The Torah has granted license to the physician to heal; moreover, this is a mizvah and is included in the category of saving life; and if the physician withholds his services it is considered as shedding blood.
SHULHAN ARUKH, YOREH DE'AH 336:1
Judaism posits an obligation to preserve life as a fundamental obligation binding upon all its adherents. This obligation places the responsibility for preservation of life upon the shoulders of any person, professional or layman, capable of rendering assistance. The physician, by virtue of his training and professional expertise, is uniquely qualified to perform such services in situations which require medical attention and hence is subject to a concomitant obligation to do so.
The obligation to render medical assistance flows from multiple scriptural sources and a person who renders such aid fulfills a number of diverse mizvot. Perhaps the most widely quoted source is the statement found in Baba Kamma 85a: " 'And he shall cause him to be thoroughly healed' (Exodus 21:20)—from here [it is derived] that the physician is granted permission to heal." Ramban, in his authoritative halakhic work, Torat ha-Adam, comments that the "permission" or "dispensation" of which the Gemara speaks in actuality constitutes a commandment or obligation ("Hai reshut, reshut de-mizvah hi"). Thus the medical practitioner is not merely permitted, but is required, to render aid.
Rambam, both in his Commentary on the Mishnah, Nedarim 4:4, and in Mishneh Torah, Hilkhot Nedarim 6:8, declares that the obligation to render medical assistance is encompassed within the scriptural exhortation "And you shall restore it to him" (Deuteronomy 22:2). Although, in context, the verse refers explicitly to restoration of lost property, the Gemara, Sanhedrin 73a, declares that this verse establishes an obligation to "restore" a fellow man's life as well as his property and, accordingly, posits an obligation to rescue a neighbor from danger such as drowning, mauling by an animal or being set upon by bandits. A number of latter-day authorities comment that the accompanying negative prohibition, "You may not hide yourself" (Deuteronomy 22:3) similarly applies to "restoration" of life as well as of property. The Gemara, Sanhedrin 73a, also cites the admonition "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16) as requiring intervention in the aforementioned situations in order to preserve life.
An obligation requiring the physician to render assistance in nonlife-threatening situations may be established on the basis of other sources. Ramban, in his Torat ha-Adam, finds that an obligation on the part of the physician to heal is inherent in the commandment "And you shall love your neighbor as yourself" (Leviticus 19:18). As a specific instance of the general obligation to manifest love and concern for one's neighbor, the obligation to heal encompasses not only situations posing a threat to life or limb, or demanding restoration of impaired health, but also situations of lesser gravity warranting medical attention for relief of pain and promotion of well-being.
In addition, Ramban, in his Commentary on the Bible, Leviticus 25:36, interprets the verse, "And your brother shall live with you," as constituting a general obligation to preserve the life of one's fellow. Earlier, R. Aḥa'i Ga'on, She'iltot, She'ilta 38, adduced the discussion found in the Gemara, Baba Mezi'a 62a, in interpreting this verse in a similar manner. R. Shimon ben Ẓemaḥ Duran, Teshuvot Tashbaz, III, no. 37, declares that the verse "And he shall live by them" (Leviticus 18:5) constitutes yet another mizvah commanding the preservation of life. The Gemara, Yoma 85b, renders this passage as meaning, "And he shall live through [the commandments] but he shall not die by means of them," and accordingly interprets this verse as establishing the principle that mizvot are suspended in face of life-threatening dangers. The regulation mandating suspension of mizvot in face of danger, argues Tashbaz, must be understood as establishing a general obligation to preserve life whether or not violation of biblical law is necessary to accomplish that goal.
A latter-day authority, R. Yehudah Leib Zirelson, Teshuvot Azei ha-Levanon, no. 61, asserts that the obligations posited by the Gemara, Sanhedrin 73a, apply under nonlife-threatening circumstances no less than in life-threatening situations. The verse "And you shall restore it to him" (Deuteronomy 22:2) mandates not only the return of lost property but, a fortiori, preservation of life as well. The verse, then, does not refer only to the return of objects of material value. Accordingly, declares Azei ha-Levanon, restoration of health to a person suffering from an illness is assuredly included in the commandment, "And you shall restore it to him."
Azei ha-Levanon further contends that failure to provide a medical remedy, when available, entails violation both of the commandment "You may not hide yourself" (Deuteronomy 22:3) which, in its biblical context, refers to a person who comes upon lost property belonging to another and of the admonition "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). Sifra, Kedoshim 41, declares that these commandments establish an obligation making it incumbent upon an individual to act, if he is capable of doing so, not only to preserve the life of another, but also in order to prevent his fellow from sustaining a financial loss. This obligation is recorded by Rambam, Hilkhot Rozeaḥ 1:13; Sefer ha-Hinnukh, no. 237, and Shulḥan Arukh, Hoshen Mishpat 426:1. It similarly follows, argues Azei ha-Levanon, that a person is under the selfsame obligation to prevent deterioration of another person's health if he possesses the requisite knowledge and skill to be of assistance in providing medical care. Failure to do so, concludes Azei ha-Levanon, would constitute transgression of these two negative commandments as well as of the positive commandment "And you shall restore it to him." Furthermore, as noted earlier, according to Ramban, failure to render medical assistance entails abrogation of the positive commandment "And you shall love your neighbor as yourself." Thus, even in situations which pose no threat to life, a person in a position to do so is bound to render medical assistance by no less than four separate mizvot.
Study of Anatomy I: Dissection
Anatomical studies which involve dissection of human cadavers are beset with a number of halakhic problems. These questions have been the subject of ongoing halakhic analysis and discussion over a period of centuries. A cursory survey of some aspects of this topic and of the different positions taken by various prominent halakhic authorities is presented by Rabbi Shlomoh Goren in the Iyar 5739 issue of Shevilin. This article is reprinted in the Spring 5740 issue of Me'orot, the second edition of a new journal sponsored by the Office of the Chief Rabbinate of Israel. A comprehensive bibliography listing the vast majority of responsa and articles on the topic of anatomical dissection and autopsy was prepared by Rabbi Kalman Kahana and published in the Tevet 5727 issue of Ha-Ma'ayan with a supplement in the Nisan 5727 issue of that periodical. This material together with additional references was reprinted in the Av 5734 issue of Torah u-Mada.
The primary question, of course, centers upon the prohibition of nivul ha-met, or desecration of the dead. According to the position accepted by most rabbinic decisors, this prohibition is suspended in face of pikuaḥ nefesh, i.e., danger to life. However, as R. Ezekiel Landau, Noda bi-Yehudah, Mahadurah Tinyana, Yoreh De'ah, no. 210, declares, halakhic prescriptions are suspended for purposes of pikuaḥ nefesh only in face of imminent danger. Thus, an autopsy would be warranted in order to secure information useful in treating another patient afflicted by the same disease, but not simply for the purpose of advancement of scientific knowledge even though new information gained as a result of the autopsy might, at some future time, contribute to the cure of gravely ill patients. Both Noda bi-Yehudah and R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 236, apply this principle to the question of the propriety of anatomical studies which medical students are required to undertake. On the basis of the principle formulated by Noda bi-Yehudah, both he and Hatam Sofer reject the contention that the study of medicine may be deemed to be encompassed within the category of pikuaḥ nefesh.1The arguments of R. Ben-Zion Uziel, Mishpetei Uzi’el, Yoreh De‘ah no. 28, sec. 2, were anticipated by Noda bi-Yehudah and Ḥatam Sofer and explicitly rejected by those authorities. Hatam Sofer applies a reductio ad absurdum in declaring that, if violation of a corpse is permissible for purposes of the study of medicine, Sabbath restrictions must also be suspended for the same purpose. Equating the two, Hatam Sofer concludes that a medical student may not dissect a cadaver, just as he may not violate the Sabbath for the purpose of pursuing his studies.
The question of whether or not the strictures against nivul ha-met apply in the case of a person who in his lifetime has willed his body to science or has granted consent for a post-mortem examination was discussed in Contemporary Halakhic Problems, I, 125-126.
Rabbi Goren omits any discussion of what is, in terms of practical application, the most significant possible exception to this prohibition, viz., the question of whether the prohibition is limited to Jewish corpses or whether it encompasses non-Jewish cadavers as well. In reality, virtually all bodies made available to medical schools are those of non-Jews. Barring evidence to the contrary, application of the principle of rov (majority) establishes a halakhic determination that the body of unknown origin and religious identity is a member of the class to which the majority of all bodies belong. When the majority of all persons in the area from which the bodies are procured are non-Jews, any individual corpse is deemed to be that of a non-Jew.
The Jewish yishuv faced this problem on a communal level for the first time with the establishment of the first medical school in what was then Palestine. The halakhic issue was submitted to the late Rabbi Abraham Isaac Kook for adjudication. In a brief responsum authored in 1931, Da'at Kohen, no. 199, Rabbi Kook sanctions use of non-Jewish cadavers without reservation. The primary issue which he addresses is the possibility of anti-Semitic repercussions as a result of adoption of such a policy. In order to obviate this objection he formulates the philosophical basis of the prohibition of nivul ha-met as a manifestation of the kedushah or sanctity which is unique to the Jew. Jews are forbidden to partake of various foods, not because they are deleterious to health, but by virtue of the unique holiness of the community of Israel. The duty to preserve inviolate the sanctity of the body, explains Rabbi Kook, is an obligation imposed solely upon Jews. He ventures the opinion that fair-minded gentiles will recognize that a people who have been subjected to unspeakable persecution because of their tenacity in adhering to the religious obligations imposed upon them are entitled to respect for their claim to the "privilege of sanctity" as well. Moreover, he adds, inveterate anti-Semites are not likely to undergo a change in attitude even if dissection of Jewish corpses were to be sanctioned.
An opposing view is attributed to Rabbi Joseph Soloveitchik in an article written by Rabbi Immanuel Jakobovits, Torah she-be-'al Peh, VI (5724), 64. Rabbi Soloveitchik is quoted as stating that insofar as the prohibition concerning nivul ha-met is concerned, no distinction may be made between Jew and gentile. The prohibition is derived from the commandment not to allow the corpse of an executed transgressor to remain hanging overnight "for he that is hanged is a reproach unto God" (Deuteronomy 21:23). The prohibition, it is argued, applies equally to the bodies of both Jews and non-Jews because all men are created in the "image of God."
However, Tosefet Yom Tov, Avot 3:14, declares that while all men are created in the "image," (be-zelem), i.e., with divine potential, non-Jews who do not fulfill God's commandments are not described as created "in the image of God" (be-zelem Elokim). Thus R. Akiva, in the Mishnah, speaks of man, meaning all mankind, as created "in the image," but does not speak of mankind as created "in the image of God." Tosefet Yom Tov's comments may perhaps best be understood in light of the statement found in Baba Kamma 38a concerning the diminished status of Noachides as a result of their renunciation of the Noachide Code.
It may readily be inferred that Hatam Sofer also regards the prohibition concerning nivul ha-met as being limited to Jewish corpses. Hatam Sofer points to the difficulty posed by the narrative recorded in the Gemara, Bekhorot 45a. The Gemara relates that the disciples of Rabbi Ishmael, desiring to determine the number of organs in the human body, obtained the corpse of a harlot who had been executed by the civil authorities and boiled it in order to examine and count the organs. The conduct of these students seems to have been in violation of Jewish law. Hatam Sofer declares that no transgression was committed because the woman in question was a gentile. In the context of his discussion Hatam Sofer explicitly deduces only that there is no prohibition against deriving benefit from the corpse of a non-Jew. However, it must logically be inferred that the prohibition against nivul ha-met is also not operative, else the action of these students would have been prohibited on that account alone. Moreover, it is evident from the context of Hatam Sofer's conclusion that he was of the opinion that the corpse of a non-Jew is excluded from the prohibition against nivul ha-met since, as any reader who checks the reference will observe, that prohibition is clearly mentioned in the sentence immediately preceding this conclusion.
However, the Sephardic authority Ben Ish Hai, in his commentary on Bekhorot, Ben Yehudah, explains the incident concerning the students of Rabbi Ishmael in a way which negates the inference drawn by Hatam Sofer. Ben Ish Hai explains that, as part of her punishment, the civil authorities had ordered the boiling of the body of the executed woman. Hence, this narrative provides no basis for the inference that dissection of the corpse of a non-Jew is not forbidden.
A detailed analysis of the question of whether or not the prohibition regarding nivul ha-met extends to gentile corpses is presented by Rabbi Meir Shapiro in his Teshuvot Or ha-Me'ir, no. 34. R. Meir Shapiro maintains that the issue is the subject of dispute between Rashi and Ramban in their respective commentaries on Deuteronomy 21:23.
Rashi, commenting on the phrase "a reproach unto God" explains that the proscribed conduct is "a degradation of [the divine] King for man is made in His image and Israel are His children." Ramban takes issue with Rashi declaring him to be incorrect in limiting the reference "to Israel who are called children unto God." Ramban understands the verse, and hence the prohibition concerning nivul ha-met, as extending to all human corpses.
Or ha-Me'ir seeks to adduce support for Rashi's position from a statement in the Palestinian Talmud, Nazir 7:1. There the focal point of discussion is whether or not it is incumbent upon a high priest to defile himself by attending to the interment of a met mizvah (a corpse which would otherwise remain unburied). On the basis of application of hermeneutical principles, the Palestinian Talmud seeks to demonstrate that all persons bound by the prohibition against blasphemy are also bound by the positive commandment concerning burial of a met mizvah. In the talmudic discussion a counter argument is presented, namely, that blasphemy is prohibited under the Noachide Code, yet burial of a met mizvah is not incumbent upon non-Jews. The talmudic discussion continues with a response to this objection. It is noted that the scriptural passage speaks of one who is hanged as being "a reproach unto God." The "reproach unto God" is understood by the Palestinian Talmud as constituting a form of blasphemy. It is then argued that inferences based upon the commonality between the commandments concerning blasphemy and burial are limited to provisions of Jewish law which apply to Jews. The verse in question is considered as referring only to Jews who may be executed by means of hanging but not to gentiles governed by the Noachide Code which provides only for execution "by the sword." The inference, argues Or ha-Me'ir, is that the bodies of non-Jews are excluded from the prohibition concerning nivul ha-met.
In defense of Ramban's position it may be argued that the Palestinian Talmud does not necessarily exclude gentile corpses from this prohibition. The discussion in the Palestinian Talmud does not view the verse in question as concerning itself with the identity of the corpses which may not be defiled but rather with the persons who may not engage in acts of defilement. Understood this way, the verse is limited to those subject to execution by hanging, i.e., Jews, and demands of them, and of them alone, that they refrain from nivul ha-met whereas non-Jews are not forbidden to perform such acts. Indeed, there is no indication whatsoever that a non-Jew is forbidden to defile even the corpse of a Jew. It is a Jew who is forbidden to defile, or to permit the defilement of, a corpse. The prohibition directed to Jews forbidding them to defile a corpse may thus be seen as encompassing the desecration of a non-Jewish corpse as well.
Study of Anatomy II: Observation
It has been suggested that students unable to participate in anatomical dissection for religious reasons may be able to satisfy educational requirements by observing the dissection as it is performed by others.
Hatam Sofer, in the earlier quoted responsum, observes that, quite apart from the prohibition concerning nivul ha-met, dissection of a corpse for purposes of tangible benefit is prohibited by virtue of the fact that the corpse is in the category of issurei hana'ah, i.e., objects from which no benefit may be derived, as indicated in Avodah Zarah 29b and Rambam, Hilkhot Avel 14:1. The earliest discussion of this point occurs in a responsum by R. Jacob Emden, She'ilat Ya'avez, I, no. 41, addressed to a student at the University of Göttingen who inquired whether he might dissect a dog on Shabbat. Inter alia R. Jacob Emden declares that dissection of both Jewish and non-Jewish cadavers is prohibited because it is forbidden to derive benefit from a corpse. Hatam Sofer, as noted earlier, disagrees and maintains that the prohibition against deriving benefit from a corpse is limited to benefit derived from the corpse of a Jew.
In point of fact, the permissibility of deriving benefit from a non-Jewish cadaver is the subject of disagreement among early authorities. Teshuvot Radbaz, no. 741 and no. 979, declares that there is no prohibition against deriving benefit from the corpse of a non-Jew. This also appears to be the position of Tosafot, Baba Kamma 10a.2See, however, Teshuvah me-Ahavah, I, no. 47. Teshuvot ha-Rashba, I, no. 365, followed by Shulḥan Arukh, Yoreh De'ah 349:1, maintains that the prohibition applies equally to the corpses of Jews and non-Jews.
However, this position is contradicted by Rashba himself in his commentary on the Talmud in three different places: Baba Kamma 9b; Baba Kamma 53b; and Shabbat 94b. Sedei Hemed, vol. IX, s.v. Divrei Hakhamim, no. 52, opines that the commentary reflects Rashba's own opinion whereas the dicta in the responsum are intended only as an elucidation of the view espoused by the interlocutor. It is noteworthy that Bi'ur haGra, Yoreh De'ah 349:1, is among the authorities who maintain that the prohibition does not emcompass benefit derived from the corpse of a non-Jew.
This question has been the subject of ongoing debate. There are numerous responsa authored by latter-day scholars which reflect conflicting opinions with regard to whether or not benefit may be derived from the corpse of a non-Jew. These authorities are cited in detail by Dr. Abraham S. Abraham in a contribution to Ha-Ma'ayan, Tishri 5741.
It is clear that if anatomical dissection is forbidden by virtue of the fact that a corpse is assur be-hana'ah, the prohibition remains in effect even if a person were to give permission for such use prior to his demise. Prohibitions associated with issurei hana'ah are in the nature of commandments "between man and God" rather than "between man and his fellow." Hence, the prohibition against deriving benefit from a corpse cannot be waived by man.
The argument that a corpse is assur be-hana'ah and that this consideration, in and of itself, constitutes sufficient grounds for banning anatomical dissection was first advanced by Hatam Sofer. The earlier responsa of Noda bi-Yehudah and She'ilat Ya'avez fail to take notice of this consideration. In an attempt to explain this omission, Rabbi Goren argues that the prohibition against deriving benefit from a corpse does not apply to benefit in the form of perfecting medical skills. In support of this contention he cites the ruling in Nedarim 35b stating that a person who has vowed not to be of benefit to his fellow may, nevertheless, teach him the Oral Law. The Gemara explains that since, normatively, compensation may not be demanded for teaching the Oral Law the benefit derived from the lesson is of no monetary value and hence is not forbidden. Similarly, Shulḥan Arukh, Yoreh De'ah 336:2, rules that since ministering to the sick is a mizvah, a physician may receive compensation from a patient only for time and effort expended but not for his "knowledge." Rabbi Goren declares that, by the same token, a physician is forbidden to accept fees for imparting medical knowledge to a student. Since payment need not be made for medical knowledge, argues Rabbi Goren, it is not forbidden to derive such knowledge from a corpse.
This argument hinges upon the premise that imparting medical information to a student is comparable to treating a patient and that, just as a fee may not be accepted for the latter (other than as compensation for time and physical effort), it may not be accepted for the former. However, the two are not necessarily to be equated. Sefer Hasidim, no. 810, states, "A person should not teach Torah to his fellow in return for a fee; nor should he provide medical attention for a fee." Sefer Hasidim fails to state that one should not teach Torah or medicine to students for a fee. Although treating a patient is a mizvah for which one may not exact a fee, the mizvah is limited to treating a patient suffering from an illness. Transmission of medical knowledge to students, while highly commendable, is not a fulfillment of the mizvah associated with healing and hence there is no prohibition against exacting a fee for imparting such knowledge.3See R. Moses Feinstein, No‘am, VIII (5728), 9; R. Abraham Price, Sefer Ḥasidim im Mishnat Avraham, II, 132; and R. David Bleich, Judaism and Healing (New York, 1981), pp. 11-17.
There are, however, authorities who disagree with Hatam Sofer's position on entirely different grounds. R. Chaim Sofer, Teshuvot Maḥaneh Hayyim, Yoreh De'ah, II, no. 60, distinguishes between benefits derived directly from a corpse, e.g., use of tissue for medicinal purposes, and benefit which is derived from mere examination. Anatomical examination is, in itself, of no benefit whatsoever. For the trained student anatomical examination will serve as a catalyst enabling him to utilize his rational faculty in the development of knowledge. Such indirect benefit, argues Maḥaneh Hayyim, is not forbidden. This argument is cited and accepted by R. Joseph ha-Levi Zweig, Teshuvot Porat Yosef, Yoreh De'ah, no. 17. A similar distinction between direct and indirect benefit is drawn by Rashba in his commentary on Sukkah 31b and by Sha'ar ha-Melekh, Hilkhot Lulav 8:1. This position is also espoused by R. Zevi Pesach Frank, Teshuvot Har Ẓevi, Yoreh De'ah, no. 278.
However, Teshuvot Maharam Schick, Yoreh De'ah, no. 344, finds support for the position espoused by Hatam Sofer in a ruling of the Mishnah, Nedarim 48a. The Mishnah rules that persons who mutually vow not to be of benefit to one another may not use books which are public property and owned in common by the townspeople. Books are used for purposes of acquiring knowledge by means of "observation." Nevertheless, such use constitutes a forbidden type of benefit. Similarly, argues Maharam Schick, study of medicine by means of anatomical dissection of a corpse also constitutes a forbidden benefit. This is also the conclusion reached by R. Jacob Breisch, Teshuvot Helkat Ya'akov, I, no. 84.4See also R. Mordecai Leib Winkler, Teshuvot Levushei Mordekhai, Oraḥ Ḥayyim, III, no. 29, and R. Yitzchak Ariel, Torah she-be-‘al Peh, VI (5724), 49.
Without taking note of Maharam Schick's argument, Hazon Ish, Yoreh De'ah 208:8, declares that "perhaps" mere observation (re'iyah) does not constitute a prohibited form of benefit. This, he argues, may be deduced from the previously cited narrative recorded in Bekhorot 45a. The students of Rabbi Ishmael, desiring to determine the number of organs in the human body examined the corpse of a woman executed by the civil authorities. In doing so they acquired knowledge which they previously lacked. Since many authorities rule that benefit may not be derived even from a non-Jewish corpse, Hazon Ish argues that it may be inferred from this source that acquisition of knowledge in this manner does not constitute a forbidden benefit. However, both Rabbi Goren and Dr. Abraham S. Abraham argue that determination of the number of organs contained in the human body was necessary in order to establish a point of Halakhah. Hence, the examination constituted an act of Torah study. As has been noted earlier, Torah study is not deemed to be a "benefit." Therefore, although it is forbidden to derive benefit from a corpse, Torah knowledge may be derived from it.
In a note appended to Dr. Abraham's article, Rabbi Shlomoh Zalman Auerbach points out that R. Ishmael and his students were among the contributors to the Mishnah. The question of whether fulfillment of a mizvah constitutes a "benefit" is a matter of controversy among the Amora'im of a later period. The implication of this historical point is that there is no clear evidence of an established tannaitic tradition with regard to this question of law. He is therefore constrained to advance an alternate explanation for the conduct of R. Ishmael's disciples. Rabbi Auerbach argues that, while it may be forbidden to receive "ordinary" benefit even from a non-Jewish cadaver, benefit which is "unusual" in nature is forbidden only with regard to Jewish bodies which require burial. The counting of organs (and, arguably, the knowledge derived from anatomical dissection as well) is "unusual" in nature and hence, in the opinion of Rabbi Auerbach, it is entirely permissible to derive such knowledge from non-Jewish corpses.
Fortunately, pituitary growth hormone (HGH) insufficiency is a relatively rare occurrence. It is believed to occur in roughly one out of every 30,000 births. Approximately 150 to 200 children suffering from this insufficiency are born annually in the United States. In Israel, at present, there are over 100 children affected by this condition. Deficiency in the pituitary growth hormone results in dwarfism. Approximately 10 percent of the children who suffer from HGH deficiency also experience episodes of hypoglycemia. Some may not experience normal sexual development. Untreated HGH-deficient dwarfs are frequently psychologically immature, hypoactive, and often suffer from emotional and psychological problems.
A satisfactory growth rate in such children can be achieved by treating them with human growth hormone extracted from the pituitary glands of cadavers. Because of the small size of the pituitary, approximately 25 pituitary glands per year are required in order to extract a quantity of HGH sufficient for the treatment of a single patient.5See Salvatore Raiti, “Endocrine Causes of Short Stature,” Postgraduate Medicine, vol. 62, no. 6 (Dec. 1977), p. 84. In this country the pituitary hormone is collected and distributed by the National Pituitary Agency and is also available from commercial sources, but it remains in short supply. However, the prognosis for properly treated patients is good. Most patients can be expected to attain heights in excess of five feet.
The permissibility of removing the pituitary gland from a cadaver and using the HGH extracted from the cadaver gland is discussed by Rabbi David Applebaum in a contribution to a recently published symposium, Halakhah u-Refu'ah. This volume was published under the editorship of Rabbi Moshe Hershler by the newly established Regensberg Institute for the Study of Halakhah and Medical Halakhic Problems. Procurement and use of HGH involve two halakhic problems: (1) violation of the corpse in conjunction with removal of the pituitary gland and (2) the question of issur hana'ah, the prohibition against deriving benefit from a corpse.
Of course, were it possible to establish that dwarfism resulting from HGH deficiency jeopardizes the life of the person so afflicted, the prohibition against violation of the corpse (nivul ha-met) would be suspended in order to eliminate the danger. Mortality tables for persons afflicted with dwarfism are, however, not available, and there is no available evidence to support a finding of decreased life expectancy. Hypoglycemia, which is associated with this form of dwarfism, is not believed to be life threatening when properly treated. Rabbi Applebaum states that dwarfs have a tendency to develop diabetes yet, surprisingly, he hesitates to declare dwarfism to be a life-endangering condition because of that consideration. In light of the well established diminished life expectancy of diabetics, it would seem that if diabetes were known to be associated with dwarfism, that fact, in itself, would be sufficient to place HGH deficiency in the category of a "dangerous illness" (ḥoli she-yesh bo sakanah). However, the medical literature in fact indicates that, quite to the contrary, "longstanding HGH insufficiency protects against… a clinical state that metabolically resembles diabetes mellitus," although the mechanism of this deterrent effect is not yet understood.6See Nicholas P. Christy and Michelle P. Warren, “Disease Syndromes of Hypothalamus and Anterior Pituitary,” Endocrinology, edited by Leslie J. DeGroot et al. (New York, 1979), I, 235.
Although dwarfism does not seem to be a condition which presents a threat to life, correction or prevention of dwarfism may nevertheless warrant suspension of certain biblical prohibitions. Rabbi Applebaum cites Shakh, Yoreh De'ah 157:3, as understood by Pri Megadim, Mishbezot Zahav, Oraḥ Hayyim 328:7, who rules that, with the exception of Shabbat restrictions, biblical prescriptions are suspended in face of danger of the loss or permanent malfunction of a limb or organ (sakanat ever). The danger of infertility which is associated with dwarfism would constitute danger to an organ. Nevertheless, rabbinic scholars who have earlier written on matters such as corneal transplants have not sanctioned such procedures on these grounds. Moreover, it is doubtful whether infertility occurs with any degree of frequency in cases of dwarfism attributable to HGH insufficiency. One endocrinologist states flatly, "Except for growth failure growth hormone deficiency produces few signs or symptoms."7See John D. Bailey, “Hormones & Growth,” Systematic Endocrinology, 2nd ed., edited by Calvin Egrin, John O. Godden, and Robert Volpe (New York, 1979), p. 530. Lack of sexual development, when it occurs, is presumably due to other endocrine imbalances and is correctable by means of hormone treatment.
Rabbi Applebaum further suggests that the cadaver pituitary may be removed by employing a procedure which does not violate the prohibition against desecration of the corpse. It is possible to remove the pituitary by entering the skull through the nostril. This procedure would leave no external sign of violation of the corpse. It may be argued that the prohibition against desecration of the corpse applies only if the corpse is violated in a manner which renders it repugnant in the eyes of a beholder. This argument is employed by R. Iser Yedudah Unterman, Kol Torah, Nisan-Iyar 5715 and Shevet me-Yehudah, pp. 320-321, in permitting removal of a cornea from the eye of a corpse for the purpose of a corneal transplant. Rabbi Unterman, who erroneously assumed that only the cornea was removed from the corpse, but not the eye itself,8See No‘am. III (5720), p. 91. At present, removal of the entire eye is no longer necessary. argues inter alia that, since the eyes of the deceased are closed, it is impossible to discern the absence of the cornea and hence the prohibition of nivul ha-met does not apply. In a more limited manner, Rabbi Moses Feinstein, No'am, VIII (5728), pp. 9-16, sanctions postmortem needle biopsies which do not involve an incision into the body. Similarly, argues Rabbi Applebaum, removal of the pituitary through the nostril would leave no mark on the body and, hence, should not be construed as a form of nivul ha-met.
Against Rabbi Applebaum's thesis it may be argued that even if it is accepted that a postmortem needle biopsy and/or removal of a cornea do not constitute nivul ha-met, entry into the cranium and removal of the pituitary gland, even if not externally noticeable after completion of the procedure, would indeed constitute a form of nivul ha-met. If Rabbi Applebaum's argument were to be accepted, it would lead to an even more radical conclusion. Although such postmortem procedures are performed only rarely, pathology textbooks describe in detail a procedure for a vaginal autopsy that enables removal of all internal organs through the vagina without leaving an external mark on the body. It would appear that this procedure certainly involves an impermissible violation of the corpse. Granting, arguendo, that nivul ha-met is not simply any assault or violation of the integrity of the corpse but is limited to a procedure which causes repugnance in the beholder, such a procedure is rendered impermissible not only when repugnance is associated with viewing the corpse subsequent to completion of the procedure but also if the procedure causes repugnance in the eyes of the beholder during the course of its performance. Arguably, no such repugnance occurs during the course of a needle biopsy, or perhaps even in removing a cornea, but it certainly would occur during the course of removal of viscera through the vagina. By the same token, similar repugnance would occur in removing the pituitary gland through the nose.
The second problem addressed by Rabbi Applebaum is that of the prohibition against deriving benefit from a corpse. This question is quite independent of the first question concerning the permissibility of removing the pituitary from the cadaver. The impermissibility of that procedure would not in itself preclude use of the pituitary extract post factum.
R. Jacob Emden, She'ilat Ya'avez, I, no. 41, and apparently Mishneh le-Melekh, Hilkhot Avel 14:22, maintain that the prohibition against deriving benefit from a corpse is rabbinic, not biblical, in nature. If so, the use of pituitary extract would not be forbidden on this account. Rema, Yoreh De'ah 155:3, rules that materials from which benefit is prohibited by virtue of rabbinic edict may be utilized on behalf of any sick person even if the patient is not in danger. The majority of rabbinic decisors, however, maintain that deriving benefit from a corpse involves a biblical infraction. Some maintain that even materials from which it is biblically forbidden to derive benefit may be used by a sick person in an "unusual" or "nonnatural" way (she-lo ke-derekh hana'ah), since only "usual" or "natural" benefit is biblically forbidden. However, R. Akiva Eger, Yoreh De'ah 349:1, rules that in the absence of a threat to life, a sick person may not derive benefit from a corpse even in an unusual manner. Some authorities permit benefit to be derived from a corpse provided that the tissue utilized is less than the size of an olive. Mishneh le-Melekh, Hilkhot Avel 14:22 cites conflicting authorities with regard to whether or not it is permissible to derive benefit from the corpse of a non-Jew.
The prohibition against deriving benefit from a corpse may not apply to the use of pituitary hormone for other reasons, argues Rabbi Applebaum. Teshuvot Maḥaneh Hayyim, II, Yoreh De'ah, no. 60, permits an epileptic to use a medicament if administered in a compound mixed with the bones of kosher animals. Similarly, the pituitary extract would be permissible, according to this opinion, when mixed with other chemicals obtained from sources which are entirely permissible. A second argument which may be advanced is that, in contradistinction to other medicines which have a direct effect, growth hormones do not cause growth in and of themselves but, instead, enable nutrients to be metabolized in a way that enables growth to occur. Hence the desired benefit is obtained not from the pituitary extract alone but from the hormone in conjunction with nutrients. Materials from which benefit may not be derived may be utilized if the resultant benefit is derived only in conjunction with utilization of another permissible material (zeh ve-zeh gorem).
Fortunately, these questions may soon become academic. Research currently in progress involving experimentation with recombinant DNA shows particular promise for the development of pharmaceutical drugs. It is reported that several hormones, including pituitary growth hormone, have already been duplicated and now await further testing before being placed on the market.9See David V. Goeddel et al., “Direct Expression in Escherichia Coli of a DNA Sequence Coding for Human Growth Hormone,” Nature, Vol. 281, no. 5732 (October 18, 1979), pp. 544-548. Hopefully, the use of synthetic HGH will serve to obviate both medical and halakhic problems.
The physician's right to some form of compensation is clearly evident from the discussion recorded in Baba Kamma 85a. A person who has caused physical harm to another is obligated to bear the expenses of medical treatment of the victim. The assailant does not have the option of offering the ministration of a physician who will not demand a fee for his services for the victim may counter, "A physician who heals for nothing is worth nothing." A survey of halakhic sources which define the limits placed upon the fee a physician may charge for his services is presented by R. Chaim David Halevi, the Sephardic Chief Rabbi of Tel Aviv, in the Kislev 5737 issue of Shevilin. This material appears to be based in large measure upon Rabbi Eliezer Waldenberg's discussion of the same topic in his Ramat Raḥel, nos. 24 and 25.
Rambam, in his Commentary on the Mishnah, Nedarim 4:4, and in Hilkhot Nedarim 6:8, declares that the obligation to heal is encompassed within the mizvah of returning lost property. Restoration of life and health is no less a mizvah than is restoration of property. It should then follow, mutatis mutandis, that just as one may not accept a fee or reward for returning a lost object so also is it forbidden to accept a fee for rendering medical services. The general principle is that one may not accept a fee for the performance of a mizvah. Nevertheless, some forms of compensation are justified even for the performance of a mizvah. With regard to lost property, the Mishnah, Bekhorot 29a, states that a finder who neglects his own labor in order to preserve the property of another is entitled to compensation for loss of earnings. However, the compensation to which he is entitled is not to the full extent of loss of earnings, but is limited to payment as an "idle worker" (po'el batel), i.e., the amount a worker would accept in return for sitting idle and not engaging in his usual labor. It is presumed that a laborer would prefer not to work and to receive somewhat lower remuneration rather than to work and to receive his usual wage. Although compensation for the actual performance of a mizvah is limited to payment as an "idle worker" for the time expended, compensation may also be accepted for labor performed or services rendered in preparing artifacts to be used in performance of a mizvah. The Gemara, Berakhot 29a, declares that although one may not accept a fee for performing the ritual of purification it is nevertheless permitted to accept compensation for the labor involved in transporting the ashes of the red heifer and in drawing water for this purpose.
Ramban, in his Torat ha-Adam, in the concluding section of Sha'ar ha-Sakanah, applies these principles to the remuneration of a physician and rules that a physician is permitted to accept compensation for his labor and for the time in which he could otherwise have been gainfully employed, but is not entitled to compensation for his "wisdom" or for his "instruction" in advising the patient how to restore himself to good health. Applying this principle, Arukh ha-Shulḥan, Yoreh De'ah 336:3, rules that a physician may not accept a fee for proffering medical advice but may demand a fee for his labor and exertion in visiting a patient or in writing a prescription. Rabbi Eliezer Waldenberg, Ramat Raḥel, no. 24, adds that a physician may accept a fee for the labor involved in conducting a physical examination even if the examination is performed in his office, but not for simply offering medical advice since (usually) the time expended in merely offering advice is minimal. A fee for the effort involved in examining the patient is permissible since the examination is merely preparatory to therapy. The mizvah itself is fulfilled only in providing treatment and offering medical advice. In light of this distinction Rabbi Waldenberg questions Arukh ha-Shulḥan's statement that the physician may accept a fee for writing a prescription since, he argues, the writing of a prescription involves no significant expenditure of time or effort, and is, in fact, no different from offering advice orally.
The compensation of an "idle worker" is calculated in terms of the type of labor which the worker ordinarily performs. A person who earns a living by means of heavy labor is deemed to be willing to accept a significantly lower wage if he is permitted to remain idle, whereas one who "pierces pearls" would be willing to accept only a smaller reduction in his earning capacity. It is therefore relatively simple to calculate the value of a person who is regularly employed in a craft or trade and does not devote his time entirely to the practice of medicine. In such circumstances, it is possible to calculate the value of the person's time and to determine the amount he would willingly accept not to engage in his particular occupation.10For other opinions regarding the assessment of the value of the time of an “idle worker” see Rashi and Tosafot, Bekhorot 29b. However, in modern times, physicians customarily devote themselves exclusively to the practice of medicine. How, then, is the value of the physician's time to be calculated? Rabbi Halevi suggests that a parallel may be drawn from the principle established with regard to teachers of Torah. Tur Shulḥan Arukh, Yoreh De'ah 246, rules that such teachers may accept a salary since they have foresaken all other means of earning a livelihood. Similarly, he argues, physicians who might have applied their talents in pursuing some other profession are entitled to receive compensation for having renounced such occupations. The total income a physician might have anticipated in practicing some other profession minus the amount he would be willing to forego not to have to engage in any profession may be deemed the compensation to which the physician is entitled as an "idle worker" and may thus be apportioned among the physician's patients. Accordingly, the general practitioner and the neurosurgeon, assuming they are capable of earning identical salaries in other professions, are entitled to equal annual compensation, the total sum to be apportioned among their respective patients in accordance with the time spent with each patient.
However, Tosafot, Ketubot 105a, states that teachers of Torah who have no other occupation may not receive compensation as "idle workers" since they have no other trade, but the community is nevertheless obligated to support them since they have no means of earning a livelihood. According to Tosafot the compensation to which Torah teachers are entitled is, in effect, a form of charity. Undoubtedly, the community would have a similar obligation with regard to the support of a physician who has no other means of earning a livelihood. However, Rabbi Halevi fails to note that, according to this analysis, it would appear that a physician could not legitimately command the type of fee to which he would be entitled according to the thesis of the Tur. However, even according to the Tur, a physician is not entitled to demand compensation in excess of the amount he would be capable of earning in another profession.
The physician is obviously entitled to recover the expenses he incurs in conjunction with his practice by apportioning those costs among the patients whom he treats. Teshuvot Maharam Schick, Yoreh De'ah, no. 343, rules that the physician may also legitimately charge a fee for services which are non-therapeutic in nature such as pronouncing death and signing a death certificate. Maharam Schick does, however, raise a problem with regard to accepting compensation for pronouncing death and signing a death certificate on other, although similar, grounds. By reason of civil law it is necessary for a physician to pronounce a patient dead and to sign a death certificate in order for burial to take place. Hence the physician's services are intrinsic to fulfillment of the mizvah of burying the dead, which encompasses all matters necessary to facilitate timely and dignified interment of the deceased. Nevertheless, rules Maharam Schick, a fee is justified for precisely the same reasons which warrant a fee for rendering therapeutic services. It would appear, however, that a physician is fully entitled to establish a fee for filling out insurance forms and the like without regard to the considerations earlier outlined since such services are not related to the cure of the patient.
It would also appear that physicians who have busy practices and therefore turn away patients because of pressures of time have a ready means of calculating sekhar batalah. If, as is generally the case, they might accept additional non-Jewish patients, their time may be valued in terms of the fees they might charge non-Jewish patients. Non-Jews recognize neither a legal nor a moral obligation which obliges a physician to treat those in need of his services. This is reflected in the code of ethics of the American Medical Association which specifies that a physician may choose whom he shall treat. Concomitantly, Jewish law places no restriction upon the fee which may be charged a non-Jewish patient. Since there is no restriction upon the fee which physicians may charge non-Jewish patients, it would appear that they may then charge their Jewish patients the amount they would be willing to accept in order to remain "idle" and treat no patients during that time. A physician who commands high fees is likely to be willing to accept a sum only moderately less than his customary fee in order to remain idle and to forego such income-producing opportunities, as indeed is the case with regard to the artisan engaged in "piercing pearls."
Thus far the question revolves around the physician's obligation to heal and the limits placed upon the compensation he may justifiably demand in return for his services. If, however, as a condition of treatment, the physician demands a fee in excess of that to which he is morally entitled, is the patient subsequently obligated to pay the fee in full?
The paradigm applicable to the resolution of this question is the case discussed by the Gemara, Yevamot 106a, involving an escaping prisoner who finds it necessary to traverse a river in order to make good his escape. Even if the escapee has promised a ferryman an exorbitant sum in order to transport him over the river he need pay only the fee which is usual and customary for such services on the plea that "I was but making sport of you" in promising an exorbitant fee, i.e., the obligation is not binding because of the absence of seriousness of intent. All authorities agree that an apothecary who demands an exorbitant price for a drug has no actionable claim for an amount in excess of the item's fair market value since it is obvious that the patient's acquiescence to payment of a higher sum was secured under duress. This ruling is recorded in Shulḥan Arukh, Yoreh De'ah 336:3.
Ramban, loc. cit., whose opinion is followed by Shulḥan Arukh, Yoreh De'ah 336:2, distinguishes between the case of the physician who demands an exorbitant fee and that of the apothecary who engages in price-gouging and the case of the boatman who demands inordinately high wages. The latter, declares Ramban, have set and determined values whereas the physician, although he has acted unethically, "has sold his wisdom and [his wisdom] is priceless." Therefore, the patient may not claim that, in agreeing to the fee stipulated by the physician, he was merely "making sport." Accordingly, the physician has a cause of action for the collection of any fee which has been agreed upon.
Ritva, cited by Nemukei Yosef, Yevamot 106a, adopts an opposing view. Ritva maintains that, despite his explicit undertaking to pay a stipulated fee the patient need pay only for the time and labor expended by the doctor since the physician is obligated to treat the patient by virtue of the mizvah incumbent upon him. Ritva, as his position is interpreted by Ramban, apparently understands that the ferryman who is the subject of discussion in Yevamot 106a has no claim for exorbitant compensation, even though such compensation has been stipulated by the parties, for the identical reason. The ferryman, in preserving the life of the escaped prisoner, is also engaged in restoring a "lost body." The rejoinder "I was making sport of you," according to this analysis, is based, not upon the claim of duress, but upon the premise that the boatman cannot demand more than payment for time and labor since he is bound to render service by virtue of the mizvah incumbent upon him. Thus, according to Ritva, there is no consideration and hence no concomitant seriousness of intent which would serve to establish a binding contract.11This explanation serves to dispel the difficulty expressed by Rabbi Charles B. Chavel, Kitvei Ramban, II, 45, note 84. Ritva's opinion is, however, rejected by all subsequent authorities. Indeed, Ritva himself, in his commentary on Kiddushin 8a, agrees with Ramban.
Nevertheless, it appears from Ramban's discussion of the position subsequently espoused by Ritva that he concedes the basic point, viz., that an agreement to pay for services which, absent such agreement, are already incumbent upon the individual is not actionable. Ramban's disagreement with this position appears to be based entirely upon the contention that the physician may claim that he has no personal obligation to treat the patient. The mizvah, in the words of Ramban, "is incumbent upon the entire world" and therefore an individual physician has the legal capacity to enter into a binding contract for payment in return for his professional services. Hence Teshuvot Radbaz, III, no. 556, declares that in a situation in which no other physician is available or in which "there is no physician as expert as he, it appears to me that even Ramban concedes" that the physician's claim is limited to payment for time expended as an "idle worker." Rema's language, Yoreh De'ah 336:4, readily lends itself to a similar inference.
Nevertheless, Rabbi Waldenberg, Ramat Raḥel, no. 25, argues that the physician's claim is actionable even under such circumstances. Rabbi Waldenberg argues that since, at present, physicians customarily—albeit unethically—charge high fees, the patient can no longer claim, "I was making sport of you." If, however, the analysis of Ramban presented earlier is correct Rabbi Waldenberg's conclusion is unwarranted. If Ramban is understood as agreeing that there can be no binding contract for payment of services which are already incumbent upon the individual it then follows that the patient is not obligated to pay such fees when no other equally competent physician is available.
One final consideration must be mentioned. R. Menachem ben Zeraḥ, in a work composed on behalf of Isaac Abarbanel, Ẓedah la-Derekh, Fifth Treatise, klal 2, chapter 2, presents a very practical consideration which augurs in favor of paying any fee which has been agreed upon. This authority advises that the physician's fees be paid in full "for if not, you have closed the door before [other] patients," i.e., physicians may decline to treat other patients in the future.
R. Eliezer Fleckeles, Teshuvah me-Ahavah, III, no. 408, rules that a physician must treat the poor, who cannot afford even the permitted payment for time and effort, entirely without charge. In support of this position he cites Rema, Yoreh De'ah 261:1, who rules that if a father cannot afford the mohel's fee, the Bet Din may compel the mohel to render his services without a fee. Rema explains this ruling by stating that such a case is comparable to the situation of a child who has no father. In such circumstances the members of the Bet Din are themselves obligated to perform the circumcision. Although it is not entirely clear that this consideration applies with regard to treatment of the sick, R. Elijah of Vilna, Bi'ur haGra, Yoreh De'ah 261:7, amplifies Rema's statement in a manner which makes it readily applicable to treatment of the sick as well. Bi'ur ha-Gra explains that in the father's absence the mizvah of circumcision is actually incumbent upon each and every Jew and that the Bet Din act merely to enforce fulfillment of the personal obligation incumbent upon the mohel.12Cf., Ramat Raḥel, no. 24, sec. 3. This consideration certainly applies to treatment of the sick as well. Rabbi Waldenberg, Ramat Raḥel, no. 24, sec. 4, draws attention to the source of this ruling, Teshuvot ha-Rashba, I, no. 472, in which Rashba rules that in such circumstances the father has no obligation to seek charity in order to provide for the mohel's fee. Similarly, rules Rabbi Waldenberg, neither the patient nor the community is obligated to raise funds for payment of the physician's fee for the treatment of an indigent patient. Rather, if the patient lacks personal resources the physician may be compelled to treat him without charge. Rabbi Waldenberg, however, points out that, as has been noted earlier, when there is more than one mohel or physician available each one may claim that he is under no personal obligation to render his services without fee. Each mohel or physician may, in such circumstances, plead that he is under no greater obligation than his fellow. Under such circumstances, concludes Rabbi Waldenberg, the community must either make charitable funds available for this purpose or else the Bet Din may obviate this disclaimer on the part of the mohel or physician by apportioning the burden among the available practitioners in an equitable manner.
Judaism places stringent restrictions upon disclosure of confidential information regardless of whether the information is received in the course of a professional relationship, a secret non-professional communication, as the result of an inadvertent or accidental disclosure, or through a third party.
The prohibition against divulging personal information concerning another person is derived from the biblical verse "Thou shalt not go as a bearer of tales among your people" (Leviticus 19:16). Such activity is forbidden even when it is not accompanied by malicious intent and even if the information is not derogatory in nature. As formulated by Maimonides, Mishneh Torah, Hilkhot De'ot 7:2, "Who is a tale-bearer? One who carries reports and goes from one person to another and says, 'So-and-so said this' or 'Such and such have I heard about so-and-so.' Even if he tells the truth, [the tale-bearer] destroys the world.13Although not in the category of talebearing and hence not the object of a negative commandment, the Gemara, Yoma 4b, declares disclosure of even a non-personal communication to be improper unless prior permission has been granted for such disclosure. See also commentary of Oraḥ Ḥayyim on Ex. 25:2. Sefer Miẓvot Gadol, lavin, no. 9, interprets Yoma 4b as establishing a negative prohibition (interpreting the word “lamor” as “lo emor”) forbidding disclosure of such information; see, however, Torah Temimah, Lev. 1:1, who understands Sefer Miẓvot Gadol as positing a rabbinic rather than a biblical prohibition. Cf., Bet ha-Beḥirah, Yoma 4b, who describes the stricture against disclosure of a non-personal communication which has not been imparted in a confidential manner as a matter of derekh ereẓ or seemly behavior.
Despite this stricture against disclosure of confidential information, which results in a moral code even more restrictive in some respects than presently accepted canons of professional confidentiality, Jewish law acknowledges that in certain circumstances even professional confidences must be revealed.
The position of Halakhah with regard to disclosure of professional confidences is examined by Rabbi Shiloh Raphael in the Av 5738 issue of Assia. Earlier discussions of the topic include those of Rabbi Ya'akov Breisch, Helkat Ya'akov, III, no. 136, Rabbi Baruch Rakover, No'am, vol. II, and Rabbi Eliezer Waldenberg in his most recent volume, Ẓiz Eli'ezer, XIII, no. 81. The earliest source which presents a detailed discussion of the principles governing disclosure of medical information is Hafez Hayyim, the classic text authored by R. Israel Meir Kagan dealing with Jewish law as it applies to slander, defamation of character, talebearing and the like.
The particular situation discussed in Hafez Hayyim, Hilkhot Rekhilut, klal 9, is that of a person seeking disclosure of medical information concerning a prospective marriage partner. Hafez Hayyim rules that, in principle, such information may be divulged. Disclosure is, however, restricted in the following four ways: (1) The presence of a disease or physical defect may be disclosed. However, a vague, general weakness or deficiency which does not immediately compromise health may not be disclosed. (2) The nature or extent of a disease or injury must not be exaggerated in any way. (3) The sole motivation prompting disclosure must be the benefit of the person to whom the information is supplied. No disclosure may be made when prompted, even in part, by personal animosity. (4) Disclosure is permissible only when there exist reasonable grounds for assuming that the information divulged will be the determining factor in terms of the contemplated marriage. Such information may not be divulged if there is no reason to assume that the ultimate decision will be affected thereby.
These provisions of Jewish law apply not only to disclosure of information with regard to a prospective marriage partner, but, mutatis mutandis, are applicable with regard to disclosure of information to a prospective employer as well. It is quite evident that these provisions of Halakhah reflect a balance between considerations of privacy and considerations of potential harm or damage which may accrue to another party. No person has the right to divulge information of a personal nature concerning a fellow man simply to satisfy the curiosity of a third party. By the same token, such information may not legitimately be disclosed simply in order to make a dossier complete. The crucial consideration is the "need to know" in the sense of avoiding potential harm. It follows, therefore, that, for example, information which has no bearing upon job performance may not be revealed. Since the information in question is not necessary to prevent harm or financial loss the privacy of such information may not be violated.
Respect for privacy and the inviolability of the professional relationship certainly do not take precedence over protection of the lives and safety of others. The overriding obligation to protect the lives of others is of sufficient weight to oblige the physician to take whatever measures may be necessary to eliminate the danger. Thus, for example, a physician must inform the motor vehicle bureau that his patient is an epileptic and should be denied a driver's license. The obligation to violate the confidential nature of the physician-patient relationship in such extreme situations is included within the "law of pursuit." A person engaged in an act which will lead to the death of another must be prevented from causing such death even if the act is entirely unintentional. R. Elijah of Vilna, Bi'ur ha-Gra, Hoshen Mishpat 425:10, states explicitly that the "law of pursuit" applies even in the absence of intention to do harm.
Rabbi Breisch argues that it is not merely permissible but obligatory to reveal information designed to avert personal tragedy or financial loss. Maimonides, Mishneh Torah, Hilkhot Rozeaḥ 1:13, followed by Shulḥan Arukh, Hoshen Mishpat 426:1 rules that if an individual "hears that gentiles or apostates are plotting misfortune" for another person, he must bring the matter to that person's attention. Failure to do so, declares Maimonides, constitutes a violation of the commandment "You shall not stand idly by the blood of your fellow" (Leviticus 19:16). Hafez Hayyim, Be'er Mayim Hayyim, Hilkhot Issurei Rekhilut 9:1, demonstrates that this admonition applies not only to preservation of the life of another person but also to preservation of money or property.
Rabbi Breisch argues that disclosure under such circumstances is mandated, at least according to some authorities, by virtue of another commandment as well. "Thou shalt not place a stumbling block before the blind" (Leviticus 19:14) is understood in rabbinic sources as prohibiting an individual from causing another person to "stumble" by committing a transgression and also prohibits giving detrimental advice in mundane matters. Maimonides, Mishneh Torah, Hilkhot Rozeaḥ 12:4, extends the concept not only to providing direct aid in committing a sin but also to "strengthening the hands of transgressors." R. Judah Rozanes, Mishneh le-Melekh, Hilkhot Kelayim 1:6, maintains that even a passive stance may constitute "strengthening the hands of transgressors" and hence is forbidden by Maimonides as a "stumbling block before the blind." Mishneh le-Melekh employs this thesis in explaining an otherwise difficult ruling of Maimonides. Maimonides rules that a Jew may not permit a gentile to utilize a tree belonging to a Jew for purposes of grafting a branch of one species to another. Even passive acquiescence constitutes a violation of the prohibition against "placing a stumbling block."14This is also the view of Bi’ur ha-Gra, Yoreh De‘ah 295:2 and Pri Megadim Oraḥ Ḥayyim 443:5 and 444:6, although R. Joshua Falk, Derishah, Yoreh De‘ah 297, avers that the prohibition against “placing a stumbling block” encompasses only an overt action but does not extend to passive nonfeasance. Rabbi Breisch argues that since not only assistance in transgression but also offering poor counsel is prohibited by this commandment, "passive" counsel which is deleterious in nature is also forbidden. Advice designed to bring unhappiness or financial loss is clearly forbidden. Hence, according to Mishneh le-Melekh, failure to provide information and advice for the purpose of averting such unfortunate results is also a form of "placing a stumbling block before the blind." Accordingly, concludes Rabbi Breisch, a physician is not at all justified in maintaining his own counsel in circumstances which would result in grief or financial loss to others.
Thus, the recipient of a privileged communication is obliged to disclose information imparted to him in order to preserve the lives and property of others. If, however, no danger exists, or if the danger can be averted by other means, he may not violate the confidence. The desire to see an evildoer brought to justice and punished for his crime is not, in itself, sufficient reason to justify breach of confidence. When it is necessary to disclose information, disclosure must be limited to those facts and details which require disclosure in order to obviate danger.
Rabbi Waldenberg notes that Jewish law also provides that the Bet Din may compel testimony which would otherwise involve a breach of personal or professional confidence. The obligation born of the commandment "… he who is a witness … if he does not inform, he should bear his iniquity" (Leviticus 5:1) supersedes the obligation to respect the privacy of others. It would seem that in such cases Jewish law would require that testimony of this nature be heard in camera in order that matters of a personal nature not be overheard by persons who have no "need to know." This was indeed the ruling of the Israeli Supreme Rabbinical Court, Piskei Din Rabbaniyim, IX, 331, in a related case.
The halakhic problem with regard to disclosure of confidential information by a physician is complicated by the fact that the Hippocratic oath contains the statement, "And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets." Thus, the physician is bound by a solemn oath not to divulge confidential information. Rabbi Waldenberg states that the physician may nevertheless be compelled by the Bet Din to testify. The Mishnah, Shevu'ot 29a, declares that an oath not to testify in a given matter is an oath taken in vain. All Jews are bound by the oath taken at Mount Sinai to obey the commandments of the Torah. Hence a person cannot swear a binding oath not to testify since he is bound by a prior oath which compels his testimony when demanded by a Bet Din. This would appear to be the case even with regard to divulging information in order to avoid anguish or financial loss according to the opinion of Rabbi Breisch, who maintains that failure to do so constitutes a transgression.
Rabbi Waldenberg, however, points out that this provision of Jewish law applies only to an oath pertaining specifically to testimony. The physician does not swear an oath not to testify, but rather swears a general oath not to divulge confidential information. Rabbi Waldenberg cites authorities who maintain that a general oath applying to situations not involving infractions of Jewish law is a binding oath and hence acquires validity in all situations including those which involve a transgression of Halakhah. Nevertheless, Rabbi Waldenberg asserts that the oath is not binding in such situations because it may be assumed that the physician "and specifically the observant physician" had no intention of including in his oath situations in which failure to divulge such information would constitute a transgression. Despite his conviction with regard to this point Rabbi Waldenberg adds that the oath should be annulled under such circumstances by a court of three. This would be necessary, according to some authorities, in situations in which the physician is the sole witness since, according to those authorities, the obligation to testify devolves upon witnesses only when they are at least two in number.
It should be noted that nullification of the oath in all circumstances in which the witness is called upon to testify is required by R. Ya'akov Weil, Teshuvot Mahariv, no. 42. This opinion is cited by the commentaries on Shulḥan Arukh, Hoshen Mishpat 28, some of whom express astonishment at such a requirement. Pitḥei Teshuvah, Hoshen Mishpat 28:3, advances the explanation that such nullification is required lest the physician's testimony prove to be purposeless, in which case no breach of confidentiality would have been warranted.
The question of whether testimony by a physician before a Bet Din constitutes a violation of the Hippocratic oath is also discussed by Rabbi Baruch Rakover, presently a member of the rabbinical court of Haifa, in No'am, vol. II (5719). Rabbi Rakover concludes that the physician is forbidden to testify by virtue of his oath in situations in which he is the sole witness. Moreover, even when the witnesses are two or more in number, argues Rabbi Rakover, the physician may not testify unless summoned to do so by one of the litigants. Testimony is ordinarily obligatory by virtue of the specific biblical commandment, "if he shall not testify he shall bear his iniquity" (Leviticus 5:1). This commandment is understood as requiring testimony only when demanded by a litigant. In the absence of a demand on the part of a litigant the witness is required to come forward by virtue of a general obligation to prevent loss or damage to one's fellow. The requirement to give testimony voluntarily under such circumstances is recorded in Yoreh De'ah 239:7. Rema rules that since the obligation to testify under such circumstances is not explicitly stated in Scripture a prior oath not to testify is valid and must be annulled before giving testimony.
Furthermore, citing R. Jonathan Eybeschutz, Urim ve-Tumim, Hoshen Mishpat 28:1, Rabbi Rakover argues that some authorities maintain that a general oath not to divulge information "to any person" is valid and, since not undertaken specifically in violation of a religious duty, binds the person taking such an oath not to divulge such information even before a Bet Din.
Citing Pitḥei Teshuvah, Hoshen Mishpat 34:14, Rabbi Rakover further argues that evidence, when offered in violation of an oath, cannot be accepted by a Bet Din since the witness automatically disqualifies himself by virtue of violating his oath. Rabbi Rakover rejects the contention subsequently advanced by Rabbi Waldenberg to the effect that it may be assumed that the physician had no intention of including in his oath situations in which failure to divulge information would constitute a transgression since "in many countries it is the law—and this is the practice in the administration of justice in civil courts in our country [Israel]—that a physician may not testify without permission of the patient."
It would appear to this writer that this entire problem dissipates upon a close reading of the Hippocratic oath. The physician swears not to divulge whatsoever he shall see or hear in the course of his profession only "if it be what should not be published abroad."Judaism clearly establishes standards of what should and should not be published abroad. The observant physician certainly understands the words of the oath in that manner. Accordingly, the physician is bound by the Hippocratic oath to refrain from divulging only such information which Jewish law deems "should not be published abroad."
Hazardous Medical Procedures
The 5736 issue of Shanah be-Shanah features a contribution by Rabbi Shlomoh Goren bearing the title "The Problem of Medical Experimentation." In actuality, the article deals with the somewhat different question of hazardous medical procedures without at all addressing itself to the question of therapeutic experimentation. The discussion presents a cursory overview of various facets of this question but fails to cite much of the fairly extensive responsa literature dealing with this topic. The present analysis will, therefore, focus upon a wider range of works than the talmudic sources discussed in Rabbi Goren's article.
It is a well-established principle of Jewish law that the obligation to cure and to preserve life is not limited to situations in which it may be anticipated that subsequent to therapy the patient will have a normal life-expectancy. Yoma 85a clearly indicates that a victim trapped under the debris of a fallen wall is to be rescued even if, as a result of such efforts, his life will be prolonged only by a matter of moments. Not only is every human life of infinite value but every moment of human life is also of infinite value. Accordingly, ritual restrictions such as Sabbath laws and the like are suspended even for the most minimal prolongation of life.
When the possibility of curtailing even the brief span of life (ḥayyei sha'ah) which a terminal patient may anticipate is weighed against the possibility of cure accompanied by normal life expectancy, Jewish teaching accepts the principle that reasonable risks may be incurred in the hope of effecting a recovery. Thus, hazardous procedures are sanctioned in life-threatening situations even if the proposed therapy is such that the drug or procedure may prove to be not simply ineffective but deleterious in nature and the patient's life shortened thereby. This principle may be derived from the talmudic discussion in Avodah Zarah 27b concerning the incident of the four leprous men described in II Kings 7:3-4. The Syrian army had besieged Samaria. In addition, the region was suffering from a great famine. The lepers recognized that if they took no action they would die of hunger in a relatively short period of time. Were they, however, to cross into the Syrian lines one of two things would happen: either they would immediately be put to death as enemies or, if pitied because of their infirmity, they would be provided with food and their lives saved. Despite the danger, they reasoned, "Now therefore come, and let us fall into the host of the Syrians: if they save us alive, we shall live; and if they kill us we shall but die." The Gemara views this narrative not simply as a record of a historical event but as a paradigm providing scriptural sanction for assuming the risk of precipitating death in an attempt to restore conditions necessary for normal life-expectancy.
In applying this principle, the Gemara, Avodah Zarah 27b, addresses itself to a very concrete problem. The Gemara reports that idolaters commonly harbored malevolent designs upon the lives of Jews. There was, at the time, strong reason to fear that, given the opportunity to do so, idol worshippers would commit acts of murder against Jews. Accordingly, the Gemara forbids Jews to submit to medical ministrations of an idolatrous practitioner. The question then arises as to whether or not this ban encompasses even situations in which the Jew is afflicted with a life-threatening malady. Rava states in the name of R. Yoḥanan that this ban does include situations in which the patient may possibly die if he does not receive medical attention. However, if the illness is such that, if left untreated, death is a certainty the patient may permit himself to be treated by an idolater. The reasoning advanced is that since the patient's death is a certainty he hazards nothing by placing himself in danger of being killed by the idolater. In analyzing this statement the Gemara interposes an objection and argues that the idolater may shorten the patient's life and thereby deprive him of even the minimal time (ḥayyei sha'ah) he might yet have lived. The Gemara replies that one is justified in jeopardizing a limited, brief life-expectancy in the hope that a cure may be achieved.
On the basis of this talmudic discussion, R. Meir Posner, Bet Meir, Yoreh De'ah 339:1, and R. Jacob Reisher, Shevut Ya'akov, III, no. 85, specifically permit use of a hazardous drug which might cause death to result "within an hour or two" on behalf of a patient who would otherwise have lived for "a day or two days." Despite the brevity of the period of time which the patient may be expected to live without therapy, Shevut Ya'akov mandates consultation with "proficient medical specialists in the city" and rules that therapy is to be instituted only if the physicians recommend it by at least a majority of two to one. He further requires that the approval of the local rabbinic authority be obtained before such recommendations are acted upon.15See also R. Shlomoh Eger, Gilyon Maharsha, Yoreh De‘ah 155:1; R. Israel Lipshutz, Tiferet Yisra’el, Yoma 8:41; R. Ya‘akov Ettlinger, Binyan Ẓion, no. 111; and R. Eliezer Waldenberg, Ẓiẓ Eli‘ezer, IV, no. 13.
An apparent contradiction to this position is found in Sefer Hasidim, no. 467. This source describes a folk remedy consisting of "grasses" or herbs administered by "women" in treatment of certain maladies. These herbs are reported to either cure or kill the person so treated within a period of days. Sefer Hasidim admonishes that those who administer such potions "will certainly be punished, for they have killed a person before his time." R. Shalom Mordecai Shwadron, Da'at Torah, Oraḥ Hayyim 328:10, resolves this contradiction by stating that the instance discussed by Sefer Hasidim involves a situation in which there is clearly a possibility for cure without hazardous intervention. According to this analysis, Sefer Hasidim sets forth the common-sense approach that hazardous procedures dare not be instituted unless conventional, nonhazardous approaches have been exhausted.
In none of these sources does one find a discussion or consideration of the statistical probability of prolonging life versus the mortality rate or the odds of shortening life. Yet, certainly, in weighing the advisability of instituting hazardous therapy, the relative possibility of achieving a cure is a factor to be considered. Bet David, II, no. 340, permits intervention even if there exists but one chance in a thousand that the proposed drug will be efficacious whereas there are nine hundred and ninety-nine chances that it will hasten the death of the patient. A differing view is presented by R. Joseph Hochgelernter, Mishnat Hakhamim, who refuses to sanction hazardous therapy unless there is at least a fifty percent chance of survival. Although this is also the position adopted by R. Eliezer Waldenberg, Ẓiz Eli'ezer, X, no. 25, chap. 5, sec. 5, it is, however, contested by R. Chaim Ozer Grodzinski, Teshuvot Aḥi'ezer, Yoreh De'ah, no. 16, sec. 8. He further requires, as does Shevut Ya'akov, that dispensation be obtained from ecclesiastical authorities on each occasion that such therapy is administered. Rabbi Moses Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 59, however, rules that in cases when, in the absence of intervention, death is imminent a hazardous procedure may be instituted as long as there is a "slim chance" (safek raḥok) of a cure, even though the chances of survival are "much less than even" and it is, in fact, almost certain that the patient will die. The late Rabbi I. Y. Unterman, the former Chief Rabbi of Israel, writing in No'am, XII (5730), p. 5, maintains that medical risks are warranted "when there is hope of a cure … even if in most cases [the procedure] has not been successful and will shorten life."
A much earlier authority, R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 76, refuses to sanction a hazardous procedure in which the chances of effecting a cure are "remote" but offers no mathematical criteria with regard to the nature of the mortality risk which may properly be assumed.
Tiferet Yisra'el, Bo'az, Yoma 8:3, raises a quite different question in discussing the permissibility of prophylactic inoculations which are themselves hazardous. In the situation described, the patient, at the time of treatment, is at no risk whatsoever. The fear is that he will contract a potentially fatal disease, apparently smallpox. The inoculation, however, does carry with it a certain degree of immediate risk. Tiferet Yisra'el justifies acceptance of this risk which he estimates as being "one in a thousand" because the statistical danger of future contagious infection is greater.
Insofar as there is disagreement between the authorities cited, such disagreement is limited to the permissibility of instituting potentially hazardous therapy. Procedures which involve any significant risk factors are always discretionary rather than mandatory and accordingly, no authority demands that hazardous therapy be initiated.
None of the previously cited discussions draws a distinction between the use of known and accepted techniques or drugs which are hazardous in nature and hazardous procedures which are entirely experimental. However, one contemporary author, Rabbi Moshe Dov Welner, Chief Rabbi of Ashkelon, does discuss medical experimentation. Rabbi Welner differentiates between various cases on the basis of the experimental nature of the risk involved, rather than on the basis of anticipated rates of survival. Writing in Ha-Torah ve-ha-Medinah, VII-VIII (5716-17), p. 314, Rabbi Welner argues that hazardous procedures may be undertaken despite inherent risks only if the therapeutic nature of the procedure has been demonstrated. For example, a situation might arise which calls for the administration of a drug which has known curative potential but which is also toxic in nature. The efficacy of the drug is known but its toxicity may, under certain conditions, kill the patient. The drug may be administered in anticipation of a cure despite the known statistical risk. The same statistical risk, argues Rabbi Welner, could not be sanctioned in administering an experimental drug whose curative powers are unknown or have not been previously demonstrated. This, he maintains, is why Sefer Hasidim censures the practice of administering dangerous herbs as was the custom of women in his day. According to Rabbi Welner, it was not the risk per se which was found to be objectionable; rather, utilization of the herbs in question was simply not accepted medical practice. Since the efficacy of such potions had not been demonstrated, risk to the life of the patient precludes their use. The same distinction is applied by Rabbi Welner with regard to surgical procedures. Surgical hazards are acceptable only when the technique is known to be effective. In the opinion of Rabbi Welner, hazardous surgery employing experimental techniques does not justify exposure to risk.
A related problem is the attitude toward hazardous therapy for alleviation of pain or other symptons rather than for the cure of a potentially fatal illness. R. Jacob Emden, Mor u-Kezi'ah, Oraḥ Hayyim 338, adopts a somewhat ambivalent position with respect to this question. This authority refers specifically to the surgical removal of gall stones, a procedure designed to correct a condition which he viewed as presenting no hazard to life or health but recognized as being excruciatingly painful. He remarks that, in the absence of danger to life, those who submit to surgery "do not act correctly" and that the procedure is "not entirely permissible." However, Me'iri, Sanhedrin 84b, and Rema, Yoreh De'ah 241:13, both sanction hazardous procedures designed to alleviate pain rather than to preserve life. An analysis of conflicting views with regard to this question may be found in Contemporary Halakhic Problems, I, 121-123.
Sha'arei Halakhot, no. 9 (Adar 5736), published by Yeshiva Bais Shearim, contains an item dealing with the propriety of induced labor contributed by that institution's Rosh Yeshivah, Rabbi Menasheh Klein.
In recent years it has become increasingly frequent for some obstetricians to recommend that labor be induced by chemical means late in the ninth month of pregnancy. The major advantage of induced labor is that it enables the physician to plan in advance and to arrange his schedule in order to be available when needed. Delivery may be planned to occur during hours which are convenient without disrupting sleep or recreation. Daylight delivery is also deemed to be medically desirable because expert staffs are available and are able to work at peak efficiency. Moreover, should an emergency occur, other specialists and support personnel are more likely to be available during normal working hours than at other times. Rabbi Klein reports that some persons have advanced a uniquely halakhic consideration arguing for this practice; viz., a desire to obviate the occurrence of childbirth on Shabbat, and the attendant violation of Sabbath regulations.
Rabbi Klein argues strongly against this practice. His major contention is that Jewish law constrains a person from placing his life in jeopardy. Childbirth is viewed by Halakhah as posing an intrinsic risk to the life of the mother. This is evidenced by provisions of Jewish law which mandate the suspension of various ritual laws during the post-partum period. Although the pregnant woman will ultimately experience the selfsame dangers of childbirth upon the conclusion of the nine-month period of gestation, Rabbi Klein argues that the prohibition against placing one's life in danger includes a constraint against preponing even an otherwise unavoidable hazard. Moreover, there is no obligation to intervene in natural processes in an artificial manner in order to avoid violation of Shabbat laws following childbirth. Rabbi Klein also marshalls aggadic and kabbalistic sources indicating that the entire nine-month period spent by the fetus in the mother's womb is beneficial to the subsequent physical and mental development of the child. The Gemara, Niddah 30b, teaches that the child is taught the Torah in its entirety while in the mother's womb but is caused by an angel to forget what it has learned before parturition. Foreshortening this experience, argues Rabbi Klein, is certainly not to the benefit of the child.
There is, indeed, medical evidence indicating that induced labor poses hazards for the child. The drugs administered in inducing labor can lead to an increase in fetal morbidity during labor and after delivery. Then, too, there is the everpresent possibility of an error in the dating of gestation which may result in a premature birth leading to death or irreparable damage in the neonatal period. The British medical journal, Lancet, November 16, 1974, pp. 1183-84, featured an editorial severely critical of the practice of inducing labor for reasons of convenience and labelled such procedure a pernicious practice. The medical argument for daylight delivery is also challenged in this editorial. Evidence is cited which demonstrates that, oddly, fetal complications, as judged by the need for incubation or oxygen administration, may be more common during the day than during the night.
These considerations apply a fortiori to delivery by cesarean section when not indicated on medical grounds. Recent reports indicate that in some South American countries this procedure is preferred over natural childbirth in certain strata of society simply on the basis of cosmetic considerations since pregnancy terminated by cesarean section leaves virtually no effect upon the feminine figure. From the halakhic point of view, such frivolous considerations certainly do not justify the increased risk associated with this surgical procedure. Moreover, the surgical incision, when not therapeutically indicated, constitutes an assault upon the body and is forbidden as an act of "wounding" (ḥavalah).
It is, however, perfectly clear that when medically indicated, there is no restriction upon either induced labor or performance of a cesarean section. The assumption of the risks involved in these procedures is clearly warranted in order to avoid other risks which are greater in nature. Labor may therefore be induced or speeded if nonintervention would result in greater risk.