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Biomedical Ethics and Jewish Law

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Overview

"Dr. Fred Rosner's Biomedical Ethics and Jewish Law is for informed readers who wish to keep in touch with developments in this area from the standpoint of both science and Jewish tradition. The present volume adds ten new chapters, dealing with such compelling medical issues as medical confidentiality, contraception, artificial insemination, in vitro fertilization, surrogate motherhood, sex predetermination, abortion and pregnancy reduction, genetic screening, gene therapy, cloning, euthanasia, quality of life, death and dying, organ translation, autopsy, embalming and cremation, animal and human experimentation, scarce resource allocation, managed care, cosmetic surgery, the disabled unconventional therapies, AIDS, smoking, physician's fees, and much more." "In addition, a number of the earlier chapters have been thoroughly revised in light of current developments. The book is an addition to the library of anyone who is concerned about the interaction between modern medicine and Jewish law in the twenty-first century."--BOOK JACKET.
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Editorial Reviews

Booknews
Dr. Rosner, the director of the department of medicine at Mount Sinai School of Medicine in New York, analyzes how ancient Talmudic law forms the basis for decisions related to complex contemporary medical issues. He presents sometimes conflicting interpretations of such matters as the doctor-patient relationship, beginning and end of life questions, managed care, AIDS, alternative therapies, smoking, and cosmetic surgery. This volume updates his (1991). Annotation c. Book News, Inc., Portland, OR (booknews.com)
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Product Details

  • ISBN-13: 9780881257014
  • Publisher: KTAV Publishing House, Inc.
  • Publication date: 5/1/2001
  • Edition description: New Edition
  • Pages: 552
  • Product dimensions: 65.00 (w) x 95.00 (h) x 1.50 (d)

Read an Excerpt


Chapter One


The Physician's License to
Heal


Recent advances in biomedical technology and therapeutic procedures have generated a moral crisis in modern medicine. The vast strides made in medical science and technology have created options which only a few decades earlier would have been relegated to the realm of science fiction. Man, to a significant degree, now has the ability to exercise control not only over the ravages of disease but even over the very processes of life and death. With the unfolding of new discoveries and techniques, the scientific and intellectual communities have developed a keen awareness of the ethical issues which arise out of man's enhanced ability to control his destiny. In response to the concern for questions of this nature there has emerged the rapidly developing field of bioethics.

    The first medical-ethical question from the Jewish standpoint is whether or not a person is allowed to become a physician and heal the sick. Does the practice of medicine by a mortal physician constitute an act of interference with the deliberate designs of Divine Providence? Does a physician play God when he practices medicine? This ethical question is based upon a scriptural passage in which God proclaims Himself to be the healer of the sick.


And he said: if thou wilt diligently hearken to the voice of the Lord thy God, and wilt do that which is right in His eyes, and wilt give ear to His commandments and keep all His statutes, I will put none of the diseases upon thee, which I have put upon the Egyptians, for I am the Lordthat healeth thee.


    The last phrase, for I am the Lord that healeth thee, literally translated from the original Hebrew means for I am the Lord thy physician. In fact, Rabbi Abraham Ibn Ezra, in his commentary, states that just as God "healed" the undrinkable waters at Marah for the Israelites, so too God will remove or heal all plagues on the earth and there will be no need for physicians. This perhaps is the basis for the Karaitic objection to human healing and medicine. The Karaites interpreted the above scriptural passage literally and totally rejected the permissibility of human healing. They vehemently objected to medicine and physicians and relied entirely on prayer for their healing, as stated in the Talmud: "man must ever pray not to become ill, for if he becomes so, it is demanded of him to show merit in order to be healed."

    Alternative interpretations of the above scriptural verse are possible. The Talmud asks: If we are told that God will put none of the diseases upon thee, what need is there for a cure? Rabbi Yochanan answers that the verse means as follows: "If thou wilt hearken [to the voice of the Lord], I will not bring disease upon thee, but if thou wilt not, I will; yet even so, I am the Lord that healeth thee." Rabbi Baruch Halevi Epstein in his Torah Temimah explains that the intent of this biblical phrase is to show that the illness of the Egyptians was incurable, as it is written: the boil of Egypt ... wherefrom one cannot be healed. However, afflictions of the Israelites can be healed by God.

    The father of all biblical commentators, Rabbi Solomon ben Isaac, known as Rashi, explains for I am the Lord that healeth thee to mean that God teaches the laws of the Torah in order to save man from these diseases. Rashi uses the analogy of a physician who tells his patient not to eat such and such a food lest it bring him into danger from disease. So too it is stated, continues Rashi. obedience to God will be health to thy body and marrow to thy bones. In a similar vein, the extratalmudic collection of biblical interpretation known as the Mechilta asserts that the words of Torah are life as well as health, as it is written: For they are life unto those that find them and health to all their flesh. Other commentators (Sifsei Chachamim and Rabbi Samson Raphael Hirsch, among others) extend this thought by propounding that the Divine Law restores health, and certainly prevents illness from occurring, thus serving as preventive medicine against all physical and social evil.

    Rabbi Jacob ben Asher, known as the Ba'al Haturim, states that heavenly cure comes easily, whereas earthy or man-made cures come with difficulty. Finally, Rabbi Meir Leib ben Yechiel Michael, known as Malbim, in his commentary on the phrase for I am the Lord that healeth thee speaks of mental illness. He asserts that the laws of the Torah were given by God to Israel not like a master ordering his slave but like a physician ordering his patient. In the former case, the master benefits, not the slave. In the latter case, the patient and not the physician is healed from illness. Similarly, God's statutes are for our benefit, not His.

    The multitude of interpretations of the scriptural phrase for I am the Lord that healeth thee indicates that this verse is not to be understood literally. There is no prohibition inherent in this verse against a mortal becoming a physician and healing the sick. In fact, specific permissibility and sanction for the physician to practice medicine is given in the Torah, as described below. The physician, however, must always recognize that God is the true healer of the sick and that a doctor is only an instrument of God in the ministrations to the sick.

    Specific Divine license for a physician to heal is derived by the rabbis from the biblical phrase and heal he shall heal, which relates to compensation for personal injuries.


And if men quarrel and one smiteth the other with a stone or with his fist and he die not, but has to keep in bed ... he must pay the loss entailed by absence from work and cause him to be thoroughly healed.


    The last phrase, translated literally, reads and heal he shall heal. The Talmud interprets this duplicate mention of healing as intended to teach us that authorization was granted by God to the physician to heal. Rashi extends the words of the Talmud when he asserts "lest it be said that God smites and man heals." Thus he implies that a need exists for specific biblical sanctioning of human healing.

    Many biblical commentators, including Rabbi Samson Raphael Hirsch and Rabbi Baruch Halevi Epstein (Torah Temimah), echo the above talmudic teaching. That is, by the insistence or emphasis expressed in the double wording, the Bible uses the opportunity to oppose the erroneous idea that having recourse to medical aid shows lack of trust and confidence in Divine assistance. The Bible takes it for granted that medical therapy is used and actually demands it.

    Other commentaries on the scriptural phrase and heal he shall heal, including those of the Mechilta and Rabbi Meir Leib ben Yechiel Michael (Malbim), explain that the repetition of the word heal means that the patient must be repeatedly healed if the illness or injury recurs or becomes aggravated. In discussing the above case concerning personal injury, the Talmud also requires that where ulcers have grown on account of the wound and the wound breaks open again, the offender would still be liable to heal it (i.e., pay the medical expenses), even repeatedly.

    The most popular interpretation of and heal he shall heal is that compensation for the injury must be paid by the offender. Such compensation consists of five items: the physician's fees and medical bills, payment for loss of time from work, the shame incurred by disfigurement, the pain suffered, and the physical damage produced. All agree, however, that human healing is sanctioned by this phrase of the Bible, if not explicitly, at least implicitly.

    Rabbi Abraham Ibn Ezra seems to place a restriction on the permissibility for a physician to heal when he states that only external wounds can be healed by man. Internal wounds or ailments should be left to God. However, there is nearly universal acceptance that the sanctioning to the physician to heal is all-inclusive, encompassing all internal and external physical and mental illness. In fact, a commentary on the Talmud by Tosafot specifically states that it is permitted to heal not only man-induced wounds but even heavenly-induced sicknesses and afflictions, i.e., all illnesses. The restrictive view of Ibn Ezra is also rejected by Rabbi Joseph Karo in his famous code of Jewish law.

    Although studying medicine is permissible in Jewish law, it is optional. However, once a person has become a physician, it is then obligatory upon him to heal the sick. The biblical mandate for the physician to heal is based upon two scriptural commandments. And thou shalt restore it to him refers to the restoration of lost property. Moses Maimonides, in his Commentary on the Mishnah, states that "it is obligatory from the Torah for the physician to heal the sick, and this is included in the explanation of the scriptural phrase and thou shalt restore it to him, meaning to heal his body."

    Thus, Maimonides states that the law of restoration also includes the restoration of the health of one's fellowman. If a person has "lost his health" and the physician is able to restore it, he is obligated to do so. Rabbi Baruch Halevi Epstein (Torah Temimah), in two separate places, asks why Maimonides totally omits the phrase and heal he shall heal as a warrant for the physician to heal. Epstein offers an answer to his own question when he states that the verse in Exodus only grants permission for a physician to heal, whereas and thou shalt restore it to him makes it obligatory.

    Maimonides' reasoning is probably based upon a key passage in the Talmud where it states: "whence do we know that one must save his neighbor from the loss of himself? From the verse and thou shalt restore it to him." Thus, not only if one is sick is a physician required but also if someone is attempting suicide, one must provide psychiatric or other competent assistance to save the person's life and health.

    The second scriptural mandate for the physician to heal is based on the phrase neither shalt thou stand idly by the blood of thy neighbor. The passage refers to the duties of human beings to their fellowmen and the moral principles which the sages expounded and applied to every phase of civil and criminal law. One example cited in the Talmud is the following:


Whence do we know that if a man sees his neighbor drowning or mauled by beasts or attacked by robbers, he is bound to save him? From the verse thou shalt not stand idly by the blood of thy neighbor.


    Maimonides codifies the above talmudic passage In his code, where he states:


Whoever is able to save another and does not save him transgresses the commandment neither shalt thou stand idly by the blood of thy neighbor. Similarly, if one sees another drowning in the sea, or being attacked by bandits, or being attacked by a wild animal and is able to rescue him ... and does not rescue him ... he transgresses the injunction neither shalt thou stand idly by the blood of thy neighbor.


    Such a case of drowning in the sea is considered as loss of one's body, and therefore, if one is obligated to save a whole body, one must certainly cure disease, which usually afflicts only one part of the body.

    From the discussion so far, it seems evident that permission for the physician to heal is granted in the Bible from the phrase and heal he shall heal. Some scholars, notably Maimonides, claim that healing the sick is not only allowed but is actually obligatory. Rabbi Joseph Karo, in his code of Jewish law, combines both thoughts.


The Torah gave permission to the physician to heal: moreover, this is a religious precept and it is included in the category of saving life; and if he withholds his services, it is considered as shedding blood.


    Rabbi David ben Shmuel Halevi, known as Taz, asks: If it is a religious precept to heal, why did the Torah have to grant specific permission for the physician to do so? His answer is that true healing lies only with God, but God gives the physician the wherewithal to heal by earthly or natural means. Once permission has been granted, then it is a commandment on the physician to heal. A similar thought is expressed by Rabbi Abraham Maskil Le'aytan, known as Yad Avraham, who states that permission is only granted if the physician heals with his heart toward heaven.

    Rabbi Shabtai ben Meir HaKohen, known as Sifsei Kohen, offers an alternative reason for the Torah's granting permission to heal—that is, in order to avoid the physician saying, "Who needs this anguish? If I err, I will be considered as having spilled blood unintentionally." In a similar vein, Karo quotes Nachmanides, himself a physician, who says that without the warrant to treat, physicians might hesitate to treat patients for fear of fatal consequences, "in that there is an element of danger in every medical procedure; that which heals one may kill another."

    If one asks why God granted physicians license and even mandate to heal the sick, one can offer the following explanation. A cardinal principle of Judaism is that human life is of infinite value. The preservation of human life takes precedence over all commandments in the Bible except three: idolatry, murder, and incest. Life's value is absolute and supreme. Thus an old man or woman, a mentally retarded person, a defective newborn, a dying cancer patient, and the like, all have the same right to life as you or I. In order to preserve a human life, the Sabbath and even the Day of Atonement may be desecrated, and all other rules and laws save the aforementioned three are suspended for the overriding consideration of saving a human life. He who saves one life is as if he saved a whole world. Even a few moments of life are worthwhile. Judaism is a "right-to-life" religion. This obligation to save lives is an individual as well as a communal obligation. Certainly a physician, who has knowledge and expertise far beyond that of a layperson, is obligated to use his medical skills to heal the sick and thereby prolong and preserve life.

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Table of Contents

Foreword
Preface
1 The Physician's License to Heal 5
2 The Patient's Obligation to Seek Healing 13
3 Medical Confidentiality 21
4 Physicians' Fees 29
5 Physicians' Strikes 41
6 Gifts to Physicians from Drug Companies 51
7 The Best of Physicians is Destined for Gehenna 63
8 Priests Studying and Practicing Medicine 71
9 Visiting the Sick 85
10 AIDS: A Jewish View 91
11 Contraception 111
12 Artificial Insemiriation 127
13 In Vitro Fertilization, Surrogate Motherhood, and Sex Organ Transplants 143
14 Sex Preselection and Predetermination 165
15 Abortion 175
16 Pregnancy Reduction 197
17 Genetic Screening, Genetic Therapy and Cloning 205
18 Quality and Sanctity of Life 223
19 Euthanasia 237
20 Rabbi Moshe Feinstein on the Treatment of the Terminally Ill 257
21 Suicide 271
22 Definition of Death 287
23 Research and/or Training on the Newly Dead 303
24 Organ Transplantation 313
25 Pig Organs for Transplantation into Humans 335
26 Compensating Organ Donors 347
27 Skin Grafting and Skin Banks 355
28 Autopsy 367
29 Embalming and Cremation 389
30 Human Experimentation 407
31 Animal Experimentation 413
32 The Allocation of Scarce Medical Resources 435
33 Smoking and Jewish Law 451
34 Dental Emergencies on the Sabbath 463
35 Unconventional Therapies 477
36 Pigeons as a Remedy (Segulah) for Jaundice 491
37 The Physically and Mentally Disabled 503
38 Managed Care: The Jewish View 513
39 Plastic and Cosmetic Surgery 531
Subject Index 539
Name Index 545
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