Jewish Perspectives
on Death and
Dying
Fred
Rosner, M.D., F.A.C.P
Introdution
Because of
advances in medical technology, some people, who in an earlier era
would have died, are today alive and well. Others who would have
died are now alive but in a coma or a chronic vegetative state.
Medical technology has created as many problems as it has
solved.
Often
dying occurs in the lonely, mechanical, dehumanized atmosphere of
the hospital rather than the privacy of one’s own home, surrounded
by friends and family. The physician should perhaps make “terminal
illness rounds” just as he makes medical or surgical or chart
rounds. Such rounds would not save all the moral dilemmas
surrounding death and dying. The new technology denies the physician
a simple physiological end point for death. When is a person dead so
that his organs may be removed for organ transplantation? Is it
ethical to infuse mannitol into a patient dying of a head injury to
preserve his kidneys for grafting? Dare we remove kidneys from a
donor whose heart is still beating? Is it “cruel” in the presence of
a fatal disease, in the agonizing hours, to prolong life (or death)
by the use of life-support machines?
What
should be done and what should not be done for a terminally ill
patient? Is an eighty-year old man with terminal prostatic cancer to
be treated differently from a child with leukemia? Who is to weigh
the value of a few more days of life? Are these questions within the
realm of human decision making?
One
basic question seems to be the extent to which any individual owns
his own body. Does a person have the right to select how and when he
will die? Is such a decision by the patient akin to suicide? What is
an individual’s responsibility for his life and health? Jewish
teaching is that life is a gift from God to be held in trust. One is
duty bound to care for one’s life and health. Only God gives life
and hence only God can take it away. This individual responsibility
for the preservation of one’s life and health is apart from the duty
of one person (including a physician) toward another’s life and
health, and society’s responsibility concerning the life and health
of its citizens.
The
doctor-patient relationship is no longer what it used to be because
of a variety of factors. There are legal forces, such as the medical
malpractice issue, that may interfere with the physician’s best
clinical and ethical judgment. There are professional forces that
may force a physician to act to protect himself from peer review.
Patients are better informed and are becoming more vocal. The
physician’s own religious and ethical values, his own experiences,
and his teaching by preceptors all play a role in deciding how he
approaches a dying patient. Ultimately, to whom is the physician
responsible? To himself? To the patient? To society? Or to
God?
This
article addresses Jewish perspectives in death and dying and focuses
on the subjects of euthanasia, hazardous medical or surgical therapy
for the terminally ill. When not to use heroic or extraordinary
measures to prolong life, the definition of death in Jewish law, and
Living Wills.
Euthanasia
Arguments in favor and against
euthanasia are numerous, have and continue to be heatedly debated in
many circles, and I will only touch on some of them. Opponents of
euthanasia say that if voluntary, it is suicide. Jewish religious
teachings certainly outlaw suicide. The answer offered to this
argument is that martyrdom, a form of suicide, is condoned under
certain conditions. However, the martyr seeks not to end his life
primarily but to accomplish a goal, death being an undesired side
product. Thus, martyrdom and suicide do not seem
comparable.
It
is also said that euthanasia, if voluntary, is murder. Murder,
however, usually connotes premeditated evil. The motives of the
person administering euthanasia are far from evil. On the contrary,
such motives are commendable and praiseworthy, although the methods
may be unacceptable.
A
closely-related objection to euthanasia says that it transgresses
the biblical injunction Thou shah not kill. To overcome this
argument, some modern biblical translators substitute “Thou shalt
not commit murder” and, as just mentioned, murder usually represents
violent killing for purposes of gain, or treachery or vendetta and
is totally dissimilar to the “merciful release” of
euthanasia.
God
alone gives and takes life as it is written in Deuteronomy 32:39: /
kill and I make alive and Ezekiel 18: Behold, all souls
are Mine. The difficulty with this point about the Divine
predetermination of one’s life span, however, seems to be the
question of definition as to whether euthanasia represents
shortening of life or shortening of the act of dying.
To complete
the religious argumentation, it is said that suffering is part of
the Divine plan with which man has no right to tamper. This phase of
faith remains a mystery and is best exemplified by the story of
Job.
Let
me present the classic Jewish sources which relate to euthanasia.
In Genesis 9:6, we find: Whoso sheddeth man’s blood, by man shall
his blood be shed. In Exodus (20:13), it is stated: Thou
shalt not kill and further in the next chapter, Exodus 21:14.
And if a man come presumptuously upon his neighbor, to slay him
with guile; thou shalt take him from Mine alter, that he may die.
In Leviticus 24:17, is the phrase. And he that smiteth any
man mortally shall surely be put to death and four sentences
later: And he that killeth a man shall be put to death. In Numbers
35:30, it is stated: Whoso killeth any person, the murderer shall
be slain at the mouth of witnesses. Finally, in Deuteronomy
5:17, the sixth commandment of the decalogue is repeated: Thou
shalt not kill. Thus, in every book of the Pentateuch, we
find at least one reference to murder or killing. These citations,
however, all relate to intentional homicide and not to mercy
killing.
Probably
the first recorded instance of euthanasia concerns the death of King
Saul in the year 1013 B.C.E. At the end of the first book of Samuel
(31:1-6), we find the following:
Now the
Philistines fought against Israel, and the men of Israel fled from
before the Philistines and fell down slain in Mount Gilboa. And the
Philistines pursued hard upon Saul and upon his sons; and the
Philistines slew Jonathan and Abinadab and Malchishua, the sons of
Saul. And the battle went sore against Saul and the archers overtook
him and he was greatly afraid by reason of the archers. There said
Saul to his armor-bearer: “Draw thy sword, and thrust me through
therewith, lest these uncircumcised come and thrust me through and
make a mock of me.” But his armor-bearer would not: for he was sore
afraid. Therefore, Saul took his sword and fell upon it. And when
the armor-bearer saw that Saul was dead, he likewise fell upon his
sword and died with him. So Saul died and his three sons, and his
armor-bearer, and all his men, that same day
together.
From
this passage it would appear as if Saul committed suicide. However,
at the beginning of the second book of Samuel (1:5-10) when David is
informed of Saul’s death, we find the following:
And
David said unto the young man that told him: “How knowest thou that
Saul and Jonathan his son are dead?” And the young man that told him
said: “As I happened by chance upon Mount Gilboa, behold Saul leaned
upon his spear; and lo, the chariots and the horsemen pressed hard
upon him. And when he looked behind him, he saw me, and called unto
me. And I answered: Here am I. And he said unto me: Who art thou?
And I answered him: I am an Amalekite. And he said unto me: Stand, I
pray thee, beside me, and slay me, for the agony hath taken hold of
me; because my life is just yet in me. So I stood beside him, and
slew him, because I was sure that he would not live after that he
was fallen ...”
Many
commentators consider this a case of euthanasia. Radak (Rabbi David
Kimchi, 1160-1235) specifically states that Saul did not die
immediately on falling on his sword but was mortally wounded and, in
his death throes, asked the Amalekite to hasten his death. Rashi
(Rabbi Solomon ben Isaac. 1040-1105) and Ralbag (Rabbi Levi ben
Gershon, 1288-1344) also support this viewpoint, as does Metzudat
David (Rabbi David Altschuler, 18th century). The Mishna, or
compilation of oral law, dating approximately to the second century
states as follows:
“One who is in a dying condition (Hebrew: gossess) is
regarded as a living person in all respects.” This rule is
reiterated by later codifiers of Jewish law including Maimonides and
Karo as described below.
The
Mishna enumerates acts which were performed on the dead to delay
putrefaction of the body.’
One
may not bind his jaws, nor stop up his openings, nor place a
metallic vessel or any cooling object on his navel until such time
that he dies, as it is written (Ecclesiastes 12:6): Before the
silver cord [Midrash interprets this as the spinal cord] is
snapped asunder.
One
may not close the eyes of the dying person. He who touches them or
moves them is shedding blood because Rabbi Meir used to say: this
can be compared to a flickering flame. As soon as a person touches
it, it becomes extinguished. So too, whosoever closes the eyes of
the dying is considered to have taken his soul.
The
fifth century Babylonian Talmud cites the following:
“He who closes the eyes of a dying person while the soul is
departing is like a murderer [literally, he sheds blood]. This may
be compared to a lamp that is going out. If a man places his finger
upon it, it is immediately extinguished.” Rashi explains that this
small effort of closing the eyes may slightly hasten
death.
The
twelfth century Code of Maimonides treats our subject matter as
follows:
One
who is in a dying condition is regarded as a living person in all
respects. It is not permitted to bind his jaws, to stop up the
organs of the lower extremities, or to place metallic or cooling
vessels upon his navel in order to prevent swelling. He is not to be
rubbed or washed, nor is sand or salt to be put upon him until he
expires. He who touches him is like one who sheds blood. To what may
he be compared? To a flickering flame, which is extinguished as soon
as one touches it. Whoever closes the eyes of the dying while the
soul is about to depart is like one who sheds blood. One should wait
a while; perhaps he is only in a swoon...
Thus,
we again note the prohibition of doing anything that might hasten
death. Maimonides does not specifically forbid moving such a
patient, as does the Mishna, but such a prohibition is implied in
Maimonides text. Maimonides also forbids rubbing and washing a dying
person, acts which are not mentioned in the Mishna. Finally,
Maimonides raises the problem of the recognition of
death.
The
code of Jewish law, the Shulchan Aruch, compiled in 1564 by
Rabbi Joseph Karo (1488-1575) devotes an entire chapter
to the laws of the dying patient. The individual in whom death is
imminent is referred to as a gossess. Rabbi Karo’s code
begins, as do Maimonides and the Mishna, with the phrase: “a
gossess is considered as a living person in all respects.”
and then Rabbi Karo enumerates various acts that are prohibited. All
the commentaries explain these prohibitions: “lest they hasten the
patient’s death.” The general explanation in the Codes of Jewish Law
is that “the rule in this matter is that any act performed in
relation to death should not be carried out until the soul has
departed” Thus, not only are physical acts on the patient such as
described forbidden, but one should also not provide a coffin or
prepare a grave or make other funeral or related arrangements lest
the patient hear of this and his death be hastened. Even
psychological stress is prohibited.
Is
there no circumstance where euthanasia might be condoned in Judaism?
Rabbi Judah ben Samuel the Pious, putative author of the thirteenth
century work, Sefer Chassidim, states:
“... if a person is dying and someone near his house is chopping
wood so that the soul cannot depart then one should remove the
[wood] chopper from there...”
Based
on the Sefer Chassidim, Rabbi Moses Isserles (1510-1572).
known as Rama, in his glosses on the Shulchan Aruch,
states:
If
there is anything which causes a hindrance to the departure of the
soul such as the presence of a knocking noise such as wood chopping
near the patient’s house or if there is salt on the patient’s
tongue, and these hinder the soul’s departure, then it is
permissible to remove them because there is no act involved in this
at all but only the removal of the impediment.
Examples
of such removal of impediments are cited in the Talmud – In one
famous passage
a distinction is implied between the deliberate termination of life
and the removal of means which artificially prolong the painful
process of death. The passage describes the martyrdom of Rabbi
Chanina ben Teradyon, who was the victim of the Romans during the
Hadrianic persecutions of the second century C.E. The martyr was
wrapped in the scroll of the Torah from which he had been teaching,
and placed on a pyre of green brushwood. His chest was covered with
woolen sponges, drenched with water, to prolong the agony of dying.
His disciples advised him to open his mouth so that he might be
asphyxiated and have a quicker end to his suffering. He refused to
do so saying: “It is best that He who has given life should take it
away; no one may hasten his death.” He did, however, allow the
executioner to remove the wet sponges; the fire could then consume
at its natural, unimpeded pace.
This
act of removing hindrances to natural death was deemed
meritorious.
The
sum total of this discussion of the Jewish attitude toward
euthanasia seems to indicate, as expressed by Great Britain’s Chief
Rabbi, Lord Immanuel Jakobovits,
that: “... any form of active euthanasia is strictly prohibited and
condemned as plain murder... anyone who kills a dying person is
liable to the death penalty as a common murderer.” At the same time,
Jewish law sanctions the withdrawal of any factor – whether
extraneous to the patient himself or not – which may artificially
delay his demise in the final phase.” Rabbi Jacobovits is quick to
point out. However, that all the Jewish sources refer to a
gossess who is an individual in whom death is expected to be
imminent, three days or less in Rabbinic references. Thus, passive
euthanasia in a patient who may yet live for weeks or months may not
necessarily be condoned. Furthermore, in the case of an incurably
ill person in severe pain, agony, or distress, the removal of an
impediment which hinders his soul’s departure, although permitted in
Jewish law, may not be analogous to the withholding of medical
therapy that is perhaps sustaining the patient’s life albeit
unnaturally. The impediments spoken of in the Code of Jewish Law,
whether far removed from the patient as exemplified by the noise of
wood chopping, or in physical contact with him such as the case of
salt on the patient’s tongue, do not constitute any part of the
therapeutic armamentarium employed in the medical management of this
patient. For this reason, these impediments may be removed. However,
the discontinuation of instrumentation and machinery which is
specifically designed and utilized in the treatment of incurably ill
patients might only be permissible if one is certain that in doing
so one is shortening the act of dying and not interrupting life. Yet
who can make the fine distinction between prolonging life and
prolonging the act of dying? The former comes within the physician’s
reference, the latter does not.
Hazardous
or Experimental Therapy for the Terminally Ill
A
cardinal principle in Judaism is that human life is of infinite
value. The preservation of human life takes precedence over all
biblical commandments, with three exceptions: idolatry, murder and
forbidden sexual relationships such as incest. Life’s value is
absolute and supreme. Thus, an old man or woman, a mentally retarded
person, a handicapped newborn, a dying cancer patient and their
like, all have the same right to life as you or I. In order to
preserve a human life, the Sabbath and even the Day of Atonement may
be desecrated or set aside and all other rules and laws, save the
above three, are suspended for the overriding consideration of
saving a human life. The corollary of the principle is that one is
prohibited from doing anything that might shorten a life even for a
very short time since every moment of human life is of infinite
value.
How
are these basic principles applied when a physician is confronted
with the following dilemma? His extremely ill patient will, under
normal circumstances, die shortly, perhaps in a few days or weeks.
His patient’s only chance for survival is dangerous and/or
experimental surgery or therapy. However, if the surgery or therapy
fails to heal, the patient may die immediately. What
should the physician do
Should the risk of administering drastic treatment and thereby
possibly shortening the life of the patient be taken in the hope
that the patient may be cured and life thereby be prolonged? In
other words, should the physician abandon the definite short
life span of the patient in favor of the possible significant
prolongation of his life?
In
his famous responsum, Rabbi Moshe Feinstein states” that one is
permitted to submit to dangerous surgery even though it may hasten
death, if unsuccessful, because of the potential, however small, of
the operation being successful and affecting a cure. Israel’s former
Chief Rabbi Shlomo Goren writes
that one should use hazardous experimental therapy in a case not
only where the patient will certainly die without the medical or
surgical therapy, but also where the possibility exists of
prolonging the patient’s life by the therapy. Britain’s Chief Rabbi,
Lord Immanuel Jakobovits, also agrees that hazardous therapy may be
applied to patients if it may be potentially helpful to the patient,
however remote the chances of success are.
Two
earlier rabbinic sources also clearly enunciate the Jewish legal
view concerning hazardous therapy for the dying. Rabbi Chayim Ozer
Grodzinski (1863-1940) was asked about the permissibility of
performing a dangerous surgical procedure on a seriously ill
patient. He answered
that if all the attending physicians, without exception, recommend
such an operation, it should be performed, even if the chances for
success are smaller than those for failure. A similar pronouncement
is made be Rabbi Jacob Reischer (1670-1733) with regard to dangerous
medical therapy for a seriously ill patient.
Rabbi Reischer permits such therapy since it may cure the patient
although it may hasten the patient’s death. Rabbi Reishcer also
requires the concurrence of a group of physicians in the
decision.
The
basic tenet of Judaism is the supreme value of human life. This
principle is based in part upon our belief that man was created in
the image of God. Therefore, when a person’s life is in danger, even
when there is no hope for survival for a prolonged period but only
for a short time, all commandments of the Torah are set aside. Any
act which can prolong life supersedes all the biblical commandments
except the three cardinal ones.
Heroic
or Extraordinary Measures
The
Medical Ethics Committee of the Federation of Jewish Philanthropies
of New York deliberated for nearly a year on the subject of “when
not to treat the terminally and incurably ill” and concluded
that a patient in a coma, but able to breathe without mechanical
assistance, is to be afforded all the care and concern due any ill
person. The imminence of death in no way exempts the family or
medical team from fully supporting such a patient. Hydration via
intravenous infusion, antibiotics to treat infections, and other
pharmacological agents to maintain good organ function, must be
provided. Whereas a comatose or chronic vegetative state patient may
be a serious burden to his family and society, he is not so to
himself, being free of physical pain or psychic trauma.
For
a non-comatose patient, when a cure is possible, the only limiting
factor is availability of the treatment modality. Neither
technological complexity nor financial expense should be spared:
these are easily justified by the benefit to be accrued – the saving
of human life of infinite worth. If cure is not possible and life
prolongation is achieved only at great financial burden, the
distinction between extraordinary and usual ceases to be an ethical
issue at the patient-physician level and becomes a problem of
availability of resources with its sociological implications.
Extraordinary or heroic methods that do not cause discomfort or
introduce new risks of morbidity and fatality, can be offered for
patients of very limited life span. However, the physician heals
under a divine license which is not without restrictions. These
restrictions are defined by various factors, such as the nature of
the patient and his condition, the methodology of treatment, the
risk-benefit ratio, etc. Where the physician cannot effect a cure,
his role becomes one of palliation.
Do
heroic or extraordinary measures constitute impediments to dying?
How does one define heroic measures? What was heroic ten years ago
may be standard practice today. What may be considered heroic for a
terminally ill cancer patient may be standard therapy for an
otherwise healthy person. When, if ever, may treatment be withheld?
May not a terminally ill patient request that his agony not be
prolonged? Must a patient in deep coma but breathing without
mechanical assistance be afforded all the care and concern due any
ill person including hydration via intravenous infusion, antibiotics
to treat infections, and optimum care to maintain good kidney, liver
and cardiac function? Jewish tradition answers the latter question
in the affirmative in view of the supreme value of human life whose
preservation takes precedence over virtually all other
considerations. Human life is not regarded as a goal to be preserved
as a condition of other values but as an absolute basic
good.
The
Definition of Death
The
definition of death in Jewish law
is based on a passage in the Babylonian Talmud
which enumerates circumstances under which one may or must desecrate
the Sabbath:
...
every danger to human life suspends the [laws of the] Sabbath. If
debris [of a collapsing building] falls on someone and it is
doubtful whether he is there or whether he is not there, or if it is
doubtful whether he is alive or whether he is dead.... one must
probe the heap of the debris for his sake [even on the Sabbath]. If
one finds him alive, one should remove the debris but if he is dead,
one leaves him there [until after the Sabbath].
The
Talmud
then explains as follows:
...How
far does one search [to ascertain whether he is dead or alive]?
Until [one reaches] his nose. Some say: Up to his heart... Life
manifests itself primarily through the nose as it is written: In
whose nostrils was the breath of the spirit of life [Genesis
7:22]...
Rashi
states that if no air emanates from his nostrils, he is certainly
dead. Rashi further explains that some authorities suggest the heart
be examined for signs of life, but the respiration test is
considered of greatest import.
The
Palestinian Talmud
quotes certain authorities who require searching “until one reaches
the navel.” but this is a minority viewpoint.
The
above rule establishing absence of spontaneous respiration as the
definition of death is codified by Maimonides
as follows:
If,
upon examination, no sign of breathing can be detected at the nose,
the victim must be left where he is [until after the Sabbath]
because he is already dead...
The
Shulchan Aruch
states:
Even
if the victim was found so severely injured that he cannot live for
more than a short while, one must probe [the debris] until one
reaches his nose. If one cannot detect signs of respiration at the
nose, then he is certainly dead whether the head was uncovered first
or whether the feet were uncovered first.
Neither
Maimonides nor Rabbi Karo seem to require examination of the heart
or navel, both mentioned as minority opinions in the Babylonian and
Palestinian Talmuds, respectively. Cessation of respiration seems to
be the determining physical sign for establishing death.
Recent
Rabbinic Writings on the Definition of Death
Recent
rabbinic opinions support the classic Jewish legal definition that
death is established when spontaneous respiration ceases. Rabbi
Moses Schreiber, who asserts that if a person is motionless like an
inanimate stone and has no palpable pulse either in the neck or at
the wrist, and also has no spontaneous respiration, his soul has
certainly departed. But one should wait a short while to fulfill the
requirement of Maimonides, who was concerned that the patient may
only be in a swoon.
Rabbi Sholom Mordechai Schwadron states that if any sign of life is
observed in limbs other then the heart and lungs, the apparent
absence of spontaneous respiration is not conclusive in establishing
death.
On
the other hand, Rabbi Isser Yehudah Unterman states that one is dead
when one has stopped breathing. Thus, most talmudic and
post-talmudic sages agree that the absence of spontaneous
respiration is the only sign needed to ascertain death. A minority
would also require cessation of heart action. Thus a patient who has
stopped breathing, says Rabbi Unterman, and whose heart is not
beating is considered dead in Jewish law.
Rabbi
Eliezer Yehudah Waldenberg also defines death as the cessation of
respiration and cardiac activity.
One must use all available medical means to ascertain with certainty
that respiratory and cardiac functions have indeed ceased. A flat
electroencephalo-gram in the face of a continued heartbeat is not an
acceptable finding by itself to pronounce a patient dead. Even after
death has been established one should wait a while before moving the
deceased. Rabbi Moses Feinstein states that if the brain is not
functioning, death will occur because breathing will stop.
The Talmud and the codes of Jewish law do not indicate, continues
Rabbi Feinstein, that the signs of life are in the brain, and it is
illogical to say that the nature of man has changed, since even in
talmudic days the brain controlled all life-sustaining functions
(i.e. respiration). But cessation of brain activity was not
considered to be the definition of death. Although the respiration
test is paramount, it is clear that “the nose is not the organ which
gives life to a human being, nor is it the organ of respiration:
rather the brain and the heart give life to man.” The nose is the
easiest place to recognize the presence of life, concludes Rabbi
Feinstein, since a very weak pulse may not be detectable and brain
activity is not easily measured on physical examination
alone.
A
similar conclusion is expressed by Rabbi Immanuel Jakobovitz, who
states, in part, that “the classic definition of death as given in
the Talmud and Codes is acceptable today and correct. However, this
would be set aside in cases where competent medical opinion deems
any prospects of resuscitation, however remote, at all feasible.”
Rabbi
Aaron Soloveitchik, in a very novel approach, states that death is a
process which begins the moment spontaneous respiration ceases and
ends when all bodily functions emanating from the controlling
center, i.e. the brain, end.
This means that when a person in whom death is imminent no longer
shows signs of respiration but other bodily organs such as the brain
are potentially operative, such a person is no longer completely
alive but he is not yet dead: death has begun but the death process
is not complete until the brain and heart completely cease to
function. During this period, a person is in a state of semi-living,
not fully alive but not fully dead. Anyone who kills such a person
or who hastens his death is therefore, guilty of murder. This is the
reason why Maimonides rules that one is not allowed to move a dying
person while his soul is departing until after one waits a while.
Maimonides refers to a person who is motionless and who has no
spontaneous heartbeat or respiration. One must wait half an hour
because his brain may still be operative and the patient potentially
resuscitable. This “dying” person is in a semi-living state and,
therefore, one is prohibited from doing anything which may hasten
death.
Rabbi
J. David Bleich eruditely traces the Jewish legal attitude
concerning the definition of death from talmudic through recent
rabbinic sources.
He points out that brain death and irreversible coma are not
acceptable definitions of death insofar as Jewish law is concerned,
since the sole criterion of death accepted by Jewish law is total
cessation of both cardiac and respiratory activity. Even when these
indications are present, continues Rabbi Bleich, there is a definite
obligation to resuscitate the patient, if at all
feasible.
Total
Brain Death in Judaism
Rabbi
Moshe David Tendler introduced the concept of physiologic
decapitation or brain stem death in Judaism as an acceptable
definition of death even if cardiac function has not ceased.
The thesis at that time was that:
Absent
heartbeat or pulse was not considered a significant factor in
ascertaining death in any early religious source. Furthermore, the
scientific fact that cellular death does not occur at the same time
as the death of the human being is well recognized in
the earliest biblical sources. The twitching of a
lizard’s amputated tail or the death throes of a decapitated man
were never considered residual life but simply manifestation of
cellular life that continued after death of the entire organism had
occurred. In the situation of decapitation, death can be defined or
determined by the decapitated state itself as recognized in the
Talmud and Code of Laws. Complete destruction of the brain, which
includes loss of all integratiue, regulatory, and other functions of
the brain, can be considered physiological decapitation and thus a
determinant per se of death. Loss of the ability to breathe
spontaneously is a crucial criterion for determining whether
complete destruction of the brain has occurred. Earliest biblical
sources recognized the ability to breath independently as a prime
index of life... destruction of the entire brain or brain death, and
only that, is consonant with biblical pronouncements on what
constitutes an acceptable definition of death, i.e. a patient who
has all the appearances of lifelessness and who is no longer
breathing spontaneously. Patients with irreversible total
destruction of the brain fulfill this definition even if heart
action and circulation are artificially
maintained.
Thus,
if it can be definitely demonstrated that all brain functions
including brain stem function have ceased, the patient is legally
dead in Jewish law because he is equated with a decapitated
individual whose heart may still be beating. Brain stem function can
be accurately evaluated by radionuclide cerebral angiography at the
patient’s bedside.,,,
This is a simple, safe, highly specific and highly reliable
indicator of absence of blood flow to the entire brain thus
confirming total, irreversible brain death. “The absence of cerebral
blood flow is presently considered the most reliable ancillary test
in diagnosing brain death.”
Other presently used tests to confirm brain death are the apnea
test,
evoked potentials,
transcranial Doppler studies,
xenon-enhanced computed tomography
and digital subtraction angiography.
The electroencephalogram is not a reliable index for the
establishment of brain death since it only indicates activity of the
cerebral cortex and does not clarify brain stem function at all.
Furthermore, electroencephalographic activity can be observed for
many hours after “brain death” in both adults
and children.
The
aforementioned position that complete and permanent absence of any
brain-related vital bodily function is recognized as death in Jewish
law is supported by Rabbi Moshe Feinstein
whose responsum on heart transplantation begins with a
discussion of decapitation. Feinstein quotes Maimonides
who states that a person who is decapitated imparts ritual
defilement to others because he is considered dead even though one
or more limbs of the body-may yet move spastically, temporarily. The
situation is comparable to the severed tail from a lizard which may
still quiver temporarily but is certainly not alive.
Rabbi Feinstein asserts that “someone whose head has been severed,
even if the head and the body shake spastically, that person is
legally dead.” The requirement of Maimonides, cited earlier in this
essay, to wait a while when death is thought to have occurred (i.e.
when the patient has no spontaneous respiratory activity) is needed,
according to Rabbi Feinstein, in order to differentiate between true
death and the situation “where the illness is so severe that the
patient has no strength of breath.” Since only a few minutes of
absent breathing is compatible with life, if the patient is observed
for fifteen minutes with no spontaneous respirations, he is legally
dead (unless a potentially reversible cause of respiratory absence
is present such as hypothermia or drug overdose).
A
more recent responsum of Rabbi Feinstein
further supports the acceptability of “physiologic decapitation” as
an absolute definition of death. He again reiterates the classic
definition of death as being the total irreversible cessation of
respiration. He then states that if by injecting a substance into
the vein of a patient, physicians can ascertain that there is no
circulation to the brain, meaning no connection between the brain
and the rest of the body, that patient is legally dead in Judaism
because he is equivalent to a decapitated person. Where the test is
available, continues Rabbi Feinstin, it should be used.
Rabbi
Tendler interprets Rabbi Feinstein’s written responsa to indicate
that Jewish law clearly recognizes that death occurs before all
organs cease functioning. Cellular death follows organismal death.
Jewish law defines death as an organismal phenomenon involving
dissociation of the correlative or coordinating activities of the
body. Thus, the only valid definition of death is brain death. The
classic respiratory and circulatory death is in reality brain death.
Irreversible respiratory arrest is indicative of brain death. A
brain dead person is like a physiological decapitated individual.
The requirement of Maimonides to “wait awhile” to confirm that the
patient is dead is that amount of time it takes after the heart and
lung stop until the brain dies, i.e. a few minutes.
In
summary, all Rabbis agree that the classic definition of death in
Judaism is the absence of spontaneous respiration and heartbeat in a
patient with no bodily motion. A brief waiting period of a few
minutes to a half hour after breathing has ceased is also required.
In the present era, when it is recognized that hypothermia or drug
overdose can result in depression of the respiratory center with
absence of spontaneous respiration and even heartbeat, this classic
definition of death is insufficient. Hence, wherever resuscitation
is deemed possible, no matter how remote the chance, it must be
attempted. Total brain death is not accepted by all rabbinic
scholars to be a criterion for establishing death other than to
confirm death in a patient who already has irreversible absence of
spontaneous respiration and no heartbeat. The only exception may be
the situation of decapitation where immediate death is assumed even
if the heart may still be briefly beating. Whether irreversible
brain stem death as evidenced by sophisticated medical testing is
the Jewish legal equivalent of decapitation is presently a matter of
intense debate in rabbinic circles.
The
Living Will
The
living will is a method available in many jurisdictions of the
United States that recognizes the right of an adult person to prepare a written directive
instructing his physician to withhold life-sustaining procedures in
the event of the person’s inability to do so while in a “terminal”
condition. The living will is designed to promote patient autonomy
while removing onerous decision-making from physicians and the
patients’ families. Experience with the living will indicates that
it can either help or hinder clinical decision-making.
The
Jewish physician may ponder the moral and ethical considerations
involved in the living will: since it is extremely difficult to
accurately prognosticate for critically ill patients and to
determine whether or not the patient is irreversibly ill and whether
or not death is imminent, the provisions of the living will may be
activated prematurely. Alternatively, the existence of a living will
may deprive the patient of the full efforts of the medical team who
might not utilize the usual vigor and aggressive approach dictated
by the patient’s condition.
If
the patient changes his mind during the period when the living will
is in effect, yet fails to formally rescind the declaration, it may
be activated without proper “informed consent.” Moreover, since
intractable pain is often a major cause for activating the living
will, medical science may be then have developed better methods to
deal with such pain. A patient who signs a living will thinks that
he is opting for a painless, conscious, dignified, decent,
comfortable, peaceful, natural death. In fact, what the patient
perceives as his “right to die” may backfire.
The living will only protects refusal of treatment but does not
guarantee a peaceful easy death. As one writer aptly
stated:
The
patient who earlier wished not to be “hooked up on tubes” now begins
to experience difficulty in breathing or swallowing. A tracheotomy
will relieve his distress but the living will said, “no
tracheotomy!” The bowel cancer patient experiences severe discomfort
from obstruction. And gives permission for decompression or
reductive surgery after all [contrary to or rescinding the
provisions of the living will!]. In some cases, the family may
engineer the change of heart because they find dying too hard to
watch. Health care personnel may view these reversals with
satisfaction: “See.” they may say, “he really wants to live after
all.” But such reversals cannot always be interpreted as a triumph
of the will to live; they may also be an indication that refusing
treatment makes dying to hard.
In
essence, Judaism is opposed to the concept of the living will in
that the patient may not have the “right to die.” He has an
obligation to live. Only God gives and takes life. Man does not have
full title over his life or body. He is charged with preserving,
dignifying and hallowing that life.
Concluding
Remarks
The
complexities of the issues relating to death and dying, mercy
killing, withholding treatment, heroic measures, discontinuation of
life support systems, and the living will, among others, are many.
Related issues such as organ transplantation, autopsy, embalming,
cremation and suicide in Judaism52 are beyond the scope of this
article.
Jewish
tradition views death as inevitable and just. It differentiates
between the body and the soul, acknowledging resurrection for the former and immortality for
the latter. Respect for death is mandated. Jewish law requires the
physician to do everything in his power to prolong life, but
prohibits the use of measures that prolong the act of dying. To save
a life, all Jewish religious laws are automatically suspended, the
only exceptions being idolatry, murder, and forbidden sexual
relations such as incest. In Jewish law and moral teaching, “the
value of human life is infinite and beyond measure, so that any part
of life – even if only an hour or a second – is of precisely the
same worth as seventy years of it, just as any fraction of infinity,
being indivisible, remains infinite. Accordingly, to kill a decrepit
patient approaching death constitutes exactly the same crime of
murder as to kill a young, healthy person who may still have many
decades to live...”
“However
much Judaism cares about the mitigation of pain, what it does not
sanction is the purchase of relief from suffering at the cost of
life itself. Any sanction of euthanasia would cheapen life by making
its preservation contingent upon considerations of expediency or
relative merit.”10 How does Judaism resolve the conflict between the
sanctity of life and the relief of human suffering? The concern for
the patient’s physical and mental welfare remains supreme to the
end, and everything must be done to preserve both.
Euthanasia
is opposed without qualification in Jewish law, which condemns as
sheer murder any active or deliberate hastening of death, whether
the physician acts with or without the patient’s consent. Some
rabbinic views do not allow any relaxation of efforts, however
artificial and ultimately hopeless, to prolong life. Others,
however, do not require the physician to resort to “heroic” methods,
but sanction the omission of machines and artificial life supporting
systems that only serve to draw out the dying patient’s agony,
provided, however, that basic care such as food and water and good
nursing and other supportive care is provided.
Epilogue
The
phrase “quality of life” or “quality of existence” embodies within
it a concept of worthiness with connotations of personal character
and social status. Should a decision as to whether life is worth
living be determined on the basis of pain, suffering, and, as some
today suggest. From a consideration of its deviancy from normal?
When a person’s intellect ceases to function because he is in coma,
that person is intellectually dead. When a person cannot function in
society because he is mentally deficient or physically malformed, he
is socially dead. Should such individuals not be allowed to live
because they lack “worthiness”)?
Emotional
and financial burdens are frequently cited as justification for
decisions about “heroic” measures or life support systems for a
dying infant or child, a vegetative adult, or a terminally-ill
cancer patient. Social costs should remain divorced from such
decision-making. The public should rightly assume the fiscal burden
associated with maintaining incompetent patients such as Karen Ann
Quinlan whose lives are being preserved, albeit in a vegetative
state.
Suffering of the family is another reason
offered for allowing a patient to die by removing artificial life
supports. Precisely because of their closeness to the situation, the
family may not be capable of reaching a detached, dispassionate, and
objective decision. On this basis, the sanctity of life as a
pre-eminent value is being threatened. Evil has small beginnings.
When the quality of life replaces the sanctity of life, society has
done itself irreparable harm.
Source:
ASSIA – Jewish Medical Ethics,
Vol. II, No. 1, January
1991, pp. 38-45