Physician-Assisted Suicide Under Jewish Law
Prof. Steven H. Resnicoff
Physician-Assisted Suicide Under Jewish Law1
by Prof. Steven H. Resnicoff2
DePaul University College of Law
© 1998 All rights reserved
Steven H. Resnicoff
This Article endeavors to analyze physician-assisted suicide through the prism of Jewish law.3
Of course, to establish the scope of our inquiry, it is essential to examine our terminology. An
understanding of "physician-assisted suicide" requires appreciation of at least three preliminary
concepts: "suicide," "assistance," and "physician."
"Suicide" has been defined as "self-destruction; the deliberate termination of one's own life."4
Because one obviously must be alive5 to commit suicide, it might be useful to explore the
criteria Jewish law uses to determine whether one is alive.6
Nevertheless, for a variety of reasons,7 this Article is limited to cases in which it is clear that the people involved are all alive.
The phrase, "the deliberate termination of one's own life," suggests a voluntary and intentional
decision by a mentally competent individual. Jewish law perspectives on personal autonomy
must therefore be explored. The word "termination" arguably implies some physical action. We
will see whether Jewish law makes a distinction between passive or active conduct that leads to
one's death and, if so, what is considered to be passive as opposed to active behavior.
An "assisted suicide" suggests a suicide in which a third person either facilitates or enables a
person to commit suicide. We will survey Jewish law distinctions between one who actively or
passively facilitates or enables a suicide, one who prays for someone's death, and one who - out
of a mistaken sense of "mercy" - murders.
Secularists might argue that there is a special physician-patient relationship that might
"empower" either the patients and/or the physicians to take steps regarding assisted-suicide that
might not otherwise be permitted. Jewish law recognizes that a physician can possibly provide
information, such as a diagnosis of a patient's condition and an evaluation regarding the risks of
certain treatment, that, as we will see, is relevant to some assisted-suicide issues. Nonetheless,
with respect to the provision of assistance to one who wants to commit suicide, Jewish law does
not regard a physician as different from any other person.
The Jewish legal system is intellectually sophisticated, flexible and fact-sensitive. In order to
understand and apply it, one must, of course, be familiar with its principal features.
Consequently, Part I of this Article provides a brief introduction to Jewish law. Part II examines
particular Jewish law principles relevant to "physician-assisted suicide" issues and applies them
to specific factual scenarios. Of course, given the intricacy and resiliency of Jewish law, the
large variety of human and technological variables, and the delicacy of the questions confronted,
this Article should in no way be regarded as providing authoritative Jewish law rulings for actual
cases. Persons with such questions should personally and carefully consult with a competent
Jewish law authority.
PART I: AN INTRODUCTION TO JEWISH LAW
Jewish jurisprudence differentiates between biblical commandments, which are those deemed
to have been directly transmitted by the Creator to Moses, and non-biblical rules.8 Interestingly,
Jewish law does not recognize the literal meaning of a verse in the bible, the Torah, as an
authoritative statement of law. Indeed, some verses, taken literally, are incomprehensible.9
Instead, Jewish law maintains that an oral tradition transmitted to Moses both amplified and
interpreted the written Torah.10 This oral tradition not only contained specific laws and
information but also hermeneutical rules to be used to elucidate the Torah.11 According to
Jewish tradition, there were a variety of purposes, unrelated to our present subject, for the
creation of complementary written and oral traditions.12
Religious persecution of Jews, including orders banning the teaching of Jewish law, threatened
preservation of the oral law. In response, a concession was made by ancient rabbinic leaders
such that a succinct, incomplete form of the oral tradition, the Mishnah, was put into writing
around the year 188 of the common era.13 The discussions and debates of early scholars in
academies in Babylon and Jerusalem were separately recorded, forming, respectively, the
Babylonian and Jerusalem Talmuds. The Babylonian Talmud was completed later than the
Jerusalem Talmud,14 and, because the Babylonian discussions benefitted from knowledge of the
Jerusalem Talmud, the Babylonian Talmud is the more influential.15
The writing of the Talmuds, however, was also seen as an allowance warranted only by the
exigencies of the times. Consequently, the language of both Talmuds is terse and ambiguous.
Talmudic discussions typically focus on specific cases, which frequently involve relatively
unusual - and, therefore, memorable - facts. The mission of a Jewish law scholar is to discern
conceptual principles from these paradigms and to use them to reach legal conclusions regarding
modern scenarios with quite different facts. Jewish law scholars must not only inspect the
thought processes implicit in the questions, answers and statements of each participant in a given
Talmudic discussion, but must test hypotheses in light of apparently inconsistent debates
elsewhere in the Talmud. In addition, Jewish law recognizes a multi-tiered hierarchy of post-Talmudic commentators whose concerns and opinions must be considered as well. Talmudic
sources, as construed by later rabbinic leaders, are regarded as the most authoritative statement
of Jewish law.16 Because of various practical constraints, however, this Article cannot identify all of the Talmudic sources relevant to physician-assisted suicide and trace how they have been
construed and applied by Jewish law experts. Nor will this Article attempt to introduce novel
interpretations of Jewish law or to decisively resolve contemporary debate among Jewish law
scholars. Instead, our limited purpose is to explain how Jewish law, as understood by most
contemporary authorities, applies to physician-assisted suicide.17
PART II: APPLICATION OF SPECIFIC JEWISH LAW PRINCIPLES TO PHYSICIAN-ASSISTED SUICIDE
Part II-A will articulate the fundamental Jewish law principles pertinent to physician-assisted
suicide. Part II-B will study how these principles apply, in light of various possible extenuating
circumstances, to the case of a competent patient who, because of intractable pain, wants to end
A. Relevant Jewish Law Principles
As to physician-assisted suicide, the most important Jewish law concerns include:
- The rules against murder and suicide - and the duty to rescue and to preserve life;
- A person's lack of a proprietary interest in his life;
- The general permissibility of medical intervention;
- The special status of a goses; and
- The prohibition against giving someone improper advice and enabling someone to violate Jewish law.
1.Murder and Suicide - and the Duty to Rescue and to Preserve Life
One source of the prohibition against murder is found in the verse, "If one spills the blood of a
man, one's [own] blood will be spilled."18 Each phrase of the immediately preceding passage,
"The blood of your lives will I require; from the hand of every beast will I require it, and from
the hand of man, from the hand of a person's brother, will I require the life of man,"19 provides a related rule. "From every beast will I require it" promises punishment to those who incapacitate
someone, such as by tying him up, thereby leaving him defenseless to the fatal attack of a wild
animal.20 "From the hand of man" assures punishment to those who hire someone to commit
murder for them.21 "The blood of your lives will I require" assigns punishment to those who
commit suicide. These pronouncements, which refer to heavenly imposed punishment, apply
not only to direct acts of murder or suicide, but also to acts which indirectly cause the loss of
life.22 Similarly, a variety of verses are cited as sources for the obligation to preserve one's own
life and to rescue others.23
Jewish law accords great significance to these rules because it places a supreme value on the life
of each individual human being. Thus, in discussing the creation of Adam, the Talmud explains:
[O]nly a single human being was created in the world [at first] to teach that
if any person has caused a single soul to perish. Scripture regards him
as if he had caused an entire world to perish; and if any human being
saves a single soul, Scripture regards him as if he had saved an entire world."24
One cannot kill another person even to save one's own life.25 It does not matter whether the
other person is comatose, mentally deranged, physically handicapped26 or terminally ill.27
Similarly, to save one's own life or that of another, virtually all Jewish laws are suspended.28
For instance, despite the religious centrality of the Sabbath, if necessary to save his life, a person
must actively do that which would otherwise violate the Sabbath laws.29 Rabbenu Nissim (the
Ran), a fourteenth century authority, states that one who, out of a misguided sense of
righteousness, fails to desecrate the Sabbath to save his life, "is a murderer and is culpable for
[losing] his life."30 Rabbi David ben Shlomo ibn Avi Zimra (the Radbaz), a sixteenth century
leader, comments: "There is no righteousness in his refusal, for it constitutes suicide . . . and
HaShem [God] will hold him accountable for his [loss of] life."31 Moreover, these rules apply
even if a person's life can be only momentarily extended, for each instant of life is of infinite
2.A Person's Lack of a Proprietary Interest in His Life
These rules reflect the belief that life is a responsibility. Man is required to safeguard even his
own life, because it is not his "property" to forfeit at will.33 Rather, Jewish law describes man
as the Creator's "bailee," charged with living his life to the fullest extent possible.34 This
possibly explains the propinquity of the Pentateuchal passages proscribing murder and suicide.
A similar rationale underlies both rules.35 Nobody - not a third party and not oneself - is
permitted to destroy the life divinely loaned. Quite the contrary, everyone is specifically
enjoined to preserve that life and to promote the divine purpose thus served.
On the other hand, man should not assume that he understands what the divine purpose is.
Instead, man is supposed to regard life as an intrinsically and metaphysically valuable
experience - not as a means to an end. Consequently, man is not entitled to evaluate the
"quality" of a life by considering what that life may accomplish.36 Indeed, there exists no system
of measurements that is capable of evaluating the quality of a human life.37
Rabbi Bleich, a contemporary scholar, supports this proposition by referring to the Talmudic
discussion of the following biblical passage:
In those days Hezekiah was sick unto death and the prophet, Isaiah the son of
Amoz, came to him and said unto him, "Thus said the Lord: Command your
house, for you shall die and not live."38
The phrase "for you shall die and not live" seems redundant. According to the Talmud, the
verse means "you shall die in this world and not live in the world to come." Hezekiah asked
why he warranted such a harsh sentence.39 Isaiah responded by saying it was because Hezekiah
had not engaged in procreation. To this, Hezekiah replied, "I saw by means of the holy spirit
that wicked children would descend from me." Isaiah retorted, "What have you to do with the
plans of the All-Merciful? You should do what you are commanded to do and let the Holy One,
blessed be He, do that which is pleasing to Him."40
The obligation to procreate is an affirmative commandment. Loss of the opportunity to live in
the world to come is not the prescribed punishment for failure to perform an affirmative
commandment. The late Rabbi Chaim Shmuelevitz, a twentieth century scholar, explains that
the reason the punishment was so severe was because of the reason why King Hezekiah had
failed to perform the commandment. Rabbi Shmuelevitz explains that Hezekiah, who the
Talmud elsewhere repeatedly and lavishly extols, had improperly impinged upon the province of
the Creator. Hezekiah failed to appreciate the relatively limited parameters of personal
autonomy with respect to issues of procreation. Consequently, his encroachment into the sphere
reserved for Divine decision was regarded as a form of rebellion against the Creator's
Rabbi Bleich argues that this Talmudic lesson regarding the generation of life applies equally
with respect to the protection and preservation of life.42 Indeed, even if a person is so ill that, as
discussed further below, some Jewish law authorities believe it would be proper to pray that the
Creator take the person's soul and end the person's life, it is nonetheless required to violate the
Sabbath - and, if necessary, to do so repeatedly - to try preserve that life.43
There are legal consequences to the principle that man's life is not his to do with what he wants.
In a society ruled by Jewish law, the government would compel a person to fulfill his
responsibility to safeguard his heath. Thus, in the case mentioned above, where a Jew refuses to
violate the Sabbath to save his life, the government would ordinarily compel him to do so. Even
in a secularly governed society, most authorities rule that a third party's duty to rescue would
theoretically demand that the third party try to force the sick person to violate the Sabbath and
save his life.44 Thus, despite the biblical prohibition against eating on Yom Kippur, a person
must eat if doing so is necessary to preserve his life. If the person wrongfully abstains, another
person should force him to do so.45 One must take such steps even if the risk to life is
doubtful.46 Moreover, one must take these steps even when the likelihood of their success is
slight47 or even if such success will only preserve life momentarily.48 Nevertheless, as explored in Part II-B, below, additional variables may affect whether a person has a duty to do specific
types of things to preserve his life or the life of someone else in a particular case.
3.The General Permissibility of Medical Intervention
Given that Jewish law emphasizes that the Creator should decide matters of life and death, one
might think that medical intervention would be perceived as an improper interference with the
Divine Will. But this is not the case. The Torah specifically states that, in addition to other
liabilities, a tortfeasor must "provide for [the victim's] healing."49 This verse is construed as
permitting physicians50 to provide medical treatment.51 Moreover, once such treatment is
permitted, it becomes part of the commandment to preserve a person's health and to save a
person's life.52 The obligation to treat applies even to those who are terminally ill and who
seem unlikely to live for more than a brief period of time.53
Rabbi Bleich asserts that Jewish law does not distinguish between "natural" or "artificial"
treatments.54 He argues:
God created food and water; we are obliged to use them in staving off hunger
and thirst. God created drugs and medicaments and endowed man with the
intelligence necessary to discover their medicinal properties; we are obliged to
use them in warding off illness and disease. Similarly, God provided the materials
and the technology which make possible catheters, intravenous infusions and
respirators; we are likewise obligated to use them in order to prolong life.55
Rabbi Bleich also maintains that Jewish law makes no distinction between "ordinary,"
"extraordinary," or "heroic" treatment. As a general rule, he argues that any treatment that will
preserve a patient's life is required.56 Nonetheless, as discussed in Part II-B, there are
authorities who disagree, particularly in instances involving pain or suffering to the patient.
4.The Special Case of the "Goses"
Under Jewish law, a person close to death may have a special status as a goses. The experience
of being a goses is referred to as gesisah. According to Jewish law, a very large majority of
those who become a goses die within 72 hours.57 Thus, if someone sees that an immediate
relative is a goses and then loses contact with that relative for 72 hours, the Jewish laws
regarding mourning apply because it is assumed that the goses has died.58 Similarly, although
Jewish law does not allow a widow to remarry unless there is proof that her prior husband has
died, some authorities rule that testimony that the prior husband was a goses 72 hours earlier is
sufficient to permit her to remarry in the absence of more direct evidence of his death.59
With respect to most aspects of Jewish law, a goses is just like any other person.60 Thus, the
punishment for killing a goses is the same as that for killing a non-goses.61 There are, however,
two specific rules regarding gosesim that have given rise to an important debate both as to the
underlying conceptualization of gesisah as well as to specific rules regarding gesisah. First, it is
generally forbidden to touch a goses, because, in light of his condition, such touching might
hasten the goses' death.62 Second, as Rabbi Moses Isserles (the Rema) states, one may remove
"anything that prevents the departure of the soul, such as a clanging noise [such as the sound of a
nearby woodchopper] or a grain of salt that is on his tongue . . . since such acts do not quicken
death but merely remove an impediment to death."63
According to a number of authorities, the laws regarding gesisah reflect the belief that a person
who exhibits certain symptoms is so weak in the three days immediately preceding his death that
any unnecessary touching or movement could hasten that death and is therefore prohibited. On
the other hand, medical intervention that could prolong the patient's life is not only permitted
but required64 to the same extent as it would be required with respect to a person who is not a
goses.65 After all, there is no Talmudic source that suggests that the commandments to save
someone's life do not apply to a goses. The absence of such a Talmudic source is especially
noteworthy given that the Talmud clearly requires that the Sabbath be violated to rescue even
those who face imminent death. As to such rescues the Talmud mentions no basis for
differentiating gosesim from others who are about to die. Indeed, the particular Talmudic
examples may in fact be dealing with people who are gosesim.66
The scholars that believe that it is important to extend the life of a goses must explain why the
Rema permits67 the discontinuance of certain actions that prevent a goses from dying. These
seem to be two basic approaches.68 The first approach restricts the Rema's rule to actions that
do not medically affect the goses' condition but, instead, are merely believed, perhaps
mistakenly, to have a metaphysical effect that may keep the goses alive. This position contends
that while the religious obligation to preserve life requires resort to established medical therapy,
it does not require use of nonscientific practices (segulot).69 The second approach appears to
argue that the Rema's rule only applies to the very end of the gesisah period, when a person's
soul is trying to escape the body.70 The Talmud suggests that there is pain at the moment of
The Rema72 identifies the symptoms of gesisah as involving the bringing up of secretions in the
throat because of certain severe chest problems.73 Some authorities seem to suggest that a
person is not a goses unless he exhibits these particular symptoms.74 Even if a person has symptoms of gesisah, he is not a goses unless his condition is irreversibly75 terminal within
three days. According to this view, it seems that if a person is expected to live more than three
days, it is not assumed that he is so weak that needless touching will hasten his death. Of
course, if in a particular case, doctors conclude that the touching of someone who is sick could
hasten his death, it would be prohibited to touch him, even if the person did not exhibit the
symptoms of a goses. Where someone is a goses, however, Jewish law forbids such unnecessary
touching even without a particularized medical diagnosis that such touching could be fatal.
There is some debate among contemporary rabbinic scholars as to whether someone who could
only live more than three days through modern medical intervention - such as the use of a
respirator - is considered a goses.76 Those who say such a person is not a goses point out that
the Jewish laws mentioned above, regarding the laws of mourning and remarriage, must have
assumed that a goses would have died within three days despite medical intervention.77
Otherwise, the possibility of medical intervention extending the person's life to beyond three
days would have precluded the woman's remarriage without better proof of the husband's death.
If, as according to this view, a person is only a goses if it seems clear that he will die within
three days despite all available medical technology, the number of modern cases involving
gosesim seems relatively small.78
Some other Jewish law authorities appear regard gesisah as a painful period of dying which is
not to be prolonged, even by well-established medical intervention.79 One recent, influential
scholar, the late Rabbi Moshe Feinstein, would apply this rule even to a comatose goses and
even if attending physicians would say that the goses experienced no pain. Rabbi Feinstein
asserted that, as the soul detaches itself from the body, a goses experiences a severe
metaphysical pain that doctors may simply be unable to detect.80 Indeed, only by positing the
existence of such pain could Rabbi Feinstein explain why the Rema would permit the removal
of obstacles to a goses' death. According to Rabbi Feinstein, if there were no such special pain,
the general commandment to preserve a person's life would obligate a person to place obstacles
in the path of a goses' death. The absence of any Talmudic source stating that a goses feels
metaphysical pain is, however, problematic for Rabbi Feinstein's position.
5.The Prohibition Against Giving Someone Improper Advice and Against Enabling Someone to Violate Jewish Law
Rabbinical sources interpret the verse, "[b]efore the blind, do not place a stumbling block,"81 as
providing a biblical prohibition, referred to as "lifnei iver," against the giving of improper advice
and against enabling another to violate Jewish law.82 The verse does not refer merely to
someone who is physically blind, but also to someone who is "blind," whether because of
intellectual ignorance or inadequate religious sensitivity, as to the proper way to act.83
Thus, a person transgresses this prohibition if he advises another wrongfully to commit suicide
or fail to preserve her health - and such counsel causes the violation.84 Thus, a doctor who
successfully persuades a patient to wrongfully shorten her life in order to permit her organs to be
used for someone else would violate this prohibition. Similarly, a person violates this rule if he
makes it possible for another to commit a sin that would not have been performed without such
help.85 Assume, for instance, that the only way a person is willing to commit suicide is by using
a special suicide device owned only by one particular physician. If that physician makes the
device available to the patient and the patient uses it to commit suicide, the physician violates
the rule against lifnei iver.
There are essentially four views regarding an assister's possible culpability in cases in which the
person could have committed suicide without the assistance:86 (1) some authorities state that the
assister is still guilty of the biblical lifnei iver rule;87 (2) others say that the assistance constitutes
only a rabbinic violation;88 (3) still others say it is only a rabbinic violation if the assister did not,
pursuant to another Jewish law provision, have the obligation to prevent the person from
committing a sin;89 and (4) some say that the assister has violated no rule, biblical or rabbinic.90
These approaches would be relevant, for example, to cases in which a person wants to overdose
on certain prescription drugs and a doctor provided same for that purpose.
B.Application of Jewish Law Principles to Physician-Assisted Suicide
This Part B examines how the Jewish law we have discussed apply to the case of a competent
person who wants to die because she is experiencing great suffering.91 There are principally five
issues to be explored regarding the person in pain: (1) may she or anyone else do an affirmative
act to end her life; (2) may someone encourage or assist such an act; (3) may she or anyone else
hasten her death by passive conduct; (4) may someone encourage or assist such passive conduct;
(5) may or must someone coerce her to accept medical treatment.
1.Affirmative Acts to Terminate Life
Suppose a competent person wants to die because she is experiencing great physical pain.92
Even if she is a goses, normative Jewish law would prohibit any affirmative act to terminate her
life even according to those authorities who do not allow affirmative actions to prolong the life
of a goses.93 Her suffering would not alter the basic Jewish law approach, described in Part II-A, that matters of life and death are to be determined by God.94 95
As proof for the position that, notwithstanding her suffering, a person cannot take an affirmative
act to hasten her death, various rabbinic authorities96 cite a Talmudic passage describing the execution of Rabbi Chanina ben Teradion, who was burned alive by the Romans. Rabbi
Chanina's students implored him to end his suffering quickly by opening his mouth and allowing
the flames to enter. He replied, "It is better that He who gave [me my soul] should take it rather
than I should cause injury to myself."97
If a person convinces her to commit suicide when she otherwise would not do so violates the
biblical rule against lifnei iver. So, too, does a person who enables her to commit suicide by
providing assistance she could not otherwise obtain. Even if she could manage to kill herself
without such assistance, helping her do so would, according to a number of authorities, violate
rabbinic law at least.98
Similarly, it would be murder if some third party acted to affirmatively end her life, even if (1)
she begged him to do so, and (2) he believed that, in light of her great suffering, she would be
better off dead. Rabbi Jacob Zevi Mecklenburg, a nineteenth century scholar, derives this from
a close examination of the verse cited in Part II-A, supra: "The blood of your lives will I require;
from the hand of every beast will I require it, and from the hand of man, from the hand of a
person's brother, will I require the life of man."99 What is the purpose of the final phrase, "from
the hand of a person's brother, will I require the life of man"? A proscription against fratricide
would seem to follow logically from the prohibition against ordinary homicide. According to
Jewish law's oral tradition, if a rule can be logically derived, there is no need for it to be
explicitly stated in the Pentateuch. Consequently, this biblical passage must communicate some
additional message. Rabbi Mecklenburg, argues that the apparent surplusage is necessary to
outlaw an act of killing even when the act is motivated by "brotherly love," i.e., by a misguided
desire to mercifully end the life of a person suffering from excruciating pain.100
This is true even if the sufferer is also a goses. As Rabbi Yehiel Epstein, a nineteenth and early
twentieth century authority, points out:
Even if we see that the goses suffers greatly from his gesisah and that it is
good for him to die, nevertheless it is prohibited to us to do anything that
will hasten his death. The world and all that fills it belongs to the Holy One,
blessed be He, and such is His wish . . .101
Even the late Rabbi Moshe Feinstein, who, as discussed below, rules leniently in allowing
people suffering intractable pain to passively refuse to preserve their lives, states that:
Doing an act to hasten the death [of a goses] is proscribed . . .
even though he [the goses] is suffering and doing so would constitute
murder violating the injunction 'Thou shalt not kill.' . . . A person
incurs the death penalty if he kills someone suffering intractable
pain out of a sense of mercy, even though [the deceased] asked him
[to do it].102
Indeed, according to many authorities, one is required to save a sufferer's life - even if the
sufferer is a goses and even if one must violate the Sabbath to do so.103
What if there are reasons, other than pain, why a person wants to die? Jewish law arguably
recognizes a few reasons for which one might justifiably commit suicide, such as to avoid being
forced to commit idolatry.104 Because these grounds, fortunately, do not commonly arise and
because they do not relate to a person's status as a patient of a physician, we will not survey
2.Encouragement or Assistance of Affirmative Acts to Terminate Life
A person who convinces or enables someone to commit a suicide which would not otherwise
have taken place violates the biblical rule against lifnei iver. Even if the suicide would
otherwise have taken place, a person who provides such encouragement or assistance would,
according to many authorities, violate rabbinic law at least. In any event, the person who takes
her own life is liable for suicide.
One who convinces a person to actively terminate another's life when the person would not
otherwise have done so violates the prohibition against lifnei iver. Similarly, one who enables a
person to affirmatively terminate another's life when the person could not otherwise have done
so violates lifnei iver. Even if the person could have done so without such assistance, one who
provides the assistance would, according to many authorities, at least violate rabbinic law.105
Of course, in any event, the person who actively ends another's life is guilty of murder.
In addition to the proscriptions against convincing, assisting or enabling another to commit
murder, a person has a specific obligation to try to rescue another whose life is at stake. A
person who sees another drowning, has an obligation to try to save him - either by swimming in
after him or by hiring somebody else to do so.106 According to many authorities, this duty to
rescue even applies to the saving of someone who is trying to commit suicide.107 Obviously,
someone who assists an affirmative suicide or a murder fails to fulfill the obligation to rescue.
3.Passive Conduct to Hasten the Death of a Person in Great Pain
The considerable debate among Jewish law authorities as to whether a person experiencing pain
is entitled to passively refuse life-preserving medical treatment. No one seems to have explicitly
stated that someone has a right to refuse a medical, involving virtually no pain or risk, that is
fully expected to cure the condition. Instead, the differences of opinion arise when one or more
of the following factors are present: (1) the patient is terminally ill and the treatment will only
prolong the patient's temporary, extremely painful condition; (2) the treatment is not well-established, is painful, is risky and/or is not likely to succeed.
a.Treatment that will only temporarily prolong a patient's painful condition
Some authorities think that the degree of pain someone experiences will only in truly
exceptional cases excuse someone from the duty to prolong her life.108 Others seem less
reluctant in ruling that terminally ill patients in great pain can refuse treatment that will only
prolong their agonizing existence. Of course, as a practical matter, this debate is only relevant in
those instances in which the pain is medically uncontrollable. Where it is controllable, it should
Those who appear less reluctant often rely on the Talmudic discussion of the final illness of
Rabbi Yehuda HaNasi, known as Rebbe, the compiler of the Mishnah. Rebbe was suffering
greatly.109 Both the rabbis and Rebbe's devoted female servant, well-known for her devotion and
intelligence, prayed around the clock for Rebbe's complete recovery.110 As time passed,
however, Rebbe's servant saw that the prayers were not to be fulfilled. Although Rebbe
remained alive, he suffered excruciating pain. Finally, she concluded that it would be better forRebbe
if he were to die, and she prayed for that.111 But she soon saw that her prayer would not
be accepted so long as the rabbis continued their unabated prayers for Rebbe's recovery. She
therefore threw an urn from the roof of the academy to the ground, smashing it and startling the
rabbis, causing a brief halt in their prayers. At that moment, Rebbe died.112
Many commentators cite the conduct of Rebbe's servant as evidence that someone who sees
another who is greatly afflicted and there is no meaningful prospect for alleviating or curing the
person's pain should pray for that person's death.113 Not all commentators, however, agree that one should pray for another's death even under these circumstances.114 In addition, at least one
authority, Rabbi Haim Palaggi, states that persons who might have an improper bias, such as
those responsible to care for the patient, should certainly not pray for the patient's death.115
Rabbi Moshe Feinstein, however, states that this Talmudic episode not only justifies praying for
a person's death but also calls for the rejection of life-sustaining medical treatment for
terminally ill patients who can live no longer than few weeks or so and who are experiencing
excruciating pain. If the treatment can only temporarily prolong their life of agony, Rabbi
Feinstein argues that non-treatment is appropriate,116 while repeating that, of course, no
affirmative act to terminate the patient's life is permissible. Rabbi Shlomo Zalman Auerbach
similarly considers a patient's pain and suffering in ruling that it is permissible for a person to
refuse surgery that, even if successful at saving her life, would cause her to remain paralyzed for
Among the authorities that agree with the Feinstein-Auerbach approach, some take it a step
further as a practical matter. While Feinstein and Auerbach would generally call for the use of
medical technology to provide hydration, nutrition and oxygen to terminally-ill patients even
though they experience unrelenting pain,118 some contemporary authorities are said to permit
rejection of these services as well.119
There seem to be two principal ways of perceiving the conceptual framework for the Feinstein-Auerbach approach. One possibility is that it generalizes the Rema's rule for removing obstacles
preventing a goses from dying.120 Feinstein, for instance, believes that there is metaphysical pain
associated with the process of gesisah. Consequently, a terminally ill person who has little time
to live and who is experiencing unmanageable pain may seem quite similar to a goses.121 With
respect to a goses, for instance, a few authorities have suggested that the removal of a respirator
would be permissible, because the respirator is perceived as merely preventing the patient's
death rather than as providing physiologically enhancing treatment.122 Similarly, Feinstein
forbids initial use of such machines to prolong the life of a terminally ill patient who suffers
from severe, intractable pain.123 Once the machine is attached, however, Feinstein believes that
disconnection would be an improper affirmative act. If it became disconnected, however, he
would not necessarily require reconnection.124 To avoid a debate as to whether disconnection is
an impermissible affirmative act, some authorities have suggested that the machines be
controlled by automatic timers which, when time ran out, would be the equivalent of a
disconnection. A patient's status could then be re-evaluated to determine if the timer should be
There are a number of problems with the analogy to a goses. First, of course, the Feinstein-Auerbach approach is squarely at odds with the many authorities who believe that medical
intervention is required even to save the life of a goses. Second, how much pain would the
terminal patient have to be experiencing in order to be compared to a goses? Third, how short a
period of time must the terminally ill patient have to live before she is compared to a goses?
Fourth, how confidently can a person quantify her pain or predict when she will expire?
Moreover, is it really persuasive to argue that the fact one can pray for death means that one can
refuse treatment? Those who disagree with the Feinstein-Auerbach position, for instance, argue
that while one is alive, one has the duty to perform commandments, including the
commandment to prolong one's life. Praying for death is not inconsistent with fulfillment of this
duty. A person can always ask the Master of the Universe to release her from her duty.
Meanwhile, however, the duty has got to be done.126
Bleich suggests a different way to understand the Feinstein-Auerbach approach, based on
inherent limits as to what a person is required to do to fulfill a biblical commandment. Jewish
law characterizes biblical commandments as either negative or affirmative. Jewish law requires
that one forfeit all of one's wealth to passively avoid violation of a negative commandment,127
and requires use of no more than 20% of one's wealth to fulfill an affirmative commandment.128
In a different context, when asked whether it was permitted to take an organ from a cadaver to
make a life-saving transplant against the wishes of the deceased's surviving relatives, Feinstein
replied in the negative. He stated that such treatment of the corpse would presumably cause the
surviving relatives to suffer more emotional distress than would the loss of their entire
fortunes.129 There is considerable debate as to whether the duty to prolong one's life and/or to
save another's life is a negative or affirmative commandment.130 Nonetheless, Feinstein may be
justifying a person's right to refuse medical treatment in cases involving excruciating pain on the
assumption that the patients would be willing to give up their entire fortunes rather than suffer
for a more prolonged period.131 If so, however, Bleich questions how often this assumption would be correct, particularly in light of improved palliation procedures.132
b.The Nature of the Treatment Refused
Some of the authorities that disagree with the Feinstein-Auerbach approach of somewhat
generally permitting terminally ill patients to refuse treatment because of their pain may
nonetheless rule that such refusal is justified in individual cases based on the nature of the
treatments involved. Thus, a person is not generally obligated to submit to "unproven"
experimental treatments.133 Indeed, a person may not even be allowed to take some medications
because of the attendant risks.134
Other factors considered by scholars in evaluating whether medicines are permissible or required
to eat, although they would otherwise be non-kosher, or whether they are permissible or required
to take on the Sabbath, although medicines are sometimes prohibited on Sabbath, include: (1)
whether the desired effect of the treatment is physiological or metaphysical; and (2) whether the
effect is to ameliorate the patient's painful symptoms or merely to prolong the patient's present
4.Encouragement or Assistance of Passive Acts to Hasten Death
A person who convinces someone to refuse treatment when the refusal is wrongful violates the
biblical rule against lifnei iver. Similarly, one who enables someone to wrongfully refuse
treatment when she could not otherwise have done so, violates the lifnei iver rule. Even if the
refusal would have been accomplished without a person's involvement, the provision of such
encouragement or assistance would, according to many authorities, at least violate rabbinic
law.136 Of course, someone who so encourages or assists a wrongful refusal of treatment also
fails to perform his duty to rescue one in danger. In this case, a "rescue" might have been
accomplished by providing competent counseling or adequate analgesics.
Under the Feinstein-Auerbach approach, which treats the subjective state of mind of the person
who is sick as a critically important factor, it may be very difficult for a third party to properly
evaluate whether a particular person's refusal of treatment is or is not justified under Jewish law.
Assuming that a patient is obligated by Jewish law to accept a particular treatment, is a third
party - such as an attending physician - required to use verbal or physical coercion, if necessary,
to ensure that the treatment is accepted? There really are two questions. The first question is
whether a third person has the duty to coerce a patient to fulfill the patient's obligation to
preserve his own life. Although Jewish courts had such authority, Jewish law scholars debate
whether individuals have such a right.137 The second question is whether a third person, who
under Jewish law has an independent obligation to save the patient's life, may use coercion to
fulfill that independent obligation. Most authorities seem to assume that the theoretical answer
to this question is not only that such a third person may, but, if necessary, must use such
Nevertheless, some argue that coercion could easily be counter-productive because of the
adverse psychological impact it may have on the patient.138 Furthermore, medical uncertainty
regarding the effectiveness or attendant risks of a proposed therapy frequently relieve a patient
of any obligation to submit to the treatment and relieve a third person from any duty to
administer it. Consequently, although coercion is a theoretical possibility, it is often not a
Even if a person would be commanded to employ coercion, the concomitant costs of performing
the commandment could be high. The physician might face professional sanctions and
malpractice liability.139 To evaluate whether the physician would be required to sustain such financial costs, one would have to evaluate various factors. In addition to any possible monetary
burden, the use of coercion - at least the use of physical coercion - would raise the prospect of
possible criminal sanctions as well, which, as a practical matter, might well exceed the personal
sacrifice that the Torah imposes.
Unlike nonreligious legal systems, Jewish law assumes the existence of an omnipotent,
omniscient and benevolent Creator whose purposes cannot always be fathomed. Jewish law also
assumes a network of relationships between and among the Creator and all human beings. As a
result of these assumptions, there is purpose and responsibility in every instant of life, for the
individual and for the community, even though the purpose is not always readily apparent.
Jewish law imposes specific responsibilities on individuals to safeguard their own lives and to
help others. The extent of these obligations, however, are not unlimited. The continued debate
pertains to the nature of these limitations.
1. Copyright 1998 by Steven H. Resnicoff. All rights reserved.
2. Professor of Law, DePaul University College of Law, B.A., Princeton University; J.D., Yale
Law School; Rabbinic Degree, Beth Medrash Govoha; Chair, Jewish Law Section of the
Association of American Law Schools (1998-1999). The author is grateful to Rabbi J. David
Bleich for his generous comments and advice regarding this article. He also thanks Rabbi Aron
Small, Dr. Norton Sokol, and Daniel Stuhlman, with whom he studied many of the authorities
cited herein and who offered him many valuable insights, and Prof. Michael Broyde of Emory
Law School, who perceptively commented on an earlier draft. This article, in a slightly different
form, first appeared at 1 DePaul Journal of Health Care Law 589 (dated 1997 but
published in 1998). A much more developed version of this article is to appear in a symposium
edition of the Journal of Law and Religion.
3. The Jewish law principles, priorities and perceptions to be discussed will no doubt inform the
contemporary secular dialogue regarding physician-assisted suicide. Nonetheless, this Article
leaves to other works the broader issue as to whether, and if so, how, religious law - qua
religious law - ought to influence secular law. See, e.g., J. David Bleich, GodTalk: Should
Religion Inform Public Debate?, 29 Loy. L.A.L.Rev. 1513 (1996). Similarly, this Article leaves
for another time an analysis of the practical ramifications, many of which quite unpleasant, of
rules that would facilitate physician-assisted suicide.
4. Black's Law Dictionary (6th ed. 1990), at p. 1434.
5. The secular definition of death is subject to a variety of opposing pressures. On the one hand,
modern medical interventive procedures provide the apparent ability to preserve life beyond
prior expectations. On the other hand, both the demand for organ transplants and the economics
of the health care industry (including the costs to insurers of long-term hospitalization) motivate
many to argue that although modern technology may effectively preserve a body, the life
previously associated with the body has already ended.
6. In most states, secular law provides that a person is dead if there is an "irreversible cessation
of all functions of the [person's] entire brain, including the brain stem." N.J.SA. 26:6A-3. See,
e.g., Roger S. Magnusson, the Sanctity of Life and the Right to Die: Social and Jurisprudential
Aspects of the Euthanasia Debate in Australia and the United States, 6 Pac.Rim.L. & Pol'y J. 1
(1997); Jeff Atkinson, Louis D. Boshes, and John B. Oldershaw, Persistent Vegetative State:
Medical, Ethical, Religious, Economic and Legal Perspectives, 1 DePaul J. Health Care L.
495 (1997). Although the controversy is quite complex, it seems safe to say that the most of the
preeminent Jewish law scholars have not accepted this criterion (known as 'brain stem death" or
"whole brain death") as definitively establishing death under Jewish law. See Aaron
Soloveichik, The Halakhic Definition of Death, in J. David Bleich and Fred Rosner (eds.),
Jewish Bioethics (1978), p. 302; Abraham S. Abraham, The Comprehensive Guide to
Medical Halachah (1996), 37:6, p. 188 (citing authorities and stating that someone who is
clinically brain-stem dead is not considered dead but, rather, is in the category of a possible
goses such that tests to verify the diagnosis are forbidden); 38:6, p. 191 ("Death is established
only when spontaneous respiration, heartbeat and brain function have all ceased."); Fred
Friedman, The Chronic Vegetative Patient: A Torah Perspective, XXVI Journal of Halacha
and Contemporary Society 88, 91 (1993) (asserts that most contemporary rabbinic
authorities "do not accept 'brain death' as sufficient to define an individual as dead" under
Jewish law). Thus, even though secular law may deem a person to be dead, Jewish law may
regard the person as either actually or possibly alive.
For an excellent discussion of the weaknesses of the brain death criteria, citing relevant
scientific research, see J. David Bleich, Moral Debate and Semantic Sleight of Hand, 27
Suffolk U.L.Rev. 1173 (1993). For a defense of the brain death approach and for one
perspective of the debate among Jewish law authorities, see Moshe Dovid Tendler, Responsa
of Rav Moshe Feinstein, Vol. 1 (1996), pp. 67-97.
7. For example, as the text proceeds to point out, suicide involves a deliberate action. All
Jewish law scholars would agree that a person capable of performing such a deliberate act is
alive. Of course, an inquiry into the criteria of death might still be important to a secular
discussion of physician-assisted suicide, because secular scholars might permit the element of
"deliberateness" to be satisfied through a doctrine allowing the judgment of a competent third
party to be substituted for that of an incompetent whose life is in question. This Article does
not attempt to evaluate Jewish law's view of such an approach.
8. There are various sources of non-biblical law, including rabbinic law and custom. See,
generally, Menachem Elon, Mishpat Ivri; H. Chaim Schimmel, The Oral Law.
9. For example, the Torah states that on the holiday of Succot, referred to by some as the "Feast
of Tabernacles," one must perform a ritual involving the waving of certain plants. One of these
is referred to as a pri etz hadar, which literally means "a fruit of the glorious tree." The Torah
does not otherwise specify what type of tree is meant. The oral tradition explains that the verse
refers to a particular citron, the etrog. Similarly, the Torah uses certain terms without providing
their full legal content. For instance, the Torah states that one may not do melakha ("work") on
the Sabbath, see, e.g., Exodus 31:14, or on certain other occasions, but does not clarify what
does or does not constitute "work." In addition, although the Torah requires ritual slaughtering
of certain animals before their meat may be eaten, nowhere does the written text describe the
slaughtering process. Instead, it simply states that animals are to be slaughtered "as I have
instructed you," Deuteronomy, 12:21, implying that detailed directions had been previously
transmitted orally. For a fuller discussion of this topic, see H. Chaim Schimmel, The Oral
Law, pp. 19-31; Boruch Epstein, Torah Temimah, on Deuteronomy 12:21.
10. See Menachem Elon, Mishpat Ivri 1:179.
11. Id., at p. 270; Aryeh Kaplan, The Handbook of Jewish Thought, p. 181.
12. See Maimonides, Introduction to the Mishnah; Aryeh Kaplan, The Handbook of
Jewish Thought, pp. 178-181.
13. Aryeh Kaplan, The Handbook of Jewish Thought, p. 187 (citing sources and calculating
14. The Jerusalem Talmud (hereafter referred to as "T.J.") was redacted around the year 350 of
the common era, while the Babylonian Talmud (hereafter referred to as "B.T.") was not
completed until about the year 500. See Zechariah Fendel, Challenge of Sinai, p. 581.
15. See Mahritz Chiyat, Commentary on babylonian talmud , T.B., Taanit 16a; Aryeh
Kaplan, The Handbook of Jewish Law, pp. 234-235. See also Menachem Elon, Mishpat Ivri
2:901 (states that political and other societal factors limited the intellectual investment in the
Jerusalem Talmud and that asserts that for this reason the Babylonian Talmud is more reliable).
16. See Tosafot Yom Tov, Commentary to Mishnah, Berakhot 5:4; Rebbenu Asher,
Commentary to T.B., Sanhedrin 4:6
In ancient times, there existed a supreme rabbinical court, the Sanhedrin HaGodol, that was the
ultimate Jewish law authority. Nonetheless, this institution was dissolved over 1,500 years ago.
Since then, Jewish law has lacked any official procedure for resolving differences in opinions
among Jewish law scholars. Informal processes, whereby scholars exchange their views
privately or in print, have settled debates over many issues. Of course, the more complex the
question, the higher the stakes, and the more ambiguous or scant the Talmudic sources, the more
difficult it is to reach universal agreement, especially as to the "details." Thus, there remain
important conceptual differences regarding a number of the bioethical issues discussed in this
Article. Consequently, in light of the innumerable factual and legal variables that present
themselves in a particular case, it is impossible to catalog possible cases and attempt to
determine normative Jewish law conclusions for each.
17. Certain procedural requirements must be satisfied before a Jewish court - assuming it had
both the authority and the power to act - could punish violators. However, our focus is not on
the prospects of actual punishment but, instead, on whether Jewish law prohibits, discourages,
encourages or requires particular types of conduct with respect to physician-assisted suicide.
18. See, e.g., Maimonides, Mishneh Torah, Laws of Murder and Guarding One's Life, 2:2, 3
(citing Genesis, 9:6).
19. Genesis 9:5, as translated in J. David Bleich, Life as an Intrinsic Rather than Instrumental
Good: The "Spiritual" Case Against Euthanasia, 9 Issues L. & Med. 139 (1993) (hereafter
referred to as "Bleich, LIFE").
21. See Maimonides, Mishneh Torah, Laws of Murder and Guarding One's Life, 2:2.
22. See, e.g., Maimonides, Mishneh Torah, Laws of Murder and Guarding One's Life 3:10:
"But one who ties up another and leaves him to die of hunger, or ties him in a place in which
cold or heat will result in his death . . . in any of these [cases] he is not liable for capital
punishment [imposed by a rabbinic court], but is still considered a murderer. The One that seeks
blood will seek from him the blood which he spilled." See also Judah HaHasid, Sefer Hasidim,
paragraph 675: "The blood of your own souls I will seek: . . . [I]f one goes to a place fraught
with danger [e.g., if] during the winter [he treads] on ice which is likely to break [causing his]
drowning, or if one enters a ruin which collapses on him, or if one quarrels with a violent man
who becomes exceedingly angry [and kills him], these people will be punished, for they caused
their own deaths."
23. The verse, "Do not stand idly by your fellow's blood," Leviticus 19:16, is cited both as a
source for the obligation to save oneself as well as to rescue others. See, e.g., J. David Bleich,
Treatment of the Terminally Ill, 30:3 Tradition 51, n. 12 at 79. The verses, "Be careful, very
careful indeed for your lives," see Rabbi Moshe Sofer, Hatam Sofer, Yoreh De'ah, 326, and
"you shall live by [the commandments] . . .," reinforce an affirmative obligation to safeguard
one's life. The verses, "if your fellow is missing something, you shall restore it to him,"
Deuteronomy 22:2, is applied to a duty to save someone's health in T.B. Sanhedrin 73. At least
one early authority, Nahmanides, cites "Thou shalt love thy neighbor as thyself," Leviticus
19:18, as a source for a physician's duty to provide medical treatment See Nachmanides, Torat
HaAdam in Bernard Chavel (ed.), Kitvei Ramban II:43. See also Rabbi Eliezer Waldenberg,
Tzitz Eliezer, Responsa of Ramat Rachel V:21 (citing Nahmanides' view).
24. T.B. Sanhedrin 37a, as translated in Bleich, LIFE, supra at n. 19.
25. Maimonides, Mishneh Torah, Foundations of the Torah 5:1. See also Abraham S.
Abraham, The Comprehensive Guide to Medical Halachah (1996), pp. 23-24 (citing rules
26. See, e.g., Eliezar Fleckeles, Teshuvah MeAhavah I:53 (there was an affirmative obligation
to preserve the life of a child born with animal-like organs and features); Eliezer Waldenberg,
Tzitz Eliezer XIII:88 (the lives of children born with severe birth defects must be preserved
just as the lives of any other children); Judah the Pious, Sefer Hasidim 186.
27. Maimonides, Mishneh Torah, Laws of Murder, 2:7: "There is no difference between a
person who kills either a healthy person or one who is ill and dying or even a goses. In all of
these cases, the murderer is put to death."
28. The only categorical exceptions are the laws against murder, idolatry, and sexual misconduct.
See Shulhan Arukh, Yoreh De'ah 195:3; 157:1; Maimonides, Mishneh Torah, Foundations
of the Torah 5:1. See also T.B., Sanhedrin 84a; Immanuel Jakobovits, Medical
Experimentation on Humans in Jewish Law, in J. David Bleich and Fred Rosner (eds.), Jewish
Bioethics (1978), p. 379.
29. See Abraham S. Abraham, The Comprehensive Guide to Medical Halachah (1996), pp.
23-24 (citing rules and authorities).
30. Ran, Commentary to Rabbenu Alfasi (the Rif), on T.B.,Yoma.
31. See Yaakov Weiner, Ye Shall Surely Heal: Medical Ethics from a Halachic
Perspective, p. 4, citing this view of the Radbaz. But see Alfred Cohen, Whose Body? Living
With Pain, Journal of Halacha & Contemporary Society 39, 45 (1996) (citing an early
dissenting rabbinic view, which Cohen admits is not reflective of normative Jewish law).
32. See Immanuel Jakobovits, Medical Experimentation on Humans in Jewish Law,
in J. David Bleich and Fred Rosner (eds.), in Jewish Bioethics (1978), at p. 379:
Life is itself the summum bonum of human existence. The Divine
law was ordained only "that man shall live by it." . . . 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,
See also Abraham S. Abraham, Euthanasia, in Fred Rosner (ed.), Medicine and Jewish Law
(1990), pp. 124-125.
33. Similarly, under Jewish law one is not considered to own one's body. This is one reason why
it is generally forbidden for someone to injure oneself , see, e.g., Maimonides, Mishneh Torah,
Laws of Wounding and Damaging 5:1; Shulhan Arukh, Hoshen Mishpat 420:31; Shneur
Zalman, Shulhan Arukh Ha-Rav, Laws of Bodily Damages 4. For the same reason, neither a
person - through his last will and testament - nor a person's inheritors can donate his body for
medical experimentation. See Rabbi Moses Feinstein, Iggerot Moshe, Yoreh De'ah IV:59
("No person is the owner of his body such that he can order what is to be done [after his death]
with his body, or even with one of his limbs, for any purpose - not even for the purpose of
furthering medical knowledge. A fortiori, his children and his other relatives [have no such
right]."); Iggerot Moshe, Yoreh De'ah III:140. See also J. David Bleich, The Obligation to
Heal in the Judaic Tradition: A Comparative Analysis, in J. David Bleich and Fred Rosner
(eds.), Jewish Bioethics, at 18-19. But see Alfred Cohen, Whose Body? Living With Pain, 32
Journal of Halacha & Contemporary Society 39 (1996), at n. 9, pp. 43-44 (discussing a
34. As the Radbaz writes: "a person's soul is not his property; it is the property of the Holy One,
Blessed be He, as it is written, 'And the souls are Mine.'" See Radbaz, on Mishneh Torah,
Laws of the Supreme Court 18:6 (explaining that this is the reason why a rabbinical court does
not impose corporal punishment based on a defendant's admission of guilt). See also Rabbi
Eliezer Waldenberg, Tzitz Eliezer V, Ramat Rachel 29(1); Abraham S. Abraham, Euthanasia,
in Fred Rosner (ed.), Medicine and Jewish Law, p. 123.
35. This also explains how the same verses are construed to apply to protection of one's own life
as to rescuing another's. In addition, note that Maimonides categorizes these laws together
under the heading "Laws of Murder and Guarding One's Life."
36. See Shlomo Zalman Auerbach, Minhat Shlomo 91.
37. Id. See also Is Euthanasia Permissible Under Jewish Law, Jewish Law Report (August
1994), at. 24. See also Immanuel Jakobovits, Medical Experimentation on Humans in Jewish
Law, in J. David Bleich and Fred Rosner (eds.), Jewish Bioethics, at 379:
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. For the same reason, one life is worth as much as
a thousand or a million lives - infinity is not increased by multiplying
it. This explains the unconditional Jewish opposition to deliberate
euthanasia as well as to the surrender of one hostage in order to save
the others if the whole group is otherwise threatened with death [footnotes
38. Isaiah 38:1, as translated in J. David Bleich, Life as an Intrinsic Rather Than Instrumental
Good: The "Spiritual" Case Against Euthanasia, 9 Issues L. & Med. 139, 141 (1993).
39. T.B., Berakhot 10a.
40. Hezekiah's response was to immediately repent and ask to marry Isaiah's daughter.
41. Chaim Shmuelevitz, Sihot Mussar, p. 35.
42. J. David Bleich, Life as an Intrinsic Rather Than Instrumental Good: The "Spiritual" Case
Against Euthanasia, 9 Issues L. & Med. 139, 141-142 (1993).
43. See, e.g., Shlomo Zalman Auerbach, Minhat Shlomo 91.
44. Magen Avraham, Shulhan Arukh, Orah Hayyim, 328 (6) "if the patient refuses to accept
the prescribed treatment [because doing so would desecrate the Sabbath], we compel him to do
45. See Abraham S. Abraham, The Comprehensive Guide to Medical Halachah 10:3,
at 53 (citing authorities).
46. See, e.g., Shulhan Arukh, Orah Hayyim 328:5; Yisroel Meir Kaganoff, Mishnah
Brurah, Shulhan Arukh, Orah Hayyim 328:17; Abraham S. Abraham, The
Comprehensive Guide to Medical Halachah (1996), 10:2, at 53. See the more complete
discussion regarding coercion, infra, in the text associated with notes 136-138.
47. T.B., Yoma 83a. See also Rabbi Yaakov Weiner, Obligation of the Sick to Accept Medical
Treatment, Jerusalem Forum on Medicine and Halacha (Report #8).
48. The Talmud states that one must violate the Sabbath even to temporarily preserve the life of
one who is soon to die. See T.B. Yoma 85a. Similarly, the Shulhan Arukh, Orah Hayyim
329:4, states: "Even if one finds a wounded person with a crushed skull who will continue living
only temporarily, one [violates the Sabbath and] saves him."
It is true that, at one point, the Talmud states that the reason why the Sabbath laws are violated
to save a person's life is that "we violate one Sabbath so that [the person rescued] can perform
the mitzvah of fulfilling many other Sabbaths." T.B., Yoma 85a. Nevertheless, the Talmud
concludes that the real reason why this is permitted is that the commandments were given to live
by, and not to die by. Id. See also Eliezer Waldenberg, Tzitz Eliezer VIII, Ramat Rachel, ch.
28; Shlomo Zalman Auerbach, Minhat Shlomo 91:
[W]e even violate the Sabbath to save an old, sick man . . . even though he is
deaf and totally insane, and cannot fulfill any commandment, and his life is only a great
burden and ordeal for his family members and prevents them from learning Torah and
doing commandments, and, in addition to their severe distress, they become
impoverished [through the attendant expenses] . . ."
49. Exodus 21:19.
50. Before secular licensing systems were instituted, rabbinical authorities were responsible for
establishing standards to determine who qualified to practice medicine. See Immanuel
Jakobovitz, Jewish Medical Ethics, pp. 216-217. Dr. Jakobovitz asserts that "[t]he Jewish
system, therefore, would appear to represent the oldest, and certainly the longest established,
form of regular control over the practice of medicine." Id., at 217. Once civil authorities
implemented licensing laws, rabbinic authorities recognized persons so licensed as qualified as a
matter of Jewish law as well. Id. (citing authorities).
51. See Shulhan Arukh, Hoshen Mishpat 336:1. See also T.B., Bava Kama 85a.
52. See Shulhan Arukh, Hoshen Mishpat 336:1 ("[I]f [one who is qualified to practice
medicine] refrains from [providing life-saving medical treatment], he is a murderer"). See T.B.
Sanhedrin 73a stating that a doctor's duty to treat based on the verses "[d]o not stand idly by
your fellow's blood," Exodus 20:13, and "if your fellow is missing something, you shall restore
it to him," Deuteronomy 22:2. The detailed rules regarding matters such as which of several
available doctors would be obligated to treat, the right to payment for treatment, and liability for
improper treatment exceed the scope of this Article.
53. A statement published in Hebrew in 1994 by four leading Israeli authorities, Rabbi Yosef
Shalom Eliashiv, Shlomo Zalman Auerbach, Shmuel Ha-Levi Woszner and S.Y. Nissim
Karelitz, reads, in part: "According to the law of the Torah it is obligatory to treat even a patient
who, according to the opinion of the physicians, is a terminal, moribund patient with all
medications and usual medical procedures as needed." See J. David Bleich, Treatment of the
Terminally Ill, 30:3 Tradition 51 (1966), at p. 58 (translating the Hebrew statement). Attached
to this statement was a list of medical treatments including "intravenous or gastric feeding, IV
fluid replacement, insulin injections, controlled dosages of morphine, antibiotics and blood
Similarly, a statement dated February 29, 1996, was issued by Rabbi Ahron Soloveichik, an
American rabbinic authority, stating, in part: "It is my unmitigated, convinced opinion that a
doctor must do his utmost to treat terminally ill patients. This is true whether doctors believe
that the patient can survive for even an extremely brief period of time, or even if they believe
that the patient is brain dead . . ." Id.
54. Id., at p. 59: "Any distinction between 'natural' and 'artificial' means of treatment is without
precedent in Jewish law." Rabbi Bleich argues that this position is supported by Maimonides'
Commentary on the Mishnah. Id.
55. Id., at 61.
57. See Moshe Feinstein, Iggerot Moshe, Hoshen Mishpat II:75 (argues that if someone
deemed to be a goses lives more than 72 hours, it is more likely that the person never was a
goses than that the person was from the small minority of gosesim that survive more than 72
hours). But see Rabbenu Asher, Commentary 3:97, on T.B., Moed Katan (gesisah lasts 3 or 4
58. Shulhan Aruch, Yoreh De'ah 339:2.
59. See, e.g., Shmuel ben Uri, Beit Shmuel Commentary on Shulhan Arukh, Even HaEzer
17:18 (citing authority) and 17:94. But see Yehezkel Landau, Dagul Mervavah Commentary
on Beit Shmuel, Shulhan Arukh Even HaEzer 17:94.
60. See Shulhan Arukh, Yoreh De'ah 339:1 ("A goses is considered alive for all matters . .
."). See also Mishnah, Semahot 1:1; Maimonides, Mishneh Torah, Judges, Laws of
61. See, e.g., Yosef ben Moshe Babad, Minhat Hinukh, commentary on Sefer HaHinukh,
commandment 34: "Even if [the Prophet] Eliyahu would come and tell us that a particular
person will live only an hour or a moment, still the Torah does not distinguish between one who
kills a lad who would live many years or one who kills an old man who had little more to live . .
62. See Shulhan Arukh, Yoreh De'ah 339:1; Commentary of Rabbi Shabtai Kohen (the
Shach). The goses is likened to a candle whose flame is about to expire. If one places a finger
on it, it is extinguished. T.B., Shabbat 151b.
63. The source of this rule is a statement published by the thirteenth century scholar, Rabbi Judah
HaHasid, in his work Sefer Hasidim, at 723, p. 173: "[I]f a person is dying and someone near
his house is chopping wood so that the soul cannot depart, one should remove the chopper from
there . . ."
64. See, e.g., Yaakov Reicher, Shevut Yaakov I:13; Rabbi Shlomo Egger, Gilyon Maharsha,
Commentary to Shulhan Arukh, Yoreh De'ah 339:1; Rabbi Eliezer Waldenberg, Tzitz
Eliezer VIII, Ramat Rachel 28; Abraham S. Abraham, Nishmat Avraham, Orah Hayyim
329:4(11) (citing sources), Yoreh De'ah 339:2 ("[S]o long as it is not clear that the [goses] is
definitely dead, he is called a live person for all purposes, and a doctor is obligated to treat him
in every way that is possible and appropriate . . . even if there is only a small chance that the
patient will remain alive and even if the patient may stay alive for only a short while."
65. See Part II-B as to possible limitations on the obligation to preserve life.
66. For instance, the Talmud states that it is permissible to violate the Sabbath by digging out a
person on whom a wall had fallen even after initial digging revealed that the person had a
crushed skull, that he person would die extremely soon and that continued digging would only
momentarily extend his life. T.B., Yoma 85a. This law, memorialized in Shulhan Arukh,
Orah Hayyim 329:4, certainly seems to be describing a person who would surely die within 3
days. Consequently, according to any authorities who do not require the precise symptoms
specified by the Rema, see n. 71, infra, this person with a crushed skull would seem to be a
goses. Moreover, it seems quite possible that this person with a crushed skull might also have
the Rema's symptoms.
67. In his earlier work, the Darkei Moshe, Yoreh De'ah 339(1), the Rema, apparently
approvingly, cites an authority forbidding someone to commence such an action. In his
commentary to the Shulhan Arukh, Yoreh De'ah 339:1, the Rema does not seem to retreat
from this position. Instead, he appears to focus on a third party who did not initiate the action
and states that such a party may put a stop to it. Rabbi Waldenberg indicates that a person
responsible for the wrongful commencement of the action may be obligated to terminate the
action. See Eliezer Waldenberg, Tzitz Eliezer XIII:89.
68. Some commentators use language which purports to provide a third approach which
distinguishes between procedures that strengthen the body, which are required, and those that
"merely" preserve the status quo, which the Rema supposedly proscribes. The problem,
however, is that preserving a patient's life is an important feat and, according to the authorities
whose views this part of the text discusses, any established medical procedure that preserves life
is required. At least one author seems to conflate this apparently illegitimate distinction -
between treatments that enhance one's condition versus those that "merely" preserve one's life -
and the apparently legitimate distinction between scientific and nonscientific practices -
described in the immediately following text. See, e.g., Yaakov Weiner, Ye Shall Surely
Heal: Medical Ethics from a Halachic Perspective (1995), p. 31 ("Medical treatment
strengthens the body and prevents a goses from deteriorating towards death (as compared, for
example, to salt on the tongue which only metaphysically prevents the soul from departing, but
which has no physically ameliorative effect on the body, such as strengthening it).").
69. J. David Bleich, Treatment of the Terminally Ill, Tradition 30:3 (1996), pp. 69-70.
70. See, e.g., Eliezer Waldenberg, Tzitz Eliezer XIII:89(14). One might think this position to be
problematic. After all, the Rema refers simply to a goses and seems to set forth his rule
regarding the entire period of gesisah. If special rules are to apply only at the end of the period
of gesisah, it would seem essential for the Rema to enumerate criteria for determining when
gesisah is about to end. Rabbi Weiner's position, which combines the two approaches
mentioned in the text, may implicitly answer such objections. Weiner argues not only that the
effect of the actions identified by the Rema are metaphysical rather than medical but that, even
if initiated at an earlier part of the gesisah period, the actions have their metaphysical impact at
the end of gesisah. The actions are therefore prohibited at any time during gesisah because of
their ultimate effect. See Rabbi Yaakov Weiner, Insights on the Treatment of the Terminally Ill,
Jerusalem Forum on Medicine and Halacha, Report #5.
71. See J. David Bleich, Treatment of the Terminally Ill, Tradition 30:51, at n. 47, p. 85 (1996)
(discussing T.B., Yoma 20b).
72. Rema, Shulhan Arukh, Even HaEzer 121:7 and Hoshen Mishpat 211:2.
73. Commentators disagree as to the Rema's meaning. Rabbi Bleich, for instance, translates the
Rema as referring to a patient who "brings up secretion in his throat on account of the narrowing
of his chest." J. David Bleich, Treatment of the Terminally Ill, 30:3 Tradition 51, 63 (Spring
1996). In a phone conversation with this author, Bleich described the secretions as saliva and
stated that the goses experiences difficulties in swallowing. Another contemporary writer,
however, identifies the secretion is phlegm and states that the goses experiences problems in
breathing. See Yaakov Weiner, Ye Shall Surely Heal: Medical Ethics from a Halachic
Perspective (1995), at p. 25. See also Fred Friedman, The Chronic Vegetative Patient: A
Torah Perspective, XXVI Journal of Halacha and Contemporary Society 88, 99 (1993)
("The current pathophysiological explanation would be a person who is asphyxiating o his own
secretions which accumulate in the airway.")
74. Rabbi Bleich, for instance, states that the Rema's description is a "necessary criterion of
gesisah." Id., at p. 63. See also the following statement of Rabbi Ahron Soloveichik writes,
"The situation of a goses does not even have to be considered since today very few, if any,
patients manifest the symptoms of a goses." Id., at p. 58. The late Rabbi Moshe Feinstein,
however, is ambiguous as to whether someone could be a goses even if he does not have the
symptoms described by the Rema. Rabbi Feinstein states that he has heard that most doctors are
unfamiliar with the signs of gesisah. Nevertheless, Rabbi Feinstein neither recites the symptoms
identified by the Rema nor refers doctors to the Rema's words in the Shulhan Arukh. Instead,
Rabbi Feinstein asserts that members of local Jewish burial societies are familiar with such
symptoms because they are often around people who are dying (perhaps because these same
people frequently visit the sick). Rabbi Feinstein suggests that doctors could learn these
symptoms, too, if they if they would spend time with patients who were near death. See Moshe
Feinstein, Iggerot Moshe, Hoshen Mishpat II:73. Consequently, it is possible that Rabbi
Feinstein's position is that anyone whose clinical profile, as observed by those who are
experienced with people who are dying, conclusively indicates that he will die within three days
is a goses.
75. Yaakov bar Shmuel, Shut Beit Yaakov 59, as cited by J. David Bleich, Treatment of the
Terminally Ill, 30:3 Tradition 51 (1996), n. 27 at 81-82.
76. See, e.g., J. David Bleich, Treatment of the Terminally Ill, 30:3 Tradition 51, 64 (Spring
1996). Rabbi Bleich argues that Rabbi Moshe Feinstein agrees with him on this point. Id., n.
31, at p. 82. Cf. Abraham Steinberg, Encyclopedia Halakhatit Refuit, vol. 4, col. 371, n.
149 (stating that he heard from Rabbi Shlomo Zalman Auerbach that, in light of the ability of
modern technology to keep patients alive for more than three days, it is often not possible to
characterize a particular patient as a goses); Abraham S. Abraham, Nishmat Avraham, vol. 4,
p. 138 (reporting that contemporary scholar Rabbi Y.S. Eliashiv stated that he considers a
vegetative, respirator-dependent patient to be a sofek-goses (possibly a goses and possibly
already dead) and therapy should not be withheld). But see Rabbi G.A. Rabinowitz, 3 Halakha
and Refuah 102 et. seq. (arguing that in light of modern technology, a person may be a goses
even though he survives for many more than 3 days), cited in Abraham Steinberg,
Encyclopedia Halakhatit Refuit, vol. 4, col. 371, n. 149; Fred Friedman, The Chronic
Vegetative Patient: A Torah Perspective, XXVI Journal of Halacha and Contemporary
Society 88, 100-101 (1993).
77. See J. David Bleich, Treatment of the Terminally Ill, 30:3 Tradition 51, 64 (Spring 1996).
78. The number of gosesim is especially small according to those who believe that a person can
only be a goses if she exhibits the specific symptoms cited by the Rema.
79. See Yaakov bar Shmuel, Shut Beit Yaakov 59; Moshe Feinstein, Iggerot Moshe, Yoreh
80. See Moshe Feinstein, Iggerot Moshe, Yoreh De'ah II:174(3).
81. Leviticus 19:14.
82. See, generally, Michael J. Broyde, The Pursuit of Justice and Jewish Law (1996), pp. 53-66.
83. See, e.g., Sefer HaHinukh, Mitzvah 232.
84. See also Yosef bar Moshe Babad, Minhat Hinukh, on Sefer HaHinukh, Mitzvah 239
(failure to convince someone not to commit a sin is a violation of lifnei iver).
85. See Shulhan Arukh, Yoreh De'ah 151:1.
86. See Michael J. Broyde, The Pursuit of Justice and Jewish Law (1996), pp. 59-60.
87. Rabbi Joseph Karo, Shulhan Arukh, Yoreh De'ah 151:1.
88. Rabbenu Nissim, Commentary on T.B., Avodah Zarah 6b.
89. Rabbi Shabtai Kohen, Commentary on Shulhan Arukh, Yoreh De'ah 151:1.
90. Rema, Shulhan Arukh, Yoreh De'ah 151:1.
91. A detailed discussion regarding the significance under Jewish law of emotional distress is
beyond the purview of this paper. Consequently, unless otherwise noted, the text's references
should be construed as referring to physical pain. Those interested in an introduction regarding
the issue of emotional distress should see Moshe Tendler and Fred Rosner, Quality and Sanctity
of Life in the Talmud and the Midrash, 28:1 Tradition 18, 23-26 (1993). See also Moshe
Feinstein, Iggerot Moshe, Yoreh De'ah II:174(4) (ruling that it would be prohibited to take an
organ from a decedent's cadaver to save the life of a prospective organ donee because of the
emotional distress of the decedent's surviving relatives) and comments thereon in J. David
Bleich, Treatment of the Terminally Ill, 30:3 Tradition 51, n. 56 at p. 86 (1996).
92. It should be noted, however, that modern advances indicate that pain can in fact be effectively
controlled in most instances. See, e.g., Albert Einstein, Overview of Cancer Pain Management,
in Judy Kornell (ed.), Pain Management and Care of the Terminal Patient (1992), p. 4
("adequate inventions exist to control pain in 90 to 99% of patients"); Burke J. Balsch and David
Waters, Why We Shouldn't Legalize Assisting Suicide, Part II: Pain Control,
http://www.nrlc.org/euthanasia/asisuid2.html. Hopefully, additional, aggressive pain palliation
research will even further reduce the number of people who experience significant pain.
93. Even those who, in different contexts, consider the extent of a person's suffering as legally
significant do not argue that suffering justifies affirmative actions to terminate one's life.
See, e.g., Moshe Feinstein, Iggerot Moshe, Yoreh De'ah II:174(3) ("But doing an act to
hasten the death [of a goses] is proscribed . . . even though he [the goses] is suffering and doing
so would constitute murder violating the injunction 'Thou shalt not kill' and would [render a
person] subject to capital punishment . . ."); Moshe D. Tendler and Fred Rosner, Quality and
Sanctity of Life in the Talmud and the Midrash, 28:1 Tradition 18 (1993).
Although the view in the text surely represents normative Jewish law, it is important to note that
some argue there is support for a contrary position among early Jewish law authorities. Such
alleged support appears in a few of the commentaries regarding King Saul's death, see I Samuel
31:1-6; II Samuel 1:1-16, and is not necessarily inconsistent with the Talmudic discussion of
Chanina ben Teradion's death.
Saul's forces were losing a battle with the Philistines, when he realized that the Philistines had
surrounded him and that he could not escape. Fearing imminent capture, he asked his arms-bearer to kill him. The arms-bearer refused, whereupon Saul fell on his own sword, which may
have killed him. Although Scripture relates that an Amalekite youth later told King David that
he found Saul near death and killed Saul at Saul's request, commentators disagree as to whether
the youth was telling the truth. They suggest he may simply have been trying to make himself
seem important by claiming to have put Saul out of his misery. In any event, commentators
assume that unless there were some specific legally acceptable justification, Saul's initial act of
falling on his sword would have been blameworthy.
The Talmud reports that there was a famine in all of the land of Israel for three years and that
one of the reasons for the famine was the fact that Saul had not been eulogized. See T.B.,
Yevamot 78b. At first blush, this report is puzzling, because Jewish law provides that a person
who commits suicide is not to be eulogized. Shulhan Arukh, Yoreh De'ah 345:1.
Many solutions have been suggested. Some contend that Saul feared not only that the Philistines
would torture him, but that, because of such torture, he would accede to his torturers' demands
to perform idol-worship. Doing so would constitute a Chillul HaShem, a desecration of God's
Name. According to this view, suicide is justified to avoid Chillul HaShem. See, e.g., Weiner,
Ye Shall Surely Heal: Medical Ethics from a Halachic Perspective (1996), p. 5
(indicating that this was the view of the fourteenth century scholar, Rabbi Yom Tom Ishbili,
known as the Ritva). Another approach states that Saul's action was warranted by his fear that
other Jews would foolishly lose their lives trying to rescue him. Id. (citing Rabbi Shlomo Luria,
Yam Shel Shlomo, on T.B., Bava Kama 8:59). A third view is that Saul was not justified in
what he did but that post-mortem rituals, such as eulogies, are not withheld from those who kill
themselves while under duress. Accordingly, while the threat of imminent capture and torture
did not excuse Saul's conduct, it prevented him from losing the right to a eulogy. See, e.g.,
Eliezer Waldenberg, Tzitz Eliezer VIII, Ramat Rachel 29.
None of the preceding explanations states that active suicide is justified simply to avoid
threatened suffering. However, a fourth approach arguably does. This is the approach taken by
two fourteenth century scholars, Rabbi David Kimchi, known as the Radak, and Nachmanides.
Both of these scholars rely on the Midrash Rabbah, on Genesis 34:13. The Midrash Rabbah is
an ancient text that, rather than discussing the oral tradition in a manner organized by subject,
comments on Scripture on a verse by verse basis.
In his own commentary to I Samuel 31:4, the Radak states:
Saul did not commit a sin when he killed himself. He knew he
was anyway going to die in the battle because [the Prophet] Shmuel
had told him so . . . In addition, he saw that archers had spotted him
and that he was unable to escape them. It was good that he killed
himself rather than have the uncircumcised [i.e., the Philistines] make
sport of him.
At p. 7 of his book, Ye Shall Surely Heal: Medical Ethics from a Halachic Perspective
(1995), Rabbi Yaakov Weiner, a contemporary writer , states that the Radak, "under conditions
of certain humiliation, disgrace and torture, . . . permits the shortening of life." Rabbi Weiner
says that the Radak "enhances our understanding of the statement of . . . [Rabbi Chanina ben
Teradion], who told his students that 'It is better [mutav] that the One Who gave the soul should
take it.'" (Emphasis in original) Id. Rabbi Weiner argues that Rabbi Chanina did not say that it
was prohibited for him to open his mouth and hasten his death, but merely that, for some
unstated reason - applicable to a special person such as Rabbi Chanina and not to others - it was
better, preferable, that Rabbi Chanina not do so.
Nevertheless, Weiner's interpretation is not particularly persuasive. He adduces no evidence for
the proposition that the Hebrew word mutav, as used in the Talmud, was intended to signify only
a preference rather than an obligation. In addition, by being somewhat less literal in his
translation of the Radak, he avoids reference to the "uncircumcised." Yet the Radak's use of that
word arguably supports the position that Saul's case was unique because Saul feared a Chillul
HaShem would result from the fact non-Jews would make sport of the Jewish king.
Nachmanides writes that committing suicide was "permitted" to Saul because he feared torture.
See Nachmanides, Writings of the Ramban (Heb., ed. Chavel, 1964, p. 84). This same word,
"permitted," is used by Rabbenu Asher ben Yehiel (the Rosh), a fourteenth century scholar, in
his commentary (no. 94) to the Babylonian tractate, Moed Katan. A major Jewish law code, the
Shulhan Arukh, Yoreh De'ah 345:3, states that a person, such as Saul, who commits suicide
because of duress is entitled to a eulogy. Rabbi Moshe Rivkes, in his seventeenth century
commentary on the Shulhan Arukh, the Beer HaGoleh, indicates that Nachmanides is the source
for this law. Consequently, if Nachmanides' use of the word "permitted" is interpreted to mean
that it was a perfectly appropriate thing for Saul to do, one could argue that suicide would be
similarly acceptable for someone suffering from uncontrollable pain.
In Alternatives in Jewish Bioethics, pp. 54-58, Noam J. Zohar provides a fascinating
discussion of Saul's death and of various explanations as to why he should have been eulogized.
Zohar spends considerable time on Nachmanides' view while, ironically, not mentioning the
Radak. Zohar points out that the former Chief Rabbi of Cairo, Rabbi R. A. ben-Shimon applied
the Shulhan Arukh's rule to a sick woman who, being driven by intractable pain, committed
suicide by throwing herself out of the window of a building. Zohar asserts that: "We can, then,
conclude with confidence that condemnation of such suicide is hardly the only voice in the
Halakhic tradition; nor is such condemnation entailed by the tradition's basic values."
Zohar's assertion deserves comment. For example, his use of the word "condemnation" is
unclear. Rabbi Waldenberg's approach, that Saul's conduct, while wrong, did not forfeit his
right to customary post-mortem procedures, is, as Zohar elsewhere acknowledges, follows a
"well-known [analytical] model." Id., at 55. Rabbi ben-Shimon's ruling with respect to the
woman who committed suicide could just as easily be understood as consistent with Rabbi
Waldenberg's approach as with the view Zohar attributes to Nachmanides. Furthermore, in light
of the substantial body of rabbinic authority that proscribes the affirmative taking of one's life
merely to avoid pain, it is uncertain whether Nachmanides (or the Rosh) meant the word
"permitted," as Zohar thinks, to totally justify such conduct. In addition, even if Nachmanides
or the Rosh did mean that Saul's conduct was entirely permitted, their position may have been
based, at least in part, to the special circumstances, as identified by other commentators,
surrounding Saul's death.
94. A number of authorities explain that Jewish law believes that life, even a life with suffering,
is in a person's own best interests. To support this proposition, they cite a Talmudic passage
regarding a Soteh, a woman accused of adultery under certain specific circumstances. In the
times of the Temple, a Soteh might be required to drink a certain potion. Numbers 5:11-31. If
guilty, she would die - but not always immediately. The Talmud explains that if, unrelated to
the adultery, the woman had other merits, the potion would cause a degenerative, lingering
death. Although this condition would presumably involve physical and emotional pain, it was
nonetheless considered a reward in contrast to immediate death.
95. See, e.g., Bleich, LIFE, at p. 141, citing Psalms 118:18, states that this "sentiment . . . is
reflected in the words of the Psalmist: 'The Lord has indeed punished me, but He has not left
me to die.'" See also R. Shlomo Zalman Auerbach, Minhat Shlomo 91; Abraham S. Abraham,
Nishmat Avraham , Yoreh De'ah 339(4). Of course, it may be that a particular person's
suffering could exceed the pain involved in a Soteh's lingering death. If so, the case of the Soteh
would not prove that continued life coupled with excessive pain would be a boon.
96. See, e.g., Rabbi Moshe Sofer, Hatam Sofer, Responsa to Yoreh De'ah 326, as cited by
Yaakov Weiner, Ye Shall Surely Heal: Medical Ethics from a Halachic Perspective
(1996), at 24; Rabbi Eliezer Waldenberg, Tzitz Eliezer V, Ramat Rachel 29.
97. T.B., Avodah Zara 18a. Interestingly, the end of this same story seems superficially to
contradict the rule proscribing affirmative acts to terminate the life of one who is in great pain.
Unfortunately, an analysis of the story and the various explanations offered by Jewish law
authorities exceeds our scope.
98. See Michael J. Broyde, The Pursuit of Justice and Jewish Law (1996), pp. 59-60.
99. Genesis 9:5, as translated by J. David Bleich, Life as an Intrinsic Rather than Instrumental
Good: The "Spiritual" Case Against Euthanasia, 9 Issues L. & Med. 139 (1993).
100. Jacob Zevi Mecklenburg, HaKetav VeHa Kabbalah 20 (5th ed. 1946), cited by J. David
Bleich, Life as an Intrinsic Rather than Instrumental Good: The "Spiritual" Case Against
Euthanasia," 9 Issues L. & Med. 139, 139-140 (1993). See also Abraham S. Abraham, The
Comprehensive Guide to Medical Halachah, at 193.
101. Arukh Ha-Shulhan, Yoreh De'ah 339:1. See also Abraham Danzig, Hokhmat Adam
151:14 ("[I]t is prohibited to cause [a goses] to die more quickly even if he has been a goses for a
long time and . . . [he] and his relatives are suffering a great deal . . .").
102. See Moshe Feinstein, Iggerot Moshe, Yoreh De'ah II:174(3). See also Abraham S.
Abraham, The Comprehensive Guide to Medical Halachah (1996), pp. 193-194 (citing
rules and authorities); Moshe Tendler and Fred Rosner, Quality and Sanctity of Life in the
Talmud and the Midrash, 28:1 Tradition 18, 20 (1993).
103. Rabbi Yaakov Reicher, Shut Shevut Yaakov 1:13; Rabbi Meir Kaganoff, Biur Halakha
Orah Hayyim 329, s.v. Eleh; Rabbi Hayyim Azulai, Shulhan Arukh, Orah Hayyim 329(4);
Tosephot, Commentary on T.B., Nidah 44b. See also Abraham S. Abraham, Nishmat
Avraham, Yoreh De'ah 339:2.
104. See, generally, Sidney Goldstein, Suicide in Rabbinic Literature (1989), pp. 27-50
(reviewing various possibly exonerating circumstances). See also note 88, supra.
105. See Michael J. Broyde, The Pursuit of Justice and Jewish Law (1996), pp. 59-60.
106. See, e.g., Aaron Kirschenbaum, The Good Samaritan: Monetary Aspects,
XVII Journal of Halacha and Contemporary Society 83 (1989).
107. See, e.g., Yosef ben Meir Migash, Shut Ri Migash 186; Yitzchok ben Shushet, Shut
Rivash 48; Schneur Zalman, Shulhan Arukh HaRav, Hoshen Mishpat, Laws of Bodily
Damages 4; Moshe Feinstein, Iggerot Moshe, Yoreh De'ah II:174; Eliezer Waldenberg,
Tzitz Eliezer 8:15 (citing authorities), 9:45; Yitzchok Weiss, Minhat Yitzchok 5:8. But see
Yosef ben Moshe Babad, Minhat Hinukh, Commentary on Sefer HaHinukh, Commandment 337.
108. See, e.g., J. David Bleich, Treatment of the Terminally Ill, 30:3 Tradition 51 (arguing that
such refusal would be justified only in a rare instance in which intractable pain were so great
that the person affected would be willing to give up all of her wealth in order to escape it).
109. This episode is discussed in T.B., Ketubot 104a.
110. She prayed:
The immortals [i.e., angels] desire Rebbe [to join them] and
the mortals [i.e., the Rabbis] desire Rebbe [to remain with
them]; may it be the will [of God] that the mortals overpower
See Moshe Tendler and Fred Rosner, Quality and Sanctity of Life in the Talmud and the
Midrash, 28:1 Tradition 18, 22 (1993).
111. She changed her prayer to: "May it be the will [of God] that the immortals overpower the
mortals." See Moshe Tendler and Fred Rosner, Quality and Sanctity of Life in the Talmud and
the Midrash, 28:1 Tradition 18, 22 (1993).
112. T.B., Ketubot 104a.
113. See, e.g., Ran, Commentary on T.B., Nedarim 40a; Shlomo Zalman Auerbach, Minhat
Shlomo 91; Moshe Feinstein, Iggerot Moshe, Hoshen Mishpat II:73; J. David Bleich,
Treatment of the Terminally Ill, 30:3 Tradition 51, 56 and 59 (1996) (stating own view and
quoting statement by Rabbi Ahron Soloveichik); Abraham S. Abraham, Euthanasia, in Fred
Rosner (ed.), Medicine and Jewish Law (1990), pp. 125 (citing authorities). There are
additional Talmudic examples apparently approving of praying for the death of someone who is
suffering uncontrollably. See, e.g., T.B, Bava Metsia 84 (after Reish Lakish died, Rabbi
Yochanon was greatly depressed, and the rabbis prayed for his death); T.J., Sabbath 19:2
(Rabbi Ada bar Ahava accidentally mutilated his son during circumcision in such as way that the
son would not be able to marry; to save his son from disgrace, he prayed that the boy die and his
prayer was answered).
The authorities seem to think that it if a third party can pray for one's death, certainly the person
who is suffering can pray for her own death. certainly permissible for the person who is
suffering to pray that he should die. See also T.B., Taanit 23a (Honi the Circle-Drawer awoke
from a 70-year sleep, suffered severe emotional distress and prayed for death).
114. See, e.g., Eliezer Waldenberg, Tzitz Eliezer V, Ramat Rachel 5, and VII:49, Kuntres Even
Yaakov, perek 13 (one should not pray for someone else's death).
115. Haim Palaggi, Hikkekei Lev I, Yoreh De'ah 50, discussed in J. David Bleich, Treatment of
the Terminally Ill, 30:3 Tradition 51, 56-57 (1996).
116. See Moshe Feinstein, Iggerot Moshe, Yoreh De'ah II:174(3).
117. Shlomo Zalman Auerbach, Minhat Shlomo 91 (arguing, however, that it would be
preferable for the patient to choose treatment). Ironically, Rabbi Auerbach begins by stating that
we have no measuring stick with which to evaluate life and that we would repeatedly transgress
the laws of Sabbath to save the life of someone who is suffering, is totally incompetent, and who
could fulfill no commandments. Nevertheless, in rendering his ultimate ruling allowing the
patient to refuse the prospective surgery, he counts as a relevant factor the negative qualitative
features associated with the life of one who is paralyzed.
118. Rabbi Auerbach states that this should be provided even against the patient's will. Rabbi
Feinstein requires that it be made available and that efforts be made to convince the patient to
accept the treatment. See Zev Schostak, Ethical Guidelines for Treatment of the Dying Elderly,
XXII Journal of Halacha and Contemporary Society 62, 83 (1991) See also Moshe
Tendler and Fred Rosner, Quality and Sanctity of Life in the Talmud, 28:1 Tradition 18, n.8 at
26-27 (1993); Fred Friedman, The Chronic Vegetative Patient: A Torah Perspective, XXVI
Journal of Halacha and Contemporary Society 88, 105 (1993)
119. See Zev Schostak, Ethical Guidelines for Treatment of the Dying Elderly, XXII Journal of
Halacha and Contemporary Society 62, 83-85 (1991) (discussing these various views). But
see J. David Bleich, Treatment of the Terminally Ill, 30:3 Tradition 51, 70-77 (explaining,
analyzing and criticizing the Feinstein-Auerbach approach).
120. See, e.g., Abraham S. Abraham, Euthanasia, in Fred Rosner (ed.), Medicine and Jewish
Law, at 129 (1990) (appearing to implicitly make this argument); Is Euthanasia Permissible
Under Jewish Law?, Jewish Law Report (August 1994), at 25; Fred Friedman, The Chronic
Vegetative Patient: A Torah Perspective, XXVI Journal of Halacha and Contemporary
Society 88, 100, n. 28 (1993).
121. Interestingly, Rabbi Feinstein emphasizes that the justification for refusing life-preserving
treatment is only because of pain and is not to be confused with an overall "quality of life"
analysis. He explains that the life of a mentally incompetent or a person in a permanent
vegetative state must be prolonged as much as possible so long a the person is not experiencing
pain. See Moshe Feinstein, Iggerot Moshe, Hoshen Mishpat II:74(1); J. David Bleich,
Treatment of the Terminally Ill, 30:3 Tradition 51, 71 (1996).
122. See Eliezer Waldenberg, Tzitz Eliezer XIII:89. See, generally, Chaim David HaLevi, The
Disconnection of a Terminally Ill Patient from an Artificial Respirator, 2 Techumin 297 (1981).
123. See Moshe Feinstein, Iggerot Moshe, Yoreh De'ah II:174(3).
124. See Moshe Feinstein, Iggerot Moshe, Yoreh De'ah III:132.
125. See Eliezer Waldenberg, Tzitz Eliezer XIII:89.
126. See, e.g., J. David Bleich, Treatment of the Terminally Ill, 30:3 Tradition 51, 56 and 59
(1996) (stating own view and quoting statement by Rabbi Ahron Soloveichik); Eliezer
Waldenberg, Tzitz Eliezer XV:40.
127. See Shulhan Arukh, Orah Hayyim 656:1. Even if the refusal to take life-preserving
treatment would be considered violation of a negative commandment, such a refusal would be
passive. As the text states, one need only forfeit all of one's wealth in order to avoid a passive
violation. The duty to avoid an affirmative violation of a negative commandment, however,
would be even greater. Suppose, for example, that a person borrowed property and had the
borrowed property, together with all of his own property, in his house. Assume the person had
no insurance. On the Sabbath, some third person set a fire that did not threaten anyone's life but
that threatened all of the property. The owner of the house would not be permitted to extinguish
the fire even though he would not only lose the value of all of his own property but he would
become financially liable for the borrowed property as well. Consequently, although the
comparison between all of one's wealth and the extent of one's pain and suffering seems
relevant, if at all, only to a passive violation such as through a refusal of life-preserving therapy.
129. Moshe Feinstein, Iggerot Moshe, Yoreh De'ah II:174(4). See also J. David Bleich,
Treatment of the Terminally Ill, 30:3 Tradition 51, 86 n. 56 (1996) (raising possible objections
to Rabbi Feinstein's analysis that are unrelated to physician-assisted suicide).
130. Id., at 73-77 and associated endnotes. While the duty to save others may be an affirmative
commandment, the duty to save oneself, according to some authorities, is technically derived
from a different source and may constitute a negative commandment. Id.
131. Feinstein seems only to state that a patient has the right to refuse treatment only when the
treatment would merely extend the patient's life for a relatively short period of time. See, e.g.,
Moshe Feinstein, Iggerot Moshe, Yoreh De'ah II:174. Prof. Michael Broyde has pointed out
to me orally that if Bleich is correct and Feinstein's position is based on whether the patient
would be willing to forego all of his wealth in order to escape intractable pain, the fact that the
patient's life would only be temporary extended rather than extended for a significant period of
time seems to be irrelevant.
132. Id., at 76.
133. See Yaakov Emden, Mor Uktziah 328; Alfred Cohen, Whose Body? Living With Pain,
XXXII Journal of Halacha and Contemporary Society 39, 49 (1996). See, generally, J.
David Bleich, Contemporary Halakhic Problems IV, pp. 203-217.
134. As to what extent a person may risk her life by taking experimental treatment or to reduce
pain. See, e.g., Yaakov Weiner, Ye Shall Surely Heal: Medical Ethics from a Halachic
Perspective (1995), pp. 75-81; Moshe Feinstein, Iggerot Moshe, Hoshen Mishpat II: 73(9)
(allowing surgical removal of patient's testicles in prostrate cancer in order to reduce pain;
argues that reduction in pain would prolong patient's life); Abraham S. Abraham, The
Comprehensive Guide to Medical Halachah (1996), 10:4, p. 53; Alfred Cohen, Whose
Body? Living With Pain, XXXII Journal of Halacha and Contemporary Society 39, 49
135. See, generally, Yaakov Weiner, Ye Shall Surely Heal: Medical Ethics from a
Halachic Perspective (1995).
136. See Michael J. Broyde, The Pursuit of Justice and Jewish Law (1996), pp. 59-60.
137. Contrast, e.g., Rabbi Aryeh Leib, Kitzot HaHoshen, Hoshen Mishpat 3:1 (arguing that
only courts could coerce individuals to perform affirmative commandments) with Rabbi Yaakov,
Nitivot HaMishpat, Hoshen Mishpat 3:1 (contending that individuals had the right to coerce
other individuals to perform such obligations).
138. See, e.g., Moshe Feinstein, Iggerot Moshe, Hoshen Mishpat II:73(5).
139. See Immanuel Jakobovits, Medical Experimentation on Humans in Jewish Law, in J. David
Bleich and Fred Rosner (eds.), Jewish Bioethics, at 381 ("His [the doctor's] obligation to save
life and health . . . is altogether independent from the patient's wishes or opposition. The
conscientious physician may even have to expose himself to the risk of malpractice claims
against him in the performance of this superior duty."); Moshe Feinstein, Iggerot Moshe, Yoreh
De'ah IV:54(2) ("Even if through this rescue the doctor will become obligated to spend a great
sum of money to pay for the [medical] equipment and other medications, he is obligated to do