The Obligation
to Save Life
Eliezer ben Shlomo, J.D., Ph.D.
In his detailed article Professor Kirschenbaum has shown that in Jewish
law lifesaving is a legal, as well as a moral, obligation.[1]
Pursuant to his
article, I would like to examine the normative criteria of this obligation, its
practical ramifications and its effec- tiveness, as well as its limitations.
Normative
Criteria and Effectiveness of the Obligation
As far as
normative criteria are concerned, the obligation to save life is established in
the codex of Jewish law as a legal obligation which obligates whoever happens
to chance upon a situation where he can intervene and save life.
The source of
this obligation in the Torah is found in the positive commandment “You shall
surely return it to him”[2]
and in the negative commandment “You shall not stand idly by.”[3]
The Talmud[4]
explains that the positive commandment is the principal source, while the
negative commandment broadens the obligation requiring the lifesaver to spend
money when saving life.[5]
The obligation
to save life appears in halachic literature. In the Mishneh Torah it is
mentioned in the heading of a special section, “The Laws of Homicide and
Lifesaving,” and in the Shulchan Aruch it appears in Choshen Mishpat
425-427.
In Jewish law
the obligation to save life is considered to be a primary obligation which
supersedes other laws. In the dilemma of conflict of laws, the law of
lifesaving prevails over all other laws (e.g., lifesaving supersedes the laws
of Shabbat, whose violators are subject to capital punishment) with three
exceptions: idolatry, homicide, and prohibited intercourse.
As far as the
effectiveness of the legal obligation is concerned, Jewish law, unlike other
disciplines, is not merely measured in terms of authority, enforcement, or
punishment. Jews have adhered to Jewish law despite the lack, since the days of
the Hasmoneans, of any juridical autonomy or administrative authority to
enforce it. Therefore, any discussion of the court’s powers of compulsion is
purely theoretical.
A rabbinic court
has the inherent authority to compel compliance with positive commandments.[6]
Although coercion is not generally applied in cases of positive commandments
whose fulfillment brings material rewards, we find that the court does compel
compliance with the laws of philanthropy. Although philanthropy is indeed a
positive commandment (“Because for this the Lord your God will bless you in all
your deeds”[7]), coercion
in matters of philanthropy is based on a parallel negative commandment (“Do not
withhold your hand”[8]). In this
regard, compliance with the laws governing weights and measures is similar to
philanthropy; although compliance with these laws brings its own material
reward, court enforcement is mandated.[9]
Fulfillment of
the positive commandment to restore one’s life (“You shall surely return it to
him”) does not brings its own material reward. Even if the Torah had
established a reward for the lifesaver as part of the positive commandment,
there is still a parallel negative commandment: “You shall not stand idly by.”
Therefore, the court is empowered with the general authority to compel
compliance and coerce anyone to save a life. Regarding coercion, lifesaving is
like any other positive commandment.
Various Torah
articles that have appeared over the last few years have expressed diverging
opinions on the specific authority of the court to compel such compliance in
cases of lifesaving.
Rabbi Eliezer
Yehuda Valdenberg[10]
concludes that according to Ramban, no one who desists from fulfilling the commandment
to save a life can be compelled to do so in mundane law. This is because
the commandment is incumbent upon everyone, and the court cannot compel any
specific individual to fulfill it. A further (utilitarian) reason can be found
in the Drisha: “The court which compels compliance with commandments
should better send help in loading and unloading animals.”[11]
Rabbi Valdenberg does not dispute the rabbinic court’s general authority
to compel compliance. Unfortunately a person who refrains from saving human
life because of practical considerations is not compelled, as he explained.
Rabbi Yehoshua
Yogel, however, introduces a new under- standing of the Tosafot.[12]
Anyone may compel another to drive away a lion from his flock. It follows that
coercion is proper with respect to the commandment of restoring lost property
just as with respect to any other commandment.[13]
Further, the authority to compel compliance is given to every citizen without
requiring him to apply to the court for permission. In lifesaving, for example,
a physician or an ambulance driver engaged in lifesaving is permitted to take a
ladder, board, rope, or any other private property without prior judicial
authorization.[14]
Rabbi Naftali
Bar-Ilan, in his article “Terumat Moach ha-Etsem – Hebbetim Hilchatiyyim,”[15]
supports the opinion that coercion is proper. His article goes far in enabling
coercion even in cases where there is some limited danger to the lifesaver. “It
is obvious that there is room to compel a donor to give his bone marrow just as
we compel compliance with the laws of philanthropy.”
Rabbi
Valdenberg’s approach, which rejects coercive powers, receives some support in
a personal story published by Rabbi Avigdor Nebenzahl, the rabbi of the Old
City of Jerusalem. In his youth, Rabbi Nebenzahl was sent to ask whether it is
permitted to try and influence someone to donate blood. The Brisker Rav, Rabbi
Isaac Soloveitchik, answered that it is permitted to tell someone that
so-and-so requires blood, but one should in no way pressure him to donate.[16]
There are
different degrees of coercion: in philanthropy we employ “strong coercion,”[17]
whereas in supporting one’s parents we employ only minimal coercion.[18]
Occasionally, “verbal coercion” is deemed sufficient.[19]
However, despite
the divergence of opinion regarding specific coercive authority in cases of
lifesaving, the court is empowered with general authority to compel compliance.
Even when com- pulsion is not applied, anyone who performs the commandment of
lifesaving enjoys legal protection if he is sued for having taken someone’s
property in order to save a life.
Criminal Sanctions:
Penalizing One Who Refrains from Lifesaving
The rabbinic
court has general inherent authority to impose punishment as needed: “Said
Rabbi Eliezer ben Yaakov: I heard that the rabbinic court imposes lashings and
other punishments in addition to what the Torah mandates. This is not a
violation of Torah law, rather a defense of it.”[20]
Rambam
summarized various types of punishment, among them “confiscating private
property as seems proper to preserve religious law and to strengthen the
society, or fining those who are violent... to argue with someone who is
deserving of being argued with and to curse him... or imprisoning.”[21]
However,
exercising this authority requires great care and responsibility, as Rambam
writes: “In all matters they shall act for the sake of heaven, not for honor...
The honor of the Torah is in performing its laws and ordinances.”[22]
According to halachic principles, though, there is some difficulty in punishing
someone who refrains from lifesaving. This is because the commandment “You
shall not stand idly by” is violated through inaction, and “inaction is not
punished by lashing.” Therefore, no specific, fixed punishment can be
established for a passerby who refrains from lifesaving.
Furthermore,
both in halacha and in Torah-observant Jewish society, punishment, no matter
how harsh, does not necessarily provide a measure of the severity of a law or
its enforcement. On the contrary, there are cases where there is no mundane
punish- ment precisely because of the case’s severity. So we find in the
prohibition of passing one’s children to Molekh, the prohibition of unwitting
homicide, which borders on murder, and the prohibition of “not having any other
gods beside me.”
Limitations
of the Obligation
There are two
limitations on the obligation of lifesaving, one as regards the lifesaver and
another as regards the victim.
Regarding
the Lifesaver
A.
Acceptable Danger
The lifesaver
need not sacrifice his own life. Rabbi Akiva explained: “Your brother shall
live with you”[23] means that
your life takes precedence over your friend’s life.[24]
Compare the distinction drawn in Chiddushei Rabbi Chayyim ha-Levi, Yesodei
ha-Torah 8 (beg.).
We mentioned
above that the commandment of lifesaving supersedes the other commandments
except for the prohibition of idolatry, homicide, and illicit intercourse. The
exception of homicide is based on the logical argument that “your blood is no
redder than his.”[25]
However, the same argument would apply conversely: “your friend’s blood is no
redder than yours.”
This approach
can be understood in terms of formal law on the basis of the verse “And you
shall keep my statutes and my judgments, which if a man does, he shall live by
them” (Lev. 18:5). Shmuel concluded that lifesaving supersedes the observance
of Shabbat and Yom Kippur (Sanhedrin 85 and 74a). Just as the
commandment “to live by them” (lifesaving) supersedes the laws of Shabbat and
Yom Kippur, so does it supersede the commandment of restoring lost property or
health and the commandment “you shall not stand idly by.”[26]
Rambam quite
justifiably added a limitation to the obligation of lifesaving: “if he can
save him.”[27],[28]
Therefore, if a heavy man is drowning, a weak observer is not obligated
to jump into the river to try and save him as there is a grave risk that he too
may drown (Sefer Chasidim 674).
B.
The Obligatory Degree of Danger in Lifesaving
According to
Rabbi Yitzhak Zilberstein[29]
there are two approaches to this matter.[30]
The maximalist approach states:
There are
certain forms of danger which people are willing to undergo for their own
financial advantage, for their own honor, etc. Danger such as this, which
people assume they will survive, must be accepted by everyone when they engage
in lifesaving. But no one is obligated to endanger himself when the danger is
so great that no one would undergo it even to acquire great wealth. Therefore,
in cases of minor danger, such as crossing the sea or climbing to high places,
everyone is obligated to engage in lifesaving despite the danger.
The minimalist approach states:
In any case of
potential danger which would require the violation of Shabbat there is no
obligation to endanger oneself to save the life of another. Therefore there is
no obligation to endanger oneself even if the probability of saving a life is
greater than the probability of succumbing to the danger. This is so because
even possible threat to life calls for violating Shabbat.
In addressing practical issues which
have arisen in our times, Rabbi Valdenberg has written that physicians are permitted
to treat communicable diseases.[31]
But Rabbi Zilberstein has written that a pregnant physician has no obligation
to treat a rubella patient.[32]
In addition, Rabbi Valdenberg wrote that while living one should not donate
internal organs “unless a board of medical specialists determines that there is
no possible danger to the life of the donor.”[33]
The maximalist
approach can be applied in defining the level of a lifesaver’s obligation as a
function of his profession. This approach distinguishes between the level of
obligation of a physician who has voluntarily entered into medical practice and
the obligation of a layman. The minimalist approach, however, applies equally
to everyone.
C.
Protecting the Lifesaver who Failed
A physician has
only partial protection when he injures a patient due to error while providing
medical treatment. If the physician is licensed to practice medicine he is
exempted from mundane liability by a rabbinic court, but he is liable in the
eyes of Heaven. If he kills through error, he must seek refuge in a “city of
refuge.”[34],[35]
Chatam Sofer,[36]
however, discussed the case of a woman who endeavored to revive a girl who had
fainted. She thought she was providing the girl a bottle of brandy, but in her
haste gave her a bottle of poison. The girl died and Chatam Sofer exempted the
woman from guilt.
Chatam Sofer
distinguished between the case of a father who disciplines his child and an
officer of the court whose duty it is to impose corporal punishment. In the
case of the officer of the court, the punishment itself is potentially lethal.
Therefore it is clear that an error in applying corporal punishment can lead to
death. But the woman who gave poison to the girl was attempting to save her
life, and the administration of the poison was inadvertent. Such inadvertence
is exempt from guilt.
The woman who
failed in her attempt to save the girl was, from her point of view, engaged in
risk-free lifesaving. But a surgeon who operates must know that his procedure
is dangerous although he hopes that the chances of success are greater than
those of failure.[37]
In the opinion of Chatam Sofer, a lay person is entitled to protection both on
the basis of halacha and policy considerations. A lay person fulfills the obligation
to save life by executing a lifesaving procedure. We consider his error
to have been done unwillingly
(àåðñ), rather than unwittingly (ùåââ). Policy considerations encour- age lifesaving. If the lay
person fears that he will be sued, he will refrain from volunteering.
It follows that
the lay lifesaver is afforded broad protection, both from criminal prosecution
and from tort liability. Since laymen may not take risks, this protection
applies in situations which are thought to be risk-free. Further, anyone who
engages in lifesaving and fails is free of guilt.
Regarding
the Victim
A. The
obligation to save life is autonomous and applies even in cases where the
victim endangered himself on purpose.
In theory, one
might argue that a person who intentionally endangers himself is responsible
for his own death.[38]
This theory could be supported by considering the source of the obligation to
save life: “You shall surely return it to him.” This commandment deals
primarily with the return of lost property and does not apply to property which
has been purposely abandoned.[39]
However, the
medieval commentators distinguished between loss of property and loss of life.
A person is the owner of his property and has the right to abandon it, give it
away, or destroy it. But no one has ownership over his body or his life. [40],[41]
B. Prof.
Kirschenbaum’s article deals with lifesaving procedures in cases of drowning,
attack by wild animals, collapsed buildings, etc., where immediate professional
response is required.
A special
discussion is needed regarding medical practice where the physician performs
dangerous procedures (such as surgery) in order to lengthen the patient’s life.
The physician does not cause injury in the same way as a wild animal or a
river. He engages in the fulfillment of the commandment of healing. The acts of
the physician are directed to healing which benefits the patient. He is only
permitted to execute procedures which will probably benefit his patient.[42]
As a rule, the physician is permitted to cause pain and suffering to the
patient as long as the pain and suffering might be beneficial to the
patient (and the benefit is greater than the suffering).
Medical
technology allows artificial maintenance of the respiratory and cardiovascular
systems without saving the patient’s life. This situation is beyond the scope
of lifesaving.
Leading
contemporary rabbinic figures have decided that no patient is obligated to
suffer without purpose. A patient suffering from cancer is permitted to refuse
to continue chemotherapy that instead of curing him will merely lengthen his
suffering. If a terminal patient in such a condition stops breathing or if his
heart stops beating, there is no obligation to resuscitate him or to lengthen
his life and his suffering.[43]
Leading rabbis
have established guidelines for gradually stopping treatment when
systems shut down. In such situations there is, on the one hand, a prohibition
against shortening life in any active way and, on the other hand, prevention of
needless suffering.[44]
Source: ASSIA – Jewish Medical Ethics,
Vol. III, No. 2, September 1998, pp. 65-68
1. According to Uri Yadin in “Al Dinei Pikkuach Nefesh” in Mishpatim
2 (5730): 252, 256, the obligation is purely moral in nature.
5. The lifesaver is entitled to reimbursement despite the victim’s not
having agreed to pay in advance. See N. Rakover, Osher ve-Lo be-Mishpat
(5748), chs. 4-5. This comprehensive study was not mentioned by Prof.
Kirschenbaum.
10. Retired
member of the rabbinic court of the Chief Rabbinate, author of Responsa
Tsits Eliezer (21 vols.), and recipient of the Israel Prize.
14. The question was presented to both of them. Their answers were
published in “Va-Chay ba-Hem” (Refuah Mishpat ve-Halacha) Nissan
5752, ed. E. Ben Shlomo.
29. Rabbi, Ramat
Elchanan (Bnei Braq); head of the Panel for Medicine and Halacha at Anshei
Madda Shomrei Torah; and Associate of Ladiano and Ma’ayanei ha-Yeshua
hospitals.
35. Regarding physicians’ error, see Rabbi Y. Zilberstein, “Medical
Error,” in Emek Halacha, p. 124, and Rabbi Eliezer Y. Valdenberg, Tsits
Eliezer 4:13 and 5 (Ramat Rachel 22), both of whom adduce more
sources.
38. Cf. Ritva on Eiruvin 29b, s.v. u-vikkeshu alav
chaverav rachamim, and the notes of Ya’avets, ibid.
41. Resp. Maharam me-Rothenberg (ed. Bloch), Sect. 39; Tsits
Eliezer 15:15 (4:3-4). See Rabbi Reuven Margoliot, Margoliot ha-Yam
73a (12); Rabbi B. Rakover, “Chiyyuv Lehatsil Me’abbed Atsmo le-Daat” in
Kol Torah 11 (5717) 8: 11-12 and 9: 11-12; Rabbi G. Zinner in Bi-Shvilei
ha-Refuah 8 (5747): 78, quoting the Klausenberger Rebbe.