The Right to Die - A Halachic Approach
by Rabbi Yitzchok Breitowitz
American society has increasingly come to recognize what is
known as the "right-to-die". In the famous Cruzan case, the
Supreme Court of the United States in a 5-4 decision ruled that a patient who
has clearly communicated his or her wishes regarding the use of life support
machinery or the provision of hydration and nutrition has a constitutional
right to have those wishes respected even if the patient is not suffering
from a terminal condition. Jack Kevorkian, the infamous doctor of death,
is running around the country assisting persons in killing themselves. Derek
Humphrey's work FINAL EXIT was a best seller. A referendum in the state of
Washington that would formally legitimate physician-assisted suicides was
supported by almost 50% of the electorate and many feel that within a few
years, such measures will be routinely approved. Under a recently-enacted
federal law, persons entering hospitals or nursing homes must be informed of
their rights to execute living wills or other advance directives spelling out
ahead of time that certain medical interventions should not be employed. What
does the Jewish tradition say about these matters? Does halacha take positions on advance directives? Does Judaism recognize a right to die?
Briefly stated, the Jewish tradition rests on a number of
assumptions:
1. The preservation of life [pikuach nefesh] is
considered to be of paramount importance, surpassing virtually all of the
other commandments of the Torah. One may and
must violate Yom
Kippur or the Sabbath, eat
non-kosher food, etc. if there is the slightest chance that human life
may be preserved or prolonged.
2. The quality and/or duration of the life being saved is
irrelevant. Life is of infinite, not relative, value and mathematically, any
fraction of infinity must also be infinite. Once life is assigned a relative
value - once we start making judgments as to which lives are worth living and
which are not, once we assign value to people because of what they can do instead of what they are we have demeaned the intrinsic sanctity of
existence for all human beings and have embarked on a dangerous exercise of
line drawing. What about the elderly, what about the severely retarded, what
about the handicapped: are they any less human because their productivity is
impaired?
[The reader may legitimately ask what use is the life of a
Karen Ann Quinlan? What use is the life of a person who is comatose and
incapable of any cognitive brain functioning? What use is an anencephalic
child? Keep in mind, however, that a Jew believes in a soul and that the body
is simply a receptacle for the person's true spiritual essence. Souls come to
earth for many, many purposes and we don't know why G-d sends souls into this
life. Sometimes it could be that the spiritual destiny of a soul is to elicit
certain responses on our part. The soul exists to teach us certain things
about the meaning of life and love and how we relate to the dignity of a human
being and when we fail to respond with sensitivity and respect for the
unconditional value of that person's life, we kill off a small part of
ourselves as well.]
3. Judaism rejects the notion
of unlimited personal autonomy. Our bodies and our lives are not our
own to do with as we will. They are temporary bailments given to us by G-d for
a specific purpose and duration which only G-d can terminate and just as we
don't have the moral right to kill or harm others, we don't have the moral
right to kill, maim, or injure ourselves or to authorize other persons to do
those things to us.
4. Judaism rejects the notion that the utilization of
advanced technology to sustain life is somehow an interference with G-d's
will. Technology and scientific advancement are not man-made but are in
themselves gifts of Divine revelation to be used for the benefit of mankind.
Thus, the dichotomy that some religions posit between "natural" and
"unnatural" ways of treating illness is essentially foreign to
Jewish thinking.
These four factors standing alone would surely argue
against any "right to die" and would support an absolute affirmative
obligation to prolong life at all costs, regardless of pain and indeed
regardless of the patient's expressed wishes. This is in the fact the position
associated with the eminent Talmudist and bioethicist, Rabbi Dr. J. David Bleich of Yeshiva University. It is,
however, a decidedly minority position.
Halacha, as all well-developed ethical systems,
cannot and does not focus on a single moral value to the exclusion of others
but seeks to balance, accommodate, and prioritize a multiplicity of ethical
concerns. Just as there is a mitzva (a Divine commandment) to prolong life, there is a mitzva to alleviate
pain and suffering. But what happens if one value can be achieved only at the
expense of another? Consider the patient suffering terminal cancer whose life
could be prolonged for no more than six months but only at the cost of
painful, debilitating chemotherapy or the elderly stroke victim who falls prey
to pneumonia which will kill him swiftly and relatively-painlessly overnight
but is easily treatable by antibiotics. May the patient decline the
chemotherapy or the antibiotics to achieve a quicker, less painful death or is
the mitzva of pikuach nefesh (preservation of life) so absolute
that it admits of no exceptions?
Most rabbinical authorities (Rabbi Moshe Feinstein, for
one) have sanctioned the patient's right to decline treatment provided a
number of very specific conditions were met. First, the patient must be in a
terminal condition - that is, whether the treatment is employed or not, the
patient is not expected to live beyond a year. Second, the patient suffers
unbearable pain and suffering. Third, the patient has indicated that he or she
desires not to be treated. In the event the patient is incompetent or unable
to communicate his decision, next-of-kin may make such a decision based
exclusively on what they feel the patient would have wanted (Note: This is not
based on what they would have wanted if they would have been the
patient but rather what this particular patient would actually desire).
Fourth, assuming the above three conditions are met, the patient may decline
surgery, chemotherapy, and painful invasive treatments but may not decline
food, water, or oxygen (which are the normal sustainers of life, the
withdrawal of which may be tantamount to murder or suicide). Antibiotics may
also fall under the "food" category because they are generally a
noninvasive, nonpainful procedure. There is also some question whether tube
feeding falls in the category of "food" or in the category of
"surgery". Most decisors would place it in the former but emphasize
that even if the patient is halachically-obligated to take artificial
nutrition, he should not be force-fed or physically-restrained. In no event
may the patient or the physician take any affirmative step that would hasten
death. Active euthanasia, regardless of motive, is morally and halachically equivalent to murder. On the other hand, halacha would view both the
goals and methods of hospice in a very sympathetic light.
Judaism thus attempts to strike a balance between the great mitzva of prolonging life and the recognition that life may become
unbearably difficult and painful. The living will, however, which attempts to
spell out in advance which treatments should be employed and which should not
is too blunt of an instrument to accurately mirror the necessary value
judgments. The basis for all of these decisions is the pain and suffering the
patient feels at the time of the illness and this can simply not be predicted
in advance. Conditions that may seem intolerable to us when we are 35-40 may
be quite adequate when we reach 85 and we realize that the alternative would
be death. Keep in mind too that many patients such as those with advanced
Alzheimer's or in comas may in fact not be suffering though their existence is
undoubtedly a hardship to their families. Moreover, it is almost impossible to
spell out all contingencies in advance, making living wills incomplete almost
by definition.
Far preferable to the living will is the durable power of
attorney (often called a health-care proxy) which simply specifies a
person-family member, friend, clergyman - empowered to make health care
decisions on the patient's behalf in the event he or she is incapacitated. The
power may in addition specify that all decisions shall be made in accordance
with Jewish law and in consultation with a designated clergyman of the
patient's choice. Sample forms - labeled somewhat inaccurately as "Halachic
Living Wills" -have been prepared by Agudath Israel of America, a
national organization headquartered in New York. This document insures that
decisions will be made consistently with the moral and religious beliefs that
the patient holds dear. Obviously, one should discuss these delicate matters
ahead of time both with family members and spiritual advisers.
Incapacitation and terminal illness are tragic situations.
Let us remember, however, that we come from a tradition that has grappled with
these questions and that approaches these issues with sensitivity, compassion,
and understanding. Hopefully, none of us will ever be faced with these
problems but if we are, let us turn to our tradition for guidance and support.
Sources: Jewish Law |