Monday, September 1, 2008

Death by Timer III - Passive Euthanasia/R'Feinstein/R' Auerbach

This is an excerpt from Prof Reznicoff's article at JLaw dealing with Euthanasia

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 be controlled.

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 life.117

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 reset.125

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


  1. Thank you for the sources. I found another two articles on this subject from Rabbi Steinberg and Rabbi Nechemia Goldberg. They touch on the same subjects and more. Here are the links.

  2. It would seem impossible to legislate a a blanket law that would conform to even lenient halachik opinions in for cases. There is also no way in which doctors on the ethics committee would agree to give autonomy for this type of decision for specialy trained authorities that would work with the hospitals.

  3. Bartley has brought up an important point.

    My initial reaction on reading the first article was that, even if there were circumstances when methods such as these (e.g. a timer to end life support) might be permitted, it would seem extremely unwise to give such a power to secular doctors and hospital administrators whose ideological bias and financial concerns would incline them to abuse the power.

    Experience with euthanasia in other countries, like the Netherlands, would indicate that such powers, once given, will be abused and legal safeguards do little to protect the patients.

  4. What I meant more simply was that any legislation that would conform with halacha would be very complicated. Because the psak in this cases is so case specific, there are simply to many variables to make any sort of cohesive protocol and still be loyal to psak.

    The legislation would have to stipulate that they are to do whatever the rabbi says. This is not about to happen.


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