generation, this responsum by Radbaz serves as one of the central components of the rabbinic discussions regarding kidney donation, the propriety of injuring oneself, etc. Opinions are divided. Some, like Rabbi E. Valdenberg and Rabbi Y. Weiss, prohibit such procedures. But most halachic authorities hold that such a procedure is an act of piety which, although not obligatory, is praiseworthy when there is no danger to the life of the donor.
It therefore follows that, in a case where the prospective donor is legally incompetent, there can be no permission given to remove his kidney for transplantation into another’s body. Such a procedure, which cannot be required of a competent donor, cannot be authorised by the incompetent’s guardians or even by the court as an act of volunteerism or as an act of piety.
3) Parents and Children
Further on in our decision there is a broad and detailed analysis of the positions of Jewish law and other legal systems in this matter. For our present discussion, it shall suffice to quote the end of my decision:
The problem confronting us is difficult and painful. Before us stands a father who has devoted himself to his son, taken him out of an institution, taken care of him with praiseworthy love and dedication. We entertain not a shadow of a doubt that the father’s petition to receive his son’s kidney results, as he says, from the fact that he has been told that such a procedure will not hurt his son and because he is convinced that this will benefit his son by prolonging the life expectancy of his father, who will continue to be devoted to him in better health. But we, as a court of law, are commanded to act in accord with law and morality and to examine the entirety of the problems presented to us in this difficult case. We are commanded to keep before our eyes the fact that this is an invasive procedure and removal of a vital organ, which cannot regenerate and cannot be replaced. In this case the donor cannot know what is being done to him nor what is being taken from him.
How miserable, or perhaps more correctly, how cynical is the use of the term “donation” to describe the removal of an organ in the case before us. Researchers have analysed and thinkers have thought about the social, familial, and psychological pressure brought to bear, whether consciously or not, on a relative’s decision to consent to the donation of a kidney to save another relative’s life and to restore his well-being. If in an entirely healthy individual there is some doubt whether giving a kidney is to be considered a donation, as the concept of donation is associated from the verse “he whose heart freely gives” (Exod 25:2), it is all the more difficult to view the case before us as one of “donation,” as the son cannot know that the organ is being taken. Not only is generosity of the heart missing here, but this is a clear case of compulsion.
This is serious indeed, and liable to harm the cultural and spiritual foundations of our society. We, as a court of law, are responsible for all who are legally incompetent, for those who do not understand, and those who do not know how to give their assent or to decide by themselves. We are commanded to stand guard over these unfortunates so that their innate human rights will not be harmed in the slightest. It is not that we, as guardians of the incompetent, are somehow superior to the father who appears before us. Heaven forbid that such an idea be accepted! But the law has charged us and requires us to weigh all of the legal issues and meta-legal issues, halachic and ethical, that arise in a case like this. It is in this, and only in this sense, that we enjoy a certain advantage over the biological father who seeks a kidney transplantation from his own son for the son’s benefit.
In view of all these considerations and their relative weights, we have come to the conclusion that in the case before us we cannot permit the removal of a kidney from the son for transplantation into his father. We again recommend, as we did when our decision was first published without comment, that everything be done to enable the father to receive a kidney transplanted from a cadaver so that he might continue to care for his son.
As we have already stated at the beginning of our discussion, “It is unwillingly that we judge… but we are commanded to examine, weigh, and decide.”
V. The Lubetsky Case – Terminating Feeding
1) Ruling of the District Court
It was in this case that the question first arose regarding the right to stop providing nutrition to the ward, Mrs. Reiza Lubetsky, by disconnecting her nasal-gastric feeding tube in accord with the petition of her son who has been appointed the ward’s guardian. Judge Talgam, Vice President of the District Court, who sat in this matter said that,
A case like this is not dealt with in precedents in law or judgment. It differs from previous cases which have come before this and other courts as it differs from the cases referred to by the Director General of the Ministry of Health in his circular… Case law has not yet decided the question of cessation of treatment in a patient who exists as an unconscious vegetable, apparently devoid of suffering and “living” on by virtue of artificial procedures which keep him alive. Without such intervention, he would die.
In the continuation of his discussion, Judge Talgam defined the question:
The case before us differs from its predecessors in that it raises the heretofore undiscussed and undecided question: Does a vegetative state of unconsciousness, which will continue until the end of the patient’s life with no prospect of change, justify the cessation of treatment that prevents death? Does refraining from prolongation of a vegetative life, which is forevermore unable to eat by itself, by means of disconnecting the artificial feeding tube, constitute an act of taking life?
Judge Talgam was perplexed by the subject and came to the conclusion that it may be permitted.
2) The Appeal to the Supreme Court
An appeal was entered, and the Supreme Court accepted the appeal because “insufficient factual foundation had been laid to support the conclusions of the District Court,” to say nothing of the fundamental legal questions. We shall not dwell on these matters here.
3) Deliberate Starvation – Forbidden
In my above mentioned article, I expressed my own opinion, which differs from that of the District Court:
Depriving a person of food, intentional starvation, is absolutely prohibited by the values of a Jewish state. It is similarly prohibited by the values of a democratic state. Even if certain precedents exist in democratic, juristic sources to permit depriving a person of food and starving her, the matter would still require further examination. We are commanded to prefer the conclusion which flows from the synthesis of the values of a Jewish state and the values of a democratic state, viz. it is prohibited to deprive a person of food or to starve the ward by means of disconnecting her feeding tube.
My reasoning is detailed in the continuation of the above- mentioned article (ibid. pp. 129-132).
4) Parents and Children
I would like to note that the question of the relationship between parent and child, in the world of halacha and in a judicial decision based on law, arose in this difficult and tragic case as well. Thus I added (ibid. p. 129):
I cannot end this part of the discussion on human life and dignity without posing the question in its awesome simplicity: Is it possible to consider the act of starving a person to death, a 91-year-old mother, as in the case before us, as an act which protects her dignity? Can such an act coexist with the eternal commandment, “Honor thy father and mother”? Ought not a son to reflect, to be concerned, to worry over and deeply consider that the act of disconnecting the feeding tube is associated with another of the Ten Commandments, appearing directly after the commandment of honoring one’s parents?
The commandment of honoring one’s parents is frequently discussed in the world of Judaism. This is not the place to discuss it at length. We shall point to a few words on this topic:
Honoring one’s father and mother is a great positive commandment, as is the fear of one’s father and mother. The biblical verses equate these with the honor and fear of the Almighty, as is written: “Honor your father and your mother” (Exod 20:12); “Honor the Lord with your property” (Prov. 3:9). “Every man shall fear his father and mother” (Lev. 19:3); “Fear the Lord your God” (Deut. 6:13). Just as we are commanded to honor His great name, so are we commanded to honor and fear them…
What is honor? Providing food and drink and raiment from the father’s funds. If the father has no money and the son has money, the son may be compelled to provide food to his father and mother insofar as he is able. And the son must see to his parents’ other need just as one sees to the needs of his teacher.
In the Palestinian Talmud, R. Shimon bar Yohai said:
The Lord prefers that one honor one’s parents even more than that one honor Him. It is written: “Honor you father and your mother.” And it is written: “Honor the Lord with your property” (Prov. 3:9). Wherewith do you honor Him? With that which He has given you; you separate the corners of your fields for the poor… you make a sukka and acquire a lulav… you give the poor and the hungry to eat… If you have, you are obligated to do all this. If you have not, you are not obligated to do any of it. But… honoring one’s parents is obligatory whether you have property or not. In any event you must honor your parents, even if you beg from door to door.
In the Tur and Shulchan Aruch we find the following ruling:
What is honor [of parents]? Giving food and drink, clothing, and bringing them in and out. One must do this with good countenance. Even if one provides one’s parents with fattened hens, but with an angry countenance, one is punished.
In the world of Judaism, the eternal commandment to honor one’s parents is of such weight that it decides the legal-halachic issue.
The subject of medicine and halacha is one of great importance, that stands at the forefront of the legal system in Israel, just as it does in the world of halacha, in the world of Judaism, and in various other contemporary and past legal systems. The present volume constitutes an important contribution in the world of halachic and medico-legal theory and practice.
I have attempted to emphasise, by means of some things that I have written, the great importance ascribed to this subject from another point of view than that of the [purely] halachic or legal aspect – namely, that of halachic thought, which is based upon values and ethics over and beyond the solution of any specific subject in the field of medical halacha. This form of thought is of great weight in explaining and understanding the values of a Jewish and democratic state, in understanding the nature of Judaism, of democracy, and in finding the synthesis between them. As we have noted, there are situations in which Judaism supersedes democracy, as I have stated and written in the Shefer decision brought above.
As stated, these brief quotations from legal decisions must suffice on this occasion. There is far more, equally illuminating material contained in these decisions, to which we shall return in the future.
As I said at the beginning of my comments, there is a special importance to be attributed to the relationship among medicine, halacha, and law from the point of view of education and values as well. Exposition of these great and multifaceted subjects is also oriented toward these issues, and therein lies its value.
I congratulate the editor and all who assisted him. May you continue in your good work!
Jerusalem, Tevet, 5764 (December 2003)
Prof. Menachem Elon
Chairman, The Schlesinger Institute
for Medical- halachic Research
* Deputy President of the Supreme Court (Retired)
1. CA 506/88 – Yael Shefer [a minor] v. State of Israel; IsrSC 48(1) 87-199.
2. Chevra Kadisha Kehillat Yerushalayim v. Kastenbaum, 46(2), P.D. 464.
3. State of Israel v. Goeta, 46(5) P.D 704, 724.
4. Vicsilebaum v. The Minister of Security, 47(2) P.D 812, 827.
5. Eliezer Ben Yehudah’s Hebrew Dictionary, vol. 7, p. 3464.
6. The New Even- Shoshan Dictionary, 1969, vol. 4, p. 1600.
7. Ahad Ha’am, 37, cited in the Even-Shoshan Dictionary, ibid.
8. See, in connection with the term “the progressive and civilized part” of the public: Menachem Elon, Religious Legislation in the Laws of the State of Israel and the Decisions of the General and Rabbinical Courts (Tel-Aviv, 1968), pp. 70-73.
9. See, (i) Chevra Kadisha Kehillat Yerushalayim v. Kastenbaum, 46; (ii) P.D. 464; Suisa v. State of Israel, 46; (iii), P.D. 338; Gabai et al. vs. State of Israel, 46; (iv) 487; State of Israel v. Azazami, 46; (v). P.D. 72; Sasson v. State of Israel, not yet published; State of Israel v. Goeta, 46; (vi) P.D. 704; Hagar v. Hagar 47(2) P.D. 793; Suphian v. Commander of the Armed Forces et al. 47(2) P.D. 848; Perach Corperation v. Minister of Justice et al., 47(2) P.D. 715; Menachem Elon, “The Legal Method in the Constitution: the Values of a Jewish and Democratic State in Light of the Basic Law: Human Dignity and Freedom,” Iyyunei Mishpat 17 (November 1992), p. 659
10. Divrei HaKnesset, vol. 125 (1992) pp. 3782-3783
11. See also in detail, Iyyunei Mishpat 17, ibid., pp. 663-670, 684-688.
12. See also Rav Abraham Yitzchak Kook, Eder ha-Yekar (Jerusalem: Mossad HaRav Kook, 1927), pp. 13-28; Naiman v. Chairman, Central Elections Committee, 39 (2), P.D. 225, 293, 294; and Aloni v. Minister of Justice, 41 (2) P.D. 97-98; Menachem Elon, Ha–Mishpat ha–Ivri (1987, 3rd ed.) p. 1563, n. 130; English translation, Jewish Law: History, Sources, Principles (1994) p. 1863, note 164.
13. Dr. A. Steinberg, “Terminally Ill,” pp. 2-5, 26-45, ibid., “Mercy Killing,” pp. 11-13.
14. See C.J. Gruman, Encyclopedia of Bioethics, pp. 168-261; A. Steinberg, “Terminally Ill,” pp. 5-6.
15. See Suisa v. The State of Israel, 46(3) P.D. 338; M. Elon, “The Way of the Constitution in the Law” [Hebrew], Iyyunei Mishpat 17, (1992), at 687.
16. Iyyunei Mishpat 14 (1989), 269.
17. Support for this is found in the Garti case, 18 P.D.449, and the Kidney case, 42 (2) P.D. 66.
18. The Case of John Doe (P.D. 42(2) 661-702, dated 3 July 1988)
19. Lev. 19:16; b. Sanhedrin 73a; Rambam, Hilchot Rotzeah 1.14-16; Tur, Hoshen Mishpat 426.
20. Rambam, ibid., §16. See also Judge Beiski’s discussion of Jewish law’s approach to the obligation to save human life (A.P. 480/85, 527, pp. 696-697).
21. Beit Yosef to Hoshen Mishpat 426 s.v. u-ma she-katav.
22. Sefer Me’irat Einayyim, Hoshen Mishpat 426.2.
23. Arukh ha-Shulhan, Hoshen Mishpat 426.4; cf. R. Ovadia Yosef in Dinei Yisrael 7 (5736) 25; Halacha u-Refu’ah 3 (5743), 61; Yehavve Da’at 3:84.
24. Teshuvot Radbaz 3:1052.
25. Regarding role of the principle of “ways of pleasantness” in establishing halacha, see M. Elon, Ha-Mishpat ha-Ivri 3:323 ff. and Mafteach ha-She’elot ve-ha-teshuvot shel Hakhmei Sefarad u-tzfon Afrika: Mafteah Hamekorot, 1:25.
26. Teshuvot Tzitz Eliezer 9.45; 10.25 (7. 28); Teshuvot Minhat Yitzhak 6.103
27. Cf. Iggerot Moshe: Yoreh De’ah 2:174 (4); R. Shlomo Z. Auerbach in Nishmat Avraham: Yoreh De’ah 4.157, pp. 66-67; Rabbi O. Yosef, op cit.; Rabbi H. D. ha-Levi in Assia 4: 251; Rabbi Y. Zilberstein in Halacha u-Refu’ah 4: 156-157; Rabbi Sh. Deichowski in Ne’ot Desheh 2:154-156
28. See my article in Sha’arei Mishpat 2/2 (April, 2000), pp. 121-132.
29. See Sha’arei Mishpat, pp. 122-123; the detailed Decision of the District Court, the Appeal, and the Decision of the Supreme Court are all quoted on pp. 231-247.
30. Rambam, Hilchot Mamrim 6.1,3.
31. j. Pe’ah 1:1
32. Yoreh De’ah 28.4; cf. b. Kiddushin 31a.
[C1] Perhaps add this phrase?
[C2] To delete? This refers to a section of the original decision, which isn’t brought here.
[C3] The author throws in this clause which opens a veritable Pandora’s box, without any indication of what kinds of cases he might be implying. In my opinion, this needs to be clarified.