Early in September 1977,
a drama began that added much kavod, much dignity, to the wisdom of
Torah and to those who spend their lives applying Torah knowledge to the
complex problems encountered daily in the modern world. In Lakewood, New
Jersey, Siamese twins were born to a prestigious family of Torah educators. The
twins were taken by helicopter, on September 15, to the Children’s Hospital in
Philadelphia, where Dr. C. Everett Koop, who subsequently became the surgeon
general of the United States, was then the hospital’s chief of surgery.
Immediately after the initial evaluation, it was obvious to all the physicians
called in to evaluate the twins that both would die unless they were separated.
However, the only way one child would be viable was if the other child was
killed during surgery. The question was referred to Rav Moshe Feinstein for his
evaluation and decision.
The
children, designated Baby A and Baby B, were fused in the ventral area all the
way from the shoulder down to the pelvic region. The twins shared one
six-chambered heart. The wall separating the essentially normal four chambers
from the other two, most likely the stunted heart of Baby A, was too thin to be
divided. It was not possible to give the two-chambered heart to Baby A, so that
she would survive for as long as a two-chambered heart could carry her
physiological needs. There was only one solution. The entire six-chambered
heart had to be given to Baby B, and the life of Baby A would have to be
sacrificed.
It was clear to all concerned that this was a major
ethical issue that had ramifications for the abortion debate, and for the
ethics of neonate salvage. The Chief Surgeon, a deeply religious man, was fully
aware of the ethical import of any decision in this case. Dr. Koop referred the
case to the courts so as not to have any accusa- tion of premeditated murder
leveled against him. In addition, nurses and doctors at Children’s Hospital
consulted with their religious guides, and many reported back that they would
not be able to participate in the surgery.
On
September 20, I met with Dr. Koop and his staff to deter- mine the medical
facts. The first halachic concern was to establish that we were, in fact,
dealing with two separate human beings. Although they were joined at the chest
and their livers were co-joined, as were the hearts, the girls were separate
human beings with their own brains and nervous systems. Dr. Koop recommended
that the twins should be separated as soon as possible, because there were
signs that the heart was failing and could not maintain the load of supplying
blood to two infants. It was emphasized that even with surgery the chance was
slim that one could be saved. Never before had Siamese twins been successfully
separated from a ventral connection, and certainly not when they had a joined
liver and a single heart between them.
On
September 30, twenty doctors and nurses assembled in the meeting room to be
brought up to date. Many were already disturbed by the lapse of time. They were
all leaders in their fields and had gathered to be able to participate in the
separation. Practically every surgical and medical specialty was represented,
since no one really knew, despite the X-rays and the many tests that had been
done, what they would encounter during actual surgery. Dr. Koop had prepared a
team that would be able to handle any emergency that might arise. In
brainstorming sessions, all possible problems were discussed. The simple
problem of fitting a six- chambered heart into the small chest of Baby B proved
to be unexpectedly difficult and could be resolved only by building the chest
larger by using part of the chest of Baby A. On October 3, the intensive care
unit nurse assigned to the twins noticed significant changes in the heart rate
and respiration and in the electro- cardiographic tracings. This was reported
to Rav Feinstein, who then posed, once again, the key question: Was Dr. Koop
sure that the six-chambered heart could only be given to Baby B? Could it not
also be given to Baby A and Baby B be allowed to die?
Dr. Koop
responded that there was no doubt that the only infant who could be helped by
surgery was Baby B, because in addition to the shared liver and heart, Baby A
also had a circulatory defect that would not permit her to survive any length
of time, even if she were given the six-chambered heart.
Discussion
involved many members of the Feinstein-Tendler family, each contributing his
own insight. The surgical team had essentially completed its work and had a
plan which allowed for the separation of the twins despite the unknown
consequences of the separation. If Baby A was to be sacrificed, it was
important that the separation be done immediately after Baby A was no longer
alive, so that the toxins that immediately pour out when tissue is devitalized
would not begin to affect the survival of Baby B. Yet there was little
knowledge as to what impact the sudden removal of a large volume of blood (the
blood that was circulating in Baby A) would have on the functioning of the
six-chambered heart now in Baby B’s chest.
On
October 6, Rav Feinstein asked me to call Dr. Koop and instruct him to go ahead
with the surgery. On Tuesday, October 11, the surgery was completed. Baby B
successfully survived the surgery. Baby A had to be sacrificed. The following
is a summation of Rav Moshe’s reasoning for approving the surgery. A second
approach that leads to the same conclusion, but based upon a different halachic
principle, is also recorded here since it was presented in great detail during
the discussions that led to the final permissive ruling.
One of the fundamental rules of halacha is that one
life is not to be sacrificed for another. An exception to this rule is the
sacrifice of a fetus in order to save the life of the mother during delivery.
The Mishna in Ohaloth (7:6) records: “If a woman is in difficulty during
childbirth, it is permissible to destroy the fetus surgically because her life
comes first. If, however, the head of the fetus has already been delivered,
then it is forbidden to intercede even though it may cost the life of the
mother. The fetus is now an infant with the ability for an independent life.
Therefore, we do not sacrifice one life to save another.”
The Talmud in Sanhedrin (72b) elaborates on
this Mishna by posing the question: “Why should you not sacrifice the infant
even though the head has already presented, since this infant is endangering
the life of the mother? Is not the infant, then, a rodef (pursuer)? The
law of the pursuer should apply, which is to kill the pursuer in order to save
the life of the victim.” The Talmud answers: “No, Heaven is the pursuer.” In
other words, this is an act of Hashem, and therefore it is not correct to
assume that the fetus is the attacker. We cannot decide to favor either the
child or the mother in this terrible dilemma. While the child is in the uterine
environment, totally dependent on the mother’s life yet threatening it, we
classify the fetus as a pursuer. The logic is, as Maimonides says, “simple.”
While in the uterine environment, the child is totally dependent on the
mother’s life forces. Thus, either the mother’s death or the fetus’s death
would result in a fetus that was not viable. This complete dependency on the
mother, so that if the mother dies the fetus will also die, is the reason for
giving the mother priority over the fetus, because she is the source of fetal
life.
Once the head appears, however, and the child is
able to breathe independently, he is treated as an entity separate from the
mother. He is now independent of the mother’s circulatory and respiratory
systems. We grant him the full rights and privileges of an adult. The most
important of these privileges is the right to life.
This is surely the Rambam’s reasoning in Laws of
Murder (1:9). The Rambam states as follows: “When the head has appeared we
no longer intervene because we cannot destroy one life for the sake of
another.” He adds the explanation: “For this is natural law.” Why is this case
less a matter of natural law than when the fetus is still in utero? Why do we
not say that “Heaven is the pursuer,” and not intervene, even in early
pregnancy? It is, after all, an “act of Heaven”? Surely it is the fetal status
of dependency on the mother that justifies the sacrifice of fetal life to save
maternal life.
Rav
Feinstein compared the case of the Siamese twins to this classic case of the
conflict for survival between a mother in childbirth and the fetus. Baby A had
no independent ability to survive. Her entire survival was completely dependent
on her sister, who had the circulatory system to back up the functioning of the
heart and liver.
To Rav Feinstein’s critical question, “Can the
heart be given to Baby A and she would live?” Dr. Koop had responded, “No,
there is no way to save Baby A. The issue is only should both die or should
Baby B be saved.” Without the attempted separation, both would surely die, and
therefore in halachic terminology we classify the baby that had no independent
survival, Baby A, as the pursuer, as if she were pursuing her sister and
threatening her life.
Further, sophisticated testing had determined that the
halachic concept of dependency was, indeed, the relationship between the twins.
The two-chambered heart, which was the heart of Baby A, was receiving its blood
though two apertures leaking from the fourchambered heart. Except for that
contribution of blood to the two chambers Baby A would have died in utero. This
was the analysis that allowed the surgery to proceed.
I recall how impressed I was with a statement Dr.
Koop made, a statement that in my opinion revealed the man’s personality and
also incurred a special merit. When the team of twenty or so professionals were
awaiting Rav Feinstein’s decision, and, indeed, were expressing impatience at
the lapse of time, which interfered with their private, professional lives
significantly, Dr. Koop quieted the group with the following statement: “The
ethics and morals involved in this decision are too complex for me. I believe
they are too complex for you as well. Therefore I referred it to an old rabbi
on the Lower East Side of New York. He is a great scholar, a saintly
individual. He knows how to answer such questions. When he tells me, I too will
know.”
During the almost two weeks of intensive
discussions held under the guidance of Rav Moshe, an objection was raised to
the analogy to a mother in difficult childbirth. The Rambam uses the
expression: “For this is tiv‘o shel ‘olam, or the law of nature, or more
accurately, the natural course of our world.”
It is easy to see how such an expression applies to
a woman in childbirth, since childbirth, a normal natural event, sometimes
involves dangers that result in a serious conflict between the mother and the
child about to be brought into the world. It is difficult to see how this concept
can be applied to so rare an occurrence as the birth of Siamese twins,
especially one with a six-chambered heart and a shared liver, as was our case.
Therefore, a second approach was suggested which received the careful attention
of Rav Moshe. It did not receive his concurrence, only his appreciation for the
analysis suggested.
The Talmud in Sanhedrin (72b) and the
commentary of Rashi on the case of Sheva ben Bikhri recorded in Samuel II 20:
There was an evil man named Sheva ben Bikhri…and he said, “I have no
allegiance to David ha-Melekh” [i.e., he led a rebellion against King David].
Yoav’s men chased after him and they came to a town and laid siege to it. Yoav
announced to the townspeople, “Sheva ben Bikhri has raised his hand against
David ha-Melekh. Send him out of your town, for he alone is the one that is
guilty, and I will then withdraw my forces from the siege.” A woman responded
to Yoav, “Behold, here is his head which I am throwing to you next to the walls
of the city.”
The whole story is cited in great detail in the Talmud
Yerushalmi, Terumot (8:4). From this story is derived a halachic
ruling concerning a caravan of Jews surrounded by gentiles. The gentiles had
the military power to destroy the Jews but instead offered a deal: “If you will
give us one of you so that we may do as we will with him and kill him, then you
can all go free. If not, we will kill you all.”
The Talmud rules that it is forbidden to hand over
one Jewish life to them even though all must forfeit their lives. If, however,
the gentiles had singled out one individual against whom they had some
complaint, as specified: “Give us this man,” just as in the case of Sheva
ben Bikhri, the halacha states that he should be turned over to them and
the entire caravan be saved.
Resh Lakish qualifies this ruling by saying
that it applies only if he is guilty of a death penalty, as was Sheva ben
Bikhri, who re- belled against the king and incurred such a penalty. Rav
Yohanan states that is not a prerequisite. Even if he was not guilty, as long
as they specified “this man and this man alone,” it is permitted to turn him
over in order to save the rest. Rashi, in his commentary on Sanhedrin,
analyzes the case further and points out that whereas it was permissible to
turn over Sheva ben Bikhri, it is not permissible to kill a fetus which
has already presented its head so that there is independent life, because
sacrificing one life for another is forbid- den. In the case of Sheva ben
Bikhri, even if they had not handed him over, they would not have been able
to protect him against the siege laid by Yoav. They could only have died
with him. If, however, there had been a possibility that defending him would
have given him an opportunity to escape, so that there was no certainty that he
would die, then they would have been required to raise a defense, and not save
themselves by causing the death of Sheva ben Bikhri.
The Rambam, in Laws of the Foundations of Torah
5:5, concludes that Resh Lakish’s opinion, and not Rav Yohanan’s, is the
correct one: “If he is liable to the penalty of death, as was Sheva ben
Bikhri, they are permitted to turn him over in order to save themselves.
If, however, he is not guilty of any death penalty, then it is forbidden to
turn him over, but they must defend themselves and him even if it means
forfeiting all their lives.”
It is clear, according to Rashi’s analysis in his
commentary on Sanhedrin, that in our case, where both would have died,
it was permissible to sacrifice one in order to save the other. But according
to Maimonides’ ruling, unless one of them had incurred the penalty of death, it
was forbidden to do so. The Rama, in Yoreh De‘ah 157, records the
Rambam’s ruling as the correct halacha that it is forbidden to save one
life at the cost of another unless that individual was guilty of a death
penalty, as was the case of Sheva ben Bikhri.
The analysis of the case of the Siamese twins,
however, seems to satisfy even the requirement of Maimonides, so that in this
case all would have concurred with the opinion of Rav Moshe. Baby A could not
live, no matter what surgical plan was followed. Although there was no ruling
of a beit din that she was guilty of any sin and therefore would be
subjected to capital punishment, Hashem Him- self issued such a ruling.
There was an edict from Heaven that the child could not live. Nobody could help
this child. Even if all the organs were placed in her body, she could not
survive. Therefore, Baby A should be classified as if she were Sheva ben
Bikhri, for whom there was no hope, and the destiny was already inscribed
by Hashem Himself, that this soul would enter the world only for a
limited period of time so as to “help empty the storehouse of souls and hasten
the coming of Mashiah” (Yevamot 62a).
The decision to sacrifice her is one that would have had
the approval of both Rashi and the Rambam. The logic of equating inevitable
death from physiological causes, because of the an- atomical deficiencies of
Baby A, and a case in which an individual is guilty of a capital crime, is
based on an analysis by the Rama in Sanhedrin 72b, and I quote: “The
case of the woman in labor requires deep analysis. The fetus was not guilty of
any crime. It is like the case of a caravan surrounded by enemies in which the
gentiles demand one life in order to let the other go, where the ruling is that
we may not sacrifice one life even to save many lives.”
The Rama concludes (that the rule that “we do not sacrifice one
life even to save many lives” applies) only because the fetus has a chance to
live. If the fetus did not have a chance to live, there would be no problem
about killing it to save the mother, because the absence of any hope that the
fetus could survive, and not the mother, makes it as if this individual were
designated for death. According to Rama’s analysis, then, in an early
pregnancy, where the child still does not have viability, it is tantamount to
being designated for death. Thus, in our case, Baby A, because of the defects
in her body structure, had been designated for death, and therefore it is permissible
to hasten that death in order to save the life of the sister.
Source: ASSIA –
Jewish Medical Ethics,
Vol. IV, No. 1, February 2001, pp. 22-25