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מכון שלזינגר לחקר הרפואה על פי ההלכה

inflicting pain in surgery & Brit Mila

שתפו:

23 באוקטובר 2018

הרב המשיב: הרב ד"ר מרדכי הלפרין

שאלה:

Hi,


I am Jay Reidler (Harvard College '09; currently studying Refuah V'Halacha in Yeshivat Hakotel for the year; I've enjoyed coming to the Schlesinger lectures very much over the year).


I read Dr. Steinberg's recent article in JME IV(1) on Anesthesia and Circumcision and it prompted some important questions:


1a) Let's take the theoretical example of a patient with a malignant tumor on their skin. A doctor has a chiyuv (V'Hashevota Lo, etc) to remove that tumor, and is permitted to cut off/around the tumor, since the issur of chabala (hurting someone) is overridden/waived. Now let's say the doctor cuts off the tumor without any anesthesia, and in so doing causes unnecessary pain to the patient (there's was no medical justification for not using anesthesia) — has he violated any issur (e.g. chabala)???. My impression is that the doctor had permission to do a certain amount of chabala (i.e., cutting off/around the tumor), but did not have permission to cause unnecessary pain and so he does violate an issur.


1b) If the doctor does violate an issur in question 1a for causing unnecessary pain, would a patient be permitted to accept such a treatment without anesthesia, if doing so has no medical benefits? If my understanding of chabala in question 1a is correct, this would not be allowed either because it would be tantamount to self-inflicted chabala, which is also an issur?


This question is very relevant to medicine in general, because it examines whether a doctor has a chiyuv to minimize pain even when he is doing a necessary/permitted treatment, and asks if an issur is overridden if he doesn't (other example – a doctor who can give a local anesthetic before giving a shot, but doesn't because "the child won't remember" or "it's too much of a hassle for a small shot and not worth it…").


I believe R' Moshe Feinstein took the idea of causing unnecessary pain into account when determining whether to prolong the life of the terminally ill patient – but I don't recall him employing the concept of chabala.


2) The relevance of the above question to Dr. Steinberg's article is as follows: Dr. Steinberg seems to conclude that, while according to some poskim one may not use anesthesia for an infant/adult, according to many it is permitted (mutar) to use anesthesia on an infant. Now, if we hold according to the latter poskim that it is mutar, shouldn't it be a chiyuv to use anesthesia! The mitzvah of circumcision gives us right, perhaps by the concept of aseh docheh lo ta'aseh, to cause a certain degree of chabala to the child (e.g. removing the arlah), but does it give us permission to cause unnecessary pain while doing this?? In the time before anesthesia, the mitzva of brit milah may have allowed us to inflict pain while doing circumcision because there was no alternative, but now that we have anesthesia, do we still have permission to cause this unnecessary pain?


(I am writing an article on this topic which I might submit to "B'Iyyun," a new Intercollegiate Undergraduate Journal for Orthodox Judaic Thought. I'd appreciate if you'd let me know if I can quote/paraphrase your response. I won't be insulted if you don't give me permission).


Thank you very much


Jay Reidler


(You have my permission to publish/paraphrase this question in a future JME edition, if you'd like)


תשובה:

There are two elements in Jay Reidler’s interesting claims. First, he emphesizes that even where the fulfillment of a mitzvah supercedes the prohibition to injure a person, it is still necessary to minimize suffering as much as possible. He theorizes further that a failure to minimize suffering constitutes a violation of unnecessarily injuring a person.

Second, he applies this principle to the mitzvah of circumcision. He claims that if palliative (pain relief) treatment is permitted and not medically counterindicated, then halacha requires it so that the prohibition of injuring not be violated.

These claims call for two comments:

First, the obligation to avoid pain whenever possible is not undermined, as it does not depend on the fulfillment or the violation of the prohibition of injuring. This obligation derives from the verse “Love thy neighbor like thyself (Lev. 19)”. This verse obligates us to minimize suffering even in people who have been sentenced to death by the court (Sanh. 52a, etc.). Therefore, we are clearly required to reduce the suffering of a circumcised infant whenever it is medically justified and free of any halachic prohibition.

Second, it is by no means obvious that failure to minimize suffering constitutes a violation of the prohibition of injuring a person when the injury itself is permitted. For example, the Kesef Mishna (Mamrim 5:7) implies that only unnecessary physical injury violates the prohibition of injury, not unnecessary pain added to an underlying act of permitted injury. If so, Jay Reidler’s beautiful theory is problematic and calls for careful study of the medieval commentaries on Sanh. 84b, etc.

In summary, administering sucrose or sweet wine to the infant before the circumcision is certainly advisable as far as the halacha is concerned as there is today no doubt that this reduces the infant’s pain.

From the medical point of view, local anesthesia entails some risk as Prof. Steinberg mentioned in his article. The risk is, however, very small. But since we are dealing with scores of thousands of circumcisions, or hundreds of thousands worldwide, the risk of an infant’s death is real. Therefore, there is neither medical nor halachic justification for such anesthesia.

Pain relief medication has not yet been proven completely safe for infants. The same can be said for laser procedures. Therefore, it is inadvisable to perform epidemiological experiments on newborns.

Aside from sucrose and sweet wine, treatment with EMLA, which the great poskim have not prohibited, remains an option to be decided upon by the rav, the parents, and the mohel.

להדפסה

שאלות נוספות

בקשת מאמר

אני זקוק להעתק ממאמרו של הרב ד"ר אברהם אופיר שמש "כמהין ופטריות – זיהויים, שימושיהם ומעמדם ההלכתי לאור הספרות היהודית", סיני, קכה (תש"ס), עמ' כו-לג.

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צום בהנקה

בני בן חצי שנה, עיקר תזונתו היא הנקה. (אני נותנת לו דייסה- אך אני מוהלת אותה בחלב אם, כלומר שואבת חלב). האם אני חייבת לצום

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