Compulsory Testing and
Therapy for AIDS
AIDS raises a number of halachic issues in addition
to a wide range of its medical and social problems. An essential element
relevant to AIDS is the identification of high-risk groups for testing, which
is simple and performed on a blood specimen. Even though there is as yet no
cure for AIDS, the test is important for the person involved as well as for all
contactants. There are two halachic issues:
a. May a patient be
treated against his will?
b. May a person be
forced to undergo treatment or testing in order to prevent others from becoming
infected?
In the opinion of Nachmanides,[1] as expressed in his commentary a man of piety ought not seek medical
treatment:[2]
During the era of the prophets the pious sought counsel of
the prophets rather than that of physicians, in contrast to the behavior of
Asa, of whom it is said: “Even in his illness he did not seek the Lord, but the
help of physicians”[3]... According to the Talmud Baba Kama 85a, the verse “he shall
surely heal”[4] indicates that physicians are permitted to heal, but this
does not mean that patients are justified to seek human treatment. However, if
a patient does seek such treatment, as is common behavior, rather than
rely entirely on celestial help as do those of unrestricted piety, the
physician should not refrain from treating him. For as long as the physician is
adequately trained, he may not avoid giving treatment lest this may lead to the
death of the patient. Nor should the physician avoid giving treatment on the
ground that the Lord alone heals all flesh. Accordingly, a person who injures
another “by stone or fist” is obligated to pay for the medical costs and for
the injury inflicted because the laws of the Torah do not regulate for possible
miraculous intervention.
Contrary to Nachmanides’ view, Rashba[5] and the Tur[6] held that since “He shall surely heal”[7] clearly implies that the physician is permitted to heal..., this in turn
indicates that one is also obligated to treat, as part of one’s duty to protect
life.
The Bayith Chadash[8] added:
Does not the verse about Asa, which stated that “Even in
his illness he did not seek the Lord, but sought help from physicians”[9] seemed to imply that it is prohibited to seek medical treatment for a
blow inflicted by Heaven? But, since he (Asa) sought help only from
physicians and none at all from the Lord, he was punished accordingly.
However, if one puts one’s trusts in the Lord to heal by a physician as his
emissary, it is only right to seek such human intervention, even for what was
inflicted by Heaven. This is the accepted behavior in all Jewish communities.
The Bayith Chadash clearly calls upon the patient to seek God’s
mercy together with the help of medical therapy, and just as he should trust in
the Lord, so he also must seek human meditation.
We must also understand that Nachmanides somewhat revised
his opinion as expressed in Torath ha’Adam, where he wrote:
Since the physician is permitted to heal, healing is
indeed a divine commandment. The physician need have no fear of the possible
consequences. Therefore, if he acts in accordance with his best judgment,
healing is the very fulfillment of the divine commandment to heal.
The position of Nachmanides in Torath ha’Adam leads
us to conclude that he holds that on the one hand the physician has a divine
commandment to heal, but that the patient has a right to choose to rely
entirely on heavenly cure.
If the patient chooses not to rely entirely on spiritual
intervention, he is then obligated to seek human treatment.
The Chazon Ish wrote:[10]
I personally think that maintaining one’s health in accord
with the laws of nature is an obligatory command- ment. It is one of the
obligations which complete the person. There were Talmudic sages who went to
gentile physicians and even to heretics for treatment... It is obligatory to
seek medical treatment for one’s self, just as one is obligated to seek medical
treatment for one’s fellow man. Try, therefore, to overcome your emotional
inclinations and follow the physicians’ instructions.
Leading contemporary authorities[11] hold that in our days (when there are no prophets) all
authorities agree that medical intervention is obligatory.
According to Radbaz[12] a patient may be
compelled to follow physician’s instructions:
You inquired about a patient whose medical treatment
required “violating” the Shabbat. A pious patient who tries to avoid
“violating” the Shabbat (when this is medically necessary) is a pious fool and
is punishable for so behaving. Such behavior is not piety, but is equivalent to
self-destruction. The patient must therefore be treated even against his will,
otherwise it is tantamount to shedding blood.
Relying on the opinion of Radbaz, Magen Abraham[13] comm- ents on the decision of the Shulchan Aruch
that even medical treatment of questionable benefit supersedes Shabbat
regulations in lifesaving situations. If the patient did not want to accept
treatment, this is to be enforced on him.
In conclusion, a patient may be compelled to accept medical
treatment even against his will.
There are two basic questions:
1. Is it proper to
require that every member of a “high-risk group” undergo screening for AIDS
when only a minority of them are likely to be AIDS carriers?
2. Is it proper to
require them to undergo blood testing, which is an invasive procedure, with
some albeit minimal risk?
It seems to me that the answer to both these questions is
in the affirmative. Such testing procedures should be made mandatory for the
benefit both of the subjects and that of the public.
Similarly, compulsory blood tests are called for despite
the possible complications associated with them. But first we must halachically
define the concept of “high-risk group.”
We should apply the halachic principle of “epidemic” to
the members of a high-risk group. For example, if a city is affected by an
epidemic all its residents constitute a high-risk group likely to contract
disease. Any portion of the population which is particularly susceptible,
whether because of life style (homo- sexuality) or because of a medical
condition (hemophilia), is to be considered like those in an area of epidemic.
In Responsa Chatham Sofer[14] fasting on Yom Kippur during a cholera epidemic was discussed.
A nursing mother is permitted to take food if the baby’s life might be
endangered by the mother’s fast leading to reduction of vital milk supply. So
also is it permitted[15] for the mother to take food in cases where the threat to
a baby’s life is questionable. “All the more is it permissible for a healthy
person to take food if that person’s own life is in danger, even if he is for
the moment still healthy, lest he fall victim to the epidemic.”
It is common knowledge that on Yom Kippur during an epidemic
of cholera, Rabbi Yisrael Salanter made kiddush in the presence of the whole
congregation.[16]
See Magen Avraham (576:2) who wrote: “Nowadays we
do not fast at all during an epidemic, for our experience has been that fasting
can be dangerous.”[17]
When the patient says on Yom Kippur: “I do not need to
eat” and the physician says: “he should eat,” halacha requires that he be
forcibly fed[18]. Since epidemics are to be equated with life threatening
disease, it follows during an epidemic food must be taken. In light of this,
epidemic and high-risk groups call for compulsory medical treatment.
Compulsory Testing and Treatment for the Benefit of the Public
Until now our discussion has been based on halachic sources which would
obligate a group with a high risk of contracting AIDS to be tested for their
own benefit. Although the disease is as yet incurable, there is no doubt that
timely intervention may lengthen the patient’s life. In fact, compulsory
testing is proper not only for the sake of the members of the high-risk group,
but is also because the high-risk group may be a danger to the public.
In the Shulchan Aruch, Rama[19] ruled that: “He who endangers the public, e.g. a forger,
is considered a “rodef” (pursuer, a danger to the public) and it is
therefore permissible to inform the gentile authorities of his deeds.” In
paragraph 2 it is stated: “Therefore, a fetus which threatens its mother’s life
may be aborted as it is in effect a “rodef.” It is clear that the law of
“rodef” applies to anyone, even if as blameless as a fetus who endangers
the life of another. In such situations it is permissible to destroy the “rodef”
or inform the authorities against him.
It is known that high-risk groups endanger both their own
members and the general population. Therefore, even if they are blameless they
are to be considered “rodefim.” Similarly, the principle of “rodef”
applies in cases of doubt such as, for example, the case of a robber who might
be a threat to the life of his victim.[20]
Members of the high-risk group must be tested because they
constitute possible “rodefim” to threaten the welfare of the public.
Halacha requires minimizing the injuring to the “rodef” while saving the
victim.
Taking a sample of blood is certainly only a minimal
injury. In addition, we might well apply the principle established in the Shulchan
Aruch[21] that the City Elders have the power to seize private
property and even condemn private property, as needed.
See Sefer Me’irat Einayim[22] according to whom the Elders “may fine violent persons,
excommunicate them, and imprison them.” There is surely an urgent “need” to
prevent the spread of AIDS, particularly when all we ask of the high-risk group
is a simple blood test.
Appropriate testing of high-risk groups is obligatory for three reasons:
1. Everyone is obligated to accept medical treatment if sick or in danger, and such treatment may be applied compulsorily.
2. A high-risk group is
to be considered a “rodef,” as a danger pursuing the general population.
3. The City Elders may
legislate regulations which physically affect the inhabitants of the city. This
surely applies to regulatory blood testing for AIDS, particularly since such
tests involve only minimal danger.*
Source:
ASSIA – Jewish Medical Ethics,
Vol. II, No. 2, May 1995, pp. 10-12
*In
his responsa Radbaz wrote: “Further, amputation of even a non-vital limb
can cause fatal bleeding.... I have seen a patient die from bleeding from small
scratches on his ear. If scratches can be fatal, all the more is amputation
dangerous (Resp. 1052; 3:527).”
It is, however, inconceivable that Radbaz was
referring to a proceedure similar to modern blood testing. See Dr. Levi, “Kidney
Transplantation in Halacha” in Noam 17, where he wrote: “Radbaz
was referring to the state of medieval medicine.” See Tsits Eliezer
9:48, 10:25. I have discussed this issue in detail in my article “Priorities in
Lifesaving” in Dine Yisrael (5736).